BP2007/3201, Transcript of Proceedings [2007] AIRCTrans 469 (17 September 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17363-1

VICE PRESIDENT LAWLER

BP2007/3201

s.451(1) - Application for order for protected action ballot to be held
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Australian Postal Corporation
(BP2007/3201)

SYDNEY

12.15PM, MONDAY, 03 SEPTEMBER 2007

Continued from 30/8/2007

PN1

PN1

THE VICE PRESIDENT: Mr Reitano and Mr Tehan, some housekeeping matters first, a facsimile from your firm, Mr Tehan, of 31 August advising that Australia Post was withdrawing the witness statement of Catherine Walsh but would be seeking to rely upon all the annexures to that statement with the exception of CMW3. Is that still the position in the light of Mr Husic's statement?

PN2

MR TEHAN: Yes, your Honour We'll be objecting to Mr Husic's statement going in.

PN3

THE VICE PRESIDENT: I imagine that Mr Reitano would no doubt be happy to - taking the scalpel to parts of it that are expressly responding to Ms Walsh's statement, but I'll hear from him as to what he's got to say. Yes, please do, Alicia. We've just lost the video linkage to Melbourne. If it's necessary at the Melbourne end to speak, the button on the microphone on the desk, which is glowing red, will need to be pressed.

PN4

Mr Tehan, just confirming then, you intend to maintain the position of withdrawing Ms Walsh's statement but not the annexures save for CMW3.

PN5

MR TEHAN: Yes, your Honour.

EXHIBIT #2 ANNEXURES TO MS WALSH'S STATEMENT WITH THE EXCEPTION OF CMW3

PN6

MR TEHAN: Yes, your Honour.

PN7

THE VICE PRESIDENT: Is that the evidence that Post calls in its case in-chief

PN8

MR TEHAN: Yes, your Honour.

PN9

THE VICE PRESIDENT: Mr Reitano.

PN10

MR REITANO: I tender the statement of Ed Husic.

PN11

THE VICE PRESIDENT: Mr Tehan.

PN12

MR TEHAN: Yes, your Honour

PN13

THE VICE PRESIDENT: Mr Reitano, are you happy to exclude those parts of it which are specifically responding to Ms Walsh's statement?

PN14

MR REITANO: No.

PN15

THE VICE PRESIDENT: Therefore effectively inviting Ms Walsh's statement back into evidence?

PN16

MR REITANO: No. What Mr Husic does in his statement and what we tried to do when we found out that Ms Walsh's statement wasn't relied on, was to express things in a way that in effect dealt with - - -

PN17

THE VICE PRESIDENT: Can I suggest that if you take out paragraphs 4 and 5, for example, and 7, the second sentence of 8, that all of the affirmative things
that - - -

PN18

MR REITANO: Sorry, I would have thought that those things went without saying, but yes. It's 4, 5, 7 and the second sentence of 8 only which are directly responsive without constituting affirmative statements. I think there might be one towards the back.

PN19

THE VICE PRESIDENT: The first sentence of 42 and the last sentence of 42 and the whole of paragraph 46.

PN20

MR REITANO: Sorry, the first sentence of 42, yes.

PN21

THE VICE PRESIDENT: The last sentence of 42, perhaps it's the first sentence of 46 - - -

PN22

MR REITANO: I think that's right.

PN23

THE VICE PRESIDENT: - - - and the last sentence of 46 as well.

PN24

MR REITANO: Yes. There's another one in 14, the second sentence.

PN25

THE VICE PRESIDENT: Yes. I'll take those as being not pressed.

PN26

MR REITANO: Yes.

PN27

THE VICE PRESIDENT: Yes, Mr Tehan, your objections to Mr Husic's statement in the - - -

PN28

MR TEHAN: Your Honour, did Mr Reitano say that he pressed it, but then with a little bit of - with you saying but you're inviting that and then stating the sentences that he needed to withdraw and he then agreed to it.

PN29

THE VICE PRESIDENT: He's responded to it in a flexible fashion. At the moment 4, 5, 7, second sentence of 8 - - -

PN30

MR TEHAN: I think it's the third sentence of 7, your Honour.

PN31

THE VICE PRESIDENT: No, the whole - - -

PN32

MR TEHAN: The fourth sentence of 8, isn't it, rather than the second sentence of 8?

PN33

THE VICE PRESIDENT: No, the second sentence is:

PN34

I reject Ms Walsh's claim in paragraph 29 of her statement.

PN35

MR TEHAN: In the version I've been sent it's the fourth sentence of 8.

PN36

THE VICE PRESIDENT: Mr Tehan, let me hand you down a copy of what I'm looking at.

PN37

MR REITANO: I think Mr Tehan is right and we're wrong. I think it is the fourth sentence of 8.

PN38

THE VICE PRESIDENT: Second sentence of 8 - sorry, you're right.

PN39

MR TEHAN: That's not uncommon for me, your Honour.

PN40

THE VICE PRESIDENT: The sentence:

PN41

I reject Ms Walsh's claim in paragraph 29 of her statement.

PN42

Starting the second line of paragraph 14, "these submissions" to the end of that paragraph.

PN43

MR TEHAN: We leave in the sort of gratuitous little insults and things in paragraph 10?

PN44

THE VICE PRESIDENT: We'll go through those. I'm just going through the ones that Mr Reitano has flexibly agreed to not press. Then we were moving to the back. I think there's in fact a sentence in paragraph 15 as well, Mr Reitano, the third sentence:

PN45

I note that Ms Walsh has not mentioned anything about the negotiations I have held with Mr John.

PN46

MR REITANO: That's correct.

PN47

THE VICE PRESIDENT: So that one as well. Then 42, the first sentence, Mr Tehan, and the last sentence, and 46 the same position. Assuming that those are not pressed, do you maintain - - -

PN48

MR TEHAN: Yes, we do, your Honour. This statement should not be admitted because it is a serious, indeed outrageous breach of without prejudice discussions that have taken place on one of the key issues which separates the parties and reveals confidential discussions with Mr John, the managing director of Australia Post which have never hitherto been referred to.

PN49

THE VICE PRESIDENT: Mr Tehan, I'm just shaking my head at this. There are two quite distinct concepts wrapped up in that. One is the status of without prejudice communications and whether or not there's some rule that will exclude them in relation to proceedings of this sort. Then secondly, there's the inappropriateness or otherwise of referring to such discussions with Mr John in the context of the position that Post has taken.

PN50

Post is maintaining a position, albeit in the absence of Ms Walsh's statement, that the union has not been genuinely trying to reach an agreement and that it is pressing for prohibited content. It would strike me as being not unreasonable, putting aside the issues of without prejudice, to refer to the discussions with
Mr John when they put the lie to - at least from the union's perspective put the lie to the conclusion that Post asks me to reach, namely that there has been no genuine attempt to reach an agreement.

PN51

So far as without prejudice is concerned, I notice that you tendered a document yourself , CMW13.

PN52

MR TEHAN: Yes, your Honour. CMW13 was a document which set out between the parties on the relevant - - -

PN53

THE VICE PRESIDENT: Without prejudice in this context means something totally different, doesn't it, from the usual meaning of that expression when it's used in the context of litigation.

PN54

MR TEHAN: Yes, it does.

PN55

THE VICE PRESIDENT: When it's used in the context of litigation there are very deep policy reasons why discussions should be able to occur between parties to litigation about the subject-matter of litigation and that those discussions ought be protected, but at the time these discussions were occurring there was no litigation and the without prejudice is not directed towards the usual legal notion but rather the notion that we will not be held to this or have the position publicised. We're not committing ourselves to anything.

PN56

MR TEHAN: Yes, and that's why, your Honour, the documents that we put in, which you might think backward and forwards, the process of argy-bargy that goes on, many of the exhibits that we've put in, the documents that we've tendered are in that category where they reveal a preparedness to move in relation to different issues along the way towards reaching an agreement. CMW13 is marked without prejudice and it was a document prepared six months ago, which set out the view of the union in relation to several of the clauses concerning agency staff and the like.

PN57

To be frank, your Honour, it's not all that helpful for us. It's a document which reveals that the union was prepared, is prepared to say, "If it's proved to be prohibited, we don't press it." We put it in as a document which we thought revealed the union's position in relation to prohibited content. It's not exactly a document that helps us. It's a document which ought to be before the Commission. It was prepared six months ago - more than six months ago and the document which underlies the point that is made about whether the union is pressing a claim, the subject of which might be prohibited content within the meaning of the regulations. In that sense, we felt that it had lost its without prejudice nature in the discussions.

PN58

THE VICE PRESIDENT: Were is the evidence that the discussions that Mr Husic refers to with Mr John attach that status of without prejudice? You're saying you can ...... I've got to say I don't think there's anything in this that reflects adversely on Mr john, though, is there?

PN59

MR TEHAN: Mr John is the managing director of Australia Post.

PN60

THE VICE PRESIDENT: Yes, and he seems to be a very excellent managing director who's approachable and reasonable and thoughtful. He hasn't necessarily agreed with what the unions want, though. That doesn't necessarily count as a black mark against him either.

PN61

MR TEHAN: No, that's true. Your Honour, Mr Husic's own statement says these were private meetings with Mr John. He uses that word twice, I think, in the material.

PN62

THE VICE PRESIDENT: But he uses it, to be fair to him, as a way of emphasising that they were discussions between he and Mr John and no one else, ie. Ms Walsh in particular was not there in relation to most of them and therefore she was addressing matters in her statement without full knowledge of what in fact had transpired in the full extent of negotiations between the union and Australia Post in the form of the private meetings between Mr Husic and Mr John.

PN63

MR TEHAN: Yes. Your Honour, for us to get into refuting Mr Husic's material, we would need to take detailed instructions from Mr John about the discussions that Mr Husic says took place. We would need to take detailed instructions - I withdraw that. It may be the union says they want to cross-examine Mr John if we put in doubt other questions.

PN64

THE VICE PRESIDENT: Only if you put on a statement from him.

PN65

MR TEHAN: They may say it's an inference. Mr John can come along and give evidence.

PN66

THE VICE PRESIDENT: No doubt they would.

PN67

MR TEHAN: We ..... that sort of circumstance, in the context of which Mr John has been involved because he perceived - because Mr Husic, I beg your pardon, perceived that there was a risk the discussions were going off the rails and he rang Mr John. Mr John agreed to meet with him.

PN68

THE VICE PRESIDENT: I just don't see this as in any way reflecting adversely on Mr John, on the contrary. How more approachable a chief executive officer could you find?

PN69

MR TEHAN: It's not a case of reflecting adversely on Mr John at all. It's a case of breaching a number of fundamental understandings between parties in relation to a complicated industrial situation.

PN70

THE VICE PRESIDENT: Do you have instructions from Mr John that these meetings were expressly on the basis that they would not be referred to at all in the future?

PN71

MR TEHAN: I've not consulted with Mr John about this matter, your Honour. In the time available to us we haven't pursued that with him. I accept Mr Husic's word that they were private meetings.

PN72

THE VICE PRESIDENT: I've got to say I read that reference to private meetings as not a reference to them having some special confidential status never to be revealed, but rather a description of the fact that they were simply meetings between Mr Husic and Mr John and nobody else.

PN73

MR TEHAN: Mr Husic does not meet with Mr John on a regular basis.

PN74

THE VICE PRESIDENT: Sorry?

PN75

MR TEHAN: Mr Husic does not meet with Mr John on a regular basis.

PN76

THE VICE PRESIDENT: No.

PN77

MR TEHAN: This is not Mr John's usual approach to matters.

PN78

THE VICE PRESIDENT: No, so?

PN79

MR TEHAN: There is no issue or no conclusion one way or the other, other than what Mr Husic says that it was a private meeting with Mr John about - - -

PN80

THE VICE PRESIDENT: What I'm suggesting to you is that I read that as saying this was a meeting attended only by me, Mr Husic, and Mr John and it was private in that sense, not private in the sense that each side was agreeing that they would never advert to what had occurred in the meeting, no matter what circumstances arise in the future.

PN81

MR TEHAN: I think it's instructive, your Honour, to note that there has been no reference in any union material to date to the fact that those meetings took place.

PN82

THE VICE PRESIDENT: Yes, and no doubt Mr Husic has made a material tactic on forensic judgment because there'll be consequences that flow from having gone down this path.

PN83

MR TEHAN: That should be expected, your Honour.

PN84

THE VICE PRESIDENT: And there'll be consequences, irrespective of whether or not the statement is received into evidence but that's a matter for the relationship between the parties. I'm struggling to see how there is a valid basis for excluding the statement on the basis that the communications are somehow or other protected by some principle of confidentiality that would - - -

PN85

MR TEHAN: Yes, your Honour, I suppose it's the industrial ..... politic, industrial relations ..... politic that confidential conversations take place - - -

PN86

THE VICE PRESIDENT: Mr John may feel as though he's being poked in the eye, so to speak, by the - - -

PN87

MR TEHAN: ..... would be another word that might come to mind too, your Honour.

PN88

THE VICE PRESIDENT: That's to the extent that he disagrees with what
Mr Husic records, and I've got to say again I don't understand this is reflecting adversely on Mr John at all, in fact, on the contrary. It seems to paint a very abnormal picture of Mr John.

PN89

MR TEHAN: Yes, your Honour, it's replete with Mr John is a good guy and everyone else is a bad guy. As Mandy Rice-Davies said about Mr Profumo, "He would say that, wouldn't he?" Your Honour, the position is this, he reports his spin on the events - - -

PN90

THE VICE PRESIDENT: You're hurting Mr Reitano.

PN91

MR TEHAN: He puts his spin on the events. That's as may be. We object to the material going in. If you admit it, we do not - - -

PN92

THE VICE PRESIDENT: I'm against you on that particular basis of objection, but if you have other bases of objection or objections in relation to specific sentences or paragraphs on some other basis, please press them.

PN93

MR TEHAN: No, your Honour, we don't press anything further.

PN94

THE VICE PRESIDENT: The witness statement of Ed Husic will be exhibit 3 with various paragraphs and sentences not pressed as indicated in the transcript.

EXHIBIT #3 WITNESS STATEMENT OF ED HUSIC

PN95

THE VICE PRESIDENT: Mr Reitano, just putting aside the issue of
cross-examination of Mr Husic for a moment, is there any further evidence you'd wish to call?

PN96

MR REITANO: No, your Honour.

PN97

MR TEHAN: No, your Honour, we don't seek to cross-examine Mr Husic.

PN98

THE VICE PRESIDENT: Do you want an opportunity to respond?

PN99

MR REITANO: I don't think that's right, your Honour. I think your Honour ..... may have forgotten that on Thursday that the position was that it was, as it
were - - -

PN100

THE VICE PRESIDENT: That's an issue as to whether or not he ought be granted an opportunity. I just want to ascertain whether or not Mr Tehan wants it because he had flagged the possibility a moment ago of needing to get a response from Mr John.

PN101

MR REITANO: How does that work in the sense that I went first, Mr Tehan put on his evidence, I then responded.

PN102

THE VICE PRESIDENT: No, you haven't gone first. Mr Tehan has gone first with his evidence.

PN103

MR REITANO: If it please, your Honour.

PN104

THE VICE PRESIDENT: No. I've got a very clear recollection of this, Mr Reitano. I invited Mr Tehan to go first on the evidence, having ruled on your objections.

PN105

MR REITANO: If it please, your Honour, I'm not going to argue with your Honour's recollection.

PN106

MR TEHAN: Your Honour, we don't seek to respond. We don't accept what he says but we're not preparing - for the reasons I've set out we're not proposing to respond to it.

PN107

THE VICE PRESIDENT: What you're implicitly saying is that a tactical judgment has been made by the union that may bring them some advantage today but it may cost in the long run. That means the evidence is finished.

PN108

MR REITANO: Yes, your Honour.

PN109

THE VICE PRESIDENT: Mr Tehan, can I start with you. I have great difficulty seeing how I could draw an inference from the documents that now constitute exhibit 2, that the union has not been genuinely trying to reach agreement and that position is only reinforced by Mr Husic's statement. Do you wish to try and persuade me to the contrary. If you do, you'll need to take me through it.

PN110

MR TEHAN: Yes. Your Honour, exhibit CMW13 sets out some wording for clauses concerning agency staff, which is clause number 2 - - -

PN111

THE VICE PRESIDENT: If I can just interrupt for a moment, Mr Tehan. The basis of your opposition in turn based on the requirement of genuinely trying to reach an agreement, is now limited to the prohibited content aspect of the argument.

PN112

MR TEHAN: Yes, your Honour.

PN113

THE VICE PRESIDENT: Why isn't the covering letter of CMW13, particularly when it's put together with paragraphs 25 and 26 of Mr Husic's statement, such that it's just not open to me to find that the union was at all material times prepared to abandon any clause that would ultimately be found to constitute prohibited content and whether it was acting on legal advice that what it was proposing would not be prohibited content?

PN114

MR TEHAN: Could I just take instructions for a moment, your Honour.

PN115

THE VICE PRESIDENT: Yes, please do.

PN116

MR TEHAN: Your Honour, my instructions are to leave the material, the present state of the submissions as the written submissions have been put to you as revised. Have we filed all of those submissions?

PN117

THE VICE PRESIDENT: Yes, you have.

PN118

MR TEHAN: We faxed them to your Honour and to - - -

PN119

THE VICE PRESIDENT: Not only is it revised, it's got markings up to show how they changed. Wonderful.

PN120

MR TEHAN: Does it not show the changes?

PN121

THE VICE PRESIDENT: It does. It shows them wonderfully, yes. It's better than revised because it shows - - -

PN122

MR TEHAN: We're supposed to do that, though, your Honour. It's a helpful thing for the parties anyway to know they won't have to look for the omitted words. Your Honour, the relevant parts of the revised submissions are set out in clause - the relevant part is clause 15 through 17 and that's as far as we put it, your Honour.

PN123

THE VICE PRESIDENT: I don't need to hear you on that, Mr Reitano. Mr Tehan, that just leaves us with the - - -

PN124

MR TEHAN: Machinery matters.

PN125

THE VICE PRESIDENT: Yes, the machinery matters.

PN126

MR REITANO: Could I, before my friend does that, as a matter of fairness tender to your Honour a copy of the proposed draft order that we're suggesting.

PN127

THE VICE PRESIDENT: Yes. Mr Tehan, it's going to feel like things are not going your way today, but I would need persuading that the form of the question is wrong. I understand what the authorities say and I don't think that this offends them. The nature of the process for the taking of protected industrial action, requiring as it does a secret ballot being ordered by the Commission and then the action being approved, doesn't allow for practical flexibility in the sense that the union who's in bargaining and contemplating the need to take protected action, will not know in advance how events are going to unfold in the future and there will need to be, typically, a degree of flexibility about how the union responds to developments in the future.

PN128

The union takes a risk when it puts a question - these are all provisional thinking and I'm giving you an opportunity to respond to it. The union takes a chance when it rolls a question up like this, rather than breaking it up, that the employees will recognise that they're investing a greater degree of trust and flexibility in the union than they may not otherwise be comfortable with and they get to make a choice. Are they going to leave the union to make all these decisions about which of those forms of industrial action will be utilised and how and when or are they not? The process is still democratic and if there is a majority of yes votes, it's difficult to see how it can't be said that the employees haven't approved all of the potential permutations that might arise and I find it very difficult to see how an employee reading the question would not appreciate precisely the nature of the industrial action that's proposed, four hour rolling stoppages, 24 hour rolling stoppages, 48 hour rolling stoppages and indefinite periodic bans on specified matters.

PN129

MR TEHAN: Yes, and the other argument, your Honour, is that the requirements of the Act, the object of the division is to establish a transparent process which allows employees directly concerned to choose by means of a fair and democratic secret ballot whether to authorise industrial action supporting or advancing claims.

PN130

Your Honour, it's possible that some forms of industrial action will be acceptable to employees and other forms won't. That's the point your Honour is making and the risk is, as you correctly say, that they'll vote no because they're unhappy with some particular element of the vote. We submit to you that the democratic thing would be to give people an opportunity to say yes or no to any particular form of industrial action.

PN131

THE VICE PRESIDENT: Mr Tehan, I'm not sure that it's my role to tell the union how it should frame its questions unless the question that's posed doesn't meet the statutory standard. The fact that it might be desirable to have a question framed in a different way is rather beside the point. If the question meets the statutory minimum standard, then it's a matter for the union as to whether it's put.

PN132

MR TEHAN: First of all, your Honour, it is the Commission's role to do it. If it doesn't meet the requirements of the Act you've got a power to make orders - - -

PN133

THE VICE PRESIDENT: I understand that and what I was doing I was putting to you the proposition and my provisional thinking for it, that this question does in fact meet the statutory minima. The fact that it might be desirable for it to be broken down, if it meets the statutory minima is rather beside the point, isn't it?

PN134

MR TEHAN: Your Honour, bearing in mind the decision of the Full Bench in United Firefighters, do you think that the employees do understand what work will be undertaken and what work would remain to be done? In our submission, it wouldn't be clear to an employee who was voting yes to this vote, what precise industrial action they were in fact approving. Some of them would say - - -

PN135

THE VICE PRESIDENT: No overtime; you don't come in on recalls or
call-backs; you don't perform higher duties; you don't check and collect unpaid postage and you don't attend management meetings. Pretty clear.

PN136

MR TEHAN: Yes. They're all separate bans and of course, it's a notorious fact that those people who don't work overtime are very happy to vote in favour of the ban on overtime. It might be that people who work regular overtime say, "That's not a ban we wish to impose." It's a question of the democratic nature of it. We think that there are 17 separate questions here, your Honour, and desirably you might have 10 questions but we acknowledge that four votes might be reasonable in all the circumstances in the exercise of the Commission's discretion. The 17, because you've got indefinite or periodic bans, and then you've got six different forms of industrial action which are specified in question 4. Someone might be prepared to vote in favour of periodic bans on overtime but they would not be in favour of an indefinite ban on overtime. It might even be, your Honour, in a democratic way, that people who are working overtime ought be the ones who get to vote on whether or not a ban on overtime is imposed.

PN137

I say this, your Honour, in the light of the fact that the union has in the past notified disputes about the lack of access - - -

PN138

THE VICE PRESIDENT: We're here concerned with the requirement of section 452(1)(a):

PN139

The application must include the following, the question or questions to be put to the relevant employees in the ballot, including the nature of the proposed industrial action.

PN140

MR TEHAN: Is the nature of the proposed industrial action adequately spelled out for the purposes of obtaining a democratic vote, a fair and democratic secret ballot by employees? On one view, the view that your Honour provisionally expressed, to use a Munro J phrase, he was one to express provisional views, a yes/no question to a multiplicity of forms of industrial action seeks that approval. We submit to you that it would be better, in all the circumstances, if there were to be more prescription of the individual forms of industrial action, better in terms of obtaining the vote.

PN141

Your Honour, it does not seek in any way to hinder the union taking forms of industrial action. It simply gives people an opportunity to vote on the questions. Mr Reitano's submissions make the point that we were seeking to interfere with the union's - we were seeking to define and condition the type of industrial action that the CEPU wished to take. That is not the case. We don't seek to change one word of the forms of industrial action that are proposed but we urge on the Commission that the Commission might say it would be better, in all the circumstances, if individual votes were taken on the various forms of industrial action. That is the point, your Honour.

PN142

THE VICE PRESIDENT: Then the final issue is varying the notice.

PN143

MR TEHAN: The second day's question - three days, your Honour, is sought, or is the default provision and we urge that you vary that as you are able to do to specify that the required written notice shall be seven working days' notice. Your Honour, we set out some reasons for that in paragraphs 33 to 35 of the amended submissions - 34 of the revised submissions.

PN144

In essence, your Honour, Australia Post is a complicated and large statutory authority carrying out important community service obligations required by legislation but also because of its own desire to satisfy the members of the public. Additional notice periods would give Australia Post the opportunities to put in place defensive mechanisms, a scheme which is envisaged by the Act, in a timely way.

PN145

The word "exceptional" is used in the Act, your Honour. We don't urge any reading of the word "exceptional" other than its usual reading, the reading which a Full Bench of the Commission has accepted which is that:

PN146

It's the ordinary meaning associated with the nature of something that is accepted, a person, thing or case to which the general rule is not applicable.

PN147

That was in Australian Colliery Staff Association v Gordonstone Coal Management (1999) 86 IR 229, your Honour. It's simply a recognition that Australia Post is not the same as every other organisation which comes to you or which comes before the Commission seeking an order. There have been secret ballot orders, as you know, I assume you know, your Honour, for one employee to vote or three employees to vote. This is not the case here, this is 34,700 employees at, on the union's material, 1700 sites throughout Australia. We submit that more than three working days in the context of this dispute will be appropriate.

PN148

THE VICE PRESIDENT: Mr Reitano, the only issue I need to hear you on is the application under 463(5) for the extension of the period - - -

PN149

MR REITANO: Your Honour, doesn't - - -

PN150

THE VICE PRESIDENT: - - - from three working days to - sorry?

PN151

MR REITANO: Your Honour doesn't need to hear me on the form of the question.

PN152

THE VICE PRESIDENT: No.

PN153

MR REITANO: Could I just alert your Honour to the fact that Hamburger DP has dealt with specifically the issue - - -

PN154

THE VICE PRESIDENT: If you've got a decision there to hand up - - -

PN155

MR REITANO: - - - very briefly in a case called Bopak. I hand that up to your Honour. Can I then deal with the extension issue. Firstly, the exercise of the power that my learned friend seeks to have your Honour exercise is conditioned by the need for there to be something exceptional. There's nothing exceptional here.

PN156

THE VICE PRESIDENT: They point to the exceptional circumstance being the statutory obligation to deliver a particular level of postal services, which is not something that is imposed upon your average employer.

PN157

MR REITANO: Any employer can come to this Commission and say that there's an exceptional circumstance involved in their own particular business whether it arises by contract or statute or from wherever. That argument is available to anyone. What really needs to be - - -

PN158

THE VICE PRESIDENT: What do you think is an example of an exceptional circumstance?

PN159

MR REITANO: It's not a bad way of approaching the question. An exceptional circumstance which might be something that alerts the Commission to the need to extend time might be where, say, versus an intensive care unit intend to partake in industrial action. That truly has exceptional consequences and exceptional qualities about it. It's not the normal thing that results from beating the daylights out of each other in industrial action that there's damage to Australia Post's business or that there's damage to its ability to meet its service standards or its business objectives. That's what this is all about.

PN160

One can't run away from the fact that what we are doing here and what we are embarking upon is a legislative blessing that's given to partaking in industrial action for the purpose of hurting each other. That's what it's about. That's the starting point and all Mr Tehan says is, "Well, look, this is going to hurt us." Of course, it's going to hurt you. That's what it's designed to do so that we can get an agreement. There's nothing exceptional about that. It applies as equally to Rio Tinto as it does to Australia Post, nothing exceptional at all about that.

PN161

THE VICE PRESIDENT: Aren't there just a vast number of circumstances where the timely delivery of post really matters to members of the public.

PN162

MR REITANO: There's nothing before your Honour. There's nothing before your Honour about - - -

PN163

THE VICE PRESIDENT: Might I take judicial notice of that?

PN164

MR REITANO: No.

PN165

THE VICE PRESIDENT: Or the equivalent of judicial notice?

PN166

MR REITANO: No.

PN167

THE VICE PRESIDENT: Mr Reitano, the Commission can inform itself in any matter it considers just. Judicial notice is a concept that applies in the courts, applied by analogy down here and indeed given a more practical broad application. Surely it would be just of me to take notice of the fact, be informed in a just fashion that the postal services are a monopoly operated by Australia Post, that there are a vast variety of circumstances where people depend upon the time of the delivery of post. I appreciate at the end of this, at the other end of this particular argument what Mr Tehan is asking for is an opportunity to minimise the harm your industrial action is going to do to Australia Post.

PN168

MR REITANO: Precisely right. It's a defensive - as I recall his words, they want an opportunity to put in place a defensive mechanism. The legislation gives them three days. You tell the Commission why three days isn't long enough because we don't think it is. It's just not appropriate. What is exceptional about it? Nothing. There's nothing exceptional about it. If your Honour says, "Well, can't I take into account the fact that there's urgent deliveries that have got to be taken by Post?" Maybe, but let's assume that we do. What is there that tells your Honour that that's not going to happen within three days, if there industrial action? There's just nothing that gives this the flavour of something that is out of the ordinary.

PN169

The fact that it's a monopoly matters neither here nor there. It will have to conduct a business, it will have to cope with the campaign of industrial action that's going to be brought ...... If it's so concerned about the potential damage there's ways out for it that don't involve industrial action but this is all about us being able to hurt them and hurt them a lot. You don't start from the proposition that because it's going to hurt a lot there will be something exceptional about it. You start from the proposition that that's what we're entitled to do. What is it that makes this out of the ordinary or special?

PN170

THE VICE PRESIDENT: What I've said to you is that whilst I accept that you've put it in fairly blunt language and I think there's been judicial sensitivity with bluntness of language, deprecation, for example, of even using the expression "industrial warfare".

PN171

MR REITANO: Clash of the Titans, I think, your Honour.

PN172

THE VICE PRESIDENT: Most latterly, but just accepting the language that you've put, isn't the exceptional circumstance that Mr Tehan is pointing to is not that you're going to hurt Post but that through hurting Post you are going to indirectly hurt citizens out there who depend upon the timely delivery of mail.

PN173

MR REITANO: Who will expect delivery? How does your Honour know? Who will expect delivery? There's no evidence before your Honour that any industrial action we will take might mean that someone doesn't get their mail either the next day or within three days. Your Honour just doesn't know and your Honour would just be speculating on that. Who knows? Maybe they'll be able to resist the industrial action in such a way that it will be completely effective. Your Honour just doesn't know. They haven't brought any evidence before your Honour that, for example, tells your Honour how, for example, they propose to deal with "urgent delivery of mail". That would be a critical thing for your Honour to make. Your Honour is invited to speculate about it.

PN174

Could I just go somewhere else for a moment to deal with your Honour's proposition about urgent deliveries and inconvenience. Of course, the Act itself recognises that if there is various times of extreme results, such as imminent risks to health and safety, there's a mechanism available to Australia Post to come here to have the bargaining period terminated and dealt with. In that context, what needs to be exceptional, needs to be pretty persuasive of a tangible, known, identifiable and truly exceptional formulation. To come here and say, "It's going to hurt our business, it's going to hurt our customers, we're not going to be able to deal with urgent deliveries," there's nothing out of the ordinary about that.

PN175

If your Honour was, for example, told, "Well, we deliver blood transfusions and we won't be able to deliver those the next day and therefore people will be put at risk," maybe. Maybe. But you have none of that. You don't know. You don't know what these urgent deliveries are. You don't know what urgent deliveries won't be able to be made. You don't know what the consequences of it are. My client is entitled to be heard about those matters and see the evidence and test it.
When someone comes here and says something is exceptional, they have to make that case.

PN176

THE VICE PRESIDENT: Okay. Just assume I'm persuaded by that aspect, what's your answer to the statutory and community service obligations on Australia Post being something that puts it apart from your average respondent? Most respondents don't have statutes that compel them to achieve particular levels of service and perform particular services.

PN177

MR REITANO: I couldn't see, when I looked at it, any consequence that results from a failure to abide the statutory guidelines or dictates. Putting that to one side, I suppose next time Telstra appear before your Honour they can make the same submission that they have a statutory regime as well and I suppose any other - in all likelihood, most other statutory corporations have statutory service delivery guidelines and so on. So all of those organisations apparently become exceptional. Anything on that type of reasoning means that a large number of statutory - or Qantas - a large number of regulated - - -

PN178

THE VICE PRESIDENT: I'm sure there's no statutory obligation on Qantas to supply air services.

PN179

MR REITANO: There may not be.

PN180

MR TEHAN: In my experience there isn't any.

PN181

MR REITANO: There may not be - no, they just don't obey them that's all. There may not be, that may be right but there are a large number of other statutory corporations that have similar requirements and it's difficult to see - - -

PN182

THE VICE PRESIDENT: Quarantine Inspection Service. Aren't you really making out - when you say a large number, the number is sufficiently small as against the total number of employers in Australia that make the exception.

PN183

MR REITANO: Anyone who has a statute becomes exceptional.

PN184

THE VICE PRESIDENT: No. Anyone who has got specific statutory - - -

PN185

MR REITANO: We are entitled to take industrial action.

PN186

THE VICE PRESIDENT: That's right.

PN187

MR REITANO: The legislature hasn't said Australia Post shall be excluded from that and what this is attempting to do - - -

PN188

THE VICE PRESIDENT: It's not attempting to - - -

PN189

MR REITANO: - - - is to water down and make ineffective the industrial action that everyone else is entitled to take on three days' notice. Simply because they have some legislative or statutory backing makes no difference whatsoever. They run a business as does Rio Tinto and if affects the Australian economy as much when industrial action is taken by the CFMEU against Rio Tinto as it does against Australia Post by the CEPU.

PN190

There is no relevant difference simply because they have a statutory backing. Every business has service delivery requirements. Some of them are laid down by statute, some of them are laid down by the owner of the business's own objectives. It doesn't make any difference, in my respectful submission, if you find it in a statute. There's nothing in Post's submissions either that would tell your Honour as to what the consequence is of breach of the statutory service delivery obligations. All they say is it is a matter of importance, a bald assertion.

PN191

THE VICE PRESIDENT: Those are your submissions on that point?

PN192

MR REITANO: Would your Honour just pardon me a moment?

PN193

THE VICE PRESIDENT: Yes.

PN194

MR REITANO: Yes, your Honour.

PN195

THE VICE PRESIDENT: Mr Tehan, what do you have to say in response to that?

PN196

MR TEHAN: The best you got was a furious floodgates argument, that if you do it for us - - -

PN197

THE VICE PRESIDENT: No, you got an argument saying that there's no evidence before me that the consequences, the differential consequences between three days' notice and seven days' notice will make any difference whatever in terms of public protection .

PN198

MR TEHAN: It wasn't put as elegantly as that but I accept that that is an argument. There was also an argument what the consequences of a breach to the statutory obligations are and there was the argument that there's no evidence before you that pension cheques, for example, will be delayed. This is classic matters of which you can take judicial notice, that cheques to people, mail to people will be delayed.

PN199

THE VICE PRESIDENT: Pension cheques? Aren't welfare payments exclusively done by electronic transfer now?

PN200

MR TEHAN: ..... exclusively done by electronic - they are, your Honour, ..... Your Honour, this is not an urgent aspect. If your Honour were prepared to not make your decision on this point and set it down for a hearing either by written submissions or by - - -

PN201

THE VICE PRESIDENT: Mr Reitano, he wants his order and he wants it as soon as possible and therefore I do need to determine it.

PN202

MR TEHAN: He'll get his order, your Honour. I don't mind giving him his order on this matter. It will be a different order in relation to the question of whether or not the industrial action needs to be prescribed. His order says nothing about the three days.

PN203

THE VICE PRESIDENT: Mr Reitano, do you agree that the power in 463(5) can only be exercised if it's exercised at the time the secret ballot order is made?

PN204

MR REITANO: That was my reading of it, your Honour, before today. I haven't looked at it now. I looked at it earlier this morning and my reading was it can only be a product of this process.

PN205

THE VICE PRESIDENT: I think there's an alternative basis, isn't there, to apply - application can be made elsewhere under other provisions of the Act for the equivalent order.

PN206

MR TEHAN: Your Honour, we would have thought that it would be possible to vary orders in accordance with 469 if you were minded to do that and this matter is not - we say that the order for the ballot - - -

PN207

THE VICE PRESIDENT: I think that's right, Mr Tehan. Mr Reitano, I think in a power sense, it's going to be possible to separate these two issues. You've got the whole timetable period of the ballot process to go before anything can occur and so that this doesn't necessarily need to be resolved today.

PN208

MR REITANO: We came here. We ran a case. We ran a case in reply. We ran a case back of that. We then made submissions and we made submissions on the whole of the case. There was no application to separate out any question or deal with anything separately.

PN209

THE VICE PRESIDENT: Although Mr Tehan hasn't made the application yet, and given the Commission's full discretion as to its procedure, I would be minded to let him back in, as it were, if it were necessary to do so because I confess that I feel a discomfort about just this one aspect of the matter.

PN210

MR REITANO. If he wants to, he can make an application to have the case reopened at some stage in the future and we would meet that application as well as any application for such an order.

PN211

THE VICE PRESIDENT: Mr Reitano, can you take some instructions as to whether or not you're prepared to give an undertaking that you will not take any procedural or jurisdictional point in the event that this aspect of the case is decided in your favour today but Mr Tehan decides in the next week or 10 days to make an application to vary the order on the basis of additional evidence?

PN212

MR REITANO: Yes, your Honour.

PN213

THE VICE PRESIDENT: Thank you. I'm just going to adjourn for 15 minutes to reflect on this for a moment.

<SHORT ADJOURNMENT [1.10PM]
<RESUMED [1.37PM]

PN214

THE VICE PRESIDENT: In a spirit of candour, let me confess that I find it very difficult to reach a view on this. What I would like to do is to take just a little more time to think about it. When I say a little more time, a little more time today so I thought it would be desirable if I heard from you, Mr Tehan, in relation to any other housekeeping matters or issues on the form of the order and an order will issue later on today and one way or the other it will include or not include an order under 463(5). Mr Tehan, do you have any difficulties with the form of the order, apart from that issue?

PN215

MR TEHAN: Yes, your Honour, we have some submissions to put to you. First, in relation to clause 1, I think the employees would have spotted this point. The name of the order I don't think needs to have that long piece of gobbledegook in the middle of it and could be restrained to the CEPU Australia Post Protected Action Ballot Compilation - - -

PN216

THE VICE PRESIDENT: I don't actually have titles in my usual orders.

PN217

MR TEHAN: No, well, that's a good approach, your Honour, but we don't need that sort of rubbish and if we do, then we'd seek leave to amend it in a variety of ways.

PN218

THE VICE PRESIDENT: Take out the words in the brackets.

PN219

MR TEHAN: Yes, your Honour. In clause 9.3, your Honour, we think that that's probably intended to be a reference to section 486, not 485 and we wonder if it's necessary at all.

PN220

THE VICE PRESIDENT: Right. It's not. I can tell you that the Australian Electoral Commissioner - I don't mean to be disparaging, but obsessive about confidentiality is perhaps an accurate description.

PN221

MR TEHAN: 9.4 is in a similar category and I think 9.5. Your Honour, it may be that these are things which you wish to put in, I don't know, but it doesn't seem to us to be necessary to have those sorts of things in there.

PN222

Your Honour, turning to perhaps more substantive matters, 10.3 the approach which Australia Post intends to adopt - - -

PN223

THE VICE PRESIDENT: Have you been in communication with the Electoral Commission at all?

PN224

MR TEHAN: No, your Honour.

PN225

MR REITANO: We have, your Honour.

PN226

THE VICE PRESIDENT: 10.3?

PN227

MR TEHAN: Your Honour, the process which Australia Post intends to adopt is to interrogate the payroll system for certain information and although the order would say these details where known must include, we would like to delete some of these references because some of the information may be known to one part of Australia Post but not to some other part.

PN228

THE VICE PRESIDENT: What do you want to take out?

PN229

MR TEHAN: We'd like to take out the reference to telephone numbers. We may have some telephone numbers, your Honour, and that's where the word "known" comes in, but the payroll system will have some numbers but a supervisor will have a whole range of other numbers. That's the issue for us.

PN230

THE VICE PRESIDENT: I'm sure that Mr Reitano is happy that the source of the information will be whatever global databases you've got. The payroll database is the obvious one. To the extent that you have other global databases, that then raises practicality issues. How long does it take you to merge the information? If it's possible just to use the payroll database then obviously it's a much more straightforward exercise but the reason for including information like phone numbers is because the Electoral Commission has to make decisions about whether or not they contact individuals to try and ascertain further whether or not they should or shouldn't be on the list.

PN231

MR TEHAN: Yes, I understand that.

PN232

THE VICE PRESIDENT: The task the Electoral Commission has got is not an insubstantial task.

PN233

MR TEHAN: Yes. So long as it's understood, your Honour, and it's on transcript that - whether payroll data has this material that will provide what is needed.

PN234

THE VICE PRESIDENT: Mr Reitano, are you happy that this data is confined to the payroll database data?

PN235

MR REITANO: Yes, your Honour.

PN236

THE VICE PRESIDENT: When you say payroll database, I take it that that's the employee information database which is used to generate payrolls. It's not some separate employee information database.

PN237

MR TEHAN: No. Email addresses are not kept on that database.

PN238

THE VICE PRESIDENT: Okay, well, they won't be there then.

PN239

MR REITANO: Your Honour seems to have made your mind up about that without hearing from us.

PN240

THE VICE PRESIDENT: No, I haven't made my mind up.

PN241

MR REITANO: My learned friend was very, very careful in what he said.

PN242

THE VICE PRESIDENT: I thought you just said a moment ago, Mr Reitano, that you were content that the production of the list would be confined to information on the payroll database.

PN243

MR REITANO: What my learned friend has just said alarms me in respect to the concession I made which I thought was fair. There appears to be some other database that might have this information because what was just said was, "The payroll database won't show it," but it appears that some other database might. This information is what we understand the AEC requires. It's not information that - well, the last one might be information that ..... AWA expiry dates because of the way in which the order works as to who is to vote. As we understand it, the material that we've suggested in all the other dot points is material that the AEC requires. It's not just us doing it to make life difficult for anyone, it's us doing it to make sure that there is integrity attached to this order.

PN244

THE VICE PRESIDENT: Mr Reitano, I'm familiar with the AEC's processes and they want as much information as they can get in order to be able to have as broad a range of opportunities to contact people in the event that they need to be contacted so that they ask for things knowing that sometimes they'll be able to get them and sometimes they won't. I'm sure that email addresses are capable of being provided. Whether they're capable of being provided in a timely fashion, in a way that marries up with confidence to the payroll information is another issue because in an organisation this large you're going to get doubling up of names, for example, and you'll get the problem of people having signed up under their maiden name and having since got married and their email address will be in the married name and the payroll information will be in the maiden name. There's a potentially horrendous exercise in terms of actually reconciling that which may blow out the timetable for the provision of the information to the AEC by a very considerable period.

PN245

MR REITANO: My concern is, shortly stated, it doesn't get any more complicated than this, that there are a number of databases that neither your Honour nor I appear to know about. One of them is the payroll database. It appears from the way in which my friend is being careful about what he's saying, that there are other databases that might well provide some of this information, perhaps not in respect of every employee, but it might provide it in respect of some of these employees.

PN246

THE VICE PRESIDENT: Let me stop you for a moment. Mr Tehan, do you mind if I ask Ms Walsh some questions directly?

PN247

MR TEHAN: No, no, that's perfectly all right, your Honour. Just before you do, your Honour, Australia Post wants to cooperate fully in this process.

PN248

THE VICE PRESIDENT: I understand that.

PN249

MR TEHAN: Any hint by conspiracy theorists who want to in some way interfere with it, is just completely nonsense and wrong but some of the stuff is not on the payroll data.

PN250

THE VICE PRESIDENT: Thank you. Ms Walsh, I take it you're familiar with the way in which data is kept on employees in Australia Post?

PN251

MS C WALSH: Yes.

PN252

THE VICE PRESIDENT: Is it going to be difficult or is it going to be practicable to match up email addresses with the other information?

PN253

MS WALSH: Yes, because it's not kept on our HR register which is the system which manages our payroll. In fact, because of the nature of our business most of our employees don't have an Australia Post generated email account. Many organisations out there do. You join up, you get an email account. We don't have that because most people are in facilities so it's not like everyone at Australia Post has an Australia Post email account and we don't communicate with our employees - - -

PN254

THE VICE PRESIDENT: The average postal delivery officer, for example, doesn't have one?

PN255

MS WALSH: Excuse me?

PN256

THE VICE PRESIDENT: The average postal delivery officer doesn't have one.

PN257

MS WALSH: That is correct, your Honour.

PN258

THE VICE PRESIDENT: There are no email addresses in the personnel system - sorry, in the payroll system?

PN259

MS WALSH: There may be some but for the purposes of the people who are the subject of this ballot, it would be a very small number.

PN260

THE VICE PRESIDENT: Okay, but to the extent that they're there, you're happy to extract them in a spreadsheet.

PN261

MS WALSH: If they are there we can provide them but I'm not sure that it will be an entirely useful exercise.

PN262

THE VICE PRESIDENT: Work address, home address, postal address are fine, I take it.

PN263

MS WALSH: Yes, they are all fine. The only other issue we were going to raise there was the payroll number, simply because we don't have what's called a payroll number. Everyone gets what's called an Australia Post number, the APN number which relates to the last dot point which they call Australian Public Service number. We call it an Australia Post number, an APN number. Simply for the purposes of correct terminology, that would be the appropriate number to be provided. The AWA expiry date is on a separate system altogether but we are happy to provide - - -

PN264

THE VICE PRESIDENT: That has to be provided.

PN265

MS WALSH: Exactly, so we don't have an issue with that.

PN266

THE VICE PRESIDENT: There's a separate database of AWA employees.

PN267

MS WALSH: Yes. AWA employees are on the HRS database but that database does not collect expiry dates of AWAs. It's on a separate system but we will provide that.

PN268

THE VICE PRESIDENT: Is the number of AWA employees a piece of sensitive information? Do you know roughly how many there are?

PN269

MS WALSH: I think it's around 250.

PN270

THE VICE PRESIDENT: That's a manageable manual task to transfer those dates across.

PN271

MS WALSH: Having said that, you know, that's where it goes to the issues around how long it will take to do that matching up, that the one day may not be enough. Two days could be enough, two to three days.

PN272

THE VICE PRESIDENT: Fine.

PN273

MR TEHAN: Your Honour, most of the people on AWAs, they're not eligible to vote in this ballot.

PN274

THE VICE PRESIDENT: It's clear that the AWA expiry date, even if it's done manually, is not a significant problem.

PN275

MR TEHAN: No.

PN276

THE VICE PRESIDENT: Mr Reitano, there are some email addresses in the payroll system. Australia Post is happy to provide those. The AWA expire date, you've heard how that's going to be dealt with, it's going to be essentially a manual matching exercise for a number less than 250 and there is no payroll number, there is an Australia Post number.

PN277

MR REITANO: I'm happy for the description that Ms Walsh gave to that. What was it, an Australia Post number?

PN278

THE VICE PRESIDENT: Yes.

PN279

MR TEHAN: I've got a couple more machinery matters, your Honour, if I may.

PN280

THE VICE PRESIDENT: Yes.

PN281

MR TEHAN: The sentence at the end of 10.3 requires that:

PN282

A list be provided as soon as practicable but no later than the close of business on the day following the making of this order.

PN283

THE VICE PRESIDENT: You want two days for that.

PN284

MR TEHAN: I think so, your Honour. It would be helpful to do it. Just gives us a bit more time.

PN285

THE VICE PRESIDENT: If the order is made today, 3 September, so that's the close of business on 5 September.

PN286

MR TEHAN: Thank you, your Honour. 10.5 is - - -

PN287

THE VICE PRESIDENT: In fact it can be midnight on the 5th because nothing is going to happen critically.

PN288

MR TEHAN: 10.5 is slightly mystifying to us. We don't know what is
intended - - -

PN289

MR REITANO: Let me demystify it. A bulletin was put out by Australia Post to its workforce telling its workforce that the CPSU was participating in this ballot and I can produce a copy if I need to.

PN290

MR TEHAN: Your Honour, what happened, on the day that the ballot came in we made - - -

PN291

THE VICE PRESIDENT: Mr Tehan, do you give an assurance on behalf of Australia Post that such representation won't be made.

PN292

MR TEHAN: No, it won't be made.

PN293

THE VICE PRESIDENT: In that case there's no need for that.

PN294

MR TEHAN: Nor do we want 10.6 to remain in, your Honour. What happened was that there had been a joint bargaining unit between the CEPU and the CPSU. We made an incorrect assumption the CPSU would follow the CEPU and put in an application for a secret ballot order. In anticipation, it seems as though a ballot has gone which said that the two unions have applied to the Commission for a secret ballot. There's no other reference to the CPSU. It was an error, regretted, but there's nothing sinister about it. We don't think we should be forced to put out a bulletin in which we say that it was misleading. It was just a mistake that was made and you know, we regret that it was made. It doesn't require misleading. There's nothing in it.

PN295

THE VICE PRESIDENT: Mr Reitano.

PN296

MR REITANO: People who are going to vote in this ballot should have correct information on which they are participating in the ballot, on which they are making decisions about the ballot, that is, whether they're going to try and persuade fellow employees to their particular point of view and the like. Australia Post chose to put out what was a wrong circular. It told people that people other than those who were going to be voting in this ballot would be voting. People should be assured that that is wrong and one shouldn't have to rely on say-so or rumour or hearsay about that. Australia Post put out the wrong information, it should correct it.

PN297

THE VICE PRESIDENT: Is there any reason why - I'm just wondering whether a practical solution is to include a note in the order which is going to have to be posted to employees anyway, which makes it plain - - - .

PN298

MR REITANO: Will it be as big as the circular they put out that said CPSU members were voting, the note in the order?

PN299

MR TEHAN: It was in 12 point type, if you want to do it in 12 point type, I suppose.

PN300

THE VICE PRESIDENT: Do you have a copy of the document, Mr Reitano?

PN301

MR REITANO: I do, your Honour - I think so, it's been a few days since I've seen it.

PN302

THE VICE PRESIDENT: Mr Tehan, is there a proposal to issue a further managers' information bulletin in relation to this process?

PN303

MR TEHAN: We don't have anything planned at the present time, your Honour.
When the order comes out from the Commission we will be obliged to put that up on the board, I'm assuming. That will need to be accompanied by - - -

PN304

THE VICE PRESIDENT: Do you have any objection to a note that appears on the order that draws attention to the fact that, notwithstanding a managers' information bulletin suggesting to the contrary, only the CEPU have applied?

PN305

MR TEHAN: Your Honour, a mistake was made. We could put out - - -

PN306

THE VICE PRESIDENT: Yes. Mr Reitano has raised one, though, I think a point of substance there, that employees who are entitled to participate in the vote have got an interest and a right to discuss it with other employees and to seek to persuade employees to vote one way or the other, doing that in an entirely proper fashion, and that this bulletin may give rise to the prospect that people who are CPSU members are being included in that process when they wouldn't otherwise be included in that process or that people who are CPSU members might feel that they ought be agitating the CEPU members when in fact there's no need for them to do so.

PN307

MR TEHAN: It's a pretty dinky little point, your Honour, and where a mistake is made, we would seek to have some concession made it was a mistake. Everyone now knows it's only CEPU that's doing it and it doesn't seem to us to be all that helpful to good industrial relations to press the point. If your Honour feels that it is necessary to clarify it in the order, if you think it's necessary to clarify it in the order that it's only the CEPU which is getting a vote, well, your Honour may feel that. We don't think that's really necessary as part of the order that the Commission needs to make. Sure, the union wants it because they're in the business of dagging Australia Post, criticising Australia Post trying to make dinky little points. We don't think the Commission needs to get into that sort of exercise as well. If the Commission pleases.

PN308

THE VICE PRESIDENT: What's the next issue?

PN309

MR TEHAN: 12.2 requires a copy of the order to be posted on all staff or employee noticeboards. Your Honour, last time when we were given the order by the Commission we received a letter from the union at approximately 2.28 on the day after the order was made that an organiser of the union had said that the documents which were required to be on the noticeboards were not so posted in facilities in the town of Singleton and Maitland in New South Wales. Australia Post had done what it could in the circumstances to get the order up on the boards and has done a number of things since, including directing managers to ensure that people don't take notices off noticeboards in case that's thought to be the point.

PN310

The point we want to make then about clause 12.2 is to give us some reasonable timeframe, your Honour, to put it up on the noticeboard so that we can get our managers lined up to ensure that it remains up and that we minimise any difficulty that might occur. Perhaps within three days Australia Post must cause a copy of the order to be posted or within 48 hours or something like that, your Honour, but we don't want to get letters from the solicitors for the union that because some organiser in some far flung part of the empire hasn't spotted the noticeboard, that we're to be criticised for it.

PN311

THE VICE PRESIDENT: It's a huge organisation with a vast number of workplaces. If there wasn't some pick-ups in a couple of places, it wouldn't be the real world.

PN312

MR TEHAN: We agree.

PN313

THE VICE PRESIDENT: I am satisfied that Australia Post will conscientiously do what it can is going to comply with orders and that's not a suggestion, it's just - I disregard it. The only problem with specifying - my preference, and in fact I've actually got a form of order which I ordinarily issue, which is a little different from this one. The usual form is as soon as practicable and practicable takes account of the size of the organisation and it's for you to judge what's practicable. If you say 48 hours is the timeframe - - -

PN314

MR TEHAN: We'll be happy with as soon as practicable, your Honour. That's perfectly okay by us.

PN315

THE VICE PRESIDENT: It's just it needs to be up materially before the letters start arriving and that's the scheme the Act puts in place so this is not something the Commission has dreamed up. The legislation requires this notification to occur.

PN316

MR TEHAN: Your Honour, we'll get our systems in place that enable this order to be - - -

PN317

THE VICE PRESIDENT: Anyway, it's 48 hours or as soon as practicable, either of those two forms of language you're happy with.

PN318

MR TEHAN: Yes, your Honour.

PN319

THE VICE PRESIDENT: Mr Reitano, do you have any difficulty with either of those?

PN320

MR REITANO: Yes, but I don't wish to say anything further.

PN321

THE VICE PRESIDENT: What do you think it ought to be?

PN322

MR REITANO: I think what's in the order is appropriate. It takes Australia Post - it's very effective in putting out bulletins on noticeboards all over Australia, but apparently an order of the Commission can't be dealt with as efficiently.

PN323

THE VICE PRESIDENT: Anything else, Mr Tehan, in terms of the order? No, nothing else?

PN324

MR TEHAN: No, your Honour.

PN325

MR REITANO: Can I deal with paragraphs 9.3, 9.4 and 9.5. I wasn't heard on those either.

PN326

THE VICE PRESIDENT: You may in a moment, Mr Reitano. Just in relation to the timetable, the timetable in the draft order is going to need to be adjusted, I take it, having regard to the fact that it's today rather than - have you adjusted it already? Yes, you have.

PN327

MR REITANO: Yes.

PN328

THE VICE PRESIDENT: No, you haven't actually put it in yet, the timetable of the ballot in item 7.

PN329

MR TEHAN: I made no comment on that, your Honour.

PN330

THE VICE PRESIDENT: No, but day zero - I have the draft that's been sent by the Electoral Commission. Have you got that?

PN331

MR REITANO: I have but I don't have it here.

PN332

THE VICE PRESIDENT: Were you happy with that draft?

PN333

MR REITANO: Yes.

PN334

THE VICE PRESIDENT: Were you happy with that timetable?

PN335

MR REITANO: Yes.

PN336

THE VICE PRESIDENT: You don't want it extended at any point to allow additional time - let me start that again. I'm not sure what the precise figures are, but the vast, the overwhelming majority of secret ballots have been approved. The problem in terms of those votes that have proceeded, there's been a majority of votes cast for industrial action. The votes where industrial action has been voted down I can count on the fingers of one hand with fingers to spare. The practical problem is getting 50 per cent return because of those practical difficulties associated with people not processing their mail as soon as it's received. One of the issues is whether or not you want to allow - the Electoral Commission specifies the minimum timeframe for the turnaround of the ballot and if you want to extend any part of the timetable, given that this is ultimately for your benefit, then you can do so. Specifically, you can allow more time for the individuals to receive and open and deal with their mail. Do you want more time, rather than take this minimum timeframe?

PN337

MR REITANO: I wonder, your Honour, if we could have a copy of the AEC document?

PN338

THE VICE PRESIDENT: Yes.

PN339

MR REITANO: Could we suggest, your Honour, that the ballot open on 11 September as provided and close on 25 September, we add another week on what the Electoral Commission is suggesting.

PN340

THE VICE PRESIDENT: The roll of voters will close at the prescribed period, it's two clear days before.

PN341

MR REITANO: Yes.

PN342

THE VICE PRESIDENT: What date is the close of the roll?

PN343

MR REITANO: The rolls will close on the 6th.

PN344

THE VICE PRESIDENT: Because there has got to be two working days between the close of the roll and the opening of the ballot.

PN345

MR REITANO: So then we'll have to move the opening of the ballot to Tuesday - it is on Tuesday as it is, I'm sorry.

PN346

THE VICE PRESIDENT: That's right, no, the 6th works fine. You wanted to be heard on 9.3, 9.4 and 9.5.

PN347

MR REITANO: We're concerned about this, your Honour, it's one thing to say - and we accept that it was a general proposition that the AEC - - -

PN348

THE VICE PRESIDENT: I'm just saying you don't need to worry about the AEC. You can have them if you want but it's - - -

PN349

MR REITANO: We want them for this reason and we want your Honour to understand what our concern is, that people who see this order and who are likely to vote need to know that there are obligations of privacy and confidentiality imposed on all parties, that is, they need to know that it is truly a secret ballot. That's why we insist on those provisions. Some people may not vote if they think that the information is going to be in some way disclosed. We're not suggesting for one moment that the AEC will deliberately - - -

PN350

THE VICE PRESIDENT: That's fine. Okay, nothing further? Nothing further from you, Mr Tehan?

PN351

MR TEHAN: No, your Honour.

PN352

THE VICE PRESIDENT: Nothing further from you, Mr Reitano?

PN353

MR REITANO: No.

PN354

MR TEHAN: Your Honour, do you mind if I - I wonder if Mr Reitano - what you've done is squeeze the Electoral Office there for two days in that timetable that Mr Reitano - - -

PN355

THE VICE PRESIDENT: Actually I haven't got the - can I get the draft timetable back?

PN356

MR TEHAN: Day 5 on Mr Reitano's suggestion was Tuesday - sorry, on the original thing was Tuesday, the 4th and Mr Reitano wants to make that Thursday, the 6th, but to give the Electoral Office those extra days for doing its work, wouldn't you extend by two days the - what, it was day 12, so it becomes Thursday, 13 September, even if you push out the final date for the counting of the votes.

PN357

THE VICE PRESIDENT: Sorry, I'm confused. Day 5 on the AEC's program was Tuesday, 4 September. That was predicated upon day zero being Thursday, 30 August.

PN358

MR TEHAN: Yes, it was, your Honour.

PN359

THE VICE PRESIDENT: Thursday, 30 August becomes 3 September which
is - - -

PN360

MR TEHAN: Monday, today.

PN361

THE VICE PRESIDENT: It's the fourth day. It's plus four days that's got to be added to all of this..

PN362

MR TEHAN: Two working days really, I think, your Honour. Two days in the sense of the 31st and the 3rd and that's what Mr Reitano has just said. He says that what was day 5 will become Thursday, 6 September.

PN363

THE VICE PRESIDENT: You're saying it should be?

PN364

MR TEHAN: No, I agree with that but then he said that the ballot should continue to open on - day 12 should continue to be Tuesday, the 11th, whereas I think it should be Thursday, the 13th, that everything should be pushed out
two days but if he wants to make it that it closes on the 25th, well, that's all right. No one has got any problem with that, I wouldn't have thought.

PN365

THE VICE PRESIDENT: Mr Reitano, I didn't have this timetable in front of me when you specified those dates, but you've specified the same dates that the Electoral Commission has specified in its timetable which is predicated on the 30 August start. I can tell you the Electoral Commission will insist upon, if we're starting on 3 September, with this timetable everything has got to be pushed back by the four days.

PN366

MR TEHAN: Two days. You're saying four days, two of them are the weekend.

PN367

THE VICE PRESIDENT: Two of them are the weekend, yes, okay, two days.

PN368

MR TEHAN: Mr Reitano suggested that the ballot closes on the 25th. No one has got a problem with that because nothing turns on that. Instead of Friday, the 21st, he's saying Tuesday, the 25th for the final - - -

PN369

THE VICE PRESIDENT: Are you looking at a different document to me? I don't have a - I see, it's on the next day. Thursday, the 20th is the declaration of the result, close of the ballot.

PN370

MR TEHAN: Mr Reitano actually said the 25th, I think.

PN371

THE VICE PRESIDENT: He did, he said 25 September. Day 20, Wednesday - they haven't actually got a close of ballot here. I think day 20 on their timetable is what we could call a close of the ballot, when the AEC counts the ballots and advises the parties of the result.

PN372

MR REITANO: Yes, your Honour.

PN373

THE VICE PRESIDENT: That should be the - - -

PN374

MR TEHAN: On the amended timetable Friday, the 21st. I think Mr Reitano said that he wanted it to be the 25th. Well, that's his business. If he wants to have more time he can have more time, I suppose.

PN375

THE VICE PRESIDENT: 25 September for day 20?

PN376

MR REITANO: Yes.

PN377

THE VICE PRESIDENT: Right, okay. Mr Tehan, having heard what
Mr Reitano has put about 9.3, 9.4 and 9.5, I take it you've got no objection to them staying there? They don't add anything. I'm sorry, there's no prejudice to you in them.

PN378

MR TEHAN: There's no prejudice to us. It's just additional ..... which doesn't need to be there.

PN379

THE VICE PRESIDENT: My associate will send you a copy of the order.

PN380

MR REITANO: Could we just inquire of your Honour what the date is for 7.2, that is the date that the ballot must open, on what your Honour proposes.

PN381

THE VICE PRESIDENT: 13 September.

PN382

MR REITANO: Thank you, your Honour.

PN383

THE VICE PRESIDENT: I'll be checking with the Electoral Commission before finalising the order to make sure that they're happy with the revised timetable and I'll get in touch with both sides if they've got any difficulty with it. Actually, is that necessary? Are you happy that if the Electoral Commission needs to adjust this by a day or two or whatever, you can live with that?

PN384

MR REITANO: A day or two is not a problem.

PN385

MR TEHAN: Yes, your Honour.

PN386

THE VICE PRESIDENT: The Commission is adjourned.

<SHORT ADJOURNMENT [2.12PM]
<RESUMED [4.20PM]

PN387

MR REITANO: - - - services that will, in effect, deliver the ballot. Let me say this, it was put to your Honour during the telephone conference that we had that Australia Post doesn't consult with anyone about sending its mail. The first response to that, of course, is that Australia Post doesn't usually conduct ballots in respect of things that materially affect it, but the second and more important issue is that this is not requiring Australia Post to consult with anyone. This is requiring the Australian Electoral Commission to do things and it is like your Honour taking me to the post office when your Honour is going to post a letter and having me standing next to your Honour while your Honour does that. It, in the same way, obliges the Electoral Commission to do exactly the same thing, that is to have a CEPU person there when it is dealing with matters to do with the mail-out of the ballot.

PN388

THE VICE PRESIDENT: Yes. This doesn't cast an obligation on Post, it casts an obligations on the Electoral Commission.

PN389

MR REITANO: Precisely, that's my point. The third matter, and the important aspect of it is this, that it's possible that your Honour or the Commission could nominate Santa Claus rather then the CEPU to be present at such discussions and participate in them. One rather suspects that Santa Claus might not be able to constructively understand what is being said in the context of an organisation like Australia Post. One rather apprehends that Santa Claus wouldn't be able to make any constructive contribution to the discussion. Compare Mr Metcher of the CEPU who regularly deals with Australia Post and has an intimate knowledge of the way in which it operates, or compare some other nominated representative of the CEPU who would be able to not only understand what is being proposed and what is being sought, but also to be able to understand the best means by which that is to move forward.

PN390

Finally, can I say this. The clause only would become operative and have any effect and be important if the Electoral Commission needed to have discussions with Australia Post. It may be that the Electoral Commission doesn't need to do that. I don't know, but if it does it is at that point that the clause becomes operative. They are unique, they are different and don't happen every day in ballot orders in this Commission but that is because we're confronted with a rather unusual situation. It would be very inappropriate if at the end of the day someone were able to say,. "Well, the Electoral Commission discussed this with Australia Post and Australia Post did things that influenced the outcome of the ballot," without anyone having any opportunity to know whether that is right or wrong.

PN391

THE VICE PRESIDENT: Mr Tehan.

PN392

MR TEHAN: In the last sentence of that submission, Mr Reitano came out of the long grass, your Honour, and said that - the hint that Australia Post not do something or otherwise influence the outcome of the ballot.

PN393

THE VICE PRESIDENT: I accept that that's - I hypothesized that but earlier on he was at pains to point out that it was only a question of processes being proper substantively, but the appearance of that being maintained as well.

PN394

MR REITANO: My submission was the suggestion at the end, your Honour, not the fact, the suggestion that that might be so.

PN395

THE VICE PRESIDENT: Anyway, it doesn't matter.

PN396

MR TEHAN: No, it's a suggestion. In other words, your Honour, that suggestion is that Australia Post do something in breach of section 821 of the Act. That is a very serious, unfounded suggestion to even contemplate because the Act has a number of serious offences which are relevant. Quite apart from those, your Honour - - -

PN397

THE VICE PRESIDENT: As a provisional view I don't see this is in any way reflecting adversely on Post, rather it is about maintaining the highest appearances of integrity for the process.

PN398

MR TEHAN: Your Honour, no union has ever said before that Australia Post does anything other than act in strict accordance with its obligations.

PN399

THE VICE PRESIDENT: Certainly my own personal view is that that's undoubtedly the case.

PN400

MR TEHAN: It is undoubtedly the case, your Honour, other than the New South Wales branch - to the best of our recollection, the New South Wales branch of the CEPU which has on occasions made an allegation that there's been some sort of interference in internal union elections. When that has been raised by the New South Wales branch, on each occasion Australia Post has said, "That it is a very serious matter which we will investigate," and then they ask, "What information do you have which enables our security people to start to investigate that sort of allegation" because it is a very serious allegation. It's a breach of the Crimes Act as well, your Honour, section 85U of the Crimes Act and in respect of employees, if an employee would have tampered with the mail, they would be sacked. Australia Post regards this as a very serious matter.

PN401

The simple raising of it in some way that suggests that Australia Post needs to be told or encouraged or that Mr Metcher might be some sort of independent person to give guidance in a ballot concerning his own union, is laughable. If it were to be anybody, and we strongly resist it, your Honour, because it creates a wrong impression, despite what your Honour might say that you have the highest opinion and that you have no doubt, it does leave a smell and it is an unfounded smell. If it were to be anybody it should be the Deputy Industrial Registrar or a member of the Commission. The Deputy Industrial Registrar should be still conducting secret ballots, they've done them before and know what's required. Perhaps they're attendance ballots rather than postal ballots but they'd be able to weave their way through the thickets, if it were thought to be some sort of issue, in a satisfactory way.

PN402

THE VICE PRESIDENT: Mr Reitano's point is, isn't it, that at a hypothesized discussion - in the meantime I should say I've spoken with Mr Nellor of the Electoral Commission who's got the carriage of the vote, to check on the timetable and he has said that an extra day was required which I've, I think, incorporated into this particular timetable. I raised with him whether or not there would be any such discussions and he said that - to ascertain whether or not there was anything we were actually having an argument about here, he wasn't expecting that there would be any discussions, he said, but it was not uncommon for the Electoral Commission in union ballots to speak to the security area to simply let them know that there was a sensitive bundle of mail coming and that care needed to be taken with it and that he didn't anticipate that there would be anything beyond that occurring.

PN403

MR TEHAN: That's exactly what Australia Post would do but we do not need and do not want anyone coming in interfering with the - or even being involved in the way Australia Post conducts its own business and it is remarkable that there is no evidence supporting this proposal. It is a matter which comes out of the fevered brains, if one can call it that, of some officials of the New South Wales branch of the union.

PN404

Your Honour, it's important to understand too, that Australia Post is conducting the federal elections in respect of postal votes and the like. There was no suggestion from one party or another that there's any interference by Australia Post in - - -

PN405

THE VICE PRESIDENT: No,. but you're a third party in that context. Mr Reitano's point here is that Australia Post is the employer and it means that there will be discussions occurring between the ballot agent - hypothesized discussions between the ballot agent and the employer about how the mail-out is going to occur which the employer is going to conduct.

PN406

MR TEHAN: Yes, and that's run by the mail networks division or the security people or something like that. It's nothing to do with the HR branch of Australia Post which opposes industrial action being taken. As you heard me say before, it hasn't spoken to the Electoral Office, it just runs this as a matter of course. As to the idea that Australia Post is some sort of - involved in the thing, so too is the CEPU.

PN407

THE VICE PRESIDENT: Their members will be the people who are actually processing it.

PN408

MR TEHAN: If it were thought, for example, that there was some interference, it could be interference both ways. So far as Australia Post is concerned it conducts itself in a strictly kosher fashion and there is no evidence of anything but that. Any imposition of a requirement on the Electoral Office that it would involve someone like Mr Metcher in discussions about how the material ought to be put out, is just - as soon as you say it, it sounds wrong.

PN409

There is no reason whatsoever for this clause to go in there. In fact there's every reason why it ought not go in there. If there were anyone who was required to supervise the ballot, and there is no evidence before you that there is, it should be someone independent of the matter, namely a Deputy Industrial Registrar.

PN410

THE VICE PRESIDENT: Anything further you want to say, Mr Reitano?

PN411

MR REITANO: I'm not asking for anyone to supervise the ballot, your Honour. I'm asking that there to be someone from the CEPU involved in any discussions if there are any about the mail-out of the ballot.

PN412

THE VICE PRESIDENT: I propose to include the clause but not in the way that it's expressed, that the right will be limited to being present at discussions but not participating in discussions. Let me say for the record that there should be no adverse inference drawn against Australia Post as a result of the inclusion of this particular item in the order. There is not the slightest suggestion that Australia Post acts in any way other than professionally and with integrity in the way that it deals with the mail and no such adverse inference should be drawn against Australia Post from the inclusion of this particular item. I include it purely on the basis that it allows a greater perception of integrity to be conveyed to employees who are involved in the process.

PN413

MR TEHAN: Your Honour, could I just raise one other matter?

PN414

THE VICE PRESIDENT: Yes.

PN415

MR TEHAN: In 14.6, the authorised ballot agent should be capitalised and we would prefer that there be a national office representative of the union if you are so minded as to insert that clause, that it be a national office representative of the union. It is not a New South Wales matter.

PN416

THE VICE PRESIDENT: You could hardly have any objection to that,
Mr Reitano.

PN417

MR REITANO: Sorry, your Honour, I was getting instructions on another matter.

PN418

THE VICE PRESIDENT: A national office representative of the union will be invited to be present but not participate in such discussions.

PN419

MR REITANO: We just don't know who will be available at the time. That's the problem.

PN420

THE VICE PRESIDENT: There will be somebody in the national office who can do it, I'm sure.

PN421

MR REITANO: It just doesn't follow, your Honour.

PN422

MR TEHAN: It's got to be Metcher or no one else, it's ridiculous.

PN423

THE VICE PRESIDENT: That's what you've got, Mr Reitano. Any other matters? Was there something else, Mr Reitano, that you were wanting to raise? No? Mr Tehan?

PN424

MR TEHAN: No, your Honour.

PN425

THE VICE PRESIDENT: Sorry to drag you away from your lunch prematurely and early. These orders will issue forthwith and they'll be arriving by email. I will get some written reasons out in due course in relation to the argument about the reception of evidence. Do you require further reasons in relation to 14.6? No? What was the other issue?

PN426

MR TEHAN: Prohibited content.

PN427

THE VICE PRESIDENT: Yes, prohibited content.

PN428

MR TEHAN: No further reasons, no.

PN429

THE VICE PRESIDENT: Yes, that was the genuine bargaining, prohibited content point. Okay, fine. The Commission is adjourned.

<ADJOURNED INDEFINITELY [4.33PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #2 ANNEXURES TO MS WALSH'S STATEMENT WITH THE EXCEPTION OF CMW3 PN5
EXHIBIT #3 WITNESS STATEMENT OF ED HUSIC PN94