C2007/3461, Transcript of Proceedings [2007] AIRCTrans 471 (17 September 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17362-1

DEPUTY PRESIDENT HAMILTON

C2007/3461 BP2007/3224

s.496(1) - Appl’n for order against industrial action (federal system).
The Chief Commissioner of Police
and
Police Federation of Australia
(C2007/3461)

s.430(9)(a) - Application for order to suspend or terminate a bp (other circs)
The Chief Commissioner of Police
and
Police Federation of Australia
(BP2007/3224)

MELBOURNE

4.57PM, MONDAY, 03 SEPTEMBER 2007

PN1

DR I ROSS: I appear on behalf of the applicant in both matters, with me MS J TOOTELL.

PN2

MS A GOOLEY: I seek leave to appear on behalf of the Police Federation of Victoria, with me MR P MULLETT and MR C KENNEDY.

PN3

THE DEPUTY PRESIDENT: Thank you. Any opposition to leave?

PN4

DR ROSS: No, your Honour.

PN5

THE DEPUTY PRESIDENT: Leave is granted.

PN6

THE ASSOCIATE: If the cameras would like to leave the hearing room now, please.

PN7

THE DEPUTY PRESIDENT: Right. I understand, Dr Ross?

PN8

DR ROSS: I'm sorry, your Honour?

PN9

THE DEPUTY PRESIDENT: I understand there's an agreement that we adjourn into conference?

PN10

DR ROSS: Certainly. There's no adjournment from our part.

PN11

THE DEPUTY PRESIDENT: We'll adjourn into conference now.

<OFF THE RECORD

PN12

THE DEPUTY PRESIDENT: Who wants to start? Dr Ross or Ms Gooley?

PN13

MS GOOLEY: Thank you. We wish to make an application to adjourn this hearing until 2 o'clock tomorrow afternoon.

PN14

THE DEPUTY PRESIDENT: All right. On what basis?

PN15

MS GOOLEY: On the basis, your Honour, that my client's only received this application late this afternoon and only had an opportunity to engage solicitors to represent them late this afternoon. We have only had an opportunity in the last few minutes to seek instructions from our clients in relation to this application. There are a number of matters that we need to get instructions from them on and prepare witness evidence, in particularly the nature of the bans that have actually been put in place and to the extent to which they are covered by the notice that was given to the Police, certainly more than seven days ago.

PN16

Further, the application raises issues of in concert activities and therefore I need to take detailed instructions as to who has been engaging in or organising industrial action in this matter. The Act requires, as you'd be familiar, under section 496 that you hear and determine the matter within 48 hours of the application being made. That's section 496(5). Now we say that that application can be heard and determined within the provisions of the Act, but should be heard and determined consistent with the Act, but consistent with the principles of natural justice which entitle parties to have an opportunity to put a case to the Commission. 496 order is not something that is not without serious consequences for organisations and this is an application directed both to the Police Federation and to its members.

PN17

We need to have a fair opportunity to put our case before you. It's simply not been possible in the short period of time.

PN18

THE DEPUTY PRESIDENT: How much notice have you had?

PN19

MS GOOLEY: I got notified at 3.30 this afternoon. The matters were then faxed through to me. I was informed that the matter would be listed at 4.30, which I'm instructed was what my clients were told, so I had to make my way to the Commission and I met my client for the first time in relation to this matter at 4.30 this afternoon. So I have not had an opportunity to get full and clear instructions from them in relation to the matters that are alleged in the outline, let along whatever witness evidence is going to be bought by Dr Ross, and one appreciates that these matters need to be heard and determined, but the Act is clear.

PN20

The obligation is to hear and determine them within 48 hours. It doesn't say they have to be heard and determined within an hour of the application being made and certainly doesn't suggest that principles of natural justice don't apply to hearings under 496 and we say that this matter should be adjourned until my clients have had an opportunity to instruct us properly as well as an opportunity to put before a general meeting of the members of the Police Federation of Australia tomorrow morning the fact that this application has been made and the consequences of such an application being heard and determined.

PN21

THE DEPUTY PRESIDENT: And the various arguments, the notice argument and so on.

PN22

MS GOOLEY: Yes.

PN23

THE DEPUTY PRESIDENT: Would you be putting a recommendation to that meeting?

PN24

MS GOOLEY: I'm instructed that Mr Mullett has said that they will consider making such a recommendation to the meeting.

PN25

THE DEPUTY PRESIDENT: Right. That the industrial action not occur until 8 September.

PN26

MS GOOLEY: Until 8 September, yes, your Honour.

PN27

THE DEPUTY PRESIDENT: Right, I see. Dr Ross?

PN28

DR ROSS: Yes, your Honour. Can I deal with the 48 hours point first? I think it needs to be understood that the Act doesn't permit such - respondents to these applications have 48 hours in which to engage in unprotected action before the Commission moves to act on it. The 48 hour provision and the provision for interim orders was a provision inserted as part of a suite of amendments to what was section 127 of the Act. Under the former provision there wasn't such a reference, yet those matters were dealt with expeditiously, often on the same day that they were lodged.

PN29

So the point is that it's an outer limit. It's not intended to be reflective of the time in which the Commission should usually take to deal with these matters. In dealing with these matters the Commission, of course, is subject to the general obligation under section 108 to act as quickly as possible and we say also in this application it's relevant to have regard to the public interest and draw the Commission's attention to section 103 in that regard. We say that because of the serious impact that these bans will have.

PN30

Their impact is all but conceded by the respondent on their website where they talk about the escalation to make the State government feel the full force of the industrial action. There is no doubt that on an examination of the 22 bans - - -

PN31

THE DEPUTY PRESIDENT: You're referring there to a document attached to your application, are you?

PN32

DR ROSS: We are, your Honour, and it's attachment - - -

PN33

THE DEPUTY PRESIDENT: Headed, Second Phase of Bans to Commence at Midday Today, is that the one?

PN34

DR ROSS: That's right, your Honour, attachment 4. Now, we say that the second suite of bans, the escalation the respondent refers to on its website will have a very substantial impact on the operation of Victoria Police. That is also the fact that it's motivated our application under section 430 which was in response to the notification we received last Wednesday that the second phase of industrial action would be commencing on 8 September.

PN35

As to the proposition that Mr Mullett will consider giving the recommendations sought, in our view that's no real commitment at all. There's no commitment that any recommendation would be made or of its nature or when it would take effect, and in the meantime the industrial action takes effect. We appreciate that the matter has been called on at short notice. We think that's appropriate, given the very little notice, if any, that we had of the imposition of these bans, their serious effect, the Commission's statutory obligations and in concert with our section 430 application.

PN36

I should also say, your Honour, that the Act in section 496 is clear. Other than an argument about notification, which can be dealt with on the materials, we have the notices, whether or not the issue is protected action, we don't understand the respondent to be seriously contesting, given what appears on their website, that industrial action is being organised. In those circumstances, leave aside for a moment the protected action issue, but if your Honour concluded after hearing the parties on the notice point that the action was not protected, then the statutory injunction is clear, that in those circumstances the Commission must make an order that the action stop or not occur.

PN37

That's another indication from the statute that the legislative intention was that these matters be dealt with quickly. The Parliament has deemed it appropriate to remove the discretionary element once the jurisdictional fact is established. So for those reasons, your Honour, we say that the application ought to proceed to be heard now and we're ready to put our submissions in that regard.

PN38

THE DEPUTY PRESIDENT: Thank you. Do you want to respond to that briefly?

PN39

MS GOOLEY: Yes, thank you, your Honour. In relation to an argument that it's in the public interest that you not grant us an adjournment, we say that, in effect, the employer in this instance has had notice of the industrial action that my client's intended taking since the date that over 90 per cent of Victorian Police, I think it was 99 per cent of Victoria Police voted in favour of taking industrial action to support their campaign. They've known what we were going to do and they've had an opportunity to prepare for what we were going to do.

PN40

We accept that the statute provides that these matters need to be dealt with quickly, but there's no obligation that they should be determined without providing the parties with an opportunity to be heard, and that means an opportunity to properly prepare. We find it inconceivable that it could be argued that there's going to be a significant impact on the public if this matter is adjourned to allow us to prepare so that we can have a proper hearing of the matter after the annual general meeting of the Police Federation tomorrow morning. We think that it's appropriate that an adjournment be granted in the circumstances.

PN41

DR ROSS: I'm sorry, your Honour, if I might just advance one point. Ms Gooley said that in effect we've had notice. Well, that submission just ignores the statutory framework. The statutory framework provides that the required notice referred to in section 441 and in this instance, the three working days' notice which is the default period notice, was specifically amended in the ballot order to seven working days. We have received no notice that the phase 2 bans were to commence at midday today.

PN42

The only notice we have received relates to the commencement of those bans from 8 September. If the Commission pleases.

PN43

THE DEPUTY PRESIDENT: Thank you very much for those submissions. Having heard the submissions I propose to defer consideration of the adjournment application until I've heard the parties, starting with Dr Ross. Dr Ross?

PN44

DR ROSS: Thank you, your Honour. If we could take your Honour to the background of the application. I appreciate - - -

PN45

THE DEPUTY PRESIDENT: Before we do that, there is one issue which is that of - there are two matters before me today. Subject to submissions that the parties put, I propose not to hear the second matter, the bargaining period today, unless the parties wish to address me on that. We can deal with issues of timing and procedure, of course.

PN46

DR ROSS: Yes. Well, we weren't pressing the hearing of that application, your Honour. We would be content with a discussion about programming.

PN47

THE DEPUTY PRESIDENT: Does anyone object to the matters being heard together?

PN48

DR ROSS: We have no objection.

PN49

THE DEPUTY PRESIDENT: Thank you. The matters will be heard together. Dr Ross?

PN50

DR ROSS: Thank you, your Honour. Your Honour, I appreciate from - and I don't want to unnecessarily take up time with this, but I appreciate you've heard the application and the background. I wanted to touch on a couple of salient features before making our primary submission. You'll see from the background that the PFA is a registered organisation, it's the Police Association, a company registered under the Corporations Act and not a corporation. The Chief Commissioner is, for relevant purposes, the employer of persons appointed to the Police Force in Victoria.

PN51

The parties before you are party to the Victorian Police Certified Agreement 2001 and the nominal expiry date of that agreement has ended and the parties have been in discussions about a replacement agreement for some time, since I think November or December last year. At this point those discussions have been unable to reach a complete agreement on all matters. On 16 July the PFA lodge an application for a protected action ballot order that was heard the following day and a ballot order was granted and that relevantly appears under attachment 2, which is attached to the application.

PN52

In relation to that I just want to draw your Honour's attention to paragraph 12.

PN53

THE DEPUTY PRESIDENT: Yes, I have it.

PN54

DR ROSS: Yes, and the effect of paragraph 12 is that the statutory notice provision in section 441(3), which the required written notice, and the required written notice is a prerequisite for action to be protected action, is three days or if a ballot order specifies a higher number, the number of days' written notice. So it's apparent here the effect of the order read in conjunction with section 441(3) is that the PFA is obliged to provide seven working days' notice of its intention to take action, and the - - -

PN55

THE DEPUTY PRESIDENT: Right. Has that been done?

PN56

DR ROSS: I'll come to that in a moment, if I could, your Honour?

PN57

THE DEPUTY PRESIDENT: Okay. I've got section 463(5) in front of me. So that was determined. All right?

PN58

DR ROSS: Yes. Then the ballot took place and the ballot question was endorsed and we were notified of that. On 14 August the PFA gave notice to us pursuant to section 441 of its intention to implement the first 11 bans. Now, that document appears under attachment 3 to the application.

PN59

THE DEPUTY PRESIDENT: I have it. It's a letter dated, I think it's the 13th, but it doesn't matter.

PN60

DR ROSS: Yes, that's right. It makes it clear there that it is intending to commence bans 1 to 11 inclusive contained in clause 8 of the orders, and if your Honour goes back to the orders and goes to clause 8 it's clear what those bans are.

PN61

THE DEPUTY PRESIDENT: Right, okay.

PN62

DR ROSS: And it's said that those bans will be implemented from 26 August, hence providing the seven working days' notice.

PN63

THE DEPUTY PRESIDENT: I see.

PN64

DR ROSS: The next notification we received - - -

PN65

THE DEPUTY PRESIDENT: So "working days" excludes the weekend, does it, or - - -

PN66

DR ROSS: "Working days" is defined in section 4, your Honour, to exclude, from memory, weekends and public holidays. Working day means a day that is not a Saturday, a Sunday or a public holiday.

PN67

THE DEPUTY PRESIDENT: Right.

PN68

DR ROSS: Then you'll see the second notice which is dated 29 August in which the PFA gave notice to the applicant in these proceedings of its intention to implement bans 12 to 22 inclusive. Again, there's a reference to clause 8 of the order. There's no doubt as to which bans they're talking about. There's no doubt that it's the intention to commence those bans on 8 September, which also provides the seven working days' notice. The 8 September, also I think being the end of the 30 day period within which action needs to commence under the Act.

PN69

THE DEPUTY PRESIDENT: So that's next Saturday, is it?

PN70

DR ROSS: Yes, your Honour.

PN71

THE DEPUTY PRESIDENT: Right.

PN72

DR ROSS: We're then instructed that the PFA or TPA held a delegates' meeting - TPA, I understand - held a delegates' meeting this morning and at that meeting delegates voted to implement bans 12 to 22 across Victoria from 12 noon today. We're also instructed that representatives of the applicants in these proceedings contacted Mr Mullett and confirmed that that industrial action will be implemented from 12 noon today.

PN73

THE DEPUTY PRESIDENT: Right. Mr Mullett confirmed that, did he?

PN74

DR ROSS: Those are my instructions, your Honour. There was a telephone conversation between Mr Watson and Mr Mullett. Also, your Honour, it is
clear - and if this isn't the case, if this isn't the material on their website, if this isn't what they've advised their delegates, if it's incorrect, then it can be clarified and withdrawn by the other side. They're in the best position to know. We're simply relying on material that we've been provided with, but it is clear from the website material, on the TPA's website, that delegates had recommended that there be the immediate roll out of bans 12 to 22 from midday today to make the State government feel the full force of industrial action. And it said that in the circumstances the Executive resolved to commence bans 12 to 22 across Victoria today from 12 noon, to escalate our work bans to support our claim.

PN75

Now, it's not necessary for us to make this point in the application, your Honour. It's not necessary for us to go to all of the impacts of all of these bans, but some of them clearly will have a very significant impact indeed and we will be putting in the section 430 application material in relation to that. But your Honour can see simply by looking at the nature of the bans - now, we understand some of these have been modified and some have not. There's some confusion about precisely their nature, but the ban in relation to ban 14, the non processing of speed camera, red light camera and city toll infringements, on the material, will be leading in the 430 application will have a substantial impact and I'm not here referring to an impact on revenue. I'm here referring to an increased probability of serious and fatal accidents.

PN76

We say also that ban 21, for example, that operations duties' members must work two up, other than one member stations and special solo members. We say that will have a substantial operational impact on Victoria Police. Now the others have a range of impacts. We don't go to those. What we need to establish and persuade your Honour of is that - - -

PN77

THE DEPUTY PRESIDENT: Industrial action is - - -

PN78

DR ROSS: Yes, that the industrial action is happening, threatened, impending or probable or is being organised. Well, leave aside for a moment the protected argument, and I don't follow that argument at all. On the material there can be no doubt that the industrial action is threatened, is being organised and while we're in here, for all we know, is actually happening. The material from the TPA is unequivocal.

PN79

THE DEPUTY PRESIDENT: So it may be happening, but we're not sure at this stage? But definitely - - -

PN80

DR ROSS: Well, maybe because we've been engaged in - - -

PN81

THE DEPUTY PRESIDENT: Yes, but it's definite. You say it's been threatened and organised and the material you'll produce shows that?

PN82

DR ROSS: That's our submission.

PN83

THE DEPUTY PRESIDENT: Right, and we put aside whether it's happening or not because- - -

PN84

DR ROSS: It's not necessary to determine that point.

PN85

THE DEPUTY PRESIDENT: No.

PN86

DR ROSS: They're in the alternative. We say in those circumstances the Commission is obliged to make an order. We're happy to respond to Ms Gooley's submissions about the notice. It seems clear from the material that there is another submission open to us which we don't press at this stage because we say the material is clear on its face that the action is not protected, that it's threatened or being organised, and in those circumstances an order should issue.

PN87

The alternate we refer to is a section 435 submission, your Honour, and that is, "The industrial action involves persons who are not protected," and that is, it involves the TPA. It was a meeting of TPA delegates. The TPA is not a protected entity in relation to this action. The TPA didn't initiate the bargaining period. The registered organisation, the Police Federation of Australia, didn't, but we say, on the material, your Honour, it's not necessary for him to go that far. It would be sufficient to conclude that the relevant notice has not been given. Therefore the action has not been protected.

PN88

It is clear on the material that the action is threatened or is, in the alternative, being organised, and on that basis an order should issue.

PN89

THE DEPUTY PRESIDENT: Do you want to say anything about the notice now, or wait till you hear from the - - -

PN90

DR ROSS: About the?

PN91

THE DEPUTY PRESIDENT: About the notice?

PN92

DR ROSS: I'm not sure I understand the argument as yet, your Honour. I'm more than happy to respond to it.

PN93

THE DEPUTY PRESIDENT: Sure. All right. Just let me get this clear. You say that the website material and a conversation between Mr Watson and Mr Mullett unequivocally demonstrates that industrial action as defined is being threatened and organised?

PN94

DR ROSS: And you will also see under attachment 4, your Honour, there's an email from a TPA Assistant Delegate there.

PN95

THE DEPUTY PRESIDENT: Yes. So that's the third bit of information.

PN96

DR ROSS: Yes, it is.

PN97

THE DEPUTY PRESIDENT: And that' from who? Who's Erin Coleman or is that relevant?

PN98

DR ROSS: I think he's a TPA Assistant Delegate, I'm instructed. Your Honour, if I can make this observation that if this meeting never took place, if they never passed a resolution, if they never told their members that they were going to impose bans, that all of that can be cleared up by my friend.

PN99

THE DEPUTY PRESIDENT: Well, I see. So you're saying that Mr Mullett can simply - yes, I see, all right.

PN100

DR ROSS: We weren't at the meeting. We've been relying on the material that the TPA has produced subsequent to the meeting.

PN101

THE DEPUTY PRESIDENT: I suppose I'm not obliged to - I can take evidence from the bar table and there's no difficulty with that. Are you in a position to lead evidence should that be challenged?

PN102

DR ROSS: We can lead evidence from Mr Watson about his conversation with Mr Mullett, if that's necessary.

PN103

THE DEPUTY PRESIDENT: Right.

PN104

DR ROSS: I didn't apprehend there was an issue about the bans being implemented. We apprehend the argument about the notice, but we didn't understand anyone to be seriously saying the delegates didn't pass a resolution, the Executive didn't endorse it, members haven't been told the bans are going to be implemented. If we're wrong about that, well, we'd like to hear about that.

PN105

THE DEPUTY PRESIDENT: Yes. So if there is an issue about that, you're prepared to lead with evidence, is that what you're saying?

PN106

DR ROSS: Yes.

PN107

THE DEPUTY PRESIDENT: Right, okay.

PN108

DR ROSS: Well, indeed, we would lead evidence from Mr Mullett.

PN109

THE DEPUTY PRESIDENT: All right, thank you. Ms Gooley?

PN110

MS GOOLEY: I wish to press again my application for an adjournment to at least enable me to get some instructions from my client in relation to the matters that have been raised here this afternoon.

PN111

DR ROSS: For our part, your Honour, we have no objection to a short adjournment for the purpose.

PN112

THE DEPUTY PRESIDENT: All right.

PN113

DR ROSS: If that assists Ms Gooley.

PN114

THE DEPUTY PRESIDENT: Would that be of assistance, Ms Gooley?

PN115

MS GOOLEY: Yes, thank you, your Honour.

PN116

THE DEPUTY PRESIDENT: Five minutes or 10 minutes, what would you like?

PN117

MS GOOLEY: Half an hour, thank you.

PN118

THE DEPUTY PRESIDENT: Half an hour. All right. I have no difficulty with that. We'll adjourn for half an hour until half past six.

<SHORT ADJOURNMENT [5.50PM]
<RESUMED [6.08PM]

PN119

THE DEPUTY PRESIDENT: Right.

PN120

MS GOOLEY: Thank you, your Honour. I'm instructed to ask your Honour to formally rule on our adjournment application.

PN121

THE DEPUTY PRESIDENT: I'm sorry, could you repeat that?

PN122

MS GOOLEY: I'm instructed to request that you formally rule on our adjournment application which you had deferred in this matter.

PN123

THE DEPUTY PRESIDENT: I've indicated what I'll do in that respect and I see no reason at this stage to change my mind. I may well grant you your adjournment after you've addressed the submissions put or made, whatever submission you wish to put in response to the submissions of Dr Ross. At that stage I may well grant it, but I may not.

PN124

MS GOOLEY: Well, it's very difficult, your Honour, in circumstances where we - - -

PN125

THE DEPUTY PRESIDENT: Well, perhaps I could ask you some questions. There's a report printed from your website, quote, "Second phase of bans to commence at midday today." Under the signature of Mr Paul Mullett. There's also an email from Erin Coleman and there's also a conversation that I'm told occurred between Mr Watson and Mr Mullett, the contents of that conversation were that bans would be imposed from 12 midday. Now, that is what has been put and evidence is said to be available to be led formally if there is any contest about that. Do you contest that evidence?

PN126

MS GOOLEY: Your Honour, this is what I'm instructed to put to you. If we're not to be granted an adjournment to enable us an opportunity to prepare our submissions in relation to this matter we do not intend making any submissions in reply to Mr Ross' application.

PN127

THE DEPUTY PRESIDENT: All right.

PN128

MS GOOLEY: We say in this regard that that is a denial of natural justice to our clients and as a result we're not prepared to make submissions in circumstances where we're not provided that opportunity. We note that these orders seek to bind employees in relation to this application who have themselves been denied even an opportunity to know this application has been made and to seek advice in relation to the matters. The only things that we would wish to make submissions on, if you proceed with this application, is the nature of the orders that are sought to be made in these proceedings.

PN129

So as we say, your Honour, it's our fundamental submission that we are entitled to have an opportunity to prepare our case. If we're not going to be provided with that opportunity, we don't intend making any submissions in relation to the points made by Dr Ross, but we seek to be heard on the question of the nature of any orders you may decide to make in the circumstances, though we urge you not to make any orders at this stage.

PN130

THE DEPUTY PRESIDENT: All right. I'll ask you one further question if I could. There is a decision of Vice President Watson dated 9 August 2006 PR973605, paragraph 19, it refers to the issue of natural justice. It says:

PN131

For relevant purposes natural justice is an important principle and must be complied with by all administrative tribunals. For relevant purposes it requires an adequate opportunity to be given to persons with an interest in proceedings to attend and present a case. The extent of the obligations depends on the circumstances and is largely determined by the legislative scheme under which the proceedings arise.

PN132

There are at least some people against whom the order is sought present in the room today. I've asked a number of questions which seem to me to be pertinent. Can you give me any reason why those persons at least have not been given an adequate opportunity to present a case?

PN133

MS GOOLEY: You mean the officers of the Police Association?

PN134

THE DEPUTY PRESIDENT: Yes, and the Police Association itself, and the Police Federation of Australia as a registered organisation?

PN135

MS GOOLEY: Because they haven't had an opportunity to sit down and give instructions to their legal representatives to enable them to give them advice as to the nature of the application, the grounds on which that application is made and the evidence that has been relied on to found that application, as well as to provide an opportunity for their legal representatives to prepare submissions to put arguments to you about the law in relation to this matter. So while they've certainly had notice of the hearing, they equally have not had an opportunity to consider the application of the police in this regard and to mount a defence in their situation.

PN136

So simply being here is not sufficient to afford them natural justice to prepare a case in response to what has been put by Dr Ross.

PN137

THE DEPUTY PRESIDENT: All right. I would perhaps understand your submission better if, for example, you were to advise me that all the documents in which Mr Mullett was involved in, for example, and alleged conversations are simply false, but you haven't said that. You haven't addressed that so I find it hard to follow what you're saying.

PN138

MS GOOLEY: Well, your Honour, the difficulty is I've had a brief conversation with Mr Mullett about that conversation. He does not recall having a conversation with somebody about that matter, but we are not prepared to run a half baked case before you in circumstances where we're denied an opportunity to put our case, we will not be making submissions or calling evidence in this matter. We have simply requested of the Commission an adjournment until tomorrow afternoon.

PN139

THE DEPUTY PRESIDENT: All right.

PN140

MS GOOLEY: And that's been denied us, in effect, by your decision to call on us to make submissions prior to ruling on whether we can have an adjournment or not.

PN141

THE DEPUTY PRESIDENT: I haven't ruled on the adjournment application as yet.

PN142

MS GOOLEY: Well, your Honour, we - - -

PN143

THE DEPUTY PRESIDENT: You may well be successful for all you know.

PN144

MS GOOLEY: We submit that forcing us to make submissions in relation to our case before hearing an - before determining the adjournment application is itself a denial of natural justice.

PN145

THE DEPUTY PRESIDENT: Ms Gooley, I'm simply asking questions. You can choose to answer them or not. I can't force you to make a submission if you don't wish to. I'm simply asking questions which seem to me to be pertinent. Is there anything else you want to say?

PN146

MS GOOLEY: Well, thank you. Sir, we wish to be heard on the question of the nature of the orders if you decide to make orders in this matter. Do you wish to hear from me now in relation to those matters?

PN147

THE DEPUTY PRESIDENT: Yes. That might be convenient.

PN148

MS GOOLEY: There has been some discussion between yourself and Dr Ross at the bar table in relation to the nature of the orders and the fact that the orders don't apply to protected industrial action and it's accepted that the work bans, 1 to 11, which are currently in place are protected and the work bans that commence on 8 September will also be protected. The order that is being sought by - - -

PN149

THE DEPUTY PRESIDENT: I have it in front of me.

PN150

MS GOOLEY: Yes, in fact does not contain a provision that makes it clear that protected industrial action is to be excluded from the order.

PN151

THE DEPUTY PRESIDENT: Right.

PN152

MS GOOLEY: And while we accept that the Act itself makes it clear that an order of this kind cannot apply to protected industrial action, this order is going to be served on people who may not be familiar with the Workplace Relations Act.

PN153

THE DEPUTY PRESIDENT: So it's misleading, yes.

PN154

MS GOOLEY: And we suggest that that should be made express within the order, that this order does not apply to protected industrial action so that those members of the Police are clear that they can continue with their current bans and they can implement the bans on 8 September as outlined in the notice.

PN155

THE DEPUTY PRESIDENT: Understood.

PN156

MS GOOLEY: The second point we want to make in regard to the draft order is in relation to order 5(b).

PN157

THE DEPUTY PRESIDENT: 5(b), yes.

PN158

MS GOOLEY: This is the provision that seeks to have the Police Federation and the Police Association advise employees that the direction authorisation et cetera, et cetera, is withdrawn and the action must not occur and then take all steps available under the rules to get the employees to comply with the orders. It's our submission that an order of this Commission should have sufficient status as to send a message to employees about what they're required to do. It does not need in addition to the normal service provisions, provisions - sorry. Additional orders seeking to give the imprimatur of the organisations to the orders of this Commission.

PN159

It is simply enough that the orders should be served and they should be served by the employer. There is no need to add to the weight of these orders the imprimatur of either the Police Association or the Federal Police.

PN160

THE DEPUTY PRESIDENT: So you're proposing to take the PFA and TPA out of those orders, is that - - -

PN161

MS GOOLEY: Yes. So order 5(b) is deleted from the order.

PN162

THE DEPUTY PRESIDENT: I see, of course, yes. So that would be deleted in its entirety.

PN163

MS GOOLEY: That be deleted. We would also submit, though, we acknowledge that this is - - -

PN164

THE DEPUTY PRESIDENT: There is authority for such an order.

PN165

MS GOOLEY: Certainly there's no doubt that such orders have been regularly given by members of this Commission, but I am not aware that there has been a decision that makes such orders mandatory in these matters.

PN166

THE DEPUTY PRESIDENT: No.

PN167

MS GOOLEY: I certainly had a matter before Senior Deputy President Acton where she agreed with the submissions that it is simply sufficient to have the imprimatur of this Commission on what was then a 127 order and that these provisions are put in not for the purpose of seeking to enforce the orders because to have - sorry. Not put in here to give weight to the orders. What they're put in here for, your Honour, in our experience, is so that when the union complies with the orders and actually does what the orders require them to do, when the
matter - if the members themselves don't accede to the orders, the employers then go to the Federal Court and rely on the fact that "the union hasn't done everything available under its rules" to inform its members of the orders, and that submissions have been made to the courts to the effect that that requires unions to charge their members for breaching directions of union officials. And we say that this Commission should not do more than is necessary in making the orders. This does more. If you're going to make an order telling people to stop industrial action, that's all that needs to happen.

PN168

THE DEPUTY PRESIDENT: Right.

PN169

MS GOOLEY: The Police Federation, which is the registered organisation that represents these members, should not be required to take additional steps other than the steps to ensure that it itself complies with the orders. There's no doubt that if the orders are made it will need to comply with them, but it shouldn't be required to take any other steps in relation to this matter. An order of this Commission should be sufficient.

PN170

THE DEPUTY PRESIDENT: Could I just ask you this in relation to that point, a recent Full Bench, in fact I think the only Full Bench decision on section 496 so it should be well known to everybody, is in PR973479. At paragraph 30 the Bench said and I quote:

PN171

The Commission's power to make orders pursuant to section 496 should be exercised in a practical way and in a way which is directed to the provision of effective relief for the party or parties entitled to the benefit of the order.

PN172

Does that assist you?

PN173

MS GOOLEY: Yes, I think it does, your Honour, because it's limited to what you need to do, if you are a mindful to make an order and remember our submissions are you should not make an order in these circumstances, should be as narrow as necessary to give effect to the provision in the Act and that is an order that the industrial action stop and a provision as to service of that order on the people who it's directed towards.

PN174

THE DEPUTY PRESIDENT: And in that Full Bench the Bench, I must say in all fairness, approved an order which did something that looks to me very similar to 5(b).

PN175

MS GOOLEY: Unless one of course went back to the transcript, we're not sure whether that point would have actually been argued before the Commissioner at first instance or the Full Bench itself.

PN176

THE DEPUTY PRESIDENT: No.

PN177

MS GOOLEY: Many of these kind of provisions have gone through unargued.

PN178

THE DEPUTY PRESIDENT: Yes.

PN179

MS GOOLEY: I don't dispute that and they have been a common feature of this. But in my experience when put firmly to the Commission that these orders are unnecessary and beyond what is necessary to achieve the intention of the section, the Commission has declined to make such orders and we urge on that you shouldn't make such orders.

PN180

THE DEPUTY PRESIDENT: No, no, your point that there's no pro forma to that effect is a good one.

PN181

MS GOOLEY: Yes, that's right.

PN182

THE DEPUTY PRESIDENT: And I take that on board.

PN183

MS GOOLEY: And we also submit that this order should not bind the employees. One of the things that Dr Ross said at the beginning of his submissions was that the certified agreement binds the Association - no, sorry, I withdraw that. I acknowledge that there is Full Bench authority to the effect that service on a union is service on its members, but these orders are significant orders. These orders are being directed at police officers who have a particular role in our community. They haven't been advised that the hearing is occurring. They haven't had an opportunity to be heard in relation to this matter.

PN184

They would even not be provided with an opportunity to speak to them tomorrow morning at the annual general meeting to advise them of the nature of the application. We say that it's inappropriate to make orders against the employees in those circumstances. We further say that the orders should not go to - - -

PN185

THE DEPUTY PRESIDENT: I mean on that point, it would be open to me to grant one part of the application and adjourn the other, wouldn't it?

PN186

MS GOOLEY: That's certainly the case. You could make the order against the Police Federation which is the registered organisations.

PN187

THE DEPUTY PRESIDENT: Yes.

PN188

MS GOOLEY: They're here, but the employees are not and you could adjourn that to enable them to have an opportunity to make whatever submissions they wish to make to you.

PN189

THE DEPUTY PRESIDENT: I mean there's an element of artificiality in that, but nevertheless I take your point.

PN190

MS GOOLEY: Thank you, your Honour. And we further say that it it's not necessary to make orders against both the Police Federation of Australia and the Police Association. This industrial action has been conducted by the Police Federation of Australia through its Victorian branch and we say that any orders should be directed at the Police Federation. You don't have to have any concern that that won't capture the officials that you may seek to capture because there is a total overlap between the officials of the Federation and the officials of the Police Association which is a corporation. Thank you, your Honour.

PN191

THE DEPUTY PRESIDENT: Thank you. Dr Ross.

PN192

DR ROSS: Your Honour, if I can deal firstly with - - -

PN193

THE DEPUTY PRESIDENT: I think there was an issue of evidence if you want.

PN194

DR ROSS: Yes. No, certainly. I'm not sure where that was left.

PN195

THE DEPUTY PRESIDENT: Apparently the conversation never occurred, or if it did occur - - -

PN196

DR ROSS: No look, if I can make this clarification, we understand, or I am instructed that there was a conversation between Mr Watson and Mr Mullett and then the conversation continued with Mr Kennedy. The phone was handed to
Mr Kennedy and that's where the conversation we say took place.

PN197

THE DEPUTY PRESIDENT: About industrial action?

PN198

DR ROSS: About the industrial action. Now, leave aside that conversation for a moment.

PN199

THE DEPUTY PRESIDENT: All right. So you're not relying on that?

PN200

DR ROSS: Well, no, no. Well, I don't need to because we assert from the bar table, which is not contested, that the jurisdictional facts in respect of section 496 have been met. No submissions are put in relation to that. It's put instead that in the absence of an adjournment application the respondents don't wish to put any submissions. But we say about that that procedural fairness requires the opportunity to put submissions. It doesn't require that a party take advantage of the opportunity. So we say there being no contest as to the relevant jurisdictional facts an order that the industrial action stop, not occur and not be organised must follow.

PN201

Now, if we're wrong about that we'll be informed, but if I can go to the nature of the orders. If you bear with me for one moment.

PN202

THE DEPUTY PRESIDENT: Three issues were taken I think.

PN203

DR ROSS: I had four but I'm happy to only have three.

PN204

THE DEPUTY PRESIDENT: I'm happy to stand corrected .

PN205

DR ROSS: Bear with me for a moment, your Honour. If I can go through the points made by my friend, the first, the point about a specification that the order not apply to protected industrial action.

PN206

THE DEPUTY PRESIDENT: Yes. You don't have a difficulty with that, do you?

PN207

DR ROSS: Well, can we make this observation, we wouldn't have a difficulty with the order so prescribing provided it was clear perhaps in an accompanying statement or decision from your Honour that we weren't going to end up with some confusion about what was and wasn't protected.

PN208

THE DEPUTY PRESIDENT: Yes.

PN209

DR ROSS: It follows from what we've said about the jurisdictional facts that there is no contest that this action would not be, that is, the imposition of bans 12 to 22 from 12 noon today, is not protected, therefore it is that action to which this order is directed.

PN210

THE DEPUTY PRESIDENT: Could you perhaps write those down words for me or give me them again?

PN211

DR ROSS: That we would wish to make it clear either in the order itself or an accompanying statement that the order and the circumstances in which the application is directed and the order is directed is to the commencement of bans 12 to 22 at any stage prior to 8 September.

PN212

THE DEPUTY PRESIDENT: Right, understood.

PN213

DR ROSS: You can see the issue, your Honour.

PN214

THE DEPUTY PRESIDENT: Yes.

PN215

DR ROSS: We don't want to just defer to have some endless debate about whether or notice the argument that we haven't heard has some effect that this is protected action.

PN216

THE DEPUTY PRESIDENT: Yes.

PN217

DR ROSS: The second point if we can go to - - -

PN218

THE DEPUTY PRESIDENT: Well, you put that in the definition of industrial action perhaps or something of that sort.

PN219

DR ROSS: Indeed. The order doesn't need to be confined to the specifics. It can go broader. But it could mean, for example, a new paragraph (a), the imposition of bans 12 to 22 referred to in protected action ballot order at clause 8 at any stage prior to 8 September.

PN220

THE DEPUTY PRESIDENT: Yes, all right.

PN221

DR ROSS: Can I go to the second point which is that part of the order that deals with the notification by the PFA and the TPA?

PN222

THE DEPUTY PRESIDENT: Yes.

PN223

DR ROSS: We make a couple of observations about this. As Ms Gooley readily concedes, such orders are regularly given and we submit there's a good reason for that. The communication with the members about the imposition of these bans which we say are unprotected, unlawful and ought to be subject to an order, has come from the PFA and the TPA. They have communicated with their members about their imposition. We say that the most effective and practical way of communicating that, and we would certainly for our part do it also, but we don't want any information confusion. It should be made clear from the PFA and the TPA themselves because they started the issue in the first place, that there's a need to comply with the order.

PN224

Now, in relation to the Full Bench decision your Honour referred to, that orders should be framed in a practical way directed to the provision of the relief sought, here we've have a number of communications from the PFA to its members about the imposition of these bans and the escalation immediately from 12 noon today. We have in fact come into possession of another document which we understand was sent to all stations from the PFA and In Brief members newsletter which - - -

PN225

THE DEPUTY PRESIDENT: Right. Have you provided that to the other side?

PN226

DR ROSS: I have, your Honour.

PN227

THE DEPUTY PRESIDENT: All right. Do you want to tender that?

PN228

DR ROSS: If the Commission pleases.

EXHIBIT #POLICE1 IN BRIEF EXTRACT

PN229

DR ROSS: You'll see, your Honour, from POLICE1 that's in broadly the same terms as the information that we say is on the website. So there has been communication from the PFA and the TPA escalating the bans in the manner we have identified. We say that the most effective way of giving effect to the intention of the section which is that the industrial action stop and not occur is for the order to contain a provision in the terms of 5(b). We note in relation to the Full Bench decision your Honour referred to that whether this point was argued or not, they issued an order which contained a very similar provision.

PN230

That being the case, they must have felt that it was framed in a practical way and directed to the provision of the relief sought, otherwise why would they have issued the order given the statement the Full Bench makes in its decision. We say that the - - -

PN231

THE DEPUTY PRESIDENT: Well, that part of the order was in fact challenged before the Bench quite vigorously.

PN232

DR ROSS: Well that, your Honour, rather makes my point, that here also - - -

PN233

THE DEPUTY PRESIDENT: On the basis that it's oppressive and uncertain, ambiguous and a number of other things.

PN234

DR ROSS: But nevertheless it was awarded.

PN235

THE DEPUTY PRESIDENT: Nevertheless the Full Bench approved it.

PN236

DR ROSS: Yes. I don't contend - - -

PN237

THE DEPUTY PRESIDENT: Or the Full Bench dismissed the appeal.

PN238

DR ROSS: Yes. Your Honour, I don't contend that there's some pro forma of orders.

PN239

THE DEPUTY PRESIDENT: No.

PN240

DR ROSS: I'm not putting that. I don't need to put that. What we say is that the framing of the order in that way in these particular circumstances, having regard to the communication by the relevant bodies to their members, is the most practical way of providing the relief sought. We say it will avoid confusion. It will be made clear that everyone is on the same page. We have all received the order and this is what it means. Point 3 is that the order should not bind the employees. Now, the essence of this submission is that employees have not been given an opportunity to be heard. There are two elements to this. The first is, as Ms Gooley correctly concedes, that there is Full Bench authority for the proposition that service on a union is service on its members.

PN241

So there has been service on the members of the PFA and on the members of the TPA. Those organisations, or one is an organisation, the other is a body corporate, have been served. Now, that being the case, that then limits us - the procedural fairness point, that's the only point taken here, goes to the definition of employee. Now, we would accept - - -

PN242

THE DEPUTY PRESIDENT: In the order?

PN243

DR ROSS: Yes, your Honour.

PN244

THE DEPUTY PRESIDENT: I have it.

PN245

DR ROSS: In para 3.

PN246

THE DEPUTY PRESIDENT: Yes. Paragraph 2, isn't it?

PN247

DR ROSS: Two sorry, yes, you're quite right. The definition of employee.

PN248

THE DEPUTY PRESIDENT: Yes.

PN249

DR ROSS: If the words in the third line, "or are eligible to be" were deleted that would remove the procedural fairness argument, which is the only argument put. It's not put that the TPA and the PFA can't represent its members. If that was accepted as a submission no orders would ever be issued. You'd have to what, personally serve every member of every organisation, given them all an opportunity to come and that's the very purposes of these organisations. But we acknowledge the point in relation to those who are eligible to be, but not those who aren't. The fourth point, as we understand it, is it was necessary to make orders against the PFA and the TPA, that it was sufficient that the orders be made against the PFA alone. We say that that submission is not open in view of the way the respondents have chosen to run their case. We say that because we've put material which is uncontested that the jurisdictional facts have been met. That is, this action is being organised by the PFA and the TPA.

PN250

It was a TPA delegates meeting, we were advised. The PFA has put out information which we have provided in POLICE1. It's a TPA delegate that has provided the material under attachment 4 and it's the TPAs website on which the information under attachment 4 appears. On that basis we say that the order ought to be addressed to both.

PN251

THE DEPUTY PRESIDENT: Before you sit down do you want to address the issue of timing of the other matter?

PN252

DR ROSS: The section 430 matter, your Honour?

PN253

THE DEPUTY PRESIDENT: Yes.

PN254

DR ROSS: Certainly.

PN255

THE DEPUTY PRESIDENT: We can discuss that off the record if the parties would like that. Would that be helpful?

PN256

DR ROSS: Yes, we're content with that, yes.

PN257

THE DEPUTY PRESIDENT: All right. Well, we'll deal with that after we've finished submissions concerning this matter.

PN258

DR ROSS: Certainly.

PN259

THE DEPUTY PRESIDENT: So you've got nothing more to add?

PN260

DR ROSS: No, if your Honour pleases.

PN261

MS GOOLEY: Thank you, your Honour. I only wish to address the argument about order 5(b) at this stage. Dr Ross says that 5(b) is a practical way of communicating the order to the members and therefore it should be communicated by the union and it should be communicated by the employer, but the order he seeks goes much broader than that. It's not simply about communicating the order this Commission might or might not make to the members. It goes further and says:

PN262

Take all steps necessary and available under the rules to ensure that members comply with the order including but not limited to taking all reasonable steps not later than 9 am on 9 September to advise each of its employee members of the terms of the orders.

PN263

So we have that and then we have an order that says we've got to immediately its employee of any direction, advice, et cetera. If this is about communicating the fact that the Commission has made an order, a 496 order, then every one of these people has got an email address that the police had never hesitated to use to directly contact all members of the force to advise them about industrial matters. For example, they sent out a communication to members about the fact that they could be docked pay and that was sent out by email to all members of the force.

PN264

So this order can be brought in a practical way to the attention of all the people you may seek to bind to it in relation to employees of the police by an email sent out by the police force. They will become aware of the order. It's not necessary to take the further step and say, well, you've got to take all steps that the policing force - sorry, that's a very bad choice of words really. The enforcer of this order in this matter needs to be the Police Federation or the Police Association because they have got to take the steps to ensure that it's complied with. What Dr Ross was saying is that they need to receive it in a practical way. Well, there's a very practical way they can receive that notice and if you think that there needs to be a notice provided by the Police Federation, then they could put that out in the same way that POLICE1.

PN265

I should emphasise, you will see that of course POLICE1 is from the Police Federation of Australia which is a newsletter which goes on the website and that would advice all the people who were advised of the alleged industrial action of the orders. But it is not necessary in a practical way to have the addition that they must take all steps to ensure that members complied with the orders because that's moving from notifying the members of the existence of the orders to saying to the Police Federation and the TPA that they're the enforcers of the orders. So we say that if you were of a mind to have an order 5(b) it should simply be that the Association publish on its website any orders made by this Commission, the orders if you make any, made by this Commission.

PN266

THE DEPUTY PRESIDENT: And urging compliance.

PN267

MS GOOLEY: Well, courts of this land don't when they make orders and give injunctions, then turn around to one of the parties and say, well, it's your responsibility to ensure compliance. The orders of the court are sufficient and we say that the orders of this Commission should be sufficient. The orders will, if you make them in the form made, will indicate to those people that this order binds them. It shouldn't require anything more than a stamp of this Commission.

PN268

THE DEPUTY PRESIDENT: Why would that be more practical than the existing form which requires all steps to be taken to immediately - it's an advice, directions or authorisation that industrial action is withdrawn, firstly, and secondly, take all steps to ensure compliance.

PN269

MS GOOLEY: It's not - - -

PN270

THE DEPUTY PRESIDENT: And you're proposing to notify of the orders made.

PN271

MS GOOLEY: We're not saying you could, though we say you shouldn't make nay orders of course.

PN272

THE DEPUTY PRESIDENT: No, no, I understand.

PN273

MS GOOLEY: And tell the Police Association and the Federation to put a notice on their website in the same way that the people were informed of the action. But if what you are concerned is to ensure that the employees, the people who are not present here today, are aware of the orders, the police can do it, they did it when they told them that they could be docked pay if they took industrial action through an email and if you think that it's necessary for the registered organisation to do similarly it could put it on its website. That's all that's necessary to draw this attention of this order to the employees.

PN274

THE DEPUTY PRESIDENT: All right. For what it's worth, the evidence in this matter, what there is of it, suggests a heavy involvement by organisations. It's not a case of spontaneous industrial action as far as I can see on the material before me. Wouldn't that suggest that it would be practical to require certain steps to be taken by an organisation?

PN275

MS GOOLEY: The jurisdictional restriction on this Commission is that you can make orders that industrial action stop, not occur, et cetera.

PN276

THE DEPUTY PRESIDENT: Yes.

PN277

MS GOOLEY: It's not the role of this Commission to look to ways to enforce those orders and that's what you're trying to do. What my friend is trying to get you to do is to build in an enforcement mechanism where rather than simply making orders that the industrial action stop, not occur or not happen, you're being asked to make orders that the Associations do seek compliance with those orders. If there's a failure to comply with orders my friend has got his rights. It 's not necessary to build into, or in fact we'd submit that it's actually not proper for you to seek an enforcement mechanism through the orders that you're making.

PN278

The orders should be directed at the allegation that the industrial action is happening. The orders are that it stop, not happen and not occur up to when it can commence of course on 8 September and no more.

PN279

THE DEPUTY PRESIDENT: All right, thank you.

PN280

DR ROSS: Your Honour, might I just briefly address one of those issues? The first point we make is this, that 5(a) is not contested. That is, leave aside whether it's the PFA or the TPA, but that they stop organising any industrial action, not further organisation, et cetera. In those circumstances why are those two bodies so reluctant to withdraw the direction advice and authorisation they have already provided? Clearly they have indicated that if the orders issue they will comply with the order, yet we will have communications to their members saying bans 12 to 22 commence from 12 noon today. Why won't they advise their members not to engage in the action and that any direction, advice or authorisation to engage in the action is withdrawn and must not occur?

PN281

It's not in anyone's interest to have members or employees exposed to a breach of an order, so we fail to see the reluctance in relation to (b)(i). Can I also draw your Honour's attention to what may be a practical problem. If you go to the ballot order and this appears attached to our application.

PN282

THE DEPUTY PRESIDENT: Yes, I have it.

PN283

DR ROSS: Yes. If I can take you to page 2 and ban 8:

PN284

Members to ban the use of email.

PN285

That's a ban that's been imposed which we in these proceedings, these 496 proceedings, are not contested, that proper notice has been given and it's protected. Well, how would we be sure if that ban's in place if we send emails to these employees that they're going to read them? They've got a ban on the use of email. Now, the PFA and TPA have readily contacted them to impose the bans. In our submission it's entirely appropriate that they advise their members that those directions to engage in industrial action are withdrawn and the action must not occur and that's entirely a practical way of ensuring compliance with the order and the intent, which is that the industrial action not occur.

PN286

THE DEPUTY PRESIDENT: Thank you.

PN287

DR ROSS: If the Commission pleases.

PN288

THE DEPUTY PRESIDENT: All right. Thank you very much for those submissions. Before I adjourn to consider what's been put I'll briefly deal with the issue of the other matter. We'll go off transcript for a minute.

<OFF THE RECORD

PN289

THE DEPUTY PRESIDENT: In relation to matter BP2007/3244, application for order to suspend or terminate a bargaining period, that matter will be adjourned until 11 o'clock tomorrow. In relation to matter C2007/3461, I will adjourn for half an hour to consider what's been put and I hope to have something for you then. Thank you very much.

<SHORT ADJOURNMENT [6.52PM]
<RESUMED [7.37PM]

PN290

THE DEPUTY PRESIDENT: First of all I thank the parties for their submissions and I have had regard to all the submissions and the material led. Secondly, I note the provisions of section 496(1). I won't read that. Thirdly, Ms Gooley put the submission that the matter be adjourned and other submissions. Dr Ross for the Commissioner of Police put before me uncontradicted evidence that industrial action is threatened or being organised. That evidence contained in the application consisted firstly of an email from a police union delegate that the Police Association delegates today voted to introduce phase 2 work bans to be -

PN291

Implemented as of midday today, 3/9/2007.

PN292

The reference to phase 2 is to be understood in the light of correspondence from Mr Mullett of the Police Federation of Australia, dated 13 August 2007 and
29 August 2007 also attached to the application. That correspondence gives notice to the Police Commissioner that the industrial action referred to in paragraph 8 of the secret ballot order of the Commission in PR977701, dated
17 July 2007 will be taken in two phases, the second to commence on
8 September 2007. Secondly, the application also had attached to it a document that was obtained from the police union website. This document is to effect that the delegates of the Association, 3 September, voted to roll out bans from midday today.

PN293

Thirdly, exhibit POLICE1 is to similar effect, although it is not necessary to rely on it. Fourthly, having regard to all of that, on the basis of what has been put I am not satisfied that an adjournment is necessary to provide those to be affected by an order with natural justice. I note, for example, the comments of Vice President Watson in PR973605 at paragraph 19 that that issue has to be assessed in the circumstances and the circumstances that before me this material could easily have been challenged today before me, if there was any challenge to be made. At the very least, strong doubt could have been cast on those documents. These documents were issued by parties appearing today, or involved parties appearing today, however, no challenge was made

PN294

Fifthly, I note also that officers of the PFA and TPA are referred to in that material and as such they are representative of employees. Seventhly, I am also satisfied that the industrial action would not be protected action. The industrial action that is threatened, pending or probable is outside that specified in the notice forwarded by the Police Federation Australia Victoria Police Branch in its letter of 29 August 2007. That notice is of industrial action to commence on 8 September 2007. There is no notice before me of present threatened industrial action which complies with clause 12 of the order for a proposed action ballot issued on 17 July 2007 and contained in PR977701.

PN295

Eighthly, I therefore must make an order that the industrial action not occur and not be organised. Ninthly, I have had regard to all the submissions put and material led on the substance of the matter, as well as the form of the orders to be issued. I am concerned amongst other matters to, quote:

PN296

Exercise my powers in a practical way and in a way which is directed to the provision of the effective relief for the party or parties entitled to the benefit of the order.

PN297

I end the quote from paragraph 30 of PR973479, a decision of a Full Bench of the Commission. In that connection I note the apparent involvement of organisations and the organisation of industrial action before me which suggests that a form of direction to them to withdraw that is warranted. I also note the proper service of organisations on behalf of employees. I also note the need to clarify the order to ensure that employees are not misled and that protected action is not effected. Finally, I will issue an order now in the form of PR978141. It will now be provided to the parties before me. I reserve my rights to hand down further reasons for decision. This matter stands adjourned.

<ADJOURNED ACCORDINGLY [7.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #POLICE1 IN BRIEF EXTRACT PN228