BP2007/3201, Transcript of Proceedings [2007] AIRCTrans 541 (11 October 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17534-1

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

10.02AM, WEDNESDAY, 26 SEPTEMBER 2007

Continued from 18/9/2007

PN821

THE VICE PRESIDENT: Mr Reitano, Mr Tehan, I note your continuing appearance. Yes, Mr Tehan.

PN822

MR REITANO: I might before Mr Tehan rises, just foreshadow something with your Honour. Although Mr Husic isn't here, I anticipate that I have instructions to foreshadow this and then to ultimately make the application. We will at some stage during the day make an application that your Honour vary the order that your Honour made, the first order, if I can describe it as that, to extend the time for the closing of the ballot from today till Friday.

PN823

Can I just briefly alert your Honour to two things about that. One is, we've spoken to the AEC, I think as recently as this morning, and essentially they said no skin off our nose. Secondly, the basis for the application is evidence that I will call from Mr Husic that he's gathered from around Australia about the slowness with which the ballot papers went out and the slowness with which they're coming back in. Whilst we anticipate that not many people will be actually voting in any period of extension, it will be that ballot papers will be capable of being received during that period.

PN824

MR TEHAN: This is extraordinary. No notice has been given to the Commission.

PN825

THE VICE PRESIDENT: Well, there you are.

PN826

MR TEHAN. No notice has been given to Australia Post. There has been
ex parte communication with the Electoral Office,

PN827

THE VICE PRESIDENT: There's nothing wrong with that.

PN828

MR TEHAN. In all the circumstances, your Honour, it seems an amazing situation. Basic courtesy might have said that, bearing in mind we know there's a hearing today that notice would be given of this but we'll deal with that when the application comes, your Honour.

PN829

Your Honour, we seek to make an application, as you are aware, that the
three business days be extended to seven business days for the giving of the notice of industrial action. We seek to call a witness today, Mr Ben Franzi. A copy of his witness statement was filed in accordance with the Commission's orders and served on the other side last week.

PN830

THE VICE PRESIDENT: Mr Reitano, do you have objection to Mr Franzi's witness statement?

PN831

MR REITANO: I object to paragraphs 75, 76 and 82(d) all on the basis that they're hearsay.

PN832

THE VICE PRESIDENT: Yes, Mr Tehan, it does appear to be pretty clear-cut hearsay which is not capable of being tested with this witness.

PN833

MR TEHAN. That's true, your Honour, but it's relatively basic information that almost anyone in the community knows, that Australia has the lowest unemployment rate for a very long period of time - it might not be 30 years but certainly in the last 10 or 15 years. It surely would be - - -

PN834

THE VICE PRESIDENT: I don't think it's that statement about the low unemployment rate that's the centre of the objection. It's really the statements that talk about Australia Post's labour shortage.

PN835

MR TEHAN. Your Honour, I think it could be a matter of you taking judicial notice of the fact that people in different states, in particular Western Australia and Queensland, are said to be having difficulty sourcing labour. It would be a reasonable thing to say that if you want casual labour at a particular time, that that's going to be difficult to obtain.

PN836

THE VICE PRESIDENT: I think that's a submission that you can make without fear of submitting a contradiction from Mr Reitano, but that isn't again a general statement about the state of affairs in the economy at large, rather than the specific statements that relate to Australia Post. Mr Reitano, do you have any difficulty with, as it were, taking judicial notice of the labour shortages in Western Australia and Queensland and the current historic low of unemployment?

PN837

MR REITANO: I don't have any difficulty in inviting your Honour to take judicial notice that there might be a historic low level of unemployment. I'm not sure if that's right, but it's something like that. I have no difficulty with that. I can't say anything about Queensland and Western Australia. I just don't know and I don't have anyone here to instruct me in respect of those matters. I would have thought if my learned friend wanted to prove those matters that are contained in those paragraphs, it potentially probably wouldn't have been a difficult thing, given what's in the paragraphs but if he chooses not to call those people, that's his difficulty.

PN838

MR TEHAN. Your Honour, this is an unfortunate little issue to kick off on. We filed this material on Thursday of the week before last, I think, might be - I beg your pardon, a few minutes after 5 o'clock on the Friday, in accordance with the directions, Friday of the week before last.

PN839

MR REITANO: I understand the directions were to be obeyed by the Thursday, but in any event I'm not going to take any issue about that.

PN840

MR TEHAN. It was the Friday. The original orders were the Monday, and then we didn't receive any material challenging any of this material from the union in accordance with the order.

PN841

THE VICE PRESIDENT: It doesn't have to.

PN842

MR TEHAN. Your Honour, the directions were that any submissions which the union had to file were due to be filed by Thursday of last week. On Monday we wrote and said, "You haven't filed anything," and we promptly got a couple of - a couple of hours later we got some material which has presumably been sent to the Commission as well.

PN843

If there was any question about this sort of basic material about labour shortages, it would have been a very simple process to let us know that that's an issue in dispute - - -

PN844

THE VICE PRESIDENT: Mr Tehan, I propose to reject the paragraphs, but I do propose to take effectively judicial notice of the tight labour market in Australia at the moment and you can make a submission based on that.

PN845

MR TEHAN. Okay, your Honour.

PN846

THE VICE PRESIDENT: Any other objections, Mr Reitano?

PN847

MR REITANO: No, they are the only objections, your Honour.

PN848

THE VICE PRESIDENT: I'm not sure what exhibit number we're up to here. Does Mr Avallone know?

EXHIBIT #E1 STATEMENT OF BEN JUSTIN FRANZI

PN849

THE VICE PRESIDENT: Any cross-examination, Mr Reitano?

PN850

MR REITANO: Yes, your Honour

PN851

MR TEHAN. I'll call Mr Franzi then, your Honour.

<BEN JUSTIN FRANZI, AFFIRMED [10.11AM]
<EXAMINATION-IN-CHIEF BY MR TEHAN [10.12AM]

PN852

MR TEHAN. Mr Franzi, would you tell his Honour your name and your work address?---Ben Justin Franzi, (address supplied).

PN853

Have you made a witness statement in this matter?---I have.

PN854

Did you bring a copy with you in the box?---No.

PN855

Your associate has got a copy?

PN856

THE VICE PRESIDENT: Yes.

PN857

THE WITNESS: Thank you, sorry.

PN858

MR TEHAN. Is that witness statement true and correct in every particular?
---Yes, it is.

PN859

Thank you.

PN860

THE VICE PRESIDENT: Mr Reitano.

<CROSS-EXAMINATION BY MR REITANO [10.13AM]

PN861

MR REITANO: Mr Franzi, I'm going to come to some specific questions about your affidavit in a moment, but can I ask you some general questions first. As I understand it, you are the person that Australia Post puts forward to tell us about, I'll try and use a neutral word, the difficulties that Australia Post will have in dealing with industrial action that the CEPU might take over the coming months?
---That's correct.

PN862

Do I take it that you are the person within Australia Post, that is the single individual within Australia Post who would be able to answer any questions I have concerning that topic?---No, I would not be the single person.

PN863

You are one of the people?---Correct.

PN864

Of how many?---I'm not sure I can answer that.

PN865

Certainly before you prepared your witness statement you spoke to those other people in order to make sure that everything that was important and relevant was contained in your witness statement?---Correct.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN866

Certainly you have not left anything out of your witness statement that would have been important to that topic, when I say that topic, dealing with the CEPU's proposed industrial action over the coming months?---Correct.

PN867

You spoke to, I don't want a precise figures, but approximately how many people in Australia Post about that matter before you prepared your witness statement?
---Anywhere between 10 and 20.

PN868

You spoke to, I presume, the lawyers?---Correct.

PN869

You attended meetings?---Correct.

PN870

You prepared documents?---Correct.

PN871

At least part of that would have involved, as I understand it, discussions about what Australia Post proposed to do - I withdraw that - what Australia Post was going to do in the event that the CEPU commenced its industrial action, correct?
---Correct.

PN872

That is what defensive strategies Australia Post would put in place?---What mitigation we would put in place.

PN873

When you say mitigation, to mitigate what were or would be the harmful effects of industrial action?---Correct.

PN874

Indeed, I assume you're aware that his Honour made an order at the beginning of September requiring a ballot to be undertaken in respect of the proposed industrial action?---Correct.

PN875

You prepared your statement, I think, about 14 September?---Yes.

PN876

Are you aware that that was about 10 days after his Honour made his order?---I wasn't aware of the precise dates.

PN877

Were you aware that it was certainly more than a week ago?---Yes.

PN878

Were you involved in dealing with the steps that Australia Post was going to take to mitigate, to use your word, the harmful effects of the industrial action prior to preparing your statement?---No, I don't believe so.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN879

The first time you became an important person in the process of dealing with the harmful effects of the proposed industrial action, was on or about 14 September?
---Correct.

PN880

Do you know what Australia Post had put in place prior to on or about
14 September to deal with the harmful effects of the proposed industrial action?
---I'm aware of the mitigation strategies that have been held.

PN881

No, that wasn't my question. I'll try and be clearer. Between the beginning of September, 1 September or thereabouts, and 14 September when you prepared your affidavit, are you able to tell me what steps Australia Post was developing in that period to deal with the potential harmful effects of industrial action that the CEPU was going to take?---I believe so.

PN882

Certainly, after 14 September you could tell me about those matters?---Correct.

PN883

Can we take it that these are matters that would be important, not only for you but for others within Australia Post to plan or think about in advance?---Correct.

PN884

I want you to start at the beginning and tell me each of, in list form, and in as much detail as you can all of the defensive strategies that Australia Post is intending to take to deal with the CEPU's proposed campaign of industrial action?
---Firstly, we would look at - - -

PN885

No, no, I'm sorry. I don't want to interrupt you, not what we would look at, right, what are the steps that have been put in place?---Nothing has been put in place as of today, there's only been planning conducted.

PN886

Australia Post since the beginning of September up until today, 26 September, has actually done nothing by way of putting in place any steps to deal with the potential industrial action that the CEPU is going to take?---No, that's not correct.

PN887

That's what you just said, I think. Just pardon me a moment. Is that what you just said? You said nothing had been done, there was just planning?---Correct.

PN888

That's correct isn't it?---Correct.

PN889

3 September was the day his Honour made the order, between 3 September and 26 September, other than planning, nothing has been put in place to deal with any potential industrial action?---I'm not sure I can answer that.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN890

I think you did a moment ago and you agreed with me that nothing had been done.

PN891

THE VICE PRESIDENT: To the best of your knowledge?---To the best of my knowledge, planning has been conducted. It's difficult to put mitigation strategies in place with the date unknown.

PN892

MR REITANO: Can you tell me now what the planning or what the mitigation strategies are?---Correct sourcing of casual staff; sourcing of staff from normal operational areas both to address labour shortages; lodgement planning with major customers, specifically the AEC, and other major customers; arrangements with contractors for provision of services and scheduling of mail services in terms of ..... and product.

PN893

Could I just take them, and I'll take them in a slightly different order to the way in which - well, firstly I should ask you. Have you been involved in any of the concrete or detail in relation to those five matters that you identified?---I have.

PN894

Could I just take them in a different order to the way you gave them because I think it might be easier. In respect of contractors, have you been involved in engaging any of the contractors or the proposed contractors?---Not myself specifically.

PN895

Have you spoken to any contractors?---No.

PN896

Have you seen any contracts?---No.

PN897

Have you been provided with any information about those contracts?---Yes.

PN898

I'll come back to that in a moment. Do you have the authority to enter into those contracts?---Yes.

PN899

Who are the contractors?---Linfox, as a specific example, Qantas, AAE - - -

PN900

Sorry, what was that one?---Qantas.

PN901

No, the next one?---AAE are the other examples that I have specific - - -

PN902

You have specific knowledge of each of those?---Yes.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN903

Just once again, take one at random, Linfox, the first one your mentioned, what is the contract between Australia Post - or what is the proposed contract between Australia Post and Linfox?---Linfox provide line haul services.

PN904

Provide?---Line haul services.

PN905

In the event of industrial action, what would Linfox be required to do?---They would provide additional line haul services compared to what they do today.

PN906

When you say line haul services, what do you mean by that?---Transporting mail from Melbourne to Sydney, for example.

PN907

Under the terms of the contract, would Linfox be given notice that they're required to provide that particular line haul service on a particular day?---Yes, correct.

PN908

Trying to deal with it in a practical sense, if Linfox were required to provide line haul services on Friday of this week, someone would ring them today and say, "We require you to provide X-service on Friday"?---A difficulty next day, but a couple of days into a week would provide ..... ability to get that service provided.

PN909

Today is Wednesday, tomorrow is not Friday?---Thursday, yes.

PN910

What I said was, if something was required to be done on Friday, you would ring Linfox today and say, "We require you to provide this service on Friday"?
---Correct.

PN911

Two days' notice?---In this scenario, yes.

PN912

Is that a special contract that you've negotiated with Linfox?---We have a standing contract with Linfox.

PN913

That wasn't my question again. My question was, and I was very careful about it and I asked it for a particular reason. My question was, is that a special contract with Linfox?---I'm not sure I understand the question.

PN914

Is that a different contract to any existing contract that Australia Post has with Linfox?---No.

PN915

Have you entered into any contract with Linfox over and above the existing contractual arrangements?---No.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN916

Have you or anyone in Australia Post spoken to Linfox about the prospect of shortening the period with which Linfox need to be given notice about the provision of line haul services?---Again, I'm not sure I understand the question.

PN917

As I understand it, from my question a moment ago, you agreed with me, and tell me if I misunderstood, that if you required line haul services on Friday, you would ring Linfox today and say, "We require this service on Friday," correct?---Correct.

PN918

Has anyone in Australia Post spoken to, between 1 September or 3 September and today, to your knowledge, anyone at Linfox and said, "Look, we know you currently provide a service on about two days' notice, but we may need a service on about one day's notice. Are you able to accommodate us"?---We have spoken to Linfox.

PN919

Firstly, have you spoken to Linfox?---Not personally, no.

PN920

Someone else in Australia Post has spoken to Linfox?---Correct.

PN921

The response of Linfox to that question was?---They were able to provide services, however, notice would be required.

PN922

Once again, my question was focusing on saying to Linfox, "Look, we know we currently provide you with two days' notice, we want to deal with you on one day's notice." Has anyone had that conversation with Linfox?---The two day example is an example that you used. We don't generally provide - we try to provide additional notice if possible, enabling Linfox to provide the service.

PN923

It was an example I used with which you agreed?---It is, and in that scenario yes, we would be able to provide the services. Yes, we have spoken to Linfox around shortening the period and they are capable of providing the services.

PN924

That is on a shorter period of notice?---Correct.

PN925

If the CEPU, for example, and I'm not saying that this can happen in any real sense, were to say today, "24 hour rolling stoppages will start on Friday," you would be able to ring Linfox and say, "We need additional line haul services for Friday"?---Correct.

PN926

I don't want to go through each of the others unless you tell me I need to, but the same scenario would apply with Qantas and AAE, correct?---Correct.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN927

Is there any need to differentiate those from the example we used in respect of Linfox?---No.

PN928

Next, can I deal with lodgement planning, which was the second matter you dealt with. I notice in your affidavit that you are familiar with the AEC's website?
---Correct.

PN929

Pretty interesting, isn't it. When I see that you've looked at their website, have you looked at anything else other than their website?---In terms of the AEC?

PN930

Yes?---We've had considerable dealings with the AEC.

PN931

I understand that, but I notice that there was a need for you to look at their website?---To confirm the planning around the timetable for the election.

PN932

By the way, when is the election?---I can't answer that question.

PN933

Is it the case that the best way to acquire information and accurate information from the AEC, is to actually talk to them?---We have done so.

PN934

Forget we. Have you?---Yes.

PN935

You don't refer in your affidavit to any conversations that you've had with the AEC, do you?---No.

PN936

You agreed with me at the beginning of all these questions that I would find anything that was important in your affidavit. You recall that, don't you?
---Correct.

PN937

What you do refer to, which appears to be much more important than any dealings you've had with the AEC, is the fact that you've viewed their website?---Correct.

PN938

Is the AEC the only organisation that you've spoken to, you have spoken to in respect of lodgement planning?---Correct.

PN939

You haven't spoken to anyone else?---Not myself personally.

PN940

Do you know whether other people within Australia Post have spoken to other people about lodgement planning?---Yes.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN941

Who are the people on Australia Post's side who have done that?--- Greg ..... Tina .....

PN942

Who have they spoken to?---In terms of the customer, Brisco.

PN943

Sorry, who?---Brisco.

PN944

Crisco, as in C-r-i-s-c-o?---As in Brisco.

PN945

Who are they?---Brisco?

PN946

Yes?---A major customer.

PN947

What do they do, sorry, I - - -?--- .....

PN948

That's the only other customer that's been spoken to?---That I'm aware of.

PN949

That's right, I understand that. In respect of the AEC, and this might touch on some matters in your affidavit so if you need to refer to it, what discussions have you had with the AEC?---We've been doing a long term - - -

PN950

Forget we, sir. What discussions have you had with the AEC?---We've been planning the election process around postal votes.

PN951

You've been doing that since before 1 September?---Correct.

PN952

On 1 September or thereabouts, I'm not holding you to that date, but that was the first time that you probably would have heard that there was some prospect of industrial action, correct?---Correct.

PN953

The first time that you personally became involved in anything to do with planning or putting anything in concrete about proposed industrial action was sometime on or about 14 September, correct?---Correct.

PN954

Any dealings you had with the AEC that I'm interested in, as I understand your answer to my questions, are those which you had after 14 September or thereabouts?---Yes.

PN955

Have you had any discussions with the AEC after 14 September concerning planning for the election?---Yes.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN956

Have you had those discussions in the context of the proposed industrial action that the CEPU might take?---It has been discussed.

PN957

With you?---Correct.

PN958

Can you give me any reason why those discussions don't appear in your statement?---No, I can't.

PN959

Is it because they are unimportant to the issues before his Honour?---No, they're not.

PN960

THE VICE PRESIDENT: Sorry, you're agreeing with him or disagreeing with him?---They would be important to this discussion, however, they have not been included in the witness statement.

PN961

MR REITANO: You're unable to put forward any reason why they haven't been included in the witness statement?---No.

PN962

Have you discussed with the AEC, and I just want to take a couple of examples at the moment. Have you discussed with the AEC the question of the troops in Iraq receiving their ballot papers that's referred to in your affidavit?---We have.

PN963

What have you discussed with the AEC about that?---The impact of a delay caused through the mail stream of the arrival of the mail to troops in Iraq.

PN964

Once it hits Iraq it's of no concern to Australia Post. It's either a concern of the Defence Forces or of, I suppose, Iraq Post?---We don't use Iraq Post. We use the Defence - - -

PN965

It's got nothing to do with Australia Post?---Transporting to that facility is the Australia Post charter.

PN966

Have you spoken to the AEC about whether they could make alternative arrangements?---No, we have not.

PN967

Have you spoken with the AEC about the prospect that the AEC might need to make alternative arrangements?---No, we have not.

PN968

I'll just use two examples for the moment. Have you spoken to the Department of Defence about the prospect that it might need to assist in making alternative arrangements together with the AEC for people in Iraq to vote?---I'm not personally aware of those discussions.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN969

None have been conducted, to your knowledge?---To my knowledge, no.

PN970

You don't see from a practical point of view any problem with those discussions occurring, do you?---No, I don't.

PN971

Nor do you see from a practical point of view those discussions giving light to some resolution of the "problem", correct?---No, I don't think I'd agree.

PN972

What's the problem that you foresee?---I don't believe there are a lot of options that the AEC or the Defence Force could use, particularly the AEC to move that mail.

PN973

You don't know?---Not personally, no.

PN974

Have you spoken to the AEC about whether they should speak to DFAT, the Department of Foreign Affairs and Trade, about whether it could assist in making alternative arrangements for troops in Iraq to receive ballot papers?---I'm not aware of the AEC talking to DFAT.

PN975

THE VICE PRESIDENT: Can I just ask a question at this point.

PN976

Isn't the Defence Department involved in the final movement of the mail in any event?---The Defence Department is involved once it's handed over ..... so it's handed over in Iraq, been moved to Iraq.

PN977

Once it arrives in Iraq it's put into the hands of the Defence Department who then distributes the mail?---Exactly.

PN978

Your difficulties are stopped once you get it into some port in Iraq?---Correct.

PN979

The airport or seaport?---I imagine, yes.

PN980

MR REITANO: You can't tell his Honour anything about the capacity of Defence, for example, to move it from the AEC or some place in Australia to the port in Iraq?---No, I can't.

PN981

Because no discussions have taken place about that, have they, involving you?
---Not involving me.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN982

And not involving anyone from Australia Post as far as you're aware?---Not as far as I'm aware.

PN983

That's two. Can I deal with scheduling of mail services. That was another plan that you said you could face. What's that about?---It's the prioritisation process in terms of mail as it comes through the ......

PN984

As I understand it, more urgent mail would get priority. Is that what you're suggesting?---That's correct.

PN985

More urgent mail might be, for example in the context that we're talking, ballot papers - sorry, I withdraw, ballot papers for the federal election?---No.

PN986

What would it be then?---There's a difficulty in separating out mail streams so within a mail stream, if it's an addressed mail piece with a service commitment
it's difficult to say that came from the AEC, it says it came from another customer. It's a prioritisation of product types. So there are different mail types, it's a prioritisation .....

PN987

Give us a practical example?---Addressed mail versus unaddressed mail. Unaddressed mail takes a longer delivery timeframe, I think it's five days delivery timeframe and addressed timeframe might be two days. So the priority would go to the addressed rather than unaddressed.

PN988

Is that what you mean by scheduling of mail services, that is effectively that addressed mail gets priority over unaddressed mail?---It's more complicated than that. You've asked me for an example.

PN989

Yes, yes, but for a moron like me, that's the best way I can understand it. Is that fair?---That's fair.

PN990

I might come back to that one in a minute but can I just go to sourcing of casual staff. Firstly, have you personally been involved in negotiations with - I assume that's done through agencies?---Correct.

PN991

Have you personally been involved in any discussions or negotiations with those agencies about - don't answer before I finish - providing casual staff?---No.

PN992

Are you aware of whether those negotiations have been conducted?---Yes.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN993

Are you aware of the detail of those negotiations?---High level.

PN994

I'm sorry, I'm not sure - high level?---I'm aware of the detail to a limited extent.

PN995

Are you aware of, for example - give me, once again, a practical example of one of the agencies?---There have been discussions held in all states with a range of agencies about sourcing labour.

PN996

Can you tell me who the range of agencies is by name?---I can't tell you a specific agency name.

PN997

You've been involved in the detail but you don't know the identify of the specific agencies?---I said I've been involved at a high level, so no, I didn't - I said I did not know the detail.

PN998

I thought you said you knew some of the detail. I'm not being critical. You don't know the identity of the agencies?---No, I don't.

PN999

Do you know the identity - do you know what the subject-matter of the negotiations or discussions with those agencies have been?---Yes.

PN1000

What's that?---Sourcing labour.

PN1001

If someone walked up to an agency and said, "Source labour", you know, it doesn't make a lot of sense?---We have existing contracts with agencies and we've spoken to them about the ability to source labour within timeframes..

PN1002

Once again, your understanding or knowledge is that there's been no special arrangements over and above the existing agency arrangements that are in place that have been made?---No, that's not my understanding.

PN1003

I see. Well, I thought you said something about that but let's explore it. Have there been different or special contracts been entered into with the agencies to deal with the proposed industrial action?---Not that I'm aware.

PN1004

Are the only contracts that you're aware of that are in place to provide casual staff, those that have been in place for some particular period of time?---Correct.

PN1005

That is, there's been nothing unusual or peculiar or different that's been done in respect of the provision of agency staff or casual staff from those agencies to deal with what might happen in the future?---No. That would be correct.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1006

There is some contract that is special or different or peculiar to deal with might happen in the future?---There's been additional training and consultation taking place around sourcing labour within an existing contract.

PN1007

What are the features of that planning or "consultation"?---The consultation has been around the ability to resource labour within the existing framework to the requirements that we'll need to meet.

PN1008

My point is, within the existing framework, that is nothing has been done out of the existing framework?---Again - no.

PN1009

For example, if we want some agency casuals at Sydney West to work tomorrow, we have an arrangement with an agency to provide those people, correct?
---Correct.

PN1010

I said tomorrow quite deliberately, right?---Yes.

PN1011

If I want to get, as the manager of Sydney West facility, six casuals to come in and do some mail sorting, work of an unskilled nature, I would ring agency A and say, "We need six casuals tomorrow"?---Correct.

PN1012

We need them to work between whatever hours?---Correct.

PN1013

You wouldn't be able to tell me any more about the detail of the conversation or what practically would occur after that, would you?---No.

PN1014

One thing you surmise, from what I said, is that the six casuals would turn up tomorrow?---Correct.

PN1015

I made an incomplete note about the fifth. I think that's four of the matters that you told me. You said something about non-operational staff in terms of the planning?---Admin staff would be sourced.

PN1016

When you say admin staff, are they managers?---Managers and other staff.

PN1017

People like yourself?---Correct, non-operational staff.

PN1018

People who don't work at Sydney West facility day in, day out?---Correct.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1019

People like yourself would be called in to do the work of - I'm not trying to be silly about this, when I say yourself, you know what I mean - will be called in to do the work of sorting mail?---Correct.

PN1020

If, for example, the CEPU were able to say - and I'm not saying for one moment that this is what will happen - but if the CEPU were able to say that "Tomorrow at midday we're starting a 24 hour stoppage" you might find yourself tomorrow at midday at Sydney West facility sorting mail?---Not at Sydney West but - - -

PN1021

At somewhere?---Correct.

PN1022

There would be no impediment to that happening between now and then, correct?
---No ......

PN1023

What's the difficulty, sir?---I have obligations as part of my contract, part of my employment that need to be met.

PN1024

What's the difficulty?---Other duties.

PN1025

I'm not being deliberately obtuse, I generally am, but - - -

PN1026

THE VICE PRESIDENT: Deliberately obtuse?

PN1027

MR REITANO: Yes.

PN1028

My question is, what is the difficulty that would stop you from dealing with what is an urgent situation that might emerge tomorrow at midday to ensure that the mail was sorted and got out?---Potentially other urgent situations.

PN1029

Potentially other urgent situations?---Correct.

PN1030

You don't tell us what they are but they're in the pipeline.

PN1031

THE VICE PRESIDENT: I take it all of the administrative, the non-operational staff that you're referring to that have got regular duties that ordinarily occupy them full time at work and if they're diverted to operational functions in order to mitigate the effect of industrial action, that their ordinary duties will not be being done during that time?---That's correct.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1032

That, if you want to start listing a range of duties, we'd no doubt spend several days here going through the various functions performed by thousands of employees?---Correct.

PN1033

MR REITANO: At the very most, that would create some inconvenience but nothing more?---I'm not sure I can answer that.

PN1034

You don't point to any emergency situation or any urgent thing that would need to be done that could not be done, do you?---Myself personally or - - -

PN1035

Yes. I can't ask anyone else, I'm asking you?---There would be urgent situations that I would have to deal with that would stop me going into the field, correct.

PN1036

It would create some either inconvenience for getting the mail sorted or some inconvenience in terms of you performing your duties, but nothing more than that because there would be contingency plans as to who stays at their desk and who goes to Sydney West, for example?---Correct.

PN1037

Those plans, however, as to who goes to Sydney Wet and who stays at their desk have not been developed yet?---No, that's incorrect.

PN1038

THE VICE PRESIDENT: That's incorrect?---Yes.

PN1039

MR REITANO: Do I find a document that tells me in the event that there's a
24 hour stoppage at some stage in the future, where you will be?---No.

PN1040

Do I find a document that tells me if there's a 24 hour stoppage at some stage in the future, a document where each and every administrative staff person will be?
---No.

PN1041

Those plans don't descend to that level of detail?---No.

PN1042

What level of detail do they descend to?---A complete resource pool which we allocate according to where the shortage is being occurred.

PN1043

Do I find a document that tells me what that "complete resource pool" is?---I have not seen it personally. I believe it would exist.

PN1044

As far as you know, no such document has been developed?

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1045

THE VICE PRESIDENT: No, he just said he believes it exists. He hasn't seen it but he believes it exists.

PN1046

THE WITNESS: I haven't seen it but - - -

PN1047

MR REITANO: Has someone told you the document exists?---Yes.

PN1048

It hasn't been provided to you for the purpose of your statement?---No.

PN1049

Nor do you know what the detail of the document is. It would be a waste of time for me to ask you about the detail of the document?---Correct.

PN1050

I want to ask you some questions about the plans that Australia Post has for the future. In terms of everything that I've asked you about, as I understand it, there is nothing that is - sorry. I withdraw that. Can you tell me this, if Australia Post is unsuccessful here and the CEPU is required to give only three days' notice of proposed industrial action - I withdraw that. If the CEPU is unsuccessful here and it is required to give seven days' notice of industrial action rather than three, what is it that Australia Post proposes to do in that additional four days to deal with the adverse impact of industrial action?---It provides the ability to source additional labour to meet shortages, to schedule and prioritise mail flow, to arrange lodgement procedures with major contractors and source contracting services.

PN1051

These are all things that are within the capacity of Australia Post to deal with, forget notice, today, correct?---Correct.

PN1052

What would be different - you understand the word "different"?---I do.

PN1053

What would be different if at some stage in the future the CEPU was required to give Australia Post seven days' notice as against three days' notice in respect of those matters that you've identified?---I'm not sure I understand the question.

PN1054

You understand that what Australia Post seeks here is that the CEPU provides seven days' notice of its intent to take industrial action, correct?---Correct.

PN1055

You understand that in ordinary circumstances ..... these ones, the CEPU is required to give three days' notice of industrial action, correct?---Correct.

PN1056

What do you say Australia Post would do differently if it had those additional four days' notice?---It provides a greater ability to make it operationally possible.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1057

You have that ability to, for example, engage contractors and so on today without any notice, correct?---Correct.

PN1058

On three days' notice you would have every prospect of doing those things, correct?---No, I don't believe so.

PN1059

Do you say that you couldn't go to Linfox today and say, "We want to reduce the notice period for the provision of line haul services?---No, I'm not saying that.

PN1060

Indeed, you agree with me that even under the existing arrangement Linfox do that at least on some occasions on two days' notice, correct?---Correct.

PN1061

All of that wouldn't depend upon there being an additional four days' notice, correct?---No, it would not.

PN1062

That's the same in respect of, because you agreed that it was parallel when I asked you, in respect of AAE and Qantas, correct?---Correct.

PN1063

Similarly, in respect of - and I'm not going to go through each of these - but similarly in respect of the provision of casuals through agencies, that would not be enhanced by there being seven days' notice rather than three days' notice, correct?
---What do you mean by enhanced?

PN1064

There would be no advantage in providing the additional four days' notice?---No, that's correct.

PN1065

You haven't been involved in anything, but as I understood your evidence you said to me that if I wanted six casuals out at Sydney West facility tomorrow, I would ring up an agency and say, "Provide six casuals"?---For six casuals, yes.

PN1066

You expect that they would be provided?---The six casuals, yes.

PN1067

You don't know,. because you haven't been involved in, as I understand it, the details of any of the negotiations with those agencies, about whether that would change in the future if there was proposed industrial action, do you?---No, I don't agree with that statement.

PN1068

When was the last time you dealt with an agency to provide casuals?---Never personally.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1069

Any questions I ask you about that are based on what other people have told you?
---Correct.

PN1070

Other people who Australia Post could have brought here and put in the witness box and had me cross-examine?---Correct.

PN1071

In respect of lodgement planning, that could all be dealt with today again, correct? Doesn't depend on any period of notice?---No, that's not correct.

PN1072

Can I ask you a slightly different question? One of the things you deal with and you seem to understand in your affidavit is that part of the proposed industrial action is 48 hour rolling stoppages, right?---Yes.

PN1073

I want you to assume that the CEPU can do this in three days - the CEPU today will provide notice that in three days time 48 hour rolling stoppages will commence for an indefinite period?---Yes, I understand.

PN1074

Right. What is it that Australia Post will do at that point?---The five or six actions that I've previously mentioned.

PN1075

Okay. And I want you to assume that in seven days - that in contrast to that the CEPU today gives notice that 48 hour rolling stoppages are going to start on an indefinite basis in seven days time. What is it that Australia Post will do at that point?---The same actions.

PN1076

Right. Exactly the same actions?---From Australia Post's point of view, yes. From a service provider's point to provide the services, no.

PN1077

I'm sorry, I don't understand that, you'll have to help me?---The ability for - t is my belief that ability to provide additional labour over six casuals to 600 casuals would be aided by Saturdays.

PN1078

Right, would be aided by. And how long would it be proposed to have that casual workforce in place?---For the requirement.

PN1079

And I want you to assume that the federal election occurs on 1 November for the purpose of my next question. No, that's not a good one. Let's take 1 December. I want you to assume that the federal election is to take place on 1 December, and assume it's a Saturday, and that the CEPU gives three days notice of the commencement of rolling stoppages to start next Saturday, Sunday. What is it that Australia Post would do different in respect to that federal election on 1 December if it had three days notice as against seven days notice of those rolling stoppages?---The actions would be the same.

**** BEN JUSTIN FRANZI XXN MR REITANO
PN1080

Is it fair to say - sorry, you'd agree with this proposition wouldn't you, that federal elections come every three years or thereabouts usually?---Correct.

PN1081

And similarly Christmas comes once a year?---Correct.

PN1082

And that one of the busiest periods for Australia Post every year, each and every year is between October and December?---Correct.

PN1083

And there's nothing extraordinary about the period between October and December being one of the busiest periods for Australia Post?---In isolation, yes.

PN1084

And you would agree with me that there is nothing that Australia Post would do differently in terms of the example I gave to you about 48 hour rolling stoppages if it had three or seven days notice, or 14 days notice for that matter?---Not to my understanding.

PN1085

You would agree with that, that there'd be no difference?---Yes.

PN1086

THE VICE PRESIDENT: But you maintain that although you wouldn't do anything different the effectiveness of those mitigating actions you think will be increased?---Yes, your Honour.

PN1087

MR REITANO: I think there was just one matter, sir, if you'd just pardon me a moment, that I was going to pick up with you. Thank you very much.

PN1088

THE VICE PRESIDENT: Mr Tehan?

PN1089

MR TEHAN: Thank you, your Honour.

<RE-EXAMINATION BY MR TEHAN [10.56AM]

PN1090

MR TEHAN: You just answered his Honour's question where his Honour asked you about the effectiveness of the mitigation would be increased?---Yes.

PN1091

You said yes. Why is it that you would seek to give Linfox more notice?---It requires an additional ability to meet the capacity or their capacity ....., so they have an increased ability to provide the service.

PN1092

Would you tell his Honour what linehaul drivers do or what the linehaul function is within Australia Post?

**** BEN JUSTIN FRANZI RXN MR TEHAN
PN1093

THE VICE PRESIDENT: I think I understand large trucks carrying bulk mail on the nation's highways between mail centres?---Yes.

PN1094

MR TEHAN: For what it's worth, your Honour, what do they charge - what's the normal process in the Melbourne-Sydney run?---Just over the border from Melbourne to Sydney - sorry, Victoria and New South Wales.

PN1095

Do you know the name of the town?---It's Tarcutta.

PN1096

And how many trucks go from Sydney each night, do you know?---Six or seven.

PN1097

And from Melbourne?---The same.

PN1098

And what happens then, can you just tell his Honour, do you know what happens then?---A changeover a drivers. The Sydney drivers go back to Sydney, the Melbourne drivers come back to Melbourne.

PN1099

And they drive the trucks that have come from Melbourne, bring it back to Sydney?---Correct.

PN1100

And the Melbourne drivers bring it back to Melbourne?---Correct.

PN1101

When you were asked about the Linfox contract, what would Linfox typically do when you ask them in accordance with their standard contract, what would - in that linehaul route?---Probably the - very similar process. I'm not sure of the details.

PN1102

Normally. Say you ring Linfox today, is that because you need an extra truck coming up?---Correct.

PN1103

Would Linfox normally be asked to supply six trucks a night?---No, not in additional to their current services.

PN1104

Yes, thank you. Just about the question on Iraq, what is Australia Post's responsibility so far as getting the mail to soldiers in Iraq for example?---Australia Post will take the mail from the lodgement point that the AEC lodges the mail for the movement via Sydney and transport it to their handover point ......

PN1105

Can you contract that out to anyone else?---I don't believe so.

**** BEN JUSTIN FRANZI RXN MR TEHAN
PN1106

You made the point, or Mr Reitano asked you about providing six casuals at Sydney West facility?---Yes.

PN1107

Is there a difference between the circumstance you then said in a later question about supplying 600?---It's a very different circumstance.

PN1108

Can you get 600 casuals tonight for example?---I do not believe so.

PN1109

But if you were to give a week's notice?---It would increase the potential to get the 600, yes.

PN1110

Not because of anything you do but because - - -

PN1111

MR REITANO: I object to leading and I object to the relevance of all of this given that the witness said he had no knowledge of any of the detail of this, he'd never dealt with agencies before. It's all speculative, it's like a whole lot of other stuff that's here.

PN1112

THE VICE PRESIDENT: Well, at the very least it's leading and the objection is put on that basis, Mr Tehan. Thank you. That doesn't mean you can't ask questions on the top in a non leading fashion.

PN1113

MR TEHAN: Yes, thank you.

PN1114

In dealings with labour supply companies what are the processes that they follow that you're aware of in sourcing additional labour, in sourcing the casuals to Australia Post?---I'm not sure I can answer that.

PN1115

Do you know if it's easy to get casuals at short notice?---Through conversations with our HR staff, no, it's becoming increasingly difficult to get HR - to get casual staff at short notice.

PN1116

THE VICE PRESIDENT: Mr Tehan, Mr Reitano's taken objection to leading, can you do your best to ask some questions in a non leading fashion rather than just provoke further delay.

PN1117

MR TEHAN: Well, what do you know of - look, I think I'll leave it go, your Honour. I think it's a matter of basic knowledge around the place, casuals are not easy to obtain.

**** BEN JUSTIN FRANZI RXN MR TEHAN
PN1118

How many facilities does Australia Post have for example in New South Wales?
---I'm not sure I can give you an exact number on New South Wales. We have so many international. New South Wales would have the lion's share - not the lion's share but 50 per cent.

PN1119

Do you have any idea of the number of casuals that might be required to be engaged on any particular night if there were industrial action taken?---The only indication I have, because I'm not able to estimate the number of staff that go out according to industrial action, it would probably range around 500 a night during the peak period - sorry, in non peak period situations, and that would double during the peak period situation, so we would potentially need in excess of that.

PN1120

Do you know which bans will apply at any particular facility on any particular day?---Can you repeat that?

PN1121

Do you know which bans are going to be in operation on any particular day within Australia Post?---No, I don't.

PN1122

Does that affect your planning?---Yes, it does.

PN1123

In what way?---There's a significant different between sourcing staff in Sydney to sourcing staff in country mail centres where they don't have the extent of the labour pool they're able to - there's just not casual labour available to those areas, nor is there admin staff available to those areas. So we can source the labour pool within metropolitan Melbourne, metropolitan Sydney out of head office in those states, but outside those metropolitan areas it's quite difficult to source labour pools, therefore not knowing where the stoppage is makes it difficult to plan.

PN1124

Does it make a difference if there's a stoppage or if there were bans imposed?
---Yes, it does.

PN1125

In terms of planning?---Correct, yes.

PN1126

So is there a limit to how far you can do planning?---There is.

PN1127

MR REITANO: That's a leading question, your Honour.

PN1128

MR TEHAN: If your Honour pleases.

**** BEN JUSTIN FRANZI RXN MR TEHAN
PN1129

THE VICE PRESIDENT: Mr Franzi, the parliament has seen fit to legalise industrial action in particular circumstances and it's called protected action for the purposes of bargaining and all other industrial action that is affecting them lawful, and it's in the contemplation of parliament that the industrial action is supposed to be able to apply pressure to the other side. It's not just employees and unions can take it, employers can take it as well, they can lock out employees. It's supposed to be able to inflict economic harm on the other party as a way of putting pressure on the other party to come to an accommodation in respect of stalled bargaining. You're the number one logistics manager in Australia Post for practical purposes?
---I'm a member of the team.

PN1130

Yes. Head of the team?---The head of the network customer compliance team, yes, within the national logistics as a senior member.

PN1131

I just want to get a sense from your perspective of where you sit, which is pretty close to the top of the tree in terms of logistics. What sort of practical difference do you think it will make if there's an extension of the time period? Are you going to be able to eliminate the adverse effects of industrial action?---I don't believe we'd be able to eliminate it, your Honour.

PN1132

Do you have a sense that you're going to be able to reduce it by 50 per cent or 70 per cent or 20 per cent?---That's a difficult question to answer not knowing the type of industrial action. We believe that ..... didn't indicate for this, especially to ..... process would be greatly increased ..... provide us that we ..... addition .....

PN1133

Presumably you're going to give priority to the election related material?---Yes, correct.

PN1134

And that will be a priority whether it's three days or seven days or some days in between that the notice is given?---Because of the nature of the mail service in terms of the inability to ..... service, it's very difficult to say priority ..... because it becomes priority ...... So I can't go and pull an AEC letter out once it's gone into the processing and the delivery centre and say deliver this one. I'm only able to give a whole ..... type .....

PN1135

I understand?---It's a complex supply chain which doesn't enable identification ......

PN1136

You see, it costs employees to take industrial action. The Act requires them to be docked a minimum of four hours pay, they don't get paid for the time that they take industrial action. And if you're able to better defend against it, it means that the employees have got, as it were, to take more industrial action rather than less to have the same impact, which means it's going to actually cost them. Do you understand that?---The defence will come into ..... Australia Post .....

**** BEN JUSTIN FRANZI RXN MR TEHAN
PN1137

Is there something magical about seven days? Do you get most of your benefits by, say, increasing from three to four or three to five, or is it really very impressionistic?---Three days is ..... and any increase would be ......

PN1138

Anything arising out of that, Mr Reitano?

PN1139

MR REITANO: No.

PN1140

THE VICE PRESIDENT: Mr Tehan?

PN1141

MR TEHAN: No, your Honour.

PN1142

THE VICE PRESIDENT: Thank you, Mr Franzi.

<THE WITNESS WITHDREW [11.09AM]

PN1143

THE VICE PRESIDENT: Yes, Mr Tehan?

PN1144

MR TEHAN: Your Honour, that's all the evidence we need to call.

PN1145

THE VICE PRESIDENT: Well, I think I understand the way you put your case. I suppose really - - -

PN1146

MR TEHAN: I intended to make some submissions, your Honour, if that's all right?

PN1147

THE VICE PRESIDENT: Yes, please do.

PN1148

MR TEHAN: Your Honour, I intend to talk to you for a moment about the power of the Commission to extend notice, then talk about the purpose of the provision. Thirdly, I wanted to talk to you about the meaning of exceptional circumstances, and finally make some submissions to you about the facts in this case.

PN1149

THE VICE PRESIDENT: Just before you do, am I right in saying that there are no Full Bench authorities that have considered the exercise of this power?

PN1150

MR TEHAN: So far as I'm aware, your Honour.

PN1151

THE VICE PRESIDENT: As far as you're aware. And indeed there are no single member decisions where there's been any sort of weighty consideration of the proper construction and principles in relation to the application of the particular - - -

PN1152

MR TEHAN: No, your Honour. There are three decisions which we're aware of. One is the one where you extended time in the ACT teachers case, the second is the decision of Commissioner Smith to extend time in the Victoria Police matter, and the third is a decision of Deputy President Ives in Bilfinger Berger Services, where he did not extend time that we're aware of.

PN1153

THE VICE PRESIDENT: Well, I don't think any of those decisions actually involve any sort of comprehensive analysis of the proper construction of the provisions.

PN1154

MR TEHAN: No, your Honour, I think that's fair comment.

PN1155

THE VICE PRESIDENT: Yes, it's essentially a clean sheet.

PN1156

MR TEHAN: Your Honour, I put to you that the two decisions where time was extended which appears to have been by consent almost - - -

PN1157

THE VICE PRESIDENT: Yes, the teachers one, there was no serious opposition to it.

PN1158

MR TEHAN: No, your Honour. The teachers said we do give that sort of notice. And in the police it appears from transcript that discussions took place about a number of things. So submissions were made then the parties went into conference, and at the end of it Commissioner Smith came out and made his announcement.

PN1159

THE VICE PRESIDENT: Okay, thank you. Now, you'd outlined a particular course you wanted to follow.

PN1160

MR TEHAN: I did, your Honour. We rely on the submissions set out in our letter dated 12 September, and upon paragraphs 30 to 34 of our revised submissions dated 3 September, and we rely on the statement of Mr Franzi. Your Honour, the power of the Commission to extend the period of notice is set out in section 441. It effectively - - -

PN1161

THE VICE PRESIDENT: Sorry, your revised submissions are what date?

PN1162

MR TEHAN: 3 September I think. We handed them up at the hearing I think on the 2nd - 3 September, I beg your pardon, your Honour, and they were generally in relation to the secret ballot applications, and we, at paragraphs 30 to 34 I think it was, which was page 7 of the revised submissions, your Honour, we gave some reasons why there were exceptional circumstances.

PN1163

THE VICE PRESIDENT: Yes, thank you.

PN1164

MR TEHAN: Broadly speaking, your Honour, that's been incorporated into the material of the 12th.

PN1165

THE VICE PRESIDENT: Yes.

PN1166

MR TEHAN: Your Honour, the provision of requirement of written notice is in section 441 now. It effectively mirrors section 170MO of the Act prior to Work Choices, but there is one significant difference between the pre reform Act and the post reform Act, that difference being that the Commission has the power to extend the required period of notice from three working days to seven working days in exceptional circumstances. Section 463(5) provides you with power to extend the written notice period, and that subsection provides that if the Commission is satisfied in relation to the proposed industrial action that is the subject of the order that there are exceptional circumstances justifying the period of written notice referred to in paragraph 441(2)(b) being longer than three days, the order may specify a longer period of up to seven days.

PN1167

We read the seven days, your Honour, as being seven business days because of the - seven working days, I beg your pardon, because of the reference to three working days in the earlier provision. We make that point for you to be aware of, your Honour. Your Honour, the purpose of the written notice requirement is as you said to Mr Franzi in your questions there, that the parties be given an opportunity to take appropriate defensive action.

PN1168

The leading case on the rationale of the predecessor provision, section 170MO, is David's Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463. I'll give your Honour a copy of that decision and draw your attention to the relevant provisions.

PN1169

MR REITANO: I note that there were directions made to put on written submissions. I didn't see any reference to this decision in any written submissions that were provided to me.

PN1170

THE VICE PRESIDENT: no.

PN1171

MR REITANO: And I thought that those directions as to written submissions were sought by my learned friend and were granted over my opposition.

PN1172

THE VICE PRESIDENT: That's correct. If you're prejudiced you can make an appropriate application.

PN1173

MR REITANO: Well, I'm actually prejudiced because your Honour's got to deal with this matter today as I understand it.

PN1174

THE VICE PRESIDENT: I don't think I have to make a decision today, Mr Reitano.

PN1175

MR REITANO: Your Honour, I understood that the reason why we are here today is because someone - and I may be wrong about this - took the view that it needed to be dealt with today. But if I'm wrong about that I'm wrong about it.

PN1176

THE VICE PRESIDENT: I think it needs to be dealt with before the end of the week doesn't it?

PN1177

MR TEHAN: I don't think Mr Reitano's going to take any point on this. We think it would be better that it be decided sooner, not later, your Honour.

PN1178

THE VICE PRESIDENT: My intention is to try and make a decision today, and if reasons aren't given today, but - - -

PN1179

MR TEHAN: Your Honour, this - - -

PN1180

THE VICE PRESIDENT: Mr Reitano, can we just play it by ear for the moment and see if you're going to be in some embarrassing difficulty. It would be an odd thing though for me to close my eyes to cases that may have some relevant impact.

PN1181

MR REITANO: I have said what I've put, and I think my client is being denied procedural fairness. In the written submissions directed there is not a reference to something in the order of 50 pages of the industrial reports that appears in those written submissions.

PN1182

THE VICE PRESIDENT: I think you are justified in the complaint that you make. I think you're justified in the complaint you make, but I don't know that it's appropriate to say, no, I don't want to hear you talk about a case that may be a relevant authority.

PN1183

MR REITANO: I can take the matter no further. I have said - I strongly submit to your Honour that my client is being denied procedural fairness.

PN1184

THE VICE PRESIDENT: Mr Tehan, have we got any other cases that are not referred to in the submissions?

PN1185

MR TEHAN: Yes, your Honour.

PN1186

THE VICE PRESIDENT: How many have we got?

PN1187

MR TEHAN: The decision of Rares J in Ho v Professional Service Review, where he considered exceptional circumstances. I don't think there's any other serious case that needs to be considered. But, your Honour, this is not a denial of natural justice.

PN1188

THE VICE PRESIDENT: Well, can we just not go there for the minute? If the positions were reversed you would be annoyed at the position that you do not have an opportunity to think about - - -

PN1189

MR TEHAN: Not at all, your Honour.

PN1190

THE VICE PRESIDENT: - - - and research.

PN1191

MR TEHAN: Your Honour, this provision was raised on day one about the proper - about the industrial action and the response, and David's is a similar case.

PN1192

THE VICE PRESIDENT: Let's get on with it for the time being. Which passage in David's Distribution?

PN1193

MR TEHAN: At page 495, your Honour, Wilcox and Cooper JJ noted that section 170MO(5) was designed to ensure that industrial disputants who are to become affected by protected action in relation to which their usual legal rights are significantly diminished are at least able to take appropriate defensive action. And by way of explanation of that rationale Wilcox and Cooper JJ gave the following example at 495:

PN1194

For example an employer may operate a sophisticated piece of equipment ...(reads)... notified industrial action.

PN1195

That rationale was affirmed, your Honour, by Merkel J in CFMEU v Yallourn Energy, and Goldberg J in PWB Anchor. I can give you the citations for those cases if you wanted them, but I don't think there's any question about these. This is good law and it's trite law now, it's been in operation for seven years. The purpose of the requirement, your Honour, to give notice of industrial action is to allow disputants, but in this case the respondents, to take appropriate defensive action.

PN1196

In what would be no doubt most cases the legislative scheme regards three days to be an appropriate time to allow the employer and other affected parties to take appropriate defensive action. But now, your Honour, since the Act was amended the Act recognises that the taking of appropriate defensive action may take longer than three working days. In those exceptional circumstances the legislative scheme allows for up to seven working days notice to be given subject to the discretion of the Commission.

PN1197

So, your Honour, it brings us to what is meant by exceptional circumstances, and in our written submissions we drew the Commission's attention to the use of the word exceptional in Australian Colliery Staff Association v Gordonstone Coal Management, where the word exceptional was said - it was said that the word exceptional may be given 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.

PN1198

And then that approach, your Honour, is consistent with a decision of Callinan J, where he looked at the word exceptional and quoted an English decision. Callinan J was deciding in Baker v R [2004] HCA 45; (2004) 223 CLR 513 at 573, but he quoted a definition of Lord Bingham of Cornhill in R v Kelly (2000) Queen's Bench 198, where Lord Bingham said:

PN1199

To be exceptional a circumstance need not be unique or unprecedented or very rare, but it can't be one that's regularly or normally or routinely encountered.

PN1200

Now, Mr Reitano in his submissions says that the circumstances must be exceptional, that's at paragraph 4. So we then looked at what's meant by exceptional circumstances, your Honour, and that's where we've got a new case to draw to your attention. It's a decision of Justice Rare in Ho v Professional Services Review, Review Committee number 295, a decision to be found at (2007) FCR at 388, and the relevant paragraphs, your Honour, are from 25 through to 27. At paragraph 26 his Honour considered what was meant by exceptional circumstances within a statutory scheme, but I don't think that's relevant because the definition was not an important factor in the matter. But he said:

PN1201

Exceptional circumstances within the meaning of that particular provision can include ...(reads)... because it's outside the usual course of events.

PN1202

Your Honour was smiling at that analogy.

PN1203

THE VICE PRESIDENT: I was just smiling at my love for .....

PN1204

MR TEHAN: Yes.

PN1205

THE VICE PRESIDENT: There's a certain ..... quality to it.

PN1206

MR TEHAN: Yes. Well, if I can mix the metaphors slightly, your Honour?

PN1207

THE VICE PRESIDENT: Look, Mr Tehan, I don't know that this takes us anywhere. It's an ordinary English phrase and everyone understands what it means, and certainly my understanding of that expression accords with what you've put, but perhaps it was the understanding I had before you put those cases.

PN1208

MR TEHAN: Good, your Honour. Well, I may not need to persuade you further, but it's important because it seemed to me as though the submission which was being put by Mr Reitano in the written material is that the circumstance, each individual circumstance needs to be exceptional.

PN1209

MR REITANO: You misunderstood it.

PN1210

MR TEHAN: Good. And I wanted to draw your attention to the decision of Rares J in the relevant case. If we're using the eclipse metaphor, your Honour, it might be said that there's an aligning of the planets here because you've got Australia Post which faces one or more of 17 different forms of industrial action as we loom up to Christmas with an election period coming together. All of those factors together might be thought to be an aligning of the circumstances which fit the sort of case that Rares J picks up.

PN1211

Your Honour, at paragraph 27 his Honour went on, and I'll just finish this off because it is worth noting:

PN1212

It's not correct to construe exceptional circumstances being only some unexpected occurrence.

PN1213

THE VICE PRESIDENT: Mr Tehan, the problem with that analysis is that there's no two businesses that are identical.

PN1214

MR TEHAN: Yes, your Honour.

PN1215

THE VICE PRESIDENT: And every employer can point to a set of circumstances that are relevantly unique for it, and if viewed from one perspective precisely there's no two businesses that are the same. Having said that, I understand you would say it is a rare thing for a business to be subjected to a statutory service obligation.

PN1216

MR TEHAN: Precisely.

PN1217

THE VICE PRESIDENT: Particularly in the context of a monopoly, an essential monopoly service.

PN1218

MR TEHAN: Yes.

PN1219

THE VICE PRESIDENT: And then the election and the Christmas circumstances, when you put all of that together you would say that's exceptional.

PN1220

MR TEHAN: Yes, your Honour, it is. Do you want me to go straight to the summary paragraph? Your Honour, there are these factors, if I can do it, but I will come back to this. The size of the workforce is 34,000 people. That is quite exceptional in Australia. Of the 145 ballots that were ordered up to a month or so ago, when I'll finish - when I last did the statistical check, all bar 185 secret ballots up to mid August only six involved more than 500 employees, four involved more than 1000 employees, and one was 10,000 employees, and that was 11,000 actually. So there's been no comparable size employer which has had a secret ballot. That's not to be disregarded, your Honour. It's at 1770 sites.

PN1221

We've got the election looming, which has got important material, and I'll come to that in a moment. You've got staff shortages, which you can take judicial notice of we say. They're the sort of factors, your Honour. So, your Honour, if I could ask you to just look at the last sentence of paragraph - the second last sentence at paragraph 27 of Rares Js decision:

PN1222

The ordinary natural meaning of exceptional circumstances includes a combination of factors which viewed together may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

PN1223

Your Honour, in a different statutory context Rares J has cited above slightly earlier in his decision the decision of the High Court in Griffiths v R at paragraph 23, where Brennan and Dawson JJ considered the statutory provision which entitled either a parole board or a court to specify a shorter non parole period than that required under another provision only if it determined the circumstances justified that course. They said of the apparent circumstances:

PN1224

Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.

PN1225

Your Honour's preliminary view is borne out by the statutory - by the judicial case. Your Honour, the exceptional circumstances in this case are, as you said before, the statutory community services obligation set out by Mr Franzi at paragraphs 10 to 17 of his statement. The general services offered by Australia Post to the community often required urgently, I'll come to that in a moment, the number of employees in the sites, the 17 forms of industrial action which might be engaged in by the union and accordingly the 17 different forms of defensive action which Australia Post may be required to take and, your Honour, a consideration of the public interest generally, and in the context of - and at present, particularly in the context of the Christmas period looming and the election period.

PN1226

Your Honour, the statutory community services obligations have been set out in the material. If I can summarise it? Australia Post delivers mail from one end of William Street here to the other end for 50 cents and delivers a letter for the same price because of its statutory obligations from Broome to Battery Point. It does it at the same price throughout the country, and it's a big job and it does it happily. But it will be better able to meet its statutory obligation if it gets additional notice, and that's the point it wants to make in that.

PN1227

In terms of size, your Honour, that's been covered before. In the submissions we noted that in addition to the 34,000 employees - the biggest ballot by the way when the order was made, your Honour, the biggest ballot in Australia at 1700 sites, but there are also 3000 licensed postal outlets, 630 community postal agents who will be affected by it, and together with the 800-odd official post offices this is Australia's biggest retail network, not a factor to be disregarded.

PN1228

Your Honour, the three business days provision appears on its face to be more or less standard. But when you get into a large employer like Australia Post you do get interesting questions arise. Three business days excludes public holidays. So next Monday, a public holiday in Canberra and Sydney, because of the nature of the client does that mean that those three business days are excluded - sorry, that that day is excluded from the three business days nationally or only in respect of one state or two states?

PN1229

If for example the ballot were - the industrial action were to take place or some form of the industrial action were to take place close to Melbourne Cup Day in Melbourne, would the industrial action start after three business days which included Melbourne Cup Day, or would the Victorian action start a day later? These are just small little things. I think it should be considered that large national employers are not in the normal scheme of the action which might be envisaged.

PN1230

Your Honour, I went through the ballots situation before. The six largest ballots up to mid August were 525 employees, that was AMWU v Venture Industries, 1500 CPSU v ABC, 674 for the MEAA v ABC, 1000 employees for the Nurses v Commissioner for Public Employment in the Northern Territory, 3000 teachers in the ACT case, and the 11,200 Victoria Police cases. So this is by any size a completely different circumstance.

PN1231

Your Honour, the submissions that we put to you on 12 September set out the services provided by Australia Post to the public, in particular things such as at paragraph 17 of that document, your Honour, the over the counter bill payment and personal banking services, passport services, identity authentication for licenses and working with children checks and the like, and then the distribution of forms and other material that's involved.

PN1232

Your Honour, these are matters which serve the public and ought not be disregarded, bearing in mind that the aim of the CEPU - or perhaps that's not the aim, but Mr Reitano said on a previous occasion that the CEPU action may hurt Australia Post and hurt it a lot. Presumably that's their intention, to assist their bargaining position. These are factors which need to be considered when you are taking into account Australia Post. It's affecting not just the employer but it's affecting other parties who may use Australia Post's services.

PN1233

THE VICE PRESIDENT: And you've got certain rights to apply for suspension or termination of a bargaining period if third parties are being harmed don't you?

PN1234

MR TEHAN: Yes, your Honour, we have got some rights in that regard.

PN1235

THE VICE PRESIDENT: Okay, yes, make your submission.

PN1236

MR TEHAN: Pre Christmas period, your Honour, is a factor in terms of the public interest. Mr Franzi gave evidence at paragraph 22 that October, November and December are Australia Post's busiest months. He noted that October is a busy month because it's the annual general meeting and annual report series, and the size of that mail, bigger reports makes it more labour intensive to process and deliver when compared to small standard size letters. Paragraph 25 of his witness statement set that out. They charge more as well, but it is more labour intensive.

PN1237

He also gave evidence at paragraph 26 that Christmas mail is generated in both November and December, and that there's a peak in parcel volumes in December, that parcels are more labour intensive than small standard letters. At paragraph 27 he noted that the peak doesn't hit just in December, because people send their Christmas, international Christmas mail early, and so there's significant inward and outward international mail in November.

PN1238

And at paragraph 28 Mr Franzi said that the peak October-December period is usually addressed by employees working overtime and by the engagement of casual staff. Australia Post casual workforce almost doubles over the Christmas period. Your Honour, you're the panel head of this panel and so you would be aware of the reasonable hours case in 2002. Australia Post was involved in that case because it was one of the named employers which responded to the case, and it gave evidence that it had had disputes with staff over overtime. And the Full Bench noted at paragraph 272 of that decision, which is reported at 114 IR 390, that a clause which the ACTU is proposing which would have been triggered where employees work more than 60 hours a week over a four week period, an average of 60 hours a week over a four week period, would have effect at Australia Post during the peak November-December period when most of its overtime is worked, although average overtime for full time employees in 2000 and 2001 for Australia Post was less than two hours per week.

PN1239

In other words, your Honour, they were working 20 plus hours a week of overtime in November-December, but the rest of the year average overtime was two hours per week. So that's the extent of the reliance on overtime within Australia Post. And then the use of casual labour and - - -

PN1240

THE VICE PRESIDENT: You're going to have significant problems even if you get seven days.

PN1241

MR TEHAN: Yes, your Honour. And there will be a need for casual labour to be used, and we've had a discussion about casual labour and Mr Franzi gave evidence about what will be involved in getting casual labour and the difficulty of it. So, your Honour, it shouldn't be - sorry, I'll withdraw that. Australia Post will have difficulty dealing with this, your Honour, but of its 34,000 employees 20,000 or so are union members according to the union's material, so there's 14,000 who are not union members who presumably will work normally, and it's not necessarily the case that every employee who is a member of the union will take industrial action.

PN1242

So Australia Post won't be in a complete catastrophe situation, but more notice will be better for it in the circumstances during a busy time. Now, your Honour, the federal election material is important, and Mr Franzi's evidence here was dealt with from paragraph 41, and if I could summarise it for you. Australia Post has commissioned research which shows that mail is the preferred medium for people to receive political communication, paragraph 41. At paragraphs 45 and 54 he gave evidence that the political parties and individual candidates see the first two weeks of the election campaign as a critical time for sending out material. At paragraph 43 he said delivery in the first two week period of the election campaign is important.

PN1243

At paragraph 48 he said that certain information is sent out in the first week of the election campaign and that commercial terms are varied to enable the political parties to facilitate that, at paragraph 50. Shorter lodgement times are given to the political parties to enable them to get that mail out in that first two weeks. He gave evidence at paragraph 39 that there's a mix of addressed mail and unaddressed mail He gave evidence at paragraph 60 that addressed mail is expected to increase this election, and he also noted at paragraph 61 that this has a consequence for Australia Post because the processing of this mail is more labour intensive than the processing of unaddressed mail.

PN1244

At paragraph 59 Mr Franzi gave evidence that the experience of 2004 was that in the months preceding the 9 October 2004 election, mail volumes were eight per cent higher as a result of election mail and he states that this year Australia Post anticipates that there will be an increase of at least 10 per cent in mail volumes as a result of the election. Mr Franzi's statement and our submissions refer to postal votes, your Honour, and I probably don't need to say too much to you about it, but you know it's available to a wide range of different groups in society, including those who are unable to attend a polling booth because of geographic remoteness, ill health, religious beliefs, a variety of other circumstances and those votes should be just as important as anybody else's.

PN1245

Mr Franzi notes that the Electoral Commission's web site states that half a million voters, nearly four per cent of all voters, utilise postal voting in federal elections. That's quite different from the election material that's sent out to the parties, that's postal voting and more than two million people is a lot of collateral damage for Australia Post if that were to occur because of this campaign. Seven days' notice will enable steps to be taken which gives everybody, including Australia Post, an opportunity to put in place processes.

PN1246

Your Honour, there are 32 seats which are held by swings of less than 3.9 to six per cent which is the number of postal votes which are recorded, so it could determine the election and that's a possibility. Who knows, but there shouldn't be any room for doubt. Just again reiterating this point, your Honour. Australia Post will not know until it receives notice which of 17 different forms of bans or the period of them will take place, so until that occurs, it doesn't know how it will need to respond.

PN1247

We say, your Honour, that circumstance alone brings it out of the ordinary course. It makes it unusual, special, uncommon in a context in which your discretion is legitimately triggered. Your Honour, perhaps I will just say this. In the police case, discussions took place between the parties at which seven days' notice was agreed, it appears. Certainly I know from other contexts, people work out these orders and it's done without controversy. We think it reflects a level of immaturity on the part of - - -

PN1248

THE VICE PRESIDENT: The ..... are not lawful.

PN1249

MR TEHAN: It's not ....., it's at the organisation and that's a matter which ought to be considered, your Honour. Your Honour, our view here is that the sum of all these matters is greater than the individual parts. All the factors together bring this into the exceptional circumstances case. It's possible that you could accept Mr Reitano's submission that Australia Post is not the only big employer in Australia and that you might accept that more than 1700 sites is not itself exceptional and you might accept that Australia Post is not the only employer with onerous statutory responsibilities and you might also say - Mr Reitano asked Mr Franzi Christmas only occurs once a year and you might come to the view that it's nothing exceptional about the fact that the Electoral Commission, political parties, independent candidates, pressure groups, other participants in the battle of ideas and individual voters all depend on a timely and reliable postal service at election time, but in assessing whether there are exceptional circumstances, your Honour, we submit that the Commission ought to look at the whole of those matters, not just one factor or another.

PN1250

We say there's support for it in the decisions that I've cited. It's common sense, too, your Honour. We submit the Commission ought to find that exceptional circumstances exist that justify a seven-day working day period of notice and the Commission ought to grant the application.

PN1251

THE VICE PRESIDENT: Thank you. Mr Reitano, before you start, do you have any further instructions about the extension of the timetable?

PN1252

MR REITANO: I will seek to make that application in the course of the day if I can, your Honour.

PN1253

THE VICE PRESIDENT: Some time this afternoon?

PN1254

MR REITANO: I will be about half an hour now.

PN1255

THE VICE PRESIDENT: Can I just indicate to you, Mr Tehan, I will need considerable persuading as to why there shouldn't be an extension if there's some even sliver of a foundation for a suggestion that there's been delays in postage because I take the view at least on a provisional basis that these provisions at the end of the day are fundamentally beneficial for the interests of employees and unions and that the purpose of the secret ballot is to ascertain in a fair and democratic fashion whether or not there's support at a sufficient level for industrial action and that it's essentially up to the union to nominate what the time period is in the order at the outset, that the employer should be heard and that if there has been some delay that's occurred, it's entirely appropriate for the time period to be extended if the union requests it.

PN1256

MR TEHAN: Yes, your Honour.

PN1257

THE VICE PRESIDENT: That's my provisional view and if Mr Husic is going to lead some evidence which has got any semblance of weight in it, I'm assuming that there will be, that there have been delays, then my provisional view would be it's appropriate to extend the close of the voting.

PN1258

MR TEHAN: First of all, your Honour, the fundamental point you make is completely correct about it's got to be proper, but the time frame was the union's time frame and they reckon they're the experts on this, so that's the first thing, but we freely accept that there's got to be a proper and adequate opportunity to get the mail back, get it out and get it back, no worries at all about that. What we do not want is any slurs on Australia Post and it's got to be proper evidence about what delays have occurred. There must be proper evidence about what is there, rather than some sort of general slur and Mr Husic's will only be hearsay and I suspect it will be hearsay on hearsay. Now, we've come here, this was dropped on us during the hearing.

PN1259

THE VICE PRESIDENT: I understand that.

PN1260

MR TEHAN: It is the most - - -

PN1261

MR REITANO: Can I get on with my submissions in this case, rather than listening to this nonsense, with respect, your Honour?

PN1262

THE VICE PRESIDENT: Mr Reitano, I thought you wanted to have an application determined today for an extension of the timetable.

PN1263

MR REITANO: If it please, your Honour.

PN1264

THE VICE PRESIDENT: And I don't want to divert onto this fully, but I was endeavouring to try and see whether or not it wasn't possible to actually wrap the whole thing up which would include an extension for you post haste. Now, I was really testing the waters with Mr Tehan to see whether there was going to be substantial opposition at the end of the day because if there's not going to be substantial opposition, it may be that the extension application can be dealt with very promptly.

PN1265

MR REITANO: Can I tell your Honour what the problems were and if Mr Tehan thinks that this is a slur on him or someone else, I apologise, but people for one reason or another in various parts of Australia did not receive their ballot papers, in some cases as I understand it until earlier this week, when the ballot opened 10 days ago. Now, I don't know why it happened, I have no idea, none at all, but what I can tell your Honour is it happened. Now, there are a series of other things that have happened that point to the fact that people weren't receiving ballot papers early on in the piece, that has delayed it.

PN1266

THE VICE PRESIDENT: Well, that is - - -

PN1267

MR REITANO: If that's a slur on someone, I apologise, but it's the fact.

PN1268

THE VICE PRESIDENT: Mr Tehan, if that is so, there's going to be an extension, unless you can come up with some really, truly startling argument.

PN1269

MR TEHAN: Your Honour, all we would want is some evidence.

PN1270

THE VICE PRESIDENT: I take it Mr Husic is in a position to give some evidence, so we'll finish the submissions on the application now and then we'll proceed straight to the reception of the evidence on that. We will finish with the 463(5) application submissions now and we'll proceed straight to hearing Mr Husic's evidence in relation to the viva voce application by the union to extend the close of the ballot.

PN1271

MR TEHAN: Yes, your Honour, I am happy to do that. Can I just say this? I don't know what - I made a point that we didn't know anything about this. There is no material. If there were anything, it would have been reasonable to have given us notice of this.

PN1272

THE VICE PRESIDENT: Look, we all know - - -

PN1273

MR TEHAN: You've made that comment about it, your Honour.

PN1274

THE VICE PRESIDENT: Mr Tehan, we know, you know, I know, Ms Walsh knows, Australia Post does a bloody good job, but it's not perfect and it wouldn't claim to be perfect and the reality is that mail is sometimes delayed and it doesn't necessarily reflect adversely on Australia Post which is doing a gargantuan job and doing it basically very well.

PN1275

MR TEHAN: Well, that's good to hear, your Honour. Your Honour, I am making a point, though, that this has been raised today, we've made no critical comment at the beginning about not raising it today. It would have been a very simple matter to have raised it. When Mr Reitano - - -

PN1276

THE VICE PRESIDENT: Are you saying that you're prejudiced?

PN1277

MR TEHAN: Of course we will be.

PN1278

THE VICE PRESIDENT: Hang on a minute. Let's stop this now. It's just degenerating. The application can proceed formally when we've finished with the 463(5) application.

PN1279

MR TEHAN: Yes, your Honour.

PN1280

THE VICE PRESIDENT: You've finished your submissions. Mr Reitano, your submissions on the 463(5) application.

PN1281

MR REITANO: My written submissions deal essentially with the two points that we wish to make. There's 10 points that I wish - I think there's 10, I always get the count wrong, but I think there's 10 matters that I want to specifically alert the Commission to. I want to start with saying this, that there are two relevant tests. I apparently didn't make it clear in my written submissions. The phrase that the section uses is exceptional circumstances justifying and it's those three words that need to be read together.

PN1282

It is not just that there is something exceptional, that there is an employer that might be said to be exceptional. Secondly, it's not just because there's a circumstance, but, importantly, those exceptional circumstances must justify. Those words need to be read in the context of the Act and I will come back to that in a moment. The second matter is even if I'm wrong about all of that, that your Honour has a discretion. That discretion will need to be informed by what I say about the context of the Act, but there are other matters that I want to put to your Honour that are relevant.

PN1283

Let me deal with one very quickly. This Commission should be loath to grant any indulgence of this kind in circumstances where he who seeks the indulgence has not helped himself. It is one thing to come along here and say it would be much better if we had seven days' notice, rather than three days' notice in circumstances where you can say we have put this monumental task in place. We have negotiated with every agency that can provide casual staff to us and we've negotiated a special rate at which they will provide those people to us over and above what they might normally be paid.

PN1284

They will provide it on 10 minutes' notice and we've gone to extraordinary lengths throughout Australia to make sure that those people will be available. There is not a labour hire company that we have not telephoned and said this is the circumstance we are going to be placed in, can you help us and having done all of that, we can tell your Honour with hand on heart that we just can't meet it. We can't do it within three days. They all tell us they need six days' notice or seven days' notice.

PN1285

That's not what you have here and I'll return to that in a moment. They're the two propositions that I want to develop in what I am going to say. The third matter which I want to deal with firstly is this, that your Honour would not make an order that in the circumstances could or would be futile, extending the time and I want to deal with that straight up front because I put to your Honour that it's the most powerful of all the discretionary bases upon which I say that your Honour would decline making an order.

PN1286

If the ballot closed and was counted and was successful, I can't remember the date, but just for argument's sake next Monday, presumably under section 441(2)(b) of the Act, the CEPU would be entitled to give at least, assuming your Honour makes no order, at least three days' notice of its proposal to take industrial action of the kind contemplated by the ballot. Your Honour will recall that that includes amongst other things 48 hour rolling stoppages, 24 hour rolling stoppages. I am just using four examples, periodic bans on overtime and I think specific bans on overtime. I can't remember the word that's used, but the CEPU next Monday could in theory or Tuesday could in theory give three days' notice or four days' notice because it's a minimum, this is the industrial action we are going to commence.

PN1287

That action would commence a week later. If it was seven days, it would commence at the end of - approximately a week later or at the end of the week if it were three days. On either view, forget about your federal election and your planning and the like, because that can't happen within the next two weeks, we know that, common sense tells us that. If Australia Post seriously were posing that the federal election were going to occur within seven days of next Monday, we presumably would have seen some evidence about that, but it can't occur. Assume, as I asked Mr Franzi - - -

PN1288

THE VICE PRESIDENT: The prime minister could go to the governor-general this afternoon.

PN1289

MR REITANO: He could, but the election would not take place within two weeks.

PN1290

THE VICE PRESIDENT: Absolutely. No, the election could take place within 33 days of the issuing of the writs which can occur I think within two days, isn't it?

PN1291

MR REITANO: I think some of that is dealt with on the AECs web site as deposed to by Mr Franzi, but my proposition is this, that the industrial action would be well underway and be in place and be happening in every variety and every form. We would have given the seven days' notice and the election is still going to occur in 33 days. Once our ballot closes, we are entitled to give the minimum notice. The election might happen on 1 November, it might happen on 1 December, it might happen in between then, but our proposed industrial action could in theory be well in place by then. The misconception that appears to be inherent in what's put to your Honour is that each and every time we want to engage in some form of action, we have to give some specific date or day upon which the action is going to be taken, not the same.

PN1292

THE VICE PRESIDENT: I think there's going to be an argument about that.

PN1293

MR REITANO: Maybe there is. I am only reading the Act.

PN1294

THE VICE PRESIDENT: No doubt Mr Tehan reads it slightly differently.

PN1295

MR REITANO: Well, read section 441(2)(b) and read out ballot question about the industrial action we're going to take or may take. On either view, the order would be a futility because it doesn't put them in any better position. If you give them three days' notice or seven days' notice, the election is still occurring somewhere down the track, a powerful reason. What this provision is about is not about what everyone seems to have assumed in this argument. It's not about in any way giving the employer the leg up or protecting large national employers or reducing inconvenience or diluting the potent effect of potential industrial action. That's not what the purpose in my submission of section 463(5) is.

PN1296

What the purpose of it is is to deal with the very real prospect that industrial action could commence within three days of the ballot concluding which might in some circumstances have some exceptional effect which would require four, five, six or seven days' notice to be given, but here you have nothing that suggests that at the conclusion of this ballot, that those first four days are going to create any magic in terms of anything for Australia Post. What they're talking about is the entirely wrong and misconceived analysis that each and every time we do something, we have to telegraph it. Not right and you only have to read the words of the section. The theory is we can say all of the forms of industrial action that we had our members vote on are the protected action that we're going to take.

PN1297

THE VICE PRESIDENT: So you say that when you nominate a specific genus of action, say 14 hour stoppages, you need only give notice before the first such occurrence?

PN1298

MR REITANO: No, no, no, no, your Honour. Your Honour has done what I think other people do. We've never said, I don't think we ever said 48 hour stoppages. I think what we said, the one that's relevant is rolling 48 hour stoppages. We did not say 48 hour stoppages per se as I recall it.

PN1299

THE VICE PRESIDENT: If you had said 48 hour stoppages - - -

PN1300

MR REITANO: It might be different.

PN1301

THE VICE PRESIDENT: It might be different?

PN1302

MR REITANO: It might be different, but the action - - -

PN1303

THE VICE PRESIDENT: Because it's rolling, you say that will be a continuous course of stoppages which is a single item of action as a matter of proper construction?

PN1304

MR REITANO: Correct.

PN1305

THE VICE PRESIDENT: For which one notice is required?

PN1306

MR REITANO: Correct, and Wilcox J in one of the CFMEU cases said that that form of industrial action, of rolling stoppages, I can't remember if it was 48 or some other period, rolling stoppages was within the contemplation of the Act.

PN1307

THE VICE PRESIDENT: You don't happen to know the name of the case?

PN1308

MR REITANO: I don't, your Honour. I know it's a mining case, I know it's the CFMEU and if Mr Pasfield were here, he would tell me what it was, no doubt because he was in it. There's certainly nothing in the language of the Act that would do violence to the submission I make, that rolling 48 hour stoppages is a form of contemplated action. Now, that's the most powerful matter that goes against what's been put in respect of this matter. Before I move off it, your Honour might recall that your Honour asked me the last time this application was made, I think your Honour asked the question what do you say is exceptional and I think I put to your Honour and I stand by it, nurses in an acute intensive care unit, three days' notice after the ballot closes might not be enough because there may be some urgent need both on a discretionary basis and on an exceptional basis - - -

PN1309

THE VICE PRESIDENT: So you say the focus of the section is on the period between the declaration of the ballot and the commencement for the first time
it - - -

PN1310

MR REITANO: You can't take industrial action before the declaration of the ballot. You can't take any industrial action before the result is known. You must take it within 30 days for you ballot to be valid, but you can't take it beforehand and that is consistent with the fact or with the part of the Act in which the provision appears. It doesn't appear in - I've lost it now, I think 442 or 441. It appears in the part of the Act that's concerned with ballots, 463(5).

PN1311

THE VICE PRESIDENT: Now we get to the denial of procedural fairness as characterised, Wilcox and Cooper JJ who give as an example a piece of critical machinery that has to be closed down in some sequence.

PN1312

MR REITANO: Yes. I prefer nurses and acute intensive care, but it doesn't really matter which way you look at it.

PN1313

THE VICE PRESIDENT: What about their statement that goes on to talking about being able to notify suppliers and customers in order to minimise inconvenience?

PN1314

MR REITANO: That's all to do with the three day provision, your Honour, as I recall it. That's all to do with the three day provision. What you need here is something that goes over and above what Wilcox and Cooper JJ contemplate there that would be done in three days. Here we're talking about extending beyond three days. Wilcox and Cooper JJ were talking about why three days was, as I recall it.

PN1315

THE VICE PRESIDENT: Your view of 441 is that the union will only be obliged to issue a single notice under 441?

PN1316

MR REITANO: Theoretically. We may be able to issue more than one. We may, for example, take that part of industrial action that involves for example 48 hour rolling stoppages and say here's our notice, that's what we're going to do, 48 hour rolling stoppages. We may be able to say periodic bans on overtime or we may be able to say the full gamut of the industrial action which our members voted on and we attract the protection, we can then decide.

PN1317

THE VICE PRESIDENT: You can choose to give a single notice by identifying the totality of the action once the vote is taken?

PN1318

MR REITANO: That's my submission, that's my submission. I'm not saying that we will do that, but I'm saying that we could and everything they've said about the federal election or about Christmas or anything else goes by the by. They do have a remedy and your Honour identified it with my learned friend. They do have a remedy. If it causes the havoc and the damage and the end of the world and the catastrophe which my friend runs away from in his submissions and says that's not what we're saying, but if it causes those possible consequences, they have a remedy and the remedy is to terminate the bargaining period and seek what were once called MX orders. This is not about that. This is not about diluting the potency of our industrial action.

PN1319

Now, can I deal with then the miscellany of matters that I want to deal with? They're in no particular order, but they arise from the two subheadings that I identified, that is exceptional circumstances, justifying or discretionary matters. The first thing that is important is that your Honour won't see anywhere in Mr Franzi's evidence or in any of the evidence before the Commission that Australia Post will not be able to meet its statutory obligations if industrial action is taken on three days' notice. You will not find anywhere that statement, not a suggestion of it, that it will mean that Australia Post can't achieve what the statute contemplates.

PN1320

Secondly and related to that is we invite your Honour to be very careful about Mr Franzi's evidence and could I without specifically going to it just alert your Honour to one of the paragraphs where I suggest to your Honour that it jumps out at you completely, but the affidavit is absolutely covered with this type of problem. Paragraph 65 is just a good example and I will simply make the submission in respect to the first two points that I am going to make and then repeat what I've said. You will see in the fifth word:

PN1321

If Australia Post have adequate notice -

PN1322

not seven days' notice, not four days' notice, not three days' notice, adequate notice, so we get no articulation from Mr Franzi. What we do get, of course, is the word if and adequate. In the next part of the sentence:

PN1323

It may be possible -

PN1324

not that it will be possible, it may be possible. You don't get any disavowal in the paragraph that it won't be possible in three days at all. This is adequate notice, it may be possible. Similarly, in the next sentence you see:

PN1325

Australia Post could then try and liaise -

PN1326

not Australia Post would, could, or Australia Post has put in place something where it will liaise, but could, again speculative. The next line down:

PN1327

If at all possible -

PN1328

not that will happen, but that we'll speculate about the possibility of it and then you get an example in the next part of the sentence:

PN1329

If Australia Post drivers went on and may be able to source a contractor -

PN1330

not won't be able to source a contractor, not won't be able to take any other steps, but some speculation about what may or may not be possible in the context of what might or might not be adequate notice which is unspecified. Now, this permeates in particular from paragraph 63 of the affidavit onwards. The evidence does not tell you that there is going to be any significant impact beyond doubt upon Australia Post and it does not tell you what was cross-examined out of Mr Franzi, that Australia Post has done next to nothing to try and deal with it. This is not about dealing with mere inconvenience. It is not about giving big employers the leg up. It is not about - - -

PN1331

THE VICE PRESIDENT: It doesn't tell me that there will be a problem.

PN1332

MR REITANO: No. At best it says it may be a problem that we may or may not be able to deal with. He does not say anywhere as I read his affidavit that the effect of three days' notice means we cannot do what we are required to do. There's none of that.

PN1333

THE VICE PRESIDENT: And it doesn't tell - what was the second thing it doesn't tell me?

PN1334

MR REITANO: It doesn't tell you anything about what I think I called defensive actions and how they might not be able to deal with the problem that is created by the industrial action. I don't say this in a pejorative way of Mr Franzi or of anyone else, but, really, what this affidavit tells you is not much more than you already knew, that is industrial action creates problems for employers, some of them big, some of them small. Some of them they can deal with, some of them they can't.

PN1335

THE VICE PRESIDENT: If your view of 441 is correct, that’s really neither here nor there for the union, is it? I mean, you’re about to seek to have the close of the ballot period extended by a couple of days. If there a further couple of days waiting it’s been three years now and many months of negotiations.

PN1336

MR REITANO: You don’t just make orders for the fun of it.

PN1337

THE VICE PRESIDENT: And you’re going to be able to belt the living daylights out of them on your view mercilessly, continuously after the lapse of three working days up to seven working days.

PN1338

MR REITANO: And why shouldn’t we be entitled to, if we wanted to, do it within three days? Because they come along and say for some unarticulated reason that there will be some unknown form of damage to them when they’ve had since 3 September to put in place contingency plans. Why should we be penalised? If the Act was intended to be they could come along and just ask for it like one of the other vending machine provisions of the Act, surely it would have said that. Surely they would have said if an employee wants seven days they can just come along and ask for one.

PN1339

Why would you in circumstances where the Act presumes powerfully that three days is the period and where, in circumstances where on that presumption we would be entitled to take action after three days within which time there is no federal election and there is no Christmas, why would you make an order? What’s the point of that? Because the Commission thinks because Australia Post asked it could, that can’t be a proper exercise of discretion. There must be a sound discretionary basis for making it. And as I say, exceptional circumstances justifying, and they bounce between each other, but exceptional circumstances justifying must point to some urgent emergent consideration that powerfully points to disturbing the scheme of the Act.

PN1340

I dealt with rather all the points out of order so I’m only going to deal with two more. I’ve already said to your Honour that there was a point made, I wanted to say something about Mr Franzi’s evidence and I’ve already said what I wanted to say about its speculative nature, the second matter that I wanted to use once again by way of example is that his evidence doesn’t get to where my learned friend
Mr Tehan wants him to get to and that is that somehow, someone in the upcoming federal election will be disenfranchised and the result of the election will be determined by industrial action taken by the CEPU.

PN1341

With respect paragraphs 36 and 37 of the affidavit that deal with that point taken from the website do not say that. There is just nothing there that would allow your Honour to safely conclude on an evidentiary basis that anything my client proposes to do is going to interfere with the federal election. Whether it takes place next Wednesday or whether it takes place in two months time, either way there is nothing that would allow your Honour to come to any conclusion that anything that’s going to happen as a result of industrial action that’s taken here could possibly or potentially disenfranchise someone.

PN1342

There may have been a way to prove, but I’m not by any means suggesting that it could have been proved because we don’t really think it could be, but there may have been a way to prove that. It might have been through Mr Franzi giving some different evidence of a more positive nature that went through the detail of the Australia Post process and those of the Electoral Commission to his knowledge and for him to say as a result of that I can see that X is going to happen. Looking at the website and speculating about it is quite a different thing. The other thing is, where’s the AEC? Surely they would be the people who would be in quite the best position to say look, given our time frames and given what’s likely to happen, we inevitably concede that there will be a problem with people voting.

PN1343

We caution your Honour strongly against relying on Mr Franzi’s evidence as being anything other than saying this industrial action is going to cause us some inconvenience. It doesn’t go beyond that. There is nothing exceptional in the sense of any damage to the electoral process, any damage to Santa Clause, any damage to anything else that might occur that’s referred to in his affidavit. There’s nothing that justifies the making of an order, in my submission. I’ve dealt with the second aspect and I don’t want to go into great detail about this, but the purpose of the cross-examination this morning was essentially confined to make the point to your Honour that why help those who don’t help themselves.

PN1344

Now, why is it - I use the example of agency staff, I could use some of the others -but why is it that your Honour hasn’t heard any evidence about the detail of the planning that Australia Post has engaged in in order to avert the massive consequences of the inconvenience that it says will be caused? Because it hasn’t gone anything. It’s sitting by since 3 September when your Honour mad the ballot order effectively doing nothing. Its spokesman in this Commission who is presumably seen as the best person to give evidence had no involvement in anything prior to 14 September and can’t tell the Commission what steps were being built up and presumably being planned about before then.

PN1345

Now, with respect, that is not a sound discretionary basis for the Commission to move on dodgy - and I don’t say that in any way pejoratively of Mr Franzi, it’s not his fault - dodgy evidence about the effects of this industrial action. Now, none of what I’ve said requires me to take your Honour to any authority about rolling stoppages. I concede that that’s one that I should have had. But in terms of the matters that my friend’s dealt with, exceptional circumstances justifying is as finite and defined ordinary English words as exceptional circumstances which are the focus of his submission.

PN1346

But can I say finally before I sit down that in respect of exceptional circumstances it is not just that you can point to a large employer. Any employer can say I’m a small employer or I undertake this different type of business. The fact that it has many outlets does not make it exceptional in any sense that the Act refers to exceptions. The exceptional circumstances are what the Act focuses on, not the exceptional employer and that’s where my learned friend loses it, with respect to him, when he talks about the size of Australia Post, the large number of sites and its kind of business. Your Honour needs to find something in the circumstances that are exceptional the justify the making of an order.

PN1347

This is not an appropriate case where your Honour would make an order in any way interfering with the statutory regime given the enormous consequences that it will have for about 20,000 CEPU members in terms of their ability to take effective and potent industrial action in order to secure for themselves the benefits of a certified agreement as countenanced by the statutory regime in the Act - and now I will sit down - which was the subject matter of the submissions that I previously made to your Honour about the scheme of the Act and three days and the like.

PN1348

THE VICE PRESIDENT: And now, Mr Reitano, having had an opportunity to reflect upon it do you maintain that you’re prejudiced in a procedural fairness sense in relation to Davids Distribution?

PN1349

MR REITANO: No.

PN1350

THE VICE PRESIDENT: You were given opportunity to be able to consider it further?

PN1351

MR REITANO: No.

PN1352

THE VICE PRESIDENT: Okay. Mr Tehan in reply.

PN1353

MR TEHAN: Thank you, your Honour. First of all we may well have a very interesting debate about the notice of the industrial action. Paragraph 89 of Davids Distribution sees the majority so that a notice that refers only to bans and rolling stoppages without any indication of the nature of the bans or the location of the rolling stoppages does not adequately disclose the nature of the intended action. So Mr Reitano may be presaging some action somewhere else. Your Honour, the essence of this provision is a protective action. We do not know when, where or what industrial action will take place.

PN1354

THE VICE PRESIDENT: I’m just thinking, which member of the Commission do I maliciously allocate the hypothetical future applications?

PN1355

MR TEHAN: Maybe not the Commission, your Honour.

PN1356

THE VICE PRESIDENT: I think that’s what I appreciate. Now, you were saying?

PN1357

MR TEHAN: Your Honour, of course Australia Post can’t say this has been done, that’s been done, with the precision that Mr Reitano seems to expect. That is because we do not know when, where or what industrial action will take place. Your Honour, Mr Reitano is correct when he says the election won’t be held in the next two weeks, but it may be called and Mr Franzi’s evidence was that the first two weeks of the campaign is regarded by the participants as critical. It’s not the date of the election which is critical, it’s the campaign period. As to the period, your Honour, we’ve made submissions to you that the period of the next three months is part of the variety of factors which leads to exceptional circumstances.

PN1358

We don’t say - I can’t put to your Honour that January when the election presumably will be over, when Christmas will be over, will still be exceptional. It might be, your Honour, but certainly we put to you that at the present time the circumstances that we can foresee are exceptional, reasonably put. And that’s something which ought to weigh in your Honour’s mind. We’ve confined it to what we know about now and that’s all the party can do. There is an argument that maybe people need to be able to come back because the particular form of industrial action which is planned is very vigorous and maybe parties can come back.

PN1359

This is an unexplored section of the Act. We’ve put to you the material that is there as we presently know them and we think a common sense view is that that is exceptional. That is not the normal circumstance which operates in a day to day sense for Australia Post. And for that reason, your Honour, we put it to you and we make the application.

PN1360

THE VICE PRESIDENT: Thank you. Now, is it convenient to have Mr Husic give some evidence now about the flyers?

PN1361

MR REITANO: Yes.

PN1362

MR TEHAN: Before we do, your Honour, could we have an outline from
Mr Reitano what it is that Mr Husic is going to say, what it is that the union is actually going to say then have an adjournment for a period of time so that we can at least get some detailed instructions and find out what is likely to happen and have a sensible orderly conduct of this part of the hearing? I don’t say that we may need to cross-examine Mr Husic. It may be that - - -

PN1363

THE VICE PRESIDENT: No, fair enough. You’re entitled to one.

PN1364

MR TEHAN: I mean, we don’t even know anything about this case, whatever what the argument is.

PN1365

MR REITANO: I can’t give you an outline. I got the instructions this morning. What I was proposing to do is call Mr Husic, he can give the evidence himself and then your Honour can adjournment and give Mr Tehan whatever he wants. It’s a much more, rather than me getting things wrong.

PN1366

THE VICE PRESIDENT: Yes. Mr Tehan, that’s a sensible course and I propose to adopt it. You can have an adjournment to consider your position until later on today.

PN1367

MR TEHAN: Could I have an adjournment for five minutes then, your Honour, now? Five minutes.

PN1368

THE VICE PRESIDENT: Mr Husic, can you just give an indication informally now, and you’ll be doing it from the witness box, what the nature of the - - -

PN1369

MR REITANO: I object to that, your Honour. I completely object to that. For a start I represent the CEPU in these proceedings.

PN1370

THE VICE PRESIDENT: If you raise to object to it I withdraw that request, but Mr Reitano, I’d ask you to take some instructions so you can give a brief outline of what the basis is.

PN1371

MR REITANO: If it please, your Honour. Your Honour, there are essentially three circumstances and these all flow from Mr Husic’s anecdotal evidence that he will give which is based on, at least in part, an email that he sent I think a couple of days ago to his relevant state secretaries and also conversations he’s had with if not all of them, most of them, and they are these. That there were people in some states and some parts of Australia who only received their ballot papers as late as last Friday. We do not know, as I said to your Honour earlier, why that happened, but there were people who only received their ballot papers as late as last Friday. We are concerned that if they posted them last Monday or sent them back last Monday that it may take the same amount of time for them to get back to the AEC.

PN1372

We’re not saying that critically of anyone, but that’s the concern. The second matter is that there’s a number of people, I can’t give your Honour a precise number, who we know who have during the course of the ballot requested the AEC to issue them with a replacement ballot paper either because it has been destroyed or lost or for some other reason. Those people as at, we think, yesterday had not yet received their replacement ballot papers. The third matter is that of course since all of this has started that Husic and others have regularly been updated by relevant organisers and others with specific figures, or fairly specific figures as far as one can do it, both by telephone by those people meeting with people and attending workplaces and people have given those people an indication as to firstly the fact that they will be voting and secondly the way in which they will be voting.

PN1373

We can’t comment on the second on in terms of this, but in terms of the first one the numbers we have do not match and exceed, significantly as I understand it, the numbers that the AEC tells us of ballot papers that have been returned to it.

PN1374

THE VICE PRESIDENT: So a disparity between your information as to the number of people intending to vote and the number of ballot papers?

PN1375

MR REITANO: Yes. But can I say this, and I say this because I think it is important to be very careful about these things because of pejorative and critical comments that might ultimately be made

PN1376

THE VICE PRESIDENT: And also section 823.

PN1377

MR REITANO: No, I don’t want to say anything about that. What I do want to say is our information, we concede, is imperfect because it’s based on what people are telling us and based on what’s ...... And I caution against putting to your Honour anything that is accurate, but the imperfection is a matter of concern and the difference is a matter of concern. Those are the three matters that Mr Husic can give evidence about. Sorry, he would also give evidence about his conversation with the gentleman from the AEC this morning who effectively said it’s no skin off our nose. He would also tell your Honour that he’s not so much concerned about people who are actually now having the ability to vote, but is much more concerned about their vote making its way back to the AEC.

PN1378

THE VICE PRESIDENT: He’s not asking for any new issue of ballot papers?

PN1379

MR REITANO: No and he’s not asking for anyone to do anything other than for the AEC to close the ballot on Friday rather than today and the AEC and Australia Post do not need to notify anyone that that’s been done. It is simply so that mail which may be or is in the postal system makes its way back to the AEC so that people haven’t been disenfranchised by delays that might have occurred because of the AEC, it might have occurred because of someone else, for a whole host of reasons that we don’t know.

PN1380

THE VICE PRESIDENT: Okay. Is that sufficient for you, Mr Tehan? Do you want a short adjournment?

PN1381

MR TEHAN: Yes please, your Honour.

PN1382

THE VICE PRESIDENT: Ten minutes?

PN1383

MR TEHAN: Yes, thank you.

PN1384

THE VICE PRESIDENT: If you need more time you can ask for it in due course. Ten minutes.

<SHORT ADJOURNMENT [12.31PM]
<RESUMED [12.44PM]

PN1385

THE VICE PRESIDENT: Yes, Mr Tehan.

PN1386

MR TEHAN: We have taken some instructions, your Honour. We’re opposed to the application. We’ll wait to hear what Mr Husic’s evidence is.

PN1387

THE VICE PRESIDENT: Yes. Mr Husic.

PN1388

MR REITANO: I call Mr Husic, your Honour.

<EDMOND HUSIC, AFFIRMED [12.44PM]
<EXAMINATION-IN-CHIEF BY MR REITANO

PN1389

MR REITANO: Mr Husic, can you give the Commission your full name?---It’s Edham, E-d-h-a-m, middle name Nurredin, N-u-r-r-e-d-i-n, surname Husic, H-u-s-i-c.

PN1390

And for the purpose of these proceedings, an address?---139 Queensbury Street, Carlton South.

PN1391

And you’re currently, I think, the division secretary of the communications division of the CEPU?---That’s correct.

PN1392

You have held that position for how long?---I was appointed in the position in July last year and then was elected and took office from 1 August this year.

PN1393

Prior to being appointed to the position of divisional secretary, I think you also had a period of employment with the CEPU as an industrial officer?---That’s correct. I began duties with the CEPU’s State Branch of the New South Wales Postal and Telecommunications Branch back in approximately April of 1996 as an industrial officer and then I was elected as an organiser, from memory, in 1998 and also the divisional vice president shortly thereafter.

PN1394

And you finished that period of association with the CEPU when?---About August of 1999.

PN1395

And then came back last year?---Correct.

PN1396

You have been one of the people - sorry, you have been the person who has been coordinating the CEPU’s position in respect of the protected action ballot?---Yes, I have.

PN1397

And that has required you to be in this Commission on a number of occasions?---That’s correct.

PN1398

And it’s also required you to liaise with various state secretaries and others within the CEPU about various matters to do with the ballot?---Yes.

PN1399

From time to time those state secretaries in each State of Australia have raised concerns with you about various matters?---Yes, they have.

**** EDMOND HUSIC XN MR REITANO
PN1400

Could I have an adjournment? I want to prepare a statement. This is just disgraceful.

PN1401

THE VICE PRESIDENT: Mr Tehan is not the first person to take an objection to leading. What I propose to do is permit Mr Reitano to lead in that - to the extent of identifying the subject matter of the evidence and then not to lead in relation to the substance of what we get to. In other words, it’s a time-wasting exercise to preventing leading - just on the practical matters of where we get to as to who he is having a conversation with, but the conversation that he has and the substance of the evidence.

PN1402

MR TEHAN: Well, it’s an extraordinary leading question.

PN1403

THE VICE PRESIDENT: No, it was a leading question, absolutely.

PN1404

MR TEHAN: It was an extraordinary leading question. It was about - - -

PN1405

MR REITANO: I’ll withdraw the question. Could we just not waste time?

PN1406

THE VICE PRESIDENT: Yes.

PN1407

MR REITANO: Mr Husic, in the last few days have you had conversations with your state secretaries?---Yes, I have.

PN1408

Have you sent them some emails?---Yes, I have.

PN1409

MR TEHAN: Your Honour.

PN1410

THE VICE PRESIDENT: Mr Tehan.

PN1411

MR TEHAN: There is a way of asking these questions which will presumably get to the material. This is a matter of controversy and I think Mr Reitano can ask his questions - - -

PN1412

MR REITANO: At least he could pronounce my name correctly. My name is Reitano. It is not “Raitano” and I told him that on day 1.

PN1413

THE VICE PRESIDENT: Yes. Mr Reitano’s - - -

**** EDMOND HUSIC XN MR REITANO
PN1414

MR REITANO: I’ll start mispronouncing his name.

PN1415

THE VICE PRESIDENT: Mr Reitano has not asked an impermissible question at the moment in terms of what I’m going to permit. Mr Husic, you have had discussions with the state secretaries, you have sent emails. Can you indicate what those discussions were in relation to the emails?---Certainly, your Honour. I was receiving reports from early last week from various state secretaries, and also state officials who approached me directly, indicating that people, members, had not as yet received their ballot papers. In some cases, the reason why this appeared odd, I anticipated that there would be some delays given the fact as both we and the corporation have indicated, our members, their employees are located across remote parts of the country. In anticipated there would be some delay. But the nature of the delay struck me as odd insofar as we had members in West Australia and Darwin receiving their ballot papers by Tuesday of last week but in some of the responses I was receiving from our state secretaries we had members in Victoria who had not received their ballot papers until Friday of last week and that was specially odd given that the mail-out from the AEC, as I was advised by Ron Cook, took place by 4.30 the previous Friday. So one week in the state where the mail-out originated, compared to a couple of business days in the most remote parts of the country.

PN1416

To the best of your information there are employees who are reporting not having received their ballot paper as of earlier this week or late last week?---Late last week.

PN1417

Late last week - in which states?---In Victoria and also we conducted contact with our members particularly - I can give for instance - in Tasmania on the weekend where they had indicated in Tasmania they had not received their ballot papers as of Thursday last week; again, nearly a week since the mail-out occurred and again it struck us as odd that, you know, crossing the Bass Strait seemed to be a harder proposition than getting ballot papers on the other side of the country. And I make that statement with - you know, making any suggestion or sleight against the corporation.

PN1418

For my purposes, unless that evidence is entirely undermined in cross-examination, that’s sufficient. Do you want to go further Mr Reitano?

PN1419

MR REITANO: Yes, I do.

**** EDMOND HUSIC XN MR REITANO
PN1420

THE VICE PRESIDENT: Yes.

PN1421

MR REITANO: Have you taken - what have you done, if anything, to ascertain the number of members of the CEPU that are voting in this ballot?---Well, we did a number of things. Firstly, to determine the number of people that were loading we could, as a simple exercise, look at the number of names provided to the AEC to begin the process of establishing the roll and that gave us a raw figure of the number of people that were voting in the - or likely to vote in this ballot.

PN1422

Did you then take steps to after that to receive any information about the number of people voting?---We had sought through a variation of the order to have the list of voters provided to us so that we could make contact directly with people in the electorate that was going to be established by this ballot, about the election. But we have no other way of knowing how many voters are actually participating in this ballot.

PN1423

Have you asked anyone to provide you with information that might assist you in ascertaining who has voted in this ballot?---Yes. We undertook extensive phone canvassing of our membership to raise the fact that the ballot was taking place, to also ascertain whether or not ballots had been received, given the early indications that had been received by our various state branches about the failure to receive ballot papers, and obviously pressing our case, encouraging our members to support the application for the protected action ballot.

PN1424

And what do you understand - sorry, have there been reports of that information provided to you by anyone?---Yes. I asked the various state branches to provide me with indications of the number of people likely to vote and, you know, likely voting intentions as well.

PN1425

And what do you - what conclusion, if any, did you draw from the information you received?---Well, based purely on this one measure of one-to-one phone contact, we were receiving averages of intentions to vote of up to 90 per cent, that is, 90 per cent of the people who we made direct contact with over the telephone had indicated they wanted to vote in this ballot.

PN1426

And have you been talking to anyone from the AEC about the number of people who have voted?---Yes, I have. I have maintained regular contact with the AEC in Melbourne, either through Warren Cook. I’m led to believe he is currently unwell and not working, and in his absence, John Mellor.

**** EDMOND HUSIC XN MR REITANO
PN1427

Have they provided you with information as recently as about midday today, or shortly after that, with the number of people who have voted?---Yes, they have.

PN1428

And what did they tell you?---They told me that as at the clearance that had occurred earlier today that there were 9,926, or there about, people who had voted.

PN1429

Did you have information about the number of people who voted as of last Friday?---Yes, I did.

PN1430

And what was that information?---It was approximately 5,986.

PN1431

Did you have information about how many people had voted up until last Monday?---Monday, I think - sorry, it would about 6,000 but to be hones I couldn’t give you a hard and accurate figure.

PN1432

And as at yesterday?---Yesterday it was about 9,020.

PN1433

And as today the figure you have given us?---Yes.

PN1434

THE VICE PRESIDENT: Do you know how many people are on the roll?---I’d have no way of knowing, your Honour.

PN1435

How many people are on your list?---19,226.

PN1436

So you have - even if every single member on your roll, is included on the voters, you have got passed the 50 per cent return?---That’s correct. I anticipated that’s the case.

PN1437

Yes. Well, if 9,926 have come in that’s - just shy, isn’t it - just shy of 50 per cent?

PN1438

MR REITANO: No.

PN1439

MR TEHAN: No.

PN1440

MR REITANO: Just over. Your Honour failed maths.

PN1441

THE VICE PRESIDENT: Yes.

PN1442

MR REITANO: It’s just the other side of 50 per cent.

**** EDMOND HUSIC XN MR REITANO
PN1443

THE VICE PRESIDENT: I actually have an Honour’s level pure mathematics university degree.

PN1444

MR TEHAN: It just goes to show those - - -

PN1445

THE VICE PRESIDENT: Pure mathematicians are famously bad at arithmetic. I did understand group theory at one time.

PN1446

MR TEHAN: Applied maths might have been a better option, your Honour.

PN1447

MR REITANO: Have you had any conversations with any of the people that you have been talking to about the ballot about any other matters that might concern you in relation to the ballot closing at 5 o’clock today?---Well, the other big concern that I have is that, for instance, I am aware that a number of our members who did not receive ballot papers and who approached the AEC for duplicate papers and were granted the ability to receive duplicate ballot papers, obviously when - read from that they were legitimately entitled to cast a ballot in this process, they have made application for ballot papers and as at yesterday in New South Wales in a number of delivery centres those people had not yet received their ballot papers, the duplicate ballot papers.

PN1448

Thank you.

PN1449

THE VICE PRESIDENT: Mr Tehan. My arithmetic tells me that at 9,926 the return is above the 50 per cent rate.

PN1450

MR TEHAN: Yes. In many respects, an exercise in futility, this audit. The vote’s in.

<CROSS-EXAMINATION BY MR TEHAN [12.57PM]

PN1451

MR TEHAN: Mr Husic, have you received a ballot paper?---I am not - do not receive one because I was from the lines and general side of our organisation so I’m not an Australia Post employee or a member covered by that section of our membership.

PN1452

You spoke - you said that your state secretary in Victoria was so - Victorian members hadn’t received a ballot paper as at last Friday?---That’s correct.

PN1453

Did you speak to Ms Doyle?---No, I corresponded with her just a few - well, two ways, one through email and a few moments earlier by a text message to clarify her earlier message.

**** EDMOND HUSIC XXN MR TEHAN
PN1454

Would you like to tell his Honour precisely what was in the text message?---Certainly. I asked to clarify an email I received from her yesterday that indicated that indicated that two of her members in Victoria had not received ballot papers as at the end of last week. And I asked her to clarify via text message this morning, was that the Thursday or the Friday, and her response back was Friday.

PN1455

And have those two members received their ballot paper now?---Yes, that’s why I asked the question when they received them and they indicated Friday.

PN1456

So they have received their ballot paper on Friday?---That’s correct.

PN1457

Two people?---Yes, that’s two examples, amongst many.

PN1458

Many? Did Ms Doyle have more examples?---No. I mean, when I’m looking at it from across the board nationally.

PN1459

Did Ms Doyle have more than two?---No. No.

PN1460

Then you said Tasmania?---That’s right.

PN1461

Some ballot papers had not been received there?---Mm.

PN1462

Did you speak to your secretary in Tasmania?---No, I didn’t because the person - that person did not make contact with the people who had raised concerns about the fact they hadn’t received their ballot paper. Those people were people in our divisional office who had made contact with various members of ours that reside within the state of Tasmania.

PN1463

Can we be a bit precise here? To whom did you speak?---To the divisional assistant secretary, Ian Bryant, and also the other divisional assistant secretary, Bert Blackburn.

PN1464

What did Mr Bryant tell you?---He indicated surprise that some of our members had said to him they had not received ballot papers as at Thursday of last week.

PN1465

In Tasmania?---Correct.

PN1466

And how many members in Tasmania had not received a ballot paper?---We had not gone through the process of asking how many had not received them. But we did indications about - sorry, your question needs to be answered from two levels. One is people may not have received ballot papers because they’re not legitimately entitled to vote.

**** EDMOND HUSIC XXN MR TEHAN
PN1467

Yes?---And the second is they’re entitled to vote and didn’t receive them. And so when - what I’m going by is not the people who don’t necessarily receive a ballot paper, because I think by now we can establish that they are probably not entitled to vote. I’m talking about the people who get them late, Thursday, Friday; obviously, one, they’re entitled to vote, two, there’s been some delay in getting their ballot paper and that’s what I’m concerned about. But coming back to your question, I do not have figures that could give me in the State of Tasmania how many people in that circumstance have been affected.

PN1468

What did Mr - so Mr Bryant, it was pretty vague what Mr Bryant said to you?---No, it wasn’t, sir. It was pretty clear. He indicated to me surprise that, you know, people had taken - it had taken so long to get a ballot paper.

PN1469

Had Mr Bryant spoken to anyone in Tasmania?---Yes, he has.

PN1470

A member in Tasmania?---Yes.

PN1471

How many members had Mr Bryant spoken to?---We attempted last weekend, I think it was, to talk to nearly - well, over 350 members. I think we got 250 - - -

PN1472

In Tasmania?---Yes.

PN1473

How did you do that?---We rang them. We rang them.

PN1474

Your members in Tasmania?---Yes.

PN1475

And you spoke to 250 of them?---Approximately, yes.

PN1476

Who spoke to them?---Various members of our organisation.

PN1477

Right. And how many members reported not having received a ballot paper?---I don’t have those figures in front of me.

PN1478

Do you have an indicative figure?---I’m not going to speculate.

PN1479

Was it two?---No. And again, I indicated I’m not going to speculate but I can certainly attempt to try and find out if that would help yourself.

PN1480

But you don’t know. You’re giving evidence here and you don’t know how many members, if any, in Tasmania, had not received a ballot paper?---It’s not that I don’t know right now. I can find out.

**** EDMOND HUSIC XXN MR TEHAN
PN1481

No, you don’t know now, do you?---Yes, sorry, I retract that. I don’t know as at this point.

PN1482

THE VICE PRESIDENT: But you know that there are some that had not received a ballot paper?---Correct, your Honour.

PN1483

You can’t put a figure on it?---That’s right.

PN1484

MR TEHAN: More precisely, I think - - -

PN1485

THE WITNESS: Sorry, if I could just answer your Honour. Your Honour, where I have figures I answered them straight up front as I was giving evidence this morning. If I don’t have them I’m not going to pretend.

PN1486

THE VICE PRESIDENT: Yes.

PN1487

MR TEHAN: More precisely, you don’t know, Mr Bryant has told you?---Yes.

PN1488

I think, your Honour.

PN1489

THE VICE PRESIDENT: Yes.

PN1490

MR TEHAN: Of an unspecified number. And then the union presumably has done a drive in Tasmania to see - to communicate with its members?---That’s right.

PN1491

And you did give that instruction for that to be done?---Yes, I did.

PN1492

And how was it coordinated?---We basically had people ringing members in Tasmania. We had a number of people in our divisional office ringing people in Tasmania, our members, to communicate with them through the ballot process.

PN1493

And they came into the office to do it, to take those calls?---Yes.

PN1494

Or did they do it from home?---A combination. Some people also, when they finished duties at the office would also take some home as well.

PN1495

And did you give them the names of your members and the phone numbers of your members to contact?---Yes.

**** EDMOND HUSIC XXN MR TEHAN
PN1496

And how many people would have been involved in making those calls?---About six on Saturday, three on Sunday.

PN1497

Did you coordinate that?---No, I gave instruction for my divisional assistant secretary, Ian Wright, to coordinate that.

PN1498

Was that regarded as a big job, to do that?---No. It was just something we had to do.

PN1499

Yes. And no one has reported one figure to you of people who haven’t received ballot papers?---I’m confident if I ask the question we could go through the process of finding out how many exactly had not received.

PN1500

But the purpose was you were concerned about - because of what Mr Bryant said to you, that you were concerned that people hadn’t received ballot papers?---No. I have to clarify. The purpose of the exercise was to maximise the number of people voting in this ballot and to encourage them to vote. Through the course of those conversations that we had with our members, they indicated to us their surprise at not getting ballot papers.

PN1501

Yes?---And it’s on the basis of that information - - -

PN1502

“They” being an unspecified number of people?---On the basis of the information transmitted to us via those contacts then formed in me a concern that those people there had not received their ballot, given the proximity to Victoria.

PN1503

We’ll come back to your concerns in a minute, Mr Husic?---Thank you.

PN1504

You gave evidence that 90 per cent people had indicated to you an intention to vote yes?---Mm.

PN1505

Is that from that Tasmanian survey?---It’s an averaging out of - based on calls that had been undertaken across the country. They vary. In Tasmania, for instance, based on those calls, Mr Tehan, we had about 69 per cent in Tasmania indicate that they were intending to vote and, in some states, we had up to 100 per cent.

PN1506

Intending to vote?---Correct.

PN1507

Not intending to vote “yes”?---No, intending to vote and I’m relying on that figure for a specific reason.

**** EDMOND HUSIC XXN MR TEHAN
PN1508

Which is?---Well, to indicate that - a preparedness on behalf of our membership to vote in this ballot and exercise their voice, which is not an exercise in futility.

PN1509

Now, did you say to his Honour that you have not asked the Electoral Commission how many ballot papers they sent out?

PN1510

THE VICE PRESIDENT: No, he didn’t. I didn’t ask that question.

PN1511

MR TEHAN: No, you asked him whether he knew.

PN1512

THE VICE PRESIDENT: I asked whether he knew how many people were on the roll.

PN1513

THE WITNESS: How many people on the roll. Mr Tehan, I haven’t asked the AEC directly, from recollection. And again I don’t see any problem in - well, I don’t see any problem in asking the question but I don’t think I did because I think we went through that exercise and we know where we got in that.

PN1514

MR TEHAN: Do you know how many people are on the roll?---No, I don’t. I can only speculate.

PN1515

Now, you have given some material about the number of people who received - who didn’t receive - who presumably say they haven’t received a ballot paper and therefore they have a duplicate ballot paper?---Yes.

PN1516

Has this problem arisen in New South Wales?---New South Wales is one place where it has occurred, Mr Tehan.

PN1517

Yes. And how many people, do you know, have requested a duplicate ballot paper?---I can only go off a few notes that I made in preparation for being called up right now. And I can indicate, if it pleases, that in Hamilton Delivery Centre, for instance, there were four people waiting on new ballot papers. In Medford Delivery Centre, again in New South Wales, two; Gateshead, one; Croydon Park, six; Hunter Transport, four; Mitchell, in Canberra, four; and those are just the ones that I took down hurriedly before realising I was going to be in this stand.

PN1518

And these are people - six people at Croydon Park, who have not - who say that they have received a ballot paper?

**** EDMOND HUSIC XXN MR TEHAN
PN1519

THE VICE PRESIDENT: Replacement.

PN1520

THE WITNESS: No, replacement.

PN1521

MR TEHAN: A replacement ballot paper. But presumably they didn’t receive an original ballot paper or they didn’t vote for one reason or another. They destroyed it or it was thrown out by - - -

PN1522

THE VICE PRESIDENT: There is any number of explanations?---That’s right.

PN1523

MR TEHAN: Yes, but they’re the most logical ones, presumably.

PN1524

THE VICE PRESIDENT: Ballot paper got lost, ballot paper got destroyed, ballot never arrived and they rang and the Electoral Commission said, “Terribly sorry, we’ll send you another one”.

PN1525

MR TEHAN: That’s what I said. That’s what I said. They were thrown out, destroyed, lost, whatever, but they’re the reasons. I mean, six people at one site?---Correct.

PN1526

Mr Husic, you said that you had some concerns. You expressed concerns last week to Australia Post about a change in the required - processing of replied paid mail, didn’t you?---Yes, I did.

PN1527

You wrote a letter to Australia Post, didn’t you?---Yes, I did.

PN1528

And did you - what was the basis on which you - you said that Australia Post had made alterations to the way in which it processes replied mail?---Well, I hadn’t been intending to raise this matter, Mr Tehan, but I’m glad that you have raised it. I received reports from our membership in New South Wales that in the largest mail processing centre in the country, Sydney West Letters Facility, that a change had taken place that occurred at the same time as this ballot opened, as to the way in which reply paid mail would be processed, moving from automated processes currently in place to embrace a greater use of manual sorting. Given the - - -

PN1529

THE VICE PRESIDENT: Mr Tehan, does this have the slightest relevance?

PN1530

MR TEHAN: It has now. It has now.

**** EDMOND HUSIC XXN MR TEHAN
PN1531

THE VICE PRESIDENT: No, but what’s the relevance to your application?

PN1532

MR TEHAN: Because Australia Post replied saying there had been no change whatsoever.

PN1533

THE VICE PRESIDENT: But what - - -

PN1534

THE WITNESS: So I didn’t press on it.

PN1535

MR TEHAN: And there was - no, no, no. Mr Husic expressed his concerns.

PN1536

THE VICE PRESIDENT: Well, he didn’t, not in his evidence-in-chief.

PN1537

MR TEHAN: No, I’m raising it. I’m saying Mr Husic says he has concerns about these things and I’m saying he’s had previous concerns which have had no substance whatsoever and he accepts that and says he didn’t challenge it any further. It’s all very fine to throw up dust but if there’s nothing in the dust then people need to see through it.

PN1538

THE VICE PRESIDENT: And you’re suggesting that somehow or other the same - that the other evidence he’s given ought be rejected because it may well have the same character about it?

PN1539

MR TEHAN: Your Honour, he’s given evidence that two people in Victoria hadn’t received a ballot paper as at Thursday, last week.

PN1540

THE VICE PRESIDENT: Mr Tehan, it’s actually - it’s not an offence or wrong or even necessarily an occasion for criticism for somebody in Mr Husic’s position to be concerned about enfranchisement of every last single voter. And if the return was less than 50 per cent then I can imagine why it may be far more contentious than some argument that might be constructed that the union was desperately trying to cast about for some device that would give them an opportunity to scrape over the 50 per cent.

PN1541

But if the return is above 50 per cent the action the union is taking now demonstrates nothing more than a commitment that people who are entitled to vote should have that opportunity. And if it’s only six or ten, isn’t that commendable?

**** EDMOND HUSIC XXN MR TEHAN
PN1542

MR TEHAN: Your Honour, I didn’t know these figures until Mr Husic just gave the evidence. I said before I knew the figures of course, if there’s been a problem in the vote, who could oppose it. But if there is - if this is a tiny piece of perception from a particular official who reports to another official - - -

PN1543

THE VICE PRESIDENT: Is there any skin off Australia Post’s nose?

PN1544

MR TEHAN: This is yet another application to - - -

PN1545

THE VICE PRESIDENT: Is there any skin off Australia Post’s nose?

PN1546

MR TEHAN: I’ll come to that. This is yet another application for a variation of the orders which were dates which the union set.

PN1547

THE VICE PRESIDENT: Yes.

PN1548

MR TEHAN: And they know - when they knew what the expected timeframe for getting mail backwards and forwards.

PN1549

THE WITNESS: Mr Tehan, you need to - - -

PN1550

MR TEHAN: And they proposed - they proposed a timeframe.

PN1551

THE VICE PRESIDENT: Yes. And what you have at the moment is evidence, from Mr Husic, which presently I’m disposed to accept, that there are some people who have not received their ballot papers within the timeframe that the union thought, at the time the order was made, would be adequate, and so they’re seeking a variation. Those persons are entitled to vote and who, through apparently no fault of their own, at least in relation to those who were in receipt of ballot papers as late as Thursday or Friday last week, are at risk of being disenfranchised, to ensure that they can be enfranchised.

PN1552

MR TEHAN: There might be reasons why your Honour chooses not to vary the order yet again.

PN1553

THE VICE PRESIDENT: Anyway, that’s a matter for submissions.

PN1554

MR TEHAN: It is, but you asked me a question: was there any skin off Australia Post’s nose.

**** EDMOND HUSIC XXN MR TEHAN
PN1555

THE VICE PRESIDENT: Yes.

PN1556

MR TEHAN: And of course there is skin off Australia Post’s nose because it is entitled to campaign for a no vote in the ballot.

PN1557

THE VICE PRESIDENT: As it’s done, no doubt.

PN1558

MR TEHAN: As it has done, to a degree. But it’s basically stopped its campaign because the closing was finished - is due to finish at 5 o’clock tonight. And here is a situation where on material which was available to the union late last week, but which has been denied to us - - -

PN1559

THE VICE PRESIDENT: The short answer to my question is apparently, “Yes, there is some skin off Australia Post’s nose” in relation to it. Do you have further cross-examination of Mr Husic?

PN1560

MR TEHAN: I want to ask you about Queensland. What reports have you had from Queensland?---I had reports that - - -

PN1561

And from whom?---From the state secretary, Cameron Theile, indicating that members in Rockhampton, Bundaberg and - I think it might have been Toowoomba, had either not received ballot papers. Cairns was another place, where they’d either not received ballot papers, not received their duplicates, from memory, and the general impression I got from my colleague in Queensland was that there had been delays in receiving the mail and were significant concerns about being able to send the mail back in time to meet what we were advertising to everyone they needed to get their ballot papers back, which was by 5 pm in Melbourne today.

PN1562

How many members in Rockhampton?---I don’t know.

PN1563

How many members in Townsville?---Don’t know.

PN1564

How many members in Cairns?---No idea.

PN1565

Had any members in Cairns, Rockhampton, Townsville, received their ballot paper in accordance with Australia Post service standards?---I actually think based on what our people are telling us, no.

**** EDMOND HUSIC XXN MR TEHAN
PN1566

Yes. No member - - -?---I’m not - you know - - -

PN1567

No member has received a ballot paper in accordance with Australia Post service standards. Is that the evidence you give to the Commission?---No, I’m not saying that. I’m saying some people did not but I’m not going to speculate because I know that it causes concern with the corporation when we speculate on our ability to deliver within the standard.

PN1568

So when you say “no” before you now withdraw that evidence?---No, I’m not withdrawing it. I’m saying to you our state secretary told us people received their ballot papers - - -

PN1569

No, I asked you how many - are you saying no members received it in the - within the service standards and you said “no”. But now you withdraw that because you don’t want to make any comment on it?---No, Mr Tehan. I’m not withdrawing anything. I’m just saying to you, I take seriously my responsibility to give you and this Commission accurate information. I don’t have those figures in front of me and I cannot speculate.

PN1570

So you stand by your evidence that no member - - -

PN1571

THE VICE PRESIDENT: He didn’t give - that was not the evidence he gave. It was materially - it was slightly but significantly different. It had to do with thoughts?---That’s right.

PN1572

And on the basis of what had been reported to him.

PN1573

MR TEHAN: As your Honour pleases.

PN1574

In New South Wales, Mr Husic, who has reported to you about not receipt of mail?---Two officials, the state secretary, Mr Metcher, and the state president, Susan Sheather. Susan Sheather gave me an extensive report yesterday detailing the number of workplaces that have been contacted and in those workplaces the number of people, for instance, who hadn’t received ballot papers, and on the basis of that written material, Mr Tehan, I was able to communicate to yourself and the Commission earlier the number of people who hadn’t, for instance, received their ballot papers, or duplicates, I should say.

PN1575

And some of those circumstances were the people not members of the union?---Only members of this union can vote, sir.

**** EDMOND HUSIC XXN MR TEHAN
PN1576

I’m aware of that. Could it be, however, that some of the employees may not have wished to disclose to Ms Sheather that they weren’t members of the union and that she proceeded on a misapprehension?---That would be speculating. I agree that some members may not communicate, Mr Tehan, to us their intentions. I mean, we respect that. But as to, you know, what their motive was in relation to that I’d be hard-pressed to give you answers.

PN1577

Were there any cases that you looked at where they - where employees said they didn’t receive a ballot paper, and they didn’t receive a ballot paper because they were not a member?---I can’t recall any circumstances where that would be the case. And that would be extraordinary if it was.

PN1578

Could I ask you about South Australia, how many - what reports have you had from South Australia, from whom, and what numbers?---I received reports from the state secretary, Graham Lorrain - communicated to me that members, for instance, in Darwin received their papers by Tuesday of last week, as referred - as I referred earlier in this - in the evidence I presented.

PN1579

So they received it within the service standard?---Yes, they did.

PN1580

And did Mr Lorrain give you any - give you a report of people who haven’t received a ballot paper in South Australia?---No, he didn’t and I didn’t press for it, Mr Tehan, on the basis that he seemed satisfied that members there had received their ballot papers.

PN1581

Yes?---But they’re not the ones I’m speaking on behalf of today.

PN1582

And in West Australia, did anyone not receive a ballot paper over there?---I have to confess that Mr Watkins, the state secretary there, did contact me gravely concerned about the fact that on Monday and Tuesday of last week that their members had not received ballot papers even though they were of the belief that those papers had been delivered to Perth Mail Centre via airmail or by airplane by Sunday. But, at any rate, by Tuesday a lot of those members had received their ballot papers and, as such, you know, we didn’t press the case about them not receiving their ballot papers and I don’t press that case now. If it helps, I press my concerns mainly about the eastern seaboard and Tasmania where we can’t work out why our members in those - the eastern seaboard and Tasmania, given their proximity to Victoria, Mr Tehan, haven’t received their ballot papers in as quick a time or in times received by South Australia and WA.

**** EDMOND HUSIC XXN MR TEHAN
PN1583

THE VICE PRESIDENT: Can you make it clear, Mr Husic, for the purposes of this application you’re not trying to say anything about the causes for any delays. You’re simply giving evidence about the fact of delays as you understand it and relying upon that as a basis for seeking extension of the closing time of the roll?---Your Honour, the intention is that people have already cast their votes and their votes are in the system, that they have those votes recorded given the seriousness with which the matters of the ballot relates to it. I don’t make any reflection on cause or whatever. I have no evidence on that.

PN1584

MR TEHAN: Mr Husic, are you aware of Australia Post’s service standards?---Yes, I am and I reacquainted them - myself with them when I was re-reading Ms Walsh’s witness statement.

PN1585

And are you - what is the service standard for an item of mail to go from - - -

PN1586

THE VICE PRESIDENT: Mr Tehan - Mr Husic, can you just go outside for a moment. Well, actually, no. Mr Tehan, what is the point of this? I just thought - I was just trying to establish to make it clear that Mr Husic is not making here any allegation as to the cause of delays. He simply gives evidence of the fact of delays and seeks to rely upon the fact of delays as a basis for seeking an extension of the timetable. Now, are you going to try and cross-examine him with the end goal being to make a submission to me that I should disbelieve his evidence as to delays? Because if that’s not where you’re heading then there’s simply no relevance in the line of questioning at the moment.

PN1587

MR TEHAN: Your Honour, Australia Post has service standards which provide that 96 per cent roughly of mail gets through within the service standards set out

PN1588

THE VICE PRESIDENT: Yes, and Australia Post does its damndest to meet the service standards and ordinarily does. And everyone single one of us can point to personal instances that we have had where the postal system has stuffed up, notwithstanding Australia Post’s best efforts, and that’s because it’s a human institution being run by human beings.

PN1589

MR TEHAN: Well, your Honour, Mr Reitano just made a comment that it’s usually with cheques not being delivered.

PN1590

THE VICE PRESIDENT: It was an attempt at humour, I’m sure.

**** EDMOND HUSIC XXN MR TEHAN
PN1591

MR TEHAN: It is. It is, your Honour. But it puts this on the train of enquiry about the fact that - - -

PN1592

MR REITANO: I withdraw the comment.

PN1593

MR TEHAN: - - - mail might not be posted, that someone says that they haven’t received a letter within a certain time but that could be because it wasn’t posted.

PN1594

THE VICE PRESIDENT: Mr Tehan, let me make a confession to you. I have my 87-year-old father waiting for - it’s a longstanding luncheon engagement. I was endeavouring to finalise this quickly.

PN1595

MR TEHAN: Yes.

PN1596

THE VICE PRESIDENT: You take as long as you like. The old boy can wait.

PN1597

MR TEHAN: Your Honour, I didn’t - - -

PN1598

THE VICE PRESIDENT: No, no, you just take as long as you like and if you want to impugn this witness’ credit, you go right ahead. If we have to sit here till 5 o’clock, we’ll do so.

PN1599

MR TEHAN: Your Honour, in asking a witness a question about service standards you should not take it that I’m impugning his credit. I’m going to put to you - - -

PN1600

THE VICE PRESIDENT: I was - - -

PN1601

MR TEHAN: - - - that 99 per cent of mail is delivered within one day over the service standards and that it - without disputing his credit, impugning his credit, it might - - -

PN1602

THE VICE PRESIDENT: I see. You want to be able to say that I ought reject his evidence on the basis that the better evidence is that 99.9 per cent gets delivered - - -

PN1603

MR TEHAN: 99 per cent.

PN1604

THE VICE PRESIDENT: 99 per cent, a slip in the service standards and therefore it’s improbable that what Mr Husic is saying is true.

**** EDMOND HUSIC XXN MR TEHAN
PN1605

MR TEHAN: No, your Honour. I don’t deny that what Mr Husic says is true. But at the best it is hearsay upon hearsay.

PN1606

THE VICE PRESIDENT: Well, that’s not an issue.

PN1607

MR TEHAN: Those unnamed people who have said to him, said to someone else, who has said to him that they didn’t receive a ballot paper. It’s quite perfectly acceptable to accept Mr Husic’s evidence at this high level. But the reality is that mail is delivered within - to a very high degree of accuracy at - within two business days, one business day and the like.

PN1608

THE VICE PRESIDENT: It’s not the standard out there - - -

PN1609

MR TEHAN: And frankly, your Honour, putting - - -

PN1610

THE VICE PRESIDENT: There’s not citizen out there who hasn’t had an experience an experience of a letter going astray.

PN1611

MR TEHAN: Of course, your Honour.

PN1612

THE VICE PRESIDENT: It’s happened to all of us.

PN1613

MR TEHAN: Of course, your Honour. Of course, your Honour.

PN1614

THE VICE PRESIDENT: That doesn’t mean that Australia Post doesn’t do a fantastic job.

PN1615

MR TEHAN: No, of course not. And it doesn’t say that Mr Husic - when you put to me about trying to impugn Mr Husic’s credit, I’m not doing that. And it’s quite wrong of you to put it to me. But I’m allowed to test him without - and I didn’t know your Honour had another commitment.

PN1616

THE VICE PRESIDENT: No, that’s all right. No, no, no.

PN1617

MR TEHAN: And you’re entitled to be ..... it but you should - I mean, if you’d wanted to adjourn, I mean, we would have been perfectly happy to do that.

PN1618

THE VICE PRESIDENT: No, look, Mr Tehan, I just don’t see the practical point in this, at the end of the day. If 9,926 votes have been returned then the 50 per cent return has been reached and the issue is about “yes” or “no” votes. Mr Husic doesn’t know what people have voted and the extra votes coming in is not going to impact the result in any way that Mr Husic is going to know about.

**** EDMOND HUSIC XXN MR TEHAN
PN1619

MR TEHAN: Nor anybody else.

PN1620

THE VICE PRESIDENT: The inference I draw is that this is a concern about ensuring maximum enfranchisement, that people who are entitled to vote have their votes - and people who have voted have their votes counted. What’s wrong with that?

PN1621

MR TEHAN: There’s nothing wrong with it except that the experts in this area, the CEPU who think they know something about mailing, who are familiar with the service standards, put forward an order to you and they have become edgy because a handful of people have said to someone who said to someone else who said to Mr Husic that they didn’t receive a ballot paper.

PN1622

The evidence is that 98/99 per cent of ballot paper - of mail is delivered within a particular standard. If we had thought that the standard wouldn’t fit, we wouldn’t have agreed to this ballot, this timing either. I mean, this is a correct timetable. In other ballots that are going on people get three weeks but the CEPU wanted this time vote and we have no problem with it. Your Honour, I have no further cross-examination of Mr Husic but it’s - this evidence doesn’t go very far because it is hearsay upon hearsay.

PN1623

THE VICE PRESIDENT: Mr Reitano, do you need to ask any questions in reply?

PN1624

MR REITANO: No, your Honour.

PN1625

THE VICE PRESIDENT: Thank you. Thank you, Mr Husic.

<THE WITNESS WITHDREW [1.27PM]

PN1626

THE VICE PRESIDENT: Mr Tehan, do you wish to call any evidence? You can make the assumption that I accept that - sorry, unless Mr Reitano rises to indicate that he will make a submission to the contrary, I’m happy to act on your submission that 99 per cent of mail is delivered in accordance with the service standard.

PN1627

MR TEHAN: Your Honour, I can tender a document which will give you some comfort about that if you - it may not be in issue but it’s a - - -

PN1628

THE VICE PRESIDENT: Mr Reitano has not indicated that he’s going to oppose the submissions.

PN1629

MR TEHAN: I’m sorry, I didn’t hear him say that. I beg your pardon.

PN1630

THE VICE PRESIDENT: Is there anything further?

PN1631

MR TEHAN: And that’s it, there’s no evidence required from us, your Honour.

PN1632

THE VICE PRESIDENT: Mr Reitano, I don’t need near from you it would seem. Do you want to make any further submissions?

PN1633

MR TEHAN: Your Honour, the union knew the service standards when they proposed the timetable to you. They produced no primary evidence to you whatsoever there’d be any difficulty with the ballot. They have made allegations in the past about slowing up the process which were unfounded and which they accept. The ballot has already finished. The vote is in. And there’s no need for an extension of this order in the circumstances. It sets a bad precedent for future ballots conducted by the Commission.

PN1634

The parties will come along and do their campaigning on a particular basis to find, hours before it’s due to close, an application made to extend it, possibly with a pre-existing campaign strategy by a union to get the ballot papers in in the last couple of days. You can imagine that a union, for example, might be wanting to campaign for a “yes” vote and have a team of people in the course - to ring people and say, “Have you voted? Get your ballot paper out now and get ready to vote and get the ballot paper in because they’ve sought an extension for 72 hours, 96 hours, five days prejudicing the employer which had worked on the basis that the order of the Commission meant what it said.

PN1635

In the context here, where the ballot paper is - where the orders are in, where the union had set a reasonable timeframe and it was its timeframe and they’re the experts. They know these things. It just seems to me to be an extraordinary circumstance where you have no primary evidence whatsoever before you.

PN1636

THE VICE PRESIDENT: I’m going to take some time to consider the 463(5) application but I will ensure that the outcome - and if an order is made the order is communicated by 4.30. There won’t be reasons today but there’ll be reasons promptly after that.

PN1637

In relation to the application to vary the ballot timetable I propose to issue order to vary the timetable to have it close at 5 pm on Friday. I am satisfied that Mr Husic comes to the Commission presenting the hearsay evidence that he does bona fide and that I am satisfied that the union’s concerns are about enfranchisement. I do not consider that - and whilst there is submissions that Mr Tehan made at the end of his submission are not to be discounted, I don’t think that this is an appropriate case in which to refuse the extension on the basis that’s been articulated and in particular the shortness of the extension is going to prevent any sort of call centre style campaign of the sort that Mr Tehan adverted to.

PN1638

I am satisfied that the union’s motivation in seeking an extension is to ensure that all the votes that have in fact already been cast are counted and that there is a proper basis to be concerned that they may not occur, that the extension will assist in that occurring and that the making of the order is consistent with the object o the division in circumstances where, at the end of the day, this whole process is really for the benefit of the union and its members.

PN1639

MR REITANO: Could I raise one matter in relation to the first matter, if I could deal with it that way? I think I referred to an authority that I thought was a CFMEU authority in relation to rolling stoppages. It’s not, it’s the two paragraphs in Davids at 83 and 88 that deal with it, in particular 88. 83 is a reference to North J’s decision and 88 is a reference to the paragraph (b) of the employment bundle that Mr Theile referred to. I think someone referred to. I think somewhere in there there’s a reference to Curra in and around those passages and that’s what I have confused.

PN1640

THE VICE PRESIDENT: Fine. My associate will be in touch with the parties at 4.30.

PN1641

MR TEHAN: Your Honour, there is a - there are two matters which arise. One is we seek to be relieved of the obligation of postage variation order.

PN1642

THE VICE PRESIDENT: Yes. Well, absolutely.

PN1643

MR TEHAN: And secondly, are you proposing to resume in court, your Honour, or will you - - -

PN1644

THE VICE PRESIDENT: No, you’ll just receive a telephone communication. If you want to get back on a plane to Melbourne, feel free.

PN1645

MR TEHAN: As your Honour pleases.

PN1646

THE VICE PRESIDENT: Fine. I’ll adjourn.

<ADJOURNED ACCORDINGLY [1.34PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E1 STATEMENT OF BEN JUSTIN FRANZI PN848
BEN JUSTIN FRANZI, AFFIRMED PN851
EXAMINATION-IN-CHIEF BY MR TEHAN PN851
CROSS-EXAMINATION BY MR REITANO PN860
RE-EXAMINATION BY MR TEHAN PN1089
THE WITNESS WITHDREW PN1142
EDMOND HUSIC, AFFIRMED PN1388
EXAMINATION-IN-CHIEF BY MR REITANO PN1388
CROSS-EXAMINATION BY MR TEHAN PN1450
THE WITNESS WITHDREW PN1625