BP2007/460, Transcript of Proceedings [2007] AIRCTrans 596 (31 October 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17657-1

COMMISSIONER RAFFAELLI

BP2007/460

s.451(1) - Application for order for protected action ballot to be held
National Union of Workers
and
Corporate Express Australia Limited
(BP2007/460)

SYDNEY

4.06PM, WEDNESDAY, 17 OCTOBER 2007

PN1

MR T LYONS: I appear on behalf of the National Union of Workers, the applicant, and with me is MR M MUELLER.

PN2

MS M HURLEY-SMITH: I seek leave to appear on behalf of Corporate Express. With me is MS B MAHER, solicitor. Also behind me but not at the bar table is MR G CHALMERS who is the general manager for the respondent, and also MR A FEGHALI who is the operations manager for the respondent.

PN3

THE COMMISSIONER: Yes, thank you. Any opposition to leave being granted Mr Lyons?

PN4

MR LYONS: No, Commissioner.

PN5

THE COMMISSIONER: Okay, leave is granted, Ms Hurley-Smith. Yes, Mr Lyons?

PN6

MR LYONS: If the Commission pleases. Commissioner, in this matter we make application pursuant to section 451(1) of the Act for the holding of a protected action ballot pursuant to an order of the Commission. In respect of the materials the Commission will have seen that filed along with the application itself were a series of attachments going to the requirements of the Act and draft orders and also an affidavit of the organiser, Ms Perkins.

PN7

There are also two additional affidavits on which we'd seek to rely, one of which goes to the service of the original bargaining period. As I think the Commission might have been apprised, there is some issue between the parties about whether the bargaining period notice was provided to the respondent, and so there's an additional affidavit of Ms Perkins going to that.

PN8

Out of abundance of caution there is also an affidavit of Mr Mueller which simply extracts a portion of the minutes of the branch committee of management, the New South Wales branch, sir, going to the authorisation of Mr Belan who made the application. The affidavit itself simply attaches a portion of the minutes, the portion of the minutes having already been provided to the solicitors for the respondent in respect of the other earlier proceedings. So perhaps if I could commence by providing the Commission with the three originals of those affidavits?

PN9

I think the proper course - we do have this issue in respect of the bargaining period, Commissioner, and it may be prudent to deal with that as a threshold issue subject to what my friend has to say, but I think that necessitates Ms Perkins going into the box in the first instance and identifying the affidavit. So if I could call Amanda Perkins?

PN10

THE COMMISSIONER: Yes.

PN11

MS SMITH: I'm comfortable with that course, Commissioner.

<AMANDA PERKINS, SWORN [4.10PM]
<EXAMINATION-IN-CHIEF BY MR LYONS

PN12

MR LYONS: Ms Perkins, could you state your full name for the record please?
---Amanda Perkins.

PN13

Ms Perkins, have you made two affidavits in relation to these proceedings before the Commission?---That's correct.

PN14

And you have those affidavits in front of you?---I do.

PN15

And the first affidavit is dated 15 October 2007?---That's correct.

PN16

And is that affidavit a true and accurate statement to the best of your knowledge?
---Yes.

PN17

Commissioner, I'd seek to have that marked.

EXHIBIT #NUW1 STATEMENT OF AMANDA PERKINS DATED 15/10/2007

PN18

MR LYONS: Ms Perkins, you've made a second affidavit dated today,
17 October 2007?---That's correct.

PN19

And you have that affidavit in front of you?---I do.

PN20

And is that affidavit a true and accurate statement to the best of your knowledge?
---Yes.

PN21

Commissioner, I'd seek to have that marked as well.

EXHIBIT #NUW2 STATEMENT OF AMANDA PERKINS DATED 17/10/2007

PN22

MR LYONS: Ms Perkins, in respect of your first affidavit you attest to a conduct of negotiations with the respondent over a considerable period, and in the concluding paragraphs of your affidavit you indicate that agreement has not been reached. Are you able to indicate to the Commission any further developments that have occurred since the making of this affidavit?---I have been informed by the delegate on the site that the only thing that's happened on the site since this affidavit was made was a warehouse meeting was called by the company and the offer of AWAs either for a period of 12 months or three years was reiterated.

**** AMANDA PERKINS XN MR LYONS
PN23

And when you say a warehouse meeting, can you explain to the Commission what that involved?---The company calls regular warehouse meetings, they're usually conducted by Anwar Feghali, in which the employees are expected to attend.

PN24

Did, to your knowledge, Mr Feghali conduct the meeting to which you're referring?---To my knowledge, yes.

PN25

And do you know when that meeting was?---It was on Monday.

PN26

Thank you. In respect of your second affidavit which is NUW2, your evidence is that you left a copy of the bargaining period notice with the receptionist at the premises. Were those receptionists known to you?---Yes, they were.

PN27

And how do you know them?---I have been going to the site for several years now and I know those receptionists by sight and they know me.

PN28

And were the receptionists, based on your observations, adults?---Yes.

PN29

You're quite definite about that?---I'm quite definite.

PN30

Ms Perkins, when you attended the site on 18 September 2007 did you sign an attendance book or a sign in book in respect of your attendance at the premises?
---No, I didn't because it wasn't my intention to enter the warehouse. I only sign the attendance book and collect a safety vest when there's been a prior arrangement for me to go into the warehouse.

PN31

So all you did was enter reception?---That's correct.

PN32

Do you have a diary note in relation to your attendance at the site on
18 September?---I do.

PN33

Are you able to tell the Commission what the content of that diary note was?
---Serve BP. It's a small diary, BP standing for bargaining period.

PN34

Commissioner, I don't have any further questions for the witness, thank you.

PN35

THE COMMISSIONER: Ms Hurley-Smith?

**** AMANDA PERKINS XN MR LYONS

<CROSS-EXAMINATION BY MS HURLEY-SMITH [4.15PM]

PN36

MS HURLEY-SMITH: So where were you on 18 September?---At what time?

PN37

In the morning?---I went to the Granville office first in Bridge Street to pick up the bargaining period that had been prepared for me, and I drove out to the Rosebery site, parked in the company car park, and went into the reception area.

PN38

And what did you do after that?---I called the delegate, Mario Da Silva, and asked him to come to reception so he could act as a witness, which he did.

PN39

If I could take you to your second affidavit which is NUW2, you say in paragraph 2 that you went to the reception area. Can you describe the person that you say you handed the notice to?---There's usually two receptionists and on this time there was two receptionists there and they were two receptionists that I had seen before. One of them had dark hair.

PN40

Can you remember anything else about the receptionists?---I am familiar with those receptionists and they're familiar with me.

PN41

So is your evidence that the person you handed the notice to had dark hair?---I couldn't say. There was two receptionists there, one of whom I know had dark hair, but there was definitely two receptionists there. There's three receptionists at Corporate Express that tend to rotate, two of them with dark hair, one with blonde hair. I know one of the dark haired women was there.

PN42

Do you know that person's name who you handed the notice to?---I didn't. I've been told that the name of the two receptionists since, but I didn't know at the time that I actually handed the notice, no. I only knew them to say hello to and smile at.

PN43

When you handed the notice to the person did you ask for the person's name?
---No.

PN44

Why not?---My expectation is that when I give something to a receptionist at a professional place they will hand it on to the person I've asked it to be given to, and I was given that woman's assurance that it would get to Anwar Feghali. I had no reason to doubt that she would do what I asked.

**** AMANDA PERKINS XXN MS HURLEY-SMITH
PN45

Approximately what time do you say that you were in the reception area?---I couldn't say the exact time. I know it was before 12 noon because I had another meeting scheduled for a company in Botany at 12 noon, and I went to Corporate Express before I went to the company at Botany.

PN46

Did you provide the receptionist with a covering letter or any other associated documentation?---I just handed her the bargaining period.

PN47

Why didn't you draft a covering letter?---I can't answer that. I was given a bargaining period to serve on the company, I drove out with the sole purpose of serving that bargaining period, I called the delegate as a witness.

PN48

Did you fax a copy to Corporate Express?---I'm not in charge of - I don't know. My role was to personally drive to the site from Granville and serve the bargaining period in front of a witness, and that's what I did.

PN49

When you were told by the receptionist that Anwar was not there did you make inquiries about where he was?---No. I asked her, I handed her the bargaining period and I asked her to make sure that he received it, and she said words to the effect, I certainly will.

PN50

Can I show you a copy of a facsimile that was sent by your union to Corporate Express, it's a fax dated 2 October. Have you seen a copy of this facsimile before today?---I might have done.

PN51

You can see from that fax can't you that it's dated 2 October?---Yes.

PN52

And you agree that that's a date after 18 September?---Yes.

PN53

Would you agree that this fax does not mention any new bargaining period notice?---No, it doesn't.

PN54

Would you agree that this document was faxed to Corporate Express?---Yes, it's got a fax stamp on it.

PN55

How do you usually communicate with Corporate Express?---Telephone, sometimes fax, sometimes letters, sometimes person to person. When something's really important I would go in person.

**** AMANDA PERKINS XXN MS HURLEY-SMITH
PN56

But would it be fair to say that most of your communication with the company is via fax?---No.

PN57

In terms of documents?---No.

PN58

Would you agree that it's unusual that you didn't fax the notice to initiate a bargaining period notice to Corporate Express?---No.

PN59

Would you agree that the last bargaining period notice was faxed to Corporate Express?---It may have been.

PN60

You understand that the bargaining period notice is an important document?
---Yes. That's why I drove it there personally and went in with a witness.

PN61

But what you're telling the Commission is that you didn't fax a copy of the notice like the previous application?---I have no idea what was faxed and not faxed with the bargaining period previously. My job as an organiser was to drive out personally and deliver the bargaining period, which is what I do when I want to be absolutely guaranteed that it is received and served.

PN62

But you didn't get the name of the person that you handed the notice to?---I've had no reason to doubt the conduct of the reception at Corporate Express in the years I've been going there, and I had no reason to be anxious that that woman would not hand on the document that she said she would hand on, I've got no reason to doubt her.

PN63

If I can take you to your affidavit, which is your first affidavit which is marked NUW1. At paragraph 28 you talk about a meeting that you had with the company, do you see that?---With Anwar Feghali and Paul Brown the solicitor, yes.

PN64

That's right. Did you discuss the new bargaining period notice at that meeting?
---I wasn't the person that really was the chief negotiator at that meeting. Our industrial officer, Stefan Mueller, was.

PN65

I suppose the question is, can you recall a new bargaining period notice being referred to in that meeting?---Look, I haven't got my notes from that meeting with me.

**** AMANDA PERKINS XXN MS HURLEY-SMITH
PN66

But you can't recall?---I haven't got my notes from that meeting.

PN67

Did you inquire with the company at that meeting whether they had received the notice?---No.

PN68

So you never made any inquiries with Mr Feghali or any other representative of Corporate Express about whether they'd actually received that notice?---I had no reason to doubt that the receptionist didn't do what she said she would do.

PN69

So you didn't at any stage attempt to confirm with Mr Feghali that he had received any notice?---I had no reason to doubt that he did.

PN70

Isn't it true that you didn't serve the bargaining notice?---Absolutely not.

PN71

Can I take you to the bargaining period notice attached to the application which is at attachment A. I'm told that you don't have a copy of the application, so I might just refer you to your second affidavit which is NUW2 and the notice attached to there?---The bargaining period notice you mean?

PN72

That's correct. Sorry, Commissioner, I just want to make sure the witness has a copy of the application. If I could just hand - it might be easier that way.

PN73

So if I can take you to, in the application that you now have in front of you, to attachment A, which is the notice to initiate a bargaining period?---Yes.

PN74

If you go to page 2 of that document under (a) where it says "The single business or part of the single business to be covered by the proposed agreement"?---Yes.

PN75

Do you see there, do you agree that it refers to the Rosebery site at Epsom Road?
---Yes.

PN76

Do you see that? And then it refers to the Botany site?---Yes.

PN77

And then it goes on and it says "and any other site operate by Corporate Express Australia Ltd within the state of New South Wales during the life of the proposed agreement?---Yes.

PN78

You see that. If I can now take you to a copy of the application for the protected action ballot, and you'll see on the first page of that application that under employer it talks about Corporate Express Australia Ltd, and then under that it talks about the workplace and workplace address?---Yes.

**** AMANDA PERKINS XXN MS HURLEY-SMITH
PN79

Do you see there that it says the Rosebery site at Epsom Road, do you see that?
---Yes.

PN80

And that it then talks about the site at 110 Dalmeny Avenue, Rosebery, do you see that?---Yes.

PN81

And that it also talks about the site at 30 Sir Joseph Banks Drive, Botany?---Yes.

PN82

Can you confirm what sites you were seeking the collective agreement for?---Are you asking me to answer questions about this application?

PN83

Yes?---I didn't prepare it.

PN84

What I'm asking you is, looking at the application and noting that the application just refers to three sites?---Yes.

PN85

And that the bargaining period notice refers to those three sites but then goes on, do you see, and it says "and any other site operated by Corporate Express Australia within the state of New South Wales," I'm just asking you to the best of your knowledge confirm what sites your union is seeking a collective agreement for?

PN86

MR LYONS: Commissioner, if there's a question about the scope of the application or issues about that my friend wants to raise, then they're questions to me, in my submission, not for the witness. If there's some alleged defect in the papers they fall to me and Mr Mueller to answer, not the witness. In essence there seems to be some attempt to get the witness to defend or otherwise the court documents which, in our submission, isn't appropriate. My friend will have ample opportunity to take what objection she does to either the sufficiency or particularity of the documents, and we'll have to deal with that at the appropriate moment, but that's a matter for submission in our view, sir.

PN87

MS HURLEY-SMITH: Commissioner, I'm happy to purely address my, or focus my attention at the moment with this witness on the issue of service, however, there are some matters which I would like to take the witness to in relation to her initial affidavit NUW1 that go to various matters which I would like to make submissions on in relation to the form of the application, and I would like an opportunity to cross-examination this witness in relation to that. So I'm happy to do that either now or at a later stage, but I would like an opportunity to get some evidentiary foundation to some later submissions that I would like to make in relation to the application itself.

**** AMANDA PERKINS XXN MS HURLEY-SMITH
PN88

MR LYONS: Sir, the application is not in Ms Perkins's name. The application is in Mr Belan's name, and it's not evidence, it's an application, and it's either in the correct form sufficient to ground the Commission's jurisdiction or it's not. It's not a matter for evidence. It's an attempt to cross-examine as to - - -

PN89

THE COMMISSIONER: Yes, I think, Ms Hurley-Smith, you're entitled to cross-examine on what's in the affidavit and matters associated with that, or matters that aren't said but are within the scope of what the witness knows about and is responsible for. But the broader question that you make as to what the organisation may seek to be achieving, what it seeks, and comparing that with the other documents as to what it might seems to have sought in other circumstances really is not for the witness. It won't assist me. And probably by having had the witness in the box for some time she'll be quite cautious or cagey about what she says. But that's not to stop you. That was about the form, but you did actually mention some other matters, and I'm not quite sure what those questions are, but until an objection is raised you can proceed.

PN90

MS HURLEY-SMITH: Thank you, Commissioner.

PN91

Could I take you to paragraph 6 of your affidavit, your initial affidavit NUW1. Do you agree that - - -?---I just haven't found it yet, sorry.

PN92

Sorry?---Paragraph 6?

PN93

Paragraph 6 of NUW1, your first affidavit?---Yes.

PN94

Do you agree that in this paragraph that you set out a number of meetings that you say that you had with Corporate Express?---Yes.

PN95

Would you agree that all of these meetings as set out in this paragraph here occurred prior to 18 September?---Yes.

PN96

If I could take you now to paragraph 26 of that same affidavit?---Yes.

PN97

And you'll see here that you say that a new bargaining period has been initiated on 17 September 2007, correct?---Yes.

PN98

You then go on to, in the next paragraph, talk about and attach the fax of 2 October which I took you to previously, is that correct?---Yes.

**** AMANDA PERKINS XXN MS HURLEY-SMITH
PN99

And then in the next paragraph you'll see here that you talk about a meeting that you had with the company at Baker McKenzie's offices on 8 October, do you see that?---That's right.

PN100

So you'd agree that really the only meeting that occurred in the period
18 September 2007 to today with the company is set out there in paragraph 28?
---That's the only one that we could actually get the company to, yes.

PN101

If I could just have a moment, Commissioner, I'll just see if there's anything further.

PN102

If I could take you to the application again for protected action ballot, and if I could take you to the question to be put to the employees, would you agree that the question to be put to the employee does not refer to preventing access to either the Rosebery or Botany sites?---I didn't write this question.

PN103

MR LYONS: Again, Commissioner, questions about the efficacy or legality of the questions put are matters for submission, and are not matters about which this witness has been called to give evidence. If there's some defect with the question we propose, again, that's dealt with a process of the respective parties making submissions to you and you determining any question that remains unresolved. It's not a matter, in our submission, that lends itself to witness evidence.

PN104

THE COMMISSIONER: Yes, Ms Hurley-Smith, I think that's right.

PN105

MS HURLEY-SMITH: Thank you, Commissioner. Nothing further.

PN106

THE COMMISSIONER: Anything in re-examination, Mr Lyons?

PN107

MR LYONS: Very briefly, sir.

<RE-EXAMINATION BY MR LYONS [4.38PM]

PN108

MR LYONS: Ms Perkins, in your second affidavit there is attached the - - -

PN109

THE COMMISSIONER: Sorry, there's a little arrow in the second affidavit. At the top she's written 17 August. It's 17 October isn't it? I think it's signed on the 17th.

PN110

MR LYONS: Yes, indeed.

**** AMANDA PERKINS RXN MR LYONS
PN111

THE COMMISSIONER: I just looked at that before. So that should read October. Anyway, nothing - - -

PN112

MR LYONS: Your Honour, gremlins have defeated us again, sir.

PN113

Ms Perkins, attached to your second affidavit is the notice of initiation of bargaining period?---Yes.

PN114

If you can turn to the second page of the notice?---Yes.

PN115

In the bottom half of the page you will see some matters listed and numbered one to eight and then a number nine on the second page?---Yes.

PN116

You would agree that those are the matters that the union wants to deal with in the proposed new agreement?---Yes.

PN117

And were those matters numbered one to nine, the matters which were discussed at the meeting you attended at Baker McKenzie which is referred to in your first affidavit?---Yes.

PN118

Thank you, sir.

PN119

THE COMMISSIONER: Referred to in the first affidavit or the second affidavit? You said the first affidavit. The Baker and McKenzie meeting was the one in October wasn't it?

PN120

MR LYONS: Yes, it was, sir. Perhaps, your Honour, that question was potentially confusing.

PN121

If I can take you to your first affidavit, Ms Perkins?---Yes.

PN122

Are the matters which we just discussed at numbers one through to nine in your second affidavit, were they discussed at the meeting which you refer to at paragraph 28 of your first affidavit?---Yes.

PN123

I think that part of it is clarified now.

PN124

THE COMMISSIONER: Yes. Yes, thank you, Ms Perkins, you're excused.

<THE WITNESS WITHDREW [4.41PM]

PN125

MS HURLEY-SMITH: Commissioner, we have some further submissions we'd like to make on the issue of service, but also we have a statement prepared by Mr Anwar Feghali, the operations manager of Corporate Express, and we would seek to put it into evidence.

<ANWAR FEGHALI, SWORN [4.42PM]
<EXAMINATION-IN-CHIEF BY MS HURLEY-SMITH

PN126

MS HURLEY-SMITH: Mr Feghali, what is your position with Corporate Express?---I'm the state's operation manager.

PN127

Have you prepared a statement in preparation for today's hearing?---A statement, yes.

PN128

And you have a copy of that statement?---Yes, that's correct.

PN129

Is this statement true and correct to the best of your knowledge?---Yes, it is.

PN130

Commissioner, I seek to tender that statement.

PN131

THE COMMISSIONER: Is there a copy for me?

EXHIBIT #CE1 STATEMENT OF ANWAR FEGHALI

PN132

MS HURLEY-SMITH: I have no further questions of the witness.

PN133

THE COMMISSIONER: Yes, Mr Lyons?

PN134

MR LYONS: Thank you, Commissioner.

<CROSS-EXAMINATION BY MR LYONS [4.43PM]

PN135

MR LYONS: Mr Feghali, you were present in the court during Ms Perkins's evidence?---Yes, I was.

PN136

And so you heard her evidence in relation to her having left the document at the reception, the bargaining period notice at the reception of the Rosebery premises?
---Yes, I did, yes.

PN137

And had you in the course of preparing your own affidavit seen what we referred to as Ms Perkins's second affidavit that was NUW2 concerning service of the bargaining period notice?---Yes, I've seen it, yes.

PN138

You have, okay. As I understand your evidence, it is that you didn't get the bargaining period notice?---No, I didn't.

PN139

But you're not in a position to contradict Ms Perkins's evidence that she left it at reception are you?---Yes, I am.

**** ANWAR FEGHALI XXN MR LYONS
PN140

On what basis are you able to do that?---On the basis as what happened based on the statement from Ms Perkins and the practice and the process we have at reception, and the statement, like Ms Perkins say in her statement that she came and asked for me and she had Mario with her, and everyone knew, Mario and everyone in that warehouse knew I wasn't in. So there is a difference between coming to reception and handing a document for Anwar Feghali and coming to reception and asking to see Anwar Feghali while everyone in the state knows Anwar Feghali's office is - - -

PN141

Well, Ms Perkins mightn't have known you were overseas though?---Yes, but Mario would have known.

PN142

But with respect, sir, that's not the question I asked. The question is, you're not in a position to contradict Ms Perkins's evidence that she left the document at reception?---I doubt it.

PN143

But you can't contradict it. You doubt it but you can't contradict it?---Yes.

PN144

You give evidence that you have, and you've extracted in fact to your statement the attendance book, is that what you call it at the site?---That is correct.

PN145

Which is the site's due procedure. You would have heard Ms Perkins's evidence that the reason she didn't sign it was that she wasn't going any further than reception. Presumably that's what the book's for isn't it, if you're actually entering the warehouse or the broader office area or whatever else at the premises?---What she said in her testimony right now, she said she didn't sign it because she didn't go in the warehouse, she was visiting reception, that's what she said.

PN146

Yes?---Yes. Every person that visits the company, the reception, office or warehouse signs the books.

PN147

Where is the book?---The book is at reception at the front desk.

PN148

So you can walk up to the counter and leave a document without having to go past that, you don't have to go past the book?---Yes, but apparently you didn't walk from the street and left the document, you asked for a team member to meet you at reception, apparently you spent some time at reception. And when you approached the counter you had a team member with you which is a witness, so you weren't just dropping document, you went there for a while, for a period of time.

**** ANWAR FEGHALI XXN MR LYONS
PN149

In reception?---In reception, yes.

PN150

Nothing else, sir, thank you. Thank you, Mr Feghali.

<RE-EXAMINATION BY MS HURLEY-SMITH [4.47PM]

PN151

MS HURLEY-SMITH: Mr Feghali, can I take you to paragraph 10 of your statement. Is it true that you've made inquiries of the reception staff as to whether the document was received by you?---That is correct.

PN152

MR LYONS: Well, sir, re-examination is customarily limited to matters which were raised either directly or by me.

PN153

THE COMMISSIONER: I know paragraph 10. There was no question from the other side about it. It's a stage where it is - I don't think you're entitled to re-examine on that, I want to clarify that.

PN154

MS HURLEY-SMITH: I'll leave it at that.

PN155

THE COMMISSIONER: Anything else?

PN156

MS HURLEY-SMITH: No, no further questions.

PN157

THE COMMISSIONER: Thank you, Mr Feghali, you're excused.

<THE WITNESS WITHDREW [4.48PM]

PN158

THE COMMISSIONER: Back to you, Mr Lyons, I think.

PN159

MR LYONS: I think so, sir. Sir, with your indulgence it may be sensible to deal discretely with the issue concerning the bargaining period first, given something does stem from it I think. Sir, in relation to the bargaining period, and I've been guilty of this I admit myself in relation to the language that has been used. We've all been using the term service. As the Commission would be aware service has a, in most contexts, a particular meaning and, indeed, from memory there's a definition in the Acts Interpretation Act which prevails where a definition is not provided in the particular Commonwealth statute. However, the Act in this case does not require service to be affected.

PN160

Section 423(3) requires simply that the initiating party give written notice. Now, in our submission give written notice is not the same as service. If the parliament intended service commonly understood it would have used the term service. And, indeed, service does appear in the Act in other contexts, certainly in relation to those provisions dealing with registered organisations. So all it requires us to do, sir, is to give the other party written notice.

PN161

Now, we say that we've done that by Ms Perkins attending and leaving the document. In fact we'd go one step further than that, sir, and say we have actually affected service in a legal technical sense even if it was required, because leaving the document at the place of business with a person who appears to be an adult is sufficient service for legal purposes.

PN162

There is no basis on which the evidence of Ms Perkins is to be doubted. She has a clear recollection, she has a diary note. Indeed, her evidence to you, sir, is that she did this very deliberately because she understood the importance of the document. Now, that can be accepted, sir, without for a moment doubting the integrity of Mr Feghali's evidence, that is, there can be a breakdown in the system at the receiving end, but that in simple terms, sir, is not our fault and doesn't remove the fact that the initiating party being the NUW has provided the respondent with a notice in writing in the required form.

PN163

We actually say we went further than that because we've affected service in a narrow and a technical sense. But we do say that the words of the statute are quite clear, if we give the notice in writing then the bargaining period is on foot. Now, sir, lest something be made as I anticipate from the cross-examination of Ms Perkins of the fact that at the meeting at Baker McKenzie and in the subsequent correspondence between the union and Corporate Express, that there was not extensive discussion about the fact that there was a bargaining period, in our submission that's not remotely unusual, sir.

PN164

People don't have the negotiation about the technical documents, they have the negotiation about the issues that are to be included in the agreement, and that in fact is Ms Perkins's evidence, that what they discussed at the meeting in broad terms, sir, was the log of claims. They were trying to fix the dispute. And nothing whatsoever we say can be made from the fact that the parties weren't sitting around talking about the fact that there was a bargaining period which had been initiated, or any of the technical requirements that are associated with that process.

PN165

So we say that the Commission should be satisfied on Ms Perkins's evidence that the initiator has given the other side written notice as required by 423(3) of the Act, and a valid bargaining period is in place. Unless you have any questions about that, sir? If the Commission pleases.

PN166

THE COMMISSIONER: Yes, Ms Hurley-Smith?

PN167

MS HURLEY-SMITH: Thank you, sir. It remains our view that the question of service is an important one, and we are instructed by Corporate Express that service was not affected, that the notice to initiate the bargaining period was not served or, using the words of my friend, not given to Corporate Express as provided for the evidence of Amanda Perkins.

PN168

We rely upon the evidence provided by Mr Feghali and the matters set out in the statement of Mr Feghali, which set out in some detail the history of the applications - I'll use the rule in this matter - in terms of the initial application for an order for a protected action that was served by the union on 11 September, and the fact that that was the important document that was faxed by the union which attached the initial notice to initiate a bargaining period.

PN169

Now, the history of this matter is important in this question, because on the last occasion when we were here before you in relation to what I'll call the initial application, the union withdrew their application on the basis of what I'll call a defect in the initial bargaining notice period. So in our submission the bargaining notice was very important, and it was the understanding when we left here on the last occasion of the importance of the bargaining notice period, and also that the process may well have to be revisited.

PN170

Given the importance of the fact that the initial application was withdrawn, we say that it's extremely important the timing of the application and also the issue of service, because our primary submission is that it is a fundamental requirement of the Act to get the bargaining period notice right, because the application and the industrial action that flows from the bargaining notice - sorry, that flows from the application, it flows from the bargaining notice. And we say that if the union wants to achieve what it wants to achieve in relation to the bargaining period, we say that it needed to have been properly given to the company and, secondly, that an appropriate negotiation process occur under that new bargaining period.

PN171

Now, I have something to say about that as a later point separate from the concept of notice in terms of submissions in relation to section 461. But restricting my comments in relation to service, we say it is our submission that the current application should either be dismissed or withdrawn by the union on the basis that service was not affected. We say that a bargaining period begins when, according to section 427, when the initiating notice was given. We contest that it was given, and it is our submission that the bargaining notice has not been given, and therefore a bargaining period notice or a bargaining period has not come into effect, because as we stand here today, Commissioner, we say that notice has not been given by the union. They're my submissions.

PN172

THE COMMISSIONER: Thank you. Mr Lyons, 423(3) requires written notice to be given to each negotiating party and to the Commission.

PN173

MR LYONS: Yes.

PN174

THE COMMISSIONER: And 427 says the bargaining period begins at the end of seven days or after seven days - well, seven days after the day on which the notice was given or, if it's given to different persons, the later or the latest of those days. Is the Commission one of those persons?

PN175

MR LYONS: I suspect, sir, that the reference to persons is a reference to the negotiating parties.

PN176

MS HURLEY-SMITH: If I could be of assistance? I think the relevant provision is 423(3).

PN177

THE COMMISSIONER: Yes.

PN178

MR LYONS: Yes, indeed, and to the Commission. So I think, sir, I've always worked on the basis that the Commission was included for practical purposes, although I've never turned my mind to it in the narrow sense. But it's the last day you serve anyway. I mean, there may be circumstances, sir, for example where there is multiple trade unions involved and you need to serve the other unions as well, but my understanding is that the document was filed with the Commission as well.

PN179

THE COMMISSIONER: Well, I don't know if we have records of that.

PN180

MR LYONS: Well, it's acquired a bargaining period number, sir, so my presumption was - - -

PN181

THE COMMISSIONER: Well, let's just have a look at that, that could be right.

PN182

MR LYONS: If you hold on one moment, sir, I think my friend has - I think, sir, we've - Mr Mueller is just finding the multiple copies, but we do have the receipt notices, we have the receipt emails from the registry from the electronic filing system.

PN183

THE COMMISSIONER: Yes, show me those, thank you. Thank you. I don't need to trouble you any more. You were going to say something, I'd interrupted you, sorry, Mr Lyons. Ms Hurley-Smith had put her submissions, you were going to get up to say something and I referred to the Commission. It seems that the bargaining period was given a number at or about 18 or 19 September. Certainly it wasn't done when you filed two days ago. That was my trouble.

PN184

MR LYONS: No, we didn't acquire a matter number when we filed the ballot application, sir, no.

PN185

THE COMMISSIONER: Unfortunately - well, not unfortunately, but the Commission, when you lodge a ballot the old BP continues, and that had not made its way to the back of this file, but it seems as if for present purposes the material was provided to the Commission, in other words, the written notice was given to the Commission. Whether it's given to the other side, well, you were going to tell me about that. You need to respond to the objection.

PN186

MR LYONS: Well, the simple point I was intending to make, sir, was this. My friend again said service consistent with her submission, but that is not the language in the statute. In our submission 427 is of no assistance because again it uses that word giving. So in 423(3) we have give written notice, 427 we have a bargaining period commencing after notice was given, not served. Now, we say we served it anyway, but even if there's some narrow technical defect in respect of service - and I might say my friend hasn't taken you to any of the technical requirements of service as legally defined, she relying on, well, we didn't get it - in our submission the Commission can safely rely on the evidence of Ms Perkins that a bargaining period was initiated. If the Commission pleases.

PN187

THE COMMISSIONER: Yes, I note what has been said, and there's certainly some factors, I won't say facts, but there's some factors for example why, as Mr Feghali has said, why ask to see him when everybody knew, perhaps even Ms Perkins knew that he was overseas. The issue of whether it is the practice to sign the attendance book in the circumstances of a union official visiting even if they're not crossing the line into the work area, no mention of the bargaining period, they are all matters that can be answered in one way or another, and maybe they would normally raise some issue. But what can't be ultimately challenged is the direct evidence of the witness, and the Commission sees not reason not to accept that Ms Perkins, as she has sworn the situation to be, that she visited the site on 18 October and she left the notice initiating a bargaining period, there is no basis to challenge that evidence and, in fact, there has been no direct challenge to it. Even Mr Feghali was unable to say it didn't happen. I guess his position was, it is in his view contrary to practice. The other issue of course was the non use of a fax contrary to practice, but nonetheless there is no challenge, no direct challenge to the witness.

PN188

As a matter of discretion there's no basis for me not to accept the witness. As a matter of perhaps good practice it is inappropriate for the Commission to not accept an unchallenged witness, and I therefore accept it, and I am satisfied that the bargaining period was initiated by the NUW giving written notice in the form of a notice initiating a bargaining period to Corporate Express, and at or about the same time to the Commission, and consequently pursuant to section 427 seven days after that a bargaining period commenced and, in my view, and I find that there is currently a bargaining period in place. Yes, Mr Lyons?

PN189

MR LYONS: If the Commission pleases. Sir, if I could have one moment to ask my friend something? Thank you, sir, we've clarified whether a particular issue in the proceedings which will obviate some level of submissions. Commissioner, we start these proceedings, if I may, by referring to the description given to these provisions by the explanatory memorandum to the original bill, and we consider that useful because we think it is appropriate that the Commission have regard to the purpose of the provisions.

PN190

The explanatory memorandum said that the provisions are designed to be facilitative, ie, to provide the means for accessing protected action, not prohibitive, ie, to outline the circumstances in which such action is not available. Perhaps if I can provide to the Commission an extract from the ex mem to that effect. And that's paragraph 1393, sir. And as I think the Commission might be aware, that particular provision of the ex mem has been noted in a couple of the Full Bench authorities in relation to the conduct of secret ballots.

PN191

We say the task for the Commission is to do what the parliament intended, which is to take a facilitative approach, that is, the position is that if we meet the requirements of the Act the Commission is in fact obligated to issue an order in the appropriate form, and that it is not appropriate to take an overly technical approach or, indeed, an approach which has the effect of rendering the provisions prohibitive. And so with that opening observation, sir, it's our submission that the material before you satisfies all of the procedural and technical prerequisites for having an order made and, accordingly, that the Commission as currently constituted is obligated to issue an order.

PN192

If I can take you to the statutory requirements, sir? And I might do so I think given the time, sir, reasonably briefly and then deal with anything that arises from my friend rather than attempt to anticipate what her objections might be. Firstly, sir, the application is in the required form, it includes all the required information, in particular it indicates the question to be put, the types of employees, and proposes the identity of the nominated ballot agent in accordance with section 452. In our submission the union has standing to make the application pursuant to section 451(3)(a) of the Act.

PN193

As is clear from the evidence of Ms Perkins and, indeed, is accepted I think, any existing agreement binding on the parties has passed its nominal expiry date, meeting the requirement of 451(2)(a), a bargaining period in accordance with section 423 exists between the parties. That bargaining period which is attached to the application as attachment A contains all the required particulars of a bargaining period notice in accordance with section 426, and in accordance with 453(1)(a) and (b) has been annexed to the application.

PN194

The application itself, sir, was made by a duly authorised officer of the NUW, meeting the requirement of 453(2), and in short, sir, that authorisation of Mr Belan was given by the branch committee by management and is attested to by the minutes that were attached to Mr Mueller's affidavit which we have provided to you, sir, but which we haven't marked.

PN195

The application is accompanied by a declaration in the required form concerning the claims for the proposed agreement, including that those claims do not include a claim for the inclusion of prohibited content. That, Commissioner, meets the requirements of 453(1)(c) and 453(4) and (5) and regulation 9.7 to the Act. There appears to be no issues, Commissioner, concerning the filing and service of the ballot application meeting the requirements of 454.

PN196

In satisfaction of the requirements of the Act proper notice of these proceedings were given to the employer and to the employees via the notice issued by your chambers, sir, and the Electoral Commission in order that they may be heard on the application should they wish, in accordance with 457 and 458(2) of the Act. It is our submission that none of the exclusions as to protected action that are contained in the Act would apply in relation to any action approved under a ballot conducted under the order that we propose. Those exclusions are at 436 to 446, sir.

PN197

Finally, we indicate that on the evidence that is before you, which is Ms Perkins's evidence, and Ms Perkins is the only person that has given evidence in these proceedings concerning the negotiations, there is no evidence from the company about that at all, you can be satisfied that the applicant, that is the union, has tried and is genuinely trying to reach agreement with the employer. That's meeting the test in 461(1)(a) and (b).

PN198

Now, in relation to that question, sir, as you are aware from the previous proceedings and the content of Ms Perkins's affidavit, the union and Corporate Express have been trying to sort out these matters for a very long time back to March, and there's been some dead ends pursued over the course of that time, but there's been a very long period of discussions about replacement for the pre-existing state registered enterprise agreement.

PN199

In the previous application for a secret ballot that related to the earlier bargaining period there was defects alleged. The union has gone away and remedied those. The union has, since the initiation of the bargaining period, tried and continues to try to reach agreement with the employer. It's a requirement, sir, that you be satisfied that during the bargaining period we have taken steps, but that ought not, in our submission, blind you to the long history of these discussions.

PN200

It would be remarkable in our view if the Commission were to simply ignore the material, indeed, from its own knowledge or put before you in the form of Ms Perkins's affidavit. The reality is the parties have been trying to sort this out for a long time, sir. They have been unable to. It's Ms Perkins's evidence that the company is pursuing aggressively as late as this week as part of it's strategy, which is offering Australian Workplace Agreements to the employees. We don't like that, but they're entitled to do it. We wish they weren't, but they are. But we are entitled as part of our weaponry, if you like, in the scheme of the Act, to seek to change their position by taking protected industrial action, having exhausted or attempted the negotiations. And we say that is what has occurred.

PN201

In our submission, sir, granting the application in the form sought is consistent with the objects of Division 4 of Part 9 of the Act and, indeed, with the facilitative intention of the provisions to which I referred at the opening of my remarks. We also indicate that the proposed timetable inserted in the draft orders provided by your chambers we say is consistent with the statutory scheme and appropriate, and we have no objection to the orders issuing in the form that has been prepared presumably - sorry. I'm sorry, sir, there is one small change to one of the timings of the lunches. Does the Commission have the proposed draft order?

PN202

THE COMMISSIONER: Yes.

PN203

MR LYONS: At paragraph 7.2 it's my instructions that the reference to the Rosebery site, the meal breaks are between 12 noon and 12.30, not 11 am and 11.30.

PN204

THE COMMISSIONER: Sorry?

PN205

MR LYONS: Between noon and 12.30, not 11 am and 11.30 at Rosebery.

PN206

MS HURLEY-SMITH: Can I just take a moment to confirm that?

PN207

MR LYONS: Yes. What I thought is perhaps before any orders issue that the union and Corporate Express, specifically Ms Perkins and Mr Feghali, could just have a moment to make sure those times are right, if the orders are to issue. Save and except for that what we say is a small issue, sir, we are comfortable with the order being issued in that form and, indeed, say that it is consistent with both the application and the statutory requirements. Sir, I might leave the submissions there at that point rather than anticipate anything my friend says.

PN208

THE COMMISSIONER: Yes. Yes, Ms Hurley-Smith?

PN209

MS HURLEY-SMITH: Thank you, Commissioner. Principally our submissions go to section 461, whereby the Commission must not grant the application unless it is satisfied that (a) during the bargaining period the applicant genuinely tried to reach agreement with the employer of the relevant employees and (b) the applicant is genuinely trying to reach agreement with the employer.

PN210

Our submission is that the requirements of 461(1)(a) and (b) have not been met. We rely upon the evidence of Ms Perkins in this regard and the evidence of Mr Feghali in that regard as well. And if I could take the Commission to the relevant provisions that we rely upon. In the affidavit of Amanda Perkins which is NUW1 you will recall, Commissioner, that I took Ms Perkins to paragraph 6 of that statement, and Ms Perkins agreed that all of those meetings set out there in paragraph 6 with Corporate Express occurred prior to 18 September, which is the date that the notice was given to the company.

PN211

Ms Perkins's statement also at paragraph 27 and paragraph 28 details the steps, if you like, or the activities that occurred between the company and the union in the period after the service of the revised bargaining period. So we say that the evidence of any negotiations, if you like, between the parties can only be contained in paragraph 28, which is one meeting on 8 October 2007. Now, Mr Feghali also gives evidence about that meeting in his statement at paragraph 7. Mr Feghali confirms that on 8 October a meeting was held with representatives of the NUW and that this meeting was attended by a number of representatives of both the company and the union.

PN212

It is our submission that the bargaining period notice did not come into effect until 25 September, which is seven days after the notice is given, and therefore there is only evidence before the Commission by both Ms Perkins and Mr Feghali of one meeting. Now, we say that my friend's submissions in relation to the long history of the matter in that regard is irrelevant because what the Commission, in our respectful submission, what the Commission is concerned about is the question of what arises out of the bargaining period notification of 18 September, which is BP2007/420.

PN213

So we say any evidence of the negotiations prior to the BP2007/420 are irrelevant and that the Commission should only have regard in relation to the question of whether the parties genuinely tried to reach agreement in relation to that one meeting. And the importance of that is because the application and the industrial action that followed arise out of the bargaining period, not plural, the bargaining periods, it's this bargaining period. So we say that there is no evidence before the Commission other than this one meeting of any other attempts by the parties to reach agreement in relation to a new collective workplace agreement.

PN214

And we think it is relevant to that question also that you have before you evidence of Mr Feghali whereby he states that at that meeting he was not aware of this new bargaining period notification, and therefore we submit that is evidence of the fact that under this bargaining period in relation to what this application arises out of, and therefore what the industrial action will arise out of, there has not been a genuine attempt by the parties to reach agreement.

PN215

THE COMMISSIONER: But the Act talks about trying to reach agreement, not trying to discuss the bargaining period. The bargaining period, it's not even a document, it is a timepiece that says a period. It just says within a certain timeframe certain things must say. Mr Feghali did not say at no time in his evidence that the union is not trying to reach agreement with Corporate Express. All he said was, I'm unaware of the BP. That doesn't take us that far I wouldn't have thought, Ms Hurley-Smith. Anyway I hear what you say. Agreements are reached in most instances in this tribunal in the past and presumably with the new body where they certify it without bargaining periods. They're reached because bargaining periods are usually only something that the parties avail themselves of either to get the assistance of the Commission or to whack each other over the head.

PN216

So the provisions don't actually say that reaching an agreement is necessarily referrable to the document, the BP document. All it says is that during the bargaining period the parties must be or the applicant must be trying to reach agreement. Mr Feghali hasn't said that the NUW is not trying to reach agreement.

PN217

MS HURLEY-SMITH: I agree with you, Commissioner, in that sense. No, he did not say that. And I think our submissions go no higher than submitting to the Commission that the bargaining period is the base and everything flows from that, and that ultimately our submission is that those comments in relation to whether there has been attempts to reach agreement arise out of the bargaining period.

PN218

THE COMMISSIONER: Yes.

PN219

MS HURLEY-SMITH: That's in effect our submission. Commissioner, I attempted to ask Ms Perkins during her cross-examination some questions that my friend classified as going to the form of the classification. And I'd like to, I think, put it in the terms of just seek some clarification from my friend in relation to that. So I thought if I might just be given some leeway to essentially put my concerns and then my friend can address those.

PN220

THE COMMISSIONER: Yes.

PN221

MS HURLEY-SMITH: If I could take the Commission to the bargaining period notice, and on the second page of the notice under provision A it talks about the single business to be covered by the proposed collective agreement being, and it goes on to set out the two Rosebery sites and the Botany site, and it states "and any other site operated by Corporate Express Australia Ltd within the state of New South Wales during the life of the proposed agreement." And then if I could take the Commission by point of reference to the bargaining period notice over to the application, and on the first page of the application the workplace identified in the application on the first page sets out the addresses of the two Rosebery sites and then sets out the address of the Botany site.

PN222

Our point of clarification essentially goes to confirmation of what sites the union is seeking the collective agreement for. The reason for seeking this clarification is what we see to be very broad wording of the language in the bargaining period notification, as Mr Feghali has identified in his statement, there are nine Corporate Express sites in New South Wales, and we just seek confirmation from the union given the broad wording of "and any other site operated by Corporate Express within the state of New South Wales," confirmation of the sites that they are seeking a collective agreement for. I suppose that's the first point of clarification.

PN223

The second point of clarification is in relation to the question to be put to the employees as set out in the application under questions to be put. By way of clarification in terms of the question to be put to the employees we note from the question that there is no reference to the industrial action preventing access to either the Rosebery or Botany sites and that there is no mention in the question to be put to the employees of preventing egress or blocking driveways or stopping trucks from entering the site, and we would just seek confirmation from the union that this is not part of the industrial action that they intend to take once this question is put to the employees. They're our clarifications.

PN224

MR LYONS: Could I just have a moment with Mr Mueller, sir, before I answer those concerns? Can I say, sir, that I think my friend protested a little too much about not understanding what the intent is. The intent is to seek an agreement to cover the existing sites that are named and any other site where that work might be performed. As the Commission would be aware from the other proceedings, there is potential for a new facility to be opened. It is not the intention that it covers the regional facilities that are referred to in Mr Feghali's affidavit. And, in fact, that's been subject of lengthy discussion, sir, between the parties, and I think the company ought have a clear understanding of what's intended. My understanding is there are other arrangements that might apply at some of those regional sites in any event.

PN225

So if you like, sir, the position in the bargaining period is the position, the broad approach in the negotiations from a blank sheet of paper, and the position in respect of the question to be put are those persons at the sites where there are currently employees.

PN226

THE COMMISSIONER: Well, those sites that are identified, those three sites.

PN227

MR LYONS: Yes. The second cause of concern I think can be put to bed quite simply. Commissioner, I don't propose to say anything about picketing the activity, which is what I think my friend was referring to. It in fact cost our union a very great deal of money in Davids v NUW to discover that picketing is not protected action and cannot be protected action, and that is the simple reason, sir, why there's no reference to those sort of protest activities of any form in the notice. That sort of activity doesn't fall within the statutory definition of industrial action and it can't be the subject of this form of statutory protection.

PN228

THE COMMISSIONER: Because your usual work is not stopping trucks from going in and out.

PN229

MR LYONS: Indeed.

PN230

THE COMMISSIONER: If it was then it would be normal stoppage.

PN231

MR LYONS: Indeed. If someone was paid to do that, sir, then yes, that would be failure to perform work in the normal way. The Full Court of the Federal Court says that's not industrial action and accordingly it's not listed. I think what that leaves us with, sir, is the issue of genuinely attempt to reach agreement. Now, the Commission will be familiar with the cases in respect of this question, but the very curious thing about the submission in this matter is it's not put that we have capriciously added and withdrawn claims. It's not put that we have refused to meet. It's not put that we have been unreasonable or we haven't made the right people available to have the meeting.

PN232

The sole ground of this objection is the reliance on the fact that there was one face to face meeting between the initiation of the bargaining period and this application. Now, that is a very minor objection in our submission. The statute doesn't say after three meetings you're entitled to have a ballot, or after six meetings or after a certain number of meetings involving a certain number of key personnel. It says you must genuinely attempt to reach an agreement.

PN233

Now, sir, in circumstances where there is no criticism made of the union's conduct, merely the volume of negotiations, that is, in our submission, a very minor criticism indeed, and it stands in contrast, sir, to those matters in the case law where there is very substantial objection taken to the conduct of an applicant party over the course of the negotiations.

PN234

I made the observation that the Commission oughtn't blind itself to all that has gone before and, in fact, the case law supports that position, sir. If you consider those cases for example in relation to prohibited content, large amounts of the case law relate to who said what to whom over the broader course of the negotiations going right back to the original status of the negotiations. We accept that during the bargaining period it is necessary that we try and continue to try. In relation to that, sir, we'd rely on, first of all, the letter which we provided to the company which is attached to Ms Perkins's first affidavit. This is the letter of Mr Belan that appears as AP6.

PN235

And you will see there that Mr Belan proposes a meeting and that that meeting be conducted by the officer to whom he had delegated that responsibility, being Ms Perkins, and proposes a series of times. The Commission will also recall that Ms Perkins's evidence about this was that there was one meeting because that was all we could get the company to, evidence which was not contradicted by Mr Feghali, isn't contradicted in his statement and wasn't taken up by my friend.

PN236

So we've been trying. We've had the meeting. The parties in the negotiations since March are pretty well across, sir, what the issues are that are between them. It wasn't when the bargaining period was initiated, you know, to refer to Pol Pot, it wasn't day one in the year zero. People came to that meeting with an acquired knowledge and a background of the issues. And so they had that meeting understanding, with a good understanding of what the whole series of issues that have been discussed between the NUW and Corporate Express since March of 2007 were, and what were those matters which were so far preventing the parties reaching agreement.

PN237

You also had Ms Perkins's evidence under my re-examination, sir, that the content of the claims set out in the bargaining period, and that was paragraphs one through nine, were discussed at that meeting. Again that was uncontradicted. Finally, sir, I just want to make one observation about the task that falls to you in relation to the question of genuinely attempt to reach agreement. It's clear on our submissions and the cases, and in particular I think this is clear from the Full Bench, although they principally, sir, deal with the issue of prohibited content, but more broadly the requirements in respect of the protected action, the Full Bench in the Country Fire Authority Victoria, which is PR973841, and the Tyco Australia Pty Ltd trading as Wormald, which is PR974317, it's clear on our submission, sir, that the task for you is to determine whether you are satisfied that the applicant has genuinely attempted to reach agreement. And that is a question of your own judgment based on your knowledge of the total facts and circumstances of the proceedings.

PN238

We say there is no basis for you to determine other than the fact that we are genuinely attempting to reach agreement and, indeed, in our submission, it would be extraordinary if you did in circumstances where the respondent makes no objection to our actual conduct, only to the quantity of the conduct in the period since the service of the last bargaining period. On that basis, sir, it would be our submission that all of the statutory requirements have been met and, in fact, that you have an obligation to issue an order in the form that you consider appropriate. If the Commission pleases.

PN239

THE COMMISSIONER: Ms Hurley-Smith, you had clarified the issue of the picketing, that's Mr Lyons's words, not yours, and as to what the current sites that they're seeking.

PN240

MS HURLEY-SMITH: We're satisfied with the union's explanation.

PN241

THE COMMISSIONER: I know you're not satisfied with their application, but yes. ell, look, I have before me, as I said earlier, or as I found earlier, an application for the taking of protected action during a bargaining period which, as I said, came in force some weeks ago. All the requirements of the Act as far as the protected action ballot is concerned have been satisfied, and those, I hasten to add, those that are of a technical and formal nature, and there has been no real challenge to that, there has been a clarification as to a number of matters, and I do not make any observation on those, in no way a finding. I'm not sure that the applicant union needs to, at the point of balloting its members, indicate exactly what the final agreement ought go to if the parties have negotiated on that and fairly know what they are talking about. In any case that's been clarified.

PN242

The ultimate issue between the parties is whether there's been a genuine attempt or the applicant union has genuinely tried to reach agreement and is genuinely still trying to reach agreement with the employer. That must occur during the bargaining period. There is no evidence even from the company's witness that the NUW was not on 8 October seeking to reach an agreement, and nor is there any evidence from the company witness that it is not genuinely trying to reach agreement apart from that meeting of 8 October.

PN243

On the other hand, the evidence of the NUWs witness is that in fact they did have a meeting and either all or a number of the items specified in the bargaining period were pressed and raised. There is the letter of 2 October asking the company to meet with - the letter from the NUW asking the company to meet with it about matters. So I don't think there is on its face any doubt or challenge to the fact that there was meetings and that the NUW was pursuing the matter, accepting that only one meeting did occur.

PN244

If that was the only meeting that had occurred between the parties then it may very well be that some real question mark might be raised. Equally, if there had been a number of meetings before the bargaining period, then there was a meeting or some meetings after the bargaining period and there was some reason to believe that while the earlier pre-bargaining period meetings, that there was genuineness, but in the post bargaining period or within the bargaining period there was no longer genuineness, then the requirement of 461(1)(a) or (b) would not be met.

PN245

But what I am faced with in this situation is that there were meetings before the bargaining period. There is nothing been put to the Commission that in those meetings the NUW wasn't genuinely pursuing items. And then in my view that informs and strengthens the proposition that emanates from the documentation that I've referred to and the evidence of Ms Perkins that at least on 8 October the union was continuing to be genuine in the pursuit of an agreement.

PN246

In my view I am satisfied that during that bargaining period the NUW was genuinely trying to reach agreement with Corporate Express and that the NUW is genuinely trying to reach agreement with Corporate Express, and there's been no suggestion that the NUW has engaged in pattern bargaining, and because of that and those findings I must grant the application, as I reiterated earlier, for a ballot order because all other matters of a technical or formal nature have been satisfied.

PN247

Consequently I propose to issue two orders, one along the lines of the draft circulated, which is the one I've called the larger order, and the other one is an order determining that the Australian Electoral Commission will be the authorised ballot agent for the conduct of the ballot. Are we agreed that the meal breaks at Rosebery are between 12 noon and 12.30 pm?

PN248

MR LYONS: Commissioner, I'm instructed that there may actually be a night shift at one of the sites too. I think it would assist the parties if we could go off the record for just a couple of moments and do this because it's really for Mr Feghali and Ms Perkins rather than those at the bar table to sort that out.

PN249

THE COMMISSIONER: Yes, okay.

PN250

MR LYONS: If the Commission pleases.

<ADJOURNED INDEFINITELY [6.02PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

AMANDA PERKINS, SWORN PN11
EXAMINATION-IN-CHIEF BY MR LYONS PN11
EXHIBIT #NUW1 STATEMENT OF AMANDA PERKINS DATED 15/10/2007 PN17
EXHIBIT #NUW2 STATEMENT OF AMANDA PERKINS DATED 17/10/2007 PN21
CROSS-EXAMINATION BY MS HURLEY-SMITH PN35
RE-EXAMINATION BY MR LYONS PN107
THE WITNESS WITHDREW PN124
ANWAR FEGHALI, SWORN PN125
EXAMINATION-IN-CHIEF BY MS HURLEY-SMITH PN125
EXHIBIT #CE1 STATEMENT OF ANWAR FEGHALI PN131
CROSS-EXAMINATION BY MR LYONS PN134
RE-EXAMINATION BY MS HURLEY-SMITH PN150
THE WITNESS WITHDREW PN157