BP2007/4448, Transcript of Proceedings [2007] AIRCTrans 647 (4 December 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17785-1

COMMISSIONER SPENCER

BP2007/4448

s.451(1) - Application for order for protected action ballot to be held
The Bacon Factories’ Union of Employees, Queensland
and
Swickers Kingaroy Bacon Factory Pty Ltd
(BP2007/4448)

BRISBANE

10.26AM, THURSDAY, 15 NOVEMBER 2007

PN1

MR T SCHULZ: I appear for and on behalf of The Bacon Factories' Union of Employees, Queensland

PN2

MR J FRANKEN: I act for Livingstone's and appear on behalf of Swickers Kingaroy Bacon Factory respondent in this matter.

PN3

THE COMMISSIONER: It's your application Mr Schulz and I understand that both parties are going to transfer the papers as are in common between the parties.

PN4

MR FRANKEN: That is correct.

PN5

THE COMMISSIONER: All right thank you and I have received some further submissions as I understand Mr Franken.

PN6

MR FRANKEN: Your Honour, may I just explain that. The original application that was done, I was briefed at the last moment and I thank that would generally be an excepted the comments that he made to me in that regard. A submission was prepared and there was some paragraphs right at the end of that submission that should not have been there and all I've done with the new one, is just to remove that. I would have asked in any case for the deletion of those.

PN7

THE COMMISSIONER: All right, you have that document, there's no difficulty with that Mr Schulz?

PN8

MR SCHULZ: No Commissioner I imagine it would have shortened proceedings somewhat because he was rolling over I thought, I can understand why he has done.

PN9

THE COMMISSIONER: I've never seen him do that yet Mr Schulz, but anyway. Now just so the parties have an understanding. We do have a transcript we don't have a reporter, but we do have a transcript, I think there's movement between the two this morning, so we'll work on that basis. You intend to proceed with all - because I understand - generally there is obviously the tests that need to be met in terms of the Commission exercising it's discretion in relation to the secret ballot issue, but there's also this issue between the parties in relation to the ballot agent. I'm not wanting to pin you down Mr Schulz, but did you seek, just going to run both limbs of that particular matter because there are a number of witnesses and I'm assuming that those witnesses are in the courtroom now, is that correct?

PN10

MR SCHULZ: Commissioner there are two affidavits or witness statements that have been filed, one from each party - sorry two - - -

PN11

THE COMMISSIONER: Mr Schloss?

PN12

MR SCHULZ: Mr Schloss is here for the employer, Mr Burgess from the union. Mr Myatt is a problem and I apologise to the Commission and Mr Franken, I wasn't aware and neither was Mr Myatt that he would be required to attend. I'm currently in the process of trying to track him down. If the Commission is disposed to taking evidence over the phone from Mr Myatt well then that would be a course of action. I understand Mr Franken might have a view about that, but we'll wait and hear what he has to say. But that's the situation currently. Commissioner both Mr Franken and myself have discussed this morning, we are both newies to this process and we'll be looking forward to your guidance through the process.

PN13

THE COMMISSIONER: That was really my reason for the - it's in no way denigrating because of the number of representatives, it's still early days with this piece of legislation, so there's a number of parties that haven't in fact run these particular cases before the Commission. But really so that both parties know and in which direction the case was going, because we do have these witnesses. So you were going to start off with some submissions generally as I understand and perhaps it might be worthwhile asking Mr Franken whether you are wanting to cross-examine Mr Schloss and Mr Myatt.

PN14

MR FRANKEN: Your Honour, may I reserve my decision on that until the end of the submissions?

PN15

THE COMMISSIONER: Yes.

PN16

MR FRANKEN: As you rightfully say we all are new in terms of this legislation to try and get as much support as you can from decisions that have been made, but there's not that many that have been made in regard to some of the issues, and I'll talk to you about that when it's appropriate, but I think that once Mr Schulz has maybe responded to my submissions I will be in a better position to gauge whether we maybe should call upon the evidence of Mr Myatt so that I could cross-examine him.

PN17

I think that most properly, if I may suggest and I acknowledge that it's up to you and your discretion and your decision, but that maybe the most opportune time to make a decision whether - because Mr Schloss' evidence is basically in support of the submissions I'm making. I'm happy to put him in the witness box, should that be required. There might be a need for me to cross-examine Mr Myatt about some of the issues, because I think that will come out in response.

PN18

THE COMMISSIONER: Right well Mr Franken I'm not wanting to confine you at this stage and make you take a particular position that might prejudice your actual submissions or the manner you wish to proceed, I just want there to be understanding between the parties.

PN19

MR FRANKEN: I think Mr Schulz and I will always understand each other I think, we may disagree but I think there will always be some room for understanding.

PN20

THE COMMISSIONER: Some commonality there. All right well it might be that Mr Schulz if you'd like to lead off and if along the way we need to have discussions as to the whereabouts of the witnesses or the requirement to call them, we'll do that at that appropriate time.

PN21

MR SCHULZ: Excuse me Commissioner I was just clarifying to keep the witnesses here that's all.

PN22

THE COMMISSIONER: Yes, I was going to ask you that that I understand that both those gentlemen are instructing in some degree in any way, and there's no objection to them staying, is that correct?

PN23

MR SCHULZ: Yes, that is correct.

PN24

THE COMMISSIONER: Sorry there's another jurisdictional question I was going to put to you. The application was filed late last week and I understand that within the first 24 hours action was taken by my chambers to list the matter and there was discussion certainly with Mr Schulz and the employer and I understand that this was an agreed course in listing the matter today and that there's no objection to the matter not coming on within 48 hours, that the proceeding today was an agreed course of action.

PN25

MR FRANKEN: I'm very comfortable Commissioner I was just handed the brief to take it up and I was unaware that there was no notice of appearance of our appearance filed, and I filed that yesterday I think when I realised there was none. I've got no objection or problem with it, I'm comfortable to proceed.

PN26

THE COMMISSIONER: Yes, right, Mr Schulz?

PN27

MR SCHULZ: Just touching on that briefly Commissioner yes I had some discussions with your associate we have no issue with it. It was probably of benefit to all parties that it was delayed for a couple of extra days. There have been further discussions between the employer's principle and myself personally at the office of Livingstone's on Monday of this week and unfortunately they have not been able to break the deadlock in the negotiations as we currently face.

PN28

THE COMMISSIONER: All right.

PN29

MR SCHULZ: So on that basis we were happy to proceed with that delay.

PN30

THE COMMISSIONER: All right, because we were, and I think as we indicated, there was difficulty for the parties getting it on the Friday and having their papers ready for the Friday and we were interstate Monday, Tuesday and commitments on Wednesday, but I'd just like to record that there is an agreed position because we had that obligation. Thank you Mr Schulz if you'd like to proceed. Now you're dealing with first of all are you going to take me to your application and your submissions just so I have the correct documents?

PN31

MR SCHULZ: In accordance with the directions or the Commission we certainly filed the necessary, I believe the necessary paperwork with one exception and I'll come to that shortly. Certainly we have filed the draft order and draft order of directions and a further draft order which will be on the file with regard to the appointment and - of the balloting agent. We have filed the outline of submissions which I'll speak on briefly. I may be able to somewhat narrow the proceedings down and perhaps we might want to discuss this with Mr Franken.

PN32

On reading the employer's submission in opposition to our application, it seems to me there are probably three issues. One is there's a jurisdictional point raised about who is proposed to be balloted. The second one relates around the suitability of the proposed ballot agent, which we have nominated. The third one which I briefly touched on a second ago was the question of approval by the committee of management. Commissioner from my own inexperience I filed the documentation that was required in reference to form 11 which is one of the documents that sets these proceedings in train.

PN33

Rightly or wrongly form 11 from the Registry talks about filing documentation in accordance with subsections 453 sub (1) and sub (3), but without going on to the following documents that are listed there, I didn't pick up the issue of the organization of employees showing written notes and which refers to subsection (2) of the Act in that section 453. So I have given an opening to the employer there to attack the application. If it's appropriate I'm happy at this point in time to tender if the Commission is so disposed a copy of the minutes of the executive of the Bacon Factories' Union of employees that were held on 12 October which include the authorization of the committee of management of the BFUE, namely the state council that the application be lodged.

PN34

I as the general secretary am instructed to file it and I would point out to the Commission, that I'm happy to tender this. But the cautionary is that they have not yet been adopted as yet because there's been no subsequent meeting to these minutes. This is the last meeting of council and they don't meet again until the end of next month, so I just point that out. So I'm happy to present these up and whether you wish to accept it or - - -

PN35

THE COMMISSIONER: Well do you want to allow Mr Franken to have a look at those?

PN36

MR FRANKEN: I've got a fundamental objection about that being lodged at this stage and even being handed up to the Bench and I'll address that in my submission if I may.

PN37

THE COMMISSIONER: Well we might deal with that particular issue, if we can deal with that issue?

PN38

MR SCHULZ: Yes, Commissioner look I don't make many more submissions on that very point apart from what's already been said and it is my own fault, my inexperience in dealing with these matters that these documents were not filed. In the context of the documents that have been filed, reference has been made by in the application signed off by myself as the general secretary of the union and also in the statement of Mr Burgess which has been tendered. The state council met on 12 October and it did approve the course of action that has been undertaken. I have not filed a copy of those minutes

PN39

I think reading the Act talks about some sort of written notice, I'm not sure what the quality of those documents are, but we're providing copies albeit of the unadopted and unconfirmed minutes at this stage, of the committee of management meeting of the BFUE which authorized the action. I can't do any more than that or say any more than that Commissioner.

PN40

THE COMMISSIONER: All right thank you.

PN41

MR SCHULZ: I appreciate that it is late in the process but the paper work is here.
THE COMMISSIONER: Right thank you, Mr Franken?

PN42

MR FRANKEN: Commissioner I looked at that and I looked at the application, it's very obvious if one goes to section 453 it talks about the material to accompany the applications and I've actually quoted the sections verbatim in my submissions on page 3. It says:

PN43

Material to accompany section 453, material to accompany application (1) the application must be accompanied by (a), (b), (c) and then subsection (2) if the applicant is an organization of employees the application must be accompanied by a written notice showing that the application has been duly authorized by a committee of management of the organization or by someone authorized by such a committee to authorize the application.

PN44

I've actually trolled through some of the decisions, and there's no decision in terms of what a written notice would in fact constitute. But it's very obvious that a mere statement and I must also agree you will notice that I mention on page 4 of my submission, that the only reference to that specific section could be the statement by Mr Burgess where he says:

PN45

Members authorize the actions -

PN46

Then paragraph 19 he says:

PN47

I was in attendance at the meeting of the union state council which was held on 12 October 2007. State council unanimously endorsed the actions of the Kingaroy Branch and authorized the commencement of the proceedings to allow the branch to undertake the industrial actions approved. The general secretary Tom Schulz was instructed to authorize to commence proceedings.

PN48

My submission is simply this that that is a statement made in an affidavit filed by a union official. Although there's no decision been made by this Commission, by the Federal Commission in any of the states in regard to that, I would like to submit that written notice means exactly a written notice. It does not mean a statement made in an affidavit and with the acknowledgement of Mr Schulz that, yes there was a decision taken on 12 October, the information that we have at the moment is that that decision has not been adopted. So technically that means that the decision has not been ratified and if I really want to be technical it means that that decision is not a proper decision as envisaged by the section of the Act.

PN49

I know I don't have any support for that that I can refer you to, but commonsense tells you that first of all that if there's no ratification or adoption at another level which is a requirement I would believe and I'm opening myself for criticism because I haven't had time to prepare for this, but I would imagine that in the constitution that is the way that decisions will be made and that the constitution requires them to have these decisions adopted or ratified at a higher level. Now if that has not happened, I don't believe that there is a decision that has been made or that such action has been authorized in terms of the founding documents or the constitution of that organization.

PN50

I bring it back to the current situation, it's very obvious that the written notice, written notice is not just a statement and I think it's an opportunity for somebody to explore it and maybe write some decision. But to me written notice, it says exactly that. But further than that Commissioner section - subsection (1) starts off by saying:

PN51

The application must be accompanied by -

PN52

Which means that when you lodge the application the legal requirement is that these documents should be in place and if I go behind the scenes of this, it's clearly aimed at the following. If a decision has been made by an organization and that decision has gone through all the various levels and in this case it's been adopted or ratified at another level, at the time that you lodge that application, that authorization should be in place. You cannot approach this Commission if you do not have the authorization to back you up to make an application for a secret ballot that has not been authorized by the organization's authority structures, if I can use that word.

PN53

That's why I believe that the Commission cannot be lenient in applying section 453 by allowing documents to be handed an expo facto basis because the Act is obligatory that it must accompany the application. In this case and with the greatest of respect to my learned friend, even if you handed up the document, it doesn't present authorization because it's not been adopted. I didn't have the opportunity to get into the constitution and find out, but what is clear, is that that decision has not been ratified at the appropriate level of authority within the organization and therefore could never at this stage be any authorization.

PN54

THE COMMISSIONER: But is your submission Mr Franken, that the authorization of the ratification of that particular decision is only authorized if the minutes of that particular meeting are adopted?

PN55

MR FRANKEN: What I mean is the authorization can only be valid, once it's authorized. It's similar to a company structure where the board has got to ratify a decision of the general management in terms of an interest. My view is that there are two arguments that I have in this case. Firstly, there's no accompaniment.

PN56

THE COMMISSIONER: There was no accompaniment.

PN57

MR FRANKEN: There's no accompaniment and secondly, there's an issue and as I said to you I'm a bit on the limb and I might be criticised for it, but I think in terms of how these powers of attorney, and authorizations and structures work, in any structure or corporate nature, and for my sake the union wouldn't be different, that unless it's ratified and one needs to look at the constitution - I mean I was unaware of it until now, so I've not had time, but I would believe that once a decision is taken, and it's got to be adopted, now adopted cannot mean anything but ratified. Unless it's ratified there is no authority in existence to allow an application of this nature to be made in terms of that subsection (2).

PN58

THE COMMISSIONER: So you're saying the ratification, any decision of a board to make arising from a board meeting that is ratified by that particular board and gives authority to Mr Schulz to take some particular action, that action is not actually able to be able to taken until after the following board meeting where the minutes of the prior board meeting are adopted?

PN59

MR FRANKEN: Correct.

PN60

THE COMMISSIONER: So in fact the business of that union lags one month, if that's the meeting?

PN61

MR FRANKEN: It's subject to the constitution, I don't want to put a premise to you and that's not, but my understanding is that because when you look at that subsection (2) it talks about, say that the application has been duly authorized. There's an argument to say that it has been authorized at a lower level, but it's got to go up to the bosses, if I may use that sort of - - -

PN62

THE COMMISSIONER: Isn't the board - I mean Mr Schulz will be able to, I'm assuming inform me, Mr Schulz is the general secretary and as I understand and again correct me, this is the information that I'll need to know, but on the documents that he's providing my understanding was that the issue went to the board meeting and there was authorization for Mr Schulz to make that particular authorization and in fact to sign that particular document? Again I don't have anything about the constitution, you're quite right in that regard, but there may be a delineation between adopting minutes as a correct record of what occurred, as distinct from an authorization in relation to taking some particular action arising from a board decision?

PN63

MR FRANKEN: My comment, my view and again I'm prefacing it by - and you know me I'm very careful with these things, I don't want to say things which are not justified.

PN64

THE COMMISSIONER: You are Mr Franken.

PN65

MR FRANKEN: But my view is that if there was no adoption or ratification required, then I would have no concern about it, but what concerns me, and I'm groping a bit in the dark is that there is a ratification or an adoption process required, and that to me that says something that may be lodging an application prior to having that is premature, because there is no duly authorized, at the highest level within the organization authorization, or power of attorney to act in the way that you acted.

PN66

Now I'm looking at it very technically, but at the bottom line is this, if a body of people is in a position, if Mr Schulz in his position as the general secretary has certain powers in terms of the constitution, and he can authorize certain things and that's one aspect. But when you look at the situation where those decisions have got to be adopted or ratified in law that means that that decision, technically it can still be changed, it cannot be ratified which means that authority can collapse and until that adoption or ratification has taken place I don't believe you can argue that there is a final authorization to take whatever action.

PN67

That's in a nutshell what I'm saying and as I said to you I've not had an opportunity to look at the constitution, but I gather in terms of general business principles and the way that the structures, corporate structures of boards work, that that's exactly that. The question is it's unlikely that it won't be ratified but until it's ratified the possibility is there that they might amend the authorization, may limit it, may change the scope we don't know. So that is why my argument is that unless there's a final ratification I don't believe there's a proper, duly authorized that's my point, but I leave it to your discretion.

PN68

THE COMMISSIONER: All right thank you Mr Franken. Mr Schulz what do you say about those issues?

PN69

MR SCHULZ: Thank you Commissioner firstly the issue of section 446 which talks about the employee organization must be duly authorized. The Act makes mention of the provision of a written notice. I would submit to you that form 10 is in fact written notification. It doesn't say, the Act makes no mention of having to provide minutes, nor does it have to say about adopted certified minutes, it makes no mention of that at all. It says written notice, now one could assume that form 10 is specifically addressing that requirement and the form 10 will have the documentation that was filed.

PN70

THE COMMISSIONER: Right do your rules for the organization provide for the way in which the industrial action is to be authorized?

PN71

MR SCHULZ: Without quoting strictly verbatim, it says that no branch shall undertake industrial action without authorization from the state council.

PN72

THE COMMISSIONER: Are you saying that that form 10 that's what you're relying on as I understand in terms of authorization form the state council is that correct?

PN73

MR SCHULZ: I believe that this is what the Act is talking about that, and I'm relying on that. I have however, taken on board Mr Franken's comments in his outline of submissions and brought along minutes. But the Act doesn't say you have to have minutes.

PN74

THE COMMISSIONER: No, what I'm referring specifically to you is that 446(1) that you've directed me to, indicates that engaging in industrial action by members of an organization of employees that are negotiating:

PN75

Is not protected unless before the industrial action begins, the industrial action is duly authorized by a committee of management or by someone authorized by that committee to authorize the industrial action and if the rules of the organization provide for the way in which the industrial action is to be authorized.

PN76

So is there particular rules in terms of the way in which the industrial action - you've said that it has to be authorized by the state council.

PN77

MR SCHULZ: Yes.

PN78

THE COMMISSIONER: Do you therefore then say that form R10, you are the general secretary of the union, what role do you play in the state council? One step back from there, you've as I understand, what authority do you have to sign that form R10?

PN79

MR SCHULZ: As general secretary of the union I have certain powers under the rules and constitution of the union. In relation to this matter in particular I was instructed to make the application to the Commission by the state council and that authorization is also contained in those minutes.

PN80

THE COMMISSIONER: Do you say that the state council meet on which particular day?

PN81

MR SCHULZ: Friday 12 October.

PN82

THE COMMISSIONER: In the affidavit of Mr Burgess you indicate that there was an unanimous decision taken?

PN83

MR SCHULZ: Yes.

PN84

THE COMMISSIONER: Now you've heard what Mr Franken has said, that that ratification or that decision, should not be put before the Commission, should not have authority unless those minutes are ratified at the next meeting of the state council. What do you say in relation to that?

PN85

MR SCHULZ: I think there are a couple of points to that Commissioner. Firstly I think it's a ludicrous situation that a union or an organization for that matter, would be technically, if you followed Mr Franken's submissions be paralysed for a period in the interim between meetings of its governing body, committee of management. That only this year, as an aside, only late this year that the union has made a decision, not to hold monthly meetings. So had we held monthly meetings, this would have been confirmed by now, but the fact is the matter we haven't and it is now two months.

PN86

Now the other string to Mr Franken's bow, which is stretched to the limit I would suggest, is that the committee, when it meets no matter what it is, can't ratify things retrospectively, I think that's where he was heading that it was almost a case of you have to have a meeting to ratify those minutes, but nothing can happen with those minutes in the period since they were created a month or two months or whatever the previous meeting was before. I don't think you can draw that conclusion at all.

PN87

THE COMMISSIONER: Well specifically in relation to section 446(1)(b ) what submissions do you provide in relation to - are there specific rules of the organization that provide for the way in which industrial action is to be authorized?

PN88

MR SCHULZ: I quoted briefly earlier Commissioner and I haven't got the book in front of me. At the bottom of form 10 it says, in accordance with rule 21A and rule 21A - paraphrasing to the best of my ability is - that no branch shall enter upon industrial action - - -

PN89

THE COMMISSIONER: Sorry that rule 21A that you're referring to is that rule 21A of your rules?

PN90

MR SCHULZ: Yes, of the registered rules and constitution of the BFUE.

PN91

THE COMMISSIONER: Yes.

PN92

MR SCHULZ: That rule says that no branch shall enter into industrial action without prior approval of the state council of the union and that's the best I can paraphrase off the top of my head. All the rubbish I've got with me, I don't think I have a rule book. There'll be somehow in the Commission somewhere anyway. That was the process adopted, it was passed, the form was completed in accordance with the instructions form 10 says UF will provide notice of the giving of authorization. In my view, in my submission that is exactly what we've done, we've complied with the Act. The minutes are purely a back up to that.

PN93

The second point I would just raise on that too simply is this Commissioner. If one goes to section 446(2) it talks there about technical breaches and this is a matter of discretion for your good self. You've only got to look at taking it further to subsection (3)(b) an error or omission in complying with the requirements of the Act. So even if you find that's form 10 which is supposed to be giving notification of authorization, isn't satisfactory, isn't the documentation that's required, mind you the Act is silent on what the type of documentation is, it just says a written notice which I think form 10 is. Even then you still have the ultimate discretion to determine, well yes, I determine under these circumstances, there is a technical breach but it's not one that's fatal to the application.

PN94

THE COMMISSIONER: You say you have the minutes with you and I understand that Mr Franken has given a submission in relation to his reservations in relation to that particular document, but I'd like you to hand those minutes up.

PN95

MR SCHULZ: I'm happy to do so Commissioner it's up to you of course obviously.

PN96

THE COMMISSIONER: Mr Franken has seen a copy of those?

PN97

MR FRANKEN: I'll have a look at it now.

PN98

THE COMMISSIONER: Right thank you.

PN99

MR FRANKEN: Commissioner may I just be given an opportunity of just a short response to if I may.

PN100

THE COMMISSIONER: Well Mr Franken, you're going to take me firstly to these particular minutes?

PN101

MR FRANKEN: Well if you wish me to speak to them I shall.

PN102

THE COMMISSIONER: Just so you can identify what you're relying on there.

PN103

MR SCHULZ: Page 3.

PN104

THE COMMISSIONER: Then I will give you the right of reply unless there's something else that Mr Schulz wants to say in relation to that particular issue. Page 3.

PN105

MR SCHULZ: Page 3, I'm sorry they're not numbered, but page 3 under the heading general business the first item of business. I'll read it so it's on the record:
The heading was, Swickers Kingaroy authorized for a protected action:

PN106

The general secretary reported to state council on the outcome of the meeting held at Kingaroy regarding EBA negotiations.

PN107

This is the meeting of members that was held up at Kingaroy on 4 October:

PN108

Members were seeking endorsement by state council on taking industrial action to progress their EBA. The general secretary explained that this issue would be put to members in the form of a secret ballot where options such as, overtime bans, 24 hour rolling stoppages, four hour stop work meetings and
48 rolling stoppages would be put forward for a vote.

PN109

Those options for action are the ones that would have been put through the application, they are the ones that were decided by the employees subsequent to the report that I gave verbally, because I was conducting the meeting I mentioned of members. There was a motion passed and seconded, and duly carried that the state council sanctioned the action proposed, rule 21A and authorized:

PN110

The general secretary to apply to the AIRC for an order to run a secret ballot to allow members to decide on what proposed industrial action, or actions, will be agreed and undertaken.

PN111

I can't say anything further than that.

PN112

THE COMMISSIONER: All right, and you concede that those minutes aren't yet adopted but you've provided them as a - - -

PN113

MR SCHULZ: Just to show what's going on. I mean if you go to page 1 the minutes of 3 August have been previously circulated taken, read and passed. Well there's the two months gap and that's the process.

PN114

THE COMMISSIONER: All right and you're happy to tender those there's nothing that you consider sensitive that needs to be - - -

PN115

MR SCHULZ: I wouldn't like it to be spread around the streets, but no if you're proposing to mark them as a confidential exhibit, I'd prefer that sort of course.

PN116

THE COMMISSIONER: All right, you've no objection to them being marked for the purposes Mr Franken you are free to provide submissions in relation to this matter. Mr Schulz has provided them as identification that that decision was taken. I think he's conceded that they haven't been ratified and provided submissions on that basis. He wants them kept confidential and I don't intend to inquire into the other matters that they cover and I understand why the union would want to mark them as confidential. Do you have any objection to that course?

PN117

MR FRANKEN: No, I don't. I mean I give an undertaking that as from our point of view we won't spread this around. I don't have a problem if it's submitted for the purposes of indicating that there was a discussion and that it was a level of authorization given at the time but that it doesn't take anything away from my argument to say, what I've previously.

PN118

THE COMMISSIONER: All right, Mr Franken, you are being quite transparent in the manner in which you've made the submission, but there is nothing before me that indicates and Mr Schulz also hasn't brought that rule, but he's indicated that he as general secretary his knowledge of rule 21A of the rules is that issues such as the authority is from the state council and they have the ability to make that particular decision and to provide that particular authority arising from a meeting of that particular group and he's indicated further there's evidence before the Commission not yet tendered as I understand, but that that was the unanimous decision on that basis he has formulated and provided the form R10 in these particular proceedings. Your concern is that there isn't a ratification of that decision and that is what would authorize that particular issue?

PN119

MR FRANKEN: I would not have - my learned friend mentioned the issue that this has still got to be adopted at another level and I was not aware of that. As I said this was something - and to me that signals in terms of protocol that it's debatable and one would need to look in detail at the constitution to see whether in fact this does constitute because in the normal course of events, unless a decision has been ratified, I don't believe it's a proper decision, because it can still be changed, it can be amended.

PN120

THE COMMISSIONER: It has been ratified hasn't it?

PN121

MR FRANKEN: No my understanding is that it has not been adopted it's still got to be adopted at another meeting.

PN122

THE COMMISSIONER: The minutes may not have been adopted, the copy of the minutes may not have been adopted and those minutes as a record of that particular meeting, would be adopted at the next meeting, but my understanding is that the decision was ratified by the council, the state council of that particular meeting.

PN123

MR FRANKEN: Unless I misunderstood Mr Schulz my understanding was that it still had to be adopted at another level, that's what I understood him to say

PN124

THE COMMISSIONER: Is that correct Mr Schulz?

PN125

MR SCHULZ: No, that's not correct and I don't put anything on that. The fact of the matter is that the state council is the day to day running committee of management of the BFUE it deals with the day to day management of the BFUE. It is the body that meets bi-monthly now and makes the decision and does the running of the union. Now that body will ratify its own minutes at its next meeting and it's the same level, no difference.

PN126

MR FRANKEN: Commissioner I'm not going to say any more about it, except to say I think one needs to look at the constitution and I'm going to leave it in your hands, that issue. I still maintain the argument about the fact that it must accompany the documentation.

PN127

THE COMMISSIONER: But that document did accompany the documentation, didn't it, that form R10?

PN128

MR FRANKEN: The form 10, I want to make a submission and this is really what I want to talk to you about. If section 452, if the intention was that that form 10, if you look at section 453(2) if the intention was - - -

PN129

THE COMMISSIONER: Section 453(2)?

PN130

MR FRANKEN: 452, sorry, 453 sub paragraph (2), if the applicant - - -

PN131

THE COMMISSIONER: Sorry 45?

PN132

MR FRANKEN: 3(2), sub paragraph (2).

PN133

THE COMMISSIONER: Thank you.

PN134

MR FRANKEN: That talks about a written notice. My argument and I'm not - I don't have any support for it but just in the construction of the Act if the intention was that that written notice is supposed to be form 10, I would have suspected that the legislator would have referred:

PN135

The company by notice as envisaged by section 446.

PN136

They are so fond of referring back to sections and I don't believe that one can interpret that, although it's stated in that, I don't think that if by literal interpretation of the Act in that section that that written notice in fact one cannot automatically assume that it refers to the notice as envisaged in 446. Otherwise it would have said that and if you look at the way the legislation is structured, it is always subject to this or in accordance with that section, it doesn't say that. It talks about a written notice showing the applications be duly authorized but it doesn't refer back to 446. 446 seems to indicate something similar but there's no link between the two, and I'm not sure that we and if you can make a link, I'm not saying you're not, possible in a decision to do that but - - -

PN137

THE COMMISSIONER: So you're saying the documentation is deficient in terms of 453(3), is that what you are saying?

PN138

MR FRANKEN: No, no 453(2) the written notice.

PN139

THE COMMISSIONER: Yes, you're saying it's deficient because?

PN140

MR FRANKEN: There's no written notice and the written notice that is referred to there to me as I said to you, the only comment apart from form 10 is the statement by Mr Burgess and I don't believe that the written notice as envisaged under 453(2) is similar to the notice as envisaged under 446 and the justification for that is that if that was the intention, then I believe 453 would have read - if the applicant is an organization of employees the application must be accompanied by a written notice as envisaged or as per clause 446 and refer back to that clause. But there's no link between those two clauses and I don't think one can just assume that it is the notice that is spoken is referred to under 453(2).

PN141

THE COMMISSIONER: So you're saying the form 10 that's been provided that indicates that authorization is not sufficient for 453(2)?

PN142

MR FRANKEN: That is my argument, but I think one needs to look at it more carefully but I believe that is not the case, otherwise that section would have referred back to 446. I don't want to - - -

PN143

THE COMMISSIONER: Just so I understand you the form R10 indicates a notice being given to the registrar that the members have been authorized to engage in industrial action and is it that you're saying because there is no authorization there in relation to this particular application?

PN144

MR FRANKEN: Yes, to me there are two things there, the issue of the ratification and the authorization which we've dealt with and you've go to look at that.

PN145

THE COMMISSIONER: Yes.

PN146

MR FRANKEN: Secondly, there's the issue of whether there's a compliance with section 453(2) which talks about a written notice showing that the applications were duly authorized. Mr Schulz has indicated that form 10 has served that purpose. I cannot agree with him because I don't see a link between 453(2) and 446 that talks about a written notification under those circumstances. You might decide otherwise, but my view is if the intention was that it was the same notice, 453(2) would have had reference and a link back to 446.

PN147

If one looks a the way the whole Act has been structured, there's always referral back - always maintain, when I used to lecture, if you've got to take an Act and you've got to have four fingers at different places and kept on paging back then it's not a very sound piece of legislation. But we've got to deal with it and my view is that if the intention was that that notice should be the same notice as envisaged by 446, it would have had a reference back to 446. I'm going to leave that at that, I think you understand what I'm saying.

PN148

THE COMMISSIONER: All right, well it might be that - I mean I need to go away and consider the submissions in relation to that and I can do that, or alternatively we might hear the submissions in relation to the two other parts and then I'll have a short break and I might give you - allow you to have some discussions about how you want to proceed with the witness evidence as well while I consider those initial documentation issues. Mr Schulz are you agreeable to that course?

PN149

MR SCHULZ: Yes, Commissioner there is a development. We've been able to locate Mr Myatt he would be available to provide evidence over the phone if that's acceptable to the Commission and to my colleague, so I leave that with you to have a discussion I suppose.

PN150

THE COMMISSIONER: All right, well what about I understand you've dealt with now both parties, this issue of the approval by the committee of management? I need to go away and to consider that, the other issue is this issue of who is to be balloted there's some contention between the parties. What about if we deal with that and then we'll take a short break and allow Mr Franken to give consideration to the witness issue of Mr Myatt, that particular issue and yourself and we'll come back and deal with that particular issue at that time, are you agreeable to that Mr Franken?

PN151

MR FRANKEN: I'm happy with that Commissioner.

PN152

THE COMMISSIONER: Yes, thank you. Mr Schulz?

PN153

MR SCHULZ: Thank you Commissioner. Commissioner this one has come out of left field because Mr Franken again. The issue has been raised by both Mr Schloss in his statement but also Mr Franken in his submissions in opposition. It relates to section 438 sub (b) I assume, sorry sub (3) sub (b) it relates to who actually is involved in the ballot and after reading this - the Act several times and using four fingers and a thumb rather than a cartoon character trying to reference them back I'm confused to say the least, of who actually is involved in this ballot.

PN154

The intent as I understand it reading parts of the Act talks about relevant employees. Now relevant employees are those who are members or not members of the union and are covered by the certified agreement and who are not subject to an existing or current Australian Workplace Agreement. That's my understanding of it as it stands. However now having read Mr Schloss' comments which obviously he's got some advice on, because it mirrors what Mr Franken is saying obviously, it would appear from their submissions that the ballot only applies to a narrow hand of employees who happen to be union members of a set date, which I don't have an issue with, but it talks about only union members, only.

PN155

Because there is some sinister, I suppose there that we are trying to drag extra people in that aren't eligible to vote. Now once again I'll be open to your advice on this Commissioner but my understanding is if people are relevant employees then it's members and non members, I'm not sure where Mr Franken is taking this argument.

PN156

THE COMMISSIONER: Well just so that I can give consideration who are you suggesting should be balloted? Just members?

PN157

MR SCHULZ: No we are suggesting relevant employees.

PN158

THE COMMISSIONER: Because there was sort of a change between the documents wasn't there, members and?

PN159

MR SCHULZ: There's reference in Mr Franken's submission there is a change, if that's because of the wording we have used, it's not any deliberate attempt at all.

PN160

THE COMMISSIONER: I'm not suggesting, yes.

PN161

MR SCHULZ: No, thank you. It's not any deliberate attempt to broaden the issue, we've taken the logical view, which may not be supported by the Act, we've taken a logical view, that if the proposed agreement is balloted for approval by rele4vant employees well then the protected account should also involve relevant employees subject to the limitations of the Act and our coverage and so on which I spoke about a minute or two ago. If we've got that wrong, well it's certainly not our intention, but I'm not comfortable with Mr Franken's argument here I'm not sure where they are leading with it.

PN162

Are they suggesting that we are trying to broaden this out to cover salaried staff employees, clerical employees, certainly we've made it clear that it wouldn't be applying to the strict exemption in the Act of employees subject to an AWA that is clearly in our submissions and in our documentation, so I'm just not sure where this has been leading, so I'd like to hear more of Mr Franken's argument.

PN163

THE COMMISSIONER: Mr Franken?

PN164

MR FRANKEN: As it please the Commission. Can I just make it up front, there's neither me nor my clients has any devious intent in this at all. There's nothing sinister, we don't see anything sinister. What does concern us Commissioner is the fact of uncertainty. The Swickers Kingaroy is not an organization that's got a strike every second week or major industrial action, this I think in the six years that I've been here, I think it's the first time that I think Mr Schulz is nodding his head I think it's something unusual for the organization as a whole.

PN165

Unfortunately after many, many meetings it's come to this which is - I don't have a problem with it, simply because it's the natural flow of things and this process is in place to occur, but the concern that the business has got is that it's going to create major uncertainty and the business from it's perspective wants to make sure that those people who are eligible to vote, are the people that vote. As again, I want to re-emphasise we don't see anything sinister about it to - but when you deal with these things and you deal with the consequences of these sort of actions and the impact on the workers, you don't want people to be involved in it, that should not in technical terms, in terms of the Act and what the law prescribes be involved in it. So that is our motivation for checking that. I just picked it up and as I stand in the business I've got an eye for picking up the detail, that in the original application it mentioned all employees and I'm paraphrasing, I'm not looking at my submissions - I'm paraphrasing, all employees covered by the agreement and those who are eligible to be members or some words to that effect.

PN166

Then in the later documents it talked about the relevant employees. Now relevant employees is a term that is very nebulous in itself. I mean what is relevant to Mr Schulz might not be relevant to us and that is exactly what I think we're heading for. The simple answer to that and what I'm trying to get clarity on in terms of this, is that the way that the application is structured at the moment, creates uncertainty. By Mr Schulz own admission it seems that he is also now confused, had an understanding, but is not sure that what his understanding was is correct.

PN167

But I think if one goes back to the law and you look at section 438(3)(d) it talks about those that are protected in the event of industrial action. There is no doubt that in subsection (3) it says:

PN168

Protected person for industrial action in relation to proposed collective agreement, means (a), an organization of employees that is a negotiating party to the proposed collective agreement -

PN169

Which we don't have a problem with:

PN170

-or a member of such an organization -

PN171

Meaning a member of the union:

PN172

-who is employed by the employer and whose employment will be subject to the proposed collective agreement.

PN173

Now to me that is very clear. Members covered by the agreement are the only people that will be protected under the industrial action. They will be the only people, I mean they can take strike action but they won't be protected. The only people that will be protected by the provisions of the law will be those that are covered by that definition. The other problem I might just raise, and I should have said that up front, why we're concerned about the vagueness of the possible ambiguity in this, is the fact that there are employees that are neither union members, or technically should not have been covered by the agreement but are paid in terms of the agreement.

PN174

So there are people sitting outside that in terms of what Mr Schulz is saying, technically could be relevant because they are getting paid according to that agreement or maybe subject to the terms and conditions, although they are not technically strictly covered by it. That was a business decision to be taken by the organization at the time for administrative reasons, payroll, or whatever the reason was. So as far as I'm concerned the application is defective in that the net is cast too broadly and that it includes, people or employees that are according to the union are eligible to vote but in terms of the Act, is clearly not eligible to vote.

PN175

Well they will be able to vote, but they are not eligible to vote to be protected under it - and I don't believe it's the union's intention to get people to vote and take action where they're not protected. The whole purpose of all that has been doing at the moment, and the application for a secret ballot and getting working through the proper channels to ensure that those people that are going to take action against the organization is protected under the law. It's a very simple answer, it's not difficult as far as I'm concerned, but again I'm in your hands Commissioner.

PN176

THE COMMISSIONER: Right did you want to say anything in response Mr Schulz?

PN177

MR SCHULZ: A couple of points there, Commissioner. Obviously from the union's perspective I was a bit nervous putting up applications in this day and age that refers strictly only to union members only for the reasons of opening myself up to claims of discrimination and unlawful conduct. Secondly I would have thought it would gave been in the interests of the employer to let all employees vote because if there's any indication that non members aren't going to support the action well they're numbers that will assist in the result for them.

PN178

Thirdly, members of the union like non members all employees, will still make up their mind at the end of the day whether they participate in the action or not, regardless of the vote saying yes it's on. Once again the union is in no position to be ramming down the throat even of its members, that hold on there's a vote being taken to stop work, or attend a stop work meeting whatever it might be, the union's in no position to do any of those - anything to those people who may be choosing to ignore that result.

PN179

So they're in no different situation in my view to those who would be non members. So you've got a case where these people are going to be covered by the agreement but if you follow the supposed logic of Mr Franken's argument is well, even though they are going to be covered by the agreement we are not going to give them a vote. That to me seems to be a bit bizarre, but if that's the way the legislation is then that's beyond my situation, Mr Franken's situation and with respect, yours as well.

PN180

THE COMMISSIONER: Quite right. All right well I understand that's the submissions on those two particular points and I also know that you've put written submissions on those particular points as well and I'll take those into account. It might be - we'll just for the purposes of the record go off the record.

<OFF THE RECORD

PN181

THE COMMISSIONER: We are going back on the record, just so that when they type this up that's the - there was going to be an adjournment in relation to consider it, but we4 will consider this further issue of the questions now and then provide a break for the parties. Thank you Mr Franken, probably first, did you want to talk about that?

PN182

MR SCHULZ: Commissioner there's four questions put up and they're phrased all the same, I assume the objections will be treated as questions on block, with similar criticisms or points, or whatever made on them and I think that's probably an appropriate way, that Mr Franken puts those up now and then we could argue the toss.

PN183

THE COMMISSIONER: All right, I mean I also perhaps need the parties to consider as to the urgency of moving forward with this matter and I know that under the Act there is this requirement if there is the ability, I mean we need to sort out the balloting agent issue as well. But if there is some difficulty between the parties I mean I can go away and look at the discretion in relation to this, but also if there is the ability for the parties to agree, that is to overcome some of your arguments by agreement in terms of tendering particular documents to correct what you see as deficiencies, because the timeframe in this the proposed timetable, there is some time to move forward. 21 November I think is the date.

PN184

MR SCHULZ: 26 we propose the ballot.

PN185

THE COMMISSIONER: Yes and the role closed on the 21st that's occurring tomorrow basically as we speak. That's a number of questions then Mr Franken.

PN186

MR FRANKEN: Can I maybe just in terms of before I deal with the issue of questions my understanding is, and to a large extent I'm again in your hands. I've looked and tried to get as much decisions and read through them over the last day, even last night I was - took a whole lot of stuff and I promised Mr Schulz this morning that I would go back over some of the decisions and start working through them because I get on with him, I can say. But one of the things that struck me in all of those decisions and there's been some Full Bench decisions and appeals and most of those dealt with the issue of genuinely endeavouring to reach agreement.

PN187

Some of them got up, some of them failed, et cetera but one of the things that struck me and I'm making this again with the greatest of respect to you and I know in this jurisdiction when I say that some people take offence to it on the Bench, but I really mean it, is that my understanding is that if the application is deficient there is no room to remedy it by agreement or remedy it through a consent order or something. If it's deficient it should fail and another application should be made. Now I've looked at all those decisions and nowhere - - -

PN188

THE COMMISSIONER: But that's perhaps what I'm suggesting between the parties I mean I'm not determining it because Mr Schulz has also referred to some discretion, but what I'm saying is this is not a draft timetable where there's you know, the parties are referred to, the fact that the agreement was finalised, the last agreement was finalised in August 2006, there's been a number of meetings between the parties. There doesn't seem to be a contentious issue that the parties are disagreeing that they were genuinely trying to reach agreement that is an issue that both parties concede here.

PN189

They see that there is a need and I think you've indicated in your submissions
Mr Franken that this is following the normal course of events, you'd prefer otherwise perhaps on behalf of the employer, but you see it as the legislative path in relation to this. But what I'm suggesting is and I'm not imposing this, I've indicated that I will go away and issue and consider these, but if I give an adjournment it may be given the goodwill between the parties that if there is agreed that there is some deficiency, that perhaps the refiling of the documentation to overcome some of the concerns of the employer, may be one course that could be followed, a fresh application.

PN190

MR FRANKEN: No, I accept that, I just wanted to make sure that there's no expectation from your side, that we will come up with some magic solution which can then move forward.

PN191

THE COMMISSIONER: Well Mr Schulz has also indicated that there may be a discretion in relation to some of these technicalities and pointed to that, that there may be some discretion.

PN192

MR FRANKEN: I will talk to you about that if I need to.

PN193

THE COMMISSIONER: I'm not imposing any of these, I'm just saying I'll go away and look at these particular issues and it may be that by the time, we get to that adjournment, it will be a longer adjournment to allow for all of these things. You wanted to say what on those issues, Mr Franken?

PN194

MR FRANKEN: I've just forgotten what I was talking about.

PN195

MR SCHULZ: Could I just butt in while you are catching your thoughts. Just one problem we'll have with that Commissioner if the parties agree to the filing of a new application, we're obviously going to have to get over the issue of the authorization to do so because otherwise we are not going to stand here and say yes, that's okay Commissioner.

PN196

THE COMMISSIONER: It might be in the interim you might be able to get your rule?

PN197

MR SCHULZ: Yes.

PN198

THE COMMISSIONER: Yes, because that would then if Mr Franken's submission is that your rule for ratification requires the adoption of those meetings at a subsequent meeting or the adoption by some higher, that rule would assist us in terms of - because that's what Mr Franken is saying, is the constitution will be the appropriate direction of the union.

PN199

MR FRANKEN: I wanted to suggest to Mr Schulz that he looks at the - in a corporate world and in Europe they use the term a round robin sort of resolution, which means that it's a resolution that is couriered around to all the various directors and people and they authorize the action as for that and that can be done in a matter of a day, or whatever you call it, whatever it's called here. I would be very happy if that was sorted out. I hate taking technicalities, my instructions Commissioner is simply to make sure that the law, the legislation is complied with. There is ongoing discussions back at the plant and hope springs eternal, that something might come up.

PN200

So my instructions are if there are technicalities that can assist us to get more time so to speak to people at the - to talk to people at the plant as it is ongoing as we are talking at the moment, then fine, get it to us. I'm very open and honest about that. There are some, as far as I'm concerned some technical problems in this application, which at the end of the day might necessitate the filing of another application, and if that is so, well then so be it. You know I'm not trying to stall the action forever and a day. People are entitled to exercise their rights and I'm the first one to acknowledge that, I'm also the first one to say I like compliance if there's requirements in the Act and of course, if I'm wrong I'll say I'm wrong and let's do something about, you know me. If I may just talk about the question?

PN201

THE COMMISSIONER: Yes, that's right, that's why I interrupted you because I was going to.

PN202

MR FRANKEN: What I've told you now is the issue that I wanted to address with you and that is the issue of ongoing discussions. In fact in Mr Burgess' statement there's a comment that there was even discussions this week which was off the record between the union and our officers in an endeavour to try to come to some understanding. Unfortunately at this stage nothing has happened with that.

PN203

THE COMMISSIONER: Because there is obviously some options before the Commission in that regard as well that in various matters such as this the parties have endeavoured to utilise the Commission to assist in terms of conciliations where there's a narrow number of issues that have been - to try and assist the parities to conciliate the remaining issues. The application that's squarely before the Commission is seeking this particular application for a secret ballot so I'm not just trying to dissuade. But that can be, if the orders are granted that can be made but certainly under the auspices of the file there can also be assistance in terms of conciliation of the parties.

PN204

MR FRANKEN: I didn't mean any disrespect by pointing a finger at Mr Schulz.

PN205

THE COMMISSIONER: The transcript wouldn't show it. The transcript didn't show it until you said - - -

PN206

MR FRANKEN: But I set myself up - but this is the sort of thing and knowing Mr Schulz, that's the sort of thing you know - I've got no instructions. But I can certainly say that if that is the sort of thing that might assist, I will, I personally will make a recommendation to that effect. I don't have a problem with it, it depends on the instructions, but I mean the party that's applying for the secret ballot order is in fact the union so there's no initiative - I can't take the initiative or my client can't take the initiative . But we certainly I could take instructions in the break - well I will certainly recommend that so that gives us an indication. But I mean it's Mr Schulz - - -

PN207

THE COMMISSIONER: Well that's a thing that Mr Schulz can consider as well in the break. So the questions, what are the problems there Mr Franken?

PN208

MR FRANKEN: When you look at the questions I think what one - when I looked at the questions and I must be honest with you, in reading through the decisions I've come across many questions printed in detail in this, and I've looked at that question now I would regard myself as somebody that can read and understand something to a certain extent, some things I don't understand, and I very often get accused by my spouse that I don't understand what's going on.

PN209

THE COMMISSIONER: That's a whole different genre, don't put me in the middle of that Mr Franken.

PN210

MR FRANKEN: No, no, I'm just making a comment, but one of the things I want to make when I look at these questions and in the submissions - - -

PN211

THE COMMISSIONER: I have to say I'm going to take a particular side there Mr Franken.

PN212

MR FRANKEN: As you would do, Commissioner as you would do.

PN213

MR SCHULZ: Too late now.

PN214

MR FRANKEN: Commissioner when you look at the decisions about and I've quoted in one instance I've quoted under paragraph 9 of page 7, quite extensively from one of the decisions it's very clear from there and Senior Counsel Mr Parry made it very clear and was accepted by the Commissioner at the time that the proposed industrial action must be expressly clear enough to make an informed choice. Now I just looked at those questions and I thought to myself I understood one way or I looked at them and I thought I could interpret that two ways.

PN215

Would the worker on the shop floor and the blue collar worker look at that and understand? First of all the question to me is very verbose, I think one could have put it a little bit more in layman's language because it basically to a certain extent regurgitated, if I could use that term, the words of the Act. But when you look at the question (1):

PN216

Authorize industrial action in the form of 24 hour stoppages of work.

PN217

Now that to me says are you talking about a 24 hour continuous action? I've just understood Mr Schulz to say in his submission that they are talking about that a rolling action was authorized and the word rolling doesn't appear in any of the questions, but that could be interpreted two ways. 24 one hour stoppages or a
24 hour stoppage. The same would apply to question 3 are you talking about four hour duration stop work meetings or stop work meetings, or are you talking a four hour duration stop work meeting? The same applies to the 48 hour stoppage the same argument.

PN218

THE COMMISSIONER: Sorry in relation to (3), are you suggesting that it could mean four, four hour?

PN219

MR FRANKEN: No, it could mean four hour duration stop meetings. Or question (4) it could mean 48 hour stoppages. In other words stoppages of one hour's duration and 48 of them. Now I have that problem, and as I said I've read these things and I have that problem, and I'm just wondering whether the people on the plant floor will understand that. Then I also have a question in my own mind, how does question (1) and if the intention of that you're going to have
24 hour stoppages of work and the intention is to have that interspersed with
48 stoppages of work, how those two inter-relate with each other.

PN220

I'm not quite sure that I understand and again I'm been involved in very severe industrial action, not in Australia and this is my first venture into that, but to me I don't have a problem with people taking industrial action if there's a genuine dispute and a genuine disagreement, it's their right to do so. But I think people that do take those actions and people that are exposed to that under a protected action should know what they are really voting for and I believe that those questions with the greatest of respect to the applicant could have been phrased better. I think for the simple minded guy, and I don't mean simple minded, but the uneducated blue collar worker cutting up the pig and doing the slaughtering at that level, that could be confusing.

PN221

I really submit that and that's why I say to me the question are ambiguous, unclear, vague and to an extent meaningless and I don't believe it satisfies the requirements of 452. When you look at 452(1) it just says the questions have got to be given but in terms of decisions that I've quoted at the back, it's very clear that the requirements under - the requirements developed through the juris prudence is clearly that it's got to be understood, clear no uncertainty about it. In that respect I believe the application is defective as well but I leave that to your discretion.

PN222

THE COMMISSIONER: All right thank you Mr Franken. Mr Schulz what do you say?

PN223

MR SCHULZ: Well I come off the shop floor and I can say I'm not confused by them, but at least I'll admit that I wrote them. Having said that, let's have a look at them carefully. They propose in similar verge action as specified. There is no clearer way of reading them in my view. The 24 hour stoppage of work or stoppages. That's not 24 one hour stoppages or whatever, I just find some of the interpretation being placed by Mr Franken as ludicrous and bizarre. If any ambiguities can be dragged that far, I'm astounded.

PN224

The reality with these things, Commissioner firstly is we have to get an order authorizing a ballot. That's not a walk up start as we well know. Secondly, there are four questions. Any one of those or more than one of those questions can be accepted or defeated. So the linkage that Mr Franken talked about, may or may not occur, it will depend on the outcome of the ballot. The next point is that if the ballot qualifies, and my understanding of the Act which I'm learning every day here, is that a majority of the employees be they relative employees or whatever, we'll come to that - have to vote in the ballot and then a majority has to endorse the action. Have I got that part right Commissioner? Does that assess correctly?

PN225

THE COMMISSIONER: Don't create any more questions.

PN226

MR SCHULZ: Yes, so we're getting there eventually, we've got the ballot, we've had the vote, we meet those criteria and a yes vote is up then under the Act we must give three days notice of what that action is. Now that's where an employer will get any issues that they might have over the ambiguity. If I write as the general secretary and say in three days time, in accordance with the decision of the ballot there'll be a 24 hour stoppage, where's the ambiguity. If necessary, if necessary you specify the times, and I'm sure the reality is you would be specifying the times. It's nonsensical Commissioner to suggest that you just write off a letter and say we've got a 24 hour stoppage, bingo thank you very much, yours sincerely, T Schulz. That's ridiculous.

PN227

You comply with the Act, you give the three days written notice and you specify what's in there. You specify what's in there, employees don't specify when they're requesting the action, they're not the ones standing there saying look we might go out at 3 o'clock on 29 November et cetera and be gone for 24 hours. They don't do that. I don't think any of these ballots and I'll be happy to look at evidence to the contrary, I don't think that any of these ballots would have got down to that sort of nitty gritty and to come with those sort of broad range, low bow, interpretations, yes good stuff Jacques, but I'm sorry no disrespect I don't believe you can draw such conclusions out of those things and at the end of the day the Act requires the 72 hours notice and that's where the clarity that you require is contained.

PN228

MR FRANKEN: May I respond to that very briefly if I may?

PN229

THE COMMISSIONER: Yes.

PN230

MR FRANKEN: I understand what Mr Schulz is saying, unfortunately despite that I'm getting the blame for raising these arguments, that is what the requirements are. The argument that that can be fixed on an expo facto ballot is an argument but it's not a valid argument. The employees need to know when they vote what they are actually authorizing. You can't fix that, you can't say well they might not know but our notice will tell them. It's not the cart before the horse, the horse draws the cart, the employees needs to know what they are voting on.

PN231

Therefore that first step is important it's most probably more important than the union telling them when they are going to go out that is the crucial - and that's why when you look at the decision, the decisions are very clear, that the failure to nominate or stipulate those questions or phrase those questions correctly, is a problem and it can lead to a defect and a rejection of an application, there's no doubt in my mind about that. I say that with the greatest of respect at all.

PN232

THE COMMISSIONER: All right well we'll go off the record there for the purposes of the court reporter transcribing it and we might break until 10 past 12 to allow you to have a break but also to indicate to have the discussions as to whether any of these proposed deficiencies may be able to be - and I'm not making a determination but to be overcome. Also this issue, the remaining issue of Mr Myatt and you might also consider what you - how you to propose to both deal with your witness statements that are before me at the moment, that haven't been tendered whether you are just wishing to tender them, or whether there's some cross-examination that you require in relation to those. So just to recap, the break is in relation to the issues that we've already discussed and I'll consider those, but also in relation to Mr Myatt how you'd like to deal with that. Is there anything else at this stage?

PN233

MR FRANKEN: That's fine.

PN234

MR SCHULZ: We've got the phone number of your associate wishes to contact him to make the arrangements, but at this stage as you've rightly pointed out we haven't fully come to a conclusion whether you want 6to call him, or is acceptable to be called that way.

PN235

MR FRANKEN: I just need to take instructions on that.

PN236

THE COMMISSIONER: Certainly. Well if we come back at 10 past 12.

PN237

MR FRANKEN: That would be fine, thank you Commissioner.

<SHORT ADJOURNMENT [11.43AM]
<RESUMED [12.43AM]

PN238

THE COMMISSIONER: We are off the record for the purposes of the transcriber.

<OFF THE RECORD

PN239

THE COMMISSIONER: Maybe what we should do is just go back on the record, so we don't have to do it all again. But just for the court reporter we'll go back on the record and it might be that I just confirm Mr Schulz, as I understand unfortunately you gave very detailed and elaborate and articulate submissions off the record and my understanding of those is that you would like to engage in conciliation before the Commission and to set some dates for that and in fact there has been a discussion to hold Mr Myatt's evidence, because Mr Franken has indicated he'd like to have that evidence in person, to hold that particular remaining issue that the submissions haven't been advanced, or the evidence until another day if in fact that's required depending on the outcome of the conciliation.

PN240

You've also requested of the Commission that there be some consideration given to these earlier issues that specifically relate to the particulars of the application and the authorization for such along the way in terms of the conciliation as well because that will again influence the outcome of which way you have to come with the application. Is that a fair summary Mr Schulz?

PN241

MR SCHULZ: Yes and the other thing Commissioner was that both parties do not intend to call their other respective witness.

PN242

THE COMMISSIONER: All right, but you will tender those witness statements?

PN243

MR SCHULZ: I think they already have, so it's probably more a question of you admitting them Commissioner.

PN244

THE COMMISSIONER: All right thank you. Mr Franken, what did you want to say in response?

PN245

MR FRANKEN: Commissioner I just concur with that Mr Schulz and I had a discussion about that prior to you and that was basically the gist of what we between us agreed and it was obviously subject to your approval. Also the fact that I want to talk to Mr Myatt after all of this, or put him under, have him in the witness box so to speak, might be unnecessary, there might be no need for it, either through an interim decision or if the matter is hopefully resolved at a conciliation phase. So I'm very comfortable and happy with that outcome.

PN246

THE COMMISSIONER: All right thank you Mr Franken, well it might be since the parties are here, would you like to try and set some dates for conciliation? We'll just go off the record again.

<OFF THE RECORD

PN247

THE COMMISSIONER: On that basis we'll adjourn.

<ADJOURNED ACCORDINGLY [1.00PM]