RE2008/2186, Transcript of Proceedings [2008] AIRCTrans 242 (26 May 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18494-1

DEPUTY INDUSTRIAL REGISTRAR JENKINS

RE2008/2186

s.740(1) - Application for permit to enter premises and inspect records
Application/Notification by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Communications Division - Victorian Postal and Telecommunications Bran
(RE2008/2186)

MELBOURNE

10.05AM, TUESDAY, 13 MAY 2008

Continued from 2/4/2008

Hearing continuing

PN129

MR C O'GRADY: I seek leave to appear as counsel on behalf of Australia Post who you granted leave to intervene in this proceeding.

PN130

MS A GOOLEY: I seek leave to appear on behalf of the CEPU.

PN131

THE DEPUTY INDUSTRIAL REGISTRAR: Leave is granted to both appearances. Before we commence this morning could I just clarify one matter with the parties, in the directions I issued on 3 April there was a requirement that Australia Post and the CEPU confer and file in the registry and agreed statement of facts. I haven't received such a statement. Can I just assume that that's the case that I haven't received it? I'm just wanting to confirm there hasn't been an administrative error, that there isn't an agreed statement of facts?

PN132

MR O'GRADY: There wasn't until this morning, Deputy Industrial Registrar, but I'm pleased to be able to inform you that we have agreed on a statement of facts and I have a copy that I'd seek to hand up to you.

PN133

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr O'Grady. During the hearing in relation to the preliminary issue there was some discussion about the manner in which this matter would proceed and the directions reflected I think the outcome of my conclusions during that preliminary hearing in that Australia Post as in essence the objector to the application has the running of the matter and the CEPU, Ms Doyle, has a response in relation to that. Both parties have filed the relevant statements. At the time I'd indicated that at least at that point in didn't appear necessary for Australia Post to have a right of reply but I left open the possibility that depending on how this matter proceeds that there may be a further application in relation to that.

PN134

I just wanted to confirm that that was the case after we viewed the transcript and certainly that's my view at this point in time. It may not be necessary but I think we just need to be aware at the outset of this hearing that although there aren't any witness statements in reply, for example, but there may need to be some other to address anything - - -

PN135

MR O'GRADY: That was our understanding, Deputy Industrial Registrar, that the matters that we'd seek to deal with by way of reply will be dealt with viva voce if you like in the course of witnesses giving their evidence.

PN136

THE DEPUTY INDUSTRIAL REGISTRAR: Ms Gooley, you're agreeable with that? Thank you. Before calling on you, Mr O'Grady, there is one further thing, it would assist me greatly not having had the benefit of reading the agreed statement of facts if before you call your first witness I could hear from both of you very briefly, perhaps in essence highlighting the major differences between your two positions rather than summarising your whole case. So if part of your opening statements you're able to do that briefly this morning that would assist me.

PN137

MR O'GRADY: If the Commission pleases.

PN138

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady, can I just confirm that that's the position that you're able to accommodate for me this morning?

PN139

MR O'GRADY: Yes.

PN140

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady.

PN141

MR O'GRADY: Yes, thank you, Deputy Industrial Registrar. Just bear with me for a moment while I find a document. Deputy Industrial Registrar, the legal position as we apprehend it is what we've set out in the outline of submissions that was filed and as far as we understand the submissions of the CEPU there is a degree of common ground as to the test before you and the matters that are relevant to the determination of this application. The point that we would emphasise however at the outset is that whilst we accept that as the objector there is a degree that we have the carriage of this proceeding, at the end of the day in my submission it is a matter for the CEPU to satisfy you that Ms Doyle is a fit and proper person to hold a permit.

PN142

It is not our job, if you like, to dissuade you from that proposition and to the extent to which there are preconditions imposed upon a permit applicant before a permit can be issued then in my submission it's incumbent on the CEPU to persuade that those preconditions have indeed been satisfied. With respect to the legislative regime as we've set out in paragraph 3 of the outline that we have filed, the Act prohibits the issuing of a permit to an official unless the Registrar is satisfied the official is a fit and proper person to hold the permit. There are a number of matters that are enumerated as being relevant to that task, one of which, and this is once again common ground, Industrial Registrar, is that if the official has had a permit revoked or suspended, and it's accepted as we understand that that's been the case with Ms Doyle, and of course there is a very broad category in subsection (h) of any other matter that the Registrar considers relevant.

PN143

In our submission the matters that the Registrar should have regard to under that head are matters which are probative of the factors enumerated in the objects of part 15 and in particular the requirement to establish a framework that balances the rights of organisations to represent their members and the rights of occupiers of premises, employers, to conduct their business without undue interference or harassment and further, to ensure the permits to enter the premises are only held by persons who understand their rights and obligations under this part and who are fit and proper persons to exercise those rights.

PN144

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady, could I just interrupt you there for one moment. Could we just go off the record, please.

<OFF THE RECORD

PN145

MR O'GRADY: Thank you, Registrar. And so our case is premised very much on the importance of the objects and the emphasis that the Act as currently drafted places on permit holders being fit and proper persons to discharge those objects. As would appear to be common ground, the phrase fit and proper person has been usefully considered by the High Court in the Australian Broadcasting Tribunal v Bond case. That in our submission once again directs attention to the structure of the Act and the way in which it envisages the permit holder function will be discharged. We also make the submission that the position of a permit holder both under the current Act and also under its predecessor was very much a privileged position. The older authorities refer to a permit holder being in effect an officer of the court back in the Industrial Relations Court days and in my submission that emphasises the rectitude which must accompany the exercise of the powers that a permit confers.

PN146

In paragraph 15 of the outline we have attempted to summarise what we say are the types of vices associated with Ms Doyle's conduct and if I can turn perhaps to the individual instance and explain more fully what we say is the concern and perhaps give our understanding of Ms Doyle's response. You'll see that the first incident that we rely upon, and this is in the agreed statement of facts, concerns the 24 July 2005 incident at the Melton Delivery Centre. Now, the agreed statement of facts reflects, as you might anticipate, a prepared down version of the competing parties contentions and simply states that she attended and proceeded to take photographs.

PN147

That incident is detailed in Mr Hammond's witness statement. He wasn't there but he has annexed a statement of a Mr Bullock who was there.

PN148

MS GOOLEY: Sorry, sir, I just wanted to raise at this point to indicate that in relation to the agreed set of facts and the columns that were the reference and the relevant correspondence in our agreement that those were - the references was not an indication that we accepted that those matters would in fact be in evidence in these proceedings. We have a number of objections to evidence that is being proposed to be put forward and therefore I just wanted to say that Mr O'Grady's comments at this point obviously - I only raise to say that we have a number of objections to the matters he's seeking to put before you as being established by the evidence because we have objection to a number of those matters in fact being before you.

PN149

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Ms Gooley.
Mr O'Grady.

PN150

MR O'GRADY: Yes, thank you. What you'll see in exhibit PH5 to
Mr Hammond's statement there's a statement from Mr Bullock and Mr Bullock isn't being called, but he details an incident that occurred at Melton Delivery Centre. More significantly is the correspondence that's exhibited in exhibit PH6 and the first piece of that correspondence is a letter from Mr Ousley, the manager of Southern Operations, to Ms Doyle and you'll note that the date of that correspondence is 27 July 2005. So we are now dealing with an incident that's only some months after Ms Doyle has been reissued with a permit and there are a number of complaints made about Ms Doyle's attendance at the site on 24 July and her failure to comply with both the Act and with the Blair protocols which is common ground were in force at that point in time.

PN151

The next piece of correspondence is a letter from Ms Doyle to Ms Ousley, dated 28 July 2005 and in that Ms Doyle denies a breach of her obligations and asserts that her visit on that occasion was correctly notified and agreed. So we say that she is asserting there that she has complied with her obligations under the Act and she details how she has complied with that in that she has obtained permission to visit the site from a Ms Whitfield, the retail manager was the person notified and she goes on to say in that correspondence that Mr Bullock has no authority in the matter, so even though Mr Bullock might not have been happy for her to be there, because Ms Whitfield had given her permission that was all right.

PN152

Then that letter is responded to on 17 August 2005 by Mr Ousley again who points out that Ms Whitfield wasn't the manager in charge of that facility but rather the postal manager retail and who happened to be the shop steward for the Melton Retail Post Shop and accordingly she had no authority to invite Ms Doyle onto the site and furthermore, that she attended on a non work day for an improper purpose, in effect to obtain evidence for matters that were due to be heard in the Commission. And the failure to comply with the obligations upon a permit holder under the Blair protocols to investigate an award breach are further detailed in
Mr Ousley's correspondence.

PN153

Now, it's my instructions that's the end of the chain of correspondence with respect to that issue. We note however that in her witness statement Ms Doyle has put forward a slightly different version of events and not insignificantly has maintained that she instructed Mr Bullock to deceive Australia Post as to the circumstances of her attendance on that site and we say that for Ms Doyle to have acted in that way so soon after having her permit renewed, goes to whether or not she is a fit and proper person to have a permit issue on this occasion. The next incident we rely upon is 17 March 2006. This is an attendance where Ms Doyle was to speak to her members during their meal breaks and this is detailed in
Mr Manos's witness statement.

PN154

Mr Manos recounts what we say is inappropriate behaviour in a number of respects. Firstly, there was an attempt to have people stop work and attend the meeting prior to the break time in question. Secondly, there was a refusal to comply with Mr Manos's direction that Ms Doyle cease calling people to the meeting at that point in time. Thirdly, there is Ms Doyle's behaviour towards
Mr Manos which we would characterise as being rude and dismissive and inappropriate in all the circumstances of the case. There is also Ms Doyle's, we would say, blocking of the door, despite Mr Manos's attempts to persuade her to re-enter the lunch room until the appropriate time for the meeting had arrived.

PN155

Now, as we understand the position Ms Doyle asserts that shortly before the meeting she simply announced from the lunch room doorway that a meeting was to be held and that were employees were welcome to attend and that Mr Manos approached her in an aggressive fashion and attempted to force her through the doorway into the lunch room. Mr Manos of course will be called to give evidence and you'll be able to assess his evidence in respect to that particular incident. The next incident is on 10 August 2006 where at the Richmond Delivery Centre
Ms Doyle attended in order to speak to members during their breaks. Once again it is alleged by Australia Post that Ms Doyle prior to the time for the meeting came out of the lunch room and called out to staff and we say that that was disruptive.

PN156

It had the natural effect of staff ceasing to perform their duties up until the approved break and it should not have occurred. Ms Doyle I think maintains that similar to the previous incident that she, just prior to the meeting, like a minute or so prior to the meeting, she stated from the lunch room door, "There's a union meeting, please come in, everybody's welcome". The next incident is on
20 November 2006. This occurred at the Melbourne Gateway facility and it is said by Australia Post that Ms Doyle instead of waiting to be escorted into the facility, proceeded to enter the facility unescorted and unauthorised and passing through a secure door in the process of going upstairs to the lunch room.

PN157

Now, you will hear evidence, Deputy Industrial Registrar, that the way that facility is set up is that there is a secure door that one goes into to enter if you like the working part of the centre, the non public parts of the centre which includes the lunch room which are upstairs. It also includes areas for customs and AQIS because this is a facility that deals with airfreight and that once you're in that vulnerable part of the centre you are not impeded from then going onto the workroom floor and indeed it's possible to get access to the runways themselves from that part of the facility. Now, the security of that facility is something that Australia Post treats with great seriousness and we say that there is just no excuse for Ms Doyle coming onto the centre without being properly escorted.

PN158

We also rely upon the fact that when confronted as to her presence in the facility by Ms Tucker and informed her that she should not have entered the facility unescorted Ms Doyle behaved inappropriately towards Ms Tucker in a way that it's inconsistent with her obligations as a permit holder and there's evidence from Ms Tucker you will hear in that regard and there's also a suggestion Ms Doyle changed her story when she was speaking to Ms Tucker. The next incident is on
6 December 2006 at the Brighton Delivery Centre. On that occasion it is said that Ms Doyle asserted a right to speak to members under the Blair protocol - sorry, a right to speak to members outside of meal breaks under the Blair protocol.

PN159

Now, the background to this incident, Deputy Industrial Registrar is that the Blair protocol was drafted prior to the forms made to part 15 by the WorkChoices legislation. In mid 2006 Australia Post informed Ms Doyle that given the significant legislative changes that had occurred with WorkChoices it considered that it was the legislation as opposed to the Blair protocol which should govern rights of entry. Ms Doyle wrote back to Australia Post taking issue with that, however did not progress the matter by taking it to the Commission and in those circumstances Australia Post says that Ms Doyle was on notice that the Blair protocol no longer governed her attendance pursuant to her permit and informing Mr Carbone that she had a right to speak to a member outside of their meal break, Ms Doyle misrepresented what was the situation that she knew to be the case as far as her rights and powers were concerned.

PN160

The next incident occurs on 7 March 2007 at the Preston hub. Once again
Ms Doyle was directed to go to the lunch room and it is our position that
Ms Doyle refused to go to the lunch room as directed but rather proceeded to the stock area of the hub to speak to transport drivers who were not on their meal breaks at the time. The next incident is at the Brighton Delivery Centre on
22 March 2007, but once again this incident concerns Mr Carbone who I should say is a relatively new manager of a facility and we would say in a position of vulnerability vis-à-vis Ms Doyle and in the course of that occasion Ms Doyle asserted to Mr Carbone that she was entitled to speak to union representatives outside their meal breaks pursuant to what's described as the delegates charter.

PN161

Now, the position of Australia Post with respect to that incident is that the delegates charter provides in effect that a delegate can have a 15 minutes time per shift to perform delegates duties. There are significant limitations on that, including the fact that the break or the 15 minutes must not interfere with the work that was otherwise being performed and there was must be approval from the relevant manager for that break to take place. What is clear we say is that the delegates charter does not confer any rights on Ms Doyle to speak to people outside their meal breaks. What it does do is say that a delegate has an allocated period of time, subject to other preconditions being met, to discharge delegate functions and for Ms Doyle to be asserting to a relatively new facility manager that she has the right under the delegates charter to speak to a delegate outside of their meal breaks we say once again misrepresents the true position.

PN162

The next incident that is dealt with is the Somerton hub and here what is asserted is that Ms Doyle after addressing her members during their meal breaks and signing out of the facility log book and being told to in effect leave, remained in the loading bay for approximately 10 to 15 minutes speaking with contractors who were not on their meal breaks at the time and we say that that was a clear breach of her obligations as a permit holder. As we understand the position Ms Doyle - sorry, and one that we say was exacerbated by the fact that not only did Ms Doyle engage in that behaviour but when the Australia Post manager, Mr Ritchie, came out she tried to hide from him in the loading bay.

PN163

Now, Ms Doyle says that she was only there speaking to contractors on her way through if you like and she denies having attempted to hide. Well, Mr Ritchie will give evidence about that and we've got photos which we say is consistent with his version of events. The next incident that has been detailed in the agreed statement of facts is on 22 August 2007 and the location of that incident is at South Melbourne Delivery Centre. Can I say, Registrar, that in the light of the material that has been filed by Ms Doyle in these proceedings we no longer seek to put that incident before you as a matter going to whether or not Ms Doyle is a fit and proper person to be issued a permit and subject to the Commission's directions we don't intend to call Ms Uhlhorn or rely upon her witness statement.

PN164

In effect, just so you can appreciate the situation, Ms Uhlhorn observed Ms Doyle in areas of the plant other than the lunch room, notwithstanding her understanding that Ms Doyle would be going to the lunch room at the South Melbourne Delivery Centre. Ms Doyle asserts that there are in effect two proximate centres with two lunch rooms and that Ms Doyle was moving from one lunch room to the second lunch room where she was going to address a meeting with her members and we accept that that is a scenario that is open on the material and we can't take it any further so we don't seek to rely on it.

PN165

The next incident is that on 15 October 2007 and it concerned what we say is a familiar pattern of conduct with Ms Doyle prior to the meal break exiting the lunch room and calling out to staff that there is a meeting on and we say that
Ms Doyle in doing that interrupted staff, as one would expect because if you're suddenly confronted coming onto the work floor calling them into meeting, it was prior to the meeting taking place and Ms Doyle should not have engaged in that conduct. The next incident is on 16 November at the Melbourne Parcel Facility. On this occasion Ms Doyle spoke to a security guard engaged by Australia Post as a precursor to coming onto the facility.

PN166

We say that in that conversation Ms Doyle was extremely abusive towards that security guard, a Mr Imolesi, and swore at him, as detailed in Mr Imolesi's witness statement and we say that that conduct is clearly inconsistent with somebody being a fit and proper person to hold a permit to enter premises under the Act. We understand the material filed by Ms Doyle she just denies that she spoke to
Mr Imolesi in that way and obviously that will be a matter that will result in the evidence. The next incident concerns 7 December 2007. This was at the Airport West Delivery Centre and on this occasion it appears to be common ground that Ms Doyle - sorry, I withdraw that.

PN167

It's the Australia Post's position that Ms Doyle didn't enter the facility through the defined visitors entry point but made her way onto the facility and was then observed by management and then taken to see Mr Duke who was the manager in charge of the facility. When asked as to the fact - or when asked about the fact that the facility had not received notice of her attendance Ms Doyle was not able to establish that she had provided such notice. Ms Doyle was asked to leave and she gave some paperwork to the shop steward before existing the premises and it's accepted by Australia Post that Mr Duke allowed her to do that.

PN168

The next incident that's detailed in the agreed statement of facts is on 13 March 2008 - sorry, I apologise, on 11 March 2008 and Ms Doyle attended the site, however instead of waiting in the lunch room Ms Doyle elected to wait outside the front gate and she was seen by Ms Peterson inside the premises talking to members of staff without authorisation to do so. She was then asked to go to the lunch room. Ms Doyle refused to go to the lunch room and we say that is also conduct which is relevant to whether or not she is a fit and proper person to be issued with a permit. Deputy Industrial Registrar, there is an assertion in the outline filed by Ms Doyle or the CEPU that there has never been a dispute issued with respect to Ms Doyle's attendance on site. That's incorrect.

PN169

In December 2007 there was an issue that led to a dispute being notified in the Commission. In effect Ms Doyle had sought permission to attend a facility with a view to conducting a union election and she wished to be accompanied by another representative of the union who did not possess a right of entry permit being just prior to Christmas, which as you'd appreciate, Deputy Industrial Registrar, is the busiest time of the year for my client. That permission was refused. Ms Doyle indicated that in response she would attend the site and conduct the election herself pursuant to her right of entry permit. That matter was the subject of a notification to the Commission. Upon that matter being referred to the Commission, as I understand it, Ms Doyle decided that she wouldn't be using her right of entry permit in that way.

PN170

We didn't rely on that in our original material because it was able to be resolved. It was one of those rare occasions where we had forewarning of Ms Doyle's intentions and could prevent her behaving in the way that disrupted the Australia Post's operations. What we say, Deputy Industrial Registrar, is that the incidents that we rely upon must be viewed in combination and what they reflect is a person who is prepared to constantly push the envelope, vis-à-vis her attendance on site pursuant to the rights referred to in the Act to see what she can get away with. Now, in our submission, particularly for somebody who has had a permit revoked and who has obtained the reissuing of a permit upon expression contrition to the Commission as currently constituted and an awareness of her obligations under the Act, this pattern of behaviour raises serious concerns as to whether or not
Ms Doyle is a fit and proper person to be issued with a permit.

PN171

Further, Registrar, it is a pattern of behaviour that is not cost free. By behaving in this way Ms Doyle exposes the various Australia Post managers and other personnel with whom she is required to deal when attending site to unnecessary stress and unnecessary inconvenience. In effect Australia Post managers shouldn't have to put up with managing Ms Doyle and the games that she wants to play when she comes onto site, when she attends site. It is not said, Deputy Industrial Registrar, that Ms Doyle behaves in this way on each and every time she attends site. But what is said is that there is a not insignificant number of times when
Ms Doyle does engage in this behaviour and that it is not something that is consistent with the objects that are enshrined in section 736 and which we say have to inform the question of whether or not Ms Doyle is a fit and proper person to be issued with a permit.

PN172

The submission is made in the outline, Registrar, that this is not a question of conditions being imposed upon Ms Doyle's permit, that one gets to the question of the imposition of conditions only after Ms Doyle has satisfied you that she is a fit and proper person to be issued with a permit and the matters that we rely on we say should prevent you forming that degree of satisfaction. Alternatively it is put that if you were satisfied clearly this behaviour warrants some further limitation on Ms Doyle's exercise of right of entry in order to give effect to the objects that the Act attempts to enshrine. If the Commission pleases, those are the matters I would like to raise by way of outline.

PN173

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr O'Grady.

PN174

MS GOOLEY: The primary submissions of the CEPU is that Ms Doyle is a fit and proper person to hold a permit under the Act, that the matters you have to have regard to most significantly are those matters set out in section 742, part 2. The matters that the parliament has expressly drawn your attention to in relation to determining whether Ms Doyle is a fit and proper person is set out in items (a) to (h) and the only one of those matters that Ms Doyle does not satisfy if we leave out any other matters that you consider relevant are the question that she has had her permit revoked. She had her permit revoked in 2004 and she was re-granted a permit in March 2005 and since that time there has not been a - Australia Post has not sought to take any of the matters that they have raised in these proceedings before you under the dispute resolution procedures provided in the certified agreement, nor the mechanisms provided in the Act which we say is the appropriate mechanism to deal with any issues that they might have had or alleged to have had about Ms Doyle's use of her permit in relation to her right of entry.

PN175

What we say, and I don't intend to go through date by date with you, many of the things that Mr O'Grady has said in these matters is subject to evidentiary dispute and it's appropriate that those matters are determined on the evidence that's before you. But what we say is this, Ms Doyle in fact is meticulous in attempting to comply with the conditions imposed by the Act in terms of right of entry. As such she not only in - and I think it's accepted in most occasions, 99 per cent of occasions she not only carries with her when she visits a site but in fact the proof that she has sent a notice of entry to the site because Australia Post Ms Doyle to comply strictly with the Act and the presumption Australia Post works on is that if they can't find their record of the notice sent by Ms Doyle then she hasn't sent it and she's not permitted to have entry. And you'll see that referred to in a case where Ms Doyle gets contacted about whether she had a permit and she was required to fax it through to Australia Post again despite the fact that she had already advised them of her right of entry.

PN176

The one occasion Australia Post relies on where they say that Ms Doyle did not have that proof with her on that occasion, she was in fact when she got to the site, she went to the intercom. They said we don't have any record of you. She was buzzed onto the site so that that could be sorted out because often on that occasion Ms Doyle might have it or they might find it and Ms Doyle went onto the site and when she could not find her copy and Australia Post couldn't find their copy,
Ms Doyle accepted that it was probable that one had not been sent and therefore she indicated that she would leave the site but asked permission from I think it was Mr Duke to give something to a shop steward. That permission was given and then she left.

PN177

So the evidence before you is that if there is any dispute about whether Ms Doyle has complied with her obligations in respect of providing notice of entry, in the event that Ms Doyle is unable to prove that she has notified in accordance with the Act she leaves and she does so without dispute. The evidence is that not only does Ms Doyle comply with her obligations under the Act in relation to notifying her right of entry but she also complies with additional requirements from Australia Post. So there are some locations where Australia Post not only requires that the notice be sent to the particular site that she is intending to visit but she's also required to notify elsewhere. When that is requested she complies with it.

PN178

As a result of the dispute that arose at the Preston hub - sorry, not the Preston hub, the Melton Delivery Centre when Ms Doyle notified the most senior manager on the site that she was going to attend the site which is both a retail and delivery centre, which is Melton, but not a transport centre, when she notified that she wished to come out and observe work undertaken by transport workers, since that date, after the complaints of Australia Post that she notified the wrong section of Australia Post she in fact notifies both transport - sorry, both delivery and retail when she's attending site; what we have is a situation where Ms Doyle meticulously complies with her obligations to give notice, when she attends the site she also complies with her obligations not to disrupt work, to meet with members during working time and deals with people that she meets in those occasions professionally, despite the fact that Ms Doyle often faces delays in being able to enter the sites.

PN179

Now, that may not matter in circumstances where there is an opportunity to meet members over a long period of time but the reality is with most of these incidences Ms Doyle is intending to meet with workers on a 10 minute break.
Ms Doyle faces delays when she attempts to enter and faces the situation where - no, that's all I need to say. Ms Doyle does not deny that on the occasions that she attends the site and she is in the tea room that she will stand at the doorway to announce the fact that a meeting occurs, is going to occur and invites people to those meetings. There is no evidence before this Commission that that in any way has disrupted work at the site.

PN180

There is a dispute between the parties as to the right of employees of Australia Post to, during working time, raise grievances with their managers and have
Ms Doyle present as their representative. While there may be a dispute between the parties as to that, none of that goes to the question of whether Ms Doyle is a fit and proper person. Ms Doyle is attempting to represent the employees who have requested her representation and any dispute about whether that is permissible could be dealt with in any dispute resolution procedure under the certified agreement, particularly in circumstances where the certified agreement expressly allows employees to raise grievances with their supervisors.

PN181

So we say that in this matter a lot of the allegations that have been put against
Ms Doyle are simply factually incorrect. Ms Doyle has in fact complied with her obligations under the Act. We would go as far as to say that even if you found that some of these instances occurred they do not go to the issue of whether
Ms Doyle is a fit and proper person. The concept of fit and proper as the High Court says in Bond, goes to questions of improper conduct and we say that none of the conduct that's been alleged could be said to be improper conduct, nor could it be said that Ms Doyle has displayed any dishonesty in her approach to Australia Post and we say that Ms Doyle has since the revocation of her permit and the reissuing of her permit continued to act in accordance with the statement she made to the court at the time, which is that she would comply with her obligations under the Act and she is a fit and proper person to hold a permit.

PN182

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Ms Gooley.
Mr O'Grady.

PN183

MR O'GRADY: Unless you wish me to, Registrar, I don't intend to reply. The evidence will be the evidence. If I could call Mr Peter Hammond.

PN184

MS GOOLEY: Before Mr Hammond is called and maybe with him out of the room we should deal with the objections I have to his witness statement?

PN185

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, Ms Gooley.

PN186

MS GOOLEY: Is Mr Hammond in the room?

PN187

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr Hammond.

PN188

MS GOOLEY: The first area of our objection goes to paragraph 6 of
Mr Hammond's statement. We object in particular to the words -

PN189

Demonstrated that she was not a fit and proper person to hold right of entry under the Workplace Relations Act.

PN190

That's a conclusion on Mr Hammond's part and is not evidence. We don't oppose the placing onto the record the submissions made by Australia Post but we do object if they're being put there for the purpose of suggesting that what is contained in those submissions is evidence because the submissions contain hearsay, opinions, conclusions and are not themselves evidence. So the fact that Australia Post made submissions, we don't object to the fact that that bit of evidence is in but we object to the inclusion of those submissions as evidence. We say that it's objectionable. Do you want to deal with them one at a time or shall I continue through until we get to the end?

PN191

THE DEPUTY INDUSTRIAL REGISTRAR: Could you give me an indication of how many more objections there are?

PN192

MS GOOLEY: Quite a lot, about 20. A lot of them go to the same issue though because you'll notice of course Mr Hammond gives evidence of which he has no knowledge, or purports to give evidence of which he has no knowledge and he purports to put into evidence letters which themselves are either not from him or if they are from him, themselves are based on hearsay.

PN193

THE DEPUTY INDUSTRIAL REGISTRAR: Perhaps Mr O'Grady needs to be given a right to respond to your objections and I'm just trying to get clear in my mind what's the most efficient way in terms of should we do them one by one in which case you'll both be jumping up and down for the next however long this is going to take. Can I suggest that there may be some usefulness served by perhaps by, Ms Gooley, you continuing with not necessarily all of them but perhaps the next half a dozen and hopefully that will give us a sample of the types of objections. Mr O'Grady can then respond in relation to those. Once I've ruled of them that might give us, as it were, a sort of benchmark on which to deal with the others a bit more efficiently. Does that sound like an acceptable way to proceed to you, Mr O'Grady?

PN194

MR O'GRADY: Yes, Registrar.

PN195

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Ms Gooley.

PN196

MS GOOLEY: We object to paragraph 10. It's a conclusion and it's based on hearsay. Paragraph 11, the fact of Commissioner Foggo's order is not objected to but the statement that goes from -

PN197

Commissioner Foggo relied on evidence that she'd incited -

PN198

et cetera, et cetera, down to "cease". Commissioner Foggo's order stands on its own. Mr Hammond's conclusions about the basis on which Commissioner Foggo made her decision is inadmissible.

PN199

THE DEPUTY INDUSTRIAL REGISTRAR: Ms Gooley, sorry, can - - -

PN200

MS GOOLEY: Sorry. So it goes from -

PN201

Commissioner Foggo relied on the evidence led by Australia Post that
Ms Doyle had incited employees of Australia Post to organise in -

PN202

et cetera, et cetera, et cetera. The orders of Commissioner Foggo issued on that day we don't object, it exists, but the conclusion that Mr Hammond makes that that's what caused Commissioner Foggo to issue those orders is not within his knowledge and therefore inadmissible. It's a conclusion about why Commissioner Foggo issued the order and there's no evidentiary foundation for that conclusion. If you go to paragraphs 12 to 14, we say the entirety of paragraphs 12 to 14 are hearsay. We note that in particular we have no opportunity to cross-examine
Mr Bullock who makes the allegations in PH5.

PN203

The letter from Mr Ousley, there is no evidence that Mr Ousley was present at the delivery centre which is PH6 - sorry, at the centre, the delivery centre on the relevant date. His statements about what occurred are hearsay and
Mr Hammond's attempt to put them into evidence are hearsay on hearsay because presumably somebody told Mr Ousley what he then alleges in his letter and
Mr Hammond then purports to put it into evidence. We do not object to the response to those by Ms Doyle. Ms Doyle is here to be cross-examined and any dispute as to those letters can of course be dealt with by Australia Post by the presence of Ms Doyle.

PN204

Paragraph 15 to 16, again hearsay, again a letter written by Mr Wilson, again hearsay on hearsay. Mr Wilson was not present during the alleged incident so presumably we've got a letter from something somebody told Mr Wilson who's now told Mr Hammond and has attempted to get hearsay evidence into this proceeding. Again we do not - so we object to that evidence on the basis of hearsay. Paragraph 17, I mean Mr Hayes is going to be here to give evidence but paragraph 17 is again hearsay. Paragraph 18 is hearsay. Paragraph 19, the fact that Mr Hammond attaches this as a letter doesn't change it from the fact that the contents of the letter are hearsay.

PN205

THE DEPUTY INDUSTRIAL REGISTRAR: Are you objecting to the entire paragraph?

PN206

MS GOOLEY: Yes. I don't object to the fact that he wrote a letter but I object to the content of that letter as being evidence of what's contained within it.

PN207

THE DEPUTY INDUSTRIAL REGISTRAR: What's contained within it.

PN208

MS GOOLEY: So I don't object, yes, he wrote a letter, but it's not evidence of what's contained within it.

PN209

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, I understand that point that you're objecting on, Ms Gooley. I think is that an appropriate time perhaps to hear from Mr O'Grady?

PN210

MR O'GRADY: Can I commence, Deputy Industrial Registrar, by acknowledging the obvious which is that a function of Mr Hammond's statement is to in effect summarise in convenient form the nature of the evidence we're about to call. It's accepted that Mr Hammond was not present when a number of the incidents that he refers to in his statement took place. However, in my submission that's not the end of the matter as to whether or not what he says in his statement can go into evidence. The letters that he has exhibited we say are business records of Australia Post and on that basis alone are admissible to go to the truth of their contents.

PN211

Further, and perhaps more fundamentally, the letters show what Australia Post was communicating to Ms Doyle about its understanding of her behaviour on various days and what Ms Doyle was saying in response. Now, it's submitted that that's relevant on at least two bases, Deputy Industrial Registrar. Firstly,
Ms Doyle's understanding or Ms Doyle's state of knowledge of Australia Post is saying about her conduct we say goes to the heart of whether she is a fit and proper persona and I say that partly because both in the proceedings in which
Ms Doyle lost her original permit and in the proceedings before you where she had that permit reissued, Ms Doyle pleaded ignorance.

PN212

She said, look, I may have overstepped the bounds but I didn't really know what my obligations were. We say the pattern of correspondence in which she has been told in clear and unequivocal terms what her obligations are is relevant in its own right. Further, we say that Ms Doyle has made a number of admissions in her correspondence in response, admissions both that are expressed and admissions that flow from her not taking issue with propositions that are put to her as to what took place on various occasions. We say that that is relevant if you have to decide exactly what did take place on those occasions. Now, that's if you like the overview in response to the objections. Can I come now specifically to the paragraphs relied upon by Ms Gooley.

PN213

The first paragraph is paragraph 6 as I understand it. In my submission there's nothing objectionable in paragraph 6 because what Mr Hammond is doing is simply describing the basis upon which Australia Post objected to Ms Doyle being a granted a new permit. Now, I don't understand Ms Gooley to be saying that wasn't the basis upon which Australia Post objected to Ms Doyle being issued with a new permit.

PN214

THE DEPUTY INDUSTRIAL REGISTRAR: Except that the test at that time certainly didn't refer to fit and proper person, so in that essence it's a conclusion that wasn't necessarily reflected in the decision that was made at the time.

PN215

MR O'GRADY: Well, as I understand it and this will ultimately be a matter of submissions before you at the end of the day, sir, but as I understand it Australia Post urged upon you that you should have regard to a fit and proper person test at that point in time and you indicated that on your reading of the Act that that wasn't appropriate, although I think you acknowledged that there was some aspects of fit and proper that you could have regard to. But this really is the position that Australia Post was putting forward at that point in time. It's not inaccurate and we say it's relevant because it goes to the circumstances in which Ms Doyle got her permit and, if you like, the context in which her subsequent contact should be viewed.

PN216

So it's not said that paragraph 16 provides a basis for you concluding as a matter of fact that Ms Doyle was not a fit and proper person at that point in time. But it is said that this was an issue that was agitated before you when Ms Doyle applied for the period that was subsequently expired and in my submission that is relevant and paragraph 6 is admissible on that basis. And as I understand it, Ms Gooley in effect concedes that by saying, well, the submissions can go in but clearly they're not evidence of what they assert, and I accept that. But what was agitated before you when Ms Doyle sought to have the permit reviewed we say is relevant and paragraph 6 goes to that issue as to the submissions which are appended.

PN217

So in effect we rely upon the words, "on the basis that", in the third line to answer the objection made by Ms Gooley that this is opinion and is admissible on that basis. The objection to paragraph 10, that is accepted it expresses a view of
Mr Hammond. Mr Hammond, of course, is a senior employee of Australia Post and in my submission the fact that he has that view is a matter that is admissible, albeit it's not a matter of any great weight and would of not course bind the Registrar in the discharge of your function. But in my submission it's really a paragraph that's there by way of introduction more than anything else, but given Mr Hammond's status in my submission it's not inappropriate for it to form part of the statement to put what appears subsequently into context.

PN218

Paragraph 11, as I understand it, it's not said that the order shouldn't go in but it is said that the basis that's identified in the bottom half of the paragraph shouldn't go in. You're aware of course, Registrar, that under the old section 127 there were jurisdictional prerequisites for the issuing of an order under section 127 and where an order was issued against an individual that would have to be on the basis that there was industrial action that was either threatened, pending or probable or that was being engaged in or organised. Now, in the light of the fact that Commissioner Foggo has made an order against Ms Doyle, in my submission there is nothing fundamentally wrong with the description of the basis upon which that order was issued that appears in the body of paragraph 11. Paragraphs 12 to 14 - - -

PN219

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr O'Grady, I'm assuming that there wasn't a decision or reasons accompanying the order that was issued by Commissioner Foggo?

PN220

MR O'GRADY: My instructions are that it was an extempore decision. I'm made inquiries about the transcript but I'm afraid I don't have it here and my instructions are that the Commissioner referred expressly to Ms Doyle in the course of making that decision and I can indicate that we will obtain a copy of the transcript and provide it to the Commission and that's perhaps the best way of dealing with what's in paragraph 11. I should say, Registrar, that we had no notice of these objections until this morning so we weren't able to have that material available. When I say this morning I mean when Ms Gooley got on her feet.

PN221

Paragraphs 12 to 14 deal with the Melton incident. It's accepted that
Mr Hammond wasn't there. It is submitted that the documents that he has exhibited as PH5 and PH6 are business records and contain admissions of the type that I referred to earlier. It seems to be accepted that Ms Doyle was informed of the allegation being made against her by Mr Bullock and in the correspondence of Mr Ousley and that she responded in the way set out in her letter of 28 July 2005 which is also part of exhibit PH6 and that Mr Ousley responded in the way set out in his letter of 17 August 2005 which forms the last part of exhibit PH6.

PN222

The evidence of Mr Hammond will be that this is the end of the correspondence on this point, having checked the records maintained by Australia Post, and we say that firstly, what Ms Doyle has said in her letter of 28 July 2005 is very significant in the light of the allegations that were being made against her and in the context of her only having just regained a permit some three months previously or four months previously and we also say that this incident becomes relevant when one has regard to what Ms Doyle is now saying about this incident and you will see in her witness statement at paragraph 39 she in effect acknowledges that she told the driver to tell an untruth to Australia Post about her behaviour on this occasion.

PN223

We say that that is something that fundamentally goes to whether or not you're a fit and proper person. So in my submission whilst it's accepted that the statement of Mr Bullock can't go in as to the truth of its contents, because as my friend says he is not here to be cross-examined, that incident, what was put to Ms Doyle, what she said in response and her failure to respond to the last piece of correspondence from Mr Ousley should go in and is highly relevant to these proceedings. With respect to the complaints about paragraphs 15 and 16, the letter of Mr Wilson we say is a business record and accordingly is admissible on that basis. In addition, it is an expression by Australia Post of its position that is communicated to
Ms Doyle and it forms of the context in which her subsequent conduct should be viewed.

PN224

We say it's significant also in this regard, Ms Gooley in her opening said almost as if it was a - or suggested that it was almost some condemnation of Ms Doyle's conduct because Australia Post had not sought to agitate these matters in the Commission through a dispute brought under the enterprise agreement or some other mechanism. Clearly that's a very serious and expensive step for my client to undertake. The fact that we are agitating these issues with Ms Doyle on an ongoing basis in correspondence we say is a matter that is in itself relevant and that you can have regard to.

PN225

In respect of paragraph 17, as I understand it - sorry, I withdraw that.
Mr Hammond's statement doesn't take it any further and I accept that, but in my submission it's not inappropriate for him to simply direct to the Commission for the Commission's convenience the fact that there is evidence going to that particular issue and informing the Commission where it is. A similar point we would make in respect of paragraph 18. I don't put to you that the evidence of either Mr Hayes or Ms Tucker comes any stronger because of what appears in those paragraphs, but in my submission as a matter of convenience for the Commission it's not inappropriate for it to being referred to in the way that it is. I think that was where Mr Gooley's had got up to when you asked her to sit down.

PN226

THE DEPUTY INDUSTRIAL REGISTRAR: In relation to paragraph 19,
Mr O'Grady, there's the exhibit - sorry, the attachment PH8.

PN227

MR O'GRADY: Yes.

PN228

THE DEPUTY INDUSTRIAL REGISTRAR: It's further correspondence. I'm assuming that you're submitting the business records argument in relation to that paragraph as well?

PN229

MR O'GRADY: Yes, coupled with the fact that independently of a status as a business record the fact that Australia Post is agitating these matters with
Ms Doyle is a matter that is relevant in the circumstance of this case.

PN230

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady, can you clarify for me what you say in relation to the incidents that are outlined or the allegations made in the business records?

PN231

MR O'GRADY: Sorry?

PN232

THE DEPUTY INDUSTRIAL REGISTRAR: What's your position in relation to the various items of correspondence contain a number of allegations, some of which I think I can quickly say, some of which have been responded to in correspondence by Ms Doyle? I'm trying to clarify what the position is in relation to what you say is the value of the evidence of those allegations that's contained in the correspondence and the correspondence can stand as yes, Australia Post sent a letter on X date, but within that letter there's a whole range of statements and allegations made and I'm just a bit unclear about what your position is in relation to the contents of the letters.

PN233

MR O'GRADY: In my submission the contents of the letters is admissible and is something that you can have regard to, but clearly there is a question of the weight attached to that where there is not other direct evidence of the incidents that they describe. Now, that direct evidence we say relevantly takes three forms, firstly, there are letters in which Ms Doyle has responded to the matters which contain what we say are admissions. Secondly, we say there are areas where Ms Doyle has responded to some issues but been silent on others, or not responded to some allegations that have been raised squarely with her, we say also constitute admissions.

PN234

Lastly, we say there is direct evidence recalled by other witnesses who will corroborate, if you like, what is in that correspondence. Now, can I perhaps take a step back, Deputy Industrial Registrar, and just in a nutshell explain what I understand to be the position with respect to the business records themselves. The Commonwealth Evidence Act acknowledges the reality that in large organisations there may not be somebody who has ready access to direct evidence of a particular issue, so for example, pay rates or what somebody was paid or how much leave somebody had. In order to address that issue it makes express reference to business records being admissible as to the truth of their contents in their own right and we would be submitting that these pieces of correspondence are admissible on that basis.

PN235

That said, as I indicated a moment ago, Deputy Industrial Registrar, the weight you give to that evidence clearly has to be assessed in the light of the other evidence and the other supporting material that's available. But in my submission without more these letters would be admissible going to the truth of their contents as they are business records. Now, if Ms Doyle gets up and says no, that didn't happen, I was there, and we don't have any other material to support what's in the letter, well, in assessing the weight of the evidence one's going to obviously have to have regard to what Ms Doyle says about those things. But they don't become inadmissible simply because the author of the letter isn't being called or they contain hearsay.

PN236

Of course the Commission in any event, notwithstanding the sense in having regard to the rules of evidence, is not bound by them in my respectful submission on that basis as well. The better course is to allow this material in and then it's a matter for submission at the end of the day as to what will you do with it. May it please the Commission.

PN237

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr O'Grady.
Ms Gooley.

PN238

MS GOOLEY: I'll just deal with the issue of business records first, sir. As my friend has pointed out, the Commonwealth Evidence Act does deal with the question of business records at section 69 of the Evidence Act and I apologise and will get a copy of this section for you during the luncheon adjournment. It provides that, and I'll read it out:

PN239

This section applies to a document that is either, is or forms part of the records belonging to or kept by a person, body or organisation in the course ...(reads)... for the purpose of the business.

PN240

The hearsay rule does not apply to such a document so far as it contains the representation. If the representation was made by a person who had or might reasonably suppose to have had personal knowledge of the asserted fact. Well, we know that, for example, Mr Ousley who wrote the letter in relation to the Melton issue did not have personal knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by a person who had or might reasonably supposed to have had personal knowledge of the asserted fact. If we just look at the documents that have been purported to have been brought in under the business records, we have a statement of Mr Bullock which is dated 29 July 2005. We then have a letter from Mr Ousley which is dated 27 July 2005.

PN241

So in relation to the statement, the representations made in this letter, there is no way that you could conclude that that information was directly or indirectly supplied by a person who might reasonably supposed to have personal knowledge of the asserted fact. There are two people who knew what happened on that occasion, Ms Doyle and Mr Bullock, and the person who gave Ms Doyle permission to go to the site. There's nothing in Mr Ousley's letter that indicates that he received this information from Mr Bullock, so there's nothing within the information you've got before you that would enable you to say that it fitted within the exception that permits business records to be able to be admissible.

PN242

So we say that the business records exception is not established and we say that what is being attempted to do here is to try and attempt to, by the documents put before you, suggest that there is more evidence than the direct evidence that is going to be put before you about the incidents that occurred, alleged incidents that occurred and Ms Doyle's response. In relation to - and you will note that we did in fact say that we did not object to Ms Doyle's letters going in as evidence of their content and given that my friend is tendering them to you as evidence then he's in any position to object to them going in as evidence of their content and we don't raise that objection.

PN243

But certainly my friend is able to put any matters that he says of prior inconsistent statements to Ms Doyle as part of his cross-examination of Ms Doyle, but we don't object to those letters going in. It's in fact the letters of Mr Hammond,
Mr Ousley and the other persons who this is an attempt to get what we say is inadmissible evidence in in these proceedings. We do accept that you are not bound by the rules of evidence but that it's not a reason not to have regard to the rules of evidence. The allegations that have been raised against Ms Doyle are serious allegations. They involve allegations that she has in fact been in breach of the Workplace Relations Act. They're actually allegations that she is not a fit and proper person and so it's an application that she should not be entitled to a permit.

PN244

We think in those circumstances the evidence that should be considered by you in this relation should only be admissible evidence and not inadmissible evidence. We have no objection to the fact that these are evidence that letters were written but we say that in relation to the letters of Australia Post that they cannot be relied on as evidence of the truth of the content. Thank you.

PN245

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Ms Gooley.

PN246

MR O'GRADY: Could I briefly respond? With respect to section 69, as
Ms Gooley has said, there were only two people present on this occasion, namely, Ms Doyle and Mr Bullock. One assumes that Ms Doyle didn't inform Mr Ousley about what happened at Melton on that day. Mr Ousley has in his letter substantively reproduced the description of events provided by Mr Bullock and contained in his statement and in my respectful submission in those circumstances you should proceed on the basis that the second limb of section 69 as described by Ms Doyle is clearly satisfied with respect to what Mr Ousley has said in correspondence.

PN247

More fundamentally, Deputy Industrial Registrar, it in my submission would be artificial in the extreme to have regard to what Ms Doyle is saying in this correspondence without having regard to the allegations that are being put to her. That goes not only to the issue of whether she's been informed as to Australia Post's concerns about these issues, which we say is independently relevant, but it also provides the context for the submissions that I want to put to you about admissions, both expressed and implied flowing from Ms Doyle's correspondence, or the absence of correspondence and it's illustrated perhaps quite clearly in this chain of correspondence that's set out in exhibit PH6.

PN248

You've got Mr Ousley saying to Ms Doyle, look, I've been informed that you did these things at Melton and I think you have breached the right of entry requirements of the Act and the Blair protocols. That's what he says in the first of his exhibits, PH6, in that first paragraph -

PN249

And it's clearly inappropriate and in breach of your obligations as a permit holder and in breach of a deed of settlement you have entered into and we think you have entered the premises for an improper purpose and an improper manner.

PN250

A potential was drawn to Ms Doyle she'd given to you that she had a greater knowledge and understanding of her obligations as a permit holder. Now, what Ms Doyle says in response to that is she didn't breach her obligations as a permit holder as it was correctly notified and agreed. So that's her response to that. She tells us who she made the agreement with, namely, Ms Whitfield. Now, that's an important factor because the evidence, and this is reflected in the correspondence that I want to come to in a moment, that the evidence is Ms Whitfield is a shop steward. So Ms Doyle three months after getting her permit back has tried to, we will be submitting at the end of the day, circumvent the scheme created by the Act by getting a shop steward to tell us she can go on site and whilst she is coming on site she's taking photographs for the purposes of a Commission proceeding under the guise of investigating a breach of an award.

PN251

She goes on to say in her letter of 28 July that Mr Bullock has no authority in the matter. So she's saying at that point in time that irrespective of Mr Bullock's objections, which were recounted to her by Mr Ousley, he couldn't tell me what to do because I had Ms Whitfield tell me it was all right. Now, that we say is a fundamentally different line to the line that Ms Doyle has sought to take in her statement filed in these proceedings and we say that that goes to whether or not she is a fit and proper person as well and then we have the letter of Mr Ousley of 17 August where he takes on board what Ms Doyle has said, informs her of
Ms Whitfield's status as a shop steward and the fact that she's in the retail post shop and she's not the manager or person in charge of the Melton DC and she doesn't work for them and makes further allegations about her conduct on that occasion.

PN252

That's where the chain of correspondence goes. So Ms Doyle doesn't respond to any of those allegations and we say that in itself is a matter that is relevant because that we say constitutes an admission in the light of the way in which she previously responded to those allegations, or the allegations made in the first letter of Mr Ousley. So in my submission even if the Commission were bound by the rules of evidence there is a proper foundation for the admission of this material, both as to the fact that it was sent, the Subramanian type approach, and also as to the truth of its contents. But we do rely on the fact that the Commission is not bound by the rules of evidence and at the end of the day the appropriate weight that these matters can be given is going to be best assessed after you've had a chance to consider the correspondence and have heard the viva voce evidence of the various witnesses that will be called, including Ms Doyle. If the Commission pleases.

PN253

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr O'Grady. I'd actually like to take a short adjournment to consider these arguments before I rule upon them.

<SHORT ADJOURNMENT [11.40AM]
<RESUMED [12.17PM]

PN254

THE DEPUTY INDUSTRIAL REGISTRAR: I give a general ruling in relation to the issue of business records which I think will deal with a number of the objections that have been raised and then I will proceed to deal with each of the paragraphs and the objections that have been made just to ensure that the application of my ruling is consistently understood by all parties. I have decided to admit the correspondence. I am not satisfied however that the basis for that can rely upon section 69 of the Evidence Act. The documents that I'm referring to do not contain previous representations made or recorded in the documents themselves for the purposes of the business.

PN255

It seems to me that subsection (1)(b) of section 69 of the Commonwealth Evidence Act cannot be satisfied in circumstances that we have before us with correspondence of this nature. However, having regard to all the circumstances of the case and I'll talk specifically about some particular paragraphs, and given the nature of the letters and the matters that are in dispute I have decided to exercise my discretion to admit the correspondence. It's not my intention however to permit Mr Hammond to express opinions, et cetera, about the meanings of some of those items of correspondence. In relation to paragraph 6 and the objections raised, I've decided to admit the paragraph.

PN256

I do so having regard to the argument that this is really just an expression of Australia Post's view of the basis on which they made submissions. It seems to me it probably has little if any weight in terms of these proceedings so in all the circumstances I have concluded that it can be admitted simply as Australia Post's expression as the basis or the motivation for their submissions in relation to the previous matter. In relation to paragraph 10, the paragraph is excluded. It's excluded on the basis of hearsay and in my view probably expressions, conclusions and also perhaps opinion. It does nothing to assist this process for
Mr Hammond to be expressing his views in that regard and the paragraph is not admitted.

PN257

In relation to paragraph 11, I am excluding the entirety of the second sentence -

PN258

In issuing the order, namely, Ms Doyle directly, Commissioner Foggo -

PN259

et cetera, down to the word "ceased". It's a conclusion about the reasoning of Commissioner Foggo which can be put into evidence through more appropriate means if necessary. In relation to paragraphs 12, 13 and 14, which I think is the first occasion when I ruling in relation to business records needs to be applied in a practical sense, I am excluding paragraph 12 on the basis that it's clearly hearsay. In relation to paragraph 13, my view is that in the exercise of discretion, relying upon not being bound by the Evidence Act to do so, I think it's incumbent upon me to be particularly cautious in regards to how that evidence is admitted and obviously in due course to what degree it might be relied upon and what weight might be given to it.

PN260

In relation to paragraph 13, I am excluding from the beginning of the paragraph down to the third last line, "delivery centre", starting with "Ms Doyle obtained entry", all the way down to "Melton Delivery Centre". So the remainder of paragraph 13 will read:

PN261

At the time Mr Bullock provided Australia Post with a statement regarding the events of 24 July. A statement dated 29 July 2005 is attached to ..... statutory declaration.

PN262

Clearly in the absence of Mr Bullock, although that document has been into evidence by this decision the weight to be attached to it is a matter for submissions in due course. In relation to paragraph 14, I am excluding the first phrase:

PN263

As a result of unauthorised entry onto Australia Post's premises -

PN264

The remainder of the paragraph can remain in accordance with my ruling in relation to the correspondence. In relation to paragraph 15, consistent with my previous ruling it's excluded. Mr Manos, as I understand it, will be a witness and is able to give evidence of the events on that date. It's not necessary for
Mr Hammond to summarise or draw my attention to that. In relation to paragraph 16, again I'm excluding Mr Hammond's interpretations of the documents. In this case it will be the second sentence and the third sentence:

PN265

In his letter Mr Wilson who has responded to claims -

PN266

et cetera and -

PN267

and he then turned to her inappropriate behaviour.

PN268

The final sentence:

PN269

Mr Wilson's is attached and marked annexure PH7.

PN270

Will remain. Consistent with my earlier ruling, paragraph 17 is excluded, similarly paragraph 18. In relation to paragraph 19, the paragraph is admitted. Ms Gooley, would you like to proceed with your further objections in relation to the statement in regard to the rulings that I've just made?

PN271

MR O'GRADY: If the Tribunal pleases.

PN272

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Ms Gooley. Mr O'Grady, did you need a moment further to - - -

PN273

MR O'GRADY: No, no, I understand the ruling and accept the ruling, sir.

PN274

MS GOOLEY: Paragraph 20 I would presume is excluded on the basis that
Mr Carbone is giving evidence and his evidence does not need to be summarised in this hearsay manner by Mr Hammond, so I would anticipate that in fact given I think he exhibits the protocol and that paragraph 20 is not necessary in the sense that it's hearsay, the protocol speaks for itself - - -

PN275

THE DEPUTY INDUSTRIAL REGISTRAR: Without hearing from
Mr O'Grady, Ms Gooley, I would in terms of the application and my previous rulings the sentence:

PN276

On 29 May I wrote to Ms Doyle to inform her -

PN277

et cetera, I would admit that and the quotation there from. I won't rule on the earlier bit until I hear from Mr O'Grady.

PN278

MR O'GRADY: Registrar, can I perhaps suggest this course, in the light of your ruling would it be convenient perhaps for us to have perhaps an early lunch adjournment and we can go through what's remaining in the statement and maybe we simply concede that bits aren't out and I can inform Ms Gooley of those bits we accept that in the light of your ruling are no longer being pressed and it might narrow the number of outstanding issues which Ms Gooley can inform me of and either persuade me or not and it might just save time. I'm in your hands. I'm just trying to suggest a way forward.

PN279

THE DEPUTY INDUSTRIAL REGISTRAR: Certainly. Ms Gooley, are you amenable to that course of action?

PN280

MS GOOLEY: Yes.

PN281

THE DEPUTY INDUSTRIAL REGISTRAR: I think that sounds like an extremely good suggestion, Mr O'Grady, and I apologise that the last adjournment took a little bit longer than I anticipated. If we adjourned now and resumed at 1.30 would that be a suitable amount of time given what you need to do in terms of going through the statements as well as having something to eat, Mr O'Grady?

PN282

MR O'GRADY: Could we adjourn until two and then Ms Gooley and I could arrange to meet at 1.30, after I've already gone through this and then that way we can agitate any outstanding issues, if that's convenient to the Commission?

PN283

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, that's convenient. On that basis this matter is adjourned until 2 pm this afternoon.

PN284

MR O'GRADY: Thank you, sir.

<LUNCHEON ADJOURNMENT [12.28PM]
<RESUMED [2.04PM]

PN285

THE DEPUTY INDUSTRIAL REGISTRAR: If anyone would like to remove their jackets please feel free to do so.

PN286

MR O'GRADY: Thank you, Deputy Industrial Registrar, and thank you for the time. It's been productive and if I could state for the record what I understand to be the agreed position with respect to the remainder of Mr Hammond's statement. We were up to paragraph 20, as I understand it, before the luncheon adjournment. It's agreed that the first, second and third sentences of that paragraph should come out but the remainder of the paragraph which recounts what the Blair protocols do should remain in and the Blair protocols themselves are annexed to the statement. Paragraph 21, it is agreed that that paragraph should remain in save and except for the sentence that appears as the second last sentence:

PN287

In my view this constituted an acceptance by the CEPU of Australia Post's position that it considered the Blair protocols to be defunct.

PN288

It's agreed that paragraph 22 should come out. It's agreed that paragraph 23 should stay in. Now, with respect to paragraph 24, I think it's accepted that the first sentence should stay in. The second sentence we would seek to remain in simply to the extent that it explains why Mr Bass is not being called. It doesn't go to the truth of its content, if I can use that phrase, but it simply explains why
Mr Bass hasn't been called. It doesn't suggest that - well, it doesn't go any further than that. Now, as I understand it that's an acceptable position to Ms Gooley.

PN289

THE DEPUTY INDUSTRIAL REGISTRAR: On that basis it's acceptable to me.

PN290

MR O'GRADY: With respect to paragraph 25, it's agreed that that should go out. With respect to paragraph 26, it is agreed that that should stay in, save and except for the second sentence -

PN291

In my letter I reminded -

PN292

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr O'Grady, can you just bear with me a moment?

PN293

MR O'GRADY: Of course.

PN294

THE DEPUTY INDUSTRIAL REGISTRAR: The second sentence of paragraph 26?

PN295

MR O'GRADY: Goes out. Paragraph 27 should go out. Paragraph 28 should stay in save and except for the second sentence. Paragraph 29 should go out. Paragraph 30 goes in simply to the extent that it annexes the correspondence. Paragraph 31 should go out. Paragraph 32 should stay in, really as a matter of convenience more than anything else because the correspondence is exhibited. Paragraph 33 should stay in. Paragraph 34 should go out. Paragraph 35 should stay in and really is primarily as a matter of convenience. Paragraph 36 should stay in. Paragraph 37 should come out. Paragraph 38 should come out. Paragraph 39 should come out.

PN296

Now, with respect to paragraph 40 through to 44, what we seek to do is rely upon the decisions and the transcript referred to therein but we accept that those are matters really of submission and that Mr Hammond's description of them really doesn't take the matter any further and so on that basis we would agree that paragraph 40, 41, 42 and 43 should come out. It is relevant the transcript referred to in 44 and that transcript exhibited should stay in and I have indicated to
Ms Gooley that there's some other transcript on the Friday that we'd seek to put in. As I understand it, she has no objection to transcript going before the tribunal so that can be the subject of submissions in due course.

PN297

With respect to paragraphs 45 and 46, as I understand it it's agreed that they can stay in with the following alteration, that prior to the second sentence in paragraph 46 the words:

PN298

Australia Post is of the view that -

PN299

be inserted. What is sought to be made clear by that is that these paragraphs go to Australia Post's motivation for seeking to intervene in these proceedings. They do not in themselves establish that Ms Doyle has done the things that are set out in paragraph 46 that of course is the subject of other evidence. If the Commission pleases.

PN300

MS GOOLEY: Yes, sir, that does represent our agreed position.

PN301

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Ms Gooley. On that basis, Mr O'Grady, I think Mr Hammond can be called.

PN302

MR O'GRADY: Thank you.

<PETER HAMMOND, SWORN [2.10PM]
<EXAMINATION-IN-CHIEF BY MR O'GRADY

PN303

MR O'GRADY: Mr Hammond, could you tell the Commission your full name, please, sir, and take a seat? Could you tell the Commission your full name, please, sir?---Peter Hammond.

PN304

And what is your occupation, Mr Hammond?---I'm the HR manager in mails and network division in Victoria/Tasmania for Australia Post.

PN305

All right. And have you prepared a statutory declaration for the purposes of these proceedings?---I have.

PN306

As you've just heard, there's been a number of objections to parts of that statutory declaration but to the extent to which there are bits of that statutory declaration that remain in evidence to your knowledge is that true and correct?---Yes.

PN307

Sorry, you have to answer for the transcript. Thank you. I would seek to tender Mr Hammond's statement.

PN308

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, Mr O'Grady, just give me a moment.

EXHIBIT #AP1 STATEMENT OF MR HAMMOND

PN309

MR O'GRADY: Thank you, sir.

PN310

Now, Mr Hammond, do you have a copy of your statutory declaration in front of you?---I do.

PN311

Could I ask you to turn to exhibit PH6 for me, please, sir?---I've got that.

PN312

Now, that includes or it exhibits some correspondence from Mr Ousley, Ms Doyle and further from Mr Ousley. Could I ask you to have a look at the last bit of correspondence, namely, the letter of Mr Ousley dated 17 August 2005?---I've got that.

PN313

Firstly, are you familiar with the Melton Delivery Centre?---Well, I'm that it's an Australia Post address where we have a commercial and mail and network premise occupying the same address at two separate parts of the business, one's commercial, one's mail and network division.

**** PETER HAMMOND XN MR O'GRADY
PN314

All right. And are you familiar with a person by the name of Ms Whitfield?
---Well, I'm aware that she was the postal manager or the retail postal manager at the time in 2005.

PN315

All right. Now, you've said that there are two separate parts of the address, what are the two parts of the address?---Well, there's a retail business centre outlet which is part of our commercial division.

PN316

Yes?---And there's a delivery centre where the posties operate and that belongs to mail and network division which, you know, which is my part of the business.

PN317

And what are the hours of operation of the retail centre?---Well, if it's a traditional retail outlet that would be nine to five, Monday to Friday, which I understand it is.

PN318

All right. And are you aware of whether Ms Whitfield holds any role in addition to being a postal manager in the retail centre?---Well, I also understood at the time that she was the shop steward, the CEPU shop steward for that site.

PN319

Thank you, sir. Now, Ms Doyle has the submissions or the CEPU in the submissions filed in this proceeding have said that the employer has not notified a dispute to the Commission about Ms Doyle's entry to premises or her conduct when exercising her right of entry. Can you comment on that proposition for the Commission?---Well, it's not entirely correct because in December last year we had reason to serve notice of the dispute about some activity at Dandenong Letter Centre that we became aware of from the manager, Mr Bass. He had some concerns that he was being asked to facilitate or allow shop steward elections to take place during the week commencing 17 December.

PN320

And can you just describe for the Deputy Industrial Registrar what you understood happened in response to - - - ?---The process. Well, my understanding is that Mr Bass was asked by Ms Doyle whether he would permit the union returning officer to be present at that facility on the 17th and 18 December to conduct shop steward elections. Mr Bass indicated that he wouldn't grant permission, that that week before Christmas would be the busiest week in our part of the business and Mr Bass didn't want that type of disruption occurring during that week. He denied permission. My understanding is that Ms Doyle was not happy with that. She then indicated that she might seek other means to facilitate the shop steward elections and the means she identified was to lodge right of entry notices on her behalf.

**** PETER HAMMOND XN MR O'GRADY
PN321

MS GOOLEY: I object to this line of questioning and the answers. It appears that Mr Hammond is now giving evidence in the witness box of information he has heard from somebody else which is classic hearsay and we don't have the opportunity to cross-examine the person it is alleged to have made these statements and it appears that Mr Hammond is giving evidence of matters he does not have direct knowledge and we object to him being asked about matters that he has no direct knowledge of.

PN322

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady.

PN323

MR O'GRADY: Perhaps if I can do it - I was trying to do it in a non leading way asking the witness's understanding of things. I've got the documents here. Perhaps if they can be identified and they can go in as proof of their contents.

PN324

Could you have a look at this document for me, please, Mr Hammond, I have a copy for you. Are these documents and correspondence associated with the dispute notification that you gave evidence of a moment ago?---They are.

PN325

And if one starts with the first document, that's a letter from Minter Ellison. Were they the solicitors for Australia Post at the time?---They were.

PN326

All right. And that attaches an application for orders in relation to a dispute about the operation of part 15 of the Act?---Correct.

PN327

The second document is a letter to the Commission?---Correct.

PN328

All right. And that seeks a listing of that dispute?---Correct.

PN329

The third document is the application for orders in relation to the dispute about the operation of part 15?---Correct.

PN330

And does that set out the grounds upon which the matter was sought to be ventilated in the Commission?---It does.

PN331

And in paragraph 4 and 5 does it refer to the election issue that you described a moment ago in your evidence?---It does.

PN332

Now, a draft order is attached?---That's right.

**** PETER HAMMOND XN MR O'GRADY
PN333

And then attached is further correspondence that sets out the circumstances in which the dispute had emerged including a notification of entry dated
17 December - sorry, 10 December 2007 in Ms Doyle's name?---That's correct.

PN334

Now, to your knowledge are these the documents that formed part of the dispute notification that occurred in December 2007?---They are and there's probably a couple of other documents that may not be there that also relate to right of entry notices from two organisers in Ms Doyle's office. They were also received, as I understand it, at the Dandenong Letter Centre and that was consistent with a telephone conversation I think I had with Ms Doyle on the morning of
13 December where she was expressing her concern that we wouldn't allow what she wanted to happen and she made some comment to the effect that I'll be there and I'll make sure my organisers are there.

PN335

All right. As a result of this matter being notified to the Commission what happened in respect of Ms Doyle's purported attendance to conduct the election?
---Well, it's my understanding that after she would have received noticed that we've listed the union decided not to proceed.

PN336

Could I ask you to identify this document for me, please.

PN337

THE DEPUTY INDUSTRIAL REGISTRAR: Can I just suggest that this first document be marked MFI1 at this stage to ensure that there isn't any further confusion?

PN338

MR O'GRADY: Yes, thank you, sir.

EXHIBIT #MFI1 DOCUMENT RELATING TO DISPUTE NOTIFICATION

PN339

MR O'GRADY: There's a document under the Commission's insignia which purports to be a listing notice. Is that a listing notice relating to the application that you've described a moment ago?---Yes, it is.

PN340

And then there is a document which purports to be a letter from Ms Doyle dated 13 December 2007. Is that your understanding - sorry, I withdraw that. Is that a letter from Ms Doyle in response to the listing of this matter?---Yes, it is.

PN341

If I could tender all three sets of documents, Deputy Industrial Registrar.

**** PETER HAMMOND XN MR O'GRADY
PN342

THE DEPUTY INDUSTRIAL REGISTRAR: Ms Gooley?

PN343

MS GOOLEY: I have no objection to their tender.

PN344

THE DEPUTY INDUSTRIAL REGISTRAR: You're asking for them to be tendered?

PN345

MR O'GRADY: All three.

EXHIBIT #AP2 THREE DOCUMENTS RELATING TO DISPUTE NOTIFICATION

PN346

MR O'GRADY: Now, Mr Hammond, Ms Doyle in her statutory declaration at paragraph 28 alleges that -

PN347

Australia Post local management are instructed to listen to what I have to say to employees and provide a union site visit report.

PN348

Can you comment on that assertion by Ms Doyle?---No, it's not my understanding.

PN349

What is your understanding?---Well, there is no - you know, there is no instruction for managers to listen to what Ms Doyle says when she comes into our premises. They are however required to sort of provide information about when union officials attend, when they leave and report on any non compliance with the requirements of the Workplace Relations Act. That's the primary purpose of these site visit reports we get from operational managers.

PN350

Now, in paragraph 29 of her statutory declaration Ms Doyle also alleges:

PN351

We are required to notify a Monday visit to the delivery centres before 12 noon on Friday.

PN352

Can you explain to the Commission how or what are the requirements and what is the background to the form of notification that's associated with Monday visits?
---Yes. Well, this arrangement arose out of some difficulties we had with right of entry notices that were being faxed to our delivery centres after they closed. They open at 6 am in the morning, on a Friday they generally close between 2 and say 3 o'clock, and we had occasions where we were receiving notices after 3 o'clock late in the afternoon or even over the weekend for entry on Monday morning. That presented difficulties for our delivery management people on Monday morning if the first information they had about a union visit was at that time. We had discussions with the union about how we could work around that. We subsequently sought the assistance of the Commission before Commissioner Foggo through a process that she facilitated. Australia Post and the union reached agreement on arrangements that have been operating satisfactorily since, and they required that the union to notify preferably before midday but no later than 2.15 on the Friday, and similar arrangements also applied around public holidays.

**** PETER HAMMOND XN MR O'GRADY
PN353

And was there a manager's information bulletin issued to managers in order to explain to them those arrangements and the steps they should take in respect of that?---There was, and I think that was issued by Mr Wilson, the state delivery manager.

PN354

Could you have a look at this document for me please, sir. Is that document a copy of the manager's information bulletin you referred to?---Yes, it is.

PN355

I seek to tender that, Deputy Industrial Registrar.

EXHIBIT #AP3 MANAGER'S INFORMATION BULLETIN

PN356

MR O'GRADY: In paragraph 29 of her statutory declaration Ms Doyle says that:

PN357

In addition to sending the notices to the hub we faxed the notice to the central manager.

PN358

Can you comment on that part of her statutory declaration?---Well, I'm not aware that there's any formal requirement been imposed on Ms Doyle to lodge that entry of notice twice. In fact it's my understanding that Mr Humble, who is the manager of the hub network in our state, I think he wrote to her sometime last year indicating that one point where the fax should be received and that was his office, and he didn't want those right of entry notices going direct to the hubs in the suburbs, and there was certainly no requirement for Ms Doyle to lodge it twice.

PN359

In paragraph 29 Ms Doyle also says:

PN360

We are required to send the notice for the Dandenong Letter Centre to two fax numbers at DLC.

PN361

Can you respond to that proposition for us?---Well, I've spoken with my HR consultant who works at Dandenong and she advises that's not the case. There's no requirement for Ms Doyle to lodge at two separate fax machines at Dandenong and that the other officials who work in Ms Doyle's office only lodge it in the one fax, not at the two faxes as being suggested.

PN362

Now, at paragraph 31 of her statutory declaration Ms Doyle alleges that Australia Post changes its tea times to frustrate the union's communication with employees. Can you comment on that proposition for me please?---I'm certainly not aware of any strategy like that.

**** PETER HAMMOND XN MR O'GRADY
PN363

Have any notification of a dispute been filed by the union to the Commission alleging that Australia Post is changing its tea break times to frustrate the union's communication with employees?---Not that I'm aware of.

PN364

Now, at paragraph 19 - sorry, at paragraph 32 of her statement Ms Doyle says that:

PN365

Delegates are entitled under EBA6 in the delegates charter to have 15 minutes per shift to perform shop steward duties.

PN366

Can you comment on that proposition for me please sir?---Well, that's correct, that's what that delegates charter does provide for, but any time delegates take is still subject to approval by their supervisor or manager.

PN367

Does the delegates charter deal with right of entry of union officials?---No, it doesn't.

PN368

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady, which paragraph of Ms Doyle's statement are you referring to?

PN369

MR O'GRADY: Sorry. My note says paragraph 32, but I'd better check that.

PN370

THE DEPUTY INDUSTRIAL REGISTRAR: Yes, thank you.

PN371

MR O'GRADY: For convenience, Deputy Industrial Registrar, it's exhibit JD8 of Ms Doyle's statement that contains the delegates charter. I don't need to take the witness to it.

PN372

Now, you dealt with this in your original statement about - sorry, in the original statement you deal with the communications that you were responsible for to Ms Doyle about the Blair Protocol, and you say that you had written to Ms Doyle confirming that it no longer apply, do you recall that?---That's correct.

PN373

And you exhibited that letter to your original statement. At paragraph 33 of the statutory declaration Ms Doyle alleges:

PN374

It has been the custom at Australia Post that if an employee wants an employer to raise a personal matter that near the end of the meeting they can provide it and it takes a few minutes.

**** PETER HAMMOND XN MR O'GRADY
PN375

Can you comment on that proposition for me please sir?---There's certainly no custom and practice that that entitlement is automatically granted. Like any sort of arrangement it's still subject to the supervisor or line manager agreeing to it. There's no custom and practice that it's automatically entitled.

PN376

Just bear with me please. I have no further questions.

PN377

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr O'Grady. Ms Gooley?

<CROSS-EXAMINATION BY MS GOOLEY [2.33PM]

PN378

MS GOOLEY: Can I take you to exhibit PH9 which is the Blair Protocol?---I've got that.

PN379

And your evidence is that it wasn't custom and practice that Australia Post at the end of the meeting an employee could have a brief discussion with a union official?---That's correct.

PN380

The Blair Protocol you would agree would you not provides at clause 2.4 that:

PN381

It is understood that an individual may have an issue that may be discussed with an official privately at the end of the lunch period in the spirit of cooperation which there is simply a question and answer situation which is likely to take only a few minutes this will be allowed.

PN382

?---My understanding is it's still subject to a manager agreeing.

PN383

That's not in the document though is it, Mr Hammond?---On which - where are you referring to there?

PN384

Clause 2.4?---My understanding is common courtesy still applies.

PN385

So what you're saying is, what was supposed to happen, somebody was supposed to go out to the work station, find their supervisor, say I want to just take a minute or two and go and have just a brief chat at the end of the meeting with the organiser? You need to not just nod Mr Hammond because the transcript doesn't pick you up nodding?---That's my understanding.

PN386

But it's not what it says is it?---No.

**** PETER HAMMOND XXN MS GOOLEY
PN387

And the Blair Protocol was something that until a certain point in time Australia Post has insisted its complied with, is that correct?---If it's complied with?

PN388

That it was complied with by members of the CEPU?---It was.

PN389

Strictly complied with, is that what Australia Post - - -?---I don't follow that question, sorry.

PN390

The Blair Protocol was a document that you expected CEPU officials to strictly comply with?---Correct.

PN391

Now, Mr Hammond, the Blair Protocol, where did it apply?---Where did it apply? Well, it applied in parts of the mail network division.

PN392

In Victoria?---In Victoria.

PN393

In New South Wales?---Not that I'm aware of.

PN394

So you're not aware that the Blair Protocol actually applied to both New South Wales and Victoria?---No. It was - it came out of a dispute in Victoria and it's my understanding that it applied only in Victoria.

PN395

So if I put it to you that one of the reasons why Ms Doyle responded to your letter - sorry, just let me take you to the correspondence about the Blair Protocol. Do you see in Ms Doyle's correspondence to you on 20 June 2006 at PH9?---I do.

PN396

She says that:

PN397

This matter should be discussed with the New South Wales and Victorian branches and the equivalent Australia Post representatives.

PN398

?---Yes.

PN399

What did you understand that was intended to do?---Well, at the time I didn't really understand what we were being asked to do. I think that letter indicates an intention on the union's part to put this matter into dispute. My understanding is that didn't happen.

PN400

But this letter was putting the matter in dispute wasn't it Mr Hammond? Isn't that the first stage of the dispute process, that the union advises you that they don't agree and they put it in dispute?---And I think this issue was the subject of some state level consultation between Ms Doyle, myself and Mr Ousley at our joint state consultative forum where we reiterated our position that in our view the WorkChoices legislation of early 96 made the Blair Protocol redundant, or I think the word we used was defunct, and that was the conversation we had at our level. And then the process then would be for Ms Doyle to escalate that to the next level in the disputation process.

**** PETER HAMMOND XXN MS GOOLEY
PN401

But you would agree wouldn't you Mr Hammond that a protocol would extend beyond New South Wales and Victoria, but you didn't have the authority to declare that protocol defunct did you?---This was a matter that was discussed internally within the HR group within Australia Post, and at the time I was advised that this protocol applied only in Victoria, and I was instructed by our corporate HR people that we should write to the union in this state and confirm what we did on 29 May.

PN402

Well, I'll put the question to you again and maybe you'll answer it this time. That if this protocol applied beyond Victoria you were not authorised to bring it to an end?---Well, I wasn't aware it was.

PN403

If this protocol applied beyond Victoria you were not authorised to bring it to an end?---That is correct.

PN404

Thank you. Now, you say that people are not - you said that Ms Doyle - no, not just Ms Doyle, but other officials of the union's visits, that there's nobody who is directed to report on what is said by Ms Doyle at those meetings, is that correct?
---Yes, there's no instruction or managers to report what Ms Doyle or any other union official says.

PN405

Can I just show the witness this document please? Have you seen this kind of report before?---I have.

PN406

Did you authorise these union site visit forms?---This type of form was in use at the time I took up in this position in 2006.

PN407

So what's the instruction given in relation to these forms?---Well, these forms are completed out in the field and, as it says here, they're sent to the HR group that looks after the delivery area.

PN408

And are there equivalent forms for retail?---I don't know in retail, that's not my part of the business, I don't know what happens there.

PN409

So what part of the business are you responsible for?---Mails and network division which is responsible for delivery, transport and letters and parcels.

PN410

Okay. So those areas, are these the forms that people are required to fill out if there's a union official visiting the site?---This form is commonly used in delivery and I think it's also used in other parts of the business.

**** PETER HAMMOND XXN MS GOOLEY
PN411

Which other parts of the business?---Well, Dandenong Letter Centre, we receive information in this form from, it would be Melbourne Parcel Centre, Dandenong Letter Centre, parts of our transport business, and it was a form that had its origin primarily in our delivery area.

PN412

And delivery, by delivery you're just going to have to excuse me?---Sorry?

PN413

I'm not absolutely au fait with - - -?---Delivery centre is where - - -

PN414

Delivery centre is posties, where the posties sort the mail and get it all together and take it out?---Correct.

PN415

Is that what you mean by delivery centres?---Correct.

PN416

So it's delivery centres, the transport business, the Dandenong Letter Centre, the Melbourne Parcel Centre?---And the Melbourne Gateway.

PN417

And the Melbourne Gateway?---And our country delivery and country mail centres.

PN418

So when a union official visits one of your sites one of these is filled in and sent off to whom, to you?---Well, it comes in - like, each parts of those business that I referred to, they have HR units that service them and they go into those areas.

PN419

And what you said was that these forms were designed to provide information on time of arrival, departure, compliance with the Workplace Relations Act?
---Correct.

PN420

If you have a look at this one, it certainly reports on more than compliance with the Workplace Relations Act doesn't it?---Well, it does.

PN421

And is it common for your managers to report back on what actually happened in the meetings?---If they're aware they often do, but it's not compulsory, not mandatory. If they're aware and if they think it's relevant or important they do, because sometimes this information can be useful sorts of touch points if there are issues out there that are being discussed, concern to the staff.

PN422

So your managers attend union meetings when a union official is exercising their right of entry to have a discussion with members and potential members and reports back to a central body?---I don't think I said that.

**** PETER HAMMOND XXN MS GOOLEY
PN423

This is what this notice does doesn't it?---No, that doesn't say that the manager attended the meetings that you're referring to.

PN424

Well, it says it was prepared by Sue Uhlhorn?---Mm.

PN425

So are you saying that the information you get back about what's happened isn't actually coming back from the person who was in the form?---Well, I couldn't tell you who and whether - I'm not even quite sure who Ms Uhlhorn is, or Sue Uhlhorn is, whether she - - -

PN426

She was one of your witnesses in this proceeding?---Yes, but whether she was the manager I don't know.

PN427

She's the postal delivery coordinator at the South Melbourne Delivery Centre?
---So with that job description she would be the 2IC.

PN428

So she's completed her site form?---And that's what this indicates, yes.

PN429

And along with others of your people who provide this information to you she reported back on what was said at the meeting?---And I think the question you asked was, was she there? No, I don't know.

PN430

So you may often receive reports back from people about what happened at workplaces when people reporting to you didn't actually see or hear what happened?---Quite possibly.

PN431

And do the reports often come back with information for you about what happened at the union meeting?---Well, we'd get reports like this which talks about information similar to that. Sometimes they come back with nothing.

PN432

But if there was a - and these forms have been in place since 2006 are you saying?---Well, probably earlier than that. I can only talk about my knowledge since March 2006, but I understand they were in existence in either this form or some other form before then.

PN433

So if there was a breach of the Workplace Relations Act by a union official in Victoria you'd receive one of these reports?---Sorry?

PN434

If there was a breach of the Workplace Relations Act in terms of right of entry by one of the officials of the CEPU you'd get one of these reports?---Well, if there was information that suggested there may have been, you know, it's preliminary information about something that (a) had happened which, as I said earlier, is referred to our HR consultants in that part of the business, and if there's any suggestion that there was a potential breach then further information would be obtained, that would be assessed.

**** PETER HAMMOND XXN MS GOOLEY
PN435

No, the question is, the first question, the question I asked you is that you'd get one of these reports?---We'd get a preliminary report, yes.

PN436

One of these?---Or some other report which could possibly be an email.

PN437

Ms Doyle is closely monitored when she visits sites isn't she?---Well, I don't know for a fact, but all visitors, now, we're very careful and very diligent about what happens when visitors come into our centres, not just the union. We have visitors from all ranges of people and we're very careful when visitors are in our premises.

PN438

Is that an Australia wide Australia Post policy?---What, to exercise care when we have visitors?

PN439

Mm?---Well, I can only speak on our part, in our part of the business, and we have visitors all the time in our parts of the business, and managers are very careful.

PN440

And you're not aware of what happens in other states?---I don't understand the question, sorry.

PN441

Are you aware what happens in other states in relation to the union exercising its right of entry?---I'm not quite sure what the question is.

PN442

Are you aware what practices are adopted in other states about union right of entry in Australia Post?---Well, we would comply with the requirements of the Act. The union officials in other states do enter if they submit the appropriate notice.

PN443

Were you at a meeting of human resource employees of Australia Post at a state national level on 1 May 2008?---Without my diary I can't tell.

PN444

But were you at a meeting with Mr Ron Corner on 1 May 2008?---Mr Ron Corner?

PN445

State manager, human resources department, New South Wales mails and network division?---Not that I'm aware of, no.

PN446

Now, at the Melton centre you talked about it having a retail - a retail business of Australia Post and part of it was in the delivery business of Australia Post. Am I right in describing the Melton facility as what those of us in the old days might have thought of as a post office? In other words there's a section where I as a member of the public could come in and buy stamps at the front, and then the other part of it are the posties sorting mail and putting it together and going out on delivery?---Well, I haven't been there so I can't comment.

**** PETER HAMMOND XXN MS GOOLEY
PN447

So you've never been to the Melton Delivery Centre. So when you describe them as separate parts of the business that's really an organisational treatment of them isn't it?---Well, there's two parts of the business that share an address.

PN448

But that's organisationally. The people who work there work for Australia Post, they're not physically prevented from going into the other parts of the business are they?---Well, I mean, the two parts of the business operate different business hours. As I think I said earlier, the retail shop basically are a nine to five operation, and the delivery centre opens at 6 am in the morning, closes mid afternoon, has mail dropped there over the weekend as I understand it.

PN449

And the person who drops the mail there on the weekend or drops the parcels there on the weekend is not either in the retail section or the delivery part, is there in the transport section of the business aren't they?---They are in the transport part of the business, but transport is part of the mails and network division, as is the delivery centre network. That's the part of the business that I'm involved in.

PN450

And you gave evidence that the person who gave Ms Doyle permission to come to the site was a shop steward?---Well, she was the manager, and the letter that Mr Ousley sent to Ms Doyle also indicated that she was a shop steward.

PN451

But you're not suggesting that shop stewards can't hold positions that entitle them to authorise people to come on site are you? You don't treat shop stewards differently to other employees do you?---I think the point being made was that she had no authority to give Ms Doyle permission to enter that part of the business at the weekend.

PN452

She was a senior manager at the site?---She had no authority to give Ms Doyle permission to enter the delivery part of that address.

PN453

That's not the question I'm asking you. I've asked you whether she was a senior manager at the site?---She was.

PN454

Thank you. Now, employees of Australia Post are allowed to raise grievances with their supervisors and managers?---That's correct.

PN455

And they're allowed to raise grievances with their supervisors and managers during working time?---They can.

**** PETER HAMMOND XXN MS GOOLEY
PN456

And they're entitled to have a representative with them when they raise that grievance?---If they ask for it, yes.

PN457

If they ask for it. What if they come up to their manager with a representative, that's within the grievance procedure isn't it, that they're allowed to have a representative with them?---Well, normally if those sort of meetings you're referring to, the meetings - - -

PN458

You just need to answer the question. Are they allowed to have a representative with them if they wish to raise a grievance with a manager?---They are.

PN459

And delegates are allowed to deal with union matters during working hours?
---That's correct.

PN460

And your evidence was that they had to get permission?---That's correct.

PN461

And if they get permission then they've got about at most 15 minutes a day?
---That's according to the charter, yes.

PN462

And during that time they would be for example allowed to ring a union official, they'd be able to ring Ms Doyle from the centre to talk to her?---Normal practice they can subject to permission being granted.

PN463

Now, you have evidence of a matter that went before Commissioner Foggo about the timing of when notices should go out to - at what time the union should give notice to you when they're intending to visit sites, that's the Friday for the Monday, those notices, and you said that that arose out of conciliation before Commissioner Foggo?---Well, discussions.

PN464

Yes, before Commissioner Foggo. And are you aware that that was a matter that the union had notified to Commissioner Foggo for resolution? Mr Hammond, you can't just nod. Yes?---Yes.

PN465

So in that instance the union wrote to the Commission and sought the assistance to resolve the dispute over right of entry?---I think that's my recollection, yes.

PN466

I have no further questions.

**** PETER HAMMOND XXN MS GOOLEY
PN467

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Ms Gooley. Mr O'Grady?

<RE-EXAMINATION BY MR O'GRADY [3.00PM]

PN468

MR O'GRADY: You were asked some questions about the Blair Protocol and its application to New South Wales. Do you recall being asked about that?---I do.

PN469

And the Blair Protocol is exhibit PH9 to your statement?---PH9, yes.

PN470

That's headed Agreed protocols for the conduct of workplace visits involving CEPU PNT Victorian Branch officials attending Australia Post facilities. Do you see that?---At the very top, yes.

PN471

To your knowledge has that ever been varied to refer to New South Wales Branch officials?---Not that I'm aware of.

PN472

And you were asked some questions about the authority that yourself and Mr Ousley would have to vary the Blair Protocol or treat it as defunct if it applied in New South Wales, do you recall that?---Mm.

PN473

As far as Victoria is concerned, forgetting about what's happening in New South Wales, but as far as Victoria is concerned who are the managers within Australia Post who have the authority to decide whether or not the Blair Protocol applies to right of entry visits to premises?---It would be and/or Mr Ousley or myself.

PN474

Now, you were asked some questions about the Melton facility, do you recall that?---I do.

PN475

And I think you gave evidence that they're different hours being worked?---That's correct.

PN476

Are there any other differences between the two parts of the business, the retail and the delivery part of the business?---Well, there's different hours and they occupy different parts of the address, and they're discrete areas.

PN477

What about the functions that are being undertaken by employees at the premises, are they the same?---No, they're entirely different. Now, the retail outlet primary responsibility used to sell stamps and other retail product, accept bill payments. Now, it's a conditional retail operation. The delivery centre receives, sorts and then delivers mail to that particular suburb or area.

**** PETER HAMMOND RXN MR O'GRADY
PN478

What management structures do you have in place as part of those two business?
---There's two separate management structures which report to two separate managers, and there isn't a common manager that sits across the delivery centre manager or the position occupied by Ms Whitfield at the time.

PN479

I might not have heard you Mr Hammond. Did you say there is or there isn't a common manager?---No, there is no common management that sits across the delivery manager or the retail manager.

PN480

Now, you were asked some questions about the capacity of employees to raise grievances with their supervisor and to be represented, do you recall that?---I do.

PN481

To your knowledge do those procedures provide a right of entry for a non Australia Post employee to come onto the site and insist on being present in the course of those meetings?---What was that, a non?

PN482

A non Australia Post employee, somebody like Ms Doyle to insist that they be allowed onto the site?---Well, it's - the first thing that is involved in the interview, the employee can invite any witness or observer of their choice, which can include a union representative.

PN483

I see, all right. Now, you were asked some questions about the delegates and their capacity to attend to union business during the course of the 15 minutes?---Yes.

PN484

To your knowledge does that delegate's time provide a right of somebody who is not an Australia Post employee to come onto the premises and speak to the delegate during the course of that 15 minutes?---No, it doesn't.

PN485

I have no further questions, Deputy Industrial Registrar.

PN486

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you, Mr O'Grady.

PN487

MR O'GRADY: Could I ask that Mr Hammond be excused?

PN488

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Hammond, you're excused, thank you.

<THE WITNESS WITHDREW [3.06PM]

PN489

MR O'GRADY: And if I could call Mr Nick Manos please.

<NICHOLAS MANOS, AFFIRMED [3.07PM]
<EXAMINATION-IN-CHIEF BY MR O'GRADY

PN490

MR O'GRADY: Mr Manos, could you take a seat sir, and could you tell the Commission your full name please?---Nicholas Manos.

PN491

And what's your occupation Mr Manos?---I'm a team leader.

PN492

And where do you work?---Hawthorn Delivery Centre.

PN493

And how long have you worked at the Hawthorn Delivery Centre?---About 12 years roughly, 11 years.

PN494

Now, have you prepared a witness statement for the purposes of these proceedings?---I have.

PN495

Can I take you to paragraph 6 of that statement? Do you have a copy of that statement with you?---I do, yes.

PN496

Now, are there any amendments you want to make to paragraph 6 of that statement?---Yes, there.

PN497

All right. Could you just tell the Deputy Industrial Registrar what amendments you want to make?---On the second line, at the end of the second line where it stars with "She told," the wording I would like to have inserted is "She told the staff to attend the union meeting and this caused them to stop working."

PN498

Okay. So would the sentence now read, this is the second sentence "She told the staff to attend the union meeting and this caused them to stop work." And then would this paragraph go on "I immediately went over to Ms Doyle" and so on and so forth?---Correct.

PN499

So you've deleted the words "in the vicinity to stop what they were doing and"?
---Correct.

PN500

Yes. Putting that amendment to one side, are the contents of your statement otherwise true and correct?---Yes, they are.

PN501

I'd seek to tender Mr Manos's statutory declaration.

EXHIBIT #AP4 STATUTORY DECLARATION OF NICHOLAS MANOS

**** NICHOLAS MANOS XN MR O'GRADY
PN502

MR O'GRADY: Mr Manos, in paragraphs 6 through to 12 in describing this incident - can you describe in general terms the incident and how you felt during the course of this confrontation, to use a neutral term, of Ms Doyle?---The incident itself was - Ms Doyle was meeting with the union members to discuss certain issues with them which ended up in her being in the work area of the night shift and causing a scene basically, and not following directions that were given to her.

PN503

And how did her conduct on that occasion make you feel?---Sorry?

PN504

How did her conduct make you feel?---Belittled. I felt like she was not following directions and felt that she didn't need to.

PN505

Now, in her witness statement at paragraph 55 - sorry, I'll start again. At paragraph 54 Ms Doyle says in the last sentence "I did not leave the lunch room, nor did I tell members to stop work." Now, I think you accept that Ms Doyle may not have told members to stop work, is that right?---That's right.

PN506

Firstly, what was the effect of what she said and did on that occasion as far as the work that other Australia Post employees were engaged in?---By her speaking out when she did and raising her voice that caused people to stop work.

PN507

Secondly, how do you respond to her assertion that she did not leave the lunch room, what do you say about that?---Yes, she did.

PN508

All right. How far out of the lunch room did she come?---A couple of metres, two to three metres.

PN509

Now, Ms Doyle says in paragraph 55 that a person who she did not know but now understand to be you came over to her and you were extremely aggressive and invaded her personal space. Can you respond to that allegation?---Not correct.

PN510

All right. Well, how did you approach Ms Doyle and how close did you get as far as her personal space is concerned?---I would not have been closer than one metre from her. I would - I asked her to lower her voice, I asked her to return to the lunch room.

PN511

All right. What tone of voice did you use?---The same as I'm using with you now.

**** NICHOLAS MANOS XN MR O'GRADY
PN512

And she says also in paragraph 55 that you attempted to shirt front her through the doorway. Now, assuming by that Ms Doyle means you attempted to use your chest to force her through the doorway, can you respond to that allegation please?
---No, I did not do that.

PN513

Did you at any stage touch Ms Doyle?---No.

PN514

Now, she says that she pointed out to you that you were blocking the entrance to the room and that was a health and safety problem. Did she - well, firstly, were you blocking the entrance to the room?---No, I was not.

PN515

Well, where were you standing when you were having this discussion with Ms Doyle?---Next to her while she was standing the doorway.

PN516

I see, all right. Now, you've told us a moment ago that she came out of the lunch room, a couple of metres out of the lunch room, so can you perhaps just describe the movements from the beginning to the end if you like of this incident from when Ms Doyle is making the comments that you refer to in paragraph 6 of your statement to when she returns to the lunch room, what happened?---She was basically within two or three metres of the lunch room doorway calling out to the staff to advise them there was going to be a meeting taking place and for them to attend if they wished. I've asked her then to quieten her voice down and return to the lunch room to wait for those who want to participate in the lunch room. After some gesturing of asking her to walk that particular way towards the lunch room is when she alleges that I blocked the doorway to the lunch room itself.

PN517

Well, I'm not so worried about what she's alleging. I'm asking you tell the Deputy Industrial Registrar what happened. So she's standing two or three metres away from the doorway?---Yes.

PN518

What happens after that?---She was talking to the group. I then spoke to her. As I was speaking to her she raised her voice in order to talk over me to make sure that the other people could still hear her.

PN519

And did she move at all?---No.

PN520

No, all right. Well, what happened after you've had this discussion where you're asking her to return to the lunch room and she's talking over the top of you?---She started pointing towards me with her index finger getting again louder and louder, refusing to listen to anything I had to say and refusing to abide by anything I had asked her to do.

**** NICHOLAS MANOS XN MR O'GRADY
PN521

All right. And you say in paragraph 11 that it went on for approximately two to three minutes?---Correct.

PN522

And what happened after that?---Eventually she did return to the lunch room where I did leave her and went to speak to my manager and inform her of what had just transpired.

PN523

Now, you say that this occurred at approximately 7.25 am. Why do you pick 7.25 am as the time that you think it happened?---Because it was not quite 7.30 when the normal morning tea break time is taken, so there was still people working.

PN524

Ms Doyle in her paragraph 57 says that she thinks it was already 7.30 am otherwise there wouldn't have been anyone in the lunch room waiting to hear her speak. Does that cause you to change your time? Ms Doyle says in paragraph 60 that she at no time directed members to stop work and they did not stop work before the time for their tea break. Well, how does that accord with your observations of the other Australia Post employees who were witnessing this altercation between yourself and Ms Doyle?---By virtue of the fact that they're watching what was happening they're stopping work.

PN525

I have no further questions Deputy Industrial Registrar.

PN526

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you.

<CROSS-EXAMINATION BY MS GOOLEY [3.17PM]

PN527

MS GOOLEY: What time is the tea break for the posties at - - -?---I can't hear you, I'm sorry.

PN528

What time is the tea break for posties at this location?---7.30 and 8 o'clock.

PN529

7.30 and 8 o'clock. And were you aware that on that day there was an agreement with the manager that all the posties could come to the 7.30 meeting?---I was not.

PN530

And I put it to you that Joan did not come out of the tea room and that she stood in the doorway to the tea room to announce the meeting, that's right isn't it?---No.

PN531

And I put it to you that she never went out onto the night sort area floor, is that correct?---No.

**** NICHOLAS MANOS XXN MS GOOLEY
PN532

And I put it to you that it was already 7.30 when that occurred because, as your statement says that you made at some time, although it's not dated, that there were not many people waiting to hear her speak, so she made her way through the doorway. Now, if there were people waiting to hear Joan speak it was after 7.30 wasn't it Mr Manos?---No, it wasn't.

PN533

Because people can't have their tea break before 7.30 can they Mr Manos?---No, they can't.

PN534

And they were in the tea room waiting for Ms Doyle weren't they?---No, they weren't.

PN535

That's what you said in your statement?---There was some - a new starter I believe that was in the lunch room.

PN536

Can I quote you? "There were not many people waiting to hear her speak." The new starter wasn't there to hear her speak was he? You have to say something, you can't just shake your head because otherwise the transcript doesn't pick it up?
---Okay. I'll say I don't know.

PN537

You don't know. When you first indicated this you said there weren't many people waiting to hear her speak. Those people must have been on their tea break mustn't they?---Some people may have started a tea break early.

PN538

And I put it to you that the person who was aggressive in this situation was you?
---No.

PN539

That you went up to Ms Doyle when she was standing the doorway, that's correct?---No.

PN540

And that you tried to force her back into the room by your physical presence?
---No.

PN541

And that you were the one that was raising your voice and behaving in an aggressive fashion?---No also.

PN542

And that you were angry with Ms Doyle because she made the announcement?
---No.

**** NICHOLAS MANOS XXN MS GOOLEY
PN543

You didn't think she should make an announcement do you?---No. I have - no, I don't believe that to be correct.

PN544

So you think Ms Doyle is entitled to stand in the doorway and call out and say there's a meeting?---Go back one step to when you said do I believe she has the right to say that or not?

PN545

Yes?---She can say, but she was also asked to stay in the lunch room.

PN546

And she was in the doorway of the lunch room?---No, she wasn't.

PN547

I have no further questions.

PN548

MR O'GRADY: I have no re-examination.

PN549

THE DEPUTY INDUSTRIAL REGISTRAR: Before Mr Manos is excused I would actually like to ask Mr Manos some questions, and whether that leads to either of you wishing to re-examine or cross-examine.

PN550

Mr Manos, it would assist me greatly if you could describe for me in very plain terms, perhaps even referring to this room, what the shape of the lunch room is and the doorway and the area immediately outside the doorway?---If we use that door there as lunch room doorway, this wall here is where the night sorters sort their mail onto into their frames, and there's some work area in this area here, that's the entrance to the lunchroom, and she would have been two to three metres this side of that doorway.

PN551

So you're describing the outside of the lunch room?---Correct.

PN552

And there is work going on immediately outside that lunch room effectively?
---That's right. So in this area here is the work area. On the other side of that wall, other side of that doorway is the lunch room itself.

PN553

Right. So there's no corridor into the lunch room?---No.

PN554

Or ante room or other space. The lunch room and the work area basically abut immediately the doorways?---Correct.

**** NICHOLAS MANOS XXN MS GOOLEY
PN555

Thank you. Nothing further. Mr Manos, you're excused.

<THE WITNESS WITHDREW [3.22PM]

PN556

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady, can I suggest a very brief adjournment, say 10 minutes?

PN557

MR O'GRADY: As the Commission pleases.

<SHORT ADJOURNMENT [3.22PM]
<RESUMED [3.37PM]

PN558

MR O'GRADY: Thank you Deputy Industrial Registrar. In the break I've had a discussion with Ms Gooley regarding her main witnesses this afternoon. Can I indicate that as I understand the position Ms Gooley doesn't require Mr Carbone for cross-examination subject to some amendments to his statement, and perhaps if I could address that now? And this is as I understand it an agreed position. With respect to paragraph 9 it is said that the last half of that paragraph from "It is clear from this email" really doesn't add anything, that the email speaks for itself. I've got the relevant email and obviously will tender that. Obviously that's not objected to so we'd be agreeing that the second half of that paragraph should come out.

PN559

And similarly with respect to the discussion with Mr Hopkins referred to in paragraph 14, Ms Gooley takes the point that what Mr Carbone was told by Mr Hopkins is hearsay and that that shouldn't go in. However we have an email which deals with that issue as well and we'd be seeking to tender that as well, and if that can be read according to its terms. But as I understand it with those deletions there's no objection to that statement being tendered and Mr Carbone note being required for cross-examination.

PN560

So the changes would be that the last two sentences of paragraph 9 would be deleted and the second sentence of paragraph 14 would be deleted, and then the statement would be tendered by consent. I'd also seek to tender the two emails that I've referred to.

PN561

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Mr O'Grady. Ms Gooley, a reply? Sorry, I was just waiting to give you an opportunity to finish that.

PN562

MS GOOLEY: Thank you.

PN563

THE DEPUTY INDUSTRIAL REGISTRAR: Mr O'Grady?

PN564

MR O'GRADY: So if I could perhaps do that now and then call Mr Hayes as the next witness. But if I could tender Mr Carbone's statement and the two emails?

EXHIBIT #AP5 STATEMENT OF MR CARBONE
EXHIBIT #AP6 EMAIL AND ATTACHMENTS DATED 06/12/2006
EXHIBIT #AP7 EMAIL AND ATTACHMENTS DATED 26/03/2007

PN565

MR O'GRADY: If I could call Mr Hayes?

<PHILIP JULIAN HAYES, AFFIRMED [3.42PM]
<EXAMINATION-IN-CHIEF BY MR O'GRADY

PN566

MR O'GRADY: Mr Hayes, could you tell the Commission your full name please sir?---Philip Julian Hayes.

PN567

And what is your occupation Mr Hayes?---Delivery manager for Australia Post.

PN568

And what's your business address?---106 Whitehorse Road, Balwyn, or Deepdene.

PN569

And where is Deepdene Mr Hayes?---Sorry?

PN570

Where is Deepdene?---Situated between Kew and Balwyn.

PN571

Now, have you prepared a witness statement for the purpose of these proceedings?---Yes.

PN572

Could I take you to paragraph 9 of that statement? At the foot of that paragraph you say "I recall that on that occasion a postal delivery officer Joel Seely present yelled out to Ms Doyle," and then you say "We don't care if it is in here." Do you see that?---You said paragraph 9?

PN573

Yes. It starts "This occasion was not the first time"?---Yes.

PN574

Okay, you see that. Do you want to change that evidence?---Yes, because I actually found some documentation in relation to that incident because it's going back a couple of years.

PN575

It's exhibit PH1 to your statement I think Mr Hayes?---Sorry, my hearing's not really good.

PN576

I'm sorry Mr Hayes. There's an email that's referred to and it's set out as exhibit PH1?---Yes.

PN577

Is that the documentation you're referring to?---No. I'm talking about the one on 26 June.

PN578

All right. So you found an email that related to 26 June?---Yes, in relation to that incident, yes.

**** PHILIP JULIAN HAYES XN MR O'GRADY
PN579

And according to that email what was said to you or said in respect of your presence in the lunch room?---When Joel Seely said no, we don't worry about him.

PN580

Okay, all right. Other than making that alteration or replacing the words "We don't care if he's in here" with "don't worry about him" are there any other changes you wish to make to your statement?---No.

PN581

I seek to tender Mr Hayes's statement.

PN582

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry Mr O'Grady, can I just clarify there that there has been just one change to that statement?

PN583

MR O'GRADY: Yes, that's right.

PN584

THE DEPUTY INDUSTRIAL REGISTRAR: And it's the quote in relation to what a person by the name of Joel Seely said?

PN585

MR O'GRADY: Yes. And the words "We don't care if he's in here" are to be changed to "Don't worry about him."

EXHIBIT #AP8 STATEMENT OF PHILIP HAYES

PN586

MR O'GRADY: Now, at paragraph 4 of your statement you describe an incident that occurred on 10 August 2006?---Yes.

PN587

And you say you heard Ms Doyle yelling loudly to staff?---Yes.

PN588

Now, where was Ms Doyle standing when she yelled that out?---Approximately two to three metres in front of the lunch room door.

PN589

And do you say that you believe the incident occurred no more than one minute after her arrival?---Correct.

PN590

And that would make it at 7.26 am or thereabouts given she arrived at 7.25?
---Yes.

PN591

What was the effect of Ms Doyle's yelling that out from the position she was standing two to three metres outside the lunch room, what was the effect on other staff?---The staff turned around in response to the words she stated.

**** PHILIP JULIAN HAYES XN MR O'GRADY
PN592

All right. And how loudly did she speak or yell at that point in time? You say she yelled loudly, but how far would her voice have carried, how far could you hear it from?---Well, I was probably approximately seven or eight metres away and, yes, I heard it quite clearly, so I'd say within a range of 10 metres.

PN593

And how many staff were in a position where they would have heard her yelling this out at this point in time?---Well, the main group that would have been close to her would have been the Victoria group so it would have been about probably 10 people.

PN594

All right. Now, in paragraph 6 you describe a discussion you had with Ms Doyle about her request to speak to Mr Zimmer?---Yes.

PN595

And you say that you told her that she could talk to Mr Zimmer on his break. Now, at this point in time was Mr Zimmer on a break?---Ray, no, he wasn't.

PN596

And Ms Doyle said that she was entitled to have 15 minutes with Mr Zimmer to talk to him about union matters. Now, do you believe that she was entitled to have 15 minutes to talk to Mr Zimmer, to talk to him about union matters?---No, because my discussion with our HR division was that that 15 minutes during the course of the day for the local shop steward to talk union matters was really at a local level and not to do it as state organisers at all. So yes, I deny that that access because Ray at the time was working and to me that 15 minutes, my interpretation of that is that it's only for the local shop steward to deal with people in the facility.

PN597

I understand. Now, you then describe what occurred whilst you were seated in the lunch room. Can you just inform the Deputy Industrial Registrar what was Ms Doyle's tone of voice? Was she courteous? How was she speaking to you and about you in the discussions referred to in paragraphs 8 and 9?---Well, I felt quite belittled and intimidated by her that, you know, I was sitting in a lunch room there, so I was not disrupting her during the meeting and, you know, I felt, you know, being the manager of that particular facility for the comments that she made towards me, basically that I shouldn't be in that lunch room, that I felt quite intimidated, quite humiliated by what she said to me.

PN598

Well, why were you in the lunch room Mr Hayes?---Why was I in the lunch room?

PN599

Yes?---It's probably just a habit I've developed over a period of time, because my concern was that Ms Doyle did come out to Richmond DC a number of occasions, and I found on some of those occasions when she did come out that staff would approach me after the meeting and ask me various questions about, you know, the information being conveyed to them from Ms Doyle, and some of that information I found, you know, was not the correct information and that for myself personally as the type of manager I am that, you know, that I felt instead of getting things second and third hand that may be incorrect given to me that it was far better for me to actually be present to hear what was actually said, and then if there was misinformation going out then I could correct it straight away and, you know, some staff would get very anxious and be slightly depressed about some of the things that were coming out so I felt it was, you know, it was my duty as a manager that, you know, I needed to put them straight in regards to any misinformation basically.

**** PHILIP JULIAN HAYES XN MR O'GRADY
PN600

All right. Now, at paragraphs 11 to 13 you describe an incident that occurred at Deepdene on 15 October 2007?---Yes.

PN601

Now, once again where is - sorry, I withdraw that. You say Ms Doyle came out of the lunch room and yelled from the doorway to staff "I want to start the meeting now." Now, where was Ms Doyle standing when she was doing that yelling?---Well, a similar direction, she was probably two to three metres forward of the lunch room door.

PN602

And you say she could not direct staff to take their break early. Why do you say that she was directing staff to take their break early?---It was just really the tone of the actual comment, you know, that she was to me virtually directing them, you know, she wanted to hold a meeting now and to come in now.

PN603

Now, you say that she said she had a number of things on that day and she'd already been in the lunch room for a period of time?---Yes.

PN604

Do you recall anything else she said on that occasion?---No. I just approached her when she did yell out to staff about the meeting and she just - that her comment to me was that she had a number of other things to attend to, other meetings to attend to that day, then she went back into the lunch room, and that is the only conversation I had with her.

PN605

I have no further questions.

PN606

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Mr O'Grady. Ms Gooley?

<CROSS-EXAMINATION BY MS GOOLEY [3.54PM]

PN607

MS GOOLEY: Mr Hayes, you say that Ms Doyle arrived at 7.25 am?---Sorry?

PN608

Sorry, you said that Ms Doyle arrived at 7.25 am on 10 August?---Yes.

PN609

So she arrived, she signed in?---Yes.

PN610

And then she walked to the lunch room?---Correct.

PN611

Can you describe the Richmond Delivery Centre to me? Where's the entrance?
---The entrance is at the front of the building and the lunch room's probably about the middle of the door.

**** PHILIP JULIAN HAYES XXN MS GOOLEY
PN612

And so then she got to the lunch room and she went into the lunch room?
---Correct.

PN613

And she put her things down?---Correct.

PN614

How do you know that?---How do I know? I saw.

PN615

Were you in the lunch room?---No. I was standing near the doorway, I could see. The lunch room's an open door and there's no walls as such on the operational side, it's just clear windows.

PN616

And did she distribute material around?---Sorry?

PN617

Did she distribute material around?---No. She just put her bag down.

PN618

And you say by this time it was 7.26?---Pretty close to it, yes.

PN619

So it took a minute for Ms Doyle to - - -?---From the time she actually signed into the visitors book, and the lunch room from the visitors book is no more than probably five metres, so she signed in the book, went directly to the lunch room as she normally does, put the bag down then came out straight away.

PN620

Well, Ms Doyle says that by the time she stood in the doorway to announce the meeting it was about 7.29. Can you dispute that?---Yes. According to my watch, because I looked at my watch, it was 7.26.

PN621

So that was your watch?---Mm.

PN622

Ms Doyle says it was 7.29. You're not in any position to dispute that it was 7.29 are you other than you say your watch said it was 7.26?

PN623

MR O'GRADY: Well, I object. What's my friend really getting at, that there's a nuclear clock out there somewhere that Mr Hayes should have regard to? He said he's checked the time on his watch and that's what his watch said.

PN624

THE DEPUTY INDUSTRIAL REGISTRAR: Ms Gooley, at this point it seems that Mr Hayes's evidence is that his watch said 7.26, and Ms Doyle's will be that hers said 7.29. Is there anything further than can be taken there?

**** PHILIP JULIAN HAYES XXN MS GOOLEY
PN625

MS GOOLEY: I don't think so.

PN626

And Ms Doyle says that she stood at the doorway to the lunch room and yelled out that there was a meeting going to start, I think to use her exact words "There's a union meeting at the tea break, please come in, everyone welcome." That's what she said didn't she?---No, that's not correct.

PN627

Because that's what she repeatedly says every time she goes to a workplace where she's going to announce a meeting?---That's not correct on that occasion.

PN628

She didn't direct people to stop work did she?---She did.

PN629

And she didn't tell them to come into the lunch room then?---She did.

PN630

And the only thing that you say staff did was turned around in response to listen to what was being said?---The staff turned around and at the same time the staff turned around is when I went up and approached Ms Doyle in relation to that particular incident.

PN631

And you make a habit of going to union meetings don't you?---No.

PN632

That Ms Doyle has. You gave evidence to that effect, you said it was your practice?---No, that's not correct at all.

PN633

So you don't go to the meetings that Ms Doyle has in the tea room?---I go to probably most of them but I don't go to all of them.

PN634

And you said that you go to those meetings so that you're able to correct what Ms Doyle says to staff?---Correct.

PN635

You can understand can you not that union meetings are not a place for managers?---Could you just repeat that again please?

PN636

You would understand and appreciate that union meetings are not a place for managers?---No, because I take the view - I've told you the reason why I was there, but I take the view that, you know, if Ms Doyle had an objection to me being at the union meetings that she would have raised it through our HR department and they would inform me that I shouldn't be there. Now, that's never occurred.

**** PHILIP JULIAN HAYES XXN MS GOOLEY
PN637

She's raised it with you hasn't she?---She's raised it in an open forum telling me I shouldn't be in the lunch room.

PN638

And you didn't like that did you?---I didn't have a problem with Joan saying that to me.

PN639

And do you tell the staff that you then report back to more senior managers about what's said in those union meetings?---No, I didn't say that to staff, no.

PN640

So you go to the union meetings, you then report on what happens at those union meetings to more senior managers, and you don't tell the staff that that's why you were there?---No, because that's not the prime reason why I'm actually there. I told you the reason I'm there is because misinformation is going out to my staff and I feel as the manager that I need to keep my staff informed, you know, what the correct information is.

PN641

But you have plenty of opportunities to keep your staff informed about your version of the information don't you?---I just don't quite follow the question there.

PN642

You have plenty of opportunity to put forward your version of the information to your staff outside of union meetings don't you?---In relation to what Ms Doyle tells the staff. I can't comment on what she says if I don't know what was actually said, so I can only react after what she said at a meeting. I can't react before the meeting and correct any - - -

PN643

But if a staff member has a concern they can raise it with you can't they?---They can. But some people feel intimidated they've told me, that they're a bit reluctant to actually raise some issues.

PN644

And can you imagine that some people might feel a bit intimidated about raising some matters when their manager is sitting in their union meeting?---Well, again, you know, if that is a fact I would still assume that Joan is looking after her membership there, that she would have raised it with our HR department and they would have spoken to me in relation to myself being there. No one's ever spoken from our HR department to me in relation to myself being in the lunch room.

PN645

And when Mr Zimmer indicated that he wanted to speak to Ms Doyle, and you said no, that was the end of the matter wasn't it?---I said no, he's busy working.

**** PHILIP JULIAN HAYES XXN MS GOOLEY
PN646

Now, if Mr Zimmer had permission to engage in - sorry, I withdraw that. You said that Mr Zimmer is entitled to spend his 15 minutes on union matters that affect the local employees during his shift, is that right?---Correct, yes.

PN647

And if as a part of that he had rung Ms Doyle up to ask her a question would he have been able to do that in his 15 minutes?---No. I expect Ray would do that in his own time.

PN648

Could he have, under the policy could he have done that in his 15 minutes?
---Well, it's my information from HR department is that he only deals with local matters, and anything he needs to escalate up, say for a start there's a dispute avoidance procedure that he needs to address about - well, if he wants to address it with the state CEPU he does it in his own time.

PN649

What if somebody came up to him with a question about something that he didn't know the answer, in his 15 minutes is he allowed to ring the union to find out the answer?---Well, we'd still assume then - to me the purpose of the 15 minutes is people to actually come and put forward the thing they want to raise, and then if Ray hasn't got the answer for them that he would follow up with the state CEPU at some other date. To me unless it was something extremely important, and I've told Ray on a number of occasions, and then he comes and sees me if he wants to actually do it in paid time.

PN650

And he did come to where you were didn't he?---Sorry?

PN651

He did come to where you were because you were at the meeting?---No, he didn't come and speak to me.

PN652

And he came to the room where you were present?---Yes, he came to the meeting but it was outside of his break.

PN653

And you told him to go back?---Yes.

PN654

And he did?---Yes.

PN655

And Ms Doyle didn't interfere with that did she?---No.

PN656

Now, if we go to 15 October 2007, again I put it to you that Ms Doyle did not say that she wanted to start the meeting now. What she said is that there is a union at the tea break, please come in when you're having a tea break, everyone is welcome?---She did not say that.

**** PHILIP JULIAN HAYES XXN MS GOOLEY
PN657

And I put it to you that there was no mention of the Richmond Delivery Centre?
---Again I'm just not quite sure what you're saying there.

PN658

And I put it to you that on that occasion there was a discussion about why staff would not want management in union meetings and the right of staff to have those staff without management being present?---Joan might have said something and, as I said, you know, Joel Seely's response was, you know, we don't care if he's here or not.

PN659

But are you saying the meeting with Joel Seely that you refer to at paragraph 9 occurred on 15 October 2007?---I suppose - - -

PN660

No. You said that Joel Seely - we're talking about the October 2007 meeting. Is this when Joel Seely said we don't mind - what were the exact words - we don't care about him or something?

PN661

MR O'GRADY: Don't worry about him.

PN662

MS GOOLEY: Don't worry about him. Are you saying that the events you describe at paragraph 9 occurred on 15 October 2007?---The incident with Joel Seely happened on 26 June 2006.

PN663

So you had a discussion on 15 October 2007 did you not with Ms Doyle about you attending union meetings?---No.

PN664

I put it to you that you did?---No. The answer's no. But I don't know, I don't understand the relevance because to me I thought I was here to actually answer questions in relation to the protocol that she doesn't follow. To me this is another issue again and, as I said, it hasn't been raised through the HR department. There's no objections to me actually being in the lunch room.

PN665

It's part of your witness statement, you can be questioned on it. If it's not relevant to these proceedings Mr Hayes why did you put it in your witness statement?
---Well, it's relevant in the fact as far as myself being in the lunch room, that as far as I'm aware of there's no objections to me being in the lunch room.

PN666

And I put it to you on the occasion of 15 October 2007 meeting Ms Doyle did not leave the lunch room to make her announcement?---She did. She was two or three metres in front of the lunch room doorway.

**** PHILIP JULIAN HAYES XXN MS GOOLEY
PN667

No further questions.

PN668

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Ms Gooley. Mr O'Grady?

<RE-EXAMINATION BY MR O'GRADY` [4.10PM]

PN669

MR O'GRADY: Mr Hayes, you were asked some questions about the meeting that occurred at the Richmond Delivery Centre on 10 August 2006. Can I ask you what staff do when 7.30 is reached for their break, what's the general reaction of staff?---Well, they know their set break's at 7.30 or 7.45, and when it comes to that time they just automatically walk into the lunch room.

PN670

At the time that you're describing in paragraph 4 of your statement what if anything action had staff taken to commence their break at 7.30?---They hadn't taken any action, they were still at their work stations working.

PN671

I have no further questions.

PN672

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Mr O'Grady.

PN673

MR O'GRADY: May the witness be excused?

PN674

THE DEPUTY INDUSTRIAL REGISTRAR: Mr Hayes, you can be excused, thank you.

<THE WITNESS WITHDREW [4.11PM]

PN675

MR O'GRADY: Deputy Industrial Registrar, I note the time. There is one more witness who we have available for this afternoon, namely Ms Tucker. I understand from discussions I've had with Ms Gooley that she doesn't expect to be very long at all with Ms Tucker. But I'm in the Commission's hands as to whether or not you wish us to call her now or tomorrow.

PN676

THE DEPUTY INDUSTRIAL REGISTRAR: I'm more than happy to have a further witness this afternoon. I've actually anticipated a 5 pm finish, so that is well within my timeframe. Is that much later than you'd envisaged to finish?

PN677

MR O'GRADY: Well, I must say I'd anticipated a quarter past four adjournment.

PN678

THE DEPUTY INDUSTRIAL REGISTRAR: Okay. Well, I obviously have different practices to what you're used to. That's fine. I'm happy to continue with Ms Tucker this afternoon given that she's here, I think for her convenience as much as anything, if that's suitable to both sides.

PN679

MR O'GRADY: Yes, it is. Thank you.

<VANESSA LEE TUCKER, SWORN [4.12PM]
<EXAMINATION-IN-CHIEF BY MR O'GRADY

PN680

MR O'GRADY: Ms Tucker, could you please tell the Deputy Industrial Registrar your full name please?---My full name?

PN681

Yes?---Vanessa Lee Tucker.

PN682

And what is your occupation Ms Tucker?---I'm the management assistance at Melbourne Gateway Facility.

PN683

And what is the business address of that facility?---It's 13-22 Apak Drive, Melbourne Airport.

PN684

And have you prepared a witness statement for the purpose of these proceedings?
---I have.

PN685

Do you have a copy of that statement with you?---I do.

PN686

Does it have any attachments?---I do.

PN687

To the best of your knowledge are the contents of that witness statement true and correct?---They are.

PN688

I'd seek to tender Mr Tucker's statement.

EXHIBIT #AP9 STATEMENT OF VANESSA TUCKER

PN689

MR O'GRADY: Now, Ms Tucker, can you describe for the Deputy Industrial Registrar what the Melbourne Gateway Facility is and what it does and any particular issues that are associated with that facility?---The Melbourne Gateway Facility is where all inbound and outbound international mail is processed as well as our Express Post terminating and originating. The biggest thing is security is very important because it backs onto the Melbourne Airport tarmac, so all staff that work on the floor have to display a Melbourne ASIC pass at all times. There is a main entrance into the facility, however to access the operational floor upstairs the doors are secured so that only people who work there with access cards can gain access.

PN690

All right. Now, you have set out as an exhibit to your statement a brochure on the Melbourne Gateway Facility which is exhibit VT1. That contains a description of the layout of the facility placed over two pages as I understand it. Is that the case?---That's true, but in the actual brochure it would have been one because it folds out.

**** VANESSA LEE TUCKER XN MR O'GRADY
PN691

Now, as I understand it there is - - -

PN692

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry Mr O'Grady, I missed that point?---Well, on here it's set out over two pages but in the brochure it should be set out over one page because the booklet folds out.

PN693

MR O'GRADY: It's a fold out in effect. If you turn to the page after page 5. You've been privileged with an original.

PN694

THE DEPUTY INDUSTRIAL REGISTRAR: Sorry, I was very confused about the two pages, one page. Okay, we're all talking about the document that - - -

PN695

MR O'GRADY: We are all talking about that document, thank you.

PN696

In the left hand side of - well, I'm not sure whether there is a left hand side. It should be the left hand side of that handout, or on the first page of the two page document there's a picture of the customer car parks and staff car parks. Do you have that?---Yes.

PN697

And there's a reference to a staff entry and there's also a customer parcel pick up. Now, which entrance are you referring to as being the one that Ms Doyle attended at?---The front one, the customer parcel pick up.

PN698

All right. And what security is attendant or associated with that entrance?---There is a guard house out the front of the customer parcel pick up located next to the customer car park where all visitors must attend upon arriving. The main door that customers can come in is open but just inside that door there are two doors, one leading to the operational floor, the other leading upstairs to the administration areas and the canteen and both of those require an access card to open them.

PN699

And then that part of the building is referred to as second inspection, how many stories are there to that part of the building?---The second inspection is actually located on the operational floor.

PN700

I see, all right. So is this map somehow inaccurate?---This map shows basically the operational floor, and then there's an upstairs level where all the offices and the administration areas, the recreation rooms and the canteen is.

**** VANESSA LEE TUCKER XN MR O'GRADY
PN701

I understand. Now, is there a means of getting down from the upper level to the operational floor from the canteen side of the door?---There is. From the canteen there's actually a staircase that leads down into the staff entrance and then you walk straight out onto the operational floor.

PN702

And are there any further security doors that you have to pass through in order to get down onto the operational floor from the canteen?---No. The stairwell from the canteen leads straight down, there's no other - once you're in the canteen you can walk down the stairs and access the operational floor.

PN703

And have you described that in the handwritten map that you've drawn which is VT3?---No. I've done the front entrance where you need to have access to gain upstairs but there's no - in my map there's no stairs leading down, but there is - - -

PN704

All right. So the stairs associated with the canteen if you like, or those near the canteen?---Yes.

PN705

I understand that, thank you. And from the operational floor is there access to air side?---Yes, there is. There's roller doors that lead out to what's called the tunnel or the dock area and then a further roller door that leads out onto the tarmac area where the trucks drive forward to the airport to drop off the freight or bring back the freight.

PN706

And what are the procedures in place with respect to visitors accessing the secure parts of the facility?---All visitors have to report to the guard house and then the guard notifies the person that they're there to visit, and that person has to go down and collect them or a staff member has to escort them in.

PN707

Now, you describe in paragraph 14 of a discussion you had with Ms Doyle when you approached her in the canteen, do you see that?---Yes.

PN708

Can you just describe - you say Ms Doyle ignored your questions and in a rude manner said "I don't believe I've met you." What do you mean by in a rude manner?---She said "I don't believe I've met you."

PN709

And then you say you introduced yourself and you asked her how she'd managed to enter the facility?---That's true.

PN710

And she said the door was open. Now, is the door that you need to go through to get access to that part of the facility left open or ajar?---No. It's a self closing door so once you enter it, it automatically shuts behind you.

**** VANESSA LEE TUCKER XN MR O'GRADY
PN711

And can you open that door again without a security pass?---No.

PN712

And you say Ms Doyle responded by saying "You can't kick me out, I've got a permit to enter the workplace and you should not be impeding me"?---That's correct.

PN713

Did you have any doubts at all that she used that language?---No.

PN714

And then Ms Doyle apparently said "I've just followed a staff member up the stairs"?---That was after the guard had asked her, you know, the story changed.

PN715

So you and the guard have both found Ms Doyle in the canteen, is that the case?
---That's correct.

PN716

What is the appropriateness of a visitor coming onto the site and simply following in somebody as they go through the security doors?---Well, it's not appropriate.

PN717

All right. Now, Ms Doyle has said in her witness statement that you were rude to her. This is in paragraph 75 of her statement. Can you respond to that? Were you rude to Ms Doyle?---No. I had no reason to be rude to her. I just simply wanted to know how she had gained access.

PN718

And she says that, in paragraph 76, by your manner she realised that the person who had let her in probably hadn't been authorised to do so and therefore did not point that person out to you. Now, firstly, what's the procedure that's followed when you let somebody into the facility, if a visitor wants to come to the facility and go to the canteen, what's the procedure from Australia Post's point?---From Australia Post's point of view we would escort them down to the canteen and then we would leave them there.

PN719

When Ms Doyle says she didn't change her story, does that cause you to reconsider what you've said she told you in paragraphs 14 to 16 of your witness statement?---No, not at all.

PN720

I have no further questions.

PN721

THE DEPUTY INDUSTRIAL REGISTRAR: Ms Gooley, I might just ask a couple of questions in relation to the map.

**** VANESSA LEE TUCKER XN MR O'GRADY
PN722

Ms Tucker, can you just clarify for me, in relation to the entrance where it says customer parcel pick up, inside that entrance there is, it seems to me on the basis of your evidence - can you just describe for me what that space is, how big it is and whether it takes up the whole floor?---No, it's only a small entrance way and there's glass doors that lead into the Customs counter where customers come in and collect their parcels from Customs, and then there's a doorway, two other doorways and just opposite there's a public toilet. It's not a very big area at all.

PN723

Right. And the two other doorways are the doorways that you've described as having secured access?---That are secured.

PN724

But there is - I was just trying to work out where customers go, where does the public go? They go into the Customs area?---As soon as you come in the door you turn right and you go to the counter where you collect your parcel.

PN725

Thank you, Ms Tucker. Ms Gooley?

<CROSS-EXAMINATION BY MS GOOLEY [4.25PM]

PN726

MS GOOLEY: So it's your evidence Ms Doyle should not have entered the premises unless somebody let her in?---She can come in for customer - the front main entrance, but then she cannot gain access to upstairs or the operational floor unless someone let's her in with their access card.

PN727

And that's why in your statement of 21 November 2006, which is exhibit VT4, when you asked her how she'd gotten in she told you that the door had been open?---She told me the door was open. The email where I've got opened, that's just a typo on my part, because then further down I do state that she had changed her story and followed someone upstairs.

PN728

Well, you used the word opened and you didn't correct this statement at the beginning. The only reason you've corrected it, I've pointed out the inconsistency, haven't you?---No. I actually knew that was a typo in the email.

PN729

I put it to you Ms Doyle told you when you asked her how she got in that the door had been open, and the reason she told you that the door had been open was because that's the only way she could have got in?---No. Her first response was the door was open.

PN730

You say in your witness statement that the security guard advised you that Ms Doyle had arrived for an appointment with Mr Grogan. I put it to you that that's not possible because Ms Doyle had not arrived for an appointment with Mr Grogan?---I can only go on what the security guard told me when he called upstairs. I'm not privy to the conversation that took place between Ms Doyle and the guard.

**** VANESSA LEE TUCKER XXN MS GOOLEY
PN731

And Ms Doyle was there to attend a meeting with employees wasn't she?---That's what Mr Grogan told me after I went to him, correct.

PN732

And quite a substantial amount of time took for you to find out why Ms Doyle was there wasn't it?---No. It was only about five minutes. As soon as I went to Mr Grogan he said that she was not there for a meeting with him, she was there for a site visit to notify the HR manager, and when she wasn't at her desk he asked me to go down and bring her upstairs.

PN733

And Ms Doyle went upstairs didn't she?---She did.

PN734

And she went to the canteen?---She did.

PN735

And your normal practice as I understand it is you would have escorted Ms Doyle to the canteen and left her there?---That's correct.

PN736

So if Ms Doyle had been left there in the canteen by you on your evidence she could have walked down the stairs, she could have gone out onto the tarmac?
---She could have, but we would have known she was there.

PN737

You knew Ms Doyle was there?---I knew she had arrived at the site for a visit, but after I'd gone downstairs to collect her and she had gone I had no way of knowing exactly where she was in the facility.

PN738

You meet Ms Doyle in the - I'm just trying to understand your security concern. You leave Ms Doyle in the canteen, you know she's in the canteen, she can go downstairs and, as you say, go out onto the tarmac, and presumably you find out when she's on the tarmac?---The HR manager is notified upon her arrival and then it is her job to notify other managers as well that she is there, and then her visit would be monitored, they would know she was there.

PN739

In the tea room?---That's correct.

PN740

And I put it to you Ms Doyle didn't go anywhere else did she?---Not to my knowledge, no.

PN741

And nobody's reported that Ms Doyle went anywhere other than the tea room?
---No.

**** VANESSA LEE TUCKER XXN MS GOOLEY
PN742

She didn't enter into any secured areas?---She didn't.

PN743

And she didn't sneak onto the premises did she? She announced her presence?
---She did, but she failed to wait for the escort and followed someone in upstairs, in her words.

PN744

On what basis would Ms Doyle had known that the person who opened the door wasn't authorised to open the door for her?---Well, she entered into the building. Had she waited for the escort I would have gone to the guard house and collected her.

PN745

But how would she know that you were the person who was going to come and collect her as opposed to somebody else?---She was advised to wait for an escort.

PN746

And somebody came down and opened the door for her?---No. In her affidavit she states she went in to the main entrance and then was let in the secure door.

PN747

Actually was let in by someone. She wasn't expecting you was she? She didn't even know you?---She didn't know me, no.

PN748

And when you came into the lunch room she was having a meeting with people wasn't she?---No. When I saw Ms Doyle it was just outside of where all the tables were. She wasn't actually speaking or addressing a group of staff.

PN749

I put it to you that she was having a meeting with people and you interrupted it?
---No, I don't believe that to be true.

PN750

And that's why Ms Doyle spoke to you and said - that's why she asked you who you were?---She asked me who I was after I had asked her how she had gained access into the facility.

PN751

Because she was in the middle of speaking to staff, that's her evidence?---I'm sorry but I don't believe she was having a meeting and speaking to staff at that time.

PN752

And what Ms Doyle says is that you were rude to her?---No, I was not. I simply asked her how she'd gained access into the facility, and then she started talking about us impeding her, she was allowed access under her right of entry.

**** VANESSA LEE TUCKER XXN MS GOOLEY
PN753

I have no further questions.

PN754

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Ms Gooley.

PN755

MR O'GRADY: No re-examination.

PN756

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Ms Tucker, you're excused.

<THE WITNESS WITHDREW [4.31PM]

PN757

MR O'GRADY: Those are the only witnesses we have available today.

PN758

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Mr O'Grady. On that basis the matter is adjourned until 10 am tomorrow morning. Sorry Ms Gooley?

PN759

MS GOOLEY: I was just going to say sir that we have a number of witnesses for Australia Post, but I anticipate that Ms Doyle will be able to commence giving her evidence, but in the event that that is concluded we've had to organise for the two other persons who are giving evidence for the CEPU to be here on Thursday morning. One of them is an Australia Post driver and therefore in terms of him knowing when he was going to be called, and to not disrupt Australia Post's operation any more than necessary, that would be the same for the other drivers. So I'm just saying that maybe that those two witnesses won't be available until Thursday morning.

PN760

THE DEPUTY INDUSTRIAL REGISTRAR: Thank you Ms Gooley for letting me know. It may be if Ms Doyle's evidence and cross-examination has not been completed that as a matter of convenience we might have a break to allow the other witnesses to give evidence, but we can deal with that on Thursday morning when the circumstances are clearer. Thank you, we're adjourned until 10 am tomorrow.

<ADJOURNED UNTIL WEDNESDAY 14 MAY 2008 [4.33PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

PETER HAMMOND, SWORN PN302
EXAMINATION-IN-CHIEF BY MR O'GRADY PN302
EXHIBIT #AP1 STATEMENT OF MR HAMMOND PN308
EXHIBIT #MFI1 DOCUMENT RELATING TO DISPUTE NOTIFICATION PN338
EXHIBIT #AP2 THREE DOCUMENTS RELATING TO DISPUTE NOTIFICATION PN345
EXHIBIT #AP3 MANAGER'S INFORMATION BULLETIN PN355
CROSS-EXAMINATION BY MS GOOLEY PN377
RE-EXAMINATION BY MR O'GRADY PN467
THE WITNESS WITHDREW PN488
NICHOLAS MANOS, AFFIRMED PN489
EXAMINATION-IN-CHIEF BY MR O'GRADY PN489
EXHIBIT #AP4 STATUTORY DECLARATION OF NICHOLAS MANOS PN501
CROSS-EXAMINATION BY MS GOOLEY PN526
THE WITNESS WITHDREW PN555
EXHIBIT #AP5 STATEMENT OF MR CARBONE PN564
EXHIBIT #AP6 EMAIL AND ATTACHMENTS DATED 06/12/2006 PN564
EXHIBIT #AP7 EMAIL AND ATTACHMENTS DATED 26/03/2007 PN564
PHILIP JULIAN HAYES, AFFIRMED PN565
EXAMINATION-IN-CHIEF BY MR O'GRADY PN565
EXHIBIT #AP8 STATEMENT OF PHILIP HAYES PN585
CROSS-EXAMINATION BY MS GOOLEY PN606
RE-EXAMINATION BY MR O'GRADY` PN668
THE WITNESS WITHDREW PN674
VANESSA LEE TUCKER, SWORN PN679
EXAMINATION-IN-CHIEF BY MR O'GRADY PN679
EXHIBIT #AP9 STATEMENT OF VANESSA TUCKER PN688
CROSS-EXAMINATION BY MS GOOLEY PN725
THE WITNESS WITHDREW PN756