BP2008/85, Transcript of Proceedings [2008] AIRCTrans 271 (10 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18555-1

COMMISSIONER ROBERTS

BP2008/85

s.451(1) - Application for order for protected action ballot to be held
Construction, Forestry, Mining and Energy Union
and
John Holland Construction
(BP2008/85)

SYDNEY

2.09PM, MONDAY, 26 MAY 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE

PN1

MR A BUKARICA: I appear for the applicant.

PN2

MR P LUDEKE: I apply for leave to appeal for the respondent. And I should say that I'll be taking you to the fact that the respondent should be John Holland Mining Pty Ltd rather than John Haland Pty Ltd.

PN3

THE COMMISSIONER: We'll get to that.

PN4

MR LUDEKE: We will.

PN5

THE COMMISSIONER: Do you object to leave, Mr Bukarica?

PN6

MR BUKARICA: No.

PN7

THE COMMISSIONER: Leave is granted.

PN8

MR E HODDER: Commissioner, Errol Hodder, the proposed authorised ballot agent.

PN9

THE COMMISSIONER: Sorry. I forgot about you, Errol. Can you hear me okay, Mr Hodder?

PN10

MR HODDER: Yes, thank you.

PN11

THE COMMISSIONER: Okay.

PN12

MR BUKARICA: If the Commission pleases. Before I commence to address the Commission as to the various requirements under section 461 of the Act and following, there are some housekeeping issues that I need to address at the outset. Commissioner, the position is as of today the following documents should be with the Commission. A copy of the application, along with the attachments to that application including the original initiation of bargaining period. Does the Commission have a copy of that?

PN13

THE COMMISSIONER: I appear to, yes.

PN14

MR BUKARICA: And that document was also served on the respondent employer, albeit with slightly different name to what my friend Mr Ludeke has alerted the Commission to. And can I officiate, Commissioner, that if it's a issue of substance that we would seek leave to amend the order accordingly to accurately reflect the name of the respondent employer.

PN15

THE COMMISSIONER: Do you think perhaps we should hear from
Mr Ludeke on that point?

PN16

MR BUKARICA: If it assists the Commission.

PN17

THE COMMISSIONER: It might assist you as well. Mr Ludeke, your foreshadowed point?

PN18

MR LUDEKE: Well, I must say, Commissioner, we think it's a matter of substance. I'd intend to address you by reference to some authorities. In the time available my investigation of the authorities is perhaps not as thorough as I might have liked it to have been, but such as the problems that one encounters when the Act requires the Commission to Act as speedily as it does in matters such as this. The application is addressed to John Holland Pty Ltd trading as Marshall Mining and Earthmoving and an ACN number is there given. Can I also say, Commissioner, before I launch into this that a number of the things that I am about to say the Commission may well have expected to hear in evidence.

PN19

And you will appreciate from a matter in another distinct matter in which you were involved, Commissioner, that my clients operations are some distance away and we simply haven't been able to arrange for evidence to be available this afternoon. There's a number of matters that we would have liked to have put in evidence to the Commission in respect of the substance of the application rather than the point that I am about to deal with, that is the employer, the correct employer. But it may be that depending on how Mr Calov's evidence transpires, that the evidence that we would have called might be considered mute. May I ask to reserve my position as to that until we get to Mr Calov and therefore just for the time being simply deal with the question of the employer.

PN20

Had we had the opportunity to call evidence it would have been that the correct employer of the employees engaged in my clients operations at Werris Creek in the open cut coal mine there, the correct employer is John Holland Mining Pty Ltd. And it's an error of substance, we say, that has been compounded by the later application, that is Friday's application, for the protected action ballot order that was also directed to the same incorrect corporate entity. In my submission it's not a technical or minor error, nor is it an inconsequential matter of legal form to serve the wrong corporate entity and to serve, as a result of that, not to serve the employer.

PN21

THE COMMISSIONER: So you say it is John Holland Pty Ltd, but not trading as Marshall Mining?

PN22

MR LUDEKE: No, I'm sorry if I've not explained myself, Commissioner. John Holland Mining Pty Ltd trading as Marshall Mining and Earthmoving. So the different corporate entities are that John Holland Pty Ltd has been served, the correct employer is John Holland Mining Pty Ltd. And as to its trading name, well I'm sure Mr Bukarica will address you more as to the effect of a trading name. In my submission the trading name is neither here nor there. The employer is the corporate entity. The application is brought to the Commission under section 451. In that section, particularly subsection (1), a person referred to in subsection (3) and as is relevant subsection (3)(a) is a reference to the people in this case if the bargaining period was initiated by an organisation of employees, that organisation and that is the person referred to in subsection (1).

PN23

That person may, during a bargaining period, apply to the Commission for an order for a ballot to be held to determine whether proposed industrial action has the support of relevant employees. Relevant employees is defined in the preceding section as being in relation to the proposed industrial action against an employer in respect of a proposed collective agreement. And again, as far as is relevant here, it's paragraph (a) that is operative. If an organisation of employees is a negotiating party to the agreement any member of the organisation who is employed by the employer and whose employment will be subject to the agreement.

PN24

Relevant provisions, Commissioner, are directed to the employer. And section 451 enables the initiator of the bargaining period, in this case the union, to make this application for a protected action ballot order. So the making of the application is dependent, in our submission, on there being a bargaining period in place. That's the first prerequisite. And naturally we would say that means a valid bargaining period. And without a valid bargaining period in place the Commission's jurisdiction to consider the application under section 451 is not enlivened. The section 451 application is therefore dependent on section 423 for a valid bargaining period to have been initiated.

PN25

Section 423 is quite long. I don't want to delay the Commission unduly. But I make this overarching submission that each of the references as is relevant to the Commission's consideration this afternoon is to an employer or the employer as to the initiation of the bargaining period and, in particular, the service under subsection 3 of a written notice, in this case initiated by the initiating party being the union, giving that written notice to each of the negotiating party and to the Commission stating that the part, the initiating party, intends to try to make a collective agreement. And for the purposes of the reference in that subsection (2), each other negotiating party, subsection (4) deals with who are the negotiating parties.

PN26

And for our purposes paragraphs (b) and (c), one or other, would be applicable in their reference to an employer. I'm sorry, I've misread that. It should be paragraph (d) that I referred you to. If the initiating parties is an organisation of employees, as is the case here, the employer who is proposed to be bound by the proposed collective agreement. So we say that paragraph makes it plain that the other negotiating party in a case such as this is the employer and for the purposes of subsection (3) it is the employer who is to be served with the notice initiating the bargaining period about the union's intention to make an agreement.

PN27

THE COMMISSIONER: So I take it it boils down to you say they've got the wrong employer?

PN28

MR LUDEKE: They have the wrong employer and this is not the first time that the union has served the wrong employer. As you would expect, Commissioner, it's something that the Commission has dealt with on occasion. Can I take you to the authority that is probably most helpful and that I've had the time to rustle up after being instructed today, and that's if I can hand it up in short hand. It's the AMWU and CEPU v Carrier Air-Conditioning, a decision of McCarthy DP of 9 May 2007, [2007] AIRC 362. This decision, Commissioner, is helpful in that it refers to a number of authorities within it which I think probably canvass the entirety of the issue that's before the Commission as far as we are concerned.

PN29

In this case the AMWU got its own name wrong. Some confusion about branches and federal union and such matters. If I could take you to paragraph 23. There the Deputy President refers to a Federal Court judgment in Australasian Meat Industry Employees' Union v G and K O'Connor Pty Ltd. There the employer served the notice of initiating of bargaining period on the union. The notice used the word Australian instead of the word Australasian at the commencement of the union's name. It was argued that the notice was invalid because it was sent to an entity that did not exist. I should interpolate here, Commissioner. I'm not saying that John Holland Pty Ltd does not exist. It does.

PN30

I'm saying that it's the wrong entity, wrong corporate entity and another one well known to the union is the correct one. To go back to the decision, Marshall J rejected the argument finding that it appears to be a point of little merit as the notice did reach an offer of the very union the centre intended it to be sent to. And I'll make it plain that my client does not argue - I should withdraw that - John Holland Mining Pty Ltd has received the union's application. I don't want there to be any mistake about what I'm saying here. The process is not what I'm arguing, it's the entity.

PN31

While that's an observation of Marshall J as to a point of little merit, the Deputy President's decision is worthy of some further investigation as to distinguishing that point. At paragraph 24 there is reference to another Federal Court judgment in Pilkington Australia Operations Limited v CFMEU. There Weinberg J agreed with the judgment in G and K O'Connor. If I can jump to the fourth one, it was noted that there was a company known as Pilkington Australia Limited which was separate and distinct from the employer, though plainly closely related to it. It has common directors, a common secretary, the same business address and the same state manager. If we had the opportunity to lead evidence we would have made some distinctions between the two corporate entities about those two points.

PN32

That is, indeed we say that the two corporate entities are separate and distinct. They are employers in their own right in different fields, but they are separate and distinct. They are closely related. They are subsidiaries of the one company. And I'm not instructed to put to you confidently whether there are common directors, a common secretary, the same business address. I am only instructed that there are not the same state managers, or state manager. Singular as is used in that paragraph.

PN33

THE COMMISSIONER: But the union's notice apparently successfully reached John Holland Mining.

PN34

MR LUDEKE: I concede that. There is then a quote from Weinberg J's decision and I don't read all of the quotes, Commissioner, I just refer to a couple of sentences from it. And the court was distinguishing between the particularity that might be needed in certain other types of proceedings. His Honour says that this is not bankruptcy or insolvency legislation. The Act is plainly intended to be applied in a broad and flexible manner recognising the provisions dealing with the initiation of the bargaining powers maybe invoked by lay persons who may lack an exact appreciation of the nuances of corporate designations.

PN35

Well, that's the way his Honour describes it. And in this matter before you, Commissioner, we say that the CFMEU did not need to concern itself with corporate nuances. It merely needed to get the name of the correct employer and serve the correct employer. And it should have been obvious to it because the CFMEU has been communicating with the correct employer in other matters for some time. And the Commission, as I said before, is involved in one now. The employees and members of the union presumably would have provided information to the union about who their employer was.

PN36

I should also concede, and we would have put it in evidence, when these employees were engaged - perhaps I should say relevant employees were engaged - in March of 2007 a number of them would have received a letter on letterhead saying John Holland Pty Ltd and that was corrected some time later. So the employees as is the union from other proceedings were on notice who the correct employer was. If that hadn't been otherwise obvious. Can I return to McCarthy DP's decision in Carrier and take you to paragraph 25. He there refers to his own decision in Ravensthorpe Nickel Operations v AMWU. And he also there relied on the decision of Polites SDP in Shell Refining Australia Pty Ltd v AMWU and Others.

PN37

At the end of that paragraph at the bottom of the page in that case it was found to be a sufficient description of the employer to determine that notice was meant to be given to the employer and did not accept that a minor error in the description of the employer is sufficient to invalidate the notice. Here, Commissioner, my client submits that there is not a minor error but one of substance. It's of substance because of its potential ramifications. At paragraph 27 of this decision of McCarthy DP he quotes a decision of then Duncan DP dealing with the Western Australian branch of the LHMU rather than the federal union. And in the quote there are paragraph 27 his Honour found:

PN38

I am convinced that the notice should refer to an organisation registered under the Act to be valid and that the notices in question do not so refer. I apply this strict test because of the serious matters to which the service of a section 170MI notice can give rise. These include the right to protected industrial action by both employers and employees and the preclusion of arbitration.

PN39

That's the central point we're making, Commissioner. If the correct employer is not notified, there has not been compliance with the Act in the drafting and service of a notice initiating a bargaining period, then the resulting invalidity has the potential to render all subsequent action unprotected. Meaning that parties - and I think this is what Duncan DP, as he was then, is alluding to. It could mean that parties might look at their wider remedies if the industrial action is rendered ostensibly unprotected because of the failure to properly identify the employer. And in our submission the Commission would want rigour and particularity in the formulation of a notice initiating a bargaining period for that reason most importantly.

PN40

THE COMMISSIONER: Then if we go down to paragraph 28 of the McCarthy decision.

PN41

MR LUDEKE: Yes.

PN42

THE COMMISSIONER: He then seems to take the view of all the previous judgments.

PN43

MR LUDEKE: He says he interprets the decision of Duncan DP in a fashion to this effect. That if his Honour was meaning that there was no margin for error in the name of the notifier on the notice, then I do not agree with him. He certainly takes a different view, but characterising that as no margin for error. And in my respectful submission while there may be some margin for error, this is not a mere technicality that the Commission ought be satisfied can be ignored. The margin for error should be narrow for the reasons that I have suggested, Commissioner, because of the very serious consequences that could flow in respect of protected industrial action or unprotected industrial action.

PN44

THE COMMISSIONER: I take it that John Holland Mining is Pty Ltd?

PN45

MR LUDEKE: It is, Commissioner. For completeness I should take you, Commissioner, to section 457 of the Act. The subsection (1) for the time being I'd like to take the Commission to. It adjuncts the Commission at subsection (1) paragraph (a) to act as quickly as practicable and paragraph (b) as far as is reasonably possible determine the application within two working days. What I really am obliged to draw your attention to, Commissioner, is the note that then flows from paragraph (b) and it says:

PN46

In exercising its powers the Commission is also required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. It is not bound by the rules of evidence and may inform itself in any matter it considers just.

PN47

And that there is, of course, an invocation of the Commission's broader conduct of proceedings under section 110. And it's an important point and of course, as I said, I felt obliged to bring it to your attention. There needs to be the point made in respect of the relationship between section 457 and section 110 that the Commission would not countenance technicalities that are against the procedural ethics of the Commission and nor would the Commission allow a section 110 to subvert the proper application of particular provisions of the Act. What I said to you before, Commissioner, is what I'm getting at there being serious possible ramifications that flow from the Commission granting an order as to the protection of industrial action, or that it may be unprotected and as a result we make the submission that section 110 is not a vehicle to allow subversion of particular provisions of the Act.

PN48

Without going to it I think it might be accepted that there is much authority in the Commission with the proposition that section 110 is not a vehicle to allow actions that are inconsistent with other provisions of the Act. Section 110 doesn't give an authority to ignore particular provisions of the Act as to the consequences that might flow from an error of the kind that we are bringing to the Commission's attention today. Commissioner, that's all I wish to put to you on that matter at this stage.

PN49

THE COMMISSIONER: Great, thank you. I think that was useful, Mr Bukarica.

PN50

MR BUKARICA: Yes.

PN51

THE COMMISSIONER: And you and me (2.41.07) this matter.

PN52

MR BUKARICA: Yes.

PN53

THE COMMISSIONER: You can now proceed in what manner you see fit.

PN54

MR BUKARICA: Perhaps, Commissioner, while the issues are fresh if I could do all the question of the named employer and in doing so foreshadow that the union would make an application with the leave of the Commission to amend the proposed orders in this matter to reflect the name of the employer, John Holland Mining Pty Ltd. Commissioner, I'm indebted to my friend in terms of the concessions he has made on the record as to the corporate entities or entity for which he appears, John Holland Mining Pty Ltd. And there are certain facts here which I think is sufficient at expense of what we contend to be a technical point. Not one of substance. And the reasons we say that are these.

PN55

Firstly it's conceded that the two companies, John Holland Pty Ltd and John Holland Mining Pty Ltd, are closely related. My friend is not clear as to the exact nature of the relationship, but clearly they are subsidiaries both of the one higher entity, if I could paraphrase. We also have the concession properly made that the relevant notices in this matter, and I take it to include the bargaining period notice in its original form, were received or came to the notice of John Holland Mining Pty Ltd.

PN56

THE COMMISSIONER: The contrary wasn't argued.

PN57

MR BUKARICA: If the Commission pleases. It's also conceded that there was a, though it's not in evidence before the Commission but I say it's a concession that can be relied upon, a letter was issued to employees on John Holland Pty Ltd letterhead which is related to the main point that I'd raise in relation to the question of the corporate entity point that Mr Ludeke raises. And that is this. That the company John Holland Mining Pty Ltd has clearly placed itself in the position of the employer in terms of its dealings with the CFMEU in respect to both the bargaining period notice initially and also these proceedings.

PN58

Commissioner, I'd seek your leave to refer to a letter and hand a copy up shortly that was issued to or received by the CFMEU on or about 20 March 2007 signed by Mr Toby Bradbrey on behalf of John Holland Mining Pty Ltd and the letter, roughly paraphrased, takes issue with the service of the CFMEU of the initiating bargaining period to which this matter relates. The issue is as agitated by John Holland Mining Pty Ltd is simply that employees are on unexpired AWAs or the union wasn't entitled to pursue a bargaining period notice because of the status of AWAs applicable to the relevant employees. The notice does not say, which it ought to have, this bargaining period notice has got nothing to do with us, we are John Holland Mining Pty Ltd, we are not employers of the employees to which you refer, please direct your attentions to the other corporate entity. It doesn't say that. It says that, and I can quote:

PN59

As you are aware many of the persons who are previously employed by Roach Mining at Werris Creek were employed on Australian Workplace Agreements which had not passed their nominal expiry dates. A number of those persons are now employed by John Holland Mining Pty Ltd. As a consequence the CFMEU is not entitled to take or organisation industrial action in support of a collective agreement until the expiry of the AWAs.

PN60

It makes then reference to sections 440 and 494 of the Workplace Relations Act. And then it essentially threatens penalties and damages against the union were it to pursue the action foreshadowed, or a possible action, based on the bargaining period notice. Now Commissioner, I say that's significant because it is an acceptance, if you like, that John Holland Mining Pty Ltd stands in the shoes of the other corporate entity in dealing with the union in respect of the bargaining period notice and further rather than compounding the error, as my friend would have it, really indicates that the notice has been received, it was in fact dealt with by the relevant corporate entity as applicable to it and indeed foreshadows severe sanctions against the union were it to proceed on a course that might be open to it under the Workplace Relations Act.

PN61

So Commissioner, could I tender a copy of the - unfortunately I've only got the one copy and my friend's welcomed to peruse it. But it's a letter dated 20 March 2007.

PN62

THE COMMISSIONER: I'll allow time for Mr Ludeke to peruse it and then I'll arrange a copy to be made for him.

PN63

MR BUKARICA: If the Commission pleases..

PN64

THE COMMISSIONER: Do you need another copy yourself?

PN65

MR BUKARICA: I probably would like one, if the Commission pleases. Commissioner, whilst Mr Ludeke is - - -

PN66

MR LUDEKE: No objection, Commissioner.

PN67

MR BUKARICA: - - - attending to that matter - I'm sorry. I beg your pardon, Commissioner.

PN68

THE COMMISSIONER: I'll deal with the tender.

EXHIBIT #CFMEU1 LETTER FROM TOBY BRADBREY OF JOHN HOLLAND MINING PTY LTD TO MR KELLY FROM CFMEU DATED 20/03/2007

PN69

MR BUKARICA: If the Commission pleases. Commissioner, could I then turn to deal with some of the points my friend makes in relation to the authorities and in particular the reliance upon the decision of his Honour McCarthy DP in Carrier Air-Conditioning and some of the cases that are then referred to in that matter. Now, clearly both sides of this argument, if you like Commissioner, have not had an enormous amount of time to develop in detail the arguments as to this particular point. But based on my reading of this decision which I am familiar with from prior matters, it actually stands in support, or there's authorities on the whole or on balance, stand in support of the approach which would recommend itself to the Commission as presently constituted which is to say the Commission should adopt a practical approach, a not too literal approach, in ascertaining the intended recipient of the bargaining period notice at first instance and in fact the continuing valid operation of that bargaining period.

PN70

Commissioner, in particular, and I don't have a copy of the decision itself before me, but again I am by recollection broadly familiar with the decision of his Honour Polites SDP in relation to Shell Refining Australia Pty Ltd v AMWU and Others which is cited in paragraph 25 of his Honour McCarthy DP's decision. And I would put to the Commission that the factual situation in the current matter is most akin to that referred to before his Honour Polites SDP. In that essentially what we are talking about here is a difference in the name of the respondent employer of effectively one word, or the ordering of one word. And in that matter it was Shell Refining Australia Pty Ltd, rather than what was found to be the correct name which is Shell Refining (Australia) Pty Ltd.

PN71

Now, we would rely upon the passage there therein attributed to his Honour Polites SDP which is that that description, the description appearing in the original bargaining period notice, was a sufficient description of the employer to determine that the notice was meant to be given to the employer and a minor error in the description of the employer is - sorry, I beg your pardon. It's stating that his Honour found that a minor error in the description of an employer is not sufficient to invalidate the notice. Commissioner, that's the situation we find ourselves with in this matter. Commissioner, unless there's any particular questions that's about as much as I can assist you with in terms of the question of the name of the company other than again to, and I'm indebted to my friend for correctly pointing to the note in relation to section 457 and the approach of the Commission in dealing in terms of equity, good conscience and the substantial merits of the case without regard to technicalities and legal form.

PN72

Of course that does not allow the Commission to ride roughshod over proper procedures and approaches to - - -

PN73

THE COMMISSIONER: And I would hope I would never do so.

PN74

MR BUKARICA: And I'm sure the Commission never would. But clearly in a matter such as this where the employer had been represented, served, has placed itself in the position of the intended respondent employer, clearly the nature of the error is merely technical and minor and one which shouldn't preclude the Commission from exercising its functions pursuant to section 451 and 461 of the Act. The Commission pleases.

PN75

THE COMMISSIONER: Mr Ludeke, before I make any comment on the point in relation to the name, the jurisdictional point. If I was minded to allow the variation in the terms of some of the decisions you have quoted to me, are there issues between John Holland Mining Pty Ltd and the CFMEU of substance in relation to the valid application?

PN76

MR LUDEKE: I have a number of matters to put to you about the valid application and about the notice initiating the bargaining period other than its reference to the wrong employer.

PN77

THE COMMISSIONER: Well, I'll adjourn for a few minutes while I have a think about your first point.

<SHORT ADJOURNMENT [2.54PM]
<RESUMED [3.09PM]

PN78

THE COMMISSIONER: Mr Bukarica.

PN79

MR BUKARICA: If the Commission pleases, during the adjournment a document was brought to my attention which has some bearing on the question the Commission is presently considering. I must say I've showed the document to Mr Ludeke and I understand his position will be to object to its being tendered. But in any case I say it's relevant and should be allowed. It's a document by
Mr Leslie Latchen to Mr Endacott of the CFMEU. It's got a letterhead which refers to Marshall Mining and Earthmoving with the words appearing beneath it John Holland Pty Ltd trading as and a reference to Marshall Mining and Earthmoving.

PN80

And then there's an ABN number, ABN 11004282268 which appears to be the same what's referred to as an ACN number in our application. Now, it's a matter of we suggest of some relevance in this matter and appears to be the basis that union has relied upon in terms of its formulation of a bargaining period notice and also the application in this matter. So I'd seek to tender.

PN81

THE COMMISSIONER: Mr Ludeke, do you have the document?

PN82

MR LUDEKE: I've seen it, Commissioner. You haven't?

PN83

THE COMMISSIONER: No, I haven't yet. I can't find my associate at this time.

PN84

MR LUDEKE: Well I'm not going to address you at any great length, but it's probably easier if it's in front of you.

PN85

THE COMMISSIONER: Easier what sorry?

PN86

MR LUDEKE: Easier if the document is in front of you.

PN87

THE COMMISSIONER: Perhaps somebody can approach? In my view the document is relevant. I will allow it into evidence and will mark it as CFMEU2. And I'll arrange for copies to be made.

PN88

MR LUDEKE: Commissioner, you're not going to hear me about - - -

PN89

THE COMMISSIONER: I'm sorry, I thought you had already said what you wanted to say.

PN90

MR LUDEKE: If I gave you that impression I apologise, Commissioner.

PN91

THE COMMISSIONER: Well, I apologise to you. So I will revoke what I just said until I've heard you and then I'll make a new decision.

PN92

MR LUDEKE: Thank you, Commissioner. The difficulty with that letter is, and of course relevance is the major test for the Commission's purposes on this one aspect of our challenge to the application and the notice initiating the bargaining period, the relevance of that document can be clearly distinguished from exhibit CFMEU1. There Mr Bradbrey is dealing with an issue directly on point, that is who is the employer. And he states it plainly to the union that a number of those persons are now employed by John Holland Mining Pty Ltd and this is on a John Holland Mining Pty Ltd letterhead. As opposed to the document that is now before the Commission which is from the project manager, it's provenance isn't before the Commission.

PN93

Its context isn't very easily defined from the document. Mr Latchen says you've made a phone call, please don't call me, I want to see it in writing, or something to that effect. We don't know if Mr Latchen is an officer of John Holland Pty Ltd on whose letterhead he writes or whether he's an officer of John Holland Mining Pty Ltd. We don't know that because he hasn't written on a letterhead of John Holland Mining Pty Ltd. In any event, what he deals with in that letter is far removed from the issue of who is the employer of persons on whose behalf the union is acting here. Mr Latchen was not touching on that issue at all and you're not advised - - -

PN94

THE COMMISSIONER: You don't know who Mr Latchen is, do you?

PN95

MR LUDEKE: I do know who he is, yes.

PN96

THE COMMISSIONER: Who is he?

PN97

MR LUDEKE: Well, if you don't mind evidence from the bar table?

PN98

THE COMMISSIONER: I don't, no.

PN99

MR LUDEKE: He is the project manager at the Werris Creek site.

PN100

THE COMMISSIONER: Thank you.

PN101

MR LUDEKE: Right. The essential point, Commissioner, is he's not dealing with the issue of who is the employer of the persons who are subject of this application and therefore there is no need for the particularity that Mr Bradbrey has gone to with exhibit CFMEU1. For all we know, Commissioner, Mr Latchen is an employee of John Holland Pty Ltd therefore he responds on their letterhead. If the Commission pleases.

PN102

THE COMMISSIONER: Well, I agree with you to this extent, Mr Ludeke. I don't think this particular letter, now that I've had the benefit of your submissions, assists me in the deliberations that I'm making so I won't take it into evidence. But I will now take myself away to reconsider the issue further. We're adjourned.

<SHORT ADJOURNMENT [3.15PM]
<RESUMED [3.24PM]

PN103

THE COMMISSIONER: Mr Bukarica.

PN104

MR BUKARICA: Commissioner, I hesitate to do this but I think the issue is one where there's abundance of caution required and with the leave of the Commission, if the Commission is prepared to, I'd seek to tender another document which is a letter of offer of employment to an employee where although the offer of employment has John Holland Mining Pty Ltd letterhead, it refers to John Holland Pty Ltd trading as Marshall Mining and Earthmoving. The letter of offer is dated 26 February 2007.

PN105

THE COMMISSIONER: Pass the document up.

PN106

MR BUKARICA: If the Commission pleases.

PN107

THE COMMISSIONER: You're seeking to tender?

PN108

MR BUKARICA: I would tender.

PN109

THE COMMISSIONER: Mr Ludeke?

PN110

MR LUDEKE: I'll only make a very brief comment. I don't want this aspect of the matter to be dragged out. But I had referred to this offer in my submissions earlier having been corrected by a later letter. And I think if my friend - I'm not making any characterisation that this isn't appropriate, I'm simply saying that if the Commission was to have the full information it would have a later letter that corrected this letter. You will note that it is on John - I must say firstly that I don't object to its tender, having made those - - -

PN111

THE COMMISSIONER: Let's deal with that first.

EXHIBIT #CFMEU2 LETTER OF OFFER OF EMPLOYMENT

PN112

THE COMMISSIONER: Yes, go ahead.

PN113

MR LUDEKE: Can I say this about it, if I'm not being premature, if my friend wants to speak to it first then I'm happy to sit down while I'm on my feet.

PN114

THE COMMISSIONER: Well, he has I think.

PN115

MR LUDEKE: Yes. All I was going to say, Commissioner, is that it's on John Holland Mining Pty Ltd letterhead, that the first paragraph under the heading of Offer of Employment refers to John Holland Pty Ltd and is in error. A typographical error is what I mean by that. And the intention at page 8 is clear. The managing director of John Holland Mining, Mr Bradbrey, who is the author of CFMEU1 is also the signatory here.

PN116

THE COMMISSIONER: I see. It's been going out of order. I have got the page.

PN117

MR LUDEKE: Yes, so is mine, Commissioner. So it's signed by the managing director of John Holland Mining, or I should say it's signed on behalf of the managing director of John Holland Mining and that's consistent with the letterhead, it's consistent with the offer of employment. The only inconsistency is a typographical error in that paragraph on the first page under the heading of Offer of Employment. And as I said to you earlier, Commissioner, that typographical error was corrected in a later communication to each affected employee. The Commission pleases.

PN118

THE COMMISSIONER: I'm ready to rule in this matter. Unless Mr Bukarica is going to hop up again?

PN119

MR BUKARICA: No, Commissioner.

PN120

THE COMMISSIONER: You're welcome to. I won't persuade you.

PN121

MR BUKARICA: If just for the sake of completeness, Commissioner, just make two final points. One is there is no evidence that the appellation John Holland Pty Ltd is a typographical error. There is simply no evidence before the Commission to that effect. Secondly, there appears to be a degree of looseness as to the correct name or usage of names by the relevant corporate entity.

PN122

THE COMMISSIONER: I think the latter is a more arguable decisions.

PN123

MR BUKARICA: Yes. And what I particularly note, Commissioner, is at the bottom of page 7 not only is there reference as we've seen to John Holland Pty Ltd on the first page and John Holland Mining on page 8, but there's then a reference to Marshall Mining and Earthmoving as well as the relevant employer. So there is a degree of looseness, if the Commission pleases.

PN124

THE COMMISSIONER: Well, given the hour and the fact that we haven't advanced to anything really substantive in the application so far I'll be brief in my ruling. The application to dismiss on jurisdictional ground is refused. The application by the CFMEU to amend their application to reflect the correct technical name of the company to be - I hope I get it right this time - John Holland Mining Pty Ltd, I don't know whether the trading as is necessary in this, the employer against in relation to whom the order is sought will be reflected as John Holland Mining Pty Ltd. In so doing I'll just briefly note that I agree with the reasoning of his Honour McCarthy DP in his decision of 9 May 2007 in the Carrier Air-Conditioning matter.

PN125

I particularly refer to paragraph 24 of that decision in which he quotes Marshall J in G and K O'Connor and the quote is contained at the end of paragraph 24 of the McCarthy decision. I don't intend to read it. Can we now move on to the substantive issues.

PN126

MR BUKARICA: If the Commission pleases. Commissioner, I think I got as far as housekeeping matters and if I could just dispense of those before we move into the substance. The Commission should have before it as well as a copy of the application a witness statement of Robert Michael Calov. Does the Commission have that?

PN127

THE COMMISSIONER: I have.

PN128

MR BUKARICA: And a copy of the draft orders sought by the application in these proceedings. Does the Commission have those?

PN129

THE COMMISSIONER: I do.

PN130

MR BUKARICA: Thank you.

PN131

THE COMMISSIONER: Which will now have to reflect - - -

PN132

MR BUKARICA: The change of name.

PN133

THE COMMISSIONER: The change we've just made.

PN134

MR BUKARICA: The Commission pleases. Commissioner, with my friend's assistance what I propose to do now is hopefully dispense with the issue of the evidence of Mr Hodder. My understanding is that Mr Ludeke doesn't wish to cross-examine. So if Mr Hodder's evidence or affidavit can be brought into evidence it may allow him to leave the Brisbane hearing. If the Commission pleases. I think the intention was that the Commission's associate would swear up Mr Hodder via the video link.

PN135

THE COMMISSIONER: Fair enough.

<ERROL RAYMOND HODDER, SWORN [3.33PM]
<EXAMINATION-IN-CHIEF BY MR BUKARICA

PN136

THE COMMISSIONER: Take a seat, Mr Hodder.

PN137

MR BUKARICA: Mr Hodder, do you have a copy of your affidavit?---I do.

PN138

Is that an affidavit of nine pages?---It is. It was filed in the Brisbane registry this morning and as I understand it the registry faxed a copy of this document to the Commissioner's chambers, to the company, the proper officer as described in the listing and to the CFMEU.

PN139

Yes. Commissioner, do you have a copy of that affidavit?

PN140

THE COMMISSIONER: I'm trying to find it as we speak. It may well be on the fax machine outside. My associate's checking. It's not on the file as yet.

PN141

THE WITNESS: Commissioner, a copy has been filed in the Brisbane registry, on the file.

PN142

THE COMMISSIONER: Yes. Well hopefully the one that you refer to being sent here has come here. I'm just trying to find out. Just bear with us for a moment. You've got the document anyway, Mr Bukarica?

PN143

MR BUKARICA: Commissioner, I don't think I've got the final sworn affidavit.

PN144

THE COMMISSIONER: At some stage we'll get to the nub of all this.

PN145

MR BUKARICA: Hopefully.

PN146

MR LUDEKE: I've got the sworn version so I'm apparently better informed anyway.

PN147

THE COMMISSIONER: Apparently so.

PN148

MR LUDEKE: I'm happy to lend it.

PN149

THE COMMISSIONER: We don't have the document. If somebody's got the document. It's a bit like going back to the Marshall for the John Holland Mining argument, isn't it, as to which one is right.

**** ERROL RAYMOND HODDER XN MR BUKARICA
PN150

MR BUKARICA: Yes.

PN151

MR LUDEKE: Is that an invitation, Commissioner?

PN152

THE COMMISSIONER: Sorry?

PN153

MR LUDEKE: Is that an invitation, Commissioner?

PN154

THE COMMISSIONER: No.

PN155

MR BUKARICA: Commissioner, I believe that's a copy of the affidavit sworn by Mr Hodder.

PN156

THE COMMISSIONER: All right. Well, I now have it before me.

PN157

MR BUKARICA: Mr Hodder, do you wish to change anything in your affidavit?---Well, only - well, in terms of the orders the Commission makes if that his the ultimate outcome. I'm obviously bound to proceed subject to any orders the Commission makes. I would need to be guided by any amendments I make and the only amendments I could make would be, on the face of it, would be in terms of how I've described the name of the employer consistent with the notification.

PN158

Yes. But to the best of your information, knowledge and belief that was correct at the time of the swearing of the affidavit?---At the time, yes.

PN159

And you'd seek only to amend your affidavit to the extent to which it deals with the question of the name of the employer?---Yes.

PN160

Yes. Beyond that, Mr Hodder, do you have anything you wish to alter or change in your affidavit?---No, not to my knowledge. I understand that that was the only issue of concern that I may have had as to whether or not the employer was properly named in terms of my affidavit.

PN161

And so beyond that alteration to the best of your information, knowledge and belief the affidavit is true and correct?---It is.

PN162

Yes. I have nothing further, if the Commission pleases.

**** ERROL RAYMOND HODDER XN MR BUKARICA
PN163

THE COMMISSIONER: Do you wish to tender the affidavit?

PN164

MR BUKARICA: Yes.

EXHIBIT #CFMEU3 AFFIDAVIT OF ERROL RAYMOND HODDER

PN165

THE COMMISSIONER: Do you have any questions, Mr Ludeke?

PN166

MR LUDEKE: No thank you, Commissioner.

PN167

THE COMMISSIONER: There being nothing further that completes your evidence, Mr Hodder?---Yes, thank you. May I be excused, Commissioner?

PN168

You may?---Thank you.

PN169

The parties see no reason for Mr Hodder to remain is it?---Sorry?

PN170

I'm just asking if it was okay with them, Mr Hodder. It is, so you're a free man?
---Thank you. I'll talk to the registry about having the video link turned off, Commissioner.

PN171

Thank you?---Thank you.

<THE WITNESS WITHDREW [3.38PM]

PN172

THE COMMISSIONER: Mr Bukarica.

PN173

MR BUKARICA: If the Commission pleases I would call Robert Michael Calov.

<ROBERT MICHAEL CALOV, SWORN [3.38PM]
<EXAMINATION-IN-CHIEF BY MR BUKARICA

PN174

MR BUKARICA: Mr Calov, you have made a statement in these proceedings, have you not?---Yes I have.

PN175

And the statement is approximately, or is I should say, six pages long?---Yes it is.

PN176

And it has attached to it a document of some further 20 odd pages, being a copy of a draft workplace agreement?---That's correct.

PN177

And is there anything in that statement that you'd wish to alter or change?
---Mainly the trading name, of course. I referred to it as John Holland Pty Ltd.

PN178

Yes. Beyond that alteration, Mr Calov, do you say that the statement is true and correct to the best of your information, knowledge and belief?---I do.

PN179

Yes. I have nothing further.

PN180

THE COMMISSIONER: You tender the witness statement?

PN181

MR BUKARICA: I beg your pardon. I tender the statement.

PN182

MR LUDEKE: I have one objection. At paragraph 17 I object to the sentence starting from the fifth line, Commissioner. The sentence:

PN183

The next day Mr Marshall rejected the agreement and when questioned by employees which part of the proposed agreement he didn't accept, he purportedly responded with a statement to the effect of, "All of it. It is rubbish and I'm not going to sign it".

PN184

I object to that on the grounds that it's hearsay. It's quite obviously, so it's removed from this witness. It doesn't attribute to whom he is even relying on as to that information. This witness and given that information by an individual. I therefore object to it, Commissioner.

PN185

THE COMMISSIONER: Do you wish to argue the point, Mr Bukarica?

PN186

MR BUKARICA: Only to say, Commissioner, it's of course the strict rules of evidence do not apply in this Commission and the matter of how the Commission treats evidence of this sort is a matter for the Commission. We say it's really an issue going to the weight of the evidence rather than strict admissibility and
we - - -

**** ROBERT MICHAEL CALOV XN MR BUKARICA
PN187

THE COMMISSIONER: Although we're not bound by the rules of evidence, there have to be some rules don't there?

PN188

MR BUKARICA: Yes there are, Commissioner.

PN189

THE COMMISSIONER: To allow this in my view would be far too broad, far too prejudicial. I don't think it goes to the nub of your case anyway.

PN190

MR BUKARICA: If the Commission pleases.

PN191

THE COMMISSIONER: I uphold the objection of Mr Ludeke and strike that section he refers to in paragraph 17 of exhibit CFMEU4 beginning, "The next day Mr Marshall rejected" down to the words in italics "going to sign it" is gone. With that deletion the witness statement of Mr Calov will become exhibit CFMEU4.

EXHIBIT #CFMEU4 WITNESS STATEMENT OF ROBERT MICHAEL CALOV

PN192

THE COMMISSIONER: Cross-examination, Mr Ludeke?

PN193

MR LUDEKE: Yes. Just briefly, Commissioner.

<CROSS-EXAMINATION BY MR LUDEKE [3.42PM]

PN194

MR LUDEKE: Mr Calov, do you have your statement in front of you?---Yes I do.

PN195

Could you go to paragraph 11. You say there that the union initiated a bargaining period and filed that in the Commission on 14 March 2007. That's the bargaining period the union relies on in this application, is that correct?---Sorry, repeat the question?

PN196

You're referring there to the initiation of a bargaining period filed in the Commission on 14 March last year and I asked you whether that's the bargaining period that the union is relying on for this application?---That, to the best of my knowledge, yes.

**** ROBERT MICHAEL CALOV XXN MR LUDEKE
PN197

Yes. And at paragraph 12 you refer to the fact that you say the union has made repeated attempts to arrange a meeting with Marshall where the possibility of entering into a union collective agreement can be discussed. However Marshall, et cetera, either ignore and I don't read further. Now, when are you referring to,
Mr Calov, when you're saying that the union has made repeated attempts? What time frame are you referring to?---Well, certainly after - before and after the notice was issued in a lot of correspondences exchanged hands.

PN198

Yes. So you are referring to in terms of the contextual time frame, paragraph 12 refers to around March and April of 2007? Would that be accurate?---Well, even to this day. The whole period.

PN199

I asked you in context of paragraph 11 and 12. Are you now saying that the union has made repeated attempts since March and April 2007?---I'd have to refer to all the correspondence and the relevant dates, but simply the issue's been ignored. They've made it quite clear they don't want to do a collective agreement. You ring up the, you ring them up and they hang up on you basically.

PN200

Sir, I've asked you quite a precise question about when it was that the union was making repeated attempts?---Yes.

PN201

Can I ask you not to go off on a tangent and just deal with the question as I posed it to you. Do you want me to refresh your memory as to what I propose to you about paragraph 12?---Yes, if you may.

PN202

That it's correct to say this, isn't it, that the context in which you are saying at paragraph 12 that the union has made repeated attempts is in the context of the time frame of about March and April 2007?---I answered that it goes beyond that, further.

PN203

I see. And to use your words, when did the union last attempt to arrange a meeting with Marshall where the possibility of entering into a union collective agreement was to be discussed?---I'd have to refer to all the documents and there is a mountain of exchanged documents where the company, where we requested the company to talk about a collective agreement and they don't accept the invitation.

PN204

And when to the best of your memory was the last time that the union made one of those repeated attempts?---Well, as I've stated, Mr Ludeke, I'd have to refer to my documents to give an accurate date.

**** ROBERT MICHAEL CALOV XXN MR LUDEKE
PN205

So you can't remember even approximately?---I could give you probably a few months ago. But to give you an accurate answer I'd have to refer to my documents, as I've said.

PN206

At paragraph 17 of your statement you've referred to meetings with employees and in particular at paragraph 16 you've referred to a meeting on 22 May 2007 with employees and then at paragraph 17 you state that the majority of the Marshall employees went to see Brad Marshall to inform him of the outcome. To whom are you referring when you say the majority of Marshall employees?
---Well, the majority of the employees who were at that meeting on 22 May.

PN207

The majority who were at the meeting on 22 May?---That's my understanding, yes.

PN208

Well, you say it's your understanding because you don't have any first knowledge of this, first hand knowledge of this, do you?---Not being there in person, the workers reported to me. They took our draft document back, presented it to
Mr Marshall en mass and he gave his answer the next day.

PN209

Now, the union itself, you or another officer of the union, never handed that document or posted that document or otherwise gave that document to the employer, did you?---No, I didn't.

PN210

I beg your pardon sir?---No, I didn't.

PN211

Nor anybody else in the union?---Not to my knowledge.

PN212

You're referring later in that paragraph to Brad Marshall again and you say you understand that he sold the business John Holland but is still concerned in the management at Marshall. Are you aware that Mr Brad Marshall is not based at Werris Creek?---No, I'm not aware of that these days.

PN213

You've not had any contact with him for some time, have you?---I think the last time I saw him was in this room.

PN214

In other Commission proceedings?---That's correct.

PN215

In January?---Yes. I thought it was before Christmas, but yes possibly January.

**** ROBERT MICHAEL CALOV XXN MR LUDEKE
PN216

If you go to paragraph 19 of your statement you are referring there to meetings with your members and then you specifically refer in paragraph 20 to meetings on 20 February 2008 and 29 April 2008. And the employees reaffirm their support of a union collective agreement and endorse the union proceeding with a protected action ballot. Now sir, I put it to you that after 20 February 2008 you and no other officer as well, no other officer of the CFMEU, made any contact with Marshall as you describe it to involve Marshall in a meeting with you to discuss a collective agreement?---Well, it's very difficult. They made their position quite clear and when they don't answer the phone or hang up on you, it's quite clear that they don't want to speak to you about it or anything like that.

PN217

I'm sure you heard the question as I phrased it to you. After 20 February 2008 meeting with your members you did not make any contact with Marshall. That's correct for a start, isn't it?---As I said, I haven't got all the documentation in front of me.

PN218

Sir, I put it to you that if you had a meeting on 20 February dealing with this important matter you would remember whether you contacted the employer immediately after that meeting?---I personally didn't contact the employer, no.

PN219

And to your knowledge nobody else in the union did?---No, that's not exactly what I'm saying. I'm sorry, but our legal research officer handles all the correspondence and he may have. Without seeing the documents, which I keep saying, I really can't .....

PN220

Yes. You may have you said, so you don't know that. That's correct, isn't it? You don't know whether anybody else made contact?---No, I don't know.

PN221

And the same can be said of the meeting of 29 April 2008. You didn't make any contact to Marshall to arrange a meeting regarding a union collective agreement, did you?---No. We've been in many proceedings where the company don't even acknowledge the union and that goes to the disputes procedure, et cetera.

PN222

Sir, I'm sure you heard the question as I posed it?---Yes and I thought I answered it.

PN223

You did not make any contact, did you, after 29 April to Marshall to arrange a meeting to talk about a union collective agreement?---I personally did not, no.

**** ROBERT MICHAEL CALOV XXN MR LUDEKE
PN224

And as far as you know, no other officer of the union did either?---I don't know if they did or didn't. Whether there was correspondence exchanged again. I can only speak for myself.

PN225

Now, you've made several comments about the approach Marshall has had in its response to you. What you've tried to indicate to the Commission is that Marshall has been unresponsive to the union's approach. Would that be a fair summary?
---Yes.

PN226

But can I put this to you, sir. The union has not approached Marshall for some time and certainly not in 2008 to request meetings dealing with a union collective agreement?---Yes, that may be the case.

PN227

I have nothing further, Commissioner.

PN228

THE COMMISSIONER: Thank you. Re-examination?

PN229

MR BUKARICA: No, Commissioner.

PN230

THE COMMISSIONER: You can step down, Mr Calov.

<THE WITNESS WITHDREW [3.54PM]

PN231

MR BUKARICA: Commission pleases, can I hand up an outline of submissions in this matter? Commissioner, in general terms the union relies upon the written submissions which go to a number of matters including what we say to be the objects of the Act and objects of a part dealing with protected action ballots. And I don't intend to go through each of those submissions but to simply highlight some of the main points and deal with some of the anticipated issues that my friend would raise an objection to the application. Now, the first thing you understand and appreciate, of course, is that the purpose of a protected action ballot is to establish a transparent and expeditious process by which employees can democratically choose whether or not to authorise forms of industrial action.

PN232

The involvement of third parties such as employers in the question of an application of this sort is limited. The Act provides a very circumscribed ability to raise objection. And those objections are primarily outlined in section 461 of the Act. Now, there are a number of formal requirements in relation to an application pursuant to section 451 of the Act and those formal requirements are dealt with in paragraphs 6 through to 13 of the submissions and I don't take the Commission to those in any detail. But essentially they relate to the identification of the employer, the nature of the industrial action sought, the proposed authorised ballot agent, the time table, et cetera.

PN233

So we rely in respect to those formal requirements upon the matters outlined in the written submission. Also the question of the authorised ballot agent is dealt with in paragraphs 14 to 18 and in this regard we rely upon the affidavit of
Mr Hodder which go to his fitness to perform the function of authorised ballot agent, in his experience in prior ballots and the procedure by which certain requirements of the regulations and the Act will be dealt with by him. The Commission would be aware that Mr Hodder has performed the function of authorised ballot agent on at least 15 other occasions and we say that his ability and suitability to be an authorised ballot agent is beyond reproach.

PN234

The question of the attendance ballot or the form of the ballot is dealt with in paragraphs 18 to 21 of our submissions. The Commission as presently constituted is well aware of the particular culture of the coal mining industry and the predominance of attendance ballots, both for internal union decision making processes but also more broadly or more specifically the election of union officers. We say that's a matter which tends towards the acceptance of the appropriateness of attendance ballots in this particular context. But also we say that the attendance ballot format which we submit or make application for to the Commission and the particular time table contained in our application means that the criteria in section 459(3) of the Act in relation to expedition and desirability of a ballot being concluded within 10 days favours making an order in the form sought by the union which is based on an attendance ballot.

PN235

Now, I rush in dealing with those items, Commissioner, because I anticipate that they are not the crux of the objections to what the union seeks today, but I think it's important to draw your attention to those parts of the written submission. What it does appear that there may be an issue here today is the criteria under section 461 of the Act, primarily that going to the union generally bargaining and that both in a past sense but also in an ongoing sense. Now, I don't think the issue of pattern bargaining arises in this matter so I won't address the Commission as to that point. But clearly we say that the evidence of Mr Calov in this matter goes to satisfaction of the requirements under section 461 of the Act.

PN236

Now Commissioner, this is no ordinary industrial context. There's enough, I think, evidence before the Commission as to that, but also the Commission is aware of certain related matters involving the two parties that are before you today which speak of an industrial relationship which is other than amicable. And what must be appreciated, I think, in terms of the question of attempting to genuinely, whether a party is attempting to genuinely bargain, is not to elevate issues of process and form over that of substance. And by that I mean it is clear the case and the evidence, we rely upon Mr Calov's evidence in this regard, it is clear the case that the company has adopted a bargaining stance in respect to union collective agreements which is hostile and which is not accepting of the possibility of an agreement with the union.

PN237

Now, under the current legislative structure in this country they are entitled to that position. They are entitled to that position. We are not stating or submitting otherwise. The company has been entitled under the Workplace Relations Act to pursue Australian workplace agreements and individual bargaining arrangements and it has done so. But that does not mean that the union is also precluded from pursuing a union collective agreement, or that it has in fact consistently done so ever since the employer as known as John Holland Mining Pty Ltd has taken over from Marshalls Mining - I beg your pardon - Roach and then the Marshall operation.

PN238

The evidence of Mr Calov, particularly at paragraphs 17 through to 21, state that the union remains committed to reaching a union collective agreement and indeed states that - and he wasn't cross examined upon this point - that the entire purpose of seeking a protected action ballot is to persuade the employer to enter into serious discussions with the union over a collective agreement.

PN239

And that's what I mean, Commissioner, by not elevating issues of form and process over issues of substance. Our submission in this matter is simply this. The employer in this matter, in this case does not have an interest in entering into discussions with the union over a union collective agreement, and the only legally available course for the union in that context is to pursue a protected action ballot in the hope that it gives it some leverage, as indeed the Act intends or the Act provides, some leverage in order to get the employer to the bargaining table.

PN240

Now, were the employer to submit today that it is prepared to enter into those discussions and it's nearly a case of the union picking up the phone or dropping it a letter, we will be gratified, we would certainly be gratified and we would welcome such an invitation. However, such an approach is not inconsistent with a granting of the order sought in this matter because of course the taking or voting upon a protected action ballot is not the end of the process. It is one step in the bargaining process, one step that's available to the trade union applicant and, of course, the ability exists for discussions to occur any time concerning a union collective agreement.

PN241

THE COMMISSIONER: As you know, I'm ..... Are you saying that if the lawyer today through Mr Ludeke says to you, yes, they're now happy to enter in to bargaining talks with you but you don't seek to persist with the application?

PN242

MR BUKARICA: No.

PN243

THE COMMISSIONER: Or do you seek to persist?

PN244

MR BUKARICA: We seek to persist with the application, Commissioner, but what we are saying is we're prepared to sit down with the company at any time to discuss a union collective agreement and that's as much as I can assist and I say that that's a genuinely held position, indeed, as I've alluded to in Mr Calov's evidence, that is the purpose of the protected action ballot application. So the question of genuinely seeking to bargain is one where one has to look at the context, what is actually occurring in respect to the bargaining parties and what we say, Commissioner, is that the evidence of Mr Calov and the Commission's own knowledge of the litigious and difficult relationship between the parties would indicate that the union is genuinely attempting to reach a union collective agreement, but the employer has adopted a hostile bargaining stance.

PN245

The written submissions then go to relevant authorities going towards, in these types of matters which we attempt to summarise, the specificity and intelligibility of that question I don't think is an issue in these proceedings. The generally sought agreement question appears to be, and we say that there is certain guidance there in terms of the established authorities in this place which go to defining the appropriate parameters by which a Commission can decide whether a party is being genuinely seeking to bargain or otherwise. But I note that it does not appear that the prohibitive issue of prohibited content is a germane matter in these proceedings, but simply whether the union has sought or continues to seek or attempt to genuine bargain with the employer.

PN246

The one authority I think that does commend itself in terms of understanding where the union is going or what the union intends - I beg your pardon, Commissioner, I've just lost my reference I was going to take you to. Yes, Commissioner, at paragraph 47, there's reference there to Tyco Australia v CEPU where the issue the employer agitated was different to what I anticipate will be the case in these proceedings, but where the employer basically argued that the union couldn't be genuinely bargaining because some of the matters it raised by way of its log of claims might ultimately be found to be prohibited content and that's on the last page of submissions outlined, Commissioner, paragraph 47.

PN247

THE COMMISSIONER: What happened to paragraphs 40 to 46 inclusive?

PN248

MR BUKARICA: I beg your pardon? Are you missing some pages, are you, Commissioner?

PN249

THE COMMISSIONER: I must be.

PN250

MR BUKARICA: I've got a - - -

PN251

THE COMMISSIONER: Mine jump straight from the end of 39 to the beginning of 47.

PN252

MR BUKARICA: Yes.

PN253

THE COMMISSIONER: If yours does as well then you're in trouble, aren't you?

PN254

MR BUKARICA: Yes. I'll endeavour, Commissioner, to provide you with a - - -

PN255

THE COMMISSIONER: Is that a numbering problem or is it - - -

PN256

MR BUKARICA: No, I can speak to it. The relevant passage is 47 and I make this point, that in that matter the question was the union may have included something in its log of claims which might ultimately, by a court somewhere, be found to constitute prohibited content and does that in itself indicate that a union was not genuinely bargaining, and what I say is the relevant ratio in this case is this, that what the term "genuinely bargaining" is concerned with is the bona fides of the party making the application. That is, is the party serious about reaching agreement or does it have another agenda which would preclude it from doing so, in this case, the pursuit of a side agreement or a deed or something of that sort.

PN257

So I think it's useful because it does focus the mind on the question of intent and simply put we say that it cannot be said that the union is doing anything other than genuinely pursuing a union collective agreement and were the employer tomorrow or the next day prepared to sit down seriously with the union and reach such an agreement there will be no question that the union would itself oblige, and that is the test. Is that the position before the Commission at present? We say it is, and the fact that relationships have broken down or never really existed between the parties is not really the point. The question is has the union genuinely tried to bargain? Are we continually to genuinely try to bargain? We say the only evidence before the Commission is in the affirmative. So, Commissioner, putting aside any brief statement in reply, they are our submissions.

PN258

THE COMMISSIONER: What about the six missing paras? I mean, are there six missing paras?

PN259

MR BUKARICA: Well - - -

PN260

THE COMMISSIONER: I can hardly consider them - I don't think you answered my earlier question. Is it a question of the numbering has gone wrong or there's a page missing?

PN261

MR BUKARICA: Yes. There's a page missing. The page that deals with his Honour, Vice President Lawler's position - - -

PN262

THE COMMISSIONER: Let's hope there's nothing brilliant on it.

PN263

MR BUKARICA: I wouldn't go that - - -

PN264

THE COMMISSIONER: You mentioned Vice President Lawler, you see.

PN265

MR BUKARICA: No, it was certainly an important decision, but I don't rely on that decision in this matter, Commissioner, because the matter primarily dealt with the question of prohibited content. I hadn't heard my friend agitate that. If it does become an issue, I would then seek to rely on that note of submissions, in which case I can provide those at short order, the missing pages, but really for the purpose of the general argument, which I think is simply about attempts by the union to negotiate or not to negotiate with the company. It's really the structure of the Act, its objects and what I say to be the clear implication in the Act that what we are concerned with is the intention, the bona fides of the intention of the applicant union. If the Commission pleases.

PN266

THE COMMISSIONER: Thank you. Mr Ludeke, do you want to launch straight in or do you require a moment?

PN267

MR LUDEKE: No, I'll launch straight in, Commissioner, seeing the lateness of the hour.

PN268

THE COMMISSIONER: I'm not worried about time by the way.

PN269

MR LUDEKE: Yes.

PN270

THE COMMISSIONER: It's my associate who's running in and out. She's travelling, but not me.

PN271

MR LUDEKE: Thank you, Commissioner. There's one matter that I'll have to raise first of all and that is that my friend several times in his submission has just said that there's only the evidence of Mr Calov before a Commission and indeed, that's correct. I'm going to make some submissions that I think the respondent is entitled to rely on for Mr Calov's evidence, but if the Commission isn't open to my interpretation of his evidence and in my submission I'll have to call evidence in reply and I'd asked you if you'd reserve my position in that regard earlier. So can I just repeat that and - - -

PN272

THE COMMISSIONER: When would you seek to do that?

PN273

MR LUDEKE: Well, as soon as possible, of course, but it's a matter that might best be returned to after I've made my submissions.

PN274

THE COMMISSIONER: Okay.

PN275

MR LUDEKE: The first matter I want to take you to, Commissioner, is the notice initiating the bargaining period rather than the application itself. I'm not going to re-agitate my opening earlier this afternoon, but there are some matters that I need to draw to the Commission's attention. Not only earlier did we say that there was a serious failure in not correctly identifying the employer, I'm not seeking to quibble with your ruling there. There's a second serious failure at the bottom of the first page of that notice, Commissioner. It says, bear in mind this is a notice to the other negotiating party, that is, my client, it says, "Take notice of the initiating party," that is, the union, "intends to make a collective agreement to which section 423 of the Act applies with the other negotiating party," that is, my client, "under section 322 of the Act."

PN276

Now, the effect of initiating the notice, and I touched on this earlier and I won't repeat any of the things that I said, but the effect of section 423 is that in particular it is putting the respondent employer on notice of what it is that the initiating party intends to do with it. I took you to section 423(3) and I won't read it again, but it is the initiating party that has to give written notice to each other negotiating party about what it is intending to do. In this respect, the party intends to try to make a collective agreement to which this section applies, the proposed collective agreement, that is, with the other negotiating parties under section 327 and section 328.

PN277

The notice initiating the bargaining period here invites my client to take notice that the union intends to try to make a collective agreement to which section 423 of the Act applies with my client under section 322 of the Act, not section 327 or 328, but section 423(3) requirements. Instead the union has put my client on notice that it intends to make an agreement with my client under section 322. Section 322 is not a section under which my client could make an agreement of any kind with any person or any entity. Section 322 contains a definition of a single business and single employer and has some deeming provisions related to that.

PN278

The union in this case has failed in the obligation on it under section 423(3) that requires it, being the initiated party, to advise the other negotiating party that it intends to try to make a collective agreement under section 327 or section 328. Having not complied with section 423(3), the result with the notice initiating the bargaining period is a misleading reference to provisions of the Act. Indeed, misleading reference to an apparently irrelevant provision of the Act in section 322, the employer, such as it is - I'm sorry, I withdraw that. That sounds like I'm quibbling with your earlier ruling.

PN279

The respondent, my client, is left as a result of this, the important error in the notice. It's left to try to divine what is meant by the notice. It's meant - I beg your pardon, I withdraw that. It's left - the employer is left to guess what it is that's intended by this notice and the Act doesn't allow for matters as important as these to be left to guesswork. Section 423(3) couldn't be more precise about what it is that the employer has been put on notice about. It's one or the other that the initiating party is telling the employer in this case that it wants to make an agreement of one type or another, one type being under section 327, the other under section 328.

PN280

Whichever it is that the intention behind the notice initiating the bargaining period was, my client doesn't know because it hasn't been given the correct notice. The notice is not compliant. Over the page on the notice, the notice initiating the bargaining period, the required particulars are to be set out according to section 426. Now, again with the failure to properly give notice to the employer by the reference to section 322, the employer is left to guess about the particulars that are there set out. The result of the substantial error in what it was that the union was attempting to put my client on notice about, the result of that is that the bargaining period is invalid. It's not been initiated in accordance with the Act primarily on the basis of what I've just submitted to the Commission, but of course anticipating what will be said in response this is not an issue merely of form. This is an issue of compliance with a strict provision of the Act.

PN281

Furthermore in my submission, Commissioner, it's a defect of such substance that the Commission would not allow it to be rectified by some submission relying on section 110 or leave to amend the notice when this notice has been in effect for 14 months. Would the Commission seriously allow a party to amend a defect 14 months after the events? I'll leave that point there and go to the ballot order application itself. There are further deficiencies in that.

PN282

THE COMMISSIONER: And you say what is clearly an error in the notice to initiate a bargaining period is fatal in itself?

PN283

MR LUDEKE: It is fatal, in my submission, Commissioner. It can't be corrected after the event and if it's submitted that it's a mere technicality that can be corrected by leave of the Commission, I'm submitting that the Commission wouldn't grant leave 14 months after the event to the - - -

PN284

THE COMMISSIONER: But it certainly falls into a different category to the matter I was considering earlier.

PN285

MR LUDEKE: It is not minor in my submission, Commissioner, because the Act requires the employer in this case to be put on notice of what it is that is being sought. The only notice that my client has been given is that according to section 322 it should try to guess what it is that's intended by reference to definitions of single businesses from the employer which have, to put it at its highest, only marginal relevance across to the making of an agreement under either of sections 327 or 328.

PN286

I might also say this, Commissioner, it compounds the other error, the error that you already ruled on and I don't seek to re-agitate, but it compounds upon that error. The employer has got to decide who it is that this notice was directed to and then the employer, having read the notice, has to try to guess what it is that the union has intended. If I go to the application for the ballot order itself there are certain things that the Commission needs to be satisfied about before it would grant the order. The first that I bring your attention to, Commissioner, is in section 457. I've already taken you to that subsection (1) provision. Subsection (2) requires that, "The Commission must not determine an application for a ballot order until it is satisfied that" and I pass over paragraph (a) to paragraph (b), "that the persons referred in subsections 458(1) and (2) have had a reasonable opportunity to make submissions in relation to the application."

PN287

Well, there's nothing before you which would satisfy the Commission that persons have had a reasonable opportunity. What the Commission does know is that it issued directions made on Friday requiring the employer to give - I beg your pardon, I withdraw that. Requiring the employer to attach to noticeboards the Commission's directions and the other materials the subject of the direction and I'm instructed again, and I haven't had the opportunity to put this into evidence, but I'm instructed that there was not an ability to comply with those directions until this morning.

PN288

The Commission's directions were not placed on noticeboards until this morning. The result of that is that relevant persons as defined in section 458 have, it would seem, inevitably not had the opportunity to make submissions that section 457(2) refers to, in particular because of the shift system operating with my client which Mr Calov has put into evidence, those starting the second shift today presumably were not at work at 2 o'clock when the Commission sat and they've never had the opportunity to look at the Commission's directions. In any event, however it is that the Commission satisfies itself under section 457(2), it hasn't had any assistance from the union in that regard and there's been no effort to put information in front of you to the extent that it might be incumbent on the union to assist the Commission to be so satisfied.

PN289

I simply say that because the Act doesn't guide as to how the Commission might be so satisfied, but that's not unusual in that regard. As far as the provisions of the Act are concerned the Commission knows how to inform itself and is at large in informing itself in relation to provisions such as that. There's a further serious problem with the application, Commissioner, and we say that that problem is that it does not identify with sufficient particularity which employees are to be balloted. At page 2 of the application at about point 6 or 7 of the page there is the heading, Types of Employees to be Balloted, and that's reference to the provision of the Act that requires this information.

PN290

That is, section 452(1)(b) which says, "The application must include the following." (b) is details of the types of employees who are to be balloted and there identified are - "employees to be balloted are production and engineering employees of John Holland Pty Ltd, trading as Marshall Mining & Earthmoving, employed at the Werris Creek Project Contract Mining Operation who are members of the CFMEU." As I am instructed that would appear to be all employees other than my client's supervisory and managerial employees.

PN291

Over the page at the top of page 3 of the application, Commissioner, the first entry is, the number of employers to be balloted is approximately 17. I was thinking, can I make some mileage out of the typographical that refers to "employers" being balloted, but I don't think I'd make much headway with that. The number of employees, if that's what's intended, to be balloted is approximately 17. Well, that's an apparent subsection or sub group of those referred to at about point 6 or 7 of the previous page which doesn't confine the employees to be balloted. It just simply says production and engineering employees. I'm instructed that there are 46 of those. The notice doesn't, in my submission, accurately identify and in terms they are - - -

PN292

THE COMMISSIONER: Well, it would if only 17 of the 46 were members of the union, wouldn't it?

PN293

MR LUDEKE: Well, my client can't know who are members of the union or not. That doesn't narrow it for my client's purposes.

PN294

THE COMMISSIONER: I thought you said earlier that on page 2 of the application where it's got the sub-heading, Types of Employees to be Balloted" then in brackets "(section 452(1)(d))" you construed that as being all of those employees, did you not?

PN295

MR LUDEKE: Yes. I said, Commissioner, if I recall correctly, all employees other than supervisory and management.

PN296

THE COMMISSIONER: But they're not all necessarily members of the CFMEU as it provides the - - -

PN297

MR LUDEKE: I don't know, Commissioner.

PN298

THE COMMISSIONER: Well, one suspects that's where the 17 pops from, but - - -

PN299

MR BUKARICA: Commissioner, I just had trouble understanding my friend's submission. I understand if it said "persons who are eligible members of the CFMEU", but it doesn't. It says, "between members of". So the submission is, we don't know who they are. Evidently the union would and we say it's about 17.

PN300

MR LUDEKE: Well, it's not so much that I don't know. It's the Commission doesn't know. The application is to the Commission. The Commission is required to be told in the application the details of the types of employees who are to be balloted. My friend says that that's satisfactory. What's in the application is satisfactory to the extent of compliance with section 452(1)(b).

PN301

THE COMMISSIONER: But then you go to para 6 of the draft order which would require the CFMEU to provide the list of members. I'm talking about this particular point, the now famous 17.

PN302

MR LUDEKE: Sorry, Commissioner, you're looking at the draft order?

PN303

THE COMMISSIONER: Yes.

PN304

MR LUDEKE: And paragraph?

PN305

THE COMMISSIONER: Numbered 6, "CFMEU to provide list."

PN306

MR LUDEKE: Well, the CFMEU is to provide the authorised ballot agent with a list. If you look at the proposed draft order 5, at the fourth line starting, "Werris Creek Open Cut Coal Mine", it goes on to say, "who are eligible to be members of the CFMEU." Now, not only does my client not know who are members and who are eligible to be members of the CFMEU, but the draft order apparently asks my client to make a conclusion of law about who is eligible to be a member of the CFMEU. Perhaps the CFMEU is going to provide its eligibility rules to my client to assist it to meet what is sought in draft order 5.

PN307

Commissioner, I move on from that and I don't want to belabour it. The Commission will see for itself from section 452 whether the application is sufficiently precise to comply. Now, my friend has said that he apprehended that a major part of my client's objection to the application would be the section 461 tests. Subsection (1) requires that the Commission must grant an application for a ballot order and must not grant it unless it is satisfied. Paragraphs (a) and (b) are in essence very similar but the authorities suggest that they are dealing with different points in time. But paragraph (a) you're dealing with the past. Paragraph (b) with the present.

PN308

Now, I said earlier, Commissioner, that we would rely on Mr Calov's evidence and I take you to that, his statement at paragraph 12, CFMEU4. It says there that:

PN309

The union has made repeated attempts to arrange a meeting with Marshall where the possibility of entering into a union collective agreement can be discussed. However Marshall have either ignored or rejected the attempts of the union to enter into the discussions for a union collective agreement.

PN310

Can I ask you to read carefully, Commissioner, the first sentence and see just how precisely it's been crafted. It doesn't say that the union has made repeated attempts to arrange a meeting to discuss a union collective agreement. Quite deliberately it doesn't say that in my submission. It says instead that it made repeated attempts to arrange a meeting with Marshall where the possibility of entering into a union collective agreement can be discussed. It's never in Mr Calov's evidence been an effort by the union to arrange a meeting to discuss a union collective agreement. Instead there have been meetings or attempts to arrange meetings where then the union, regardless of the purpose of the meeting in the first place, where then the union can raise the possibility of entering into a union collective agreement.

PN311

I think the way I've interpreted that paragraph is consistent with other parts of the evidence Mr Calov gave you today. That's in relation to paragraph 17 I asked him whether the union had ever served a document for a union collective agreement on my client and he said, "No, only the employees, the union's members. There was no direct contact from the union." He concurred with my client, put into a proposal for a union collective agreement. In relation to paragraph 20 of Mr Calov's statement I asked him whether he, after the meeting he refers to on 20 February 2008 had made contact with my client to arrange a meeting to discuss a union collective agreement, and he said, "No." He also said no to the same question in relation to the meeting of 29 April this year.

PN312

I put it more broadly to him that no effort had been made by the union to contact my client at all this year to discuss a union collective agreement and he agreed that that was the case. Now, if we'd had the opportunity to bring evidence, and I'll just simply put it in this way, Commissioner. Our evidence would have been, we've had no contact with the union at all since the middle of 2007 about the union collective agreement. Now, if the Commission is not prepared to accept that in the context of the evidence Mr Calov has given, now I will ask for an adjournment to bring evidence to that effect.

PN313

The result of that, Commissioner, is that the union has not met the test, that during the bargaining period it as applicant genuinely tried to reach agreement with the employer of the relevant employees, and secondly that the applicant is not genuinely trying to reach agreement with the employer. How could it possibly be genuinely trying to reach agreement with the employer when its made no contact with the employer? On the evidence that is before you it's made no contact at all this year. So even relying on the union's evidence there's been no contact at all from the union about a union collective agreement with my client and despite that, the Commission is expected to conclude that the test in section 461(1) is met. That is, that the union, the applicant in this case, genuinely tried to reach agreement with the employment. Can the Commission truly be satisfied that that test has been met and there has been no contact at all on the union's evidence between it and the respondent employer about that very issue?

PN314

THE COMMISSIONER: So are you saying that there's doubt in relation to both to 461(1)(a) and (1)(b) or just (1)(b)?

PN315

MR LUDEKE: Both paragraphs, Commissioner. This application was filed on Friday. Imagine a world that existed last Thursday and the union sent a letter to my client and said, "We want to meet with you. Otherwise we're going to make an application for a ballot order." Now, I say that would have been the first contact from the union this year to my client about this issue. It didn't happen, but imagining that it did, then that may have placed the union in a position to say that it met the test in paragraph (b) and it was doing it presently, was following up the past tense test in paragraph (a) with a current effort to genuinely try to reach agreement.

PN316

THE COMMISSIONER: And on your instructions, or as you are instructed, if the union was to ask through you today if the company's willing to meet in the near future to discuss a union collective agreement, is there a response?

PN317

MR LUDEKE: I don't have instructions to respond to that. I understand that you're involved in another matter that is listed for next week. I'm not sure of that, but - - -

PN318

THE COMMISSIONER: It is at the moment listed for 4 June, yes.

PN319

MR LUDEKE: So it may be that indeed, one way or another, the union, depending on how you rule, might be said it has to make a contact more formally than a proposition put to me today. I notice that you did, Commissioner, put the proposition to my friend and he was negative about it.

PN320

MR BUKARICA: No, sorry.

PN321

MR LUDEKE: I didn't mean to misrepresent.

PN322

MR BUKARICA: I think the position that was put was would the union withdraw its protected action ballot application if the company's prepared to meet.

PN323

THE COMMISSIONER: As I put it to you.

PN324

MR BUKARICA: Yes, and that was a negative, but I was also making it, I think, quite clear that the union's prepared to meet notwithstanding at any time the employer.

PN325

THE COMMISSIONER: I understood you to be telling me that you still wanted the protected action ballot but no matter what you would still welcome meetings with the company about a collective agreement.

PN326

MR BUKARICA: That's correct.

PN327

MR LUDEKE: I apologise, I didn't mean to misrepresent the exchange between you and Mr Bukarica. So the union's position is - I'll phrase it this way. The union's position is it remains prepared to meet, but that's not the test that's before the Commission. The test that is before the Commission under section 461 is in the past the union genuinely tried to reach agreement, or is it presently - I beg your pardon - and is it presently genuinely trying to reach agreement? And it's a two fold test, both tests have to be met. It's not a one or the other.

PN328

THE COMMISSIONER: Well, if one was to go back to Mr Bukarica's written submissions, and I won't try and find the exact part in there, but I think it was put there, or put verbally, that the purpose of - or one of the purposes of the protected ballot application was to push forward negotiations. I'm not saying it meets the test either. But I'm saying what has been put to me.

PN329

MR LUDEKE: That's the response I was going to put to you, but that doesn't meet the test. As I noted it Mr Bukarica said the union was prepared to have discussions at any time. But the application was designed for leverage to get the employer to the bargaining table - - -

PN330

THE COMMISSIONER: Probably a fair summary. It's a fair summary, Mr Bukarica, what I understood you to put.

PN331

MR LUDEKE: Yes, and that it was done so in the context of the litigious and difficult relationship where the employer was hostile.

PN332

THE COMMISSIONER: That's roughly right, yes. I doubt whether it resiled from that position.

PN333

MR LUDEKE: And I'm not saying that there's anything wrong with that position. I'm simply saying in the context of section 461 that's completely unhelpful to the union's case if it hasn't in the past and is not presently making efforts to genuinely try to reach agreement. Not either/or, but both in the past and now. That's why I gave you, Commissioner, the example of going back in time to Thursday and what the union might have done before lodging this application to try and get itself to the point of being able to say, "Not only in the past have we been rejected" - and it's the far distant past, I must say - "Not only in the past have we been rejected but more recently we've tried and we've been rebuffed again." None of that is before the Commission. All the Commission knows is there's been no contact at all and that there is a very precise purpose behind the application and that is leverage to get the employer to the bargaining table.

PN334

Well, Commissioner, if the notice initiating the bargaining period had been lodged in March 2007 as it was, and there was no discussion and no efforts to genuinely reach agreement in, let's say April of 2007 and the union made an application for a ballot order, the Commission at that point will apply the test. Is there in the past evidence that there was a genuine effort - the party was genuinely trying to reach agreement and in addition, does that remain the case now but in the present tense the party is genuinely trying to reach agreement with the employer, and that's in the context of a short space of time. Here you have 14 months later and even on the union's evidence, the last five of those months there has certainly not been contact from the union. The result of that must be in our submission that there has not only been no genuine attempt to try to reach agreement, but there's been no attempt at all.

PN335

THE COMMISSIONER: I think you can take it I've got your drift.

PN336

MR LUDEKE: I'm sorry to belabour it, Commissioner. On that note, I'm always waiting for the Commission to give me the signal and they are my submissions, Commissioner.

PN337

THE COMMISSIONER: I take it, Mr Ludeke, if I can bring this down to a nub which I always like to at least try and do, you say that the bargaining period notice is deficient and is favourable to the application itself?

PN338

MR LUDEKE: Yes, Commissioner, and in the alternative - - -

PN339

THE COMMISSIONER: You say in the alternative it's either extra fatal or fatal on its own that the application doesn't comply with subsection 461(b), or you say (a) and (b)?

PN340

MR LUDEKE: (1)(a) and (b), yes.

PN341

THE COMMISSIONER: Yes. Okay, thank you. I'll give you a few minutes to collect your thoughts, I think.

PN342

MR BUKARICA: Commissioner, I'm ready to go.

PN343

THE COMMISSIONER: No, that's code for me having a few minutes to collect my thoughts, Mr Bukarica.

<SHORT ADJOURNMENT [4.56PM]
<RESUMED [5.04PM]

PN344

THE COMMISSIONER: Mr Bukarica, I'd like you particularly to address what I described as the nub or the twin nub of the issue.

PN345

MR BUKARICA: Yes, if the Commission pleases, I intend to do so and thank you, Commissioner, for the opportunity of collecting my thoughts. Commissioner, the first point that's made and which is contended to be a point of substance goes to the bargaining period notice and to the apparent error in the bargaining period notice served on the company on 14 March 2007 referring to section 322 of the Act. Now, my friend correctly points out that the relevant section is not relevant to the identification of a negotiating party. In our submission it's clearly a typographical error and it is not fatal to the application, it is not fatal to the bargaining period being validly served for a number of reasons.

PN346

Firstly, Commissioner, if I could take you to the attachment A to the application which is the initiating bargaining period notice. Does the Commission have a copy of that before you?

PN347

THE COMMISSIONER: I have it in front of me.

PN348

MR BUKARICA: You will notice the bargaining period notice was accompanied by a letter signed by Mr Graham Kelly, the District Secretary, dated 14 March 2007. The notice says, well, informs the company that the CFMEU is initiating a bargaining period "on behalf of our members employed by you at your Werris Creek contract mining operation. The union and its members intend to try make a collective agreement to which section 423 of the Workplace Relations Act applies."

PN349

Now, section 423, of course, refers to both section 327, Employee Collective Agreements, and section 328, Union Collective Agreements. Now, if one turns to section 327 of the Act it's apparent that the relevant section simply cannot involve a trade union. It is not an agreement to which a trade union can be party to or, indeed, initiate because the test there is an employer may make an agreement, an employee collective agreement, in writing with persons employed at the time in a single business, or part of a single business of the employer whose employment will be subject to the agreement. Now, the union is not an employee obviously of the employer in this case, and on any reasonable reference to, or understanding of the reference in the cover letter of Mr Kelly to section 423. The only logical and permissible conclusion that could be reached about the union's intention in that regard is an agreement pursuant to section 328 of the Act. That is, a union collective agreement.

PN350

Commissioner, in terms of supporting that basic proposition and also indicating, I think quite clearly, what the understanding of the employer was at the time, one needs to refer then to exhibit CFMEU1, which the Commission has before it already.

PN351

THE COMMISSIONER: Yes.

PN352

MR BUKARICA: Letter from Mr Toby Bradbury to Mr Graham Kelly. Now, the letter was referred to for different purposes before, but I rely upon it in terms of the submission of my friend. The letter is a response to the initiation of bargaining period to Mr Kelly. It refers to his letter of 14 March 2007. It then relates the position as understood by the company that:

PN353

Many of the persons who previously were employed by Roche Mining at Werris Creek were employed under Australian Workplace Agreements which had not passed their nominal expiry dates. A number of those persons are now employed by John Holland Mining Pty Ltd. As a consequence the CFMEU is not entitled to take or organise industrial action in support of a collective agreement until after the expiry of the AWAs (see sections -

PN354

et cetera:

PN355

of the Act). Any industrial action taken before the expiry dates of the ABAs by the CFMEU or its members will expose you and your members to actions for penalties and damages. We put you on notice that we rely upon this letter if this matter proceeds to court.

PN356

Et cetera.

PN357

Now, Commissioner, in my submission there can be absolutely no doubt that the employer clearly understood the purpose of the bargaining period notice. It was placed on notice about the union's intention and it in return placed the union on notice that if the union sought to take the next step and organise protected industrial action, "We'll see you in court." Now, that in my submission dispenses with my friend's primary submission that the typographical error of referring to section 322 rather than 328 is fatal because, if you look at the purpose of the relevant section, to which he averts to, it is to put the other negotiating party on notice as to the intention of the union and we say that firstly, based on a proper approach to the letter of Mr Kelly to the company and its reference to section 423, the only reasonable understanding that the company could come to is the union was seeking a union collective agreement.

PN358

Then we have an item of correspondence some six or so days later which effectively confirms that that was the understanding of the company. So in our submission, Commissioner, as to that principle point, we say there is no substantive failure to comply. The company was put on notice as to the intention of the union and clearly understood that intention and, indeed, retaliated with its own notice to the union as to its intention, if I could paraphrase it in that way. The Commission refers to two principle nub issues. There are two, I think, subsidiary issues which I wish to, for the sake of completeness, deal with, but hopefully I'll address the other nub issue very shortly.

PN359

The employer makes a submission secondly that the union has failed to properly particularise or identify the employees to which the ballot application is directed, and that that somehow is fatal or does not allow the Commission to be satisfied as to the statutory requirements under the relevant part. Of course, my friend skates over the fact that before the Commission - and I was negligent in not tendering these already, but could I first tender a draft order. I think the Commission has already got a copy received by facsimile or email, which outlines the process of the ballot, some four pages long, and I seek to tender that.

PN360

THE COMMISSIONER: Well, I have a draft order which appears to be attached to the witness statement of Mr Calov, or is it meant to stand separately?

PN361

MR BUKARICA: I think it was meant to stand separately. I think it was served separately, if the Commission pleases. Commissioner, I suspect that looking at an attachment on the photocopy that was not meant to be there.

PN362

THE COMMISSIONER: This is the CFMEUs stationary order, is it?

PN363

MR BUKARICA: Yes, I think so, something of that great import.

PN364

THE COMMISSIONER: So I'll just delete the page that says what you're ordering for the office.

PN365

MR BUKARICA: Yes. There should be an order of four pages with 12 clauses going to the conduct of the protected action ballot.

PN366

THE COMMISSIONER: Which I have and I have - yes. I do have it. I'll mark it as exhibit - there being no objection, I take it?

PN367

MR LUDEKE: No, Commissioner.

PN368

THE COMMISSIONER: As exhibit CFMEU5, that's the draft order.

EXHIBIT #CFMEU5 DRAFT ORDER

PN369

MR BUKARICA: Commissioner, there is also a single page order which I'd seek to also tender, directing the authorised ballot agent to prepare a compiled list of persons eligible to vote.

EXHIBIT #CFMEU6 SECOND DRAFT ORDER

PN370

MR BUKARICA: If the Commission pleases. Commissioner, what I was going to say as to the question of the sufficient identification of the intended electorate is that the order deals with that in some detail and in our submission the order complies with the relevant provisions of the Act, the most relevant one being that an employee who was bound by an Australian Workplace Agreement which has not passed its nominal expiry date shall not be balloted. Now, it's clearly the case that the Act doesn't allow employees in that category to vote in a protected action ballot and if one refers to the statement of Mr Calov at paragraph 7 it appears to be the case that at this mine site there are employees who are on, to the best of the union's understanding, who are on unexpired AWAs and others who are not.

PN371

Mr Calov, in paragraph 7, makes this statement:

PN372

The union seeks a protected action ballot for all its members employed by Marshall at Werris Creek who are not on unexpired AWAs.

PN373

So, if you like, the electorate is, when one reads the order in conjunction with the application, CFMEU members employed as production and engineering employees at the Werris Creek mine who are not on unexpired AWAs. Now, the difficulty with that requirement of the Act, that is, that employees who are in that situation do not vote in a protected action ballot is that of course the only people who really have access to the knowledge of who is on AWA and who isn't, is the employer. Hence we have the situation whereby the order requires the union to provide a list of people it believes should be balloted and a list by the company of all its employees who could potentially be in the category that the union describes, and to indicate on that list any employees who are on unexpired AWAs.

PN374

Now, the function then is of the authorised ballot agent to reconcile it to this. The union doesn't get to see the list because there's certain privacy considerations and the requirements of the Act which prevent that. The authorised ballot agent reconciles it to lists, works out who it is that falls within the category of people to be balloted, that is who are on unexpired AWAs and off we go. So, Commissioner, that has been the accepted practice in all of the previous ballots to which this union has been - the applicant, and there has not been a particular issue, we say, of identification of the relevant employees.

PN375

Can I then turn - I beg your pardon. There is also the question of the Commission being - and I'll deal with this question very briefly because it seems to me to be a little disingenuous. That is, the Commission as it standard practice in these matters issued some directions last Friday by way of fax to alert employees or to give the employees the opportunity - or to direct the employer to alert employees to their statutory right to make submissions in relation to this matter. Now, my friend says for various reasons that hasn't occurred and relies upon that to suggest to the Commission that the Commission can't be satisfied that that provision of the Act has been acquitted.

PN376

Now, I find it extraordinary that a party that's been asked or directed to comply with a particular direction which is to append to noticeboards a notice issued by the Commission and fails to do so can then rely upon that in some manner to suggest to the Commission that it's not a position to grant the application. It just seems to me to be a little bit cute and a position which could lead to all sorts of - if approved - all sorts of, in my submission, procedural abuses in this place. The employer was directed to comply the extent of its obligations simply to append the notice on the noticeboard. One would think that that is not an onerous direction and should have been complied with. Certainly it should not be a matter which this Commission is able to accept as providing support to the objections here today, but I leave my submissions there.

PN377

Finally, in relation to the section 461 objections, Commissioner, I rely on upon my earlier submissions as to the purpose of the part dealing with protected action ballots and in particular - - -

PN378

THE COMMISSIONER: What bit is that?

PN379

MR BUKARICA: Yes, Commissioner, in my written outline the - - -

PN380

THE COMMISSIONER: Just direct me to it because this is where my thinking is going to, 461.

PN381

MR BUKARICA: Yes. I refer in broad terms to paragraphs 4 and 5 of my written outline which go to the purpose of the section and what its particular purpose is, which is to facilitate a transparent process by which employees directly concerned vote in a ballot, and also the - - -

PN382

THE COMMISSIONER: But under certain conditions. I'll tell you where my problem lies.

PN383

MR BUKARICA: Yes.

PN384

THE COMMISSIONER: I am not at this stage particularly worried about the deficiencies in the notice of initiation of the bargaining period. It appears that the employer worked it out. It's certainly very sloppy on the union's part and nobody seems to have noticed in the intervening 14 months or so as well, including preparation of this case, but putting that aside, I don't think too much shock, horror and dismay has arisen from it. The problem I have in this application is the evidence of Mr Calov which I accept as being honest and forthright evidence. I'm not criticising the man himself.

PN385

But there appear to have been problems with the company, and I know very well some of the history of this, over 2007 about enterprise bargaining negotiations, collective agreement negotiations. That is, clear evidence seems to have been that nothing has happened in 2008. Now, the union hasn't written. I've read his witness statement while you were speaking. He talks about employees approaching the employer, discussions about AWAs and the rest of it. But at the moment it appears to me that if you go to 461(1) - I don't actually have a problem with (a). Mr Ludeke has a problem with (a). So far I don't in my deliberations.

PN386

With (b), which is a different time period and is present tense or very recent past, it appears to be nothing before me to say that (b) has been complied with and I warn you of this to direct your attention to it, if there's something that you can tell me about it.

PN387

MR BUKARICA: Yes, Commissioner. Firstly in relation to (a) and I just want to, for the sake of completeness, deal with the question of - - -

PN388

THE COMMISSIONER: Can I put this to you further, interrupting you again?

PN389

MR BUKARICA: Yes.

PN390

THE COMMISSIONER: It appears to be this, that the union and its members over a period of time have decided that they'll get no change out of John Holland Mining, John Holland Pty Ltd, Marshall Earthmoving, whatever you want to call it, and that basically that's a dry well in terms of negotiations. Then we come to your point, and I admire your candour in it, that the ballot is then meant to start that process.

PN391

MR BUKARICA: Yes.

PN392

THE COMMISSIONER: Is that not what the Act provides?

PN393

MR BUKARICA: Commissioner, the Act provides that during - in relation to subsection (a), during the bargaining period the union has genuinely tried to negotiate and I - - -

PN394

THE COMMISSIONER: I'm generally satisfied about that.

PN395

MR BUKARICA: Yes, and I appreciate that because the relevant qualifying period is during the bargaining period which started some months ago.

PN396

THE COMMISSIONER: And there's this "and"?

PN397

MR BUKARICA: Yes, and the applicant is genuinely trying to reach agreement with the employer. Now, I suggest to the Commission this. That the term "genuinely trying to reach agreement with the employer" does not necessarily connote the requirement of requesting meetings or formal requests to negotiate.

PN398

THE COMMISSIONER: What does it connote?

PN399

MR BUKARICA: It means that the party is genuinely trying to negotiate. I raise the issue of - - -

PN400

THE COMMISSIONER: Do you do it by psychic projection or - - -

PN401

MR BUKARICA: No. Commissioner, I think the position in Mr Calov's statement is abundantly clear, which the Commission has alluded to. The union doesn't believe that the employer is in any way interested in negotiating with the union. There's been a track record, and I'm just - - -

PN402

THE COMMISSIONER: No, I'm not stopping you. I'm just - - -

PN403

MR BUKARICA: There's been a track record of hostility, a preference for individual arrangements, et cetera. So the union continues working with its members and ultimately makes an application for a protected action ballot. Calov says in his statement, because we want to bring the employer to the bargaining table. Now, if one takes into account the reason in Tyco, the reference is in my outline and which I took the Commission to briefly. The fundamental test here is, the intention of the applicant. Does the union genuinely intend to reach an agreement with the employer?

PN404

THE COMMISSIONER: Intend or is trying?

PN405

MR BUKARICA: Is trying.

PN406

THE COMMISSIONER: Where is the Tyco reference?

PN407

MR BUKARICA: The Tyco reference is in the outline at paragraph 47. Again, I did state to the Commission that it dealt with - - -

PN408

THE COMMISSIONER: You're saying genuinely open to, rather than genuinely trying, is that not correct?

PN409

MR BUKARICA: No. I'm saying genuinely trying, Commissioner, but I'm saying that genuinely trying doesn't necessarily mean that the union is actively seeking a meeting with the company. I'm suggesting that the route that the union has taken is both open to it, given the particular context, legitimate and is indicative of the union genuinely trying to reach agreement.

PN410

THE COMMISSIONER: You see, I'm not saying you are right or wrong about the intractability of the company.

PN411

MR BUKARICA: Yes.

PN412

THE COMMISSIONER: You might have legitimately reached a view in your own minds at least that no amount of attempting to talk to this company would provoke them in to having discussions genuine or otherwise with you about a collective agreement. But that is a bit of a leap to say that that satisfies 461(1)(b).

PN413

MR BUKARICA: No, Commissioner, because I think the - - -

PN414

THE COMMISSIONER: Because your argument appears to be that if they contacted you, you wouldn't say no.

PN415

MR BUKARICA: No, it goes further than that, Commissioner. We would welcome at any time sitting down and negotiating a union collective agreement with the company. However, the judgment of those union officials concerned is that there hasn't been that interest, that it is fruitless to pursue such an - well, I'm interpolating this, but it would be fruitless to pursue such an approach because of the history between this company and the union.

PN416

THE COMMISSIONER: Well, that puts it, in fact, much more neatly than I tried to put it.

PN417

MR BUKARICA: Yes.

PN418

THE COMMISSIONER: But that's a judgment call that you've made that it wouldn't work anyway. So therefore we won't ask.

PN419

MR BUKARICA: Well, perhaps that's the case, Commissioner.

PN420

THE COMMISSIONER: It pretty well is, is it not?

PN421

MR BUKARICA: Well, I don't demur from that proposition, but what I - - -

PN422

THE COMMISSIONER: What I'm saying to you is that if there was correspondence that could be handed up that you'd written on the first of each month to the company saying, "We desire to meet with you to discuss a collective agreement," and you'd received either a negative response or no response at all, then that would be evidence in my book of trying.

PN423

MR BUKARICA: Yes. It could possibly be one form of evidence, Commissioner. Of course, merely sending a letter to another party is not necessarily indicative of a genuine attempt, if I can - - -

PN424

THE COMMISSIONER: It is if they tell you to get lost or ignore your letter.

PN425

MR BUKARICA: Well, we say, Commissioner, that they effectively told us to get lost in, to use your terms, on 20 March 2007.

PN426

THE COMMISSIONER: 7, yes.

PN427

MR BUKARICA: And in other related matters have indicated their positions and sent - - -

PN428

THE COMMISSIONER: Which satisfies (a).

PN429

MR BUKARICA: Which satisfies (a), but I put to you this, Commissioner, if I am not convincing you, I apologise, but the test in section - - -

PN430

THE COMMISSIONER: Well, somebody is not going to convince me.

PN431

MR BUKARICA: Of course. So the test in section 461(1)(b) is really a test about the state of mind of the applicant, the intention or the state of mind of the applicant. We say that the union is genuinely trying to reach an agreement. It may not be - the manner by which we're pursuing that end may not be conventional in the sense that one would expect that in a normal industrial context there would be actual formal meetings and people sit around the table and discuss in a civilised way the prospect of a union collective agreement, but this is not an ordinary industrial context and the union is pursuing a genuine legitimate and, we submit, legal approach to persuading the company to sit around the table and negotiate.

PN432

We say that does satisfy the test in section 461(1)(b) and I'm afraid I can't, beyond that, help the Commission.

PN433

THE COMMISSIONER: No, I'm sorry and I won't bash you any further about the point either.

PN434

MR BUKARICA: If the Commission pleases, they are our submissions.

PN435

THE COMMISSIONER: Do you have anything, Mr Ludeke, you wish to add?

PN436

MR LUDEKE: Commissioner, if I get another go, I'm happy.

PN437

THE COMMISSIONER: Very briefly, if anything's arisen, I'd just try and close all necessary avenues.

PN438

MR LUDEKE: Very briefly indeed, Commissioner, I will follow the direction there. Tyco can afford to be distinguished very easily on this basis that the Commission there is dealing with the issue of prohibited content and it was determining whether factually, as I understand it, the prohibited content claim prevented their meeting the genuinely trying test. That is as distinguished from here where the genuinely trying aspect is not inhibited by anything, contentions as to prohibited content. Not inhibited by any other contentions at all. It's simply a matter of what contact has there been? Is that sufficient such as it is to satisfy the test? My friend referred to this being not an ordinary industrial context. Perhaps so, but if the union's alive to that, then it should have been even more alive to the fact that it needed to meet certain particular tests under the Act.

PN439

The union is hardly inexperienced in ballot order applications and it's hardly inexperienced in dealing with employers who, without adopting my friend's submission as to my own client, might be hostile to the union's advances. If the Commission pleases.

PN440

THE COMMISSIONER: Moving through a couple of matters I adverted to earlier, it is my finding that the deficiency and arising deficiencies in the notice of the initiation of the bargaining period are not such as to invalidate that notice. I'm satisfied that the provisions of subsection 461(1)(a) of the Act have been satisfied. I'm not satisfied on what's before me that the provisions of subsection 461(1)(b) of the Act have been complied with. I might say that I make that finding, which I find to be fatal to the ballot application, with a heavy heart. I wonder what ultimate utility there is in the approach being taken by the company. I can't accept the position of the CFMEU that the ballot is to be used in effect to provoke the company into genuinely trying to reach agreement with the union. One must precede the other.

PN441

The application for the ballot is refused, but I make the further observation that I don't find that the company's attitude - and this is not against you, Mr Ludeke, personally - the company's attitude is helpful to employee relations. One would expect that the union will now move to remedy the only error which I found in the application which I would tell you, Mr Ludeke, if the union writes to the company a couple of times and doesn't get any sort of positive response that leads to meetings about this, then I would believe that they have satisfied the subsection 461(1)(b).

PN442

MR LUDEKE: I'll pass those comments on, Commissioner.

PN443

THE COMMISSIONER: And if it's before me, the other matters relied upon wouldn't need to be run again. The application is dismissed.

PN444

MR BUKARICA: Commissioner, if I just could, could I request an expedited transcript in this matter, if it pleases?

PN445

THE COMMISSIONER: Through him.

PN446

MR BUKARICA: Thank you, Commissioner.

PN447

THE COMMISSIONER: We're adjourned.

<ADJOURNED INDEFINITELY [5.37PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 LETTER FROM TOBY BRADBREY OF JOHN HOLLAND MINING PTY LTD TO MR KELLY FROM CFMEU DATED 20/03/2007 PN68
EXHIBIT #CFMEU2 LETTER OF OFFER OF EMPLOYMENT PN111
ERROL RAYMOND HODDER, SWORN PN135
EXAMINATION-IN-CHIEF BY MR BUKARICA PN135
EXHIBIT #CFMEU3 AFFIDAVIT OF ERROL RAYMOND HODDER PN164
THE WITNESS WITHDREW PN171
ROBERT MICHAEL CALOV, SWORN PN173
EXAMINATION-IN-CHIEF BY MR BUKARICA PN173
EXHIBIT #CFMEU4 WITNESS STATEMENT OF ROBERT MICHAEL CALOV PN191
CROSS-EXAMINATION BY MR LUDEKE PN193
THE WITNESS WITHDREW PN230
EXHIBIT #CFMEU5 DRAFT ORDER PN368
EXHIBIT #CFMEU6 SECOND DRAFT ORDER PN369