BP2008/100, Transcript of Proceedings [2008] AIRCTrans 301 (24 June 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18620-1

COMMISSIONER ROBERTS

BP2008/100

s.451(1) - Application for order for protected action ballot to be held
Construction, Forestry, Mining and Energy Union
and
Hunter Valley Earthmoving Company Pty Ltd
(BP2008/100)

SYDNEY

3.06PM, TUESDAY, 10 JUNE 2008

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN SYDNEY

PN1

MR K ENDACOTT: I appear for the Construction, Forestry, Mining and Energy Union, Mining and Energy Division and with me at the bar table is
MR P JORDAN who is a vice president of that division of the union and further to my right is MR L ROBERTS who is the CFMEU Liddell Open Cut Lodge President.

PN2

THE COMMISSIONER: Okay. And we have appearances via telephone as well.

PN3

MR COONAN: Yes.

PN4

THE COMMISSIONER: Away you go.

PN5

MR S BARNETT: Sorry, I didn't know that I was actually appearing. I am the independent appointee.

PN6

THE COMMISSIONER: No, you're not appearing.

PN7

MR BARNETT: That's what I thought, yes.

PN8

THE COMMISSIONER: No, I'm looking for Mr McPherson and Mr Coonan.

PN9

MR M COONAN: Yes, Commissioner. I appear on behalf of Hunter Valley Earthmoving and with me is MR R MCPHERSON: I seek leave, if the Commission pleases, and I'd also like to be heard on a request for an adjournment.

PN10

THE COMMISSIONER: Okay. Is leave opposed?

PN11

MR ENDACOTT: Leave is not opposed.

PN12

THE COMMISSIONER: Leave is granted. Do you have any objection to me hearing the adjournment application?

PN13

MR ENDACOTT: No, I haven no objection to you hearing the adjournment application.

PN14

THE COMMISSIONER: You wish the matter adjourned, Mr Coonan?

PN15

MR COONAN: Yes, Commissioner. I understand there has been discussions between Mr McPherson and yourself earlier today and there was discussions between Mr McPherson and Mr Endacott. The position, Commissioner, is that the application was not served on us on Hunter Valley Earthmoving until eight minutes past five on Friday afternoon. The notice of hearing is not to be served until two minutes past five on Friday afternoon notwithstanding that Mr Endacott, as I said, served it - sorry, eight minutes past five when the application was filed at 3 o'clock in the afternoon. So for two hours there was no action by the applicant to bring the matter to the attention of the company.

PN16

As the Commission is aware, it was a long weekend and there's not been able to be any contact with this end until just over an hour ago the briefest of conversations with the personnel at Hunter Valley Earthmoving. So we understand that we refer the Commission to section 457(2) which requires the Commission to give the company a reasonable opportunity to make submissions in relation to the application.

PN17

THE COMMISSIONER: Sorry, what was that section again?

PN18

MR COONAN: 457(2).

PN19

THE COMMISSIONER: Yes, I thought it was, thank you.

PN20

MR COONAN: And Commissioner, it's our submission that we would be given a reasonable opportunity given the short notice in reality. I understand that, as I said, the matters were filed on Friday but I say two things, it was a long weekend and secondly, the union sat on that application for nearly two hours before bringing it to the company's attention. So we would be requesting that an adjournment be given so that we can have a reasonable opportunity to make submissions on this point.

PN21

THE COMMISSIONER: And when would you be seeking an adjournment to?

PN22

MR COONAN: Until tomorrow, Commissioner.

PN23

THE COMMISSIONER: Is that all you wish to say?

PN24

MR COONAN: At this stage, yes, sir.

PN25

THE COMMISSIONER: Okay. Mr Endacott.

PN26

MR ENDACOTT: Thank you, Commissioner. Firstly, Commissioner, the company attends legally represented by a large law firm. The union attends represented by a lay advocate. We would say that there can be no basis upon which an adjournment could be sought on the basis of any - - -

PN27

MR MCPHERSON: My apologies, we're struggling to capture Mr Endacott.

PN28

MR COONAN: It's breaking up, Commissioner, I'm sorry.

PN29

MR ENDACOTT: I'll speak up. Can you hear me now?

PN30

MR MCPHERSON: That's better.

PN31

MR ENDACOTT: Thank you.

PN32

THE COMMISSIONER: Mr Endacott has just been praising your qualifications, Mr Coonan.

PN33

MR ENDACOTT: Yes. I was saying that the company attends today, Commissioner, legally represented.

PN34

MR COONAN: Now I'm really worried, Commissioner.

PN35

THE COMMISSIONER: I would be if I were you.

PN36

MR ENDACOTT: The company attends today legally represented in these proceedings while the CFMEU attends these proceedings represented by a lay advocate so the company can't allege certainly that any adjournment is required on the basis of a disparity in the quality of representation that appears before this Commission. But there's a few things I'd like to add, Commissioner. Firstly, the application was filed on Friday. Today is Tuesday. The company doesn't deny it had the application and actually doesn't appear to assert that it hasn't had the opportunity to prepare for the basis of the application. In fact because of the nature of the weekend and the long weekend the company's had the opportunity to have Friday evening, Saturday, Sunday, Monday and all of today to prepare for these proceedings which is a period normally far in excess, say for example, if the application was filed today they would only have until Tuesday.

PN37

So they certainly can't submit that they haven't had the opportunity with respect to the time that would be normally be afford a respondent in these proceedings. Secondly I'd like this to add, Commissioner, the application was filed. I think the Act provides that a copy of the application needs to be provided within 24 hours. My friend here asserts that it was provided two hours after the application before the Commission was made and seems to imply that there's some lack lustre approach on behalf of the union. Firstly, as I understand it the application was filed I believe at 4 o'clock. There's a time reference I think that the 5 o'clock comes because there's inaccuracy of one hour in our records of our fax machine at the office, so in fact - - -

PN38

THE COMMISSIONER: Well, according to my file if it helps you it was filed at 1456 hours.

PN39

MR ENDACOTT: 1456, so which I think - - -

PN40

THE COMMISSIONER: Four minutes to three.

PN41

MR ENDACOTT: Yes. Well, that's when the matter was filed in the Commission. This is when it was provided to the employer and I understand it was provided - - -

PN42

THE COMMISSIONER: That's where his two hours comes from.

PN43

MR ENDACOTT: Yes, yes. But I understand it was actually provided to the employer at 4 o'clock but there might be some, on the facsimile acknowledgements, some confusion with respect to the time. I also notice that it would have been provided earlier except there was some complications in getting it faxed through because of Hunter Valley Earthmoving's facsimile accepting the material. In any event, whether it's one or two hours from the time it was notified to the Commission we say it was still notified to the employer and served on the employer expeditiously, so that certainly shouldn't weigh in the employer's favour.

PN44

I also note that we also took the opportunity file with the Commission and provide to the employer the affidavit of Stewart Brendan Barnett who is the proposed ballot agent, so they've had lots of time to prepare. It couldn't be said they're caught on the hop with respect to that matter. And I also recall, Commissioner, that on Friday evening I received an email from your associate informing me that your associate had made contact with some from HVE about the proceedings today. So we say lots of time have been provided for the employer to be able to prepare for today's proceedings.

PN45

But I also say this, Commissioner, that the right that exists for an employer is a right to be heard and certainly that right is given by the Commission should the Commission - they're here and the Commission can hear them and therefore that right, the statutory right is available for them. I also note that the statute also puts an extremely tight timeframe upon which the Commission should exercise its powers and 457, the Commission to act quickly in relation to the application states:

PN46

In exercising its powers under this division the Commission must act as quickly as is practicable.

PN47

And we say an application lodged on Friday afternoon being heard today is as quickly as practicable -

PN48

and must as far as is reasonably possible determine the application made under this division within two working days after the application is made.

PN49

Now, two things that fall from that, Commissioner, is the Commission must determine the application within two days and I note my friend here says that they're available tomorrow and they seek an adjournment to tomorrow, but they have not provided any information about what may be their objections to the proceeding or what they may wish this Commission to be heard about with respect to the application. Without that we would say the Commission shouldn't grant any adjournment, certainly the adjournment that's sought. I mean it could be that they have no objection to the application even though they'd had it since Friday and we would say that the Commission should have the right to request that but my friend should he wish the Commission to seriously consider his application for an adjournment should have put that to the Commission.

PN50

I just stress the point, they haven't detailed anything that they wish to bring evidence about or wish to challenge in which an adjournment is necessary. In fact the one conversation that's referred to by Mr Coonan that I had with Mr Robertson earlier today I wasn't sure that there was any basis or point in which he relying upon any defect or any material matter that he was required to be heard about that would necessitate the adjournment. I make two further points, Commissioner, and that is that even though not required, on 2 June Mr Jordan informed the company at a meeting that was occurring to negotiate - at the end of the meeting that was occurring while the bargaining period was in effect that he would be making application and they understood that he would be making application. That's Monday last week and we sit here Tuesday, a week later having to challenge the - having to respond to an adjournment.

PN51

Further I say this, Commissioner, unless we know the nature of the issues that wish to be raised Mr Jordan will not be in attendance tomorrow. So certainly there's a whole question of what are the issues they wish to ventilate, what do they wish to be heard about and the difficulty with Mr Jordan being able to, should it be necessary, to give evidence about those matters if the matter is heard tomorrow. So I said two further points and I raised those two further points. There is a third point and that is that we were informed about the adjournment I think some time after lunch. In fact when I was contacted by your office about the matter I was actually almost in Sydney.

PN52

It takes a number of hours for me to travel here and all of the applicants were actually at that time on the road per se and an adjournment would necessitate, you know, reasonable travel. I won't say it's long travel but it's reasonable travel having to be embarked upon again by the applicants and depending on what the company may wish to be heard about there may be no good reason for that. So I'll leave my submissions at that and ask you to dismiss the application for an adjournment, if the Commission pleases.

PN53

THE COMMISSIONER: Mr Coonan in reply?

PN54

MR COONAN: Yes, Commissioner. Taking the point that they came, I'll deal firstly with the rather bizarre argument that because we got the material after closing business on a Friday afternoon before a long weekend that means we've had a better opportunity than we otherwise would have to make a response, well, I'll just respond to that with my comment that the submission is bizarre and I'll come back to that point particularly in relation to Mr Endacott's now own admission about the meeting of 2 June. The second point he raised was in relation to the ability for the parties to be heard and with respect, Mr Endacott has got the Act wrong.

PN55

This is not a matter of the employer be given an opportunity to be heard. 457(2) says that the employer in this case must be given a reasonable opportunity to make submissions. So it's not get a half day's notice and be here prepared with two affidavits and go into cross-examination, look at the claim, get a history of the negotiations and being able to make reasonable submissions this afternoon. It's just not the case. He made reference to the word practicable and again I say it's not the case of the Act does not refer to the employer's opportunity being practical. The Act refers to the employer's opportunity being reasonable and yes, it's practicable, yes, we are here.

PN56

We haven't got the advantage of Mr Endacott of knowing that before 5 o'clock on Friday afternoon that the matter was set down for hearing and he only had to drive down the highway from Newcastle where in this case where the employer's representatives are in Brisbane, then on his own submissions there is a justification for an adjournment on the mere fact of the distance we've had to travel. A third point he raises is this meeting on 2 June. Well, again, with respect, if he knew on 2 June that he was filing an application and he waits until 3 pm on Friday afternoon to file it, then has it served after 5 pm to rely on the fact that we knew on 2 June, well, with respect, the argument turns against him, not for him. The final point - sorry.

PN57

THE COMMISSIONER: Just hold for a moment. If somebody's got a phone on, even if it's on silent it needs to be turned off.

PN58

MR ENDACOTT: Yes, mine's on silent, Commissioner. I'll turn it off.

PN59

THE COMMISSIONER: Okay, continue.

PN60

MR COONAN: Yes, the final point I make is in relation to 457(1) and 457(1) requires that the Commission deal with the matter within two working days. Well, with respect, the two working days does not run out until tomorrow so to have the matter adjourned and heard tomorrow the Commission can still make its decision within two working days as required 457 and as relied on by
Mr Endacott.

PN61

THE COMMISSIONER: Well, that would depend on how long the hearing went but I’m the only available member in Sydney. Perhaps I should say this later, but I am the only available member in Sydney and I must be in Albury by the end of tomorrow so that might impact on the quickly as practical as well, Mr Coonan.

PN62

MR COONAN: Commissioner, I understand that. Could I just have a second with my client? I beg the Commission's indulgence for one or two.

PN63

THE COMMISSIONER: Yes, you may.

PN64

MR COONAN: Thank you, Commissioner.

PN65

MR ENDACOTT: Commissioner, while there's a short adjournment, I might just raise and I didn't refer to this in my submission, is I have a hearing which I intend to appear before Senior Deputy President Hamberger at 10 o'clock tomorrow and I'm not too sure how long that matter will proceed for.

PN66

MR COONAN: Commissioner, I have had a chance to talk to Mr McPherson and without prejudice to our position that an adjournment is necessary we'd make the proposition that if Mr Endacott has driven all that way down from Newcastle in the ..... he can make his submissions today and any evidence from Jordan or anybody else he needs to call. The matter could then be adjourned for us to make submissions to you by 2 pm tomorrow on any point which we wish to raise and provide copies to the union. I think, Commissioner, that would allow
Mr Endacott to avoid the problems of having to drive down the highway again tomorrow, although I hear he's before the Commission at 10, so unless that's in Newcastle he'll be down here anyway.

PN67

So we make that alternative submission that - sorry, the primary submission is that the matter be adjourned until tomorrow but a secondary submission that if the Commission is not minded to adjourn it to have Mr Endacott ready in case this afternoon and allow the employer until 2 pm tomorrow to make any submissions in writing. May it please the Commission.

PN68

THE COMMISSIONER: Do you intend to call evidence?

PN69

MR COONAN: Commissioner, that I don't know because we haven't had the chance to - I can say this, that on a very quick scan and a very brief discussion this afternoon there's probably two points about prohibited content but that's more likely to be in cross-examination than in examination-in-chief or primary evidence.

PN70

THE COMMISSIONER: Although I'm sure it's not intended in this way,
Mr Coonan, it does appear that it leaves us open to possibly a lengthy delay, one which I couldn't countenance. If you responded tomorrow to say that you need to call evidence I'm just not in Sydney until Friday again.

PN71

MR COONAN: I understand, Commissioner.

PN72

THE COMMISSIONER: I mean I would be attracted somewhat to your proposal if I had information from you that you're definitely not going to call evidence.

PN73

MR COONAN: No, Commissioner. The only evidence I have is in relation to, as I say, for cross-examination of the bargaining notice and the matters in negotiation so far, the possibility of two matters are prohibited content and as I said, I would get that from cross-examination. I wouldn't need evidence of that.

PN74

THE COMMISSIONER: So you're telling me there will be no evidence from your side?

PN75

MR COONAN: Well again, Commissioner, subject to me being able to cross-examine and I know Mr Maher - - -

PN76

THE COMMISSIONER: You'll get a chance to cross-examine.

PN77

MR COONAN: Yes, that's correct.

PN78

THE COMMISSIONER: By telephone.

PN79

MR COONAN: Yes. Well, yes, on that basis, yes, sir, there will be no evidence-in-chief from the employer in this matter.

PN80

THE COMMISSIONER: I'm somewhat moved towards your position but I'll hear from Mr Endacott.

PN81

MR ENDACOTT: Thank you.

PN82

THE COMMISSIONER: Not about the 2 pm, that's too late for me, but apart from that.

PN83

MR ENDACOTT: Well, I mentioned in my submissions that Mr Jordan wouldn't be - that he wouldn't be available to give evidence tomorrow. I also mentioned, Commissioner, that the company had a detailed - - -

PN84

THE COMMISSIONER: Sorry, that he would not be able to?

PN85

MR ENDACOTT: No, tomorrow he wouldn't be available to give evidence.

PN86

THE COMMISSIONER: We are talking about him giving - - -

PN87

MR ENDACOTT: Yes. No, I realise it - I was wishing to continue with an explanation and that was that also detail that we don't know the basis upon which the company was objecting. Now we know that there might be two points of prohibited content. In this regard a declaration has been filed as required by the Act and regulations by Mr Maher that there is no prohibited content. So in that regard it's not our intention to put Mr Jordan on the witness box so we're quite happy to proceed right now and - - -

PN88

THE COMMISSIONER: Do you have any evidence?

PN89

MR ENDACOTT: Yes, I do.

PN90

THE COMMISSIONER: Witnesses I mean.

PN91

MR ENDACOTT: I have evidence in the form of - - -

PN92

THE COMMISSIONER: No, witnesses.

PN93

MR ENDACOTT: No.

PN94

THE COMMISSIONER: So no witnesses from you, no witnesses from them.

PN95

MR ENDACOTT: But I do say this, it is our intention to tender the affidavit. I've already served the affidavit on the Commission and the company of
Mr Barnett. We would just seek that to be formally presented into evidence.

PN96

THE COMMISSIONER: Would you have a problem with the affidavit of
Mr Barnett, Mr Coonan?

PN97

MR COONAN: Commissioner, that's a typical lawyer question - sorry, a typical question for a lawyer to answer is yes and no. Other than that there's some misconception in the correspondence between whether union members only are going to vote or all employees who are to be covered by the agreement, none of that is actually is in Mr Barnett's affidavit or in the correspondence and the notification itself about who is going to be voting to be covered by the agreement. So on that basis, no, no challenge to Mr Barnett's affidavit.

PN98

THE COMMISSIONER: Okay. Look, on that basis and given the urgency today of moving along I intend to hear the CFMEUs application now. I would require any material from you, I will give you a chance to make initial submissions in reply today and further written submissions tomorrow, but I'll need the by 12 noon.

PN99

MR COONAN: Yes, Commissioner. Sorry, there is still the point, sir, about - I wasn't quite sure, did Mr Endacott say Mr Jordan was or was not going to give evidence?

PN100

THE COMMISSIONER: Nobody is giving evidence. There will be no witness evidence, as I understand. Mr Endacott is nodding.

PN101

MR ENDACOTT: Yes, that's correct.

PN102

MR COONAN: The problem that I have, Commissioner, is my client tells me there has been two matters of prohibited content being pushed in these negotiations, one in relation to union meeting times and the second one in relation to indirect discrimination in the redundancy provision where the union is pressing for last on, first off. So unless I can get an admission from Mr Endacott whether those matters are - or Mr Jordan that those matters are or are no being pushed, then we may need evidence.

PN103

THE COMMISSIONER: I'll hear from Mr Endacott.

PN104

MR ENDACOTT: Your Honour, my friend said that he wasn't bringing any evidence and now it appears he is.

PN105

THE COMMISSIONER: No, he's not. He's saying that he wants an undertaking about those matters.

PN106

MR ENDACOTT: Well, I'm actually not sure exactly what he's talking about to tell you the truth.

PN107

THE COMMISSIONER: Can you repeat it, Mr Endacott - Mr Coonan?

PN108

MR COONAN: Yes, Commissioner. It's his application and his information ..... notice so if he's not aware of it I'll draw his attention to it. I think it's item 60 of the bargaining notice which refers to unpaid leave to attend union meetings and in the log of claims filed by the union and I stand corrected but I think it was the third meeting where the union is pressing for redundancy to be based on the - or selection for redundancy to be on the last on, first off principle, which we say is indirect discrimination based on age and is therefore contrary to prohibited content regulations and matters pertaining. So that's our position on the two points, Commissioner.

PN109

THE COMMISSIONER: Do you want a moment, Mr Endacott?

PN110

MR ENDACOTT: Well, with respect to unpaid union leave that's not prohibited content. Paid union leave is prohibited content. My friend should know that as a lawyer. With respect to the second point and that is that the principle of last on, first off provides for indirect discrimination, well, I say this, I'm not sure it does provides for indirect discrimination and certainly if that's the submission they wish to make the company is going to have to bring evidence about that people basically were employed based upon their age and that as a consequence of time that provides for indirect discrimination and certainly it hasn't been raised in the negotiations. But if they wish to provide that empirical data during the negotiations certainly it's not the intention of the parties ever to indirectly discriminate against any component. But it hasn't been raised and unless you actually look at the data behind it you can't form a conclusion about that.

PN111

But if the company is now saying that it may act in that way, which I understand has never been asserted previously, we'll certainly look at that data. I mean we would be quite happy to look at that data. But without that I can't say - the only comment provided with respect to redundancy by the company is claim 11 is not agreed in writing, provided in correspondence tendered to the union on 2 June 2008.

PN112

THE COMMISSIONER: Okay. I now intend to hear the application on the basis, just to repeat myself, that you, Mr Coonan, to make an initial verbal reply after Mr Endacott's presented his case and you'll also have the opportunity to provide written submissions but I must receive them no later than noon tomorrow.

PN113

MR COONAN: Thank you, Commissioner.

PN114

THE COMMISSIONER: And that's purely and simply to allow me to finish this matter within the 48 hours provided for in the Act. Away, Mr Endacott.

PN115

MR ENDACOTT: Thank you, Commissioner. The Commission has before it an application under 451 for a proposed action ballot to be held. The application is by the CFMEU and the application is made - and the application seeks from the Commission that an attendance ballot be held of relevant employees employed by Hunter Valley Earthmoving Pty Ltd, which I'll refer to either as Hunter Valley Earthmoving Pty Ltd or as the company at the Liddell Open Cut Coal Mine. The mine, which I'll refer to either as the open cut coal mine or the mine, Commissioner, to determine whether the proposed industrial action has the support of the employees.

PN116

The CFMEU has standing to bring the application under section 451 having initiated a bargaining period under section 423 of the Act for the purpose of negotiating a collective agreement with the company. A copy of the notice to initiate the bargaining period is attachment A to the application, Commissioner. The notice was served on 22 May 2008 in accordance with section 427. The bargaining period commenced on 30 May 2008. The registry has designated the bargaining period as file number BP2008/83. Commissioner, I just wish to say a bit about the approach that should be taken by the Commission with respect to these matters.

PN117

The application is made under part 9 of division 4 of the Act. The object of the division is set out at section 449 as follows, this is 449(1), Commissioner:

PN118

The object of this division is to establish a transparent process which allows employees directly concerned to choose by means of a fair and democratic ...(reads)... of employees or by employees.

PN119

The explanatory memorandum to the Bill, Commissioner, which introduced these provisions, the Workplace Relations Amendment WorkChoices Bill 2005, deals with the objects at item 1393 in relation to the following terms:

PN120

This section would establish that the objects of the new division is to provide employees with access to a process of fair and democratic secret ballots to determine whether protected industrial action should be taken.

PN121

The provisions are designed to be facilitative, ie, to provide the means for accessing protected industrial action, not prohibitive, ie, to outline the circumstances in which such action is not available. I do just note, Commissioner, and the Commission would be aware of this, that there has been amendments to the Bill as a result of the change of governments and introduction of some transitional arrangements. These provisions I refer to weren't changed as a consequence of those provisions.

PN122

Now, I go to the draft orders and directions, Commissioner. I ask them to be marked for information. They were e-filed in the Commission on 6 June 2008, and you'll see there is a draft order and a form conducting for ballot, and then a further order, which I'll deal with later, to have Mr Barnett appointed as the bargaining agent, and materially for him to compile the roll. Those orders, and I'll just draw - sir, you may wish to mark those, Commissioner.

PN123

THE COMMISSIONER: I'll just find the documents. I think we'll mark it as an exhibit Mr Endacott.

EXHIBIT #CFMEU1 DRAFT ORDER SUBMITTED BY UNION

PN124

MR ENDACOTT: I do note that I also, with respect to e-filing, I also had a Word copy emailed to your associate in case the Commission was inclined to make the orders and desired to amend those. I do note, Commissioner, that I tried to pick off a standard format, pick up a standard format that's applied by the Commission, as I do know different Commissioner do word them slightly, and I can't recall which specific order I used to model this one on, Commissioner.

PN125

Now, with respect to the draft orders that have been sought, Commissioner, we say the draft orders comply with section 463 of the Act, which is entitled Matters to be included in orders, and we say that in that it names the applicant, the CFMEU, it identifies the type of employees to be balloted, employees who are production engineering employees employed by the company at the mine. It identifies that the ballot be held by attendance ballot. It sets out the timetable for the conduct of the ballot and meets the requirements of paragraph 463(1)(d) by setting the closing date for the roll of voters, which is a day, at least two working days before the date which the ballot is to start. It also sets a day on which the ballot is to close. It names the person the union proposes to be authorised to conduct the ballot, Mr Stuart Brendan Barnett, and I'll deal with that matter a little later on, Commissioner.

PN126

THE COMMISSIONER: You submitted a draft order relating to Mr Barnett did you not?

PN127

MR ENDACOTT: Well, I submitted a draft order which is the order 2, which orders him to compile the roll. The actual order that provides that Mr Barnett be the authorised ballot agent I believe is provided in CFMEU1, what I'll say is the substantial order.

PN128

THE COMMISSIONER: Well, I'll treat the draft orders in globo that you've sought to comprise CFMEU1.

PN129

MR ENDACOTT: Yes. Section 463(2) we also submit that there is no need and the union does not seek the appointment of an independent adviser, so none's been named, and we say the order sets out the four questions to be put to the relevant employees in the ballot, and those questions include the nature of the proposed industrial action. Now, if the Commissioner looks at the application the Commission will be familiar with that type of terminology. The union, the mining and energy division of the union always seeks to set out the questions with some degree of precision so that the action that's to be - and these are questions 1 to 4 - the action to be taken by the employees if authorised is well known and understood. And you'll see that it provides for 13 hours stoppages of work, 37 hours stoppages of work, 72 hours stoppages of work and a ban on non rostered overtime.

PN130

THE COMMISSIONER: These are each one hour stoppages?

PN131

MR ENDACOTT: I beg your pardon?

PN132

THE COMMISSIONER: They're one hour stoppages are they?

PN133

MR ENDACOTT: No. One's 13 hour stoppages, so there's one 13 hours stoppages but multiple stoppages, if you look at question 1.

PN134

THE COMMISSIONER: Yes.

PN135

MR ENDACOTT: So if you elect to use that then - - -

PN136

THE COMMISSIONER: I see, 13 hours, yes.

PN137

MR ENDACOTT: Yes. And it's the standard format that's adopted, Commissioner. Now, subsection 463(2) requires the Commission to specify a ballot unless it is satisfied that the attendance ballot proposed is more efficient and expeditious than a postal ballot. Now, with respect to that we say this, Commissioner. The mine is at Liddell, it's located remotely from Sydney. The employees work what we submit is extended shifts. The application deals with the shifts that are required to be worked, and that is, the mine operate on a three panel, five and a half day rotation day/night roster of 12 and a half hours, and because of the strict timetables that exist, that the ballot should be conducted within 10 days, then attendance ballot is the best method at which a vote could occur.

PN138

There's a question that if the postal ballots occurred whether or not it will occur in the timeframe. And the other point which the Commission would be aware of, is that it is common for coal mines remote in the northern districts for them to occur by attendance ballot. Mr Hodder normally performs that. Mr Hodder is overseas at the moment, that's why Mr Barnett's been proposed as the authorised ballot agent on this occasion. And a reality does exist that if a postal ballot occurs then people may not cast the vote because of the shift structure they work and the time it requires for them to send and receive post.

PN139

And also the Commission would be aware, because it's been submitted many times to the Commission and would fall within the knowledge of the Commission, that the CFMEU mining and energy division is a democracy, and that there is a practice amongst employees at this operation, as with all, to vote on officials' positions, policies that are required under the rules via attendance ballot. That's the way that they normally conduct those votes.

PN140

We understand that there's been no guidelines for ballot timetables developed under section 464, so I don't wish to draw the Commission's attention to that. And you'll also see, Commissioner, that the orders that have been sought are in the form described in paragraph (b) of subsection 464(1), and that the company provides a list and the names and addresses of relevant employees to Mr Barnett and the list be provided in electronic form to Mr Barnett's email address. And the union also seeks an order that Mr Barnett comply with the role of voters, and the union seeks a direction that the Commission grant access to Mr Barnett to make available appropriate facilities to conduct the ballot. That direction is sought under 458(1)(b).

PN141

Now, I will just quickly go back to and expand further on the approach to be taken with respect to the ballot. Certainly it has been determined by the Commission on a number of occasions about the questions to be put, and we say that these were discussed in National Union of Workers v Blue Circle Transport Pty Ltd, PR973654. Further, in AMWU v Amcor Packaging Pty Ltd, PR973236. Both of those talk about the specificity of the questions to be put, and certainly the questions to be put by - the questions sought to be put, Commissioner, by the orders that are sought are in a form far more specified than those we're considering and, in fact, they are very similar in form to those approved by the Commission in CFMEU v United Collieries, PR972190, and many other applications before this Commission.

PN142

In fact at this stage I should mention, in that's it's the standard form. Now, the question is about has the union generally sought the agreement? That's an issue the Commission must put its mind to. We would say that there is an application - the Commission has the application before it, attached to the application is the initiation of the bargaining period. The union has had both prior to and after the bargaining period negotiations with the company. I'm informed, Commissioner, that those negotiations occurred on 17 March 2008, 2 April, 17 April, 5 May,
12 May, 19 May and 22 May and 2 June 2008, albeit that the only negotiations that have occurred after the bargaining period came into effect was 2 June, but those negotiations have been genuine. I don't think there's an allegation from the company that they're not, and they don't intend to bring evidence that the negotiations haven't been genuine. We say that meets the test required by the Act.

PN143

With respect to prohibited content, your Honour, there is the declaration signed by Mr Maher as required that's attached that no prohibited content has been sought in the negotiations, and we stand by that. So for the purposes of whether or not the application meets the requirements that are required of the Act, we submit they have. We further submit that there has been - there's a bargaining in place, there has been a process of genuine negotiations and that there's been no prohibited content.

PN144

We say that with respect to the attendance ballot that the application has been prepared in a manner that is normally - the orders have been prepared in a manner that's normally afforded by the union under the circumstances of this in coal mining and that the required tests have been met. Mr Maher has provided as an attachment to the application the necessary declaration that he's authorised by the committee of management as is required, and we say that should be sufficient - that's attachment B - to make the application.

PN145

Sir, this leads me to what is the final point that I haven't made a detailed submission on, Commissioner, concerning the application, and that is the appointment of Mr Barnett as the authorised ballot agent. Mr Barnett is a lawyer and is a solicitor that is admitted to practice in the Supreme Court and the High Court. Mr Barnett has provided an affidavit to these proceedings, and I ask those affidavits be marked.

PN146

THE COMMISSIONER: When were these affidavits submitted?

PN147

MR ENDACOTT: They were e-filed on Friday.

PN148

THE COMMISSIONER: With the application?

PN149

MR ENDACOTT: No. They were e-filed after the application. They were e-filed - - -

PN150

THE COMMISSIONER: We don't have them on the file. Just pause for a moment. We have to adjourn for a few minutes to try and find some of the documents.

PN151

MR ENDACOTT: Thank you.

<SHORT ADJOURNMENT [3.52PM]
<RESUMED [3.59PM]

PN152

THE COMMISSIONER: I have the documentation Mr Endacott.

PN153

MR ENDACOTT: Thank you, Commissioner. I ask that it be open - Mr Barnett is on the line, I ask that to be marked in evidence. I notice in saying this it's been sworn as an affidavit and has been executed by Mr Barnett and witnessed by a justice of the peace.

PN154

THE COMMISSIONER: Yes. Any objection Mr Coonan?

PN155

MR COONAN: Commissioner, I say that on both exhibits unless the material that's being exhibited now are the materials that are attached to the application, while there are changes to both of them. I understood Mr Endacott thought there were some changes to CFMEU1 which we might not have, and I just want to clarify.

PN156

THE COMMISSIONER: What are the changes? I didn't note any changes to CFMEU1.

PN157

MR ENDACOTT: No, there are no changes to CFMEU1 to that that was - or we say was filed in the Commission and what that was provided to the employers, so in that regard there are no changes to that. With respect to Mr Barnett's affidavit which we ask to be marked now, you'll see, Commissioner, that that is an affidavit that's been signed I think on each page, or certainly the affidavit's been signed. I haven't made any changes to that document.

PN158

THE COMMISSIONER: Are there any changes that you need to make to your affidavit Mr Barnett?

PN159

MR BARNETT: Yes please. At sheet 11, paragraph 22 subparagraph (d) I wish to delete the words "United Collieries Pty Ltd" and insert the words "Hunter Valley Earth Moving Company Pty Ltd at it's Liddell open cut mine" that representing a typographical error that I hadn't picked up on.

PN160

THE COMMISSIONER: Okay. And that's the only change?

PN161

MR BARNETT: That's the only change.

PN162

THE COMMISSIONER: Are you happy with the affidavit now Mr Coonan?

PN163

MR COONAN: I wouldn't use those words, Commissioner, but I have no objection to the affidavit being received as an exhibit.

PN164

THE COMMISSIONER: Good, thank you.

EXHIBIT #CFMEU2 AFFIDAVIT OF STEWART BARNETT

PN165

MR ENDACOTT: Thank you, Commissioner. I don't intend to go through the affidavit of Mr Barnett in any great detail, but you will notice that the affidavit deals with, we submit, all those elements required by the Act and regulations for conducting a ballot in accordance with the Act and regulations. I do not that throughout the affidavit it talks about subject obviously to the orders of the Commission. I further note that Mr Barnett has consented to our nomination as it were, that he has certainly been involved in the preparation of the timetable.

PN166

I note that Mr Barnett addresses those issues we say, Commissioner, required for the Commission to be satisfied as the Commission's required under section 480, and that is, the Commission must not name a person other than the Australian Industrial Relations Commission as an authorised ballot agent for a ballot unless the Commission is satisfied that the person is capable of ensuring the secrecy and security of the votes cast by the ballot.

PN167

THE COMMISSIONER: I take it you meant to say Australian Electoral Commission.

PN168

MR ENDACOTT: Yes, I did.

PN169

THE COMMISSIONER: Is capable of ensuring the secrecy and security of votes cast in the ballot, is capable of ensuring that that ballot would be fair and democratic, will conduct the ballot expeditiously and is otherwise a fit and proper person to conduct the ballot. And we say that each element of the affidavits deals with those elements to satisfy the Commission. I just take the Commission specifically to, starting at paragraph 11 of his - point 11 of his affidavit. It says "I am otherwise a fit and proper person to conduct a ballot." And he goes through his employment history. I also note that he currently holds the following qualifications, a Bachelor of Law, he's a solicitor of the Supreme Court of New South Wales admitted to practice in the High Court of Australia, a Notary Public, and he's an accredited specialist in personal injury law by the Law Society of New South Wales.

PN170

The Commission would be aware that being a solicitor in New South Wales, and I believe in Australia, this places certain professional obligations upon the individual in which they can be barred and subject to review. We say that seeking a person that's legally qualified and also with the practising certificates in the form of a solicitor of the Supreme Court and admitted to practice in the High Court that he's capable of performing that role and being sufficiently independent and meeting those tests.

PN171

I further note commencing at paragraph 17, Commissioner, that he deals with his fitness, and even though it doesn't say that, commencing at paragraph 17, that it's in response to those elements, each of those elements are the ones that are required to be considered for the purposes of the regulations when it says the qualifications of appointment, and that is, as I understand it, the person is not permitted to have been a bankrupt, is not to take the benefit of any law for the relief of a bankrupt insolvent, has not been convicted of an offence against a commonwealth state or territory, (d) I'll use Mr Barnett's words in his affidavit:

PN172

I have not been subject to any order by the court in relation to a civil remedy provision in connection with the negotiations of a workplace agreement, a state agreement under a state law. I have not been convicted of an offence under the Workplace Relations Act 1996, the criminal code.

PN173

So we say in that regard that he's a fit and proper person. You will note that Mr Barnett acknowledges in his affidavit that from time to time he's acted for members of the CFMEU mining and energy division in his capacity as solicitor, however that his relationship is one of solicitor and client. He also notes that he has acted for the CFMEU mining and energy division northern district branch in his capacity as a solicitor. He notes that he's not on a retainer and that his relationship with the organisation is solely in the nature of solicitor and client. And we would say that a solicitor having acted for someone wouldn't automatically without more lead to any view being formed that that person was favoured their client in any particular way. They have certain professional obligations to each client. So we say that the Commission is capable of being satisfied that they're sufficiently independent.

PN174

So we say in that regard Mr Barnett is an appropriate person to be appointed as a ballot agent. That leads me to probably the last point, your Honour, and that is as I've identified, or Mr Jordon has identified, there is a typographical error in CFMEU1, the questions to be put, at question 3. In that question 3, if you look at the last line, your Honour, it says "Authorise industrial action in the form of 73," and then it's got in brackets (72) in numbers, "hours stoppages of work." Well, in fact that is 73. So where it says 72, the number 72, it's meant to be the number 73. I can explain how that came about, but in essence you'll notice that 72 hours is three days, but because of the nature of how maintenance starts and it's 12 and a half shifts it actually needs to be a 73 hour stoppage to ensure that there's consistency about the start and the end of the shift, and that's why it ended up being accidentally 72 hours is referred to in numbers, and 73 referred to in words.

PN175

We ask the Commission to find in favour of the application, to find that the test required by the Act and the regulations have been met, and we ask the Commission to make the orders in the form sought. If the Commission pleases.

PN176

THE COMMISSIONER: Thank you. Mr Coonan, in initial reply if you wish?

PN177

MR COONAN: No, Commissioner. I'll keep the powder dry and we'll put our submissions in reply in writing. I thank the Commission for the opportunity.

PN178

THE COMMISSIONER: Now, I take it that if after you've had further opportunity to examine the application to consider Mr Endacott's submissions and the exhibits, if those who instruct you decide to agree with the issuing of the order you'll advise me as early as possible without waiting for 12 noon tomorrow?

PN179

MR COONAN: Yes, Commissioner, I have those instructions.

PN180

THE COMMISSIONER: Okay, but in any event no later than 12 noon tomorrow.

PN181

MR COONAN: Yes.

PN182

THE COMMISSIONER: What I intend to do is this. After considering your material I do have the time problem of needing to get to Albury, an I'm conscious of the requirement in the Act for the two working days, so I will issue a brief decision one way or the other. Further reasons for decision will be published if the parties require them. We're adjourned.

PN183

MR BARNETT: Sir, before you adjourn?

PN184

THE COMMISSIONER: Yes, we're not adjourned.

PN185

MR BARNETT: Consequent to Mr Endacott's amendment towards the end of his submissions there will be a consequential amendment to the proposed ballot paper at question 3.

PN186

THE COMMISSIONER: I think you've saved me from an error here. There's something I wanted to ask him as well. Yes, question?

PN187

MR BARNETT: Three.

PN188

THE COMMISSIONER: Three, yes.

PN189

MR BARNETT: We'll need to delete the words seventy two and insert the words seventy three, and likewise the bracket number will become 73.

PN190

THE COMMISSIONER: Well, on my draft it already says seventy three in words but 72 in figures.

PN191

MR BARNETT: Thank you. Well, they should both read seventy three.

PN192

THE COMMISSIONER: All I'm doing is crossing out 72 to make it simple and inserting 73 in numbers.

PN193

MR BARNETT: Thank you.

PN194

THE COMMISSIONER: Okay. Now, that wasn't the question that I was going to ask you Mr Endacott, but it raises an issue. Given that this matter's not being determined today is there any need to change any of the dates in the draft order?

PN195

MR ENDACOTT: No, there's not.

PN196

THE COMMISSIONER: What about the timetabling for the employer to provide the list?

PN197

MR ENDACOTT: I understand the timetabling for the employer to provide the list - - -

PN198

THE COMMISSIONER: Which might come down to a couple of hours. I take it you ready to have the list up and running by 4 pm Wednesday 11 June, which is tomorrow?

PN199

MR ENDACOTT: Yes, sorry, we are prepared to have the list up and running. In fact there is a list attached to the affidavit, and there was three addresses that were absent, and we've contacted each of those three members just to get their current addresses. So there's no problem for us.

PN200

THE COMMISSIONER: What about the opening paragraph of paragraph 5?

PN201

MR ENDACOTT: This is of the order?

PN202

THE COMMISSIONER: Yes. I'll just read it:

PN203

The employer is to provide to the authorised ballot agent by 4 pm on Wednesday 11 June 2008 a list of employees.

PN204

Et cetera.

PN205

MR ENDACOTT: Yes. Well, that may have to be moved to the next day. With computers these days it's quite a quick process to generate a list.

PN206

THE COMMISSIONER: You might think about that point too Mr Coonan.

PN207

MR COONAN: Yes, Commissioner, we'll be making submissions on that.

PN208

THE COMMISSIONER: If you need a bit more time for that, that won't be a problem from my perspective, but it will mean that your draft order would be amended accordingly.

PN209

MR ENDACOTT: Yes.

PN210

THE COMMISSIONER: Am I safe to adjourn now? We're adjourned.

<ADJOURNED INDEFINITELY [4.14PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 DRAFT ORDER SUBMITTED BY UNION PN123
EXHIBIT #CFMEU2 AFFIDAVIT OF STEWART BARNETT PN164