BP2008/3401, Transcript of Proceedings [2008] AIRCTrans 349 (9 July 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18700-1

COMMISSIONER THATCHER

BP2008/3401

s.451(1) - Application for order for protected action ballot to be held
Australian Municipal, Administrative, Clerical and Services Union
and
IBM Australia Limited
(BP2008/3401)

SYDNEY

10.06AM, THURSDAY, 26 JUNE 2008

Hearing continuing

PN1

MR C HARRIS: I appear on behalf of the Australian Services Union and this is MS N ARROWSMITH.

PN2

MS L RICHARDSON: I seek leave to appear on behalf of IBM Australia Ltd. I have MS M FOSTER with me who is the in-house legal counsel for IBM.

PN3

THE COMMISSIONER: Thank you.

PN4

MR HARRIS: The ASU would like to object to the representation, legal representation.

PN5

THE COMMISSIONER: Are you going to address me on that?

PN6

MR HARRIS: Sorry?

PN7

THE COMMISSIONER: Are you going to address me on that?

PN8

MR HARRIS: Yes. Because there are in-house counsel here and HR representatives from IBM, we think that there's probably nothing that external counsel can really contribute to the application.

PN9

THE COMMISSIONER: Yes, Ms Richardson.

PN10

MS RICHARDSON: My client has received the notice of listing from the Commission at 4.31 pm last night by fax and it didn't actually reach Megan's desk until about 20 or 30 minutes later than that and weren't emailed the application from the ASU until a quarter to five last night, so the first grounds on which I submit to be able to represent IBM is on the basis that there has been little time for my client to prepare for this matter. The other grounds is that these are very complicated sections of the Workplace Relations Act and complex processes and obligations on both parties and therefore I would seek leave to appear on behalf of IBM to address those issues and we will raise a few issues with the application this morning.

PN11

THE COMMISSIONER: Very well, in the light of the submissions and section 100(5), I grant leave for you to appear, Ms Richardson.

PN12

MS RICHARDSON: Thank you, Commissioner.

PN13

THE COMMISSIONER: Yes, Mr Harris. Before I process, I just want to mention that subject to section 456 of the Act the Commission did notify the nominated authorised ballot agent, the Australian Electoral Commission and the Commission did receive, my chambers received a response. I think everybody was copied in, but my associate has got copies and I will just distribute those in case and I will mark this. It's an email from the Australian Electoral Commission of Thursday, 26 June at 8.56 am and I will mark it MFI1.

MFI #1 EMAIL FROM AUSTRALIAN ELECTORAL COMMISSION DATED 26/06/2008

PN14

THE COMMISSIONER: Yes, Mr Harris.

PN15

MR HARRIS: The ASU is seeking an application to hold a protected action ballot for employees at IBM Australia. The reason that we're doing this is because IBM have been unwilling to negotiate with the ASU about a collective agreement. The ASU notified IBM of a bargaining period on 1 May 2008.

PN16

THE COMMISSIONER: Sorry, what date was that?

PN17

MR HARRIS: 1 May 2008.

PN18

THE COMMISSIONER: That is the bargaining period?

PN19

MR HARRIS: That's right. That is the notification of bargaining period and on the same date there was correspondence from the New South Wales branch of the Australian Services Union requesting a meeting with IBM to negotiate and there are copies of that letter here. Do you want those handed up?

PN20

THE COMMISSIONER: This is your case, but if you want to put them in as evidence, I will accept them. I will have a look at them. Very well, I will accept the letter of 1 May 2008 from the ASU headed BP2008/62 notice to initiate a bargaining period.

EXHIBIT #H1 LETTER FROM ASU DATED 01/05/2008 INITIATION OF BARGAINING PERIOD

PN21

THE COMMISSIONER: And I will accept the letter dated 1 May 2008 from the Australian Services Union headed BP2008/62 request for meeting to negotiate.

EXHIBIT #H2 LETTER FROM ASU DATED 01/05/2008 REQUEST FOR MEETING TO NEGOTIATE

PN22

THE COMMISSIONER: So I think, Mr Harris, you were saying that you wrote this letter which is now marked exhibit H2 seeking a meeting to commence negotiations.

PN23

MR HARRIS: That's correct and having received no response by 5 May, we again wrote to IBM Australia to request a meeting and I would like to hand up a copy of that letter as well.

PN24

THE COMMISSIONER: I will accept this letter from the ASU dated 5 May 2008 headed BP2008/62, request for meeting.

EXHIBIT #H3 LETTER FROM ASU DATED 05/05/2008 HEADED REQUEST FOR MEETING

PN25

MR HARRIS: We received a response on 6 May from IBM Australia which was basically a refusal of our request to negotiate.

PN26

THE COMMISSIONER: This is a letter from IBM dated 6 May 2008 to the ASU headed BP2008/62, ASU notice to initiate a bargaining period.

EXHIBIT #H4 LETTER FROM IBM DATED 06/05/2008 TO ASU

PN27

MR HARRIS: So as you can see from the letters that we have provided, the ASU has requested a meeting to negotiate with IBM, to negotiate about an enterprise bargaining agreement. We are seeking on behalf of our members - - -

PN28

THE COMMISSIONER: Are you going to address me on section 461(1) and 461(2)?

PN29

MR HARRIS: Yes. As I was saying, the ASU has written to IBM to set up a meeting to negotiate and that has been refused. We've been seeking to meet to negotiate. We haven't even gotten as far as reaching agreement with the employer, but we've certainly been seeking an opportunity to negotiate about the content of an enterprise bargaining agreement.

PN30

THE COMMISSIONER: That's (a). What about (b).

PN31

MR HARRIS: Well, I mean, we're genuinely trying to reach agreement with
the - - -

PN32

THE COMMISSIONER: Today, you're prepared to meet with them today?

PN33

MR HARRIS: Yes, absolutely, we're prepared to meet with them today and, of course, we're not engaged in pattern bargaining.

PN34

THE COMMISSIONER: Sorry?

PN35

MR HARRIS: We're not engaged in any pattern bargaining of any kind.

PN36

THE COMMISSIONER: I think there is a declaration to that effect, isn't there, with your application?

PN37

MR HARRIS: That's correct, with the application.

PN38

THE COMMISSIONER: Yes, I have noted your declaration.

PN39

MR HARRIS: On these grounds we ask that the application be granted for a protected action ballot.

PN40

THE COMMISSIONER: I think we will leave it there. I might hear from you in respect to the terms of the order later, but I think at this stage I will hear from Ms Richardson.

PN41

MS RICHARDSON: If the Commission pleases. It is submitted on behalf of IBM that there are three fundamental issues in relation to the application for an order for a protected action ballot to be held. Those three issues deal with firstly and this is our fundamental issue that there is a real question about the eligibility of the types of employees whose employment will be subject to the proposed collective agreement as set out in the notice to initiate a bargaining period, so in effect our argument or our concern is that the bargaining period was not validly instituted because the ASU does not have or it does not appear to us that the ASU have valid coverage of the employees employed by IBM the Flight Deck, so that is our fundamental issue with this application.

PN42

THE COMMISSIONER: What are you saying? If they have a member, the member is not eligible to be a member?

PN43

MS RICHARDSON: What we are saying is that there are no employees of IBM Australia at the Flight Deck that are eligible to be members of the ASU under their rules. We have a real concern about that and I can take you through that in more detail and we would say that the ASU actually has the onus to demonstrate that it has at least one valid member that will be subject to the proposed agreement that they seek. Until it can do so, there can be no valid bargaining period as defined in section 423(2) of the Act and as required by section 451.

PN44

THE COMMISSIONER: Perhaps I am a little slow this morning. Just take it a little slower. You said there's three issue. Are you addressing me on the second at the moment?

PN45

MS RICHARDSON: No, this is the first issue, about the question as to whether the ASU - - -

PN46

THE COMMISSIONER: I thought the first issue you were saying was that if they had a member, that member wasn't eligible to be a member under their rules and now you're saying there is no member, so which is it?

PN47

MS RICHARDSON: I am saying that if they have a member, they are not eligible to - one member, they are not eligible under their rules to be a member of the ASU.

PN48

THE COMMISSIONER: So you're not disputing that they have a member? You're just saying if they have a member - - -

PN49

MS RICHARDSON: Correct. Sorry, Commissioner.

PN50

THE COMMISSIONER: If they have a member, the employee is not eligible to be a member?

PN51

MS RICHARDSON: That's correct, yes. The second issue is in response to the submissions by the ASU on section 456(1). I would note and I have authority
to - - -

PN52

THE COMMISSIONER: Do you mean 465? I got submissions on 461. You said 456(1).

PN53

MS RICHARDSON: Apologies, 461, section 461(1) in relation to the Commission must be satisfied of various matters. We submit that the ASU has not demonstrated, it does have the onus to demonstrate to the Commission that it has genuinely tried to reach agreement with IBM and is genuinely trying to reach, that's obviously current attempts, it is currently trying to reach agreement with IBM. We would say that they haven't discharged the onus to demonstrate that and I can talk further about the submissions on that point.

PN54

The third issue that we would raise is that the Commission needs to be satisfied and may refuse the application, so this is, of course, discretionary, if it is satisfied that granting the application would be inconsistent with the objects of division 4 of part 9 and those, of course, are to establish and transfer a process which allows employees directly concerned to choose by means of a fair and democratic secret ballot whether to authorise industrial action, supporting or advancing claims by organisations of employees or by employees and the third issue that we have is really based on our submissions that the ASU has not genuinely been attempting to reach agreement with IBM and that therefore that contravenes the objects of the Act which is obviously to set up a process after negotiations have been taking place and have perhaps reached a point where there's an impasse.

PN55

THE COMMISSIONER: I missed that last bit. If they're not genuinely trying to reach agreement or have not been genuinely trying to reach agreement, that falls within 461(1). 461(2) you're saying to me I should exercise my discretion, notwithstanding 461(1), I should exercise my discretion under 461(2) because there's been no impasse reached, there hasn't been any negotiations.

PN56

MS RICHARDSON: Yes, and that's obviously an alternative claim that we would be seeking if our submissions on 456(1) failed. As I said, they are interrelated in terms of the submissions on the facts.

PN57

THE COMMISSIONER: On the second one, I understand your third one, that is subject to the other ones and I think I understand your first one. I am not quite clear on your second one. He has passed up exhibits and in directly answering my question, he said they are prepared to negotiate today and they're still trying to seek to meet with you today. Are you prepared to meet with them today?

PN58

MS RICHARDSON: I would have to seek instructions about that.

PN59

THE COMMISSIONER: I will give you five minutes.

<SHORT ADJOURNMENT [10.22AM]
<RESUMED [10.37AM]

PN60

THE COMMISSIONER: Yes, Ms Richardson. You were addressing me on 461(1)(b).

PN61

MS RICHARDSON: Yes. Commissioner, we submit that 461(1)(a) and (1)(b) need to be read together, that is that the ASU needs to have demonstrated that it has genuinely tried to reach agreement which we would dispute and that they are genuinely trying to reach agreement. My instructions are that it's probably - nothing will be achieved today by the ASU and my client sitting down together because my client feels that the matter - the current status of the matter is that we have a notice, a purported notice to initiate a bargaining period with claims that are extremely vague. We have had no further discussion on that.

PN62

THE COMMISSIONER: You don't wish to have any discussion by exhibit H4.

PN63

MS RICHARDSON: In relation to those issues, I will just put on the record that we actually have no record of receiving the letter of 5 May. However, it is by the by because we replied on 6 May in any event, but that's just from our records, we have no knowledge of that, but, yes, we did reply on the 6th.

PN64

THE COMMISSIONER: I get the impression from exhibit H4 that your client is really not interested in a union agreement. It prefers to deal directly with its employees.

PN65

MS RICHARDSON: My client is interested in resolving the issues with the most appropriate persons whoever they may be, whether that be - - -

PN66

THE COMMISSIONER: Why don't you just say you don't want a union agreement, because that is what you're saying? You want to have an agreement or something with your employees. You don't want a union agreement. Is that the case?

PN67

MS RICHARDSON: No.

PN68

THE COMMISSIONER: I am getting that impression from the letter.

PN69

MS RICHARDSON: The case is that they want to resolve these issues in the best way for the organisation whether that be by agreement with their employees or whether that be by no agreement under the Act at all or whether that be by a union agreement. At the moment, all we have is a request for a meeting. We've gone back and said that is not our preference. We've had no further contact from the ASU since 5 May. There's been no phone calls, there's been no emails. Our concern is that the ASU has to demonstrate that they are genuinely trying to negotiate, but they haven't taken any action for a month and a half. That is our position.

PN70

THE COMMISSIONER: I am just trying to work out what you would expect them to do when there's a letter that says:

PN71

As such, IBM can see no real need to enter into a formal agreement with your organisation.

PN72

Shouldn't I interpret that to mean we don't want to meet with you because we see no reason - sorry, we see no reason to meet with you or have discussions with you because we can see no real need to enter into an agreement with the union.

PN73

MS RICHARDSON: I don't think that letter says that. I think that perhaps it could be implied into that, but I don't think that that letter says we do not want to meet with you, we don't want to discuss the issues, those sorts of things. I think that this letter could have opened up the ASU to seek those instructions if they did want to negotiate and say, well, we would like to seek a meeting with you. As I said, we do not have that letter of 5 May on our file and we were replying to the notice to initiate a bargaining period.

PN74

THE COMMISSIONER: Well, there's two letters of 1 May and one of them says request for meeting to negotiate and isn't this a response to that letter? Isn't H4 a response to H2?

PN75

MS RICHARDSON: Yes, I am instructed that it is.

PN76

THE COMMISSIONER: Because H1 doesn't say anything about a meeting.

PN77

MS RICHARDSON: No.

PN78

THE COMMISSIONER: So H2 says:

PN79

We would like to organise to meet with you as soon as possible to commence negotiations.

PN80

They write a follow-up. You say you haven't received it, but H4 says:

PN81

In response to your request to negotiate a collective agreement with your organisation ...(reads)... we see no real need to enter into a formal agreement with your organisation.

PN82

So it's not against the law. You don't have to negotiate. I mean, there's plenty of precedent on this. You don't have to negotiate with a union. You can negotiate with the employees directly. It's not unlawful to say to a union, no, we do not wish to negotiate with you to reaching a union agreement, but I don't understand why you just don't say that, because that's the impression I am getting from this letter.

PN83

MS RICHARDSON: I guess perhaps what I am saying is that may be my client's position, but I think it's premature for my client to say that. Our position is - - -

PN84

THE COMMISSIONER: If there is some willingness to consider the option of meeting with the union to discuss whatever the union wants to discuss, that would be a different position. That's why I said is that your position, but I think you said no.

PN85

MS RICHARDSON: Yes, I think I've said no.

PN86

THE COMMISSIONER: So they've said this morning we want to negotiate, we're prepared to meet with you today. You've said no, so why shouldn't I then conclude that the applicant is genuinely trying to reach agreement today and you've said no? It seems pretty straightforward, doesn't it? It's not unlawful to say no.

PN87

MS RICHARDSON: I accept that. As I said, my instructions are and our submissions are that it is premature to say that. It's premature with the history of the correspondence and that's our submission.

PN88

THE COMMISSIONER: If it's premature, why is it premature, because they want to meet with you today. You've said you don't want to meet. You can't go and have a meeting by yourself, so was it premature?

PN89

MS RICHARDSON: Our issue is that no detail has been given in relation to their claims.

PN90

THE COMMISSIONER: That is what you meet for, you meet for that. You don't serve somebody with a thing. You have a meeting and you talk about the issues and you develop - you have developed dialogue where things are exchanged. People might take along their wish list, but the days of serving a log of claims have long gone since WorkChoices. We're now under the corporations power. We don't have to have an interstate dispute. This is collective bargaining, this is not serving logs of claims and finding genuineness and whatever it is. This is about having a meeting. Parties initiate a bargaining period, they say they want to meet, you say you don't want to meet.

PN91

MS RICHARDSON: Absolutely, and as I said before, the meeting - - -

PN92

THE COMMISSIONER: I don't understand why it's premature because - - -

PN93

MS RICHARDSON: The meeting and the negotiations take place within a context where our client is having discussions directly with their employees as well in relation to these issues. They are an important player at the workplace and I think it would be perhaps not unfair, contrary to the Act, but certainly the negotiations should consider all those issues.

PN94

THE COMMISSIONER: Possibly should. That's why you meet and talk about them. That's why you meet. That's why you don't say I see no need to enter into - I asked you the question. He says prepared to meet today, you say not, you don't want to.

PN95

MS RICHARDSON: That's my instructions.

PN96

THE COMMISSIONER: Is that it?

PN97

MS RICHARDSON: I guess what I want to emphasise is our submissions in relation to section 456(1) are secondary to our submissions in relation to the question of the eligibility and what we say - - -

PN98

THE COMMISSIONER: No, if we're going down that track, I need submissions from you both on that and I would propose to adjourn and resume at say 2 o'clock or something like that to give everybody time to prepare for that. That requires some consideration and some meaningful submissions by each of you.

PN99

MS RICHARDSON: We agree, certainly.

PN100

MR HARRIS: We have copies of the rules of the union. We would like to clarify this issue without the need to adjourn.

PN101

THE COMMISSIONER: What do you want to say?

PN102

MR HARRIS: The issue of eligibility, we could make submissions on that now.

PN103

THE COMMISSIONER: You would have to wait to hear the objection, I think, because how would you know what the objection is? I am not sure. Can you give us an outline of what the objection is?

PN104

MS RICHARDSON: Certainly.

PN105

THE COMMISSIONER: Just give us a thumbnail - I think my preference will be to have a short adjournment.

PN106

MS RICHARDSON: The notice to initiate a bargaining period identifies all employees of IBM Australia at the IBM Flight Deck. There are two distinct positions at IBMs Flight Deck and they are systems operators and batch operators.

PN107

THE COMMISSIONER: You're going back to the validity of the bargaining period initiation, are you?

PN108

MS RICHARDSON: Yes. We say that the ASU cannot initiate a bargaining period under section 423(2) of the Act in respect of a collective agreement to which it cannot be a party to. The ASU cannot make a collective agreement under section 328 of the Act because it does not have or cannot demonstrate - I should rephrase that. We have a question that it cannot demonstrate that it has at least one member that will be subject to the proposed agreement and is entitled to represent the industrial interests of that member and the ASU cannot apply for a secret ballot to be held under section 451 if there is no valid bargaining period, so we say that is how - - -

PN109

THE COMMISSIONER: Let me get this right. You say there couldn't be a valid bargaining period because there couldn't be a valid agreement?

PN110

MS RICHARDSON: Yes.

PN111

THE COMMISSIONER: And because there's no valid bargaining period, they can't - they're not eligible to apply for a secret ballot, that's the general argument.

PN112

MS RICHARDSON: Yes, that's the argument.

PN113

THE COMMISSIONER: What I was asking you for, a thumbnail sketch, you were saying something about that the bargaining period talks about - I am looking at exhibit H1 for ease, (b):

PN114

The types of employees whose employment will be subject to the proposed collective agreement and any other employees who will be bound by the proposed collective agreement -

PN115

It says:

PN116

All employees of IBM Australia at the IBM Flight Deck national operations centre, New South Wales.

PN117

How many of those are there?

PN118

MS RICHARDSON: On my instructions there's approximately 90 - 82.

PN119

THE COMMISSIONER: What are you saying about - I thought you were saying there was two types or something, did you?

PN120

MS RICHARDSON: Yes, I was saying there's two distinct positions in that group of 82 employees.

PN121

THE COMMISSIONER: Two distinct positions?

PN122

MS RICHARDSON: Yes. There are supervisory positions within those two, but two general positions. The first is systems operators, the second is batch operators.

PN123

THE COMMISSIONER: Batch operators?

PN124

MS RICHARDSON: Yes.

PN125

THE COMMISSIONER: And what do you say?

PN126

MS RICHARDSON: What we say about that is that IBM itself is not engaged in the clerical industry. It is engaged in the information technology industry and these employees are information technology staff. They do not work with hardware, they work with coding and programming software. We say that they are not performing clerical work, they are performing information technology work and we say that - - -

PN127

THE COMMISSIONER: Does that apply to both the systems operators and the batch operators?

PN128

MS RICHARDSON: Yes. We say they do not service, maintain, structurally alter, assemble or repair hardware.

PN129

THE COMMISSIONER: Where are you reading from?

PN130

MS RICHARDSON: I am reading from the rules of the ASU.

PN131

THE COMMISSIONER: Do you want to hand that up, if you're giving me a bit of an idea.

PN132

MS RICHARDSON: Pardon?

PN133

THE COMMISSIONER: Are you going to hand that up?

PN134

MS RICHARDSON: Hand up?

PN135

THE COMMISSIONER: What you are reading.

PN136

MS RICHARDSON: I am reading from submissions.

PN137

THE COMMISSIONER: You are reading rules.

PN138

MS RICHARDSON: I can hand up a copy - I would say it is our fundamental position that the ASU has to demonstrate that they have one member. We are consequently engaging in a little bit of educated guesswork in terms of
identifying - - -

PN139

THE COMMISSIONER: It seems why we're here is there hasn't been a meeting. I mean, you could have met with them and said all this. Why do you have to say it in an advocacy/adversarial situation of a court room?

PN140

MS RICHARDSON: The issue was that we didn't receive notification of this until late last night.

PN141

THE COMMISSIONER: Yes, but I said to you, I had an adjournment and it was supposed to be five minutes, I got caught up and it went about 20 minutes and I said are you prepared to meet and you said no, so that's it. I am just asking why, we've got all these questions coming out and my common sense says, well, this would be discussed, wouldn't it? Is there a problem? You don't want to talk to them at all?

PN142

MS RICHARDSON: I can certainly talk to them about this issue. I suppose that we are faced with responding to a formal application upon no notice to us about it and we are responding in kind.

PN143

THE COMMISSIONER: It's not a problem responding to a formal application. My remarks are about the comment that you don't want to meet with them and I am just saying to you isn't it normal for these sorts of issues to be discussed because you might have an agreement, everyone might agree that they are or they are not, I don't know, but we can do it this way if you like.

PN144

MS RICHARDSON: We can have a meeting, but I would very much doubt that we will have a meeting of the minds on this issue.

PN145

THE COMMISSIONER: That might be so.

PN146

MS RICHARDSON: Our submissions are this is a complex issue. This is an issue that requires a little more time from both sides to prepare on.

PN147

THE COMMISSIONER: Well, you have a problem. Don't I have a problem, because I've got to deal with these matters under 457?

PN148

MS RICHARDSON: Yes, but you have to deal with them under 457 whilst taking into account that we have a reasonable opportunity to make submissions.

PN149

THE COMMISSIONER: I am going to deal with it in terms of 457 and the Act, of course. I asked you to give me an outline because I think Mr Harris may not have appreciated - he hopped to his feet and said, well, he thinks he can knock it off now. I said I think I will adjourn it until 2 o'clock to give everybody time to address what the issue is and what you're doing is you're now giving me a bit of an outline so that I can decide whether or not to adjourn it or not, so I think what I've heard you saying at the moment, there's two distinct positions. There's about 82 people. They're systems operators and they're batch operators, but they're two distinct positions or groups. Really, nothing turns on that because you're saying that the ASU is not able to represent one of those, one of those 82 people because they're not performing clerical work within the meaning of the ASU rules.

PN150

MS RICHARDSON: Yes, I would say - - -

PN151

THE COMMISSIONER: We might have to have a bit of evidence. We might be having submissions and a bit of evidence to decide this, because I can't see how this will be cleared up so easily.

PN152

MS RICHARDSON: I would agree, Commissioner, and we say that having raised this issue, that it is the ASUs - it's on the ASU to demonstrate that they have a member.

PN153

THE COMMISSIONER: I asked you that. We're having a bit of trouble communicating, Ms Richardson. I asked you earlier. I said is it that no employee is eligible or is it that - or (2), I picked you up and I said is it that you say they do not have a member and you said, no, it's that they're both interlocked and when it came down, I think I asked the question, so you don't object to the fact that they would have at least one member? It is as to whether the member or members that they have are eligible to be members of the union. That's what you said. That's what I wrote down, anyway.

PN154

MS RICHARDSON: Yes, that's my submission.

PN155

THE COMMISSIONER: Why are we talking about the onus is on them to demonstrate they have a member? That is not the issue you say. You say it's not that they have a member, it's whether they have the coverage to have membership.

PN156

MS RICHARDSON: Yes. I apologise.

PN157

THE COMMISSIONER: We are not going to contest that they have a member. That can easily be resolved. I can get - - -

PN158

MS RICHARDSON: Yes, we are not going to contest that they have a member.

PN159

THE COMMISSIONER: Thank you for clearing that up. I ask you to have regard to section 457 when you respond to my next question, so how much time do you need? Will we resume at 2 o'clock or we resume at 9 o'clock in the morning? You have the choice.

PN160

MS RICHARDSON: What we would seek is some directions in relation to this issue.

PN161

THE COMMISSIONER: I am going to proceed in terms of section 457 so it's not going to be see you in two weeks.

PN162

MS RICHARDSON: Then we would seek some guidance, some directions within the next - for tomorrow's hearing or resumption.

PN163

THE COMMISSIONER: I think you've got to come along with your case, be prepared, bring your witnesses, whoever you want, bring your submissions. I will hear it and depending upon the nature of the evidence which is presented, I will make a decision. That's what I am supposed to do.

PN164

MS RICHARDSON: If the Commission pleases.

PN165

THE COMMISSIONER: So, Mr Harris, what have you got to say? You still want to proceed now, do you?

PN166

MR HARRIS: No, we're happy to adjourn.

PN167

THE COMMISSIONER: It's not about happy. Do you want to adjourn?

PN168

MR HARRIS: Yes, we would like to adjourn.

PN169

THE COMMISSIONER: Thank you. That's all I am trying to ask. I will just check my diary. I propose to adjourn until 10 o'clock tomorrow morning. Can we make it 9.30? Does anyone have a problem with 9.30 tomorrow? 9.30 tomorrow. It will be helpful if you make some - I am not asking for written submissions in the timetable, but I think you should prepare something significant, substantial on this. I take it there's no problems with witnesses. There will be dialogue, if the union needs people to be released from work, you'll have dialogue with the employer. It's not really possible to work out how many witnesses there will be, but I think if we start at 9.30, that shouldn't be a problem.

PN170

Helpful if you can have witness statements, but not obligatory considering the interests of time. Is there any other guidance that I might provide? I think that gives you some time. We have to act with this with a certain amount of urgency. If it was certainly another sort of matter and there was no equivalent of 457, I might ask for written submissions and affidavits, but on this particular one we'll see how we go. We'll do our best and then we'll see how we go tomorrow. There will be an opportunity for each of you to address me on the process after we've seen how we go. Very well, this matter is adjourned until 9.30 tomorrow.

<ADJOURNED UNTIL FRIDAY 27 JUNE 2008 [11.00AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #1 EMAIL FROM AUSTRALIAN ELECTORAL COMMISSION DATED 26/06/2008 PN13
EXHIBIT #H1 LETTER FROM ASU DATED 01/05/2008 INITIATION OF BARGAINING PERIOD PN20
EXHIBIT #H2 LETTER FROM ASU DATED 01/05/2008 REQUEST FOR MEETING TO NEGOTIATE PN21
EXHIBIT #H3 LETTER FROM ASU DATED 05/05/2008 HEADED REQUEST FOR MEETING PN24
EXHIBIT #H4 LETTER FROM IBM DATED 06/05/2008 TO ASU PN26