BP2008/3595, Transcript of Proceedings [2008] AIRCTrans 460 (21 August 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18915-1

VICE PRESIDENT LAWLER

BP2008/3595

s.451(1) - Application for order for protected action ballot to be held
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
and
Australian Racing Forensic Laboratory
(BP2008/3595)

SYDNEY

10.20AM, THURSDAY, 07 AUGUST 2008

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

PN1

THE VICE PRESIDENT: Mr Prince, there's been a relatively recent Full Bench decision that has dealt with this issue of the misnaming of entities.

PN2

MR S PRINCE: Is your Honour referring to Refined Sugar Services?

PN3

THE VICE PRESIDENT: That's the one.

PN4

MR PRINCE: Yes. I have a copy of that. I assume your Honour has it. I’m just giving a copy to my friend.

PN5

THE VICE PRESIDENT: This is 3 July 2008?

PN6

MR PRINCE: That's the decision, your Honour, and they don't seem to have print numbers any more. It's (2008) AIRCFB 1069.

PN7

THE VICE PRESIDENT: That's correct, okay. If there are no other grounds for substantive opposition to the making of an order that stands - or making the order subject to the union satisfying the formal evidential requirements as set out in section 462, it stands and falls on this issue I take it from your perspective?

PN8

MR PRINCE: There is a second issue, your Honour, in the particulars in 1(a)(ii) of the sheet that was provided, the sheet of objections.

PN9

THE VICE PRESIDENT: I see, yes.

PN10

MR PRINCE: Which is an independent basis for objection.

PN11

THE VICE PRESIDENT: It's an employer within the meaning of section - or the definition of section 6.

PN12

MR PRINCE: The first issue is that, if I can call that the identity of the employer issue. The second issue is whether or not this union has capacity to enter into a union agreement under section 328 even if the employer had been correctly named. So it's a - - -

PN13

THE VICE PRESIDENT: No, sorry, I didn't finish reading the paragraph. I made an assumption about what it was saying, sorry. Okay. So you say that the rules don't extend to eligibility of the relevant employees?

PN14

MR PRINCE: Yes, that's right. So that's a second ground but it doesn't need to be reached if the first ground is successful, obviously, although ultimately it will probably need to be dealt with.

PN15

THE VICE PRESIDENT: Now, Mr Walkaden, I take it - I shouldn't make assumptions. You received a copy of this I think last night, is that right?

PN16

MR A WALKADEN: Yes, that's correct, your Honour.

PN17

THE VICE PRESIDENT: Are you in a position to deal with these arguments now in an evidentiary sense as if no other in a sense, like are you in a position to deal with the rules issue?

PN18

MR WALKADEN: Your Honour, we've had a brief discussion, myself and
Ms Fortescue, the relevant official for the site. Our view is that our rules do provide coverage for these particular employees. It depends I suppose upon how much evidence would be satisfactory for your purposes, your Honour. I've only got one copy of the relevant rules but on our reading of the rules they would definitely give us coverage for these particular workers.

PN19

THE VICE PRESIDENT: Okay.

PN20

MR WALKADEN: Now, the rule I'm referring to, your Honour, in the relevant rules of the AMWU you'll see that section 1 turns onto 1(a) and the - - -

PN21

THE VICE PRESIDENT: No, I don't see anything, Mr Walkaden, because I don't actually have a copy of these in front of me.

PN22

MR WALKADEN: My apologies, your Honour.

PN23

THE VICE PRESIDENT: That's okay. If you could just refer to the rule that you're relying upon.

PN24

MR WALKADEN: Sure. The rule I'm relying upon is rule 1C(a)(viii) and I'll just briefly read it out to you, your Honour. It reads as follows:

PN25

Without in any way limiting or being limited by sub rules 1(a), 1(b), 1(d), 1(e), 1(f), 1(g), 1(h) and 1(i), the union shall consist of:
(a), persons employed in or usually employed in or qualified to be and desirous of being employed in any or more of the following callings.

PN26

Your Honour, the rules then go through in terms of the roman numerals and lists a number of callings. We say that the relevant calling for this particular application is (viii) and (viii) reads:

PN27

Technical assistants and technical officers other than those employed by and provides a number of exceptions including in the public services of the States of Australia and a variety of Trusts, Commissions and Boards in the State of New South Wales.

PN28

Your Honour, what we say is that that particular rule 1C(a)(viii) gives the AMWU coverage for technical assistants and technical officers other than those employed in the consequential amendments. That is the basis, your Honour - - -

PN29

THE VICE PRESIDENT: Sorry, Mr Walkaden, I've now got a copy of the rules online.

PN30

MR WALKADEN: Sure.

PN31

THE VICE PRESIDENT: So you say these relevant employees are technical assistants and technical officers?

PN32

MR WALKADEN: What I do say, your Honour, is that of the employees employed by this enterprise there are some, is my understanding, that are technical assistants and technical officers and, your Honour, I will refer to the current certified agreement, the Australian Racing Forensic Laboratory Certified Agreement 2003 and 2006. This agreement is a pre reform agreement and was certified by Senior Deputy President Cartwright on 19 February 2004.

PN33

THE VICE PRESIDENT: Do you have a reference number for the agreement?

PN34

MR WALKADEN: I do, your Honour. It's AG832214 and you will see there, your Honour, it has a classification structure at part 3.

PN35

THE VICE PRESIDENT: Just bear with a minute. I've got to find that as well unfortunately.

PN36

MR WALKADEN: Sure.

PN37

THE VICE PRESIDENT: Sorry, what's the title of the award?

PN38

MR WALKADEN: Sorry, it's a pre reform certified agreement, your Honour.

PN39

THE VICE PRESIDENT: Sorry, sorry, sorry. Just bear with me a moment, I’m sorry.

PN40

MR WALKADEN: Sure.

PN41

THE VICE PRESIDENT: Who's the named employer in the agreement?

PN42

MR WALKADEN: The named employer, your Honour - - -

PN43

THE VICE PRESIDENT: Is Racing New South Wales.

PN44

MR WALKADEN: My understanding the definitions of that relevant agreement the employer is defined as the New South Wales Thoroughbred Racing Board or such later it is known as, is what the agreement refers to. That's in clause 1.3 in the definitions, your Honour.

PN45

THE VICE PRESIDENT: I'm just having trouble finding the agreement, I'm sorry.

PN46

MR WALKADEN: Sure.

PN47

THE VICE PRESIDENT: Do you have a different reference number other than the AG number?

PN48

MR WALKADEN: I've got a PR reference number, your Honour, if that will assist.

PN49

THE VICE PRESIDENT: Hang on one moment. Is there an ABN number for the employer per chance?

PN50

MR WALKADEN: An ABN number?

PN51

THE VICE PRESIDENT: Yes.

PN52

MR WALKADEN: Not that I can see on this agreement, your Honour. My apologies for not having a copy.

PN53

THE VICE PRESIDENT: No, that's okay. Look, this could be - - -

PN54

THE COMMISSION: Your Honour, I can transfer that copy to you by email. It may just take me a few minutes because Mr Walkaden has a double copy.

PN55

THE VICE PRESIDENT: Okay, thanks, Kate.

PN56

THE COMMISSION: That's fine. It will just take me a few moments.

PN57

THE VICE PRESIDENT: So Mr Walkaden, if I can just summarise what I understand the position to be what you're contending for, you say rule 1C(a)(viii), technical assistants and technical officers in the public services in the States of Australia.

PN58

MR WALKADEN: No, your Honour, what I'm saying is 1C(a)(viii) gives the union coverage of all technical assistants and technical officers other than those employed by the following entities.

PN59

THE VICE PRESIDENT: Yes.

PN60

MR WALKADEN: So essentially, your Honour, the clause gives the union coverage of all technical officers and technical assistants other than those employed by enterprise explicitly named.

PN61

THE VICE PRESIDENT: And because the Racing New South Wales is not listed in (ii) and because Racing New South Wales is not a public service in the State of Australia you say the technical assistants and technical officers employed by Racing New South Wales are within rule 1C(a)(viii)?

PN62

MR WALKADEN: That's correct, your Honour, and I also make the point if you turn over to page 7 of the rules, another body is excluded or another body fixing those exceptions which essentially is the CSIRO. Now, while I'm on my feet, your Honour, so that is the clause which we say gives us coverage of essentially technical officers and technical assistants. Whilst I'm on my feet, your Honour, once you get a copy of the current certified agreement, the pre reform agreement, you will note that it refers to the Drafting Production Planners and Technical Workers Award. My reading of that certified agreement is that the classification structure, the relativities and what not in that agreement refer back to this particular award.

PN63

Now, in this particular award, your Honour, and once again apologies for not having a copy, you will note that the only union party bound is in fact the AMWU. Now, in terms of that particular award, your Honour, it also refers to essentially employers who have been roped into that particular award. Now, one of those employers which has actually been roped in, your Honour, is the AJC, the Australian Jockey Club.

PN64

THE VICE PRESIDENT: Yes.

PN65

MR WALKADEN: My understanding and maybe my friend could provide some assistance in this instance but the understanding I've received from our delegate this morning is that the work which our members are performing at this lab up until about 1997, your Honour, was under the auspices of the AJC. Following about 1997 or thereabouts there was some kind of organisational restructure or split and the work performed in the Australian Racing and Forensic Laboratory was no longer performed by the AJC - was no longer under the jurisdiction or under the auspices of the AJC and transferred over to a new body which I understand is now called New South Wales Racing.

PN66

So essentially, your Honour, I would be able to call our delegate who is here because essentially this enterprise was roped in in the early 90s is my understanding to this particular award. So we say clearly that our rules are clear and also looking at the relevant circumstances of both the current certified agreement referencing the award which the union, the AMWU, is the only party to and also the history in terms of the AJC being roped in. We say that clearly beyond all doubt indicates that we fit within the definition of 328 of the Act being an industrial organisation that is entitled to represent the industrial interests of our members at this particular site. That's essentially our submissions in relation to that point, your Honour, if it pleases.

PN67

THE VICE PRESIDENT: Okay, thank you for pointing that out because you'll need to no doubt call some evidence momentarily. But Mr Prince - - -

PN68

MR PRINCE: Yes, thank you, your Honour, could I just briefly - I'm sorry, your Honour.

PN69

THE VICE PRESIDENT: Just in terms of the efficiency of the process I thought that if Mr Walkaden outlined what the union's responsibility was and then you outlined broadly what your answer is as it were to it is.

PN70

MR PRINCE: Yes.

PN71

THE VICE PRESIDENT: Or how you say your intention is not in any way undermined by what Mr Walkaden said then we'll have an efficient framework within which to call some evidence or work out what the factual position is for the purposes of determining the outstanding issues.

PN72

MR PRINCE: Yes, thank you. I had understood my friend had just outlined the basis on which he says he's able to deal with it. Does your Honour want me to now deal with my response to that or wait until the evidence - - -

PN73

THE VICE PRESIDENT: Yes, if you could deal with it broadly because we do need to have an eye to evidence but it may end being very short depending on the scope of the issue between the parties - - -

PN74

MR PRINCE: Well, the evidence may - I'm sorry, your Honour. The evidence might answer it completely but the issue so far as the Act is concerned in my submission is not whether or not there is a broad category in the union rules and there are such people contemplated by the agreement. Section 328 require that there be evidence that the union have at least one member whose employer is the business named, leave aside the naming issue for the moment, but secondly, that it's entitled to represent the industrial interests of that member. So that only do they have to establish a broad general notion of coverage but they've got to establish that their member within the workplace is in fact within that range of coverage.

PN75

For example, they may have one or two members of the workplace who are not technical assistants and they may not have any members of the work site who are technical assistants and in that case then they still wouldn't be within section 328. But that can be resolved quite quickly by evidence one would have thought.

PN76

THE VICE PRESIDENT: Okay. Thank you, Mr Prince. I understand that then, that's useful. Turning to the other ground of opposition, do you say that there's some different - sorry, let me start again. My recollection of reading this case when it was handed down and I haven't re-read it now, the Full Bench upheld the power of the Commission to amend the ballot, a notice initiating a bargaining period to substitute the correct name of the legal entity that's the employer provided that was an appropriate exercise for discretion.

PN77

MR PRINCE: Yes.

PN78

THE VICE PRESIDENT: Do you agree with that?

PN79

MR PRINCE: That's precisely what happened, your Honour, and initially Australian Sugar - sorry, Sugar Australia Pty Ltd was named as the employer incorrectly and then it later emerged that the correct name was RSS. I think it's Refined Sugar Services. There was a distinction between the two companies. One provided the labour and one operated the business. But the point of distinction is this, the initial bargaining notice was against a constitutional corporation and a legal entity so that there was in my submission jurisdiction to simply change the description of the employer but the jurisdiction of the Commission had been properly engaged because there was an allegation against a constitutional corporation.

PN80

Here the difficulty is that the bargaining notice itself which commences all of this process is against a non legal entity and so it's all a nullity. If a process is so fundamentally flawed at the outset then an amendment can't ..... in my submission. There is one case which I brought copies but that won't help your Honour. It's a slightly analogous case. I can give your Honour the reference.

PN81

THE VICE PRESIDENT: Yes.

PN82

MR PRINCE: It's Grigor-Scott, G-r-i-g-o-r-Scott v Jones. It's a decision of the Full Court of the Federal Court (2008) FCA FC14. In that case there was a - - -

PN83

THE VICE PRESIDENT: Just bear with me one moment.

PN84

MR PRINCE: Yes, your Honour.

PN85

THE VICE PRESIDENT: Just bear with me a moment, Mr Prince, I'll just pull it out. Yes, I've got that.

PN86

MR PRINCE: Just to briefly outline the facts, your Honour, that was a matter in which a complaint had been made to the Human Rights and Equal Opportunity Commission of racial vilification against the Bible Believers Church which in the end was not a legal entity. There was involvement of Mr Grigor-Scott was the effectively directing mind of what was known as the Bible Believers Church in the HREOC conciliation. However, when it came to the matter being dealt with in the Federal Court, as your Honour knows these matters then go onto the Federal Court under section 46PO of the Human Rights and Equal Opportunity Act, the court held that the complaint was incompetent - the proceedings were incompetent because inter alia Bible Believers Church had never been a legal entity.

PN87

There was an application for leave to amend in order to bring the proceedings against Mr Grigor-Scott personally. That was refused. There was an issue about being out of time which obviously doesn't apply here, but so far as it goes the authority is useful for the proposition that proceedings which are against something which is not a legal entity are incompetent and a nullity there's - but I don't know that your Honour - - -

PN88

THE VICE PRESIDENT: Which paragraph?

PN89

MR PRINCE: If your Honour goes to paragraph 89.

PN90

THE VICE PRESIDENT: 89?

PN91

MR PRINCE: Yes. Perhaps 74 before 89 gives your Honour the facts that I've just dealt with.

PN92

THE VICE PRESIDENT: But why isn't this entirely consistent with the Full Bench's approach, there was incompetence up until the point where the amendment was allowed and the amendment then transformed the proceedings in RSS into competent proceedings?

PN93

MR PRINCE: The difficulty here is that it's not just a need to amend the notice of a bargaining period but effectively to re-write it because what you're substituting is a legal entity for something which is not a legal entity, rather than simply renaming the respondent. So that in my submission the power of amendment wouldn't extend so far as effectively reissuing the notice. It's not a correction. It's really a creation of something that never really existed.

PN94

THE VICE PRESIDENT: Yes, okay.

PN95

MR PRINCE: That's the distinction, your Honour.

PN96

THE VICE PRESIDENT: Okay. Thanks very much. Okay, we better have the evidence. Mr Walkaden, I take it you're going to call some evidence from
Ms Fortescue and perhaps from the delegate as well?

PN97

MR WALKADEN: That's correct, your Honour.

PN98

THE VICE PRESIDENT: Okay.

<ROBIN FORTESCUE, AFFIRMED [10.45AM]
<EXAMINATION-IN-CHIEF BY MR WALKADEN

PN99

THE VICE PRESIDENT: Thank you, Ms Fortescue. Yes, Mr Walkaden.

PN100

MR WALKADEN: Can you please state your name, address and occupation?
---My name is Robyn Fortescue, our address is 133 Parramatta Road, Granville. I am the divisional secretary in New South Wales for the Technical, Supervisory and Administrative Division of the AMWU.

PN101

Thank you, Ms Fortescue. Have you prepared a statement in relation to these proceedings?---I have no written statement.

PN102

THE VICE PRESIDENT: Mr Prince, do you have a copy of the statement?

PN103

MR PRINCE: I do, your Honour, yes.

PN104

THE VICE PRESIDENT: Do you have any objections?

PN105

MR PRINCE: No, your Honour.

PN106

MR WALKADEN: Is that statement - - -

PN107

THE VICE PRESIDENT: Go on.

PN108

MR WALKADEN: Sorry, your Honour. I was just going to ask Ms Fortescue is that statement true and correct to the best of your knowledge, Ms Fortescue?
---The statement we submitted as part of the application is true and correct to the best of my knowledge.

PN109

Your Honour, I would seek to tender that statement which was - - -

PN110

THE VICE PRESIDENT: Is there any objection, Mr Prince?

PN111

MR PRINCE: No, your Honour.

PN112

THE VICE PRESIDENT: Sorry, there was no objection from Mr Prince.

EXHIBIT #A STATEMENT OF MS FORTESCUE, DATED 31/07/2008

PN113

THE VICE PRESIDENT: I propose to mark the application that has been filed.

**** ROBIN FORTESCUE XN MR WALKADEN

EXHIBIT #B APPLICATION

PN114

THE VICE PRESIDENT: I note that that exhibit B has a copy of the bargaining notice in it.

PN115

MR WALKADEN: Thank you, your Honour.

PN116

Ms Fortescue, you indicate in your statement that you've met with the employer on a number of occasions over the past two years?---Yes.

PN117

Could you please inform the Commission what has been the nature of those discussions?---The nature of the discussions has been negotiations in an attempt to reach agreement on a certified agreement to cover the conditions of our members employed at the Australian Racing Forensic Laboratory.

PN118

Do you mind providing the Commission with a bit more detail as to what actually has been discussed?---What has been discussed is - - -

PN119

THE VICE PRESIDENT: Just before you do, Ms Fortescue, the persons who you have been conducting negotiations with is whom?---The main negotiator for the negotiations has been Nathan McLellan who is a solicitor with the Racing New South Wales.

PN120

And you note on the notice to initiate a bargaining period as Allan Stenhouse as the contact person for Australian Racing Forensic Laboratory - - - ?---Allan Stenhouse - - -

PN121

Have you had discussions with Mr Stenhouse as well?---Allan Stenhouse was involved. He has since retired from that position within the Australian Racing Forensic Laboratory.

PN122

Have you been physically to the premises of the employer in this case?---Yes.

PN123

They're at Randwick Racecourse I take it?---Racing New South Wales has a city building but I've been there for I think one meeting but the other meetings that I've attended or an official that works with me has attended has been out at the laboratory premises on the Randwick Racecourse.

PN124

And is there a sign on these premises that says Australian Racing Forensic Laboratory?---Yes.

**** ROBIN FORTESCUE XN MR WALKADEN
PN125

As you sit here today you now know that the Australian Racing Forensic Laboratory is not a separate legal entity but rather a part of the business of Racing New South Wales, is that correct, or maybe - - - ?---Yes, it hasn't been clear because of the structure of the changes. Yes, the lab used to be part of the Australian Jockey Club. There were legal issues around what was happening in racing. A new entity got created. But we've always understood that what happened was that the Australian Racing Lab gets funded out of money from the TAB and the effect of the jockey club or anybody else was as an auspicing body that overlooked it, but the lab ran its business in the conducting of the testing of racing samples.

PN126

And in relation to the discussions you've had with Mr Nathan McLellan, they've been discussions about the Australian Racing Forensic Laboratory and the terms and conditions of employment of people at the laboratory?---Yes, yes.

PN127

Do you say that there are people performing technical services at the laboratory as employees?---Yes, yes. They undertake the processing of tests of the various types of horse racing, the dog races and occasionally some human testing.

PN128

And to your knowledge does your union have a member employed at the laboratory?---We have more than one. We have more than one member employed at the laboratory in those positions.

PN129

And you signed the notice to initiate a bargaining period?---Yes.

PN130

Which is attached to the application?---Yes.

PN131

Do you have a copy with you?---I haven't got one in front of me.

PN132

MR WALKADEN: I have got one in our file, your Honour. If you want me to head out to Ms Fortescue I will be able to do that.

PN133

THE VICE PRESIDENT: Thank you. Ms Fortescue, that's your signature on the notice?---Yes, yes, it is.

PN134

And do you know what happened to the notice once you signed it?---Once signed the research department sent the bargaining notice over to the Australian Racing Forensic Laboratory at the Randwick Racecourse.

**** ROBIN FORTESCUE XN MR WALKADEN
PN135

And did you have any discussion with Mr Stenhouse in which he acknowledged receiving the notice?---Yes, I did.

PN136

Okay. Mr Walkaden, anything further that you want to ask in-chief?

PN137

MR WALKADEN: I do, your Honour.

PN138

THE VICE PRESIDENT: Yes.

PN139

MR WALKADEN: You just indicated to his Honour, Ms Fortescue, that you had some discussions with Mr Stenhouse about receipt of the bargaining period, could you go into a little bit more detail for the Commission, Ms Fortescue?---We had discussions with Mr Stenhouse. We also had discussions with our delegates on site about the nature of the bargaining. We also attended meetings at which
Mr Stenhouse was present to pursue the bargaining claim that we had issued going to the details of what we sought and employer responses.

PN140

Did either Mr McLellan, Mr Stenhouse or anybody else and other representatives of Racing New South Wales ever indicate to yourself or to your knowledge another officer of the AMWU that there was a defect with the bargaining period?
---No.

PN141

Did either Mr McLellan, Mr Stenhouse or any other representative of Racing New South Wales ever express any concern to either yourself or any other officer of the AMWU to the best of your knowledge that the AMWU weren't able to reach agreement on terms and conditions with the lab?---No.

PN142

So there was no queries, Mr Fortescue, that the AMWU wanted to reach a union collective agreement with the employer?---No queries.

PN143

And to the best of your knowledge if you could answer this question,
Ms Fortescue, did the employer ever raise any questions or seem unsure that the AMWU wanted to negotiate a union collective agreement with them?---No.

PN144

That will essentially be my evidence-in-chief, your Honour.

**** ROBIN FORTESCUE XN MR WALKADEN
PN145

THE VICE PRESIDENT: Thank you. Mr Prince, cross-examination.

<CROSS-EXAMINATION BY MR PRINCE [10.55AM]

PN146

MR PRINCE: Ms Fortescue, which of the employees who work at the site, at the Australian Racing Forensic Laboratory site at the racecourse, of those employees you've met who are members how many are technical assistants and technical officers?---All of them.

PN147

And they are all members of the AMWU?---I couldn't say that 100 per cent but it's well close to it are members.

PN148

And how many members do you have - well, first of all, what inquiries have you made to ascertain whether or not any of your members are employed at the Australian Racing Forensic Laboratory premises as technical assistants or technical officers?---When people join the union on their membership forms they state their classification, their type of employment. That's on their membership forms. I've also met with those people. I know their work environment.

PN149

And can you name at least one person who is a member of the union - - -

PN150

THE VICE PRESIDENT: Don't answer that question, Ms Fortescue. Don't answer that question. Mr Prince, let me just change this around so that I can see you.

PN151

MR PRINCE: Yes, your Honour.

PN152

THE VICE PRESIDENT: Mr Prince, this is a matter of some delicacy. I want to know that you have instructions that allow you to challenge the proposition that there are members of the AMWU employed at Australian Racing Forensic Laboratory, that this is not just a fishing expedition.

PN153

MR PRINCE: Well, it's not a fishing expedition but first of all, we don't have access to union records. We can't say whether or not they're members of the union or not.

PN154

THE VICE PRESIDENT: Do you have some basis to suppose that Ms Fortescue ..... the claim that she makes that the AMWU has close to 100 per cent membership amongst the technical staff at the laboratory?

**** ROBIN FORTESCUE XXN MR PRINCE
PN155

MR PRINCE: I don't ..... her evidence but certainly I'm not suggesting that she's lying. I'm simply attempting to ask her ..... evidence. The employer has - - -

PN156

THE VICE PRESIDENT: Sorry, Mr Prince, there's a significant degree of sensitivity around the identification of particular employees as either union members or non union members. There's a whole variety of provisions in the Act that bear upon that particular sensitivity and indeed in relation to this process, you made it clear that the Act allows for individual ..... application for ..... ballot being an act by an agent and they don't have to disclose their identities to the employer for the purposes of such an application. And I am presently not disposed to permit you to seek to have Ms Fortescue identify particular employees as members of the union unless you can give me your assurance as counsel that you have some basis in instructions for doubting Ms Fortescue's evidence that there are union members employed at this place when it would seem on the face of what she said, would seem perfectly normal and ordinary that there's been a longstanding involvement of the union in the workplace, in this particular workplace, the forensic laboratory whether it's a legal entity or not, going back to the Australian Jockey Club days where they have active delegates in the workplace who no doubt ..... So unless you can give me your assurance I'm not going to permit you to ask a question which identifies individual employees.

PN157

MR PRINCE: I can tell your Honour this much that I have instructions that would lead you to doubt that ..... AMWU ..... workplace ..... fall within the scope of ..... but this matter has come on ..... I certainly haven't got a substantial evidentiary basis for that and nor could I really without having issued summons or the like ..... evidentiary basis for that. But I could perhaps in a sense ..... understand what your Honour says by inviting - the difficulty is that the evidence that's been put to your Honour is at a very high level of - I'm sorry.

PN158

THE VICE PRESIDENT: The lights in these court rooms in Melbourne are these eco friendly lights that link movement sensors and unless one gets up and wanders round the lights go out and you can't see what's happened.

PN159

MR PRINCE: Right. I'm glad that's the reason, your Honour. The difficulty with Ms Fortescue's evidence so far is that it's been put at a very high level of generality and she hasn't specifically said that she knows for certain that there is a member of the union who is employed in the technical assistant or technical officer classification at the workplace. It's been very broad and general and she really does need to give that evidence and - - -

**** ROBIN FORTESCUE XXN MR PRINCE
PN160

THE VICE PRESIDENT: I must say, I had inferred from what she'd said or that the effect of her evidence was as follows, I'm familiar with this workplace, I've been there, I've observed the work practices in the workplace and we have almost all of the - she's not 100 per cent certain but we have almost all of the technical staff as members. And when she says technical staff she's describing those staff on the basis of her own physical observations about the work that's actually done as well as the descriptions that individuals have put on their membership application forms when they've sought to join the union.

PN161

MR PRINCE: Although I think the evidence that she gave was when I asked her what steps she'd taken to confirm that Ms Fortescue gave evidence about the general practice of application processes which she obviously wouldn't have seen herself. It could be very simply resolved and I'm happy for the evidence to be given directly to your Honour or some sort of proper evidentiary basis to be given to your Honour in-camera.

PN162

THE VICE PRESIDENT: I'm just sensitive, Mr Prince, I don't want to be unfair to you or to your client in relation to impeding questions but you understand where my sensitivity about you asking her to name names comes from. So why don't you see if you can proceed in a way that doesn't involve getting the witness to name names and to the extent that it becomes necessary then you can raise that issue again.

PN163

MR PRINCE: Right, thank you, your Honour. Perhaps I can deal with it this way.

PN164

THE VICE PRESIDENT: Thank you.

PN165

MR PRINCE: Ms Fortescue, can you think of an instance of a particular individual employee whom you've observed working at the Australian Racing Forensic Laboratory ..... working at that place as a technical assistant or technical officer whom you personally know to be a member of the union?---Yes.

PN166

And how many such people are there?---I'd have to check our membership list but I think we've got - I think the figure is 12 of the ..... if they're on payroll deduction and that's the way they're paying their dues they've got their names anyway.

PN167

THE VICE PRESIDENT: Ms Fortescue, that approximate 12 and obviously that's a best estimate as you sit in the witness box here today, that's out of how many employees that perform the sort of technical work that you've observed?
---It's 16 - 15, out of 15.

**** ROBIN FORTESCUE XXN MR PRINCE
PN168

Thank you.

PN169

MR PRINCE: Ms Fortescue, the bargaining notice that's been attached to the application to this Commission which is dated 17 May 2006, is that the only notice to initiate a bargaining period which has been issued by the AMWU?
---Yes.

PN170

And the AMWU in conducting its dealings with the employer is not acting as an agent for employees seeking to arrange an employee collective agreement?---No.

PN171

Yes, thank you, your Honour.

PN172

THE VICE PRESIDENT: Yes, thank you. Any re-examination, Mr Walkaden?

PN173

MR WALKADEN: No, your Honour.

PN174

THE VICE PRESIDENT: Thank you, Ms Fortescue.

<THE WITNESS WITHDREW [11.05AM]

PN175

THE VICE PRESIDENT: Okay. Is there any further evidence you want to call, Mr Walkaden?

PN176

MR WALKADEN: Yes, I would seek to call our delegate, Steve Mulley, your Honour.

<STEVE MULLEY, AFFIRMED [11.05AM]
<EXAMINATION-IN-CHIEF BY MR WALKADEN

PN177

THE VICE PRESIDENT: Thanks, Mr Mulley, take a seat.

PN178

MR WALKADEN: Thank you, your Honour.

PN179

Mr Mulley, could you please indicate where you are employed?---I'm employed at the Australian Racing Forensic Laboratory.

PN180

And what kind of work do you do for the Australian Racing Forensic Laboratory, Mr Mulley?---I do technical work in the analysis of equine, canine and human samples for drugs - - -

PN181

Could you provide the Commission with a little bit more detail as to what you mean by technical work, Mr Mulley?---It involves, you know, doing bicarbonate testing. It involves ELISA testing. It involves, you know, quite a bit .....

PN182

Mr Mulley, would you care to inform the Commission as to how long you have been employed by the lab?---Over 29 years.

PN183

And Mr Mulley, are you a member of the AMWU?---Yes, I am.

PN184

And how long have you been a member of the union, Mr Mulley?---I've been a member of that and ..... it would be at least 20 years I'd imagine.

PN185

THE VICE PRESIDENT: Mr Mulley, when the laboratory produces its reports as a result of the testing it has prepared have you saved the paperwork that goes out that records the test results, I take it you have ..... databases I presume---Yes, yes, I have, your Honour.

PN186

Is there a letterhead on the test results or an insignia or a symbol, identifier of who's performed the tests?---I think it does state the Australian Racing Forensic Laboratory.

PN187

Thank you. Any cross-examination, Mr Prince?

PN188

MR PRINCE: Yes, thank you, your Honour.

<CROSS-EXAMINATION BY MR PRINCE [11.08AM]

PN189

MR PRINCE: Mr Mulley, do you have a payslip from your employer?---Yes.

**** STEVE MULLEY XXN MR PRINCE
PN190

And what's the name that appears on the payslip as the employer?---I really couldn't say I've taken much notice.

PN191

And you've been employed there for how many years?---I've been employed for 19 years with the AJC and 10 years or almost 11 years with what was originally the Australian Jockey Club principal club and then became the New South Wales Thoroughbred Racing Board and now Racing New South Wales.

PN192

So you've got a fairly good idea of the succession of the organisations that you've worked for?---Yes.

PN193

And the final organisation I think you've just named was Racing New South Wales?---That's correct.

PN194

That being the successor to the Thoroughbred Racing Board?---That is correct, of which I've worked within the Australian Racing Forensic Laboratory.

PN195

Right. But you've always understood that the place at which you work is at the moment controlled by New South Wales Racing, as it was previously by the Thoroughbred Racing Board, is that right?---Yes.

PN196

And that it's the New South Wales Racing that has taken the place of the Thoroughbred Racing Board, you understand that?---Yes.

PN197

And you've been involved in these negotiations for the variation - sorry, for a new collective agreement, is that right?---That's correct.

PN198

And the basis for those negotiations is dealing with the Australian Racing Forensic Laboratory Certified Agreement 2003-2006, that's the previous agreement you're seeking to replace?---That's correct.

PN199

And so you're familiar with that document are you?---Yes.

PN200

And you recall that in that document the employer means the New South Wales Thoroughbred Racing Board or such later it is known as?---Yes.

PN201

And you also know that ARFL means the Australian Racing Forensic Laboratory in that agreement?---Yes.

**** STEVE MULLEY XXN MR PRINCE
PN202

And do you recall that on the final page, and it can be shown to you if you want to see it, the signature page is for and on behalf of ARFL employees employed by the New South Wales Thoroughbred Racing Board by their authorised person?
---Yes, you can get - I'll have to look at that.

PN203

Perhaps my friend can hand a copy to you. I'm handing a copy to the witness, your Honour, of the Australian Racing Forensic Laboratory Certified Agreement version 23, final version dated 17 December 2003.

PN204

If I could just ask you to turn to the last page of that document, page 43, do you see that on the left hand column of the page this is the signature page?---Mm.

PN205

This agreement is signed for and on behalf of the New South Wales Thoroughbred Racing Board by its authorised person on the one side?---Yes.

PN206

And for and on behalf of ARFL employees employed by the New South Wales Thoroughbred Racing Board by the authorised person?---Yes.

PN207

So you know that the ARFL employees, that is, people working at the Australian Racing Forensic Laboratory were previously employed by the Thoroughbred Racing Board?---Yes.

PN208

And you also know that those people are now employed by Racing New South Wales?---Yes.

PN209

Including yourself?---Yes.

PN210

So you know that the employer of people there is Racing New South Wales, at the Australian Racing Forensic Laboratory?---The employer, the people who are, you know, employed, they're employed there by the Australian Forensic Laboratory, a division of Racing New South Wales.

PN211

But you know that they're employed by Racing New South Wales don't you? You know you're employed by Racing New South Wales?---Mate, I'm not going to get into the semantics of it. I don't understand all this that much but, look, I'm employed by the Australian Racing Forensic Laboratory, a division of Racing New South Wales. Now, you know, as to whether that extends back to Racing New South Wales, you know, is obviously my employer, but also my employer is the Australian Racing Forensic Laboratory.

**** STEVE MULLEY XXN MR PRINCE
PN212

Do you think you have two employers?---My employer is the Australian Racing Forensic Laboratory.

PN213

So you'd like to change your earlier evidence that you knew that your employer was Racing New South Wales, is that right?---I think I need some advice, you know, on this, as to how to answer.

PN214

Well, just answer my - - -

PN215

THE VICE PRESIDENT: Mr Mulley, are you a lawyer?---No, I'm a technical officer, your Honour.

PN216

Have you ever studied law?---No.

PN217

MR PRINCE: I'm sorry, your Honour, has your Honour finished with your Honour's questions? I didn't mean to - - -

PN218

THE VICE PRESIDENT: Yes. No, that's fine Mr Prince, away you go.

PN219

MR PRINCE: Thank you. And - - -

PN220

THE VICE PRESIDENT: Actually Mr Prince, I haven't finished.

PN221

Mr Mulley, am I correct by saying that the formal parts of the negotiation process, the generation of paperwork, is something that you had no involvement in and was something that the union officials looked after?---Yes.

PN222

Is that correct, or were you involved in the preparation of the application for the initiation of bargaining period and for a secret ballot?---No, your Honour.

PN223

Thank you. Yes Mr Prince?

PN224

MR PRINCE: And you've been involved in the negotiations with - I'm sorry, I'll withdraw that. Have you seen Ms Fortescue's statement to this com?---No.

PN225

You haven't. Do you know that she says that at the beginning of negotiations - - -

PN226

MR WALKADEN: I'll object to that question, your Honour. The witness has just indicated he hasn't seen the statement, therefore how could he indicate as to whether he's aware of what Ms Fortescue said? The point I'd like to make, your Honour, is I can't see where my friend's going with this. I'd object strongly on the grounds of relevance.

**** STEVE MULLEY XXN MR PRINCE
PN227

THE VICE PRESIDENT: Yes, Mr Prince, I suppose you should respond to relevance.

PN228

MR PRINCE: Your Honour's asked a question of this witness, whether or not he had any involvement in the drafting of the notice. That opens up obviously the issue of whether or not his knowledge of the employer can be, or the errors of the union can be somehow excused because he wasn't involved in drafting the - - -

PN229

THE VICE PRESIDENT: Well, Mr Prince, this is the Industrial Relations Commission, this is not the equity division of the Supreme Court or, you know, the maritime, you know, the admiralty division of the Federal Court. We're not here playing 17th century equity, you know, chancery games.

PN230

MR PRINCE: Well, I'm not, your Honour.

PN231

THE VICE PRESIDENT: Isn't it as plain as a pike staff what's happened here? Somebody's made a technical stuff up, there is no legal entity which has separate legal personage known as the Australian Racing Forensic Laboratory. There is such a thing as the Australian Racing Forensic Laboratory, there's a building at Randwick Racecourse, there's a sign outside of it, it conducts tests, everybody in the industry knows what they're talking about, and the reference is made to the Australian Forensic Laboratory. It's clear that there are a whole lot of technical employees there, it's clear that most of them are union members, and that this is a technical point that's been taken. Now, maybe it's valid and maybe it isn't, but there's a stuff up that's been made. I just can't see where that gets to take it. Maybe there's some argument you can - maybe there's something I've overlooked.

PN232

MR PRINCE: I'm not seeking to raise any equitable estoppel or any legal points. I'm trying to get to the discretion that your Honour's obviously considering entertaining in terms of the issue of an amendment, although none's been applied for yet, but I assume it will be. And if an amendment is applied for then obviously the matters that your Honour's taking into account just now will be relevant to whether or not you would exercise the discretion, but so too would whether or not - - -

PN233

THE VICE PRESIDENT: The level of carelessness on the part of whoever was involved in the preparation of the documents you say ought to count against any amendment?

**** STEVE MULLEY XXN MR PRINCE
PN234

MR PRINCE: Yes. I mean, if the matters that your Honour's identified can count for it then so too must the carelessness count against it.

PN235

THE VICE PRESIDENT: Well, maybe that's a matter that should have been pursued with Ms Fortescue, but if this witness had nothing to do with the preparation of the documents it's not his carelessness is it that's relevant?

PN236

MR PRINCE: Well, I was just endeavouring - - -

PN237

THE VICE PRESIDENT: Look, I should say I shouldn't pre-judge this because carelessness, you know, carries a certain pejorative connotation. It may have been a genuine innocent mistake on the part of whoever was preparing the documents.

PN238

MR PRINCE: Well, that evidence hasn't been put forward. Ms Fortescue hasn't said to your Honour that this was a genuine honest mistake. There's just no evidence of that before your Honour. Your Honour's drawing inferences. But there's no evidence of it.

PN239

THE VICE PRESIDENT: Okay. Mr Walkaden, I propose to allow the line of questioning at this stage, but you can renew your objection in due course.

PN240

MR PRINCE: Did you know that Ms Fortescue said in her statement that the AMWU delegates and she sat down and discussed potential claims at the beginning of the negotiations?---Yes.

PN241

And did you sit down with Ms Fortescue at the beginning of the negotiations to discuss potential claims?---Not at the beginning.

PN242

When did you first meet with officials of the AMWU concerning the claims that are now being made to the Commission?---I can't quite recall, and it wasn't only myself, it was all of the members who were there when the possibilities of what we could do was outlined by Robyn. That would have been last year I'd imagine.

PN243

Last year. Do you remember when last year?

PN244

THE VICE PRESIDENT: Mr Prince, I'm not going to allow you to continue further.

PN245

MR PRINCE: As your Honour pleases.

**** STEVE MULLEY XXN MR PRINCE
PN246

THE VICE PRESIDENT: Thank you. That ruling applies to that line only. If there are other topics you wish to cover please feel free.

PN247

MR PRINCE: Thank you, your Honour.

PN248

You described some of your duties in your evidence-in-chief. What proportion of your work involves - sorry, I withdraw that. What is your title as an employee of Racing New South Wales?---Technician.

PN249

Technician. Are there other employees to your knowledge who are designated technical assistants or technical officers?---There are others who are technicians.

PN250

Are there other people to your knowledge who are designated as technical assistants or technical officers?---No.

PN251

No further questions, your Honour.

PN252

THE VICE PRESIDENT: Thank you. Any re-examination Mr Walkaden?

PN253

MR WALKADEN: No thanks, your Honour.

PN254

THE VICE PRESIDENT: Thank you Mr Mulley?---Thank you, your Honour.

<THE WITNESS WITHDREW [11.21AM]

PN255

THE VICE PRESIDENT: Is that the end of the evidence Mr Walkaden?

PN256

MR WALKADEN: Your Honour, that would be the essence of the evidence that we wish to present before you today.

PN257

THE VICE PRESIDENT: Yes. Mr Walkaden, just as a matter of formality - just bear with me. Mr Walkaden, do you submit that during the bargaining period signed and initiated by the notice in question the union genuinely tried to reach agreement with the employer that operates the Australian Racing Forensic Laboratory?

PN258

MR WALKADEN: I do, your Honour. And it's the point of our submissions - - -

PN259

THE VICE PRESIDENT: Do you submit that the applicant is genuinely trying to reach agreement with the employer that operates the Australian Racing Forensic Laboratory?

PN260

MR WALKADEN: I do, your Honour.

PN261

THE VICE PRESIDENT: And do you submit the applicant is not engaged in pattern bargaining?

PN262

MR WALKADEN: I do, your Honour.

PN263

THE VICE PRESIDENT: Thank you. Now, Mr Prince, do you want to call any evidence?

PN264

MR PRINCE: There's just a document that I'd seek to tender which is a printout from the Australian Securities Investments Commission website identifying the results of the search under the name Australian Racing Forensic Laboratory, and identifying that it's a business name.

PN265

THE VICE PRESIDENT: Any objection to that Mr Walkaden?

PN266

MR WALKADEN: No, your Honour.

EXHIBIT #C PRINTOUT FROM ASIC RE SEARCH RESULTS AUSTRALIAN RACING FORENSIC LABORATORY

PN267

THE VICE PRESIDENT: And I'd Kate if you can please just put that document aside Kate with a note that it's exhibit C so it can be placed on - I take it Mr Walkaden there's no dispute that now as we conduct this hearing that Australian Racing Forensic Laboratory is not a legal entity?

PN268

MR WALKADEN: No, it's not, your Honour. Essentially, without going into all the details at this stage, the union - - -

PN269

THE VICE PRESIDENT: Mr Walkaden, I just want to make sure we've got the evidence sorted out.

PN270

MR WALKADEN: Sure.

PN271

THE VICE PRESIDENT: Mr Prince, any further evidence?

PN272

MR PRINCE: No, your Honour.

PN273

THE VICE PRESIDENT: All right, yes, thank you. Mr Walkaden, I take it that you are going as Mr Prince foreshadowed that he thought you would be, applying to amend the notice to initiate a bargaining period to substitute Racing New South Wales for Australian Racing Forensic Laboratory and to make the same amendment in your application under section 451?

PN274

MR PRINCE: That's correct, your Honour.

PN275

THE VICE PRESIDENT: Fine. Mr Prince, why shouldn't the application to amend those two documents pursuant to the powers identified by the Full Bench in RSS be exercised to make the amendment in this case?

PN276

MR PRINCE: First, your Honour has already heard me submit that this case can be and should be distinguished from RSS and AWU. That is because the ballot notification, the ballot notices - sorry, the initiation of a bargaining period notice is an essential jurisdictional pre condition, and where that is being issued to what is not a legal entity by which is ....., then there can't have been initiation of a bargaining period. There can't be an ability to make an application to the Commission, there can't be a ballot proceeding before the Commission because the application, the ability to make an application is contingent on there being in existence a bargaining period.

PN277

If a notice is a nullity in the sense that it is not directed to any legal entity then it can't have created a bargaining period, and so there is no jurisdiction to make an amendment because there is no proceeding before the Commission. Secondly, given that this question goes to the heart of the jurisdiction, if there were any power to amend it ought not be exercised in this case because to do so would simply be the Commission creating its own jurisdiction where the Act would not otherwise permit it, and that is something which the Act did not contemplate.

PN278

In the decision in RSS, as I said, it is distinguishable because there was a bargaining notice. Although it was directed to the wrong person it was directed to a constitutional corporation. So the constitutional underpinnings for the existence of the Commission's jurisdiction existed, and in the present case there being no legal entity there is simply no constitutional nexus or basis for the Commission having jurisdiction to make the amendment.

PN279

In terms of whether or not as a matter of discretion, assuming jurisdiction, the order should be made, in my submission the evidence does not disclose any compelling reason why the discretion ought to be exercised in this case. The evidence was that the employees, or certainly the union delegate at the site knew who his employer was. There had been a long history of involvement or work and changes of corporate structures, but when pressed he knew that he used to work for the AJC, then he worked for Thoroughbred Racing Board, then he worked for Racing New South Wales.

PN280

So there is no excuse or reason for the error to have occurred as it did, and the union ought not be given the indulgence of an amendment in the absence of any reasons for exercising the discretion in that way. There is no reason why, assuming coverage, that the union could not reinitiate a bargaining period or initiate a proper bargaining period to the correct employer and to a proper legal entity. That is the approach which, if the union wishes to continue with the matter, ought to be adopted.

PN281

There is no prejudice to the union in adopting such approach and that would put the jurisdiction of the Commission beyond doubt. However, to simply make an amendment at this stage can't have any discretionary reasons in favour of it because on the one hand it would involve the Commission conferring jurisdiction on itself and effectively going to the root and branch of the notice in circumstances where it's not necessary. In RSS ballots had already been conducted and orders had been made, whereas in this case we're drawing the matter to the Commission's attention before any orders are made initiating a ballot, so that there's no need to rectify any process that the Commission's already commencing engaging in in this case as there was in RSS.

PN282

The convenient and proper approach would be for the union to reinitiate the bargaining period appropriately and properly engage the Commission's jurisdiction. If the Commission pleases.

PN283

THE VICE PRESIDENT: I don't need to hear from Mr Walkaden. Pursuant to section 111(1)(l) and (m) I'm satisfied that I have the power to amend both the notice initiating a bargaining period and the application in this matter, and I'm satisfied there's a proper exercise of discretion and ..... to exercise that power accordingly. Pursuant to those powers of section 111(1)(l) and (m) I amend the notice to initiate a bargaining period dated 17 May 2006 and forming part of exhibit B to substitute Racing New South Wales for Australian Racing Forensic Laboratory, the name of the other negotiating party, and consequentially throughout that document I amend the application pursuant to section 451 and substitute Racing New South Wales for Australian Racing Forensic Laboratory.

PN284

The point that's taken by the employer in this case is a point without any substantive merit whatever. It is a technical point. It is clear to me that there has been no misunderstanding or misapprehension on the part of the employer on the basis of the evidence that's been led, and there's been no misapprehension or misunderstanding by the employer that the union has been seeking to negotiate with whoever is in fact the employer of the workers at the Australian Racing and Forensic Laboratory. Those discussions have been occurring and there's no misunderstanding on the part of Racing New South Wales as to what the union was seeking to do.

PN285

I accept that there's been no objection taken or no issue taken with the naming of the Australian Racing Forensic Laboratory until this point, and that is in itself telling. I am satisfied that the case is governed by the decision of the Full Bench in RSS and Grigor-Scott is distinguishable, and accordingly I'm satisfied that there's power to do it and that the proper exercise of discretion is to allow the amendment.

PN286

Now, in those circumstances it seems to me that there's nothing left to do other than to make an order. Do you have any contra position Mr Prince?

PN287

MR PRINCE: Yes, your Honour. I'd ask that your Honour stay the order pending an opportunity for my client to consider its position in respect of an appeal.

PN288

THE VICE PRESIDENT: Yes. Why do you say that there should be a stay?

PN289

MR PRINCE: There would be inconvenience in the orders being made at this stage and costs involved in the conducting of a ballot which - I see your Honour's lights have gone off again.

PN290

THE VICE PRESIDENT: Yes.

PN291

MR PRINCE: Thank you, your Honour. There would be inconvenience and expense incurred in conducting a ballot which would be unnecessary and disruptive if an appeal was successful. The imperative is for hearing and determining the matter in the Act, and that's been done, but in terms of exercising the rights to appeal, that should be done - - -

PN292

THE VICE PRESIDENT: The matter hasn't been determined Mr Prince. All that's been made is an interlocutory decision to allow an amendment to the originating process in associated documents.

PN293

MR PRINCE: I'm sorry, your Honour. I thought your Honour was about to issue the orders for the conducting of a ballot.

PN294

THE VICE PRESIDENT: No. I was inviting you to make any - let me start that again. I had understood the position you outlined at the beginning of today to be that you were - you have identified grounds of objection in that single paragraph that I had referred to earlier and that they were the only substantive grounds of objection, therefore if I was against you on those grounds it would follow that the order would be made without further debate, and I just wanted to confirm that that was the position. Or do you think there is a need to make further submissions?

PN295

MR PRINCE: There's only one other point, your Honour, which is the formulation of the question. The draft we've seen provided is an amalgamation, but that's really - I'm in the Commission's hands about that. That's really a matter of your own discretion.

PN296

THE VICE PRESIDENT: There are a number of cases where parties have been successful in challenging the form of the question. I think Country Fire Authority is the relevant Full Bench decision that deals with that.

PN297

MR PRINCE: Does your Honour have a question?

PN298

THE VICE PRESIDENT: Now, there are two in fact, attachment F, which was a draft order, and attachment G, which is a draft order. Mr Walkaden, which of those two draft orders is the one you're pressing?

PN299

MR WALKADEN: Sorry, can you just repeat the question, your Honour?

PN300

THE VICE PRESIDENT: There are two attachments, attachment F and attachment G. I take it it's attachment F is the form of the draft order that you're seeking to have made?

PN301

MR WALKADEN: That's correct, your Honour, we are seeking that the question put to our members would be as outlined in attachment F.

PN302

THE VICE PRESIDENT: I understand there's a separate order for the compilation of the roll of voters, but that seems to have had a whole lot of additional paragraphs appended to it which means it's inappropriate. But in terms of the primary order it's the order which is the draft order in attachment F in the application is the one that you seek to have made.

PN303

MR WALKADEN: That's correct, your Honour.

PN304

THE VICE PRESIDENT: So turning to paragraph 8 of that draft order, the questions to be put to voters in the ballot are "In support of reaching a union collective agreement with your employer do you endorse the taking of protected industrial action with your employer which may involve four hour stoppages of work, eight hour stoppages of work, 12 hour stoppages of work, 24 hour strikes, 48 hour strikes, 72 hour strikes, strikes for a period of one week, strikes for a period of two weeks, periodic bans on overtime by AMWU members." Yes, Mr Prince, what's the problem with that?

PN305

MR PRINCE: The question is asking members to sanction all of those options without any possibility for delineating between them, and presumably each of them are put as alternatives, so that the person who is answering the question can't know with any certainty what it is that they're agreeing to, and nor do they have any - I'm sorry, that's it, that's the scope of my objection.

PN306

THE VICE PRESIDENT: Mr Walkaden, do you want to put any submission or are you content to leave it to me to consider whether the question should be restructured so that each of those alternatives is available to be put?

PN307

MR WALKADEN: If I could just make a few brief points, your Honour?

PN308

THE VICE PRESIDENT: Yes.

PN309

MR WALKADEN: This is a question which has been put and accepted by the AMWU on numerous occasions, your Honour, and it has been accepted in those applications that that question does fit within the jurisdiction and within the particular which is required by 452(1)(a). So that would be the only point I would wish to make in respect of that issue, your Honour.

PN310

THE VICE PRESIDENT: Mr Walkaden, at the back of my mind there is I think a Full Bench decision that places a potential question mark over this form of words, and I just want to go and check that. Do I need to get back to you if I think that in order for it to be valid it needs to be in a slightly different form, or are you content for me to rearrange it provided the substance of what's being sought is kept?

PN311

MR WALKADEN: Could I just have a minute to confer, your Honour? I've just conferred with the respective official, your Honour, and the position that we would take would be if you're so inclined to wish to amend the respective question, your Honour, we will abide by that decision.

PN312

THE VICE PRESIDENT: I'm happy to get back to you. It's just the question of whether or not we need to have the further time and troubles involved in getting back about the form of the question. But I can give you my assurance that to the extent that the substance in what Mr Prince is saying on the basis of this authority that I've got floating around at the back of my head, I'd assure that the substance of what you're seeking is maintained.

PN313

MR WALKADEN: That would be suitable for us, your Honour.

PN314

THE VICE PRESIDENT: Okay. Anything further that requires submission on your part Mr Prince?

PN315

MR PRINCE: Yes, your Honour. That is, that once your Honour comes up with the formulation of questions, if your Honour is going to change the questions, then we would seek that the order for a ballot be stayed pending an opportunity for my client to consider your Honour's decision and to get instructions on an appeal.

PN316

THE VICE PRESIDENT: MR PRINCE: I think formally the position we're in is this. That the Act requires me to determine the application. I think the language that's used is as far as possible within 48 hours, or two working days.

PN317

MR PRINCE: Two working days, your Honour.

PN318

THE VICE PRESIDENT: But that's an aspirational deadline rather than a mandatory deadline. I think the position really Mr Prince is that until orders are made there's nothing that an application to stay ..... and that really what is necessary is for you to be - no, I understand, okay. I will hear now your application in respect of the orders that are going to be made but have not yet been made to stay the operation of those orders, and you're arguing that they ought to be stayed to give you an opportunity to get to a Full Bench to test the correctness of my decision to allow the amendment of the name of the employer in both the notice to initiate the bargaining period and the application under section 451, that's correct?

PN319

MR PRINCE: That's correct, your Honour.

PN320

THE VICE PRESIDENT: Okay. Mr Prince, I just seek your assistance in this. It's just a little bit disorganised at the moment, I'm sorry. Let me start again. I've given an outline of my reasons in respect of the amendment issue, and I'll produce some fully written reasons quickly. In relation to the second or the alternative ground that you had - and namely the union rules ground, I'm satisfied on the evidence of Mr Mulley and Ms Fortescue that there are workers at the Australian Racing Forensic Laboratory who are performing technical work of the sort covered by the rule relied upon by Mr Walkaden, and there are such workers who are also members of the AMWU, and I'm therefore satisfied that the ground that you've raised is not an impediment to the making of orders and orders should be made.

PN321

MR PRINCE: Yes, your Honour.

PN322

THE VICE PRESIDENT: In relation to the question of a stay, the assistance I seek from you is this. That when the order is made it requires a timetable to kick in pretty well straight away. The Electoral Commission has got to start sending out, you know, rolls of voters, the employer and the union has got to prepare their lists, the Electoral Commission has got to get the ballots posted. If there's a stay on the order it effectively defeats the order because the appeal is not going to be determined before the order would have to have been provided. What relevance does that have to whether or not a stay should be granted by me?

PN323

MR PRINCE: This. It also - - -

PN324

THE VICE PRESIDENT: In other words a stay is effectively destroying the order, the utility of the order.

PN325

MR PRINCE: It's not, your Honour, in this sense. That if the appeal were to be unsuccessful and there were in fact jurisdiction to make the orders then the ballot can be conducted at that point, whereas if a stay is not granted the ballot is conducted and, as your Honour's observed, that the timetable is very quick, then the appeal would become in a sense futile because the ballot would have already been conducted and the results would have been achieved. So the balance would favour a stay.

PN326

THE VICE PRESIDENT: Well, except that no protected action. The approval of industrial action by protected action ballot is just one of a number of preconditions that would have to be met before employees can take protected action. Notices have got to be served and the like. Isn't the better time, isn't the proper time for the questions of stays to arise - no, I withdraw that. Look, I'm going to have to reserve on this issue in any event, so perhaps I think the better course Mr Prince is for you to just put whatever arguments you wish in relation to a stay and I'll consider them.

PN327

MR PRINCE: Thank you, your Honour. In terms of the other impacts of not granting a stay, if your Honour is incorrect as to the ability to amend the bargaining period notice, and if that's successful on the Full Bench, if a ballot were to occur and protected action were to take place then that would possibly expose employees to having engaged in unprotected industrial action, and the whole process would have been undermined from the start. It would lead to - if this issue wasn't determined at the outset then it could lead to very significant and potential prejudicial impacts on employees down the track. It's a fundamental jurisdictional point that really does need to be dealt with.

PN328

THE VICE PRESIDENT: Isn't this just about delay?

PN329

MR PRINCE: No.

PN330

THE VICE PRESIDENT: Doesn't this deliver, or does one seek to avoid grappling with the unpleasant reality of needing to deal with a union about making a collective agreement, and this is just providing further delay? Why isn't that so?

PN331

MR PRINCE: I can't see how your Honour could have a basis to suggest that.

PN332

THE VICE PRESIDENT: Because, Mr Prince, the policy behind the legislation is that industrial action shouldn't occur unless there has been a secret ballot of employees. These orders would facilitate a secret ballot of employees and it would be in substance, not about form, in substance a ballot of relevant employees of an employer that we now know as Racing New South Wales, which employer has been in negotiation with the unions consequent upon the service of this effective notice for a considerable period.

PN333

If you were successful it would be a triumph for technicalities which in no way serve the policy of the legislation, which is to ensure that there's genuine approval by employees in support of industrial action. This error in the naming of the entity doesn't in any way go to whether or not the employees who work at that particular locality are going to genuinely approve or not genuinely approve the industrial action. That's the proposition I'm putting to you to invite your comment on, your submission on.

PN334

MR PRINCE: Well, in my submission, your Honour, the question is one of jurisdiction, and your Honour's already given your Honour's reasons, but if the appeal is successful then obviously - - -

PN335

THE VICE PRESIDENT: No, Mr Prince. I've given a very brief outline of reasons and, as I've indicated a short time ago, I'm going to be reserving and not issuing an order instantly because I propose to put some flesh on the bones of why I think for example Grigor-Scott can be distinguished, and why I think that RSS governs this particular - why it governed the amendment application.

PN336

MR PRINCE: I don't want to cavil with your Honour's decision, and I'm not in a position to stand here and tell your Honour that your Honour's wrong. I've put my submission and your Honour hasn't accepted it.

PN337

THE VICE PRESIDENT: Well, you're perfectly entitled to test it on appeal. It may well be that the Full Bench finds that I'm wrong and you may well win.

PN338

MR PRINCE: But if that's the case, and because the nature of your Honour's decision goes to the heart of the question of jurisdiction, if your Honour's decision is incorrect then there is no bargaining period, the whole process collapses, the legal authorisation for the process collapses.

PN339

THE VICE PRESIDENT: I can see Mr Prince that it is essential that there be no protected action occurring if you've got a viable - if you've got a viable argument there should be no protected action occurring if that argument remains unresolved. But I'm just wondering why isn't that more appropriately a matter for the President in respect of an application for a stay on a notice of appeal so that the President can make the assessment as to whether or not the arguable case that is an element in determining whether or not a stay should be granted, is established?

PN340

MR PRINCE: Well, the only reason I could give your Honour against that course would just be the immediacy of the effect of your Honour's orders. And of course there would be no difficulty at all with that course being followed. But once your Honour makes the orders it does of course start a process which is inexorable as it is and it will involve expense being incurred and the AEC going to the trouble of drawing up lists and the like.

PN341

But I should say quite clearly, your Honour, that this is not a delaying tactic on my client's part. My client is bound as a model litigant to raise with your Honour any jurisdictional objection which it has. Well, your Honour will hear me on that submission. It is obliged, if your Honour doesn't have the jurisdiction, then it has to raise that matter.

PN342

THE VICE PRESIDENT: The points that you have taken today as to the error in the naming of the employer is a point of the utmost technicality that is utterly lacking in substantive merit, and in relation to the other point you took I am astonished that you have instructions to put that argument. It is simply gobsmacking in the light of the evidence that's been given that you could have instructions that doubted that there were relevant employees coming within the rules of the union employed in that facility. That's the view that I have.

PN343

MR PRINCE: If your Honour wishes then your Honour should refer that matter I suppose because, I mean, what I said to your Honour was that - - -

PN344

THE VICE PRESIDENT: Mr Prince, that has got to do with those that provided you instructions, not you. You've heard the evidence. There's a history here. These people have had an industrial history going back to the AJC. You heard Mr Mulley who has been working there for a very long period. There's been a succession of agreements. The idea that this employer has some serious basis to doubt that the AMWU is not properly representing people who are members in the workplace strikes me as rather extraordinary. But there we are, that's what happened.

PN345

MR PRINCE: I don't know if I can assist your Honour any further.

PN346

THE VICE PRESIDENT: Okay. I could indicate that orders will issue. I will endeavour to make sure that they issue before the end of today. I do wish for an opportunity to check on the authorities governing the form of the question to the extent the questions be varied in such a way that preserves the substance of what's being sought, and I will endeavour to produce an outline of reasons before Monday. As I say, I'll endeavour to produce written reasons before Monday. I'll deal with the question of the stay in the written reasons - sorry, I withdraw that. Mr Prince, I'll determine the stay and deal with it in the reasons as well.

PN347

MR PRINCE: Thank you.

PN348

THE VICE PRESIDENT: You'll be in a position to put a notice of appeal in - you can put in a notice of appeal as soon as you like, but certainly you'll be able to put one in on Monday, and the President no doubt will entertain a stay application expeditiously after that in the event that I determine that I shouldn't stay the operation of the orders that I propose to make.

PN349

MR PRINCE: Thank you, your Honour.

PN350

THE VICE PRESIDENT: Anything further from you Mr Walkaden?

PN351

MR WALKADEN: Not really, your Honour. I think the exchanges between yourself and my friend have covered all the points. Might I just request that I have a brief moment to confer with the official if you are going to make the orders in terms of the draft timetable which is sought by the Electoral Commission in terms of the times which should be specified, your Honour, the times for the voting of the actual - that the vote will take place.

PN352

THE VICE PRESIDENT: Mr Walkaden, if you think there's a need to amend the timetable you can simply contact my chambers and the timetable can be adjusted accordingly.

PN353

MR WALKADEN: I just thought it might have been more prudent - I'll take your Honour's guidance on that - just to actually now to indicate when these respective employees have a break.

PN354

THE VICE PRESIDENT: I'm sorry, don't we have - sorry, I'm just confused at the moment. We've got a minimum timetable specified by the Australian Electoral Commission.

PN355

MR WALKADEN: That's correct, your Honour.

PN356

THE VICE PRESIDENT: And that timetable presupposes a hearing and orders being made today.

PN357

MR WALKADEN: That's correct. The point I was making, your Honour, was on that minimum timetable it specifies that a vote will be held on Tuesday
19 August.

PN358

THE VICE PRESIDENT: Yes.

PN359

MR WALKADEN: You will note on our attachment as in terms of our draft orders, your Honour, at point 7 the times that the ballot is to open and close isn't specified. The normal practice that we undertake at these sorts of hearings, your Honour, is for there to be a brief discussion between all parties to ensure that that vote does take place on the employees' breaks and there's no confusion as to what time that break will take place, whether it's 12 to 12.30 or one to two or whatever the case may be, your Honour. So that's the essence of my point.

PN360

THE VICE PRESIDENT: Yes. Do you want to provide that information now?

PN361

MR WALKADEN: Sure.

PN362

THE VICE PRESIDENT: While Mr Prince has got an opportunity to comment on it.

PN363

MR WALKADEN: I just had a brief discussion, your Honour, with the delegate and he's informed me that between 12 to two is generally when the respective employees are on a break, so we would encourage you, if the orders were to be made, that the time the vote take place would be - - -

PN364

THE VICE PRESIDENT: That's fine Mr Walkaden.

PN365

MR WALKADEN: Thank you.

PN366

THE VICE PRESIDENT: Mr Walkaden, it just occurs to me that there is a - we haven't dealt with the form of the ballot. The Act requires a postal ballot unless an attendance ballot is more efficient and appropriate. I forget the precise words that the section uses, but Mr Prince didn't raise any objection to the attendance being sought, and I presume that that was on the basis of a very small group of employees at a single workplace, and where it is more efficient and reliable to get the ballot done by attendance ballot. And if anyone thinks that I'm not working under a correct assumption in that regard please say so. Okay, nobody's sought to say anything in response to that, fine. Anything further from you Mr Walkaden?

PN367

MR WALKADEN: No, your Honour.

PN368

THE VICE PRESIDENT: You Mr Prince?

PN369

MR PRINCE: No, your Honour.

PN370

THE VICE PRESIDENT: I think formally the position is I reserve my decision but indicate that in all likelihood orders will issue this afternoon, if not then tomorrow morning with an appropriate adjustment for the timetable. The Commission is adjourned.

<ADJOURNED INDEFINITELY [11.59AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

ROBIN FORTESCUE, AFFIRMED PN98
EXAMINATION-IN-CHIEF BY MR WALKADEN PN98
EXHIBIT #A STATEMENT OF MS FORTESCUE, DATED 31/07/2008 PN112
EXHIBIT #B APPLICATION PN113
CROSS-EXAMINATION BY MR PRINCE PN145
THE WITNESS WITHDREW PN174
STEVE MULLEY, AFFIRMED PN176
EXAMINATION-IN-CHIEF BY MR WALKADEN PN176
CROSS-EXAMINATION BY MR PRINCE PN188
THE WITNESS WITHDREW PN254
EXHIBIT #C PRINTOUT FROM ASIC RE SEARCH RESULTS AUSTRALIAN RACING FORENSIC LABORATORY PN266