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Australian Industrial Relations Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Workplace Relations Act 1996 17647
SENIOR DEPUTY PRESIDENT KAUFMAN
BP2008/4127
s.433(1) - Application for order to suspend a bargaining period (significant harm to 3rd party)
Department of Education and Training, Northern Territory Government
and
Australian Education Union
(BP2008/4127)
MELBOURNE
10.18AM, SATURDAY, 20 SEPTEMBER 2008
PN1
MR J. SNADEN: If the Commission pleases I seek leave to appear on behalf of the applicant in this matter for the Northern Territory Department of Education and Training, and my name is Snaden.
PN2
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Snaden.
PN3
MR R. DURBRIDGE: I appear for the AEU, Robert Durbridge and with me is Mr Lampe, the secretary of the AEU branch, and Ms Williams, the president of the AEU branch in Darwin.
PN4
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Durbridge, do you have any objection to Mr Snaden's appearance?
PN5
MR DURBRIDGE: No, I don't.
PN6
THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted Mr Snaden. Yes, Mr Snaden.
PN7
MR SNADEN: Your Honour, can I start by thanking you for listing this matter was early as you have. The applicant is, as I have said, the Northern Territory's Department of Education and Training. It is, as the name suggests, the arm of the Northern Territory government that is responsible for administering, amongst other things, the secondary school system throughout the Northern Territory. The respondent is the Northern Territory branch of the Australian Education Union and it is the union to which teachers within that secondary school system are members.
PN8
The application before the Commission is made pursuant to section 433 of the Workplace Relations Act and it is for a three month suspension of the bargaining period that presently exists between the union and the Commissioner for public employment in the Northern Territory. You may have seen from the documentation, your Honour, the Commissioner for public employment - sorry, I withdraw that. Under the Public Sector Employment and Management Act, the Commissioner for public sector employment is regarded as the employer of teachers. So the Commissioner is the employer and the Department is the employee that actually administers the schools. Your Honour, since September of last year the Commissioner and the union have been negotiating a replacement workplace agreement applicable to secondary school teachers in the Northern Territory. That bargaining period is bargaining period 2007/3441, I think it's identified in the application.
PN9
I won't go through in great detail the history of those negotiations but suffice to say the parties remain unable to reach agreement as to the terms of a replacement. Importantly early this month, your Honour, there was an agreement between the Commissioner and the union but that agreement was subsequently not voted up by employees. The main sticking points, if I can call them that, appear to be pay, firstly. Secondly, reduction of class sizes and issues associated with resourcing and there is also a claim, your Honour, to formalise what is, as I understand it, a longstanding or at least existing practice of paying elected AEU officials who are employees to attend union executive meetings, now that - - -
PN10
MR DURBRIDGE: Your Honour, these matters are the subject of without prejudice documents and we feel it is not appropriate to rehearse the issues that are currently being discussed by the parties. We could colour the whole discussion with they said/we said if you like, but we think it's not appropriate.
PN11
THE SENIOR DEPUTY PRESIDENT: No, well I took this to be by way of background and it's probably not necessary, Mr Snaden, to outline it.
PN12
MR SNADEN: It is, your Honour, for this reason, I haven't got to it yet, but as you will appreciate this all happened quickly.
PN13
THE SENIOR DEPUTY PRESIDENT: Yes, very quickly.
PN14
MR SNADEN: Very quickly. Instructions have come to light as of about 6.30 last night concerning a particular claim that is the subject of negotiations which we say is a claim in respect of prohibited content. I have instructions in addition to press for the application that has formally been made, to press for an application under s.496 of the Act on the basis that the industrial action that is threatened is by reason of section 436 of the Act not protected action or will be not protected action.
PN15
MR DURBRIDGE: This is the first that the union has heard about this.
PN16
MR SNADEN: As I say, your Honour, it's happened quickly and there is no formal application made, I simply have instructions to make that application on my feet and I had intended to do that - - -
PN17
THE SENIOR DEPUTY PRESIDENT: We might deal with that a little later, let's deal with one matter at a time shall we/
PN18
MR SNADEN: Yes, your Honour.
PN19
THE SENIOR DEPUTY PRESIDENT: For the 443 application it is probably not necessary and it may not be desirable for you to go into the detail of the negotiations. You can raise that at a later time if it becomes necessary.
PN20
MR SNADEN: Yes, your Honour. Your Honour, there has to date already been some industrial action. You would have seen statements that have been prepared from two witnesses, Mr Phil Brennan who is the employee relations manager of the Office of the Commission for Public Employment in the Northern Territory.
PN21
THE SENIOR DEPUTY PRESIDENT: Yes, I have read those briefly, albeit I was more I must confess interested this morning in trying to research whether or not the industrial action had to be presently being engaged in under section 443(1) but I think it probably doesn't need to be.
PN22
MR SNADEN: No, well your Honour can I say as to that, firstly that is a submission that doesn't need to be. Secondly, and again this is a consequence of things happening quickly, I have instructions to refer you to section 430 of the Act. Your Honour will recognise section 430 as the modern day incarnation of what used to be section 170MW of the Act. Can I foreshadow an application also being made for the suspension of the bargaining period on the basis that circumstances within what is contemplated by section 430(3) are threatened, namely that there is industrial action is threatening or would threaten to endanger the welfare of the population or a part of it.
PN23
THE SENIOR DEPUTY PRESIDENT: That part of the population being the students who will be affected by the action I assume.
PN24
MR SNADEN: Correct, your Honour, yes, that's right. And as to the effect of the industrial action on these students, your Honour will have seen the witness statement that has been filed on behalf of Ms Susan Barton Johnson on behalf of the Department.
PN25
THE SENIOR DEPUTY PRESIDENT: First of all, Mr Durbridge, do you require these people for cross-examination?
PN26
MR DURBRIDGE: There are issues of fact arising in one of the witness statements which we dispute. So the answer is yes.
PN27
THE SENIOR DEPUTY PRESIDENT: In relation to both of them?
PN28
MR DURBRIDGE: To Susan Barton Johnson.
PN29
THE SENIOR DEPUTY PRESIDENT: Yes, is she available Mr Snaden?
PN30
MR SNADEN: I understand she is, your Honour, yes.
PN31
THE SENIOR DEPUTY PRESIDENT: Very well, we won't go to that at the moment, I just wanted to make sure she was available or if not that we can get her there.
PN32
MR SNADEN: Yes, she is there. Your Honour, on Wednesday of this week just gone the Northern Territory branch of the union served upon the Commissioner notice of it's intention to take industrial action next week in the form of three 24 hour stoppages, one each on Tuesday the 23rd, Wednesday the 24th, and Thursday the 25th of September. That industrial action if taken will, we say, have significant and negative effects on students throughout the Northern Territory and again those are the effects that are outlined in the statement of Ms Barton Johnson.
PN33
Your Honour, I would seek to summarise that very briefly by way of opening that evidence of what the effects are. Ms Barton Johnson's evidence is that - is or will be - that there are approximately 850 students in Years 11 and 12, and they will arguably be the hardest hit by the industrial action. Those students are scheduled to commence what are known as the trial Northern Territory Certificate of Education exams next week, that is to say some of them are scheduled to start those exams next week, others will start in two weeks time, that is the week commencing on 6 October. Your Honour, if the industrial action proceeds those exams will be put in jeopardy with the result that students' preparations will be significantly affected in what is, I'm sure your Honour will appreciate, is already an extremely stressful time, all the more stressful given how close the industrial action is going to occur, not only to those exams but also to their final Northern Territory Certificate of Education exams which are schedule for the beginning of November.
PN34
The evidence will be that those students so affected will be at a considerable disadvantage relative to their contemporaries in non-government schools and to other students throughout South Australia. Your Honour, the way the school system works in the Northern Territory, it's effectively piggy backed off the system in South Australia such that the final exams that students sit are the same across both of those jurisdictions. Your Honour, there is also evidence of a very real possibility that the action, if it occurs, will prejudice the collection of what is referred to as central moderation material. Central moderation, as I understand it, is a process by which assessments across the school system are standardised to ensure, for example, that an A given at one school is the equivalent of an A given at another school. Again, your Honour, that happens across the entire South Australian, Northern Territory region.
PN35
The deadline for the provision of that material is next Friday, or at least some of that material is next Friday, that is a deadline which has been set since the start of the year or certainly for several months and it's a deadline that the teachers and the union is well aware of. Finally, your Honour, the action if it occurs will disrupt a significant trades expo that as many as 500 Year 9 employees throughout the Northern Territory. I am sorry, I said employees, Year 9 students.
PN36
THE SENIOR DEPUTY PRESIDENT: Yes, I understood you to mean it.
PN37
MR SNADEN: Yes. Force of habit your Honour. As many as 500 Year 9 students are to attend, that expo will be from next Tuesday to next Friday.
PN38
THE SENIOR DEPUTY PRESIDENT: Why won't they be able to attend, because there won't be teachers to take them?
PN39
MR SNADEN: Correct.
PN40
THE SENIOR DEPUTY PRESIDENT: Yes.
PN41
MR SNADEN: Your Honour, we say on this basis that the Commission can be confident that the industrial action is adversely affecting the Commissioner as is required under section 433. Having regard to section 433(1) of the Act there is a threat that it will cause significant harm to students, particularly Year 11 and 12 students who are scheduled to sit their exams and attend this trade expo. Your Honour, having regard to sub-section 1E of section 433, in our submission it is well within the public interest to suspend the bargaining period for a period of three months and that is the outcome we urge upon the Commission.
PN42
I have already referred your Honour to section 430. Can I say just further in respect of that, if your Honour looks at section 430(9) and in particular sub-paragraph B, your Honour will see an application to suspend or terminate a bargaining period on the basis that there is industrial action that threatens to endanger the welfare of part of the population . Such an order can be made by the Commission on it's own initiative or on application by a negotiating party. The department is not a negotiating party with this particular bargaining period, but I do have instructions as of this morning to make an application under this section on behalf of the Commissioner.
PN43
THE SENIOR DEPUTY PRESIDENT: Is this an application made in the alternative is it?
PN44
MR SNADEN: It is really, your Honour, yes, I think that's right. I mean it's effectively the same thing, we say under section 433 that there is going to be significant harm to students.
PN45
THE SENIOR DEPUTY PRESIDENT: Yes, I'm not quite sure why you are making this application particularly without having …..
PN46
MR SNADEN: Only for this reason, your Honour, we too were aware of there being some question about whether or not the industrial action actually has to have begun for the purposes of 433.
PN47
THE SENIOR DEPUTY PRESIDENT: Unfortunately our systems are down this weekend for maintenance or something of that nature and I couldn’t access our data base, but I was looking for a particular case, you might be able to make some arrangements to get it Mr Smith, it's Print L9810, the State of Victoria against the Health Services Union. I couldn’t get it up this morning unfortunately.
PN48
MR DURBRIDGE: Excuse me, your Honour, could you repeat that?
PN49
THE SENIOR DEPUTY PRESIDENT: Yes, L9810.
PN50
MR DURBRIDGE: Thank you.
PN51
THE SENIOR DEPUTY PRESIDENT: To the best of our researches, if I can just interrupt for a minute, the explanatory memorandum of the Workplace Relations Amendment (Better Bargaining) Bill 2003 seems to be the relevant explanatory memorandum. It refers to section 170MWC which I haven't been able to find in my quick searches. But anyway clause 20 says,
PN52
Proposed section 170MWC(1) requires the Commission to consider a number of factors in exercising it's discretion to suspend the bargaining periods. The factors to be ...reads... this is consistent with the Full Bench decision in State of Victoria and Health Services Union, Print L9810.
PN53
So that's as far as I have been able to take the matter in the time available to me.
PN54
MR SNADEN: That is further than I have been able to take it, your Honour, we will endeavour to get copies of that case over the course of the day.
PN55
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Durbridge, you can do with that as you wish also.
PN56
MR DURBRIDGE: Thank you, your Honour.
PN57
MR SNADEN: In any event, your Honour, as I say the effect of making the alternative application, if I can call it that, under section 430, is that the significance or otherwise of the industrial action being pending falls away, because under 430(3) paragraph A,
PN58
It is sufficient that there is industrial action to support or advance claims in support of a proposed collective agreement that is threatened, impending or probable.
PN59
THE SENIOR DEPUTY PRESIDENT: Yes.
PN60
MR SNADEN: On the evidence we will be able to establish that test your Honour. Your Honour, can I come back to what I have averted to earlier about an application under section 496 and I appreciate that my friend has objected to statements certainly from the Bar table, made out evidence from the witnesses that we intend to call about the subject of negotiations. But I intend to press the 496 application, your Honour, and necessarily the subject of those negotiations is going to be relevant. It may be that we deal with that question now. Whether I can make reference to what is being negotiated.
PN61
THE SENIOR DEPUTY PRESIDENT: Your submission will be that the claims that are being advanced include prohibited content.
PN62
MR SNADEN: That's right, your Honour.
PN63
THE SENIOR DEPUTY PRESIDENT: Therefore the industrial action that is proposed is not protected.
PN64
MR SNADEN: By reason of section 436, your Honour, yes, and obviously in order to establish that I am going to take your Honour to what those claims are and why we say they constitute prohibited content.
PN65
THE SENIOR DEPUTY PRESIDENT: Yes. You don't intend to draw that from any of the witnesses that are called?
PN66
MR SNADEN: I do, your Honour, yes. There is one document that came to light last night that I intend to - - -
PN67
THE SENIOR DEPUTY PRESIDENT: Whose evidence do you intend to go to for that?
PN68
MR SNADEN: Mr Brennan.
PN69
THE SENIOR DEPUTY PRESIDENT: Yes. I'm just wondering what the most efficient way to deal with this will be. Mr Durbridge, I should hear from you firstly.
PN70
MR DURBRIDGE: Your Honour, this is a complete surprise and the matters we were called here urgently at short notice to deal with are under section 433. We are being, I assume, taken to documents which I have not seen, that I am not aware of and would need to obviously know about in terms of what their status is in the claim. This matter has been negotiated for a year and there is a great paper trail of documents about what the claims are and what has been, even as recently as last week, has been agreed. So to have a document, an alleged document to be produced on a morning like this, which is without prejudice, regardless of what it is, the claims that have been served upon the government are set out in correspondence of the union and have been available to the Commission and I will go into processes that we have been involved in. I think it's inappropriate to try to deal with a different application at this notice in this way.
PN71
THE SENIOR DEPUTY PRESIDENT: Yes, I tend to agree, Mr Snaden, I think you will need to make a formal application. It is not beyond the resources of your instructing solicitors to do that today, and that application will particularize what is sought and if needs be I will deal with that on Monday. I think that will be a preferable course to take, because otherwise we may find that we don't deal with any of the matters to completion today.
PN72
MR SNADEN: If the Commission pleases.
PN73
THE SENIOR DEPUTY PRESIDENT: Yes, I think you have to give the other side a bit more notice than you have just done.
PN74
MR SNADEN: Could I say I would have liked more notice myself, your Honour, as I said your Honour these things happen quickly, it's not through any deliberate act that we left it until this morning. But we will prepare a formal application over the course of today and endeavor to have that to the union later today.
PN75
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Durbridge, you are on notice as to that and I draw to your attention section 496(6) about the making of an interim order if the matter can't be concluded within the time.
PN76
MR DURBRIDGE: Thank you, your Honour.
PN77
MR SNADEN: Your Honour, there was a document that I had intended to take the witness to, I am going to provide that immediately.
PN78
THE SENIOR DEPUTY PRESIDENT: Yes, that's on that 496 question is it?
PN79
MR SNADEN: It is, your Honour.
PN80
THE SENIOR DEPUTY PRESIDENT: Mr Durbridge at least has notice of it.
PN81
MR SNADEN: Yes.
PN82
THE SENIOR DEPUTY PRESIDENT: That's desirable, thank you.
PN83
MR SNADEN: Your Honour, that's all I intended to say by way of opening. There are two witnesses that we wish to call. I'm not sure if your Honour wishes to hear from my learned friend first.
PN84
THE SENIOR DEPUTY PRESIDENT: Not unless he wishes to say something before you call the witnesses?
PN85
MR DURBRIDGE: No, your Honour.
PN86
THE SENIOR DEPUTY PRESIDENT: Yes, call your first witness.
PN87
MR SNADEN: The first witness, your Honour, is Phillip Brennan.
PN88
THE SENIOR DEPUTY PRESIDENT: Mr Brennan you are present in the court room? Mr Brennan, you are in the witness box are you? Do you wish to take an oath or an affirmation?
MR BRENNAN: Affirmation thank you your Honour.
<PHILLIP MORGAN BRENNAN, AFFIRMED [10.43AM]
THE SENIOR DEPUTY PRESIDENT: You may be seated, Mr Brennan. Yes, go ahead Mr Snaden.
<EXAMINATION-IN-CHIEF BY MR SNADEN [10.44AM]
PN91
MR SNADEN: Thank you, your Honour. Mr Brennan, for the purposes of the transcript can you just state your full name and business address?---My full name is Phillip Morgan Brennan. My business address is fourth floor, Harbour View Plaza, corner of McMinn and Bennett Streets, Darwin.
PN92
Are you employed as the employee relations manager for the Office of the Commissioner for Public Employment for the Northern Territory?---I am, yes.
PN93
Have you prepared a witness statement for the purposes of this proceeding?---I have, yes.
PN94
Do you have a copy of that witness statement present with you?---I do, yes.
PN95
Just so we can verify we're all looking at the same document, Mr Brennan, is that a statement of some 12 paragraphs over three pages plus one exhibit, one attachment?---That's correct.
PN96
Is that a statement signed by you on 19 September 2008?
PN97
THE SENIOR DEPUTY PRESIDENT: 19 September? Yes, I think it is.
PN98
MR SNADEN: Yes, 19 September 2008, yes your Honour?---That's correct.
**** PHILLIP MORGAN BRENNAN XN MR SNADEN
PN99
Thank you. Are the contents of this witness statement true and correct in every particular?---They are, to the best of my knowledge.
I seek to tender that.
EXHIBIT #A1 - WITNESS STATEMENT AND ATTACHMENT OF MR PHILLIP BRENNAN
PN101
MR SNADEN: Your Honour, I have a small number of questions supplementing the statement.
PN102
THE SENIOR DEPUTY PRESIDENT: Yes.
PN103
MR SNADEN: Mr Brennan, in paragraph 2 of that statement, you refer to the Northern Territory Public Section 2005-2007 Teachers and Educators certified agreement. How many teachers in the Northern Territory are covered by that agreement?---Approximately 2,700 but I don't have the precise numbers with me but around that figure.
PN104
THE SENIOR DEPUTY PRESIDENT: Is that the correct name of the agreement, the Public Section rather than Sector?---No, that's a typographical error it would appear, it should be sector as in public sector.
PN105
Yes, thank you.
PN106
MR SNADEN: Mr Brennan, are you aware of how many of those approximately 2,700 teachers are members of the Australian Education Union?---My understanding is it might be in the vicinity of around 60 per cent but I don't have those precise numbers.
PN107
Can you look at paragraph 5 of your witness statement. You refer there to a notice to initiate a bargaining period, do you have a copy of that notice to initiate a bargaining period there with you?---I'm sorry, I don't have it specifically in front of me. I am familiar with the document though.
PN108
Your Honour, I am just showing my friend a copy of the document. Logistically it's obviously difficult to show Mr Brennan a copy but perhaps I can hand it to the Commission.
PN109
THE SENIOR DEPUTY PRESIDENT: Yes.
PN110
**** PHILLIP MORGAN BRENNAN XN MR SNADEN
MR SNADEN: Your Honour will see it bears the same date as the notice referred to in paragraph 5 of Mr Brennan's statement.
PN111
THE SENIOR DEPUTY PRESIDENT: Yes.
PN112
MR SNADEN: Although I can't physically show Mr Brennan a copy I seek to tender that document on the basis that that is the - - -
PN113
THE SENIOR DEPUTY PRESIDENT: Yes, I don't think that's contentious is it, Mr Durbridge?
PN114
MR DURBRIDGE: It doesn't appear so, your Honour, I suppose it depends what is said.
PN115
THE SENIOR DEPUTY PRESIDENT: What are you actually tendering? You have given me a covering letter, you are just tendering the actual notice are you?
MR SNADEN: Yes, your Honour.
EXHIBIT #A2 - NOTICE TO INITIATE A BARGAINING PERIOD OF THE AEU, DATED 3/09/2007
PN117
MR SNADEN: Thank you, your Honour. Just in answer to my friend I am only tendering that to establish that there is a bargaining period, I don't intend to ask any further questions.
PN118
THE SENIOR DEPUTY PRESIDENT: Yes.
PN119
MR SNADEN: Mr Brennan, can you turn to paragraph 8 of your witness statement?---Yes.
PN120
You refer there to two forms of protected industrial action that commenced on
31 March 2008. In the first dot point can you explain to the Commission what is meant by the phrase "prescribed hours",
"bans on duties outside prescribed hours."?---The prescribed hours under the Northern Territory teaching award and the
current certified agreement, there are no prescribed hours of work as such, but there is an administrative document from the former
chief executive officer from the Department of Education which is - describes the hours of work of teachers, including their face
to face teaching time and other duties and it's my understanding that the prescribed hours of duties that are referred to in my statement
there derives from that document.
**** PHILLIP MORGAN BRENNAN XN MR SNADEN
PN121
In terms of the ban that has been implemented, have teachers worked outside of those hours?---In a practical sense they haven't. The bans on duties, as I understand it, go to activities such as parent/teacher meetings after hours, excursions, camps and other after hours activities at schools.
PN122
THE SENIOR DEPUTY PRESIDENT: Are those bans still in place are they?
---Your Honour, yes they are.
PN123
Thank you.
PN124
MR SNADEN: Thank you Mr Brennan. The second dot point, you refer to four hour Territory-wide rolling stoppages. How many four hour Territory-wide rolling stoppages have there been since 31 March?---Sorry, I don't have that precise information in front of me. It's in the vicinity of eight I think it might be.
PN125
Eight?---I stand correct there though.
PN126
THE SENIOR DEPUTY PRESIDENT: There should not be any coaching of the witness please, he either knows or doesn't know. Whoever is whispering to him would you please stop?---Well, I would have to ask for another document which I don't have with me.
PN127
You believe it's the right date but you're not sure, I understand that, but it is not appropriate that somebody feeds you the answers?---One of my colleagues here has wished it's six.
PN128
I take your answer as being you think it's about eight but you're not sure. No more whispering please.
PN129
MR SNADEN: Your Honour, the only other questions I had of Mr Brennan were in relation to the 496 points, I won't ask them, I have no further questions.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Brennan. Mr Durbridge, do you have any questions of Mr Brennan?
<CROSS-EXAMINATION BY MR DURBRIDGE [10.53AM]
PN131
MR DURBRIDGE: Well, yes your Honour. Mr Brennan, you tell us in your statement that the Public Sector 2005-2007 agreement nominally
expired on
31 August 2007. Did any negotiations with the union occur prior to that date?
---There were some negotiations, that's correct.
PN132
Can you remember when they did commence?---I can't give you the precise date, there were some early meetings I think started in March/June '07. The final log of claims wasn't served on us, until my recollection is well into August.
PN133
But you would confirm that since May or June there have been negotiations with the Northern Territory branch of the AEU about a replacement for the certified agreement?---That's correct.
PN134
That's well over a year and in that time you say a number of offers have been made, paragraph 4, a bargaining period was opened in paragraph 5, a protected action ballots have been held and voted in proper form and have been authorised. Under the terms of that protected action bans were imposed in paragraph 8 as you told us, and industrial action has previously been taken. In all that time can I ask you has the union bargained in good faith and has the union - - -
PN135
MR SNADEN: Your Honour, I object to that question. It sounds like there is a second part to it, but how can this witness - that's a conclusion for you to make, your Honour, and indeed isn't the subject of this application.
PN136
THE SENIOR DEPUTY PRESIDENT: How do you put that Mr Durbridge, the same thought went through my mind even before the objection was made.
PN137
MR DURBRIDGE: Well, your Honour, Mr Brennan is the employee relations manager, he has been managing this process - - -
**** PHILLIP MORGAN BRENNAN XXN MR DURBRIDGE
PN138
THE SENIOR DEPUTY PRESIDENT: He may have a view on it, but - - -
PN139
MR DURBRIDGE: I will ask him his view.
PN140
THE SENIOR DEPUTY PRESIDENT: What is the relevance of his view, how does it assist me and why is it important for the purposes of this application.
PN141
MR DURBRIDGE: Well it is important your Honour.
PN142
THE SENIOR DEPUTY PRESIDENT: I assume that the union has been bargaining in good faith, unless there is some evidence to the contrary and there's no suggestion by the employer that the union has not been bargaining in good faith.
PN143
MR DURBRIDGE: And that the action that has been taken to this date has been authorized and over matters that are properly the subject of an industrial dispute.
PN144
THE SENIOR DEPUTY PRESIDENT: Well nobody is suggesting to the contrary at this stage.
PN145
MR DURBRIDGE: No.
PN146
THE SENIOR DEPUTY PRESIDENT: That may be the subject of a 496.
PN147
MR DURBRIDGE: There has been a suggestion but presumably we will get to that later.
PN148
THE SENIOR DEPUTY PRESIDENT: No, well that's one of the reasons why I'm not dealing with that. The suggestion is that something has just arisen that would suggest that there may be prohibited content now being sought, that doesn't go to what happened in the past and it's not relevant to this matter and it fortifies me in my conclusion that I shouldn't be dealing with the 496 application today.
PN149
MR DURBRIDGE: As you please your Honour. Mr Brennan, at paragraph 10 you talk about an agreement that was rejected by members of the AEU, can you tell us has there been any developments since that point in attempting to resolve the dispute?---I don't make any reference to an agreement I'm sorry, it's an offer.
PN150
Sorry, your second sentence says that the AEU executive gave in principle support for the offer?---Yes.
**** PHILLIP MORGAN BRENNAN XXN MR DURBRIDGE
PN151
And recommended it be approved by members?---Correct.
PN152
Since that time and perhaps since you wrote this statement has there been any developments in this dispute by way of attempted resolution, particularly by the AEU?---Yes.
PN153
Can you tell the Commission about that?---Yes. There was a meeting held with the AEU on 16 September between the Commission for Public Employment, representatives of the department and I was present and fulltime officials of the AEU were there. They gave us - advised us that the offer had been rejected by the majority of members who had participated in their meetings and they put to us a number of propositions at that meeting.
PN154
Was that a private meeting?---What other form of meeting can you have?
PN155
Perhaps I'll as it in a different way, have there been any other attempts to resolve the dispute as recently as yesterday morning?---I gather - what are you referring to?
PN156
To the Commission proceeding or the Commission hearing with Commissioner Raffaelli?---There was a proceeding before Commissioner Raffaelli yesterday, yes.
PN157
Can you tell the Commission about that?---It was an application by the AEU pursuant to the disputes settling procedures of the current - or the nominally expired certified agreement. My recollection that the matter was in fact listed - I do have the notice in front of me, I'm sorry, one document I have in all the debris. The application was made under section 699 of the Workplace Relations Act.
PN158
What's your understanding of the union's intention in seeking that hearing and can you tell us what happened at it?---Could you ask that again, please.
PN159
Can you tell us what happened at the hearing? We have no paper here telling us what happened. Those in Darwin know what happened but those in Melbourne don't seem to know.
PN160
THE SENIOR DEPUTY PRESIDENT: Just a moment before you answer that. I'm not sure that you can tell me about that, can you? Don't those proceedings have to be conducted in private?---I was going to ask that question, your Honour. it was a conference. It wasn't a hearing.
**** PHILLIP MORGAN BRENNAN XXN MR DURBRIDGE
PN161
MR SNADEN: In any event, your Honour, we've let this go for a little while, I realise but it's - - -
PN162
THE SENIOR DEPUTY PRESIDENT: I'll close to my discretion.
PN163
MR DURBRIDGE: Perhaps I can ask the question a different way, your Honour.
PN164
THE SENIOR DEPUTY PRESIDENT: Yes.
PN165
MR DURBRIDGE: What is the Commissioner for Public Employment's attitude to resolving this dispute with the assistance of the Commission by way of mediation or alternative dispute resolution?
PN166
THE SENIOR DEPUTY PRESIDENT: Sorry, could you just ask that again.
PN167
MR DURBRIDGE: What is the attitude of the Commissioner to attempting to settle this dispute by way of alternative dispute resolution under the terms of the Act?---You mean the Commissioner in person or - - -
PN168
No, the department?---It's our view that we are still prepared to meet and negotiate an outcome with the AEU and that our preferred course of action is to continue those negotiations and discussions rather than enter into an alternative dispute resolution process at this time.
PN169
You are not prepared to enter into an alternative dispute resolution process in the Commission but you are prepared to keep meeting the union? Can I confirm that that's your position?---You've omitted some words. I said at this time.
PN170
THE SENIOR DEPUTY PRESIDENT: I added those because I heard you.
PN171
THE WITNESS: Could you restate the statement, please.
PN172
MR DURBRIDGE: At this time, what is the view of the organisation you represent to the settlement of this dispute by way of mediation or alternative dispute resolution procedures under the auspices of the Commission?
PN173
THE SENIOR DEPUTY PRESIDENT: There's a difficulty in that question,
Mr Durbridge, and I raise it because of my lack of understanding. I don't know what you mean by this dispute.
**** PHILLIP MORGAN BRENNAN XXN MR DURBRIDGE
PN174
MR DURBRIDGE: By this dispute, I mean the matters that are the subject of the bargaining period.
PN175
THE SENIOR DEPUTY PRESIDENT: Yes, I see. Yes, thank you.
PN176
THE WITNESS: You'll have to rephrase or restate the question, I'm sorry. I've lost the thread.
PN177
MR DURBRIDGE: You've confirmed that the AEU sought mediation in the Commission yesterday morning. What is the attitude - - -?---Are they my words? Sorry, you'll have to read my words back to me. I'm not sure I said that. You tell me I said the - sorry, what I said was - my recollection of what I said was the AEU lodged an application under section 699 of the Act and sought resolution of the matters under the disputes settling procedures of the certified agreement.
PN178
THE SENIOR DEPUTY PRESIDENT: Did that matter actually come before Commissioner Raffaelli yesterday?---It did in a conference, your Honour.
PN179
MR DURBRIDGE: I'd just like you to tell the Commission the department's attitude to that application. I'm not asking you to canvass the subject of it or what happened at the conference, but what's the department's attitude to proceeding under that section in that way?
PN180
THE SENIOR DEPUTY PRESIDENT: Mr Durbridge, I think that question has been answered. Mr Brennan said the department's attitude is
that it would rather continue to negotiate with the union in relation to a new agreement than enter into a dispute resolution procedure
under the nominally expired agreement at this time.
Is that not the answer to your question ?
**** PHILLIP MORGAN BRENNAN XXN MR DURBRIDGE
PN181
MR DURBRIDGE: Well, why are we here?
PN182
THE SENIOR DEPUTY PRESIDENT: You're not asking me questions, you're asking the witness questions but that's the answer to that question, is it not? You can make submissions about it later but he's answered your question, I think.
PN183
MR DURBRIDGE: No further questions, your Honour.
PN184
THE SENIOR DEPUTY PRESIDENT: Mr Snaden, any re-examination?
PN185
MR SNADEN: Nothing in re-examination.
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Brennan, you may stand down?---Thank you, your Honour.
<THE WITNESS WITHDREW [11.05AM]
PN187
THE SENIOR DEPUTY PRESIDENT: You're calling Ms Johnson now, are you?
PN188
MR SNADEN: Your Honour, yes, I call Ms Barton Johnson.
PN189
THE SENIOR DEPUTY PRESIDENT: Barton Johnson, is it. There's no hyphen on the witness statement.
PN190
MR SNADEN: No, I'm instructed that the surname consists of two words.
PN191
THE SENIOR DEPUTY PRESIDENT: Ms Barton Johnson, are you in the courtroom and if you are, would you step into the witness box, please.
PN192
MR ……….: She is just being summoned.
PN193
THE SENIOR DEPUTY PRESIDENT: Video hearings have only so much utility.
PN194
MR DURBRIDGE: Yes, it's like teleconferences.
PN195
THE SENIOR DEPUTY PRESIDENT: Ms Barton Johnson, would you state your full name, please?
PN196
MS BARTON JOHNSON: Susan Ellen Barton Johnson.
PN197
THE SENIOR DEPUTY PRESIDENT: Your business address?
PN198
MS BARTON JOHNSON: 8 McMinn Street, Darwin.
PN199
THE SENIOR DEPUTY PRESIDENT: Your occupation?
PN200
MS BARTON JOHNSON: Educator.
PN201
THE SENIOR DEPUTY PRESIDENT: I'm sorry, I can't hear you.
PN202
MS BARTON JOHNSON: Educator, I guess, is the best description.
PN203
THE SENIOR DEPUTY PRESIDENT: Do you wish to take the oath or make an affirmation?
MS BARTON JOHNSON: I'll make an affirmation.
<SUSAN ELLEN BARTON JOHNSON, AFFIRMED [11.10AM]
<EXAMINATION-IN-CHIEF BY MR SNADEN
PN205
MR SNADEN: Ms Barton Johnson, just for the purposes of the transcript, could you just repeat your full name and business address?---Susan Ellen Barton Johnson, 8 McMinn Street, Darwin.
PN206
Are you employed by the Northern Territory Department of Education and Training as the assistant general manager teaching, learning and standards?---Yes, I am.
PN207
Have you prepared a witness statement for the purposes of this proceeding?---I have but I've noticed there is one error in that statement.
PN208
Perhaps before we get to that, just to ensure that we're all looking at the same document, is that a statement of some 40 paragraphs over nine pages and one attachment?---It is, yes.
PN209
Is it signed by you and dated 19 September 2008?---It is, yes.
PN210
I'm sorry, I cut you off. What's the error that you've identified?---In paragraph 27 ..... in the brackets there's:
PN211
Of which there are six secondary schools compared with 14 government secondary schools -
**** SUSAN ELLEN BARTON JOHNSON XN MR SNADEN
PN212
it should read seven secondary schools.
PN213
Seven instead of six?---Yes.
PN214
Are there any other amendments to this statement that should be made?---I don't think so, no.
PN215
Subject to that amendment that you've just taken us through, is this statement true and correct in every particular?---Yes, it is.
I seek to tender that document, your Honour.
EXHIBIT #A3 WITNESS STATEMENT OF SUSAN ELLEN BARTON JOHNSON TOGETHER WITH ITS ATTACHMENT
PN217
MR SNADEN: Again, your Honour, I have a small number of questions.
PN218
Ms Barton Johnson, can you look at paragraph 5 of your statement on page 2. You say:
PN219
I oversee the implementation of senior secondary school curriculum assessment and certification (consistent with those in South Australia)
PN220
Can you explain why you say consistent with those in South Australia?---the Northern Territory has had a longstanding relationship with South Australia since South Australia governed the Northern Territory and of course, back in those days our education system was one and the same with South Australia. Since self-government, the Northern Territory has developed their own curriculum and schooling system which is managed by us but our senior secondary cohort is too small for us to have a statistically viable group of students who can be ranked against one another for the purposes of tertiary entrance. In order for our students to be able to access that sort of a ranking, we need to partner with a larger jurisdiction. It's started out as obviously easier for us to continue our relationship with South Australia and since then we've actually made active choices to continue that partnership with South Australia. Our senior secondary students are considered with South Australia to be one cohort.
PN221
I see?---Sorry, and I will continue. We actually have a service level agreement with the SACE Board of South Australia and SACE stands for the South Australian Certificate of Education as the NTCE is the Northern Territory Certificate of Education and we purchase in from the SACE Board of South Australia curriculum assessment and certification in order to run our senior secondary program in the Territory.
**** SUSAN ELLEN BARTON JOHNSON XN MR SNADEN
PN222
By senior secondary programs, what are you referring to there?---Typically, these days, our kids start some senior secondary studies in year 10 but almost exclusively in year 11 and year 12 students are undertaking curriculum from South Australia. They do some ..... vocational education training competencies usually that augments that. The curriculum is that of the SACE Board.
PN223
Can you look at paragraphs 10 and 11 of your statement where you make reference to the calculation of students, tertiary entrance rank, or TER. Can you explain to the Commission who calculates a student's TER?---The tertiary entrance rank is actually calculated by the SACE Board n behalf of SATAC and SATAC is the South Australian Tertiary Admissions Centre. In order to do that, as I said the Northern Territory students are considered to be part of one whole cohort of students from across South Australia and the Northern Territory so our kids and their marks are amalgamated with South Australian students and once their subject results are known, they're scaled which is the levelling mathematical model that's applied to level the results and once the results have been levelled, then kids are arranged in order and ranked and that ranking is used by tertiary institutions to admit or otherwise kids into courses.
PN224
Can you look at paragraph 9 of your statement, please. There you refer to 151 government schools in the Northern Territory and specifically to 14 which cater for secondary students up to year 12. Can you tell the Commission how many senior secondary students are there in government schools in the Northern Territory?---There will be about 850 who will be doing exams this year. There's probably about 2000 - I'm sorry, I'm not quite sure on the figures - who are undertaking one or more senior secondary subjects.
PN225
There's a heading above paragraph 10 of your statement NTEC Students Trial and Final Exams. Can you explain to the Commission what you mean when you refer to trial exams?---Trial exams are conducted in schools where students are involved in a final exam as an assessment component of any subjects that they're doing. The purpose of the trial exams is many - - -
PN226
Perhaps before you tell us the purpose of trial exams, you've explained what trial exams are. Can you now explain to the Commission what final NTCE exams are?---Final NTCE exams, subjects have various assessment components and there's work that's done during the course of the year and many subjects actually have a final assessment which happens to be an exam and they're often referred to as final exams.
**** SUSAN ELLEN BARTON JOHNSON XN MR SNADEN
PN227
Who sets the final NTCE exams?---The final NTCE exams are set by the SACE Board of South Australia. It's a very secure operation as it is in any other jurisdiction and has been for time immemorial. You know, they're kept under lock and key until the morning of the exams. Kids in South Australia and Northern Territory start their exams at exactly the same time. All the exams are actually collected at the end, ours are sent to South Australia usually for marking, although there are occasionally marking panels convened up here by the SACE Board of South Australia. Yes, so it's a very formal process.
PN228
Can you look at paragraph 15 of your statement. You say there that you're aware that there are three schools, which you identify, that have planned to conduct trial NTCE exams in the week of the strike. Are they the only schools that you're aware of that are doing trial NTCE exams next week?---They're the only ones that I'm aware of but it doesn't necessarily mean that they're the only ones, full stop. They are the only ones I was able to .....
PN229
What proportion of the 850-odd senior secondary students do those schools account for?---About half.
PN230
Can you refer now to paragraph 13 of your statement. When you say in the last sentence:
PN231
A significant number of these students have trial NTCE exams scheduled for the days of the proposed industrial action -
PN232
You're saying that's about half, are you?---I am saying it's about half. As I said 850-odd students will be undertaking final exams and 850 students will be doing trial exams and about half of those are in the schools, Casuarina Senior College, Palmerston High and - - -
PN233
So about 425 of those are scheduled to do trial NTCE exams next week?---Yes.
PN234
Can you turn to paragraph 21 of your statement, please. You refer there to final central moderation. Can I ask you a couple of questions, firstly, can you explain to the Commission what is actually meant by final central moderation?---Subjects have a variety of assessment components which all contribute to the final grades of the subject. We all know about exams but also there are other components which are school assessed. When components are school assessed, there is usually a moderation component. This moderation component can either be statistical moderation or it can be social moderation. Final central moderation is actually social moderation so student work is actually collected in a central place and a panel of experts look at the student work and attempt to level the grades that the teachers have given that work. For example, the expert panel would actually be looking to make sure a B from Nhulunbuy High School in Arnhem Land is the same as a B in English studies, English communications from Parafield Gardens High School in South Australia.
**** SUSAN ELLEN BARTON JOHNSON XN MR SNADEN
PN235
Can you explain to the Commission - - -?---Sorry, can I add that at the final central moderation the moderation panel also looks at what are referred to as merits. Now, merits are when a student has in the teacher's opinion achieved an excellent result, ie. a 20 out of 20 in that subject, the merits are examined by that panel from across the whole jurisdiction and students are in fact - and they recommend which subject - which kids will actually get the merits.
PN236
Can you explain to the Commission what you mean when you refer on the second line of paragraph 21 to results sheets and student materials. What materials is that a reference to?---The materials will actually be the student work. Next week it is round 1 moderation, which is an arbitrary group of subjects. Obviously the moderation panel, it is administratively unwieldy to do all the moderation at once so the subjects are divided into three groups and the first group, or round 1 moderation, the materials are being collected next week. Round 1 subjects - - -
PN237
Sorry, we don't need to know which subjects. The point you make is that not all subjects - the deadline for central moderation or for the collection of the material for the purposes of central moderation, not all subjects have that deadline of next week?---No. It's the round 1 subjects.
PN238
When was that deadline of 26 September 2008 set?---It was published in the operations manual for 2008 which is typically sent out to schools in December of the year prior. Schools don't normally access that publication until January of that year so this information was no doubt accessed by schools in the first month of this year, so January 2008.
PN239
Is it published to teachers?---The document that I refer to in my statement is the operations manual and the operations manual is supplemented by what I refer to as learning area manuals. The learning area manuals summarise the information pertinent to particular subjects so all teachers teaching English, for example, would get an English - would have access to an English learning area manual. They're also available on the internet for free downloading.
PN240
Do those learning area manuals specify the central moderation deadlines?---Yes, they do.
PN241
You said earlier that next week's deadline doesn't apply to all subjects. Do you know - of the subjects that it does apply to, do you know how many students are sitting those subjects?---I'm sorry, I don't.
**** SUSAN ELLEN BARTON JOHNSON XN MR SNADEN
PN242
Can you look at paragraph 22 of your statement. You say there that you received advice from Casuarina Senior College that as a result of the strike staff will not have student work to mark and ready for despatch on 26 September. Who gave you that advice?---Chris Harding.
PN243
Who's Chris Harding?---I understand he the assistant principal.
PN244
The school principal?---An assistant principal at the school.
PN245
In paragraph 23 you say that the SACE Board of South Australia is currently investigating the possibility of moving the collection date. Since preparing this statement have you had any feedback from the SACE Board of South Australia about whether that can happen?---I have, yes, and no, that can't happen. The outcome was, no, that can't happen. The panels are convened and as you can imagine it's an operation that's planned with military precision as they're getting experts from across South Australia and the Northern Territory together to look at this student work and it's obviously more convenient that it happens during the holidays and all that travel is booked, the venues are organised and so on so, no, it can't.
PN246
You say that should happen during holidays. Just explain to the Commission when are the holidays?---They commence on Monday, 29 September, that is the week after next.
PN247
And go for how long?---In the Territory they go for a week so anyone who's attending from here, it's much more convenient for us to have them go in the week of the holidays than it is obviously for them to be away from school. In South Australia they have two weeks' holiday.
PN248
Can you turn to paragraph 27 of your statement - before we get to that,
Ms Barton Johnson, if as is threatened schools are unable to collect materials and despatch them by 26 September, what ultimately
is the consequence for students affected by that failure?---I don’t really know. The SACE board of South Australia was unable
to or has been unable to at this stage to advise me what the consequences will be. But there’s obviously a range of consequences
and it ranges from the student’s results won’t be considered to at the other end of the spectrum emergency panels, or
an alternative arrangement will be set up. If an alternative arrangement I mean - being optimistic, an alternative arrangement was
established it would still mean that our students were treated differently not the same as other students. So and different can
be better but it can be worse as well. So it’s obviously much more desirable for our students to be treated the same and therefore
to have their moderation materials considered during the scheduled moderation meetings.
**** SUSAN ELLEN BARTON JOHNSON XN MR SNADEN
PN249
Yes thank you. Can you turn to paragraph 27 of your statement? Are you able to explain to the Commission what proportion of the total number of students – sorry I withdraw that – you refer to students, competitors, and private and other non government schools and in schools in South Australia, can you explain to the Commission what proportion of students across the Northern Territory and South Australia are educated in government schools in the Northern Territory?---We have about 5 per cent of the students and because we have about 5 per cent of the students it’s not a statistically large enough number if our kids under perform on exams or in any class to sway or skew the whole of state results, or the whole of cohort results. What that means for our kids, if our kids are underperforming relative to their peers in our private schools or their peers in South Australian government or private schools then they will be disadvantaged in the calculation of their tertiary entrance rank. Now the kids in – it’s a competition for a ranking position. If our kids have a different exam preparation, a shorter exam preparation, less access to their teachers in their preparation time for their exams and their end of year assessments, they will be disadvantaged and as I said it’s a competitive arrangement.
PN250
Yes thank you just one final question in relation to final Northern Territory certificate of education exams, do you know when those exams are scheduled to complete?---I don’t know the final date but they start on 3 November, it’s normally two and a half week, or a two week or a two and a half week period.
PN251
Yes, so okay, no further questions.
THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr Durbridge do you have some questions?
<CROSS-EXAMINATION BY MR DURBRIDGE [11.32AM]
PN253
MR DURBRIDGE: Ms Barton Johnson you are the – you are employed by the Commissioner for Public Employment as - - -
PN254
THE SENIOR DEPUTY PRESIDENT: Assistant general manager teaching, learning and standards.
PN255
MR DURBRIDGE: Yes, and you are also a member of the Safe Sport of South Australia?---Yes.
PN256
You’ve worked within the system education systems in both the Territory and South Australia, is that correct?---I have, would you excuse me for just a moment I will turn my phone off.
**** SUSAN ELLEN BARTON JOHNSON XXN MR DURBRIDGE
PN257
Yes, thank you?---Sorry.
PN258
That’s all right in your statement you talked about the trial exams and you told the Commission that these trial exams were for the purpose of statistical and social moderation of the student’s final NTCE certificates is that correct?---No, it’s not, no.
PN259
Can you explain the difference between the trial exam and the final exam?
PN260
MR SNADEN: Hasn’t she already done that?
PN261
THE SENIOR DEPUTY PRESIDENT: Well he can ask the response, yes, answer the question?---Sorry should I answer the question?
PN262
Yes?---The trial exams are set and marked in a school by the teacher and the final exams are set and marked by the SACE Board of South Australia. The final exam mark FUAC does the count towards the students grade. The trial exam mark may or may not – well the trial exam is used by teachers to base their predicted examination mark which may or may not count towards the students’ final grade.
PN263
MR DURBRIDGE: Can you elaborate, what is the meaning of moderation which is the purpose of the trial exam?---No, moderation is not the purpose of the trial exam.
PN264
Well why are students undertaking trial exams?---For the obvious reason, practise to as a formative assessment item, so they can determine areas of strengths and weaknesses and work on the areas of weaknesses obviously before the actual exam and they are also used by teachers to – as the basis for their predicted examination mark which is submitted to the SACE Board of South Australia prior to the actual final exams.
PN265
Can I put to you then that not sitting the trial exam at the time prescribed is quite different to not undertaking the final exam?
PN266
THE SENIOR DEPUTY PRESIDENT: I don’t understand that question.
PN267
MR DURBRIDGE: If a student does not sit for the trial exam it would have quite a different impact on their academic score to not being able to sit for the final exam is that correct?---That's correct.
**** SUSAN ELLEN BARTON JOHNSON XXN MR DURBRIDGE
PN268
THE SENIOR DEPUTY PRESIDENT: But your point as I understood it Ms Barton Johnson was that if a student sits a final exam without having sat the trial exam that student may or probably would be disadvantaged?---Yes.
PN269
MR DURBRIDGE: My question Ms Barton Johnson, the degree of disadvantage in not sitting of the trial exam I put it to you is nothing like not turning up for the final exam or not participating in the final exam?---Generally that might be the case, but when there are kids who suffer from sort of misadventure or illness for the final exam and they don’t turn up for that the consequences can be dire if they have also not done the trial exam as their predicted examination mark is not based on something that is an examination.
PN270
So the answer is some students may suffer a disadvantage if they were unable to then sit the final exam?---Some students will suffer a disadvantage if they are unable to sit the final exam.
PN271
Thank you. You told the Commission that not all subjects have the deadline of next week, but you weren’t able to tell us which subjects they were and how many students are affected is that correct?---I can tell you which subjects they are, I’m unable to tell you how many students are affected.
PN272
But you did tell us that of the cohort of 850-odd students in the Territory undertaking the certificate about 400 would be taking these trial exams next week is that correct?---Yes.
PN273
I understand – or can you tell us which schools will be affected?---My understanding is that it’s Casuarina Senior College, Palmerston High School and Nhulunbuy High School.
PN274
Casuarina, Palmerston and Nhulunbuy I picked up but which was the other
one?---That’s it those three.
PN275
Right Casuarina, Nhulunbuy and Palmerston and where are the largest number of students and how many are at that school?---The largest number of students are at Casuarina Senior College.
PN276
In fact Casuarina is one of the biggest schools in South Australia and the Northern Territory?---Yes.
PN277
Yes are you aware of a memorandum from the Principal at Casuarina issued by her on 20 September?
**** SUSAN ELLEN BARTON JOHNSON XXN MR DURBRIDGE
PN278
THE SENIOR DEPUTY PRESIDENT: Today?
PN279
MR DURBRIDGE: Yes?---No.
PN280
I would ask that you be shown it?
PN281
THE SENIOR DEPUTY PRESIDENT: That might be somewhat difficult, is there somebody in the court room who can show it to the witness? Apparently not, how do you think that it can be shown to the witness Mr Durbridge?
PN282
MR DURBRIDGE: I’m hoping one of my colleagues will have a copy of it your Honour.
PN283
UNIDENTIFIED SPEAKER: Yes, your Honour we do in the courtroom.
PN284
MR DURBRIDGE: They sent it to me this morning.
PN285
MR LAMPE: No, that’s not the one.
PN286
THE SENIOR DEPUTY PRESIDENT: Well when that document - - -
PN287
UNIDENTIFIED SPEAKER: Maybe we don’t.
PN288
THE SENIOR DEPUTY PRESIDENT: Well Mr Durbridge in any event – just a moment, if the witness is not aware of this document what do you want to do with this through this witness?
PN289
MR DURBRIDGE: I think the witness should be aware of this document as it deals with precisely the issue that she is telling us about at the largest school in South Australia and the Northern Territory.
PN290
THE SENIOR DEPUTY PRESIDENT: Well she should be aware of it, but she’s not, so what point do you want to make by giving her the document?
PN291
MR DURBRIDGE: Well I will simply ask you whether you were aware that alternative arrangements have been made for all students at Casuarina Secondary College and have been conveyed to the teachers about the participation of all students at Casuarina in the trial exams next week, regardless of whether or not industrial action occurs?---No, I wasn’t aware of that.
**** SUSAN ELLEN BARTON JOHNSON XXN MR DURBRIDGE
PN292
THE SENIOR DEPUTY PRESIDENT: That’s something you may want to tender and deal with Mr Durbridge but - - -
PN293
MR DURBRIDGE: I will your Honour.
PN294
THE SENIOR DEPUTY PRESIDENT: Yes.
PN295
MR DURBRIDGE: And are you aware also that at Nhulunbuy High School one of the other schools you mention, there are no year 12 students participating in trial exams next week and they have been set for week 1 term 4, are you aware of that?---I spoke to the NTEC coordinator on at Nhulunbuy High School on Thursday and she advised me that trial exams at Nhulunbuy High School are scheduled for next week.
PN296
THE SENIOR DEPUTY PRESIDENT: Sorry to whom did you speak?---To the NTEC coordinator.
PN297
The NT?---The Northern Territory Certificate of Education, the NTCE coordinator at Nhulunbuy High School she was in Darwin for an NTCE coordinator’s conference.
PN298
Yes.
PN299
MR DURBRIDGE: You mentioned assistant principal Chris Harding told you that the South Australian certificate of education authorities could not reschedule the timetable for dealing with these trial exam results, is that correct?---No, Chris Harding didn’t tell me that. Chris Harding didn’t tell me that, no.
PN300
THE SENIOR DEPUTY PRESIDENT: What did you say that Chris Harding told you, just repeat that would you? You said earlier and I can’t find my note that quickly, that Chris Harding told you something?---He advised me that Casuarina Senior College as a result of strike action, the staff wouldn’t have marked work ready for dispatch on 26 September.
PN301
Yes thank you. Yes.
PN302
MR DURBRIDGE: You then told us that alternative arrangements maybe able to be made but that may treat the students differently and may advantage them or disadvantage them.
**** SUSAN ELLEN BARTON JOHNSON XXN MR DURBRIDGE
PN303
MR SNADEN: Sorry your Honour that’s not what she said.
PN304
THE SENIOR DEPUTY PRESIDENT: No, it’s not my recollection.
PN305
MR DURBRIDGE: Well can you tell us about alternative arrangements that may have been able to be made?---There are no alternative arrangements that are able to be made.
PN306
Isn’t that different to what you told us before?
PN307
THE SENIOR DEPUTY PRESIDENT: No, it’s not?---No.
PN308
No that’s said in relation to paragraph 23 of the witness statement I think and Mr Snaden updated the Commission in relation to that and as of today she was advised that the date can’t be changed and alternative arrangements can’t be made.
PN309
MR DURBRIDGE: You told us that this was set by military precision, that flights had been booked and that no different arrangements could be made is that correct?
PN310
THE SENIOR DEPUTY PRESIDENT: That’s what Ms Barton Johnson told us yes.
PN311
MR DURBRIDGE: But we’re here talking about Casuarina High School where alternative arrangements have been made.
PN312
THE SENIOR DEPUTY PRESIDENT: Well the witness doesn’t know about that she told you she doesn’t know that.
PN313
MR SNADEN: And further to that your Honour we’re not talking about the same thing, this memo which the witness doesn’t know about anyway.
PN314
THE SENIOR DEPUTY PRESIDENT: The trial exams, yes.
PN315
MR SNADEN: Is about trial exams, it’s not about the collection of material.
PN316
THE SENIOR DEPUTY PRESIDENT: Yes, that’s right Mr Durbridge.
PN317
MR DURBRIDGE: But your Honour the material that is to be collected is the result of the holding of trial exams.
**** SUSAN ELLEN BARTON JOHNSON XXN MR DURBRIDGE
PN318
THE SENIOR DEPUTY PRESIDENT: No, I don’t think so, that’s not my understanding.
PN319
MR SNADEN: No, it’s not.
PN320
THE SENIOR DEPUTY PRESIDENT: Well perhaps you can clarify that Ms Barton Johnson?---It would not normally be the result of trial exams, no.
PN321
MR DURBRIDGE: Well I stand corrected I’m sorry. I think that’s – those are the only questions I have your Honour.
PN322
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Snaden any re-examination?
PN323
MR SNADEN: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes thank you. Thank you Ms Barton Johnson you may be excused.
<THE WITNESS WITHDREW [11.46AM]
PN325
THE SENIOR DEPUTY PRESIDENT: Does that conclude your evidentiary case?
PN326
MR SNADEN: It does your Honour.
PN327
THE SENIOR DEPUTY PRESIDENT: Now Mr Durbridge do you appear to want to tender this document that you handed up, I think you’re going to have to do it through somebody in Darwin. What I’m going to do is adjourn briefly to enable you to work out how you’re going to deal with it, because the status of it needs to be clarified, it’s not a document that I would accept even without hearing Mr Snaden, without somebody telling me what it is, how it came about and to whom it’s been distributed. I’ll adjourn until 12 o’clock to enable you to get some instructions.
PN328
MR DURBRIDGE: Thank you your Honour.
<SHORT ADJOURNMENT [11.47AM]
<RESUMED [12.07PM]
PN329
THE SENIOR DEPUTY PRESIDENT: Yes Mr Durbridge.
PN330
MR DURBRIDGE: Thank you your Honour. Your Honour the urgent nature of this hearing has made it a bit difficult to organise documents in the shortage of time and we have a problem.
PN331
THE SENIOR DEPUTY PRESIDENT: Yes, it’s never easy when you’re in one state and the action is happening in another state.
PN332
MR DURBRIDGE: Especially as I was in another state when I found out about it and came back last night. But anyway we will endeavour to hand up that document when we have it in our possession in the hearing room in Darwin and what I would like to do is ask Mr Lampe to take the stand and swear and tell us what the prominence of that document is in due course.
PN333
THE SENIOR DEPUTY PRESIDENT: Yes, very well.
PN334
MR DURBRIDGE: When he’s got it in his hands as we have it in ours. But I thought if I could talk about the general issue first.
PN335
THE SENIOR DEPUTY PRESIDENT: Yes.
PN336
MR DURBRIDGE: As you’ve heard this is not a dispute which commenced yesterday, or the bargaining about which commenced yesterday, it’s been going on for well over a year and has been conducted in a way appropriate to the conforming with the Act and there’s never – there has not been any allegation that the union has not been bargaining in good faith et cetera. We say that suspension at this time is not an appropriate response to the situation. To put it in a common term, it’s using a hammer to crack a nut. But we do support a role by the Commission as we did yesterday when we appeared before Commissioner Raffaelli in an attempt to establish an alternative dispute resolution process. We support continuing down that path.
PN337
THE SENIOR DEPUTY PRESIDENT: But you’re not prepared to take off the – to remove the threat of industrial action while you do so?
PN338
MR DURBRIDGE: Well if I can answer that question directly, yes we are because we understand the Act and we understand the provisions of that section of the Act. But the department at present is saying they refuse to participate in that process and it takes two to tango and our executive meets on Monday. So I think you can see the knot that’s been created here which we say would not be assisted by the suspension of the bargaining period in any way.
PN339
THE SENIOR DEPUTY PRESIDENT: Well let me try to understand you’re saying that if the department engages in discussions, or the employer engages in discussions with the union under the ADR process, the strike that is planned for next week will not go ahead?
PN340
MR DURBRIDGE: The executive of the NT branch will be aware when they meet that the terms of engaging in alternative dispute resolution include not taking industrial action while that voluntary process is under way. I can’t pre-empt their decision your Honour.
PN341
THE SENIOR DEPUTY PRESIDENT: No.
PN342
MR DURBRIDGE: But the officials who are here in Darwin, and my instructions are that they will abide by the provisions of the Act.
PN343
THE SENIOR DEPUTY PRESIDENT: Well they say they are at the moment.
PN344
MR DURBRIDGE: Well they are at the moment unless you decide otherwise.
PN345
THE SENIOR DEPUTY PRESIDENT: Yes.
PN346
MR DURBRIDGE: We are engaged in legitimate authorised campaign of industrial action.
PN347
THE SENIOR DEPUTY PRESIDENT: Yes, well what I’m minded to do subject to hearing from Mr Snaden, is to adjourn this matter temporarily while you both speak with each other and get instructions. If by some form of agreement the industrial action can be taken off the table and I understand what you say about needing formal approval of the executive but I assume that should an agreement be arrived at in principle that would be done, then these proceedings may not be necessary. But unless there’s something tangible before me these proceedings need to continue.
PN348
MR DURBRIDGE: Well your Honour - - -
PN349
THE SENIOR DEPUTY PRESIDENT: Is there any value in me adjourning – taking a luncheon adjournment now so that you can talk?
PN350
MR DURBRIDGE: Well there may be your Honour but the problem we have with that is that we’ve had the manager of industrial relations tell us that the department is consciously refusing to go down that path, they would not continue to participate before Commissioner Raffaelli - - -
PN351
THE SENIOR DEPUTY PRESIDENT: He did say at that stage and - - -
PN352
MR DURBRIDGE: He did say at that stage.
PN353
THE SENIOR DEPUTY PRESIDENT: And it was not put to him that the industrial action may be taken off the table and discussions take place. I mean I don’t know because I’m not quite sure what you mean about trying to resolve the issue under the dispute resolution procedure. I don’t need to go there at the moment but it seems to me to be the introduction of a new twist that the employer should have some regard to perhaps and to seek some instructions. I don’t know Mr Snaden may just say to me no, I just want to go on.
PN354
MR DURBRIDGE: Well can I answer your question or the question that’s implicit?
PN355
THE SENIOR DEPUTY PRESIDENT: Yes.
PN356
MR DURBRIDGE: You were told that the union recommended acceptance of a package in principle to it’s members, there was a vote around the Territory which was very close and we don’t want to exacerbate the dispute we want to settle it and we think it can be settled which is why we asked for a proceeding with Commissioner Raffaelli which the department refused to continue with. Now all, I was minded to ask you in lieu of suspending the bargaining period which I think would create a whole new ball game, to recommend that the parties do engage in alternative dispute resolution and tag it with that the parties must have regard to their responsibilities under that provision of the Act.
PN357
THE SENIOR DEPUTY PRESIDENT: Under what provision of the Act?
PN358
MR DURBRIDGE: Well the Act which – the provision which says that you may not engage in industrial action on either side during the course of that process. If you did that I am sure that the executive of the Northern Territory branch would abide by the rule.
PN359
THE SENIOR DEPUTY PRESIDENT: What provision of the Act are you referring to?
PN360
MR DURBRIDGE: It’s the 500’s your Honour I think it’s 698, sorry 698. The Commission must refuse - - -
PN361
THE SENIOR DEPUTY PRESIDENT: What section are you looking at?
PN362
MR DURBRIDGE: 701(7) is what I’ve marked, the Commission may make recommendations arising from such a process –but I can’t pick it out right now at the moment your Honour but our understanding is in any case engaging in mediation of that kind and I’m engaged in one in South Australia at the moment, it is the practice that the parties commit not to exacerbate the dispute by taking action on either side.
PN363
THE SENIOR DEPUTY PRESIDENT: I understand that is the position that you would be advancing, I’m not sure that there is anything in the Act that gives us the - - -
PN364
MR DURBRIDGE: I’m sure I did see something.
PN365
THE SENIOR DEPUTY PRESIDENT: But anyway well Mr Snaden do you have any comments at this stage?
PN366
MR SNADEN: I do your Honour. There’s no criticism of anyone, but so far what has been said is a little vague, we’re not quite sure whether there’s going to be any undertaking on behalf of the union to withdraw threatened industrial action if indeed something can be negotiated in terms of an application for alternative dispute resolution. In the circumstances from our perspective we say that there are circumstances that are proof before the Commission which invoke or give rise to an exercise of the powers under section 433 and 430. Given the timeliness of the application and the fact that this industrial action is due to start on Tuesday morning, we don’t have a lot of time.
PN367
There is a real risk if we do adjourn and subsequently don’t reach agreement for this to be, the process or otherwise under the alternative dispute resolution, that we come back here, argue 433 and 430 and don’t have things resolved or unable to take the necessary mechanical processes in terms of service and notification of teachers to ensure the - - -
PN368
THE SENIOR DEPUTY PRESIDENT: I understand that.
PN369
MR SNADEN: Yes, so I am reminded your Honour sub section 433(7) seeks to contemplate that the Commission can invite the parties to partake in alternative dispute resolution if an order under subsection (1) to suspend the bargaining period - - -
PN370
THE SENIOR DEPUTY PRESIDENT: That’s a bit circular because Mr Durbridge says your client has already indicated that it doesn’t want to participate in it.
PN371
MR SNADEN: Yes at this time.
PN372
THE SENIOR DEPUTY PRESIDENT: Yes. Well I take your point and unless there’s some agreement breached between the parties I propose to continue but I notice the time it’s a little early for the luncheon adjournment but not very early, so what I propose to do is adjourn until a quarter past one and take the luncheon adjournment. That gives you an opportunity to get instructions and talk to the other side during that period if you wish but if there’s no agreement reached between the parties as to the course of conduct the matter will continue at quarter past one.
<LUNCHEON ADJOURNMENT [12.19PM]
<RESUMED [1.15PM]
PN373
THE SENIOR DEPUTY PRESIDENT: Mr Snaden.
PN374
MR SNADEN: Your Honour, before we start, at the start of the day your Honour made reference to - I forget what the decision was.
PN375
THE SENIOR DEPUTY PRESIDENT: The State of Victoria v HSUA.
PN376
MR SNADEN: That's the one, your Honour, yes, versus HSUA. We have not been able to access the Commission's website either. I gather it's a universal problem. What my instructor has accessed is the last page of another case that makes reference to that case.
PN377
THE SENIOR DEPUTY PRESIDENT: Yes.
PN378
MR SNADEN: And that last page contains a summary which amongst other things says:
PN379
The Commission not limited to terminating bargaining period only when industrial action is taking place.
PN380
Now, that may or may not be of any assistance to the Commission.
PN381
THE SENIOR DEPUTY PRESIDENT: Yes. I saw a reference in another case to the excerpt from State of Victoria v HSUA to that effect but that's all I know but I thought I should raise it with the parties. Mr Durbridge doesn't seem to be taking a jurisdictional objection in any event.
PN382
MR SNADEN: No.
PN383
THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. Where are we at, gentleman?
PN384
MR SNADEN: Well perhaps I can answer that. On Wednesday of this week the union put a position to the Commissioner about, amongst other things, resourcing levels that it wants to be incorporated into the new agreement. That position has been referred to the Northern Territory Cabinet and there is a Cabinet meeting scheduled to decide the government's position on Tuesday and that's the reason why there's been reluctance on the part of the Commissioner to agree to go to alternative dispute resolution. It may be that when Cabinet meets on Tuesday it's happy with the proposal and accepts it, but it may not be.
PN385
THE SENIOR DEPUTY PRESIDENT: Yes.
PN386
MR SNADEN: But that's why there is the reluctance to go to alternate dispute resolution.
PN387
THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Durbridge, in light of that?
PN388
MR DURBRIDGE: I don't see how that changes anything, your Honour.
PN389
THE SENIOR DEPUTY PRESIDENT: No, I think we have to proceed.
PN390
MR DURBRIDGE: The fact that the Cabinet is going to discuss a resourcing question is a completely different issue to the process and through which the dispute should be managed and resolved, because it will be resolved sooner or later and we want it to be resolved sooner. And as I was putting to you, we believe it's inappropriate in doing that to suspend the bargaining period because it would set back what is a very close and very high level of agreement, as witnessed by the department's statements and that we reached agreement in principle and took that agreement to members. Now we have to do some more work and our proposal is, and I think section 704 is the appropriate section, that the department should agree that a matter that arises in the course of a bargaining dispute is able to be assisted by the Commission through an alternative dispute resolution process.
PN391
Now, I know you can't order them to do that but perhaps you can recommend that they do that and we ask that you certainly not cast us into a pre enterprise bargaining framework by suspending the bargaining period. The Act works by encouraging the parties to reach agreements. There is none of the old arbitral powers to impose solutions on the parties and if the suspension went ahead we can anticipate a very negative response. We would have no rights and in fact on the grounds that we've heard, and I'll come to them, it would set an incredible precedent not just for the industry because it would mean that really the purpose of the Act which is to allow the parties to engage in industrial disputation under certain terms would be frustrated and yet provide no other alternative means to resolve disputes.
PN392
Section 433(1) firstly specifies that suspension is only possible under the terms of the section under which the application is made, so we can't have the other parties coming to suggest to you that perhaps you could do something else to terminate or suspend the bargaining period. Section 433(1)(d) talks about significant harm to a person and both significant harm to a person and that the Commission considers suspension is appropriate. So you do have a wide degree of discretion here. It's not just establishing significant harm to a person. You must also be convinced that it's appropriate and we put to you that it would be inappropriate and counter productive to do that and in making up your mind about whether it's appropriate you're invited to look at the objects of the Act which include section 3(h) and (i) looking at alternative forms of dispute resolution and balancing the right to take industrial action for the purposes of collective bargaining with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action.
PN393
Those are the terms under which the objects invite you to consider suspension appropriate and secondly, any other matters. So you do have a wide discretion in the matter and we have and will apprise you of a number of facts which you have not yet heard which will help you to make up your mind in that way. And under section 433(2), to go back to the provisions where the application has been made, the Act says that the Commission may have regard to a number of matters -
PN394
The Commission must suspend a bargaining period if industrial action is being taken. An application for the bargaining period to be suspended if it is made by an organisation -
PN395
et cetera, and is threatening to cause significant harm to any person and that the suspension is appropriate having regard to whether the suspension would be contrary to the public interest or inconsistent with the object of this Act and any other matters that the Commission considers relevant. If the Commission proceeds under subsection (1), section 433(7) says that the Commission must refer to the parties that they may then proceed to a formal alternative dispute resolution under Part 13 of the Act.
PN396
So the point I'm making, your Honour, is that the union is - - -
PN397
THE SENIOR DEPUTY PRESIDENT: That's not necessarily the same form of alternative dispute resolution process that you're envisaging.
PN398
MR DURBRIDGE: No, no, your Honour, I accept that. But what I put to you is that we are suggesting that form of resolution of the dispute or handling of the dispute, putting a submission to you which is entirely consistent with both the objects of the Act and the scheme of the Act. It's not something we've dreamt up and in addition we have commenced going down this road before we were aware that the government wanted to take the course of suspending the bargaining period which we heard on the radio in a radio broadcast with the Commissioner. So now we come here today on a Saturday morning and it's said that, well, we haven't done everything we can to change our decisions about industrial action.
PN399
Well, it would be very difficult to have done that and I could advise you that the Northern Territory branch of the union, the executive of the union, has members in all parts of the Territory, as you can imagine, and getting them together to meet is not simple. But if it will assist in bringing together the parties we are prepared to convene a meeting tomorrow which will involve teleconference to Alice Springs, et cetera, but we can do that.
PN400
THE SENIOR DEPUTY PRESIDENT: A meeting of members?
PN401
MR DURBRIDGE: Of members of the executive to review this position, if the government is prepared to indicate that in lieu of pursuing suspension they will look at exploring the benefits of alternative dispute resolution. Your Honour, we've heard about a number of students who are allegedly to be harmed by this industrial action if it goes ahead and yet we've not heard how many there are or whether any will necessarily be disadvantaged and we've heard that at three schools there are to be trial exams taking place which will affect particular students and it was in that regard that I sought to hand up a memorandum from the principal of Casuarina Secondary College or high school which is the largest school where these trial exams are to take place and for the purpose of allowing you and the Commission to understand that document I'd like to ask Adam Lampe to give evidence because he is the man who is aware of where this document came and he's the one who sent it to me.
PN402
THE SENIOR DEPUTY PRESIDENT: Yes. You're calling Mr Lampe, are you?
PN403
MR DURBRIDGE: Yes.
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lampe, would you go into the witness box please.
<ADAM LAMPE, SWORN [1.27PM]
<EXAMINATION-IN-CHIEF BY MR DURBRIDGE
PN405
MR DURBRIDGE: Mr Lampe, you are the secretary of the Northern Territory branch of the AEU?---Yes, I am.
PN406
How long have you held that position?---About 18 months.
PN407
It must seem longer. And what were you before that?---I was a teacher at Casuarina Senior College for seven years and before that I was at Dripstone High School for five years.
PN408
And so that's a total of 12 years teaching in the Northern Territory?---That's correct.
PN409
And at what levels did you teach at Casuarina Senior College?---11 and 12.
PN410
Are you familiar with the requirements of the Northern Territory Certificate of Education, its processes and methodologies?---Yes, I am.
**** ADAM LAMPE XN MR DURBRIDGE
PN411
And can you then tell us in relation to that are you aware of a document headed Three Days Stop Work Action, Tuesday, 23 September to Thursday, 25 September?---Yes, I have it in front of me now.
PN412
And the name of Suzan Healy?---That's correct.
PN413
I would like to tender that document, your Honour.
PN414
THE SENIOR DEPUTY PRESIDENT: Yes, well, what are we tendering, a memorandum with an attachment of arrangements, is that what you're seeking to tender?
PN415
MR DURBRIDGE: Yes.
PN416
THE SENIOR DEPUTY PRESIDENT: And there's a couple of emails but I take it they're not part of the documents?
PN417
MR DURBRIDGE: No, they're not but I'll come to them.
PN418
THE SENIOR DEPUTY PRESIDENT: Now, Mr Snaden, you want to say something about it, did you?
PN419
MR SNADEN: Well, I think before it's admitted into evidence this witness should say something about how he got it to establish that it is what it appears to be.
THE SENIOR DEPUTY PRESIDENT: Yes. How did you get, Mr Lampe?
---This was given to me by Glenn Dixon who is also an assistant principal at Casuarina Senior College.
EXHIBIT #R1 MEMORANDUM WITH AN ATTACHMENT OF ARRANGEMENTS
PN421
MR DURBRIDGE: Mr Lampe, the document that you have provided, can I take you to paragraph 5?---Yes.
PN422
Can you tell us what those arrangements are?---My understanding is that the trial exams are going to go ahead as scheduled whether or not there is a strike next week or not. Those plans have been put in place and parents and students have been notified via a letter which was sent out yesterday.
**** ADAM LAMPE XN MR DURBRIDGE
PN423
And we heard earlier that the AEU does not have as members all teachers in the Northern Territory. Can you tell us how many members the AEU has at Casuarina Senior College?---The members at Casuarina Senior College I'm not exactly sure of the exact number, 85. That is the exact number, sorry, 85.
PN424
Of a staff of what number? You'll need to answer just on your own?---110.
PN425
Thank you. Can you tell us whether these arrangements in your opinion are adequate to allow of the students at Casuarina to undertake the trial exam?
PN426
MR SNADEN: Before the witness answers that, your Honour, this is not a question that this witness has any hope of answering. He's not a teacher there. He's been asked to give an opinion about a matter that couldn't possibly have any basis for, it's speculative and it's a waste of time in my submission.
PN427
THE SENIOR DEPUTY PRESIDENT: I don't agree with you. He was a teacher at the school and I would think he'd have a pretty good idea of how these arrangements may or may not work. I'll allow the question.
PN428
MR DURBRIDGE: Do you want me to repeat the question?---In my opinion - no, that's all right. In my opinion it will - exams will be able to go ahead no problems whatsoever.
PN429
Have you spoken to any other staff at the school who would agree with you?
---Yes, I have.
PN430
Who were they?---Matthew Cranich, Shane O'Halloran.
PN431
Can you give us their positions?---Certainly. Matthew Cranich is a teacher at Casuarina Senior College. He's also a member of our executive. Shane O'Halloran is also a teacher at Casuarina Senior College.
PN432
Thank you?---Tonya Niven is also a teacher at Casuarina Senior College. Glenn Dixon is also a teacher at Casuarina Senior College.
PN433
Was that the same Glenn Dixon whose name we heard earlier in the day?---Yes, that's right.
PN434
Thank you. Can you tell us in your opinion as a former year 11 and 12 teacher 18 months ago whether in your opinion the arrangements will mean that students suffer any prejudice should this industrial action go ahead?---I do not believe there will be any prejudice, no. Do you mean in regards to the predicted mark?
PN435
Yes, academic?---Or in regards to - - -
**** ADAM LAMPE XN MR DURBRIDGE
PN436
In an academic sense?---Yes, look, the predicted mark is not based necessarily on the trial exam. The trial exam is just one test out of many that students sit throughout the year. They sit short tests, they sit longer tests. The trial exam is a practice tool to have a test under similar conditions to the final test. However teachers, I can tell you from experience, when you submit a predicted mark that predicted mark is based on a variety of tests and assessments throughout the year. It would not be based purely on that one exam or one test which in itself does not contribute much to the overall assessment but in terms of informing a teacher how a predicted mark is determined it is only one of the things that a teacher would look at.
PN437
Thank you. Are you aware of the position at Palmerston with respect to any trial exams?---Yes, I spoke with Craig Overall who I believe is an executive teacher currently at Palmerston High School. I asked him how many students were going to be sitting the trial exams next week. He told me 18 was the number. I asked him are those exams gong to be affected at all by the proposed strike action. He said, no, those students have been told that those exams will run as normal and they will be adequately staffed.
PN438
And are you aware of the position at Nhulunbuy?---Yes, I've spoken to Steve Politso who is a member of our executive, he's the vice president actually, he used to be the principal out at Nhulunbuy Primary and he has many contacts still in Nhulunbuy and he's spoken with Kate Middleton who's the principal at Nhulunbuy and he's spoken to another individual which his name I can't recall, but in effect the information is that the trial exams are not going ahead. Well, they were never planned for next week, that the information that I have been given is that those trial exams are happening in week 1 of term 4.
PN439
We've heard from other witnesses that a world skills initiative is scheduled to take place later next week and that students would suffer by not having the opportunity to attend this program.
PN440
MR SNADEN: Your Honour, before my friend goes further and this witness answers, there was no question put in cross-examination regarding the World Skills Trier Trade Program. What my learned friend is trying to do now is raise new matters in respect of this witness that I wasn't allowed to address by way of re-examination of my own witnesses and he shouldn't be permitted to do that.
PN441
THE SENIOR DEPUTY PRESIDENT: Well, normally that's so but we are dealing with rather rushed proceedings. I'll allow the questions but I take on board what you've said.
**** ADAM LAMPE XN MR DURBRIDGE
PN442
MR DURBRIDGE: Thank you, your Honour.
PN443
Can you tell the Commission your views about the effect that the proposed industrial action, if it went ahead, would have on students in year 9?
PN444
MR SNADEN: Your Honour, I object to that question. Again, can you tell the Commission your views, there's no obvious reason why this witness's views would provide any assistance to the Commission, it's speculative and it shouldn't be allowed.
PN445
THE SENIOR DEPUTY PRESIDENT: Yes. Yes, that's right, Mr Durbridge, you better rephrase that.
PN446
MR DURBRIDGE: Are you aware that the World Skills Experience is taking place next week?---Yes, I am.
PN447
And that students from year 9 are scheduled to attend that?---That's correct.
PN448
Should industrial action occur what will be the effect on those students?
PN449
MR SNADEN: The same objection, your Honour. There's nothing to suggest that this witness will know what the effect is going to be. My friend has to establish the basis for that question because he can ask it.
PN450
THE SENIOR DEPUTY PRESIDENT: That's so, Mr Durbridge. How does this witness know? Establish it.
PN451
MR DURBRIDGE: Your Honour, this witness - - -
PN452
THE SENIOR DEPUTY PRESIDENT: No, from him. Not through you?
---Sorry, your Honour, what was the question?
PN453
MR DURBRIDGE: Are you in a position to understand what effect an industrial action would have on those students?---Yes, I am.
If so can you tell us what it is?
PN454
THE SENIOR DEPUTY PRESIDENT: No, let me put it this way. Ms Barton Johnson gave evidence to the effect that there won't be teachers available to take the students to the Work Skills Initiative and if that's the case those students won't be able to go. Do you disagree with that?---Yes, I do.
**** ADAM LAMPE XN MR DURBRIDGE
PN455
Why?---There will - not all teachers are going on strike and the expo is being run through Darwin University and many of those people are vocational education and training teachers who are employed by CDU and many of whom are members of ours. They will be providing the activities including lunch and they have informed me that - not they have informed but one of the people who is actually attending that expo has told me that minimal supervision is all that is needed because they'll be taking care of the majority of that, of the supervision that's necessary. The expo isn't going to be cancelled. It's going ahead and students who wish to go will be able to go.
PN456
Thank you.
PN457
MR DURBRIDGE: Thank you, Mr Lampe. No further questions, your Honour.
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Snaden.
<CROSS-EXAMINATION BY MR SNADEN [1.42PM]
PN459
MR SNADEN: Just on that last point, Mr Lampe, about the expo, you've been told by somebody somewhere that all that's required is for minimal supervision for the expo to continue, is that right, is that a fair - - - ?---Yes, that's right.
PN460
Yes, I see. But you would, wouldn't you, that each individual school is under a duty of care to its students to ensure that there is adequate supervision, you'd agree with that, wouldn't you?---I do agree with that.
PN461
Yes. And it's for the schools to decide what constitutes adequate supervision, you'd agree with that, wouldn't you?---Not necessarily. Certainly schools are required to provide adequate supervision. They don't actually define the terms of what that adequate supervision is. I guess that's up to the department and, you know, whatever policies, whatever that means. The schools don't actually make decisions about - they implement adequate duty of care but what constitutes adequate duty of care is decided by other parties.
PN462
All right. But in any event, it's constituted by the attendance of teachers at the very least. You'd have to agree with that, wouldn’t you?---Yes, I do agree with that.
PN463
So to the extent that may be some possibility of supervision being provided by non teachers that's not really relevant to this question, is it?---It is relevant. Vocational educational and training teachers do have - I mean they teach students of a similar age at the university. They're 14 and 15 year olds and my understanding is that they would be able to provide the duty of care that's necessary.
**** ADAM LAMPE XXN MR SNADEN
PN464
That's your understanding, I see. All right. Now, have you got exhibit R1 there before you?---This is the memorandum?
PN465
Correct?---Yes, I do.
PN466
Now, that was given to you - you've got that there?---I do, yes.
PN467
As I understood your evidence that was given to you by Glenn Dixon?---That's correct.
PN468
And that was this morning, was it?---Yes, it was.
PN469
All right. And you gave evidence that you'd also spoken to a couple of other teachers at Casuarina, Matthew Cranich, Shane O'Hall, Tonya - - - ?---Shane O'Halloran.
PN470
And Tony Niven?---Yes.
PN471
When did you speak to them?---I spoke to Shane and Matthew today and I spoke to Tonya yesterday.
PN472
I see. And Matthew is a member of the AEU executive?---Yes, he is.
PN473
And Shane O'Hall, is he a member of the AEU executive as well?---She?
PN474
I'm sorry?---No, no, she's not.
PN475
Sorry, Shane is a she, is she?---Yes, she is.
PN476
I see, sorry. She's a member of the AEU?---Yes, she's a member of the AEU, yes.
PN477
And similar Tonya Niven, is she a member of the AEU?---No, she's not a member of the executive. She is a member of - - -
PN478
She is a member. In fact she's an active member of the AEU?---Yes, I suppose so.
PN479
And similarly Shane O'Hall is an active member of the AEU?---Shane O'Halloran?
**** ADAM LAMPE XXN MR SNADEN
PN480
O'Halloran, I'm sorry?---Yes, I would say yes, they are active, yes.
PN481
All right. Now, so you haven't spoken directly with Suzan Healy about this matter?---No, no, I haven't.
PN482
No, you haven't. Would you agree with me then, having regard to the fifth paragraph, the paragraph you were taken to where it says:
PN483
Stage 2 students participating in the trial exams will be reporting to the gym as normal.
PN484
And then later on in the seventh paragraph where it says:
PN485
The first priority regarding any organizational arrangements will be given to ensuring stage 2 trial exams proceed as normal.
PN486
You would agree with me, wouldn't you, that those are aspirational statements, that's what Suzan Healy hopes will happen?---That statement in that memorandum may be aspirational but that certainly is not the statement she gave to parents and students in the letter of the 19th that, you know, she said there that exams will be proceeding as normal.
PN487
You accept, don't you, that if there's no teachers there then it won't be possible for exams to proceed as normal?---Quite patently there will be teachers there because not every teacher at the school is a union member so I would imagine that - - -
PN488
Even if only some of the teachers go on strike that by definition will mean that the exams can't proceed as normal, won't it?---I completely disagree. Not all teachers will be invigilating exams. It only needs two teachers in the room, in the gym to invigilate a large exam.
PN489
Yes. And if there aren't enough teachers on a day to maintain that level of invigilation that will necessarily mean that exams can't proceed as normal, won't it?---If there are at least - I'll put a number on it, say five teachers who go to work that day, that will be enough to run the exams and - - -
PN490
THE SENIOR DEPUTY PRESIDENT: What will happen to the rest of the school?
PN491
UNIDENTIFIED SPEAK: Alternative arrangements.
PN492
THE WITNESS: Well, other arrangements are being made through the principal. I mean the principal herself doesn't invigilate. The exams are not including her in the five but - - -
**** ADAM LAMPE XXN MR SNADEN
PN493
THE SENIOR DEPUTY PRESIDENT: I'll ask whoever it was who gave you the instruction about other arrangements to refrain from prompting
you, please?
---Sorry, I didn't hear that.
PN494
Well, I did?---Okay.
PN495
Yes, go on.
PN496
MR SNADEN: Has the witness answered your question, your Honour?
PN497
THE SENIOR DEPUTY PRESIDENT: Yes.
PN498
MR SNADEN: Mr Lampe, do you accept it's the usual practice for trial exams, is it not, that teachers who teach that particular subject will be in attendance prior to the exam so that students can talk to them if they wish, that's the usual practice, isn't it?---No, not necessarily. In fact the teachers who invigilate the exams deliberately do not teach those subjects so they cannot assist those students in the exam so - - -
PN499
Well, I didn't ask whether they assist in the exam or whether they invigilate. I asked whether it was normal practice for teachers who teach the subjects that are the subject of the exams to be in attendance prior to the start of the exam. That's the normal practice, isn't it?---Yes.
PN500
And you'll accept, wouldn’t you, that there will be, and I appreciate you can't pinpoint numbers, but inevitably there will be some teachers who teach subjects who by reason of the strike next week won't be in attendance to meet with students prior to those exams, isn't there? That's the case?---It's possible.
PN501
And doesn't it necessarily flow from that that it is not possible to say that trial exams next week will proceed as normal?---The actual scheduled exams themselves quite plainly will proceed as normal.
PN502
Well that's not the question?---Sorry, say again, sir. Give me the question again.
PN503
You've accepted that it is normal practice, for example, a maths teacher to be in attendance prior to a maths exam. You've accepted that, haven't you?---It's normal practice for the final exams but I guess it is for the trials. Well, normal practice I'm accepting that, yes. I'll accept that.
**** ADAM LAMPE XXN MR SNADEN
PN504
And if for example the maths teacher decides that he or she is going to go on strike then it won't be possible for the maths teacher to be there at the trial exam next week?---Okay, yes, I'll accept that.
PN505
And my question was doesn't it necessarily follow from that that it is impossible for you to say or for Ms Healy to say that trial exams next week will proceed as normal? You'd have to accept that?---No, I don't.
PN506
You don't accept that?---No, the exams themselves are scheduled and they're going to proceed as normal. What you're talking about teachers are being - I guess the majority of teachers do, it's not necessarily a requirement though and quite often with a trial exam I wasn't there. With the final exams it's a bit of a different theme because you try and make students more comfortable. But it wouldn't be - I mean five minutes before the exam you couldn't really give them too much help. It's just a matter of them being there making them feel more comfortable before going in.
PN507
Well, in light of that answer, I'll give you an opportunity, do you agree with me when I say - - -
PN508
THE SENIOR DEPUTY PRESIDENT: Isn't it more a matter for submissions, Mr Snaden?
PN509
MR SNADEN: Yes, your Honour.
PN510
Mr Lampe, do you agree that Casuarina is the most unionised of the secondary schools in the Northern Territory?---No, it's not.
PN511
All right. But do you agree that the overwhelming majority of teachers at the school are union members?---Yes.
PN512
You said you spoke to, I may not have got the name correct, Craig Overall at Palmerston, was that the right name?---Yes, that's the name.
PN513
And Craig Overall is an active member of the AEU, isn't he?---Not really, no.
PN514
He's a member?---He is a member but I wouldn't say he is - I wouldn't call him an outright active member.
PN515
Yes, I have no further questions.
**** ADAM LAMPE XXN MR SNADEN
PN516
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Any re-examination, Mr Durbridge?
PN517
MR DURBRIDGE: No, your Honour.
THE SENIOR DEPUTY PRESIDENT: Thank you. You may be excused.
PN519
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Durbridge.
PN520
MR DURBRIDGE: Well, your Honour, this section of the Act is not designed to cope with situations where people are not going about having their normal business affected. Of course industrial action affects people. It is annoying, it is disadvantaging in many ways, in many settings and that is a completely legitimate part of the way this Act works. But in looking at significant harm to a person, section 433(2) looks at what the Commission may have regard to and I suppose in doing that the legislators are giving a guide to the sorts of things that the Commission should look for. It's not exhaustive, I'm not pretending it is. But firstly, we're not talking about employees under section (a).
PN521
I think section (b) is clearly designed for the secondary boycott type of situation where people ban or affect a stream of production.
PN522
THE SENIOR DEPUTY PRESIDENT: Sorry, which section are you talking about now?
PN523
MR DURBRIDGE: 433(2), your Honour.
PN524
THE SENIOR DEPUTY PRESIDENT: 433(2), thank you.
PN525
MR DURBRIDGE: Because the application relates to section 433(1)(d).
PN526
THE SENIOR DEPUTY PRESIDENT: Yes.
PN527
MR DURBRIDGE: Significant harm to a person.
PN528
THE SENIOR DEPUTY PRESIDENT: Yes, I'm with you.
PN529
MR DURBRIDGE: And in considering this you're given some may have regard tos. The first is about employees. The second is whether the person's particularly vulnerable to the effects of the action and I'm saying I think the legislators have in mind their - nobody here is suggesting that the teachers in the Northern Territory have selected year 12 students and year 9 students to be particularly vulnerable.
PN530
THE SENIOR DEPUTY PRESIDENT: Well, they don't have to have been selected.
PN531
MR DURBRIDGE: No.
PN532
THE SENIOR DEPUTY PRESIDENT: They already need to be people who are particularly vulnerable.
PN533
MR DURBRIDGE: No, I appreciate that.
PN534
THE SENIOR DEPUTY PRESIDENT: And aren't years 11 and 12 particularly vulnerable to disruption to their routine?
PN535
MR DURBRIDGE: Well, you could argue that, yes.
PN536
THE SENIOR DEPUTY PRESIDENT: I'm not arguing but I’m postulating.
PN537
MR DURBRIDGE: You could postulate that and you may have regard to that says the legislator. The extent to which in (c) threatens the ongoing viability of the business, the supply of goods or services to a business, a capacity to fulfil a contractual obligation or cause economic loss.
PN538
THE SENIOR DEPUTY PRESIDENT: That section is not relied upon by the employer.
PN539
MR DURBRIDGE: No. Well, we're not told - we're told that the application is about significant harm to a person and you're given this guidance about what you may look at or any other matters in (d).
PN540
THE SENIOR DEPUTY PRESIDENT: Yes.
PN541
MR DURBRIDGE: So my submission is that significant harm is there given either an economic or a particularly vulnerable type of character and/or a person who is an employee and I'm not saying that one couldn’t say that students welfare comes under this heading but I do submit that it gives you an idea of the scale of harm that the Act has in mind when significant harm is argued. I put to you that we've not heard or not had proven to us that such a degree of significant harm will occur in the Northern Territory next week. I also put to you that in your wider capacity, your wider discretion given to you by the Act that it is far preferable that you not suspend the bargaining period and thereby in effect freeze the process of agreement making because that would be a consequence, but rather encourage the parties to continue to meet with the assistance of the Commission in one way or another and to close the gap which is relatively small.
PN542
It was shown by the evidence that we've had that there was an agreement in principle which the union in good faith took to its members which was narrowly rejected. Now, there was nothing surer to widen that gap than to take the course of action that the Commissioner is now taking because they are saying we are not interested in talking to you and negotiating with you. This has been a long and frustrating period and we're now going to take the action of saying we no longer need to deal with, you have no rights, and that's the effect of suspension. So in our submission it's far better to - - -
PN543
THE SENIOR DEPUTY PRESIDENT: Can I just stop you there for a moment?
PN544
MR DURBRIDGE: Yes.
PN545
THE SENIOR DEPUTY PRESIDENT: Is it correct to say that the employer is saying it's not going to negotiate with the union or is it rather the position as I understand it that the employer is not minded to engage in an ADR process under the auspices of the Commission? That's not closing the door on further negotiation, is it?
PN546
MR DURBRIDGE: Well, nothing could be guaranteed to make further negotiation more difficult than to suspend the rights that we have in the bargaining period.
PN547
THE SENIOR DEPUTY PRESIDENT: No, answer my question, please.
PN548
MR DURBRIDGE: Well, that was put to us as in the alternative course to engaging in a process of reaching an agreement under the auspices of the Commission. We're not saying ADR is the only way - - -
PN549
THE SENIOR DEPUTY PRESIDENT: Sorry, what was put as an alternative, I'm sorry?
PN550
MR DURBRIDGE: I don't believe this is a matter of privacy. It's the content of the matters that were put before Commissioner Raffaelli. There had been no agreement to enter into mediation. It was a hearing and before him we were told no, we're not interested in going down the course of mediation, we are going to terminate the bargaining period and you can go and do what you like.
PN551
THE SENIOR DEPUTY PRESIDENT: Well, let's be clear here. Mediation meaning we're not going to utilise a clause in the current nominally expired collective agreement as a route to try to resolve the issues between the parties. Is that what that's about, I'm not quite clear here?
PN552
MR DURBRIDGE: No, well, I'm not quite clear to be honest either, your Honour.
PN553
THE SENIOR DEPUTY PRESIDENT: Well, somebody has to be because you're asking me to make the decision.
PN554
MR DURBRIDGE: Well, one is in the room - - -
PN555
MR SNADEN: We heard evidence from Mr Brennan, he said our preference is to keep talking.
PN556
THE SENIOR DEPUTY PRESIDENT: I've forgotten - - -
PN557
MR SNADEN: He said our preference is to keep discussions directly with the union, we're just not willing to do it under the auspices of the - - -
PN558
THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Snaden.
PN559
MR DURBRIDGE: But your Honour, it doesn't because - - -
PN560
THE SENIOR DEPUTY PRESIDENT: What doesn't?
PN561
MR DURBRIDGE: It doesn't, the two are contradictory.
PN562
THE SENIOR DEPUTY PRESIDENT: No, they're not.
PN563
MR DURBRIDGE: Yes, they are. In my submission to come here and say we ask you to terminate the bargaining period, thereby saying to all the teachers in the Northern Territory you no longer have the rights that you had in bargaining, as provided by the Act, for three months for the rest of the year, go away, don't talk to us if we don't want to; of course we want to meet with you but we don't have to agree to anything. We don't have to make any progress, just as we haven't for the last 18 months. I mean, this is how the Act doesn't work if an employee is bloody minded enough to use the provisions in the way that these people are seeking to use them and we ask you not to listen to them in the interests of constructively dealing with this dispute and asking - - -
PN564
THE SENIOR DEPUTY PRESIDENT: I'm obliged to listen to all parties,
Mr Durbridge.
PN565
MR DURBRIDGE: Not to agree to their application and to ask the parties, recommend to the parties that they participate in constructive discussions. We've already said we are prepared to take a recommendation to our executive about the industrial action if they will agree to take that course. To our mind that is a far better way of going than this way which is guaranteed not to have a constructive result. That's all I wish to say, your Honour.
PN566
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Durbridge. Mr Snaden.
PN567
MR SNADEN: Your Honour, it's not guaranteed to have that result at all. As I said, the evidence of the applicant's witness was that we are prepared to continue to meet and negotiate. We're only not prepared to go down the ADR process and the reason for that as I indicated when we started after lunch, your Honour, is because there's currently a proposal before Cabinet and there's going to be a decision on that proposal on Tuesday. Now, depending on what happens then, who knows what might happen. We may change, the position may change and we may be willing to go down the ADR process. That is a perfectly legitimate position for the department to take and for the Commissioner to take.
PN568
Can I say also, the suggestion that the natural consequence of a suspension of the bargaining period as we ask will be that the union is denied any rights and there will be a freezing of this process, it's just, with all due respect, it's a nonsense. All we're asking the Commission to do is place the interests of students above the interests of the union. We are not here to take away any rights from the union. The union will have the same rights as it normally has. It will be able to pursue bargaining, albeit after the suspension concludes, it will still be able to pursue its bargaining agenda. What it won't be able to do is what the Act contemplates it shouldn't be able to do, namely, it shouldn't be able to cause significant harm or to endanger the welfare of a portion of the population of the Northern Territory, namely students who are going to be significantly affected by this industrial action.
PN569
THE SENIOR DEPUTY PRESIDENT: Is that an implicit acceptance by you that if the bargaining period is suspended that the odds of reaching agreement during that time are reduced?
PN570
MR SNADEN: No, it's not. Not at all, your Honour, and there's no evidence to suggest that.
PN571
THE SENIOR DEPUTY PRESIDENT: The pressure certainly comes off the department, doesn't it?
PN572
MR SNADEN: Look, it may do, your Honour. That may be a consequence, it may not. I mean, bear in mind this has been going on now, there's been industrial action in various forms since March of this year. There's been toing and froing since that time as well. Your Honour is quite right, that may be a consequence of the suspension of the bargaining period that some pressure, for lack of a better word, is taken off the Commission. But you can't go so far as to say as my learned friend does that we'll be able to walk away from the whole process, or that we want to walk away from the whole process. There's just no evidence of that.
PN573
There's no suggestion that we're here because of the industrial pressure that we're under. We're here because there is a real threat of significant harm to the students of the Northern Territory. Your Honour, I have a couple of cases that I wanted to take you to that are relevant to this question. The first is a decision of Vice President McIntyre in University of Wollongong v National Tertiary Education Union. Perhaps I'll hand them both up at the same time. The second case is a decision of Commissioner Lawson in University of Western Sydney v NTEU. I'll hand them up at the same time, your Honour, because they're largely the same factual circumstances.
PN574
THE SENIOR DEPUTY PRESIDENT: Yes.
PN575
MR SNADEN: In both of those cases, your Honour, there was bans placed by the union, in that case the NTEU, on the processing of students results, bans that were placed towards the end of semester, I think in both cases November of the academic year on the processing of student results and in both cases the employer applied under what was then section 170MW(3) for suspension of the relevant bargaining periods and, your Honour, the relevant passages of Vice President McIntyre's decision in University of Wollongong that I want to take you to is paragraph 14 where his Honour says referring to:
PN576
Some 18 to 1900 students at the university are expected to graduate this year. None of them will be able to do so while the ban remains in force. I am ...(reads)... whose results are not delayed.
PN577
Now, obviously, your Honour, in this case we're not dealing with exactly the same circumstances, although there is evidence potentially of there being problems or delays associated with the processing of results in terms of the central moderation process. That evidence was not in my submission disturbed on cross-examination. It certainly wasn't disturbed through the evidence of Mr Lampe. That is a real concern in my submission, your Honour, that it would appear there are going to be at least some students who potentially will miss out on the central moderation process because their materials won't be collated and submitted by the end of next week.
PN578
The evidence of Ms Barton Johnson is that students who are prejudiced in terms of sitting their trial exams or in terms of missing out on the central moderation process will be placed at a substantial disadvantage relative to the students of non government schools or the students of schools in South Australia as against whom they are rated. And your Honour, and again this is set out in the witness statement of Ms Barton Johnson, we can't just ignore the fact that the non attendance of teachers is going to mean that students miss out on teacher contact. Now, that in and of itself at this point in the academic year being so close to exams is potentially a significant source of hardship to students.
PN579
Your Honour, in the University of Wollongong decision Vice President McIntyre went on at paragraph 16 to suspend the bargaining period
for one month until 7 January. That is, until after the processing of exam results and similarly in this case what we're asking
the Commission to do is suspend the bargaining period for three months which would take us until after - you will remember I asked
Ms Barton Johnson when the final exams would be finished.
PN580
THE SENIOR DEPUTY PRESIDENT: And when is that?
PN581
MR SNADEN: She said she wasn't actually sure. She said they start on 3 November and they normally go for two or two and a half weeks. Now, we've got three months in our application. It would b sufficient for the suspension to be just at least after the completion of the final exams, final NTCE exams.
PN582
THE SENIOR DEPUTY PRESIDENT: Yes, which is when?
PN583
MR SNADEN: Well, we don't know the date, your Honour. Certainly by the end of November.
PN584
THE SENIOR DEPUTY PRESIDENT: Because why I'm asking that is if I'm minded to make the order your case is basically on the prejudice to those year 11 and 12 students and if I were to make the order it would be on that basis and once that prejudice is ended then it would be appropriate that the suspension be also ended and I'd like to know that date a little more closely.
PN585
MR SNADEN: Two and a half weeks from 3 November I'm told is about 20 November. That would be a sufficient date, your Honour.
PN586
THE SENIOR DEPUTY PRESIDENT: Yes.
PN587
MR SNADEN: Your Honour, can I mention the other case that I handed up, it's the University of Western Sydney case.
PN588
THE SENIOR DEPUTY PRESIDENT: Yes. I take it that your - no, I don't take it, I ask you, are you aware of any cases decided on this section 433(1)?
PN589
MR SNADEN: No, I'm not, your Honour, and I haven't had an opportunity to - well, I haven't had the opportunity to find any, no.
PN590
THE SENIOR DEPUTY PRESIDENT: Well, it wouldn't have done you any good trying the Commission's resources today.
PN591
MR SNADEN: Yes. My instructors did look, your Honour, and it would appear there are none.
PN592
THE SENIOR DEPUTY PRESIDENT: Yes.
PN593
MR SNADEN: Your Honour, I've mentioned the University of Western Sydney case. That is a case involving virtually identical circumstances to the University of Wollongong case, again a ban on the processing of student results.
PN594
THE SENIOR DEPUTY PRESIDENT: A year later, was it?
PN595
MR SNADEN: That's right, in December 2000. In this case, your Honour, Commissioner Lawson decided not to terminate or suspend the bargaining period and did so on the basis that there were good prospects of the matter being resolved and it would be imprudent to prejudice those prospects by terminating the bargaining period. It's a very similar argument to the one that my friend has raised today. I want to say two things about that. Firstly, under the old section 170MW the Commission had a discretion as to whether or not suspension or termination should occur.
PN596
THE SENIOR DEPUTY PRESIDENT: Yes, I seem to have a discretion too in different terms.
PN597
MR SNADEN: There's a discretion under 433 in that 433(1)(e) contemplates that the Commission can consider - can make the order if it considers that the suspension is appropriate. If you look though at the equivalent provision, subsection (1) of section 430, it's now expressed as a must rather than a may.
PN598
THE SENIOR DEPUTY PRESIDENT: Yes. Now, you've applied today to have an order made under section 430.
PN599
MR SNADEN: We have, your Honour, yes.
PN600
THE SENIOR DEPUTY PRESIDENT: Yes.
PN601
MR SNADEN: That's correct. So if your Honour is of the view as in my submission, with respect, you should be, that there is a circumstance that's been established in this proceeding that there is industrial action threatening or that would threaten to endanger the welfare of part of the population, that is a circumstance under section 430(3), if your Honour is satisfied of that then there's no discretion under section 430(1).
PN602
THE SENIOR DEPUTY PRESIDENT: Do I need to waive any requirements of the regulations or rules to allow you to make that application today, if so would you take me to them and of course Mr Durbridge needs to be heard on it.
PN603
MR SNADEN: Yes, your Honour. I can refer you of course to rule 6 of the rules.
PN604
THE SENIOR DEPUTY PRESIDENT: That's the waiver rule, yes.
PN605
MR SNADEN: Yes, yes.
PN606
THE SENIOR DEPUTY PRESIDENT: What's the rule you want me to waive?
PN607
MR SNADEN: Yes, I don't know.
PN608
THE SENIOR DEPUTY PRESIDENT: Perhaps your instructor can look that up while you continue with your submissions.
PN609
MR SNADEN: Yes, yes. And it's rule 18, your Honour.
PN610
THE SENIOR DEPUTY PRESIDENT: Rule?
PN611
MR SNADEN: Rule 18.
PN612
THE SENIOR DEPUTY PRESIDENT: 18.
PN613
MR SNADEN: Subsection (1). So the application has to be in writing in accordance with either one of those forms and it has to be served and there has to be notice.
PN614
THE SENIOR DEPUTY PRESIDENT: I'll just turn up the rule. So you seek that I waive the requirements of rule 18?
PN615
MR SNADEN: I do, your Honour.
PN616
THE SENIOR DEPUTY PRESIDENT: And you make the application today?
PN617
MR SNADEN: I do, your Honour. Insofar as I make the application on behalf of the Commissioner, bearing in mind that under section 430(9) it's only a negotiating party who has standing to make an application.
PN618
THE SENIOR DEPUTY PRESIDENT: Yes. The full title of the Commissioner?
PN619
MR SNADEN: The Commissioner for Public Employment.
PN620
THE SENIOR DEPUTY PRESIDENT: Thank you. For the Northern Territory?
PN621
MR SNADEN: For the Northern Territory, yes. Your Honour, I do no more than mention section 430(9)(b)(i) which contemplates that the Commission can make an order at its own initiative.
PN622
THE SENIOR DEPUTY PRESIDENT: Yes.
PN623
MR SNADEN: Your Honour, can I come back to the decision of Commissioner Lawson in University of Western Sydney and I don't have much to go by way of submission. I just want to refer your Honour to the Commissioner's comments at the end of paragraph 12. The Commissioner refers to Vice President McIntyre's decision in the University of Wollongong case which I've already taken you to and in particular refers to where his Honour in that case said:
PN624
To the extent that this decision places the interests of the students above those of the academic staff, I think that is appropriate.
PN625
Namely the suspension or termination of the bargaining period. Commissioner Lawson then goes on and says:
PN626
With respect, I concur with those remarks and repeat them here. The very timing of academics withholding student results at the end of the ...(reads)... is morally and ethically wrong.
PN627
And in my submission, your Honour, that's exactly what's happening here. The union knows and teachers well know that this is an extremely stressful time particularly for year 11 and 12 students. They know that there is a central moderation process that has to be completed at this time and they know that the consequence of their action will be that those things are significantly prejudiced. They are using students as bargaining chips and that is morally and ethically wrong. Before I finish, your Honour, could I just refer back to section 433(2)(b) which says that one of the things that the Commission should consider in determining whether action is threatened to cause significant harm is the extent to which the person is particularly vulnerable to the effects of the action.
PN628
Two things to note there, under section 43 we only need one person who is going to be harmed and on any view of the evidence we can establish that. Secondly, and it probably doesn't need to be said, your Honour, but these are year 11 and 12 and in some cases year 9 students. They are children. To say that they are not particularly vulnerable to the effects of what is the proposed industrial action occurring as it is at a time of great stress, exams, central moderation and all the rest is fanciful. They are clearly particularly vulnerable to this action and in my submission, your Honour, this is precisely the sort of circumstance that these sections, 430 and 433 were designed to address and I would urge the Commission to suspend the bargaining period as we've requested.
PN629
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Snaden.
Mr Durbridge, I'll give you a limited right of reply especially in relation to the section 430 application.
PN630
MR DURBRIDGE: Well, your Honour, we urge you not to waive rule 18. In our submission it would deny us the capacity to make proper submissions. This whole operation has been at very short notice. The union found out about the application on the radio. We found out by notification yesterday evening and now to make an application under a different section and ask you to waive the rules for writing notice and service we suggest would deny us natural justice and I ask you not to agree to that.
PN631
THE SENIOR DEPUTY PRESIDENT: How are you prejudiced given that the two applications arise from precisely the same circumstances? Yes, tell me how.
PN632
MR DURBRIDGE: Well, because the terms of the section under which they ask you to now determine the matter are different and they're more general and frankly, I haven't had a chance to take instructions about them and to understand the full implications of them. Can I say about Commissioner Lawson's decision that in addition to the moral and ethic outrage and noting that this would have had the effect of preventing the graduation of students at the University of Sydney and noting that no such prejudice exists here at all and there's no evidence of an intention to - no evidence of an intention to harm these students, on the contrary the union has provided you with evidence that all consideration has been given to enabling those trial exams to go ahead, but regardless of that - - -
PN633
THE SENIOR DEPUTY PRESIDENT: Not by the union.
PN634
MR DURBRIDGE: Well, the union has been at pains to find out about the trial exams. If the suggestion is here - - -
PN635
THE SENIOR DEPUTY PRESIDENT: I thought that was for the purpose of refuting what the employer had put.
PN636
MR DURBRIDGE: Well, the union has endeavoured to make sure and find out about the interests of those students and we've reported to you about that. There is no evidence that the union is using the year 12 accreditation process as a bargaining chip and that's what Commissioner Lawson was morally and ethically outraged about. There is no evidence of that. Finally, Commissioner Lawson did say that despite the absence of direct evidence of hardship from students, he said the industrial action is threatening the welfare of some students and regardless of that he still did not terminate the bargaining period because of his discretion and his view that negotiations would be chipped away from having good prospects of success.
PN637
THE SENIOR DEPUTY PRESIDENT: Yes. I was trying to find that in his - - -
PN638
MR DURBRIDGE: In paragraph 11.
PN639
THE SENIOR DEPUTY PRESIDENT: Thank you. I was trying to find that on the run.
PN640
MR DURBRIDGE: And strangely that is precisely the parallel argument, not strangely but fortuitously, that's exactly the position we're putting to you. So in one university there was a suspension and in the other there wasn't. But I put to you the scale of harm that was contemplated there was of a magnitude many, many times any effect that there may be on some students should these exams not take place, of which there is no evidence. We've talked about every school. If the Commission pleases.
PN641
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, I'm going to consider my decision. I will make a decision this afternoon. It will be either with or without reasons. It won't be before 3.15 so I will adjourn to not before 3.15.
<SHORT ADJOURNMENT [2.25PM]
<RESUMED [3.42PM]
PN642
THE SENIOR DEPUTY PRESIDENT: This is an application by the Department of Education of Training Northern Territory Government for
an order under section 433 of the Act to suspend a bargaining period. The Australian Education Union Northern Territory branch filed
a notice to initiate a bargaining period on
3 September 2007 after the Northern Territory Public Sector 2005-2007 Teachers and Educators Certified Agreement had past its nominal
expiry date on 31 August 2007. There had been some negotiations between the parties prior to the expiration of that agreement and
many negotiations and discussions since in relation to replacing that agreement with a new agreement.
PN643
On 1 September this year the AEU executive gave in principle agreement to an offer that had been made by the employer. However, that offer was rejected at a vote of AEU members and that there have been some bans in place since 31 March of this year. But at 4.30 pm on Wednesday, 17 September this year the AEU gave notice of an intention to take rolling 24 hour stoppages next Tuesday, Wednesday and Thursday, the 23rd, 24th and 25 September. The matter was filed yesterday and I heard it today in order that if the application is granted there will be proper opportunity to notify those affected by any order.
PN644
The basis of the application is fairly narrow. It is that the proposed action is threatening to cause significant harm to at least some year 10, 11 or 12 students in the Northern Territory public education system. Ms Barton Johnson, the senior educator with 18 years experience as a teacher in the Northern Territory and some 20 years experience as a teacher, provided a witness statement and gave oral evidence today. I do not propose to go to all of that evidence but in summary, approximately some 850 senior secondary students in the Northern Territory will be undergoing their final examinations this year. Approximately 2000 students are undertaking one or more senior secondary subjects.
PN645
Trial examinations are scheduled to take place from 3 November this year and in her view it is likely that those trial exams will not be able to go ahead, or at least not all of them will be able to go ahead. The trial exams she says are a significant part of a student's assessment as to whether the student will be awarded an NTCE which is something that is taken into account in the TER score which is the student's tertiary entrance rank, something that is taken into account in regard to entry into tertiary education. NTCE is the Northern Territory Certificate of Education and the TER ranks each NTCE student against all other NTCE students including those from private and public schools, as well as schools in the South Australian education system.
PN646
According to Ms Barton Johnson approximately 425 students have trial exams scheduled for the days of the proposed industrial action. Not only do the trial examinations give students practice for their final examinations, in some circumstances as I understand her evidence, the results of those trial examinations can be taken into account in the final score. She believes that three schools, Casuarina Senior School, the largest in the Northern Territory in terms of senior student numbers. Nhulunbuy High School and Palmerston High School have planned trial examinations during the week that the strike is proposed.
PN647
According to Ms Barton Johnson every day is vital to especially year 12 students, particularly at this time of year given that the final exams are very close. I think I may have indicated that the trial exams start on 3 November. That is not so. It is the final exams that start on 3 November. The trial exams are scheduled for, at least some of them, are scheduled for next week. The final exams are some six weeks away and every day is vital. According to her, guidance from teachers is very important and a three day absence at this crucial time of year can be very significant.
PN648
Another factor that she adverts to is that the SACE Board of South Australia is scheduled to collect documents on 26 September, the day after the strike is due to end, for final central modulation or students results. This, as I understand it, is an evening process to ensure that aberrations between schools do not occur. This will not be able to occur if the strikes place because of the deadline. If the strike goes ahead she has been informed that at least at Casuarina Senior College staff will not have the student work marked and ready for dispatch on 26 September and that date cannot be changed. She says that -
PN649
Failure to modulate could have serious, albeit at this stage, possibly unknown consequences to students' results. It's possible that the student's work may not be taken into account.
PN650
Another factor to which she adverts is stress. In her view any disruption to the teaching schedule particularly at this time of year adds to the already high levels of stress for senior students. She also asserts that there is likely to be a comparative disadvantage between the students at the strike affected schools and the majority of students in Northern Territory and South Australia who will not be so affected. There will also be a reduction in school facilities, for instance, the closure of libraries. In relation to year 9 students, a Trier Trade Initiative is scheduled for the 23rd to 26 September, 500 students from 13 schools have registered and some of those students may not be able to attend if there are not sufficient teachers to accompany them. As I understand, this scheme is to introduce students to possible trades that may interest them in future life as career choices.
PN651
Mr Adam Lampe, the secretary of the Northern Territory branch, gave evidence at very short notice today. He adverted to a notice from the Casuarina Senior College to the effect that trial exams will go ahead and that certainly appears to be the intention of the school, albeit according to Mr Lampe, 85 out of the 110 teachers at that school are members of the AEU and I infer that they will take strike action and in those circumstances the number of teachers left to run the school and the trial exams seems to me to at least raise some doubt as to whether the trial exams will proceed entirely normally. At the very least, class teachers may not be present to speak with students prior to the exams to answer any last minute queries.
PN652
At Palmerston High School there are 18 students and Mr Lampe says that he has been informed that the trial exams will go ahead at that school and there is a conflict in the evidence between him and Ms Barton Johnson as to Nhulunbuy High School. She says that the trials at that school are due to take place during the period of the strike. Mr Lampe says that they are scheduled for the week after. I do not know what the position is in relation to that because of them rely on the evidence of other people who have not been present in the Commission. I turn to section 433 of the Act -
PN653
The Commission must by order suspend a bargaining period specified in the order if industrial action is being taken in respect of the proposed collective agreement.
PN654
I am satisfied and it is not contested that industrial action is being taken in respect of the proposed collective agreement. The explanatory memorandum to this section refers to the State of Victoria v HSUA which held that as long as the industrial action is to be taken sufficiently approximately to the application that subparagraph is satisfied. Mr Durbridge who appears today for the union has not taken a jurisdictional point in relation to that. By subsection (b) it is provided that the application for the period to be suspended must be made by an organisation, person or body directly affected by the union. Clearly the union, the Commissioner for Public Employment for the Northern Territory, I think that is the employer and that employer is clearly affected by the industrial action.
PN655
Sorry, I withdraw that and I will start that again. Under subsection (b) the application is made by an organisation, person or body directly affected other than a negotiating party. Here the application is made by the Commissioner for Public Employment for the Northern - no, I have got that wrong again. Just bear with me for a moment. The application is made by the Department of Education and Training Northern Territory Government and it appears not to be disputed that that department is not the negotiating party and is affected by the industrial action. That department is responsible for the administration of the secondary school system in the Northern Territory. So I am satisfied that subsection (b) after that rather convoluted process that I went through is satisfied.
PN656
By subsection (c), the Commission must consider that the action is adversely affecting the employer of employees of the employer and that is clearly the case here and the employer is the Commissioner for Public Employment for the Northern Territory. By subsection (d), and this is the section to which attention has been directed in this proceeding, the Commission must consider that the action is threatening to cause significant harm to any person other than a negotiating party. It is significant that there need only be one person to whom the action is threatening to cause significant harm.
PN657
Here there is clearly more than one person affected and in my view I do consider that the action is threatening to cause significant harm to those people. It is threatening to cause significant especially to those year 12 and probably to a lesser extent year 11 students who may not be able to sit trial exams, have access to teachers, have results modulated, who are already under considerable stress six weeks out from final exams. It is also threatening to cause significant harm to those year 9 students who cannot attend the Trier Trade program in that it might have an affect on their future career choices.
PN658
Pursuant to subsection (e), I consider that suspension of the bargaining period is appropriate having regard to whether the suspending the bargaining period would be contrary to the public interest or inconsistent with the objects of the Act. I do not believe that suspending the bargaining period would be contrary to the public interest and I have had regard to the objects of the Act, in particular objects 3(d) and (i). I need say no more about those objects. But in my view a balancing is appropriate and that is the function that I have sought to undertake. Under subsection 433(1)(e)(ii), I have regard to other matters that I consider are relevant. Those matters are the timing of this projected action so close to final exams for especially year 12 students and year 11 students who are undertaking final year subjects.
PN659
I also have regard to the union's frustration over the long period of time that negotiations have taken place without a conclusion. I have also had regard to what I have been told by Mr Durbridge about attempts to invoke the auspices of the Commission pursuant to the dispute resolution procedure in the expired agreement. However, on balance I consider that it is appropriate to make the order. The matters to which Mr Durbridge referred me and the matters to which I have just adverted might be a countervailing factor to the making of an order. However, it's not clear to me precisely how the application and the non participation by the employer interact with these proceedings being pointed out to me that there will be a Cabinet meeting on Tuesday next I think, at which an offer or a proposal will be put to Cabinet and that may have some bearing on whether or not the employer will be prepared to engage in an ADR, alternative dispute resolution process.
PN660
But at this stage and on what is before me I consider that these matters are too nebulous to affect my discretion in the manner in which I have decided to exercise it. I am obliged to and have had regard to the matters referred to in section 133(2), in particular subsection (b). In my view the year 12 students and those doing year 12 subjects are particularly vulnerable to the effects of the action and I need to balance their interests against the interests of the employees and on that balance and it is a fine balance, I have decided to make the order. It will operate from midnight tonight and operate until 20 November of this year.
PN661
In accordance with subsection (7) the Commission will send to each of the negotiating parties a notice informing them that they may agree to submit the matters at issue to an alternative dispute resolution process conducted by the Commission or another provider. Because I have made this order on fine balance and because I am not sufficiently confident that I understand the manner in which the union proposed to invoke the auspices of the Commission under the dispute resolution processes of the expired agreement, I will give leave or I will indicate that I would entertain an application to revoke this order under section 111 of the Act if such an application were to be made. I do not need to say any more about that at this stage but it is for the reasons that I have just articulated.
PN662
An application was made by the employer orally under section 430 of the Act today and Mr Snaden who appeared for the employer asked that I dispense with the requirements of regulation 18 of the Act to enable him to make that application. I am not prepared to entertain that application today given that it was made during submissions and without otherwise the union having been given notice of it. Similarly, Mr Snaden indicated that he was instructed to make an application under section 496 of the Act and I indicated also that I would not deal with that matter today.
PN663
Mr Snaden, do you press those matters and if you do I will indicate that I will deal with them on Monday?
PN664
MR SNADEN: Your Honour, there is no need to press the application of section 430, the relief is effectively the same.
PN665
THE SENIOR DEPUTY PRESIDENT: Yes.
PN666
MR SNADEN: I would like to think that there was no need to press the application of section 496. We would of course - - -
PN667
THE SENIOR DEPUTY PRESIDENT: Well, you have to tell me because - - -
PN668
MR SNADEN: Well, it depends on whether the union still intends to take the action. Obviously by reason of the order it won't be protected action if they do.
PN669
THE SENIOR DEPUTY PRESIDENT: Yes.
PN670
MR SNADEN: But perhaps it's best we seek some indication from them as to their intention. As I say, we'd like to think that it's
now not going to be protected action and on that basis we think that it won't happen. But if there's some suggestion that it might
happen that it may be necessary to pursue the 496 application.
Yes.
PN671
MR SNADEN: But perhaps it's best we seek some indication from them as to their intention. As I say, we'd like to think that it's now not going to be protected action and on that basis we think that it won't happen. But if there's some suggestion that it might happen that it may be necessary to pursue the 496 application.
PN672
THE SENIOR DEPUTY PRESIDENT: Yes. Well, timing is critical.
PN673
MR SNADEN: I realise.
PN674
THE SENIOR DEPUTY PRESIDENT: And I would be minded to deal with that matter in Darwin which means making arrangements to move there tomorrow. I will see what Mr Durbridge has to say.
PN675
MR SNADEN: Yes, thank you, your Honour.
PN676
THE SENIOR DEPUTY PRESIDENT: Mr Durbridge.
PN677
MR DURBRIDGE: I have no instructions about that, your Honour.
PN678
THE SENIOR DEPUTY PRESIDENT: Well, what I intend to do is to adjourn these proceedings in order that I can prepare the order. I would ask you gentlemen to remain while that's done. Because of the inability of the Commission's systems to generate emails that order will be provided to you in multiple copies and I will direct that the employer disseminate it to all necessary parties. We will try to do the same to the best of our limited ability. So I will adjourn this proceeding now and I would ask the parties to advise my associate, or the employer to advise my associate as to its intention in relation to the 496. As I indicated, if that application is to proceed I think that it's appropriate that it be dealt with in Darwin given the nature of the application and I need to know today. I will adjourn the Commission.
<ADJOURNED ACCORDINGLY [4.08PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
PHILLIP MORGAN BRENNAN, AFFIRMED PN89
EXAMINATION-IN-CHIEF BY MR SNADEN PN90
EXHIBIT #A1 - WITNESS STATEMENT AND ATTACHMENT OF MR PHILLIP BRENNAN PN100
EXHIBIT #A2 - NOTICE TO INITIATE A BARGAINING PERIOD OF THE AEU, DATED 3/09/2007 PN116
CROSS-EXAMINATION BY MR DURBRIDGE PN130
THE WITNESS WITHDREW PN186
SUSAN ELLEN BARTON JOHNSON, AFFIRMED PN204
EXAMINATION-IN-CHIEF BY MR SNADEN PN204
EXHIBIT #A3 WITNESS STATEMENT OF SUSAN ELLEN BARTON JOHNSON TOGETHER WITH ITS ATTACHMENT PN216
CROSS-EXAMINATION BY MR DURBRIDGE PN252
THE WITNESS WITHDREW PN324
ADAM LAMPE, SWORN PN404
EXAMINATION-IN-CHIEF BY MR DURBRIDGE PN404
EXHIBIT #R1 MEMORANDUM WITH AN ATTACHMENT OF ARRANGEMENTS PN420
CROSS-EXAMINATION BY MR SNADEN PN458
THE WITNESS WITHDREW PN518
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