BP2008/4380, Transcript of Proceedings [2008] AIRCTrans 747 (20 November 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19310-1 19311-1

VICE PRESIDENT LAWLER

BP2008/4380 BP2008/4381

s.451(1) - Application for order for protected action ballot to be held

CPSU, the Community and Public Sector Union
and
Telstra Corporation Limited
(BP2008/4380)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
Telstra Corporation Limited
(BP2008/4381)

Sydney

11.04AM, THURSDAY, 6 NOVEMBER 2008

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

PN1

MR R REITANO: I seek leave to appear for the CEPU, I'm instructed by MR P PASFIELD.

PN2

MS M DONNOLLY: I appear on behalf of the CEPU.

PN3

MR S WOOD: I seek leave to appear for the Telstra Corporation.

PN4

THE VICE PRESIDENT: Thank you. I take it there's no objection to leave being granted where leave has been sought? There being no objection leave is granted. We have a voice point connection with Melbourne, I believe? Is there anyone in Melbourne?

PN5

MS L PERSSE: I'm from the CPSU.

PN6

MR B BLACKBURNE: I'm from the CEPU.

PN7

MR L COOPER: I'm from the CEPU.

PN8

THE VICE PRESIDENT: Thank you very much. Yes, Mr Reitano?

PN9

MR REITANO: If it please your Honour. This is an application for a ballot order.

PN10

THE VICE PRESIDENT: Mr Reitano, just before you start, are these two applications being heard - the practical course is for them to be heard together, I take it the same issues arise in each one?

PN11

MR REITANO: I don't know. Well, no.

PN12

THE VICE PRESIDENT: Perhaps I should ask Mr Wood. Mr Wood, is there to be substantive opposition to the making of orders today?

PN13

MR WOOD: Yes, your Honour.

PN14

THE VICE PRESIDENT: What's the basis for the substantive opposition?

PN15

MR WOOD: The basis, your Honour, is under subsection 461(1)(a) and subsection (b).

PN16

THE VICE PRESIDENT: So it's about whether or not the unions have genuinely tried to reach agreement, whether they are genuinely trying to reach agreement?

PN17

MR WOOD: Yes, your Honour.

PN18

THE VICE PRESIDENT: Is there any other substantive opposition, basis for substantive opposition?

PN19

MR WOOD: The only other opposition is in relation to matters of a more technical nature, but the substantive opposition within relation to those two grounds and we have a statement of Mr Fewster, which I don't think has been sworn, because it's only been finalised this morning.

PN20

THE VICE PRESIDENT: What are the technical grounds?

PN21

MR WOOD: The technical grounds go to the form of the - perhaps I'll just hand you an outline of argument, your Honour.

PN22

MR BLACKBURNE: Excuse me, your Honour?

PN23

THE VICE PRESIDENT: Yes, in Melbourne?

PN24

MR BLACKBURNE: Your Honour, it's Bert Blackburne from the CEPU. We can't hear, your Honour, I'm sorry.

PN25

THE VICE PRESIDENT: Now, is there a microphone - is that microphone on down there? You might need to move that microphone in front of whoever is speaking. Hopefully that's better, Mr Blackburne.

PN26

MR BLACKBURNE: Thank you, your Honour.

PN27

MR WOOD: Perhaps I can hand up an outline to your Honour's associate and also to the other parties represented at the bar table.

PN28

THE VICE PRESIDENT: Thank you.

PN29

MR WOOD: Your Honour, the substantive grounds are set out in paragraphs 5 through 14 and they are supported by a large statement of Mr Fewster which traces the bargaining in these matters and paragraphs 15 to 21 is the first technical point. That is really a question of whether question 5 in the application sufficiently describes the nature of the action. The second one is probably one that can be resolved by way of agreement, if we got that far. It's just a question of what is provided to the AEC, and there's a third technical argument which is not in the outline which goes to subsection 457(2)(b). We don't press that strongly, your Honour.

PN30

We just raise it really as a matter for your Honour and that goes to the question of whether there's been adequate notice pursuant to the orders made by your Honour I think on Tuesday, perhaps Wednesday - I'm told Wednesday, having regard to the nature of - some of the employees are based in regional centres, don't come into the depots very often and won't see the notice on the notice board and we've got a statement from Mr Gurts that goes to that point, but that's really - we just want to bring that to your Honour's attention really and to - - -

PN31

THE VICE PRESIDENT: You're either taking the point or you're not, Mr Wood.

PN32

MR WOOD: Well, your Honour, we would pause - - -

PN33

THE VICE PRESIDENT: You're either taking the point or you're not.

PN34

MR WOOD: Well, we formally say that there hasn't been a reasonable opportunity based on the evidence that - - -

PN35

THE VICE PRESIDENT: Do you accept that Telstra has complied with the directions?

PN36

MR WOOD: Yes, your Honour, as far as I'm instructed.

PN37

THE VICE PRESIDENT: Good.

PN38

MR WOOD: But those are the substantive grounds, or the three technical grounds. I think your question, your Honour, was directed at a proposition of whether matters be joined or heard together. The substantive grounds relate to bargaining which has been carried out by the two unions represented at the bar table and APESMA and the ACTU as a group. So we wouldn't have an issue with the matters be joined or heard together, your Honour.

PN39

THE VICE PRESIDENT: All right. Mr Reitano, in a practical sense, are you in a position to - you're making submissions quite separately from Ms Donnolly or are you going to make a set of submissions that will apply to both applications and Ms Donnolly will supplement what it is she needs to say in relation to her application that's additional to - - -

PN40

MR REITANO: We know what we're respectively going to say in broad terms and I would imagine it would be no different, but we're each representing our own interests.

PN41

THE VICE PRESIDENT: Well, you just proceed with the application in matter number BP2008/4381, but I'm proceeding on the basis that the evidence that's given will be evidence in both matters to the extent that it's capable of being relevant to each matter.

PN42

MR REITANO: Yes.

PN43

MR WOOD: Sorry, your Honour, I haven't asked your Honour to mark the outline. Would it be convenient to have it marked?

PN44

THE VICE PRESIDENT: It's not my practice to mark outlines of submission. It's a submission and it's available in the event that anything needs to be made of it in due course in some other place.

PN45

MR WOOD: Thank you, your Honour.

PN46

THE VICE PRESIDENT: Yes, Mr Reitano?

PN47

MR REITANO: Can I deal with the application now?

PN48

THE VICE PRESIDENT: Yes.

PN49

MR REITANO: Your Honour's well aware from other matters that your Honour's dealt with that there is a check list of items that your Honour needs to be satisfied of in order to make an order. They start with section 452 as I recall it and that is, firstly, your Honour must have an application with the question or questions to be put to the relevant employees. Your Honour has received that application and your Honour has it. Within the application the question is identified as is the types of employees who are to be balloted. Accompanying the application your Honour must have the material that's set out in section 453. That material is very relevant to the question of whether, in the circumstances, the CEPU is genuinely seeking to arrive at an agreement, and I'll come back to that in a moment. But the section requires the following material to accompany the application as it did.

PN50

Firstly, a copy of the bargaining notice that initiated the bargaining period and your Honour will relevantly see - it may become important - your Honour will see that the bargaining notice is dated 20 August 2008 and by reason of the operation of the Act therefore the bargaining period commenced on 27 August 2008, seven days later. Your Honour will also see that with the application is a copy of the particulars that accompanied the notice as required by section 453(1)(b) and further, a copy of the declaration of Mr Husic that the industrial action to which the application relates is not for the purpose of supporting or advancing claims to include in the proposed collective agreement prohibited content.

PN51

So in those circumstances the requirements of section 453 - sorry, I've left out subsection (2), the authority of the Committee of Management, or a declaration as to the authorization by the Committee of Management accompanied the application.

PN52

THE VICE PRESIDENT: Yes.

PN53

MR REITANO: Under section 454, I think we can presume because Telstra are here, that notice of the application was given to them. I can tender the facsimile if I need to, which I might do.

PN54

THE VICE PRESIDENT: Yes. I'll proceed on the basis that the application and its attachments form part of the file and don't need to be marked.

PN55

MR REITANO: I understand that. Could I tender a copy of the facsimile and letter of 3 November 2008 addressed to Mr Fewster, F-e-w-s-t-e-r, enclosing a copy of the application and draft orders.

PN56

THE VICE PRESIDENT: Any objection, Mr Wood?

PN57

MR WOOD: No, your Honour.

EXHIBIT #1 FACSIMILE AND LETTER RE SERVICE OF THE APPLICATION DATED 03/11/2008

PN58

MR REITANO: So all of the formal requirements in respect of the application have been met. The Commission will recall that it made a direction to Telstra to notify employees. Mr Wood has informed the Commission that that was done as I understood his concession. That then requires your Honour to consider the matters set out in section 461 which relate to whether, during the bargaining period, the applicant had genuinely tried to reach agreement. I'll come back to that in a moment. Secondly, that the applicant is genuinely trying to reach an agreement with the employer, and thirdly, that the applicant is not engaging in patent bargaining and we would submit to the Commission that all of those things are met.

PN59

I think in previous or in other proceedings your Honour has inquired at least of me as to how the Commission could form the satisfaction of either (a) and (b). Could I just give your Honour a reference to the material that your Honour has before you that allows the Commission to be satisfied of those matters. Firstly, your Honour has - - -

PN60

THE VICE PRESIDENT: Mr Reitano, I think just as a matter of efficiency, if you simply formally submit that those matters are satisfied, that submission is contested, Mr Wood will lead some evidence no doubt, and you will reply, and in the event that Mr Wood is of the view that he doesn't need to lead evidence because he's merely contested and therefore could go on with a submission in accordance with the dicta of Chief Justice Barwick v Melbourne Metropolitan Tramways, I would then grant you leave to call evidence, if necessary.

PN61

MR REITANO: If it please your Honour, I'm happy with that course. Could I just deal with two other matters. Those are the formal matters and therefore we would submit that your Honour should thus make an order. But could I deal with two other matters that are important. The first is section 457 and your Honour will note that your Honour is injuncted to act quickly and as far as reasonably possible within two working days to determine the application.

PN62

THE VICE PRESIDENT: Yes.

PN63

MR REITANO: I'll make a submission about paragraph 29 of Mr Wood's outline in due course. One will see that the name of the game is to slow down the ballot apparently and to slow down it occurring, but I'll deal with that in due course. But secondly, and importantly, could I remind your Honour, and I know your Honour is against me on this submission because your Honour has ruled on it previously, section 458 does not entitle a party to bring evidence. It only entitles a party to make submissions, and on the basis of the specific provision in section 458 that refers to the ability of a party to make submissions, my submission to your Honour is that it does not permit the leading of evidence by a party to proceedings.

PN64

I put to your Honour previously - - -

PN65

THE VICE PRESIDENT: I understand that that's a formal submission you make more to protect your position in respect of other places.

PN66

MR REITANO: It may since then that your Honour has been persuaded as to the attractive force of it.

PN67

THE VICE PRESIDENT: I haven't, Mr Reitano.

PN68

MR REITANO: If it please your Honour, I have formally made the submission.

PN69

THE VICE PRESIDENT: And I've dealt with that submission in an earlier matter, I think involved Australia Post and there are some written reasons that have been published in relation to that ad idem.

PN70

MR REITANO: Correct. Those are the matters that we put to your Honour. Your Honour should make an order in the terms of that sought.

PN71

THE VICE PRESIDENT: Thank you. Yes, Mr Wood, you have some evidence to call? Sorry, Ms Donnolly?

PN72

MS DONNOLLY: That's all right, I can be quick, your Honour. The CPSU submits that we've complied with the technical prerequisites of the Act. The CPSU is standing to bring the application. A bargaining period was initiated similar to the CEPU that we shared on 20 August.

PN73

THE VICE PRESIDENT: Yes. No, I've had a look at your file and I've viewed the documents and I understand how you put that. All the attachments are there. The formal requirements of an application, the description in the Act appear to have been met.

PN74

MS DONNOLLY: Well, I won't trouble your Honour again and the CPSU submits that we've complied with section 461 of the Workplace Relations Act.

PN75

THE VICE PRESIDENT: Thank you, Ms Donnolly. Yes, Mr Wood?

PN76

MR WOOD: Thank you, your Honour. Your Honour, can I deal with the proposition under section 461 first because that might - whatever happens as a result of that - might deal with what admissions there are, if any, about section 457(2).

PN77

THE VICE PRESIDENT: Mr Wood, I'm a realist in these matters and it seems to me that the probability of appeal irrespective of the outcome is high and that it's probably desirable for all matters, all arguments to be dealt with because of the likelihood of an appeal irrespective of the outcome.

PN78

MR WOOD: Very well, your Honour. Then I'll deal with section 457(2) argument first and I'll hand up a statement of Mr Frank Gurts which is a short statement and I'll hand copies to those parties at the bar table.

PN79

THE VICE PRESIDENT: Have you seen this, Mr Reitano or Ms Donnolly?

PN80

MR REITANO: Of course not, your Honour.

PN81

THE VICE PRESIDENT: It's just been handed across. Do you have other statements as well, Mr Wood?

PN82

MR WOOD: Yes, your Honour.

PN83

THE VICE PRESIDENT: Perhaps it's convenient if you hand them as well now and then I'll adjourn for 10 or 15 minutes and read them and that will give the opportunity for your opponents to read them as well.

PN84

MR WOOD: I'll hand up a statement of Darren Brian Fewster. That statement has, I think, 62 exhibits. The statement is in the cover of the folder, your Honour, and the exhibits are marked under tabs.

PN85

THE VICE PRESIDENT: Yes.

PN86

MR WOOD: I hand copies of that statement to the parties at the bar table and the exhibits. Your Honour, that statement is directed to the propositions at paragraphs 5 through 14 primarily.

PN87

THE VICE PRESIDENT: So is that the totality of the evidence that you'd be seeking to rely upon at the moment? I understand there may be some issue of evidence in reply to any evidence that's called by the unions, but in terms of your primary evidence, this is it?

PN88

MR WOOD: That's right, your Honour, because depending upon - I mean, yes. It might be that a lot of the evidence goes to what happened in bargaining meetings. There were sometimes 10, sometimes 15 persons present in those meetings. If that issue was, for example, contested, then we might call some reply material to bolster what Mr Fewster said, but otherwise it's the total of our evidence.

PN89

THE VICE PRESIDENT: Right. Mr Fewster is available for cross-examination?

PN90

MR WOOD: Yes, your Honour.

PN91

THE VICE PRESIDENT: Is Mr Gurts here as well?

PN92

MR WOOD: Yes, your Honour.

PN93

THE VICE PRESIDENT: Fine. Do you say that this is complete record of the communications passing between the parties in relation to bargaining issues?

PN94

MR WOOD: It is very close to complete. There are some documents of a fairly minor nature which are missing, but it's very close to complete. We've put this together over two days. I don't think there is anything of any substance missing.

PN95

THE VICE PRESIDENT: That's fine. Mr Wood, I'd ask you this also. The issue of prohibited content has been dealt with by some Full Benches and I don't carry the authority names around in my head as much as I ought to, but a Full Bench of which I was part, was it Wormald - - -

PN96

MR WOOD: I think so, your Honour.

PN97

THE VICE PRESIDENT: With the President presiding, made it clear that people can objectively be seeking prohibitive content - but may not understand that subjectively generally understand that what they're seeking is prohibitive content.

PN98

MR WOOD: Yes, your Honour.

PN99

THE VICE PRESIDENT: Because their reasonable minds can differ about whether a particular demand is prohibitive content, for example, and people might seek prohibitive content and then abandon it.

PN100

MR WOOD: Yes, your Honour.

PN101

THE VICE PRESIDENT: Do you accept or has there been, or on your instructions sort of a general abandonment of any claims of prohibitive content by each of the unions?

PN102

MR WOOD: There has been a - I'm not sure exactly how to express what the unions have done, but perhaps it can be defined as an attempt to abandon but maintain the claim for side agreements to contain prohibitive content. If that makes sense.

PN103

THE VICE PRESIDENT: An ersatz abandonment.

PN104

MR WOOD: Yes, your Honour.

PN105

THE VICE PRESIDENT: All right. That's your case. Mr Reitano, Ms Donnolly, there's a bit of reading here. Should we take half an hour or 25 minutes? What's your view, Mr Reitano?

PN106

MR REITANO: Would your Honour just pardon me a moment?

PN107

THE VICE PRESIDENT: Sure.

PN108

MR REITANO: One moment to the extent that's necessary. Half an hour should be right, your Honour.

PN109

THE VICE PRESIDENT: All right, fine. I'll adjourn until - you're right with that too, Ms Donnolly?

PN110

MS DONNOLLY: Yes, thank you, your Honour.

PN111

THE VICE PRESIDENT: I'll adjourn for half an hour.

<SHORT ADJOURNMENT [11.26AM]
<RESUMED [12.14PM]

PN112

THE VICE PRESIDENT: Apologies for the delay, but there was more to read than, with my slow reading, to be done in half an hour. Mr Reitano?

PN113

MR REITANO: Thank you for the opportunity for reading the material.

PN114

THE VICE PRESIDENT: I suppose I'm jumping ahead here. Mr Wood, you seek to tender each of those two statements?

PN115

MR WOOD: Yes, your Honour. The Gurts statement made on 6 November 2008 with the relevant exhibits and the Fewster statement also made 6 November 2008 with the 62 exhibits and we ask your Honour that the following exhibits be marked as confidential and they are 6, 7, 8, 9, 10, 11, 12, 14, 19, 19A, 22 and 31.

PN116

THE VICE PRESIDENT: On the basis that?

PN117

MR WOOD: Your Honour, they contain material that is in part commercially sensitive. I can identify exactly which parts regardless of commercially sensitive, your Honour, but it might save some time to just mark the whole exhibit as confidential, your Honour.

PN118

THE VICE PRESIDENT: All right, Mr Wood. Mr Reitano, objections and response to the application that those listed exhibits to Mr Fewster's statement be made confidential?

PN119

MR REITANO: In respect of the application for - can I deal with it backwards in respect of the application for confidentiality of various exhibits?

PN120

THE VICE PRESIDENT: Yes.

PN121

MR REITANO: It's ultimately a matter for your Honour but I note that courts and tribunals don't tend to make confidentiality rules lightly. But I don't want to make any submissions about it, or I haven't had an opportunity. I don't want an adjournment. I don't want to waste time.

PN122

MR BLACKBURNE: Sorry, your Honour, it's Melbourne. We're unable to hear again.

PN123

THE VICE PRESIDENT: All right. We'll make sure that the microphone is moved. Just hollow out if you can't hear.

PN124

MR BLACKBURNE: Thank you.

PN125

MR REITANO: I don't want to be heard any further on that application. In respect of the affidavit of Mr Fewster, could I ask your Honour to deal with it or invite your Honour to deal with the objections this way? I object to the relevance of everything up until paragraph 122, but I suspect the easiest way forward in dealing with that is that your Honour admit all of those paragraphs up to paragraph 122 subject to relevance.

PN126

THE VICE PRESIDENT: I was also, Mr Wood, concerned that Mr Fewster's statement is a - if it was in the Federal Court it would be thrown out in its entirety or in its very substantial authority because of the - I withdraw that again. It contains a lot of argumentative material and submission and I understand that there's some utility in that in the sense that it makes out the case with clarity the reader, but I don't propose to admit material that is in the nature of submission or argument if - or at least I don't propose to act upon it. I just want to make that clear and give an opportunity to make any submissions in relation to it.

PN127

MR WOOD: If it's a true submission, your Honour, we accept that. It might just be - - -

PN128

THE VICE PRESIDENT: Well, there's are many points were Mr Fewster hypothesises about what the motive of the union was or the significance of particular events having occurred. You haven't directed them in a submission, but I don't think that they be received as evidence.

PN129

MR WOOD: Depending exactly what we talk about, your Honour, then there's probably some force in what your Honour has said. There are some other parts where the witness explains what he thought was being communicated by someone who was talking and - - -

PN130

THE VICE PRESIDENT: And there's a bit of a grey line between the category that I've identified and what you've just identified. I mean, strictly speaking that's not admissible anyway. I appreciate the rules of evidence don't apply. I mean, the evidence can be given of what was said and there may be circumstances where the witness' understanding is relevant, but not as to the truth of what's said, but rather because the witness' own understanding is itself a relevant matter. Very well.

PN131

MR WOOD: Yes, your Honour.

PN132

THE VICE PRESIDENT: So, Mr Reitano, subject to that the only objection you've got is the relevance objection and you invite me to admit those paragraphs subject to relevance so that they can be argued in due course?

PN133

MR REITANO: Yes, and I took into - when I made the objection on the basis of relevance, where Mr Fewster, for example, picking up your Honour's example, has said what he thinks other people's motives might be, that is one of the grounds of relevance that I would ultimately submit upon if I needed to. I rather anticipate that a lot of the material is irrelevant in a direct sense, but I don't want to be caught on a debate about minute parts of the affidavit given its size and so forth.

PN134

THE VICE PRESIDENT: Yes. Well, I mean, the bargaining period commenced 27 August.

PN135

MR REITANO: 27 August, yes.

PN136

THE VICE PRESIDENT: And whilst events that occurred before the commencement of a bargaining period may cast a light or a colour or a complexion on events that occurred after the commencement of the bargaining period, there was no prospect of the union seeking to access protected action in support of its claims or the union's seeking of access protected action in support of their claims until after 27 August.

PN137

MR REITANO: That's correct.

PN138

THE VICE PRESIDENT: Yes, okay. Well, the statement of Darren Brian Fewster will be marked as exhibit 2. I direct that exhibits 6, 7, 8, 9, 10, 11, 12, 14, 19, 19A, 22 and 31 to Mr Fewster's statement be confidential.

EXHIBIT #2 STATEMENT OF DARREN BRIAN FEWSTER

PN139

THE VICE PRESIDENT: Mr Wood, I'll have those exhibits extracted from the folder and put into a separate folder marked as a confidential document.

PN140

MR WOOD: Thank you, your Honour.

PN141

THE VICE PRESIDENT: And I admit the statement of Darren Brian Fewster insofar as paragraph 122 are concerned subject to relevance on the basis outlined by Mr Reitano. Now, the statement of Mr Gurts.

PN142

MR REITANO: Again, could I invite your Honour to deal with it on the same basis, that is, admit it subject to relevance.

PN143

THE VICE PRESIDENT: Mr Wood?

PN144

MR WOOD: As a matter of course, your Honour, it's only produced in relation to section 457(2).

PN145

THE VICE PRESIDENT: Yes. Thank you. The statement of Francis William Gurts will be exhibit 3, submitted subject to relevance.

EXHIBIT #3 STATEMENT OF FRANCIS WILLIAM GURTS

PN146

MR WOOD: You said exhibit 3, your Honour?

PN147

THE VICE PRESIDENT: Exhibit 3, yes. Now, Ms Donnolly, again I've overlooked you in terms of - - -

PN148

MS DONNOLLY: That's fine. We support - - -

PN149

THE VICE PRESIDENT: Whether or not you have a different position.

PN150

MS DONNOLLY: We don't. We support - - -

PN151

THE VICE PRESIDENT: Yes. Where the evidence has been dealt with against both you and Mr Reitano says something. I'll leave it to you to pop up if there's something you wish to raise.

PN152

MS DONNOLLY: Yes, thank you, your Honour.

PN153

THE VICE PRESIDENT: Now, cross-examination?

PN154

MR REITANO: No, your Honour, I don't require either deponent for cross-examination.

PN155

THE VICE PRESIDENT: Fine. Is that then the evidence for Telstra?

PN156

MR WOOD: Yes, your Honour.

PN157

THE VICE PRESIDENT: Mr Reitano, you first of all?

PN158

MR REITANO: No, your Honour.

PN159

THE VICE PRESIDENT: Ms Donnolly?

PN160

MS DONNOLLY: No, your Honour.

PN161

THE VICE PRESIDENT: We're into final submission phase now, aren't we?

PN162

MR WOOD: Yes, your Honour.

PN163

THE VICE PRESIDENT: Yes, Mr Reitano? I'm just wondering just as a matter of practicality it may not be better for you to go first, Mr Wood, given it's your substantive articulation of arguments against the order that are the central issue now?

PN164

MR WOOD: We'd be content to follow that course, your Honour.

PN165

THE VICE PRESIDENT: Thank you.

PN166

MR WOOD: Your Honour, if we can address you on section 457(2) first, we rely upon the statement of Mr Gurts which has been marked as exhibit 3. Mr Gurts says that there are approximately 5,700 field based employees.

PN167

THE VICE PRESIDENT: I've read Mr Gurts' statement and I understand what he says and the effect of it is that - paragraph 10 is the critical paragraph, isn't it?

PN168

MR WOOD: Yes, your Honour, it's the facts.

PN169

THE VICE PRESIDENT: Then it's expanded upon.

PN170

MR REITANO: I'm sorry, I didn't hear - your Honour said the effect of it is, then your Honour - - -

PN171

THE VICE PRESIDENT: I'm sorry. I said paragraph 10 is the essential effect of the - - -

PN172

MR REITANO: Thank you, your Honour. That's what I didn't hear.

PN173

THE VICE PRESIDENT: Of the point that Mr Gurts is seeking to make. That falls into the category of submission, but that's the submission that would be made on the basis of the balance of the preceding paragraphs in the affidavit and some of the succeeding paragraphs.

PN174

MR WOOD: I think it's a little bit more close to expert opinion, your Honour, in the sense that this person is deposing as to what he thinks in his expert opinion is someone with very long experience - - -

PN175

THE VICE PRESIDENT: What's the study or area of knowledge that he's expert in? What's the recognised discipline?

PN176

MR WOOD: In the operations of the way in which the communications within Telstra might take place - - -

PN177

THE VICE PRESIDENT: That's not a recognized area of specialist knowledge or expertise.

PN178

MR WOOD: Normally the type of expertise - - -

PN179

THE VICE PRESIDENT: Can you study a course at some university or TAFE about the effect of the HR arrangements in Telstra?

PN180

MR WOOD: It's normally the type of expert evidence that the Commission would take into account, your Honour, in having regard to who is saying this and what he's saying. Your Honour doesn't have to accept what he's saying and what he's saying - - -

PN181

THE VICE PRESIDENT: I think he's probably right and I think that's an inference that can be drawn from the other material.

PN182

MR WOOD: Yes, your Honour, and we don't say anything more than there may be a - - -

PN183

THE VICE PRESIDENT: Well, Mr Wood, let me put it this way. I don't accept that Mr Gurts is in a position to give an expert opinion, but I do accept on the basis of his evidence that it is probable that a number of employees in Telstra were unaware of the notice that had been dispatched in accordance with directions.

PN184

MR WOOD: Yes, your Honour, and that's the only submission we wish to make in relation to that point. Sir, it's a question for your Honour as to whether or not you regard that evidence as indicating that persons referred to in sections 458(1) and (2) have not had a reasonable opportunity to make submissions in relation to the application and is obviously a balancing act your Honour has to take into account on that point.

PN185

THE VICE PRESIDENT: Yes, all right.

PN186

MR WOOD: Your Honour, should I allow my learned friend to respond to that because that's all I wish to say in relation to section 457(2). Would it be convenient to let my learned friend respond on that point now, because I'm going to be a little while in relation to the substantive application we make.

PN187

THE VICE PRESIDENT: I don't need to hear him on that point.

PN188

MR WOOD: Yes, your Honour, if your Honour please.

PN189

THE VICE PRESIDENT: Perhaps maybe you wish to make some further submissions and I should outline to you my thinking so that you can make a further response if you want. The critical issue here is the content of what is reasonable. That has to be viewed in the context of legislation as a whole and having regard to the nature of the organization and in particular the legislative time frames, it seems to me that what's been done was the best that could be done to provide a reasonable opportunity to employees to have an opportunity to make submissions. It wouldn't matter what was ordered.

PN190

There will always be employees of Telstra who would not receive notice and would not be aware of it. Those, for example, who are on leave travelling overseas, for example, it would not be practicable, no matter what directions were made, to contact them and that if the test was or if the requirement was to notify all employees, then in the particular circumstances that Mr Gurts had identified, a period of weeks would be required it seems to me in order to be able to ensure that employees who were working off site and remote places had the opportunity to eventually come and be notified because they might come in and the manager might be out and may not tell them, "Hey, you need to go and look at the notice board." They may not look at the notice board, and that sort of time frame is just incompatible with the time frame required in the Act for the resolution of the application.

PN191

So it seems to me that where a substantive effort has been made to draw the attention of employees to the application in the manner in which communications with employees are undertaken, and notice boards is one of those ways, that that's a sufficient compliance with the Act.

PN192

MR WOOD: Yes, your Honour. The only point we would make in response to that and we quite accept the estimates your Honour's given about if it was necessary to give all employees that opportunity, it would be a period of weeks and we accept what your Honour said about the requirement under section 457 for the Commission to act as quickly as practicable. The only point we would make, your Honour, is it might be considered appropriate to give some voice to the words "as far as reasonably possible" by reference to the context of the application, that is, Telstra's unique circumstances as opposed to, say, for example, a mechanic's shop in Randwick having 150 employees where it's much easier to stay within the legislative confines and that's the only point we make, your Honour, on that.

PN193

THE VICE PRESIDENT: Yes, thank you, Mr Wood. All right, we're moving on to the - should I say my view doesn't change on account of that submission.

PN194

MR WOOD: Yes, your Honour. Thank you, your Honour, for informing me of your preliminary view and giving me the opportunity to make those submissions.

PN195

THE VICE PRESIDENT: Yes.

PN196

MR WOOD: Your Honour, can I say in relation to section 461 the proposition that we put is four-fold set out at paragraphs 5 to 14 of the outline of argument and what we say is that for the period of bargaining - - -

PN197

THE VICE PRESIDENT: You said fourfold. Is 3 point - - -

PN198

MR WOODS: Three and I think 10 to 14 constituted a separate point, your Honour. I think 10 to 14 suggest that there is some collateral objective sought. Paragraph 6 says that collateral objective is improper and paragraph 7 says there's been an attempt to coerce Telstra into agreeing to that collateral purpose and paragraph 8 says that there have been misleading statements made by the applicants through their representatives to the members and the public in relation to that collateral purpose.

PN199

Your Honour, can I - - -

PN200

THE VICE PRESIDENT: I didn't read the statement of Mr Fewster to go to the factual matters that might underpin the last sentence of paragraph 8. In other words, there was no evidence about what was put to Lacy SDP.

PN201

MR WOODS: On 1 September, I thought there was a transcript. Perhaps that's something that - - -

PN202

THE VICE PRESIDENT: I'll have a look. There's a fairly large quantity of material. I can't say I've read every word of it closely but I've read it reasonably carefully. I didn't pick up on any evidence going to what was said to Lacy SDP.

PN203

MR WOODS: Your Honour, perhaps I can just take that question on notice and come back to you about that. Your Honour, can I try to give you an overview of the material and break it up in this way, that during May, and I'm dealing with the first 25 paragraphs of Mr Fewster's statement, there were four meetings involving the parties to the previous enterprise agreement who constituted the SBU and two of the major issues were - - -

PN204

THE VICE PRESIDENT: Would I understand that the effect of the evidence is that Telstra contends that the SBU and the ACTU have been demanding that Telstra enter into a constructive relationship agreement and then more recently a memorandum of understanding in two versions as a precondition to proceeding with enterprise agreement negotiations? That was a leg of the three-legged stool and that that position is one that has been asserted on the evidence repeatedly.

PN205

MR WOODS: Yes, your Honour.

PN206

THE VICE PRESIDENT: I also note that there's been a number of more recent statements, including in particular Mr Husic, abandoning any suggestion that the unions would be pressing for anything that was illegal or contrary to the industrial legislation.

PN207

MR WOODS: I think that gets back to your point about Wormolds, your Honour, and that's one issue we'd like to take up in submissions as to the extent to which, in the absence of any cross-examination of the persons who have made those statements, that those statements, in the full context of the evidence should be accepted, having regard to the bargaining that has preceded those statements. The proposition that we wish to advance, your Honour, is the that the CRA was one leg of the stool, that it did contain prohibited content and, as you've identified, it was sought as part of the bargaining objectives, that that - - -

PN208

THE VICE PRESIDENT: In the months before the initiation of the bargaining period.

PN209

MR WOODS: Yes, your Honour, and that CRA was first produced on 3 June and provided to the fifth EA meeting on 3 June by the ACTU who turned up on that day. During June, as you will observe in the evidence, your Honour, there were a lot of discussions about the CRA and about the second leg of the
three-legged stool, that is the FTTN, a very substantial piece of infrastructure which was going to put forward $5 million. The evidence, uncontested, is that it might have an impact of 6 to 9 thousands jobs on Telstra. Mr Walton's own evidence, his own email is that it would lead to $20 million increase in market capitalisation for Telstra and an increase in profit of about $1 billion by 2010. That's in the correspondence during June.

PN210

There was a degree of anxiousness during June because a key date was 25 June and that was the date upon which there were to be regulatory submissions about the FTTN so the ACTU and the three unions were heavily involved during June pursuing the so-called three-legged stool and making threats - and this is borne out in the evidence, your Honour, I can take your Honour to some of it - that the FTTN was contingent upon the - - -

PN211

THE VICE PRESIDENT: Union support for Telstra's proposal.

PN212

MR WOODS: Stronger, your Honour, non-adverse affectation of the bid and I can take your Honour to some of the evidence but some of the evidence, for example, has Mr Jones of the CPSU saying, "We will throw bombs at this bid." This is on 12 June. "We'll use all our powers on the FTTN."

PN213

THE VICE PRESIDENT: What's the reference for that?

PN214

MR WOODS: That's at tab 19 of the exhibits. There had been five negotiation meetings until this point and this is two weeks prior to the regulatory submissions for the FTTN and your Honour can observe that it was a fairly high level meeting involving representatives of the - - -

PN215

THE VICE PRESIDENT: What's the page number there, Mr Woods?

PN216

MR WOODS: Sorry, your Honour?

PN217

THE VICE PRESIDENT: What's the page number where this is attributed to Mr Jones?

PN218

MR WOODS: It is on - - -

PN219

THE VICE PRESIDENT: Page 3 at the bottom?

PN220

MR WOODS: - - - page 3 at the bottom. There's a reference at page 2 at the bottom of a very long statement by Mr Walton:

PN221

Key philosophical issues in the FTTN. We can be a voice to government and fundamentally in the public interest to get the FTTN up and running. We'll use our powers on the FTTN. Telstra needs to recognise that we're a membership backed organisation.

PN222

Then at 3 the observation that you've made, your Honour, Mr Walton:

PN223

Yes, EA, CRA, FTTN, need all three. Three legs to the stool -

PN224

midway, perhaps a third of the way down the page on page 3. "EA and CRA can occur in parallel." A couple of lines down the page and Mr Moffatt says:

PN225

Outcome for employees is EA. Elephant in the room is FTTN.

PN226

Mr Moffatt says:

PN227

Can't not support FTTN. If not then dramatic input. Put this to Sol.

PN228

This is Mr Jones, saying:

PN229

We'll throw bombs if we're dead anyway.

PN230

Then at page 4, Mr Lee from Telstra says:

PN231

Within your power FTTN and public policy.

PN232

Mr Walton:

PN233

We will play card on FTTN and not going anywhere re CRA.

PN234

There's a reference on page 5 to Mr Lee - there's a big discussion about the FTTN on pages 4 and 5. Mr Lee says towards the end:

PN235

Overview of impact of not getting FTTN if bad, then we may have zero staff in occs field.

PN236

THE VICE PRESIDENT: Mr Lee on page 5?

PN237

MR WOODS: On page 5 just before the bottom:

PN238

If bad we may have zero staff in occs field) Other areas affected by this 3000 to 9000 jobs.

PN239

MR REITANO: Sorry, my page 5 doesn't have that.

PN240

MR WOODS: Doesn't it? Sorry.

PN241

THE VICE PRESIDENT: It's the way it's written.

PN242

MR WOODS: Then what occurred, your Honour, was there was another meeting of this nature on 19 June and similar comments - the only reason I took you to that, your Honour, is to give you a flavour of the material and it goes further than, we would say, just failing to support the bid, but goes to actually opposing the bid and using everything in its power to adversely affect the chance of getting the bid.

PN243

THE VICE PRESIDENT: Do you say there's something unlawful or illegal about that, even assuming it occurred?

PN244

MR WOODS: I'm sorry, your Honour?

PN245

THE VICE PRESIDENT: Even assuming that occurred, is there something unlawful or illegal about that? The unions clearly see Telstra as a very anti-union organisation in terms of the policies it pursues. Whether that's a correct characterisation or not is a different issue but there's no obligation on them to support Telstra in its FTTN proposal.

PN246

MR WOODS: No, your Honour, I couldn't say there would be an obligation. All we can say, your Honour, is that we're here under a rubric of the Commission's assessment of what is genuine bargaining and it's up to the Commission to decide whether threats that are otherwise lawful might still not constitute genuine bargaining and there might be a range of things that might be lawful - - -

PN247

THE VICE PRESIDENT: That was spent as an issue because of the critical
25 June deadline.

PN248

MR WOODS: Apart from the fact, your Honour, that that threat is actually ongoing. It's never been revoked and the key day for the FTTN is set out in the affidavit at page 16 and you can see that we passed one - - -

PN249

THE VICE PRESIDENT: Sorry, which paragraph number?

PN250

MR WOODS: Paragraph 16, your Honour. You can see that we passed one key date, being 25 June, where there was a great deal of intensity about the negotiations and the next one is up to the assessment of proposals which are to be lodged on 26 November 2008.

PN251

THE VICE PRESIDENT: No doubt Telstra is going to lodge a proposal.

PN252

MR WOODS: I'm not sure.

PN253

THE VICE PRESIDENT: I'm sorry. Let's make the assumption Telstra may lodge a proposal, all right ?

PN254

MR WOODS: It would seem to be a fair assumption, your Honour. What the material shows, we would say, is that threat - and your Honour might well characterise it as not an unlawful threat, but that threat has been maintained and at present - - -

PN255

THE VICE PRESIDENT: Work Choices took away a large amount of the leverage of the unions in respect of matters that had historically been of legitimate interest to unions, if I can use that word "legitimate" is a sort of more conversational sense. To take contractors as an example, one can recognise that unions have got a legitimate, in that conversational sense, interest in the way in which the use of contractors can adversely impact upon members who are employees. Parliament has seen fit to take that as a subject-matter outside of the ambit of what can be bargained for. That doesn't mean that the moral interest, if I can put it that way, of the unions evaporates in respect to that issue.

PN256

MR WOODS: No, I accept that, your Honour, and I think in its historical perspective it's that what parliament did follow on from the High Court determined the limits of the then constitutional base was. They didn't have to do it in that way but they chose to follow that limitation. Yes, the observation you make is quite correct, your Honour, and the contrary - the proposition we're simply putting to your Honour is the one - and you've put the counter proposition that what the unions have done is not unlawful unless it is, for example, coercive, that is unless it falls within what was section 170NC of the Workplace Relations Act or some other prohibition. There is an argument that such threats are relevantly coercive in the sense that they involve a very serious infliction of - sorry, threatened infliction - I shouldn't say infliction - threatened infliction of economic loss on Telstra and your Honour might find that such a threat having been made and never having been withdrawn, is, in the context of bargaining, not appropriate and constitutes non-genuine bargaining.

PN257

Your Honour might not accept that proposition but one only has to test it, we would say, by looking at the converse. If the proposition was that Telstra in a different political regime was threatening to throw bombs at some proposition the unions were attempting to attain through political means in order that the unions agree to an enterprise agreement and a collateral arrangement, your Honour might be of the view that when the shoe was on the other foot, that that sort of threatened infliction of large harm might constitute non-genuine bargaining.

PN258

We're in a sense, your Honour, not in a brave new world, but this jurisprudence is developing. I mean, this idea of genuine bargaining hasn't been around for as long as enterprise bargaining itself and it has only really got a kick along in the last few years. What it requires is for your Honour to make some assessment of where the limits of what might be regarded as hard bargaining or tough bargaining or commercial bargaining are for the bargaining to be regarded as genuine bargaining. That's really the assessment that you'd have to make, your Honour, and we think that it's appropriate to regard what the unions have done and have never resiled from in the context of this bargaining, as constituting non-genuine bargaining.

PN259

THE VICE PRESIDENT: Never resiled from ..... has it?

PN260

MR WOODS: In what sense, your Honour?

PN261

THE VICE PRESIDENT: Really never resiled from the FTTN threats.

PN262

MR WOODS: Never resiled from the threats. We say they're stronger than lack of support. They're actual determined attempts to use all powers to adversely affect. That's clear. That's not been resiled from. The bulletins thereafter and continuing to date continue on in that vein. I can take your Honour to some of them.

PN263

THE VICE PRESIDENT: Yes.

PN264

MR WOODS: Your Honour, can I just stay with the chronology just for a little while just to make the second major point we wish to make about the CRA and the MOU and the way in which the CRA and the MOU were tested, found wanting and how that was explained.

PN265

THE VICE PRESIDENT: I understand the basic sequence of events. The CRA is put forward by the unions, it's rejected by Telstra on two bases, firstly, that it contains prohibited content and secondly, on the basis that it compromises Telstra's capacity to undertake the FTTN because of the issues in relation to the Commonwealth's code of compliance in respect of construction work of the Commonwealth's funds, that the unions went away and came up with a memorandum of understanding which itself evolved and that appears to have been an attempt to address some of the concerns that Telstra had. The unions sought the support and obtained, apparently, the support of the Deputy Prime Minister in relation to that process, that the document submitted to the department for assessment in relation to code compliance and was found wanting substantially in relation to code compliance as distinct from prohibited content.

PN266

MR WOODS: Yes, and that being the important point for the FTTN.

PN267

THE VICE PRESIDENT: Several points towards the end of the process there have been repeated statements on the unions' side that they're not seeking anything that's illegal or contrary to the industrial regulatory regime. Then you say well, doubt about the authenticity of those assertions is raised by bulletins and the like.

PN268

MR WOODS: By the whole history of the bargaining, including the more recent bulletins but particularly in relation to the manner in which the evolution that you have identified occurred, your Honour, because during June, that is just before the FTTN proposals were due - I shouldn't say proposals, regulatory submissions were due on 25 June, on 23 June Mr Walton prepared the first version of the MOU and sent it to Ms Grant. That MOU was the subject of discussions in the seventh negotiation meeting.

PN269

THE VICE PRESIDENT: Which tab is the first MOU at?

PN270

MR WOODS: At tab 28.

PN271

THE VICE PRESIDENT: 28?

PN272

MR WOODS: Yes, your Honour, 28.

PN273

THE VICE PRESIDENT: The revised MOU?

PN274

MR WOODS: The revised MOU is found - - -

PN275

THE VICE PRESIDENT: Behind tab 50, I think.

PN276

MR WOODS: You're a faster reader than I am, your Honour. Yes, 52, I think.

PN277

THE VICE PRESIDENT: It's behind the letter to Mr Fari from the department, Ms Day's letter.

PN278

MR WOODS: Yes, your Honour. That MOU which was provided on 23 June is referred to at paragraph 68 through 72 of the affidavit and if your Honour reads the exhibits around this time you'll see that there's a great deal of anxiety on behalf of Mr Walton that the crucial date of 25 June - - -

PN279

THE VICE PRESIDENT: I take it that if one judged the content of this by reference to ILO conventions, it would be regarded as an utterly unremarkable document.

PN280

MR WOODS: It's not a question I've examined, your Honour. The seventh negotiating meeting was on 26 June and that's referred to at paragraphs 75 through to 83 and that was immediately after the dates for the regulatory submissions for the FTTN and there was debate on that day about the MOU and what was said was that it wasn't code compliant and it did contain some prohibited content. As it turns out, unbeknownst to Telstra, shortly thereafter, on 1 July the ACTU sent that first version of the MOU to the Deputy Prime Minister who then on-forwarded it, two weeks later on 15 July, to the department - - -

PN281

MR REITANO: Is there evidence of this?

PN282

MR WOODS: It's in the statement.

PN283

MR REITANO: Are you calling Ms Gillard?

PN284

MR WOODS: There's evidence that it was forwarded to the office, yes. There's a statement by - I think it's in a letter as well. I can come to the actual evidence on the point, your Honour. It's paragraph 110 through to 114 and I can - - -

PN285

THE VICE PRESIDENT: How do you infer that the MOU that was sent was the first MOU rather than the second?

PN286

MR WOODS: Because the first MOU was the subject of a letter from Mr Pullen which is referred to at tab 55 and you can see at tab 55 there's reference to
51, non-compliant provisions, and what one obtains from reading paragraphs 110 through to 119 is that the first version of the MOU was the one which was assessed on 17 July and provided back to the ACTU and a second version, and your Honour identified it at tab 52 as - - -

PN287

THE VICE PRESIDENT: Mr Woods, doesn't the very fact of this sequence CRA, MOU 1, MOU 2 and the differences between them, demonstrate recognition by the ACTU and the SBU that there may be problems and a successive requirement in an effort to get rid of the problems?

PN288

MR WOODS: Yes, your Honour, if it had been obviously said that that's what they were doing.

PN289

THE VICE PRESIDENT: But it's what they were doing. It's objective fact, isn't it?

PN290

MR REITANO: We were being honest about it.

PN291

MR WOODS: Your Honour, what happened was that at no time - - -

PN292

THE VICE PRESIDENT: Why shouldn't I draw an inference that that temporal sequence and the differences between the CRA as it was originally proposed, MOU 1 and MOU 2, demonstrate movement on the part of the unions that was based upon the desire to expunge from the pre-negotiating agreement - they call them an agreement, in fact, in fact they ended up with something that wasn't going to be an agreement anyway, be a gentlemen's agreement at best, but an "agreement" that was absent prohibited content or code non-compliant content.

PN293

MR WOODS: Because, your Honour, during - - -

PN294

THE VICE PRESIDENT: You get to paragraph 6 of MOU 2, if I can describe it that way, the one behind tab 50, (6):

PN295

This MOU is intended to be compliant with all current laws, industrial codes and guidelines ...(reads)... to ensure compliance.

PN296

How can that be construed as anything other than an attempt to try and get rid of prohibited content and any code non-compliant terms?

PN297

MR WOODS: For two reasons, your Honour - - -

PN298

THE VICE PRESIDENT: I understand you might be saying well, they speak with a forked tongue but this is what you're being asked to agree to and those are the black and white terms of it.

PN299

MR WOODS: We were asked to agree to the first version of the MOU by letter of 23 June. That was discussed on 27 June. On 27 June there was a suggestion made that this agreement contained both prohibited content and was non-code compliant, further the proposition that it be a precondition for entering into an enterprise agreement was maintained. Direct questions were asked on that day and the proposition was advanced that this agreement is the one that we want as a precondition to entering into an enterprise bargaining agreement. That agreement is then tested without our knowledge. That result of the testing confirms what we said about it on 29 June and instead of coming back to us and saying, "Yes, you are right. What you say is correct, this MOU was seriously deficient." What they do instead is go to the workforce and say that Telstra is the one who is behaving inappropriately in bulletins from 17 July through to 30 July. For example 22 July, tab 43, they say at page 2 of the Special Signal:

PN300

The so-called threat to Telstra's capacity to win the national broadband network, NBN contract for so-called illegal content is another fiction by HR.

PN301

THE VICE PRESIDENT: Where are you reading from?

PN302

MR WOODS: Page 2, your Honour, halfway down.

PN303

THE VICE PRESIDENT: Under the heading?

PN304

MR WOODS: Under the heading So-called Illegal Content Nonsense.

PN305

THE VICE PRESIDENT: Starting at the front of tab 43 there is a document which is at the top right-hand corner page 2 of 5. The first words are ..... goal, HR manager Telstra.

PN306

MR WOODS: I'm sorry, your Honour, at the back of that tab there is a four page Special Signal dated 22 July, So-called Illegal Content Nonsense:

PN307

The so-called threat to Telstra's capacity to win national broadband network contract through so-called illegal content ...(reads)... doesn't get much more
two-faced than this.

PN308

THE VICE PRESIDENT: Any provision of which proved to be illegal, the unions would drop.

PN309

MR WOODS: Your Honour, there's a proposition that's being advanced in this bulletin that they had - - -

PN310

THE VICE PRESIDENT: Mr Woods, can I just sort of be practical in the way that industrial tribunals are supposed to be. The relationship between Telstra and these unions has been in the news and in the reported decisions. It's clear that Telstra doesn't have much time for the unions and the unions don't have much time for Telstra and indeed that each side accuses the other of telling porkies and most recently Telstra hasn't been indicated in that respect in a decision - which judge of the Federal court was it that - - -

PN311

MR REITANO: Sundberg.

PN312

THE VICE PRESIDENT: In Sundberg J's judgment, but that's the background. The issue here is whether or not, notwithstanding those attitudes the parties have to one another in a practical sense, the unions have been genuinely trying to reach an agreement and are still genuinely trying to reach an agreement.

PN313

MR WOODS: That's really the assessment you have to make, your Honour.

PN314

THE VICE PRESIDENT: I don't know that focusing on allegations that one side makes against the other - and no doubt the unions have ..... to identify similar allegations that have been made by Telstra which they contend are wrong, which Telstra contends are correct. No doubt Telstra disagrees with aspects of Sundberg J's judgment. I don't know whether ..... been involved, maybe it does, maybe it doesn't.

PN315

MR WOODS: ..... interlocutory injunction, your Honour.

PN316

THE VICE PRESIDENT: In any event, I'm just having some difficulty understanding how demonstrating that something has been said in some bulletin, put together by whom we don't know and we don't know the bona fides of the person that put it together. It may have been the person that wrote this is acting quite with bona fides. I don't see how this advances the issue as to whether or not the unions are genuinely trying to make an agreement.

PN317

MR WOODS: Your Honour, for the very reasons identified, it there's been a history of some hostility and it might be said that the parties to that relationship might be prepared to act in a way that is inappropriate, improper, engaged in bargaining that is not genuine and it's the role of the Commission - - -

PN318

THE VICE PRESIDENT: Just correct me if I'm wrong, but isn't the broad position this, that Telstra, as was its absolute right, embraced the Work Choices reforms and has sought to promote AWAs within its workforce, which, of course, because of the way the legislation operates, undermines union ..... and union effectiveness. There's been no certified agreement that's expired. The workers who are on the certified agreement haven't had a pay rise. The union would like to see them have a pay rise and would like to see terms and conditions improved. The only way they can do that is to get an agreement with Telstra. All of this manoeuvring that happens between the parties, and all the posturing, I just don't see how that undermines the proposition that the unions actually want to have a new certified agreement that actually delivers pay rises to the employees and members who are covered by it.

PN319

MR WOODS: Because the manner in which one goes about doing that, obtaining that aim, is a matter that the Commission should take into account in assessing whether there has been genuine bargaining.

PN320

THE VICE PRESIDENT: Genuine bargaining in the bargaining period which commenced on 27 August.

PN321

MR WOODS: Yes, your Honour, and that assessment, like any assessment of any conduct, has a context and the relevant context is what went immediately before it as part of the continuum of the bargaining. Just to take an extreme example, your Honour, say the unions really wanted to - and we've got no doubt that the proposition, if it's made - say the unions really wanted an agreement, then one of the things that could be done - - -

PN322

THE VICE PRESIDENT: Mr Reitano, should we wait for a moment?

PN323

MR PASFIELD: No, your Honour, proceed.

PN324

THE VICE PRESIDENT: Thank you, Mr Pasfield.

PN325

MR WOODS: I do note the time, your Honour. What time was your - - -

PN326

THE VICE PRESIDENT: I'm sorry, I hadn't .....

PN327

MR WOODS: ..... either, your Honour. Perhaps Mr Reitano - - -

PN328

THE VICE PRESIDENT: Is Mr Reitano trying to - - -

PN329

MR PASFIELD: No, your Honour, we're happy to proceed.

PN330

THE VICE PRESIDENT: We should have short break at some point and we'll do that at 1.30 until two?

PN331

MR REITANO: Yes, your Honour.

PN332

MR WOODS: The proposition your Honour advances is correct to an extent. There is an intention to obtain an agreement of a type. There's also an intention to obtain an overarching agreement.

PN333

THE VICE PRESIDENT: You call it a site agreement in the - or the witnesses have called it a site agreement in the statements and it's called a site agreement in the submissions.

PN334

MR WOODS: Leaving aside the question of the site agreement for the moment from your Honour's example - - -

PN335

THE VICE PRESIDENT: Usually, that expression describes an agreement that's being made in tandem with the primary agreement, whereas what's happening here is that the unions have been trying to get what you call a site agreement as an agreement that will set the context within which the primary agreement negotiations occur. It's really a preliminary agreement rather than a site agreement.

PN336

MR WOODS: Initially, your Honour, yes, but more recently as a true site agreement, that is to have negotiations going side by side for both agreements, the overarching agreement and the ..... agreement and the bulletins make that clear, the more recent ones, your Honour.

PN337

The proposition your Honour makes is that - let's leave any question of the site agreement out for present purposes and let's say the unions did indeed want an agreement and there were no collateral purposes, they're not entitled to do anything to obtain that aim, not entitled. Mr Reitano can't get up with a club and hit me over the head. That would be non-genuine bargaining.

PN338

MR REITANO: It would put an end to all this nonsense.

PN339

MR WOODS: As much as he might wish to - and procedure and the method by which one carries out the bargaining process is relevant to the question of genuine bargaining and that's really the point of this part of the submissions, that the Commission shouldn't, if it finds that one of the parties to the bargaining has misled - and the inference must be deliberately because there's been no contest on the evidence, it shouldn't condone that sort of conduct in bargaining. There might be a whole range of responses to that, that that was long ago, we apologise, we're sorry. We accept all that but there hasn't been any apology, there hasn't been
any - - -

PN340

THE VICE PRESIDENT: The misleading you're talking about is the misleading of the employees or the members in the bulletins.

PN341

MR WOODS: And the public and Telstra.

PN342

THE VICE PRESIDENT: Where's the misleading of Telstra?

PN343

MR WOODS: What went on, your Honour, was that on 29 June - - -

PN344

THE VICE PRESIDENT: Telstra has always known that the CRA and the MOUs were rotten with prohibited content.

PN345

MR WOODS: It has always had advice to that effect.

PN346

MR REITANO: Should get some good advice.

PN347

MR WOODS: What it had during the period of 29 June to 30 July was complete silence from the unions that they were attempting to have the MOU tested and then complete silence that it had been tested and found wanting, complete silence that a new MOU was being drafted for assessment and in the meantime, communications - - -

PN348

THE VICE PRESIDENT: The very fact it was submitted for assessment almost corroborates the bona fides of the individuals who drafted the original MOU. Why would you submit it for assessment if you knew it was going to get rejected?

PN349

MR WOODS: Your Honour, which one are we talking about, the first or the second?

PN350

THE VICE PRESIDENT: The first one.

PN351

MR WOODS: Because you might have thought that - well, there's a whole range of reasons that are possible.

PN352

MR REITANO: One would be good.

PN353

MR WOODS: A whole range of reasons that this might happen.

PN354

THE VICE PRESIDENT: In terms of the probabilities, one doesn't embrace as a probability that there's some corruption occurring, for example. One starts with the assumption that people tend to act with bona fides rather than a lack of bona fides and I find it hard to think of a plausible bare explanation for the submission of the first MOU, other than those that submitted it thought that it was going to be okay. It turned out not to be. They probably hadn't got advice from Mr Reitano at that point.

PN355

MR WOOD: Your Honour, why was it that nothing was said to Telstra about this in the bargaining after 29 June? Why was it that a new MOU was drafted?

PN356

THE VICE PRESIDENT: No doubt for tactical and strategic reasons.

PN357

MR WOOD: And why was that new MOU passed off as being the MOU that had been provided to Telstra on 29 June, actually first on 23 June?

PN358

THE VICE PRESIDENT: Passed off to the employees, to the members?

PN359

MR WOOD: To the employees and to the public through the form of bulletins. That is, after 4 August an assessment is announced that the MOU passes the test. The second MOU neither passed the test on the material, and there's no indication from the unions that the MOU at that stage, the second MOU, was in fact a second MOU.

PN360

THE VICE PRESIDENT: I understand that point.

PN361

MR WOOD: Now, again, your Honour, one has to look at this from the other perspective. Say if an employer did all this, say if an employer in a meeting with a union asked for these extraneous claims then didn't tell the union what it was doing, found out that the claims were inappropriate. Behind the union's back. Then we had another assessment made, all the time communicating with the employees that there was nothing wrong with the first one when they knew about it. Drafted a second one, had that assessed, wrongly suggested that it passed the test, and then passed that off as the first one.

PN362

Now, that conduct, the Commission would be bound to say, we would say, doesn't constitute genuine bargaining. Now, there's a different question about whether it can be cured, whether it's too far past, whether there's been sufficient attrition.

PN363

THE VICE PRESIDENT: But see, Mr Woods, the fact that you need to make that, my answer to your rhetorical question is that I've responded in fact in the same way, and to put it in the way you put that submission, is that somehow or other I have blind spot when it comes to union behaviour and not when it comes to employer behaviour.

PN364

MR WOOD: No, I'm not saying that at all, your Honour. I'm just saying it's important when you're testing this proposition that one ensures that's what's good for the goose is good for the gander, and it's important to look at it through both lenses. I'm not saying your Honour doesn't. I'm just saying it's very important sometimes to just think, well, what would one think if this was done the other way. Now, Mr Reitano would be jumping up and down and slamming the table saying this conduct is outrageous.

PN365

MR REITANO: I don't do that any more.

PN366

MR WOOD: And the Commission would be bound to find - - -

PN367

THE VICE PRESIDENT: His outrage would be incandescent.

PN368

MR WOOD: It would be, your Honour, I've observed it. And your Honour would then be bound to say that that was not an example of genuine bargaining, in the same way - well, I shouldn't say bound, bound is too strong, your Honour. Your Honour might find that that conduct - - -

PN369

THE VICE PRESIDENT: There's no bargaining going on for an enterprise agreement in any of this.

PN370

MR WOOD: Sorry, your Honour?

PN371

THE VICE PRESIDENT: There's no bargaining for an enterprise agreement occurring at this time.

PN372

MR WOOD: At this time.

PN373

THE VICE PRESIDENT: Not at all.

PN374

MR WOOD: Well, after 4 July, and there are attempts being made by the unions to restart bargaining. This is the point of the bulletins, that's what the bulletins say, Telstra should enter into a memorandum of understanding and recommence EA negotiations. And this is part of the positioning to put pressure on Telstra to do just that.

PN375

THE VICE PRESIDENT: And all this is occurring and no bargaining period is being initiated.

PN376

MR WOOD: No bargaining period, that's quite correct, your Honour. But I'm really getting to the point your Honour's identified, which is, can one simply take at face value statements made now that the union has an intention presently to do two things.

PN377

THE VICE PRESIDENT: I'm just not prepared on this evidence to attribute to Mr Husic, for example, who I've got no reason to believe is anything other than an honourable individual, I can't attribute what's in the Special Signal Issue number 555 of 22 July to Mr Husic, can I?

PN378

MR WOOD: Well, your Honour, we're asking your Honour to make a finding in relation to a corporate entity of which Mr Husic - - -

PN379

THE VICE PRESIDENT: I think we were signed off by Mr Cooper.

PN380

MR WOOD: Which Mr Husic is the, I think national president, and Mr Cooper the Victorian state secretary. Mr Cooper signs sometimes for him and Mr Blackburne for him also.

PN381

THE VICE PRESIDENT: And no doubt in the ordinary scheme of things it's probably been drafted by some minion.

PN382

MR WOOD: It may well have been, your Honour. But the point is, in the context there are a whole range of persons who speak for the three corporations who engaged in the bargaining. They are in the main three or four officials of each of the three unions and three representatives of the ACTU. It's plain on the material the ACTU represents the three unions, it's plain the three of them are in together, and it's plain each of the union officials speak at the relevant time on behalf of all of them. That's the point of the single bargaining unit. And these bulletins, a fair reading would show, are produced by one or more of the unions or sometimes by all three with the ACTUs imprimatur in aid of the over arching campaign which at all relevant times had three legs to the stool. And that's what we would say a fair reading of all the evidence shows.

PN383

At a later point we are asking your Honour to find that what has been the nature of the bargaining between the commencement of the bargaining period and now? That's the question your Honour has to answer. And the evidence that you
- - -

PN384

THE VICE PRESIDENT: Well, there's rather a paucity of evidence about what's occurred since 27 August.

PN385

MR WOOD: Well, that's true, your Honour. There's nothing except statements from the bar table of - - -

PN386

THE VICE PRESIDENT: Well, I'm going to ask Mr Reitano about that in a moment.

PN387

MR WOOD: And what we say is that in relation to the union's current position the uncontested evidence is that the second MOU contains non code compliant material and prohibited conduct.

PN388

THE VICE PRESIDENT: No, I don't think you could say that's the uncontested evidence.

PN389

MR WOOD: I think it is, your Honour. The statement from - - -

PN390

THE VICE PRESIDENT: I've got to say that simply they use a pretty anodyne sort of document.

PN391

MR WOOD: Well, I'll dig up the reference in the evidence. But the statement from the department is that it does not - - -

PN392

THE VICE PRESIDENT: This is a series of motherhood statements isn't it? The thing's been watered down from what had real substance and went far down to a series of motherhood statements.

PN393

MR WOOD: Well, your Honour, some of the - - -

PN394

THE VICE PRESIDENT: A couple of really small specifics like facilitate an agreement with workplace representatives for enterprise bargaining agreement discussions.

PN395

MR WOOD: Well, I think it does - I'll dig up the - - -

PN396

THE VICE PRESIDENT: That's in the evidence is it?

PN397

MR WOOD: It's not code compliant though.

PN398

THE VICE PRESIDENT: What, having workplace representatives attending enterprise agreement - - -

PN399

MR WOOD: Facilitating employee access to ensure new employees are provided with details of this MOU with workplace representatives invited to reinforce the message. I think it is, your Honour. And there's a code in place that will affect the building of the largest piece of infrastructure since the Snowy Mountains scheme, and this is a very, very serious piece of infrastructure, and the code contains some very strict rules about what can be agreed.

PN400

THE VICE PRESIDENT: I'm just confused about this. Has MOU 2, as I'll call it, been assessed and found wanting?

PN401

MR WOOD: Yes, your Honour, in part. It's a better document than MOU 1.

PN402

THE VICE PRESIDENT: Has it been assessed by the department though?

PN403

MR WOOD: As I understand things, yes, your Honour.

PN404

THE VICE PRESIDENT: Is there evidence about that?

PN405

MR WOOD: As I understand things, yes.

PN406

THE VICE PRESIDENT: And that evidence is where?

PN407

MR WOOD: It's tab 52.

PN408

THE VICE PRESIDENT: "I have examined the draft memorandum of understanding and consider it to be compliant with the requirements of the code and guidelines." That's the assessment.

PN409

MR WOOD: It's the point at - - -

PN410

THE VICE PRESIDENT: Are the parties happy to just press on or do you want to take a short break for lunch?

PN411

MR WOOD: We might take a short break.

PN412

MR REITANO: I would be happy to press on, and I want to make an application before the adjournment, if your Honour is inclined to grant one. But we wanted to press on. We think this time wasting exercise eventually has to come to an end. And I want to make an application.

PN413

THE VICE PRESIDENT: What's the application you want to make, Mr Reitano?

PN414

MR REITANO: The application is either that your Honour deal with - - -

PN415

THE VICE PRESIDENT: Mr Wood, I'll come back to you about that, but at the moment I want you to - you made a submission that MOU 2 has been assessed and found wanting. I was asking for evidence of that. The only evidence I can see is it's been assessed and found to be compliant.

PN416

MR WOODS: Yes. It's page 3 of that document, your Honour:

PN417

Agreement clause that may be non compliant with the code and guidelines subject to practical on site application.

PN418

THE VICE PRESIDENT: Yes, okay, fine. If that's the highest you put it, fine. Yes, Mr Reitano, your application?

PN419

MR REITANO: My application is - it really is this, perhaps short of an application, but it's to remind your Honour of two things and invite your Honour to take either course. Before I remind your Honour of the two things that are available can I remind your Honour of section 457, that obliges your Honour to act quickly as practicable.

PN420

THE VICE PRESIDENT: Yes, I'm doing that.

PN421

MR REITANO: And to determine the matter as far as is reasonably possible within two working days. There are two other things that your Honour has, and two working days, your Honour will recall, when the application was filed, Monday afternoon as I recall it. So either Sydney days or Melbourne days, it doesn't matter. We're well on the expiry of or after two working days now, one or the other. I say Melbourne days because of the public holiday. Your Honour has two things available to your Honour that your Honour can use as a matter of discretion.

PN422

THE VICE PRESIDENT: Well, I'm proceeding on the basis that on the expiry of - this was a Melbourne filed application, it was going to be heard in Melbourne. I'm hearing it in Sydney. But because it was filed on the afternoon before Melbourne Cup day nothing was going to happen to it on Melbourne Cup day because it's a public holiday.

PN423

MR REITANO: In Melbourne.

PN424

THE VICE PRESIDENT: And the two working days in Victoria expires at the end of the day today.

PN425

MR REITANO: Thank you, your Honour. I'm not taking any point. I'm saying we're either going to expire, not from boredom but because time is going to run out or, alternatively, we already have expired. I don't care which one it is. Your Honour has two options, two matters that are available in your Honour's discretion. One is under section 110(2), your Honour can limit the time for the presentation of the submissions, and I would invite your Honour to consider that, or, alternatively, and my submission is they're all available given that your Honour has the outline that's been filed, under subsection (4) of section 458 your Honour is entitled to decline to consider a person's submission inter alia if it is misconceived or lacking in substance. And either of those, on what we've heard so far, are well and truly made out.

PN426

THE VICE PRESIDENT: Mr Wood, just bear with me a moment. I'm not prepared at this point to set a time limit, but I'll review that in due course. I'm not at this stage in the exercise of a discretion prepared to decline to consider Telstra's submissions on the basis they're vexatious, frivolous, misconceived or lacking in substance. Now, Mr Wood, do you have anything more that you want to say in relation to not genuinely trying to reach agreement?

PN427

MR WOOD: Your Honour, yes, I do, but I don't think should be particularly long on that point. I'm conscious of what my learned friend says, and I haven't taken your Honour to every document.

PN428

THE VICE PRESIDENT: Mr Wood, if and when it becomes a problem for your client you can address it then.

PN429

MR WOOD: Yes, sure.

PN430

THE VICE PRESIDENT: At the moment I'm not prepared to accede to either of Mr Reitano's applications.

PN431

MR WOOD: Your Honour, we got up early to be here, went to bed late, and I don't think it's unreasonable for us to have a short break to have some sustenance.

PN432

THE VICE PRESIDENT: I agree with that as well, but we are going to finish this this afternoon one way or the other.

PN433

MR WOOD: Yes, your Honour.

PN434

THE VICE PRESIDENT: I appreciate that there isn't an absolute time limit, it's as far as practicable, and in some circumstances it might dribble over and I can see circumstances where the union might be asking for it to dribble over as well. How much longer do you think you'll be in relation to your submissions on not genuinely bargaining.

PN435

MR WOOD: Perhaps 20 minutes or half an hour, your Honour.

PN436

THE VICE PRESIDENT: Then in relation to the balance of the submissions?

PN437

MR WOOD: Fifteen minutes perhaps.

PN438

THE VICE PRESIDENT: So you think 45 minutes?

PN439

MR WOOD: Depending on interchanges between the bar and the Bench, your Honour. Those sort of interchanges are valuable and they focus the debate so I wouldn't ask that they stop.

PN440

THE VICE PRESIDENT: Thank you. Mr Reitano, can I just ask, you were going to outline to me earlier on today how I could be satisfied that the requirements in section 461 were satisfied beyond mere submission, and can you just outline that to me now?

PN441

MR REITANO: And I also want to take your Honour to some of the documents, not many of them, but some of the documents in Mr Fewster's affidavit because it demonstrates that as well. But the documents that I was going to refer your Honour to are a notice of bargaining period, that is, the fact that a bargaining period is instituted, the particulars that accompany that notice, the declaration of Mr Husic that was filed with the application that says that - there are two declarations and probably one is more relevant than the other; the one that says prohibited content isn't being sought, and the other one is the consideration of the committee of management authorising the industrial action.

PN442

And I think there was one other document, if your Honour would pardon me a moment. I was going to take your Honour in due course to the decision of Deputy President Lacy of 8 September, where the union's invoked the power, or attempted - it misfired - but attempted to invoke the powers of this Commission because of Telstra's refusal to negotiation with them. Those were the matters that I was going to put to your Honour that show that during the bargaining period - - -

PN443

THE VICE PRESIDENT: Let me confess that I haven't read SDP Lacy's decision, but are you telling me that that decision finds as a matter of fact that Telstra has declined to negotiate?

PN444

MR REITANO: I haven't got the second decision, your Honour. I understand there's a later one as well. In the first decision his Honour recites the history in very short form in paragraphs, I think 7 and 8 and perhaps 9, which includes in effect a refusal to - an end to the discussions on 17 July, information to the unions that they won't resume discussions with the unions about an EBA. I can hand your Honour a copy of it if that assists.

PN445

THE VICE PRESIDENT: Okay. I'm going to adjourn for half an hour for lunch now, so 10 past two. And if Mr Wood is significantly in excess of the estimate that he's given to complete his submissions, Mr Reitano, you can renew your application.

PN446

MR REITANO: If it please, your Honour.

PN447

THE VICE PRESIDENT: The Commission is adjourned for half an hour.

<LUNCHEON ADJOURNMENT [1.44PM]
<RESUMED [2.16PM]

PN448

THE VICE PRESIDENT: Mr Wood?

PN449

MR WOOD: Thank you, your Honour. Your Honour, I was addressing you before the short break on section 461 and the point about genuine bargaining. Can I just make these simple points to try to summarise our position, your Honour? The first point we make is that a collateral agreement is still sought - - -

PN450

MR BLACKBURNE: Sorry, your Honour, would you mind speaking up a bit.

PN451

THE VICE PRESIDENT: Thank you. By the way, you folk in Melbourne I hope understand that we're having diabolical problems with the video conferencing facilities and hence the need for the unsatisfactory second alternative of voice point, but we just have to press on with that. Yes, Mr Wood?

PN452

MR WOOD: Thank you, your Honour. Your Honour, the first point is the collateral agreements to be sought, and that's in bulletins as late as September. The second point is that - - -

PN453

THE VICE PRESIDENT: Can you take me to those?

PN454

MR WOOD: Yes, your Honour.

PN455

THE VICE PRESIDENT: I think at 62, is it?

PN456

MR WOOD: We'll start with 62, your Honour. You'll see Telstra finds an excuse to walk out. This is CEPU Online publication, I'm told the key publications for the New South Wales Branch. And you will see that the MOU side deal is in the second column on page 3 of that exhibit.

PN457

The MOU side deal would give unions guaranteed access to Telstra sites and would also compel the company to ensure its contractor staff were employed on terms no less favourable than those which are quite comparable to Telstra employees.

PN458

Your Honour, there's a question about whether or not the - dealing with the second point now - the collateral agreement - - -

PN459

THE VICE PRESIDENT: Is that the end of the evidence of collateral agreements still being sought?

PN460

MR WOOD: Your Honour, it comes from all of the material post the end of bargaining for a replacement EA in July. All of the material shows that the unions were maintaining a desire to have a collateral agreement, that is, the second leg of the stool.

PN461

THE VICE PRESIDENT: And that's the MOU 2?

PN462

MR WOOD: We'll come to that, your Honour, because that's an important point. At no stage have we been provided by the unions with MOU 2, and that's clear on the evidence. MOU 2 - - -

PN463

THE VICE PRESIDENT: How did you get it then to include it in Mr Fewster's affidavit?

PN464

MR WOOD: From journalists. That's set out in the evidence. There was a press release on 4 August, and journalists provided that document, and that's set out at tab 54, and this is the letter of 4 August to Ms Day, director of the building industry branch, that prompts the response by Mr Pullen at tab 55, and that's the point about the clarification of which MOU was sought, and there's no
evidence - - -

PN465

THE VICE PRESIDENT: So that's MOU 1 that's been commented on?

PN466

MR WOOD: That's MOU 2, your Honour. MOU 1, what the letter is saying is "We're confused about what we've received from the ACTU today. This is what we have from the ACTU."

PN467

MR REITANO: Can you tell me where you're reading from, sorry?

PN468

MR WOOD: Paragraph 54. Your Honour, there's no evidence that the ACTU or any of the union officials has ever provided MOU 2 to Telstra. Indeed, the document I just took you to at tab 61, the dot points at tab 62, the September bulletin, the dot points are from MOU 1, not from MOU 2.

PN469

THE VICE PRESIDENT: When you say dot points, I can't see - - -

PN470

MR WOOD: Sorry. The propositions, the two points - - -

PN471

THE VICE PRESIDENT: Yes, the summary of the effect of the MOU is clearly a summary to the effect of MOU1.

PN472

MR WOOD: That's correct.

PN473

THE VICE PRESIDENT: Or, indeed, the CRA.

PN474

MR WOOD: Yes. And that falls foul of the code compliance. That was the one that was assessed and found had 51 faults. Telstra's never received from the unions MOU 2 as the document that they now wish. That was obviously provided to the department to assess and to the media. So the second point we make, your Honour - - -

PN475

THE VICE PRESIDENT: But you took me to the letter behind tab 55, a letter to Mr Fewster of 4 August.

PN476

MR WOOD: Yes, your Honour.

PN477

THE VICE PRESIDENT: That contains an assessment not of MOU 2.

PN478

MR WOOD: That's correct, your Honour.

PN479

THE VICE PRESIDENT: It contains an assessment of MOU 1.

PN480

MR WOOD: And if you look at the letter before then at tab 54 - - -

PN481

MR REITANO: I apologise, your Honour, sorry. I have some difficulty following this. What tab is your Honour looking at when your Honour refers to a letter of 4 August?

PN482

THE VICE PRESIDENT: Tab 55. Both tabs 54 and 55 go to 4 August, but I was specifically referring to the letter that Mr Wood first took me to, which was a letter from the department under the hand of Mr Pullen to Mr Fewster of 4 August which is behind tab 55.

PN483

MR REITANO: Could I just inquire of your Honour as to what your Honour has behind tab 51? And I apologise to Mr Wood for interrupting him.

PN484

THE VICE PRESIDENT: I have got tab 51, a document with a faxed stamp on the very top left hand corner, a letter of 4 August to Ms Andrea Grant.

PN485

MR REITANO: Of Telstra human resources?

PN486

THE VICE PRESIDENT: Yes, it's only one page.

PN487

MR REITANO: That's exactly why I was inquiring of your Honour. Your Honour doesn't have the second page.

PN488

THE VICE PRESIDENT: No.

PN489

MR REITANO: I do, only because I've had access - the reason why the second page is important is because under the signatures it has the letters ENC indicating that there's some enclosure with the letter.

PN490

MR WOOD: Yes, that's closed.

PN491

MR REITANO: Mr Wood takes a nice point that the evidence apparently is closed. He gave us this affidavit after your Honour commenced the proceedings, and we had half an hour to check that Telstra honestly put every page of the documents together. And then it comes here and accuses us in its submissions of being dishonest.

PN492

THE VICE PRESIDENT: Mr Reitano, are you suggesting that the true copy of the letter of 4 August to Ms Andrea Grant, the first page of which is behind tab 51, appears to enclose MOU 2?

PN493

MR REITANO: It has the letters ENC on it. No doubt the second page has been omitted because that might create the impression that MOU 2 was in fact enclosed with it, and that's something that Telstra don't want your Honour to know.

PN494

THE VICE PRESIDENT: Do you seek leave to, as it were, re-open the evidence and tender the second page?

PN495

MR REITANO: Yes, your Honour, I do.

PN496

THE VICE PRESIDENT: Mr Wood?

PN497

MR WOOD: Subject to being able to check it, your Honour, I don't object. Your Honour, if I can just have some time to take some instructions on this point? I was making submissions that we hadn't received MOU 2, and I'd like to be in a position to tell you that those submissions stand or not.

PN498

THE VICE PRESIDENT: Please take some instructions.

PN499

MR WOOD: May I leave the bar table, your Honour?

PN500

THE VICE PRESIDENT: Yes, please do. Just for the record I'll note that I've added the page 2 of the letter of 4 August, the first page of which was behind tab 51, I've added the second page to tab 51. I'll probably mark that as a separate exhibit. Yes, Mr Wood?

PN501

MR WOOD: Thank you, your Honour, for that time. We were just seeking some instructions on the point. My instructions remain the same, that Telstra did not receive MOU 2 from the unions.

PN502

THE VICE PRESIDENT: I'm going to mark the second page of the letter of 4 August, the first page of which was behind tab 1.

EXHIBIT #5 SECOND PAGE OF LETTER BEHIND TAB 1 DATED 04/08/2008

PN503

MR WOOD: But I'm asking for some searches to be undertaken, your Honour, and I'll be in a position to either confirm or withdraw that submission.

PN504

THE VICE PRESIDENT: In any event, it's the first page that was behind tab 51, identifies that the MOU has been adjusted to take account of feedback, just like to take account of your feedback.

PN505

MR WOOD: It may mean that, your Honour. It's going to be perfectly clear when one gets the enclosure. It may mean that the CRA has been amended to form the MOU, or it may mean that the first MOU has been amended to form the second MOU. I'll find out shortly, your Honour. Your Honour is entitled to draw whatever inferences your Honour thinks are appropriate from the terms of the letter. Your Honour, can I say that the point remains that the claims made in September relate to MOU 1, not MOU 2.

PN506

THE VICE PRESIDENT: Yes, that's right. Now, you were in the process of taking - and I appreciate that this is taking longer because of my interventions than what we estimated. I was asking you to take me to the evidence of the post 27 August. Your first proposition was the collateral was still being sought.

PN507

MR WOOD: Yes, your Honour.

PN508

THE VICE PRESIDENT: And I was asking for the evidence of that, and you've taken me to the article headed Telstra Find Excuses to Walk Out.

PN509

MR WOOD: Yes, your Honour.

PN510

THE VICE PRESIDENT: The New South Wales CEPU newsletter behind tab 62, which is the September 2008 newsletter. Are there any others, more evidence for that proposition?

PN511

MR WOOD: Your Honour, there's been no withdrawal of the desire for a side agreement. There's never been any communication that, that is, there's been withdrawal of that claim. The only real question of factual debate is which one is being sought, MOU 1 or MOU 2, and the evidence seems to be MOU 1, your Honour.

PN512

THE VICE PRESIDENT: Well, that's if one just ignores the letter behind tab 51. Do you seriously suggest that I should just ignore the plain words of the third last paragraph on the first page of the letter at tab 51?

PN513

MR WOOD: The third paragraph from the bottom, your Honour?

PN514

THE VICE PRESIDENT: Yes:

PN515

Last week the unions received advice that the Commonwealth Department of Education, Employment and Workplace Relations confirming that our MOU adjusted slightly to take into account your feedback was perfectly legal.

PN516

MR WOOD: Your Honour, it could refer to the proposition that your Honour's advancing, and it could refer to the fact that the MOU, the first version, was prepared because of criticisms of the CRA. And my instructions are that this second MOU was - - -

PN517

THE VICE PRESIDENT: I'm against you on that, Mr Wood.

PN518

MR WOOD: Well, your Honour, all I can say is I've had the opportunity to take further instructions and I'm searching for the enclosure, and I understand - - -

PN519

THE VICE PRESIDENT: Well, maybe you didn't get the enclosure. I mean, sometimes people intend to enclose something and, you know, the secretary leaves it out by mistake.

PN520

MR REITANO: Or they just throw it out when they get it.

PN521

THE VICE PRESIDENT: All right, so your first point was, collateral agreement is still sought, you've identified the evidence and that is tab 62, and no withdrawal of the claim for a side agreement.

PN522

MR WOODS: Yes, your Honour, and in relation to the fact that the MOU1 is still sought, I point to the evidence in relation to the September bulletin which plainly refers back to MOU1 and that post-dates 4 August.

PN523

THE VICE PRESIDENT: Yes.

PN524

MR WOODS: Your Honour, can I make an ancillary submission about MOU2, taking into account your Honour's observation that it appears your Honour is anodyne, I make two submissions - - -

PN525

THE VICE PRESIDENT: What I guess you want is what is meant by the third last paragraph on page 1 of the letter, page 51.

PN526

MR WOODS: Yes, I understand exactly what you're saying, your Honour, the proposition that your Honour advances that this letter actually enclosed MOU2 is a proposition that is available on one reading of the letter, I would have to accept that.

PN527

THE VICE PRESIDENT: Well, whether or not it's enclosed it or not is another issue, but what is being pressed if anything as at 4 August under the hands of the key officials of the three unions is MOU2, whether you have got a copy of it or not.

PN528

MR WOODS: I am not quite sure about that, your Honour, because it really depends what was enclosed. The proposition to be advanced, your Honour, is that there was an attempt to hide the fact of MOU2. Well, that is what the evidence shows from 29 June through to 4 August. I don't understand why my learned friend is laughing about that.

PN529

MR REITANO: Because it is a stupid submission, that's why I'm laughing.

PN530

THE VICE PRESIDENT: We will let Mr - - -

PN531

MR REITANO: He asked and I answered his question, your Honour.

PN532

THE VICE PRESIDENT: Yes.

PN533

MR WOODS: Your Honour, that's what the evidence shows, we would say, and that's why I sought some instructions and had my instructions confirmed. It is quite plausible - my learned friend said before the break, why would someone do this? Well, it's quite plausible that there could be in these heightened circumstances - - -

PN534

THE VICE PRESIDENT: In the choice between a conspiracy and a stuff up, go with the stuff up.

PN535

MR REITANO: And I don't think it was me who asked for reasons as to why someone would do it, I think your Honour asked, with respect to my learned friend.

PN536

THE VICE PRESIDENT: Anyway, it doesn't matter.

PN537

MR WOODS: I think what my learned friend from sotto voce said, just give me one, so I'm trying to give him one, that - - -

PN538

MR REITANO: You told His Honour there were many - - -

PN539

THE VICE PRESIDENT: In any event, look Mr Woods, you were making a series of points on the issue of genuine bargaining.

PN540

MR WOODS: Yes, your Honour.

PN541

THE VICE PRESIDENT: The first one was a collateral agreement still being sought, you have identified the evidence for that.

PN542

MR WOODS: The second one relates to the collateral agreement being in MOU1 and I identified the evidence in relation to that. The subsidiary point is that even if MOU2 was being sought, the code itself makes a document which says, "Anything herein that is non-code compliant where such a document contains non-compliant material still non-code compliant." That is the code makes a document non-code compliant, even if the document purports to exclude on it's face non-code compliant terms by use of that phrase.

PN543

THE VICE PRESIDENT: Whereabouts is that?

PN544

MR WOODS: In the code, your Honour.

PN545

THE VICE PRESIDENT: Whereabouts in the code.

PN546

MR WOODS: I'll have to look it up. Secondly, your Honour, if that proposition be right, having regard to the nature of the FTTN, Telstra obviously couldn’t take a risk on that. If I come back to your Honour's question about where in the code one finds that, your Honour, just to save time?

PN547

THE VICE PRESIDENT: Yes, sure.

PN548

MR WOODS: The third proposition we advance, your Honour, on this point is the question of the second leg and I have addressed your Honour before lunch about that, the threats made to the FTTN, I don't need to add anything further to that, your Honour, other than to note that it is disingenuous to seek on one hand a relationship agreement and on the same- in the same breath be making or continuing threats to damage the other party.

PN549

Our final point, your Honour, is on this point of genuineness, is that the point I took a little bit of time with before lunch which is the question of the behaviour by the unions from the period 23 June through to 4 August in relation to legitimate criticisms about the ancillary or side agreement, and we say, your Honour, those findings are open to be made, they're uncontested and there has been not a word from the other side as to why those inferences shouldn't be drawn and certainly no contrition. Your Honour, I think that's all I need to say on that point, apart from emphasising one fact.

PN550

We are conscious that advocacy in this Tribunal is oral as well as written. We have put a substantial body of material before your Honour and having regard to the exultations of the Full Bench that one needs to find facts, we ask your Honour to have regard to all of the evidence before you in assessing the strength or otherwise of our submissions. I rather suspect my learned friend wants to in a fashion railroad this hearing under the guise of noting sub-section 457(1)(b) and I don't criticise him for that, he holds a brief for the other side and he has to do his best. But one of the things that has to be taken into account - - -

PN551

THE VICE PRESIDENT: Mr Woods, I am not going to be railroaded by
Mr Reitano.

PN552

MR WOODS: Thank you, your Honour. Just excuse me, your Honour, I think that's all I need to say except to answer your question about the code, on this point of genuine bargaining will go under the more minor matters, if that is convenient. Your Honour, can I then move to paragraphs 15 to 21 of our outline. Your Honour, we make a submission in relation to question 5 in the CEPU application and we say it doesn't adequately describe the nature of the industrial action in relation to which the ballot is sought. Can I just take you to question 5 and explain to your Honour there is some authority against us on that point. Your Honour, question 5 - - -

PN553

THE VICE PRESIDENT: This is question 5 in the CEPU application?

PN554

MR WOODS: Yes, your Honour.

PN555

THE VICE PRESIDENT: A number of indefinite stoppages at work.

PN556

MR WOODS: Yes, your Honour, there have been cases which say - including the CFA case - which say that a number of - can I deal with this submission in this way, your Honour, having regard to the time, the submission is fairly straightforward and will simply make the proposition that the employees should not be handing a blank cheque to the union officials - - -

PN557

THE VICE PRESIDENT: Provided the nature of the industrial action is made clear, the union can ask for a blank cheque and it is a matter for the employers as to whether they provide it, isn't it?

PN558

MR WOODS: That's the counter-argument, your Honour, we would have to accept that it has some strengths, but we simply observe that if that proposition is taken to it's logical extreme and question 5 gets close to that, then what in fact one is doing is subverting, we would say, the point of this part of the Act because the previous regime was that all the power lay within the union officials, who admittedly since 1973 were democratically elected and subject to democratic checks. But this regime was designed to impose an additional level of industrial democracy beyond that imposed by Minister Cameron when he introduced changes.

PN559

THE VICE PRESIDENT: Yes, the workers are going to get a chance to vote on this, that's what it means.

PN560

MR WOODS: Yes, I understand that.

PN561

THE VICE PRESIDENT: The issue, the Country Fire Authority issue is whether or not the nature of the industrial action has been adequately identified.

PN562

MR WOODS: Yes, your Honour, and we make a submission - - -

PN563

THE VICE PRESIDENT: The Country Fire Authority, there was inherent ambiguity as to what the employees were signing up to because of the way the particular ban was specified.

PN564

MR WOODS: Yes, your Honour, we accept that the proposition we advance is one which goes against very largely the current authority and one which can be answered in the way your Honour has answered it, but we simply make the point that at some point it may be regarded as so much of a blank cheque as to not in fact constitute compliance with the objects of that path, and we say question 5 gets close to that limit.

PN565

THE VICE PRESIDENT: Yes, very well.

PN566

MR WOODS: Your Honour, can I then deal with paragraphs 22 through to 27 of the submissions, this is really a submission as to practicality more than anything else. It strikes us as excessive to require the type of information set out in
clause 5.1.

PN567

THE VICE PRESIDENT: You wouldn't say there is some oppressive exercise involved in putting this information together, it is just beyond that which is reasonably necessary.

PN568

MR WOODS: We say in paragraph 25 of the submissions - - -

PN569

THE VICE PRESIDENT: I mean it's all got to be generated from a computer data base, some techo is going to sit down and write a small routine, we'll query the data base to extract such information as the data base has.

PN570

MR WOODS: Not in relation to paragraph - if you look at paragraph 25 of the submissions, your Honour, you can see that that information is not kept.

PN571

THE VICE PRESIDENT: But if there's a single piece of information that has to be provided, it's that over an expiry date because the validation has got to work out whether an employee is on an expired AWA or not.

PN572

MR WOODS: Yes, your Honour, we accept that that information would have to be provided for exactly the reason that you say but we are making the submission really in relation to paragraph 27,

PN573

Employees Telstra numbers and addresses should suffice to identify them and distinguish between employees who may have the same name.

PN574

It should be sufficient that there be a postal ballot and - - -

PN575

THE VICE PRESIDENT: Can I say that this information is something that has been developed in consultation with the Electoral Commission, and in fact it is the Electoral Commission that suggested this is the sort of information that is required, because when they have queries about a particular individual and their eligibility and they want to question the individual, they need to be able to contact them and contacting them by post is not practicable given the time frames. They need to be able to have access to other more instantaneous methods of contact, which is exactly what it's about. The date of birth is in there to help distinguish particularly people with common names, Smith and Jones type situation.

PN576

MR WOODS: I hadn't appreciated that that had been - I rather thought this had been the subject of - - -

PN577

THE VICE PRESIDENT: This hasn't been cooked up by the CEPU.

PN578

MR WOODS: I see.

PN579

THE VICE PRESIDENT: The Telstra number I think has been added, but everything else is pretty stock standard.

PN580

MR WOODS: That might just make the issue in terms of the time of the ballot, we might just need some time to deal with the collection. I appreciate the point is it's about to expire.

PN581

THE VICE PRESIDENT: The collection - well, Mr Woods, tell me if this is wrong but the assumption I am going to draw is that Telstra is a pretty sophisticated IT company and it will have a sophisticated IT system for human resources and all of the information that is there with the exception you tell me of the outer expiry date will be on an electronic data base and extracting it and putting it into a spreadsheet ought to be a really straightforward exercise, it ought to be. You tell me the AWA expiry date is not something that's recorded electronically and that those have got to be assembled in some manual fashion, well so then there's going to need to be some additional time in the program to allow that information to be generated.

PN582

MR WOODS: Can I just get some instructions on that point your Honour?

PN583

THE VICE PRESIDENT: Yes.

PN584

MR WOODS: In terms of the first question I think - I think if we have three working days that's sufficient, your Honour, to get all the information together.

PN585

THE VICE PRESIDENT: I want some evidence about that. Can you put somebody in the witness box who has got that information?

PN586

MR WOODS: Yes, your Honour, can I just get some instructions first your Honour. Can I leave the Bar table?

PN587

THE VICE PRESIDENT: Yes, please do Mr Woods. Mr Reitano, while
Mr Woods is doing that, I propose to delete "other addresses", is there any particular reason as to why you need that?

PN588

MR REITANO: I think we did it because we took it from the precedent that your Honour used in the Australia Post matter. I don't think there was any other reason.

PN589

THE VICE PRESIDENT: Yes, I think that was a special reason for that one.

PN590

MR REITANO: Yes, it might have been Mr Tehan, I can't remember, but I think we took it from that and that's the only reason it's there.

PN591

MR WOODS: Mr Fewster can give the evidence your Honour.

PN592

THE VICE PRESIDENT: Thank you.

PN593

MR REITANO: May I inquire what is happening, I thought the evidence had closed.

PN594

THE VICE PRESIDENT: No, I am calling some evidence, I want to hear some evidence about why it's going to take three days to assemble this list.

PN595

MR REITANO: I'm sorry.

PN596

THE VICE PRESIDENT: Which is what Mr Woods asserted. It just strikes me as implausible.

PN597

MR REITANO: It's just difficult to deal with without the AEC here.

PN598

THE VICE PRESIDENT: No, no. Pardon one moment, Mr Fewster.
Mr Reitano, Mr Woods took some instructions and said that they are going to require three working days to prepare the list that is called for in order 5.1 in the draft orders.

PN599

MR REITANO: Yes.

PN600

THE VICE PRESIDENT: It strikes me that that is a very long period to produce a list of employees that ought to be able to be produced electronically, I would have thought, in a very straightforward fashion. So I asked Mr Woods to provide a witness to give some evidence to support that.

PN601

MR REITANO: I understand what your Honour is doing, it is difficult for - I will say nothing.

<DARREN BRIAN FEWSTER, SWORN [2.57PM]

PN602

THE VICE PRESIDENT: Thank you Mr Fewster. The Director of Workplace Relations and People Services?---Yes, your Honour.

PN603

In Telstra. You have got a familiarity with the records that Human Resources keep in relation to employees?---Generally and pay roll your Honour.

PN604

They are computerised records?---They are largely computerised records, some of the records though in relation to some of the AWA expiry dates I doubt would be automated and we would need to go back and check some of those records with managers and actually cross-reference them against the AWAs themselves.

PN605

But there is a computerised record of employees that would contain their surname, given name, their home address, contact numbers and email address?---Can I address those one by one if that's okay?

PN606

Yes?---Names, yes, in terms of work addresses, yes.

PN607

Or home address?---Home address, not always, some employees - - -

PN608

MR BLACKBURNE: Sorry, your Honour, we can't hear that.

PN609

THE VICE PRESIDENT: Sorry, Melbourne. Thank you, Mr Fewster, so you were just saying the names fine, work address yes?---Yes.

PN610

Home address?---Home address, your Honour, some employees may choose to give like a PO Box address or it may not be their home address on our systems, we have seen that before.

PN611

But a postal address other than their work address?---Some - a postal address, yes.

PN612

And contact numbers to the extent that you have been provided with them?---Yes, most employees would have some kind of work number detailed but private numbers they're not required to provide those numbers and a lot of employees would not have a number recorded on our systems.

**** DARREN BRIAN FEWSTER XN
PN613

Email addresses you definitely have so far as they're work email addresses?---And to the extent that people have email addresses at work.

PN614

And date of birth is something which is recorded with each employee as well?---I couldn't say categorically it's recorded on our systems for every employee. I know our people on-line system has a date of birth requirement.

PN615

The Telstra number if the key identifier for every employee so it would be there?
---I hope so.

PN616

So apart from the AWA putting together an electronic list it would be a pretty straightforward exercise, apart from the outer expiry date?---And the postal addresses and phone numbers.

PN617

But you only need to provide those to the extent that they are in the system?
---Then that should be fine, yes.

PN618

The AWA expiry date, what you are saying is that the expiry date is recorded for many but not all AWAs?---Yes.

PN619

So there's a proportion of AWAs that will have to be, as it were, manually - the expiry dates will have to be manually identified?---Manually identified and probably cross-referenced with the managers of those employees.

PN620

Do you have any idea of the number of AWAs that are in that category?---There would be around about 3,000 expired AWAs, the number I couldn't tell you that number obviously how many - we'd have the details recorded, we'd have to check that.

PN621

So it might be 20 you need to do manually, it might be 100, it might be 500?
---Correct.

PN622

You don't know?---No.

PN623

Anything arising from that Mr Woods?

PN624

MR WOODS: No, your Honour.

PN625

THE VICE PRESIDENT: Mr Reitano.

PN626

MR REITANO: I don't see how I can cross-examine him.

**** DARREN BRIAN FEWSTER XN
PN627

THE VICE PRESIDENT: I will ask a few more questions of Mr Fewster, if either of you object to that course you can rise to object. Mr Fewster, had there been - as I understand the position, because of the way in which unions behave from your perspective, Telstra has decided there is going to be no more further discussions with the union?---Yes.

PN628

And that has been the position Telstra has adopted since mid-August?---Probably mid-July is more correct.

PN629

Well, since at least mid-August?---Yes.

PN630

So that even if the unions were wanting to sit down and negotiate, put aside any pregnant content, if they wanted to negotiate with you at the moment Telstra is not prepared to talk to them because Telstra's perspective is to the way the union is behaving?---At the moment there is a significant trust issue, arising from the last four to six months. I think we still meet with the unions on a regular basis on issues and we try and maintain - - -

PN631

But there isn't going to be an enterprise agreement negotiations?---Well, we have an enterprise agreement that we publish to employees on the Intranet at the moment, we've made it clear to members of the SVU that they are welcome to be parties to that agreement.

PN632

This is the employer collective agreement that's been proposed?---Correct, yes.

PN633

But in terms of negotiating one with the unions, the position is as you have described it?---It's a significant trust issue.

PN634

Have the employees on the expired certified agreement haven't had a pay rise I take it that's been voluntarily handed to them by Telstra?---No.

PN635

They're still on the same pay that they were on at the time the agreement expired?
---Yes.

PN636

Do you have any difficulty with the proposition that irrespective of things the unions may have done to give rise to the trust issue, that the unions at the end of the day are interested in seeing the wages and conditions of their members improved?---I don't have any difficulty with that proposition.

PN637

Anything arising from that Mr Woods?

<EXAMINATION-IN-CHIEF BY MR WOODS [3.05PM]

PN638

MR WOODS: Is there anything the unions could do to alleviate what you have referred to as a significant trust issue Mr Fewster?---I think an instruction in relation to some of the material during June/July/August, in particular if I could specify the national - sorry, I'm conscious of the microphone, your Honour.

PN639

THE VICE PRESIDENT: That's all right?---The National Broadband Network was, in simple terms, held as a gun against our heads during the negotiations, that was a very significant matter for the company, it's the biggest corporate infrastructure initially that we have seen - I think counsel referred to the Snowy Mountain Scheme. I think there was really a significant issue associated with that during the negotiations and all of our discussions kept coming back to this three legged stool. From Telstra's perspective it was entirely inappropriate and putting jobs at risk and that is a fundamental concern to us. We had today - this is ongoing - the NBN issue was continuing to be held, in my view, against Telstra, including today we had the rest today I believe represented as the ACTU continuing to put out propositions against Telstra's approach to NBN and other issues like this. I think the site agreements to the extent that the - - -

PN640

Have you seen MOU2?---Have I seen MOU2?

PN641

Well, you have, it's annexed to your statement but you have seen it and you've read it?---Yes.

PN642

You have seen the letter from the Department that says it's okay, it's kosher from the code perspective?---I have seen the letter from the Department and spoke to Mr Pullen at the Department who made it clear to me that to the extent that they were saying that it was compliant it wasn't a formal view, it was approached by one party and the practical impact of the particular things in that agreement could still make it non-code compliant and we continued to see there were a number of things in that MOU2 that were non-code compliant. Now, the code for what you want to say about the code, it is quite strict and even the fact that you might say you can read things out of the code, that in itself makes it non-compliant if you include it in a site agreement and I regularly have to sign off on agreements or proposals for tenders to government that involve us expressly saying we are entirely compliant or working to be compliant.

**** DARREN BRIAN FEWSTER XN MR WOODS
PN643

I can tell you, Mr Fewster, you are not going to have to sign off on the National Broadband Network, you won't after some advice obtained from Mr Meyers Q.C. or something like that?---I think you might be right on that your Honour.

PN644

MR WOODS: There are two of them, is there any other things that you would like to see the unions do that could resolve this trust issue?---The agreements that were put to the Department have been put forward to our employees throughout July and August as being compliant, essentially our employees are of the belief they have always put forward in the negotiations was code-compliant agreements. The first MOU is dressed up as being code compliant. Our employees are, I think, entitled to know that the 17 July advice from the Department advised that there were 51 non-code compliant things and the stance that we took in negotiations and since the negotiations ended was vindicated, not that the Department found that the MOU was lawful or otherwise. I think our employees as part of this process are entitled to know that.

PN645

THE VICE PRESIDENT: There would be nothing to stop you from sending the departmental advice to your employees would there?---We publish the advice, it's not the same though. When employees are getting conflicting information and we are conscious that they are confused by some of these issues and it's not easy to explain to them what is code complaint and what's not, what the Department said and what the Department didn't say, they are genuinely confused about some of these issues.

PN646

THE VICE PRESIDENT: Is that all Mr Woods?

PN647

MR WOODS: I didn't think Mr Fewster was finished your Honour.

PN648

THE VICE PRESIDENT: He had.

PN649

MR WOODS: Nothing further.

PN650

THE VICE PRESIDENT: Mr Reitano, anything?

PN651

MR REITANO: No, your Honour.

PN652

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

<THE WITNESS WITHDREW [3.10PM]

PN653

THE VICE PRESIDENT: Yes, Mr Woods, we were dealing with the terms of the order in 5.1.

PN654

MR WOODS: Well, yes, you have heard the evidence on that your Honour and you can make your own mind up about that. Can I just deal with two remaining points, one about the code and paragraph - page 27 of the code.

PN655

THE VICE PRESIDENT: Where is the code to be found?

PN656

MR WOODS: To be found at - I'm not sure it is attached to it, I can hand you up a copy.

PN657

MR REITANO: I thought the evidence was closed.

PN658

THE VICE PRESIDENT: They are, Mr Reitano, submissions are being made on an oversight on Mr Woods' part.

PN659

MR REITANO: I'm sorry, I didn't hear that?

PN660

THE VICE PRESIDENT: It's an oversight on Mr Woods' part, he's been making submissions about it all afternoon. Do you know where the paragraph is
Mr Woods?

PN661

MR WOODS: I need to take you to the guidelines.

PN662

THE VICE PRESIDENT: Maybe the government hasn't - this is still in place.

PN663

MR WOODS: As I am instructed, yes your Honour. I will have to take you to the guidelines, your Honour. I hand up a copy of these, your Honour.

PN664

THE VICE PRESIDENT: Thank you.

PN665

MR WOODS: Page 27 talks about clauses at the bottom of page 27, the last dot point. The clauses ..... is consistent with these guidelines, such clauses ..... and the guidelines will have no effect .....

PN666

MR BLACKBURNE: Your Honour, is there any chance we can have people speak up again.

PN667

THE VICE PRESIDENT: Yes. I see that, yes. This dot point has the effect that you asserted earlier?

PN668

MR WOODS: Yes, your Honour, and I direct your attention to page 2 of the code which sets out general principles.

EXHIBIT #7 - TWO DOCUMENTS

PN669

MR WOODS: Your Honour, the last point I make is in relation to exhibit 51 and 52 and exhibit 5, and I can inform your Honour that you are entitled to draw the inference that you drew, that the enclosure was indeed MOU2 and I withdraw the submission that we didn't receive MOU2 your Honour. But for what it's worth it was received after we received it from the media but it was sent to Ms Andrea Grant, Group Managing Director Human Resources by way of the letter 51, and I apologise for not including that information in the statement at the first dot point.

PN670

THE VICE PRESIDENT: I'm sure it wasn't your fault Mr Woods. Does that mean we're done now?

PN671

MR WOODS: I think so, your Honour, just to - your Honour, perhaps I will take some instructions as to whether I've missed something.

PN672

THE VICE PRESIDENT: Yes.

PN673

MR WOODS: I don't think there's anything else your Honour.

PN674

THE VICE PRESIDENT: Thank you Mr Woods. I don't need to hear from you Mr Reitano and Ms Donnolly, I am satisfied that the requirements of the Act are made out and these orders should issue. The only issue is I shall give some reason for that in the briefest of oral outlines and then write it up as soon as I can get around to it which will be in the next day or two. Just in relation to practicalities with the time table.

PN675

MR REITANO: Could we indicate three matters to your Honour. We have been in communication with the AEC and I think all of these things - sorry, two of these things are things that we proposed to them that are acceptable to them that change the program, I think, that was issued. The first is that the - - -

PN676

THE VICE PRESIDENT: There needs to be at least two working days for the production of the lists, today is Thursday, we need two working days for the production of the list. Sorry, we need two calendar days for the production of the list.

PN677

MR REITANO: Yes, we are proposing and I think that they are agreeable to this, that we produce our list of members by four pm on next Monday and they are agreeable to that, subject of course to what the Commission says.

PN678

THE VICE PRESIDENT: Then the employer list at the same time and that would mean there is two working days plus the weekend.

PN679

MR REITANO: Correct, which deals with Mr Fewster's strong doubts about being able to do it within three days I think.

PN680

THE VICE PRESIDENT: No, three days was enough, it was the strong doubts being able to do it within the one day.

PN681

MR REITANO: Sorry, well that was the first point that we raised with the AEC. The second matter is that in respect of the date which is currently proposed for whatever it was on 4 December, the close of the ballot, either they have suggested and we have agreed or vice versa, to move that to 8 December at 10 am.

PN682

THE VICE PRESIDENT: But the rest of the time table is going to have to be adjusted because they're going to need still three days to compile the roll, so they are not going to start compiling the roll under Tuesday the 5th which means they won't - I'm sorry, Tuesday the 11th, so they won't finish until Thursday the 13th.

PN683

MR REITANO: That's correct, your Honour, and I think they're aware of that.

PN684

THE VICE PRESIDENT: They are happy for the 13th to remain as the close of roll day.

PN685

MR REITANO: They're my instructions, your Honour, yes.

PN686

THE VICE PRESIDENT: If there is any problem with the AEC they will be back in touch with my Chambers and the order will have to be varied, which will mean just pushing everything back by a day.

PN687

MR REITANO: That's right, and I think the ballot will then open on Friday the 21st.

PN688

THE VICE PRESIDENT: Why Friday the 21st?

PN689

MR REITANO: I don't know, that's the note that's been put in front of me.

PN690

THE VICE PRESIDENT: That can't be right, that's pushing it back by a full week.

PN691

MR REITANO: The AEC have told us because of the large number of voters. Perhaps your Honour should leave it as it is and we propose it to the AEC and if they have any problems they can then raise it with your Honour.

PN692

THE VICE PRESIDENT: You want until the close of business Monday.

PN693

MR REITANO: Yes, and the AEC are agreeable to that.

PN694

THE VICE PRESIDENT: That is something Telstra is going to need in any event as well.

PN695

MR REITANO: That's right.

PN696

THE VICE PRESIDENT: And the AEC are agreeable with that. I will contact the AEC and work out what the appropriate time table for them is, consistent with that.

PN697

MR REITANO: If it please your Honour.

PN698

THE VICE PRESIDENT: Knowing that you are prepared to go back as far as 8 December for the ballot result.

PN699

MR REITANO: Yes, your Honour, that's correct.

PN700

THE VICE PRESIDENT: Fine. Ms Donnolly, the same applies to you?

PN701

MR REITANO: Sorry, just before - because I think Ms Donnolly will agree with this as well, there is one other matter, your Honour, and it's got nothing to do with the AEC, but in the draft order there is a reference to AWAs, that needs to be followed by the words, "or ITEAAs".

PN702

THE VICE PRESIDENT: Yes.

PN703

MR REITANO: Which haven't been included in the draft, so wherever the words "AWAs" I think we need to put that alternative.

PN704

THE VICE PRESIDENT: Have you sent through an electronic version of the draft order?

PN705

MR REITANO: Not yet, but we will your Honour.

PN706

THE VICE PRESIDENT: If you could ring your secretary and have them email them. Pam will give you the email address when she has finished, that would be good. In relation to a very - sorry Ms Donnolly.

PN707

MS DONNOLLY: In respect of the time table we have been provided with, we don't need any extra time. I accept what Telstra have now brought up about the time frame but the CPSU has not problem with being able to provide it's list by tomorrow.

PN708

THE VICE PRESIDENT: You are going to end up with the same time table as the CEPU.

PN709

MS DONNOLLY: My understanding of what the CEPU, I think they have also tried to actually add in some timing for the postal ballot to be opened because they have some rural areas. We don't have that same problem, so we are happy with - - -

PN710

THE VICE PRESIDENT: Sorry, if Telstra is going to have to the close of business Monday to do it's list, then that is going to cause the whole time table to be pushed back.

PN711

MS DONNOLLY: Yes, I accept that, your Honour, I think the CEPU might also be suggesting they wanted extra time for the ballots to be out there, but we would just take the usual AEC minimum.

PN712

THE VICE PRESIDENT: Very well, fine. Sorry, so Mr Reitano, just to make this clear. You wanted to increase the number of days that the ballot remained open for?

PN713

MR REITANO: From 4 December to 8 December I think.

PN714

THE VICE PRESIDENT: Yes.

PN715

MR REITANO: I am consistently reminded 10 am on the 8th.

PN716

THE VICE PRESIDENT: That is also subject to being put back to accommodate the additional time for the filing of lists.

PN717

MR REITANO: That's correct.

PN718

THE VICE PRESIDENT: The other addresses will come out. Instead of primary address it will be postal address in each case. There is no possibility of anyone being on an expired ITEAA is there? In practical sense that can't occur.

PN719

MR REITANO: I can't imagine how it could happen, your Honour.

PN720

THE VICE PRESIDENT: You can conclude IT are in AWAs and/or ITEAAs just to be safe.

PN721

MR REITANO: Yes, there is nothing lost if there is no one.

PN722

THE VICE PRESIDENT: That's fine. In terms of the brief outline of - and I say this is brief. I think for the reasons I have articulated and subject to the variations I have just indicated, I am satisfied that the list of the information that is required included in the employer list is reasonable and it is information of the sort the AEC requires in order to be able to contact people in the event that they are trying to resolve ambiguities or difficulties in the compilation of the list and I am certainly not persuaded it is oppressive, given that the information that is going to be provided is information that is available electronically in any event. The AWA or ITEAA expiry date information is information that is simply required by the Act and it can't be said to be oppressive to require that information to be provided.

PN723

In relation to question 5 I am satisfied that question 5 as proposed in the CEPU application adequately specifies the nature of the industrial action for which approval is to be sought in the ballot, and I am not satisfied that it falls foul of the approach to specifying the nature of the action laid down in the Country Fire Authority, I am not satisfied that the blank cheque - as Mr Woods described it - would in any event be an appropriate basis for refusing to make an order that included a question like question 5. The very essence of what is sought here is industrial democracy and the union is at perfect liberty, provided it has identified the nature of the action, to seek approval from members and it is a matter for the members to determine whether or not they are going to get that approval.

PN724

In relation to the genuinely bargaining point, it is unnecessary to make findings as to whether or not the unions have behaved in ways that are dishonest or deceptive because even if what is alleged against them is assumed to be so, I am still satisfied the unions have during the bargaining period that commenced on
27 August 2008 have been genuinely trying to reach agreement and they are presently genuinely tyring to reach agreement. It is clear that there has been an evolution of what the unions have sought in relation to what has been described as a site agreement and that there has been a progressive reduction or elimination of claims in relation to that site agreement to the point where MOU2 has received the tick of approval from the Department of Employment and Workplace Relations as being compliant with the National Code of Practice for the Construction industry and necessarily therefore not containing prohibited content.

PN725

I note in particular that MOU2 at item 6 makes it clear that,

PN726

The MOU is intended to be compliant with all current laws, industrial codes and guidelines and the parties agree to submit this MOU and any future agreements to the Department of Employment and Workplace Relations directly to the Minister for Employment and Workplace Relations to ensure compliance.

PN727

Notwithstanding the point that Mr Woods makes about the last dot point in the left hand column on page 27 of the guidelines in respect of the National Code of practice. Item 6 is, it seems to me, at that point in the evolution very strong evidence that the unions are not seeking at the end of the day to obtain in any site agreement anything which is inconsistent with current laws, industrial codes and guidelines, and that that position is one which is supported by repeated assertions in more latter times, including by Mr Husic that the union is not seeking an agreement that contains prohibited content, either in an enterprise agreement itself or in any site agreement.

PN728

It seems clear to me on the evidence that since the bargaining period formally commenced there has been no negotiations for an enterprise agreement, that's because of the position that Telstra has adopted, and whilst from one perspective that is an understandable position that Telstra has adopted, the issue is whether or not the union has been genuinely bargaining, genuinely trying to make an agreement, and it seems to me that in circumstances where a certified agreement has expired, members who are on the certified agreement have not had a wage rise for some time and where, as I think Mr Fewster acknowledged, the unions would be seeking to improve wages and conditions for their members and the only way they can achieve that in relation to the certified agreement is by obtaining a new one. That putting all the evidence together, the appropriate finding is that the unions have during the bargaining period that commenced on 27 August 2008 and presently genuinely have been and are genuinely trying to make an agreement. That in summary is the outline of my reasons. Unless there is anything further the Commission will adjourn.

PN729

MR WOODS: Your Honour, can I just deal with something - just in terms of the time table. I am instructed that for some employees Express Post takes a week. I just didn't catch that part of your Honour's modification of the time table to see whether or not it could accommodate people in that position.

PN730

THE VICE PRESIDENT: Sorry, Mr Woods, your point is?

PN731

MR WOODS: Your Honour - - -

PN732

THE VICE PRESIDENT: Some employees it will take a week to get a ballot.

PN733

MR WOODS: I am instructed that for some employees it will take a week, that is five working days by Express Post to get the - I think that's consistent with what my learned friend says, his information from the AEC.

PN734

THE VICE PRESIDENT: Well, the AEC are pretty expert about these things and that's what they do.

PN735

MR WOODS: I'm only trying to be of assistance, your Honour, I'm not trying to quibble with your Honour's order, I'm just trying to just deal with what I am told may be a practical issue.

PN736

THE VICE PRESIDENT: Ironically this really counts - it's the union that wants to ensure that all the employees have got an opportunity, because they don’t' only have to get a majority of votes in favour, they've got to get a majority - they've got to get to 50 per cent response rate and if some employees are not going to be able to respond because of delays in the postage it's only going to count against the prospects of approval of the ballot.

PN737

MR WOODS: We're just trying to - - -

PN738

MR REITANO: Two matters that might deal with my friend's concern. One is that the AEC are relatively expert as your Honour has pointed out and they will be soon prompt to tell us if there is a problem. The second matter that I don't know my friend is aware of, but from the post ballot your Honour might recall that we got regular information I think daily or every couple of days as to how many ballots or how many votes had been returned, clearances I think they were referred to. So we knew relatively close to the time that the ballot was due to close whether there was a reasonable or sensible proportion of votes coming back. If there isn't your Honour might recall we came to the Commission and said, look, we need you to vary your order and extend the time and your Honour was over the opposition of post for reasons that weren't clear at the time, your Honour was obviously not fussed by that. That might be a way around the difficulty, that if we become aware of the problem - - -

PN739

THE VICE PRESIDENT: Well, in any event there is 18 days here, which is more than two weeks in the time table, so even if that figure is correct there's enough time.

PN740

MR REITANO: Very well.

PN741

THE VICE PRESIDENT: Nothing further? Then the Commission is adjourned.

<ADJOURNED ACCORDINGLY [3.32PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 FACSIMILE AND LETTER RE SERVICE OF THE APPLICATION DATED 03/11/2008 PN57
EXHIBIT #2 STATEMENT OF DARREN BRIAN FEWSTER PN138
EXHIBIT #3 STATEMENT OF FRANCIS WILLIAM GURTS PN145
EXHIBIT #5 SECOND PAGE OF LETTER BEHIND TAB 1 DATED 04/08/2008 PN502
DARREN BRIAN FEWSTER, SWORN PN601
EXAMINATION-IN-CHIEF BY MR WOODS PN637
THE WITNESS WITHDREW PN652
EXHIBIT #7 - TWO DOCUMENTS PN668