BP2008/338, Transcript of Proceedings [2008] AIRCTrans 758 (26 November 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19342-1

COMMISSIONER WHELAN

BP2008/338

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

National Tertiary Education Industry Union
and
Victoria University
(BP2008/338)





Melbourne

3.40PM, THURSDAY, 13 NOVEMBER 2008

PN1

MS S ROBERTS: I appear on behalf of the National Tertiary Education Union and I appear with MR J CULLINAN.

PN2

MR I ARGALL: I appear on behalf of Victoria University. With me is MR C HARTIGAN. Mr Hartigan is a solicitor and on his behalf I seek leave for him to appear.

PN3

THE COMMISSIONER: Thank you. Is there any objection to Mr Hartigan's appearance, Ms Roberts?

PN4

MS ROBERTS: No, there isn't.

PN5

THE COMMISSIONER: Leave is granted. Thank you.

PN6

MR ARGALL: Thank you, Commissioner.

PN7

THE COMMISSIONER: Ms Roberts.

PN8

MS ROBERTS: Thank you, Commissioner. This is an application for a protected action ballot order under section 451 of the Act. As you would have before you I think a number of documents in our application, being first of all the application which is lodged on 11 November, a copy of the notice initiating the bargaining period which was lodged on 29 August 2008, a notice of authorisation for an application for a protected action ballot signed by the NTEU general secretary, Grahame McCulloch, a declaration by the applicant that the industrial action to which the application relates does not relate to prohibited content which is again signed by the general secretary, Grahame McCulloch, a draft order relating to the notice of the hearing to be given to employees, submissions in support of that and two further draft orders in relation to the matter itself and the compilation of the role of voters.

PN9

THE COMMISSIONER: Are you referring to the attachments to the application still?

PN10

MS ROBERTS: Yes.

PN11

THE COMMISSIONER: I have an attachment E which is the submission in support of the making of the order regarding notice of the hearing and then I have attachment F which is the draft order and attachment G which is also a draft order.

PN12

MS ROBERTS: Yes. Those further draft orders just relate to the ballot and the compilation of the role of voters.

PN13

THE COMMISSIONER: Yes.

PN14

MS ROBERTS: So with that documentation in front of you, Commissioner, we say that our application complies with the requirements under subdivision (b) of the Act and as you would be aware, this application is effectively a re-lodgement of an earlier application already considered by the Commission in NTEU v Victoria University (2008) AIRC 838 and as the matter is effectively the same matter, we seek to formally rely on the evidence and the findings and the decision made by the Commission in that matter and I don't know if it's helpful, but I have a copy of that decision and the transcript.

PN15

THE COMMISSIONER: I think I've got it.

PN16

MS ROBERTS: Thank you. In that case, evidence was led by the university from Mr Lionel Newman and Mr Peter Raymond and by the NTEU from Mr Russell Baader and that evidence went to the circumstances around which the application for the ballot order was made. That goes up to 24 October 2008 and we seek to rely on all of that evidence that the Commission has already heard and that is only two and a half weeks ago, so, really, I intend to address matters that have transpired since then.

PN17

THE COMMISSIONER: All right.

PN18

MS ROBERTS: As a general matter of process, we would like to put to you, Commissioner, that rather than we call further evidence up front and potentially take up a significant amount of the Commission's time, we would seek leave to bring evidence in reply if the university wishes to re-run any of those earlier matters and perhaps re-test some of the questions at issue. We don't know what matters they wish to put, but - - -

PN19

THE COMMISSIONER: I will certainly hear what the university's position is before I hear any evidence, but whose evidence I hear first I will consider it at that stage.

PN20

MS ROBERTS: Thank you. We note that in hearing our application, the Commission is bound by section 461 which states that:

PN21

The Commission must grant an application for a ballot order if and must not grant the application unless it's satisfied that during the bargaining period the applicant genuinely tried to reach agreement with the employer.

PN22

The applicant is genuinely trying to reach agreement with the employer:

PN23

And the applicant is not engaged in pattern bargaining.

PN24

There's a couple of other subsections there that state that:

PN25

The Commission may refuse the application if it's satisfied that granting the application would be inconsistent with the objects of the division.

PN26

Or that:

PN27

The applicant has at any time contravened a provision of the division.

PN28

In terms of those last two grounds, we say that to grant the application would not be inconsistent with the provisions of the division and the NTEU has not at any time contravened any section of the particular division of the Act or any order of the Commission in relation to that division, so going to those mandatory matters in section 461(1) we note that the Commission has in its previous consideration of this matter dismissed the employer's contentions that the union was engaged in pattern bargaining which goes to subsection 1(c).

PN29

The Commission also dismissed the employer's contention that the union was proposing to take industrial action not for the purpose of supporting or advancing claims in respect of the proposed collective agreement and subject to concerns around prohibited content, the Commission dismissed the employer's contentions that there was not an intention to genuinely try to reach agreement at Victoria University.

PN30

In relation to the prohibited content question, the Commission obviously however determined that it wasn't satisfied that the union had made clear that industrial action would not be in support of matters which might contain prohibited content and those are the grounds for dismissal of the application, so as we seek to rely on the evidence that has already been heard, we really intend to confine our remarks to the prohibited content question which we say is the only obstacle now in the way of the Commission granting an order for this protected action ballot.

PN31

In relation to all the other matters which were contested in the previous case, we say that not very much has changed since 24 October, save that there has been correspondence between the parties and there's been a number of bargaining meetings which I will turn to later, so if I could just perhaps hand up a chronology which the Commission has seen in the previous case, but it's been added to take account of the events of 24 October.

PN32

THE COMMISSIONER: For the purposes of the proceedings, this document will be NTEU1.

EXHIBIT #NTEU1 CHRONOLOGY DOCUMENT

PN33

MS ROBERTS: So the Commission will be familiar with the bulk of these documents. Up until tab 17, they are the same as the Commission has already seen. However, from tab 18 onwards they go to new matters which have transpired since then and I will just briefly go through those. At tab 18 we have a letter from Richard Gough, the president of the Victoria University branch to the vice chancellor, Professor Elizabeth Harman at Victoria University, stating that the union is seeking a new union collective agreement under section 328 of the Act instead of a variation as had been previously discussed, so making that clear and also stating that it wishes to make it unequivocally clear that it is not seeking to include any matters which are prohibited content under section 356 of the Act in the new union collective agreement.

PN34

And importantly it's stated there also that to the extent that any matter set out in the union's log of claims or otherwise put forward in bargaining may be prohibited content, the union does not seek to include those matters in the new union collective agreement so that was sent on 31 October 2008. Under tab 19 there was a response from the university sent by John Hickman to Richard Gough, effectively seeking for further clarification in relation to what the union means by its statement in relation to prohibited content and suggesting a further meeting on 7 November.

PN35

And so in response to that further letter then under tab 20 we have a letter from Richard Gough again to the vice chancellor stating that or re-stating what was put forward in the letter of 31 October saying that the union does not seek to include prohibited content in the new agreement, but also setting out that in the union's opinion the matters which might be prohibited content in our log of claims or otherwise put forward in bargaining were the union's involvement in dispute settling as of right, payroll deductions of union dues, provision for leave to attend union training, provision for leave to attend union meetings and provisions encouraging or indicating support for union membership.

PN36

That is the union stating its opinion as to what those matters might be. Under tab 21 we then have document which was tabled at a further bargaining meeting held between the university and the union on 7 November and this was put to the university as a way of effectively disposing of the matters which are of major contention between the parties, looking for a way forward, really, so that was put to the university and the university wished to have some time to consider that proposal.

PN37

So there was a further meeting then and documents tabled at that further meeting are under tab 22 which holds the documents tabled by the university at the further meeting of 11 November which sets out basically the university's response to that proposal for what we term a heads of agreement and another document which is in there as well which is a more elaborate proposal from the university in terms of its response to the union's claims.

PN38

It says at the top of that second document under tab 22 that it was presented on Friday, 7 November 2008, but in fact that was actually tabled at the meeting on the 11th so that set out the state of play, really, from then on. On the basis of those letters sent by the union to the university, both on 31 October and 3 November, we say that the union has now made it unequivocally clear that first we are seeking a new WorkChoices agreement under section 328 of the Act and secondly and most importantly the union is not seeking that any matters that may be prohibited content be included in the agreement.

PN39

As can be also seen from the chronology, those two further bargaining meetings have also been had at which it was made additionally clear that no prohibited content would be sought in the new agreement. Lest it be said that we have not been sufficiently clear in relation to this matter, I want to say that the union has identified the issues that is considers might be prohibited content, but that we would turn the Commission's attention to the decision in CEPU v Tyco Australia where the Full Bench found in relation to some claims by the ETU in that case - perhaps I will just hand it up. I think at paragraph 20 of that case the Commission said that:

PN40

Leaving aside cases in which it's clear on any reasonable view that claims being advanced involved prohibited content, it's conceivable that a party may be genuinely trying to reach an agreement under the Act even though as a matter of ultimate conclusion the claims it is advancing do contain prohibited content.

PN41

And as the Commission has quoted in your own decision:

PN42

In cases where doubt exists, it's open to a union to make it clear that it is not pursuing claims containing prohibited content and given that industrial action to advance such claims is not protected action, it might be prudent to do so.

PN43

And we say that we have done that work. Notwithstanding that, however, unfortunately an interim settlement of all the matters in dispute has not been able to be reached and that's why we are here today, so we say that the union has made it clear for an important period over the bargaining period, being this last period, that it is not seeking that any prohibited content be included in the agreement and as we rely on the findings of the Commission in the previous case in relation to all the other mandatory aspects of section 461, we say that there is now no obstacle to the Commission granting the application and, in fact, as those provisions are mandatory, our submission is that the Commission is now compelled to grant the application. If it please the Commission.

PN44

THE COMMISSIONER: Thanks, Ms Roberts. Mr Argall.

PN45

MR ARGALL: Thanks, Commissioner. Commissioner, Victoria University opposes the application. We oppose it on - it was effectively a single ground. Just in terms of procedure, there were some comments made earlier by Ms Roberts about relying upon the materials from the previous decision, your previous decision of 29 October. We have no objection to that course, but we do say that it's incumbent upon the Commission to treat this as a new application, rather than a continuation of a previous application.

PN46

THE COMMISSIONER: Yes.

PN47

MR ARGALL: The previous application in our view has lapsed with that decision.

PN48

THE COMMISSIONER: Well, it's been dismissed.

PN49

MR ARGALL: We say that the Commission is obliged to be satisfied as section 461 says that the conditions under section 461(1) of the Act are met. What we say basically is that very little has happened and I think even Ms Roberts suggested this, not very much has changed since 24 October, there have been two meetings. We seek to rely upon comments made by Vice President Watson in National Union of Workers v Blue Circle Transport Pty Ltd, Print 973654. I have copies of that decision.

PN50

THE COMMISSIONER: Yes, if you could provide those, Mr Argall.

PN51

MR ARGALL: Commissioner, this in fact, this is one of the decisions that you refer to in your decision of 29 October, the previous application for a protected action ballot and, indeed, at paragraph 110 of that decision you refer to it in this context where you say:

PN52

It may become clear in the course of bargaining that a union is no longer pursuing items of prohibited content.

PN53

There is a reference to item number 31 which is a reference to this particular case. I would like to take you to the decision in this case of Vice President Watson's decision. At paragraph 23, again this has been alluded to by Ms Roberts I think, some of the language has been repeated by her:

PN54

I do not believe that the intention -

PN55

this is halfway down the paragraph:

PN56

I do not believe that the intention is to forever disbar a union from access to these provisions if it transgresses at some point of time in the past and therefore falls into line with the statutory requirements ...(reads)... not include prohibited content. That will be a question of fact and possibly a matter of degree in any given case. A conclusion on that question is then considered in conjunction with a similar analysis of circumstances at the time the application is made in accordance with section 461B.

PN57

What we say is this application was made on 11 November this year and what we say is that it was not until that first of the letters that Ms Roberts has referred to, the letter to the university of 31 October this year that the NTEU did withdraw that prohibited content and maybe even arguably it wasn't until the second letter of 5 November where the union clarifies which particular issues it is withdrawing, it's arguable and we do argue that it's at that point that they withdraw the prohibited content so we're dealing with a very short period of time between 5 November and 11 November during, if not that, at least between 31 October and 11 November during which the conditions that Vice President Watson imposes would have to be met.

PN58

We have evidence to bring about what has occurred in that time and what we will say about that evidence is that it demonstrates that what occurred falls short of the test that Vice President Watson applied. We point to the fact that in that particular case Vice President Watson did grant the application for ballot and at paragraph 24 he says:

PN59

The NTEU has genuinely tried to reach agreement with the employer during the bargaining period. In my view it has done so since approximately May 2006 to the present time.

PN60

This decision was a decision of 11 August following hearings on 8 and 9 August 2006. What we say is that was a much longer period to be considered an important period of bargaining without pursing prohibited content claims. In summary that’s our argument. If it please the Commission.

PN61

THE COMMISSIONER: So, Mr Argall, am I taking it that essentially the position that the university is putting is that the prohibited content was not withdrawn at an early enough point prior to the making of this application, and that therefore until that point the union was not bargaining, or that the union are not now bargaining genuinely? How does it relate to the question of genuineness of the bargaining, I suppose that’s the question I’m asking you?

PN62

MR ARGALL: Well yes, that’s right, Commissioner. What we say is that to bargain for prohibited content is a failure to bargain genuinely.

PN63

THE COMMISSIONER: Yes.

PN64

MR ARGALL: But that to some extent the point made by Vice President Watson is a different point to that, that in order to be granted a ballot one must remedy the deficiency of the fault of having pursued prohibited content. In order to remedy that fault it’s not sufficient merely to notify the employer that you are withdrawing. You must also then bargain about the new set of claims, the modified or amended set of claims, as he says, for an important period.

PN65

THE COMMISSIONER: Can I just ask you, Mr Argall, does the evidence that you wish to call in relation to this add substantially to the documentary evidence of what has occurred since the previous application was before the Commission?

PN66

MR ARGALL: Yes, well Commissioner it’s around those documents.

PN67

THE COMMISSIONER: Right.

PN68

MR ARGALL: What happened was essentially there have been two meetings.

PN69

THE COMMISSIONER: There have been two meetings, yes. There’s no disagreement about that. There have been two meetings and there has been a series of correspondence.

PN70

MR ARGALL: That’s right.

PN71

THE COMMISSIONER: That has happened too, yes.

PN72

MR ARGALL: But the evidence would go to what exactly was discussed and what emphasis was placed in the negotiations.

PN73

THE COMMISSIONER: In the negotiations, all right.

PN74

MR ARGALL: Yes, and we would say that supports our argument that there wasn’t a great deal of emphasis on bargaining towards the conclusion of an agreement that did not contain prohibited content. That’s what we would say.

PN75

THE COMMISSIONER: All right.

PN76

Ms Roberts, is there anything you want to put in response at this time? I’ll then discuss with both of you who you think should be called first to give their evidence as to what happened in these meetings. But presumably I’ll need to hear from both parties as to what they say happened, unless there’s no great dispute.

PN77

MS ROBERTS: Yes. I’m surprised that there - well, I don’t think there’s going to be much dispute about what transpired. I think it will probably be some question of interpretation of what transpired.

PN78

THE COMMISSIONER: Yes, all right.

PN79

MS ROBERTS: I don’t have anything to add at this point. I think we need to hear the evidence the employer wants to bring.

PN80

THE COMMISSIONER: Yes, okay then. Well I think given that the point that is being taken is your point, Mr Argall, I’ll hear your evidence about what happened in the meetings first and then I’ll hear from Ms Roberts what she says, or what the union’s evidence is about what happened in those meetings.

PN81

MR ARGALL: Thank you very much, Commissioner. I would like to call Stephen Weller, pro vice-chancellor of the university.

PN82

THE COMMISSIONER: Yes, Mr Weller could you come to the witness box please?

<STEPHEN ADRIAN WELLER, AFFIRMED [4.05PM]

PN83

THE COMMISSIONER: You can be seated, Mr Weller, thank you?---Thank you.

PN84

Yes, Mr Argall.

PN85

MR ARGALL: Thank you, Commissioner.

<EXAMINATION-IN-CHIEF BY MR ARGALL [4.05PM]

PN86

MR ARGALL: Mr Weller, could you please tell the Commission your title and role at Victoria University, please?---Commissioner, I’m the pro vice-chancellor students within the university, and I - in this context, a member of the bargaining team..

PN87

Can I ask what has been your involvement in the bargaining process to date?
---Attended both of the meetings that have been discussed today, the 7th and the 11th; attended I think it was two of the three earlier meetings that took place between the university and the union; was on leave during the third.

PN88

There were meetings, as you have suggested, on 7 November and 11 November for the purposes of bargaining.

PN89

There are documents that are already tabled here, Commissioner, that it might be useful to provide the witness with copies of.

PN90

THE COMMISSIONER: Certainly.

PN91

MR ARGALL: There are two documents.

PN92

THE COMMISSIONER: You’re talking about the documents that are under tab 21 and tab 22 of NTEU 1?

PN93

MR ARGALL: That’s right. I’m talking about the documents under tab 21, 22 and 23.

PN94

THE COMMISSIONER: I haven’t got a 23.

PN95

MR ARGALL: Just so the witness knows what we’re talking about.

PN96

THE COMMISSIONER: I don’t have a tab 23.

PN97

MR ARGALL: We do.

PN98

MR HARTIGAN: No, they’re both under tab 22.

PN99

MR ARGALL: Sorry, they’re both under tab 22. My apologies.

PN100

THE COMMISSIONER: There are two documents under tab 22, yes.

**** STEPHEN ADRIAN WELLER XN MR ARGALL
PN101

MR ARGALL: That’s right. There’s a second document headed Victoria University Collective Agreement Bargaining Matters.

PN102

THE COMMISSIONER: Yes.

PN103

MR ARGALL: I have extra copies here.

PN104

THE COMMISSIONER: Yes, there are three documents but only two tabs.

PN105

MR ARGALL: I might just ask Mr Weller if he would just take us through what happened; the main points of the meetings that you attended on the 7th and 11th of November, please?---The meeting on the 7th, the union provided the heads of agreement document at tab 21 and indicated that they felt that this was a mechanism to allow for an advancing of the negotiations; that it was an agreement that would allow for the generation of a new agreement with an expiry at the end of 2009. There was a discussion about - a brief discussion about points 1, 3 and 4 and an indication that the - the key areas within the agreement was section 2, namely the salary increase, the restoration of pre- HERRs, the pay, conditions, job security and regulation. The - there was a brief discussion for about half an hour or so when DVC Hickman was there, about the correspondence that had been exchanged in terms of the prohibited content, in terms of clarity regarding that. The university then asked for a pause to discuss the heads of agreement. We indicated some confusion regarding an agreement that talked about agreements that then talked about agreements, and that perhaps the nomenclature might not be the best. We retired, discussed this as an option for advancing the discussions; returned and said that in principle we thought that this was an instrument that would provide an opportunity to advance the negotiations, but that we would need a day or two to consider what was in there and the manner in which we would respond. I think the meeting didn’t go for more than an hour in total. Shall I turn to the meeting of the 11th?

PN106

Yes, please?---The university and the union reconvened on the 11th, at which time the document at tab 22 was tabled by the university, which was in essence both a reformatting of the heads of agreement into what the university has described as a memorandum of understanding. The change in title was, in essence, to move away from the - what we saw as the confusion about an agreement about an agreement.

PN107

THE COMMISSIONER: Using the term, yes.

**** STEPHEN ADRIAN WELLER XN MR ARGALL
PN108

MR ARGALL: Yes?---So that wasn’t a substantive change. The university, under point 2, which as I’d indicated at the discussions on the 7th, had been seen to be the core area for the union; the university put into that what’s at the left column, VU Claims.

PN109

THE COMMISSIONER: Yes?---Which was an indication of the areas that the university would then seek to negotiate or bargain on, and those were accompanied by the tabling of the document at the back of that agreement, headed Without Prejudice.

PN110

I see, so that explains on the content of the VU - - -?---Correct. It had been the university’s intent to table that at the meeting on the 7th but then in receiving the heads of agreement, that was held till the meeting on the 11th, at which time it was provided. I think that was the point that was made earlier. That whilst it says it’s presented on the 7th, it was presented on the 11th. I guess the other point that the university wanted to clarify in having made amendments was that at point 3 there was an indication that with - the first dot point, Commissioner, under 3, that with the exception of the matters outlined that all other conditions would remain in force. There was then, I guess, a period of discussion, clarification between the union and the university as to what was the nature of our response of the MOU to the heads of agreement. The - there was some question about needing, from the union to the university, about needing a more detailed response to the NTEU claims which the university indicated was the other document. The - yes, I guess that’s the point at which there was discussion between the union and the university.

PN111

MR ARGALL: Was there discussion about the status of items to be included in a memorandum of understanding?---Yes, the union wanted assurance, I guess, or clarity from the university as to whether there was an acceptance of the items in the column NTEU Claims, and the university indicated that there was an acceptance of those items to be in the context of what was to be negotiated; and there was, I think a sort of a semantic discussion about whether they were accepted or whether they were accepted to then be discussed.

PN112

THE COMMISSIONER: So the NTEU were clarifying whether the university had actually agreed to accept the NTEU’s claims?---Correct.

PN113

Or whether they had agreed to negotiate the NTEU’s claims?---Yes, Commissioner.

**** STEPHEN ADRIAN WELLER XN MR ARGALL
PN114

Yes, okay?---That’s my sense, is that the university was indicating that we had accepted those claims to be negotiated. The union pressed us on that to say, “Well are you saying that you’ve accepted them or are you accepting them to negotiate on?”

PN115

MR ARGALL: You advised the university of that?---The indication from the university was that these were matters that we accepted, that would form the basis of the MOU and would then form the basis of what we felt would be intense and detailed discussions about both the NTEU claims and the VU claims.

PN116

What was the union response to that; what was the NTEU response to that?
---There was an initial indication that this was a - I guess, an unhelpful shift in what the heads of agreement had sought to do, that - my sense is the union felt that if we’d have agreed with the document, the heads of agreement at 21, then we would be limiting the discussions to the five dot points; and what now has transpired in my sense of the union’s view was that now we were adding a series of - I think it’s eight dot points, that now we wanted to discuss, and that rather than us bringing us closer that this would now seek to, you know, not bring us closer.

PN117

Did anything else occur in that meeting?---The - I guess at that point there was then an indication that if in - there were some questions asked about some of the intent of the accompanying document and there was an indication, particularly in the context of, say, the - what’s page 2 in that document, the disciplinary procedures, that this was going to take us in a completely - my sense was that the union felt that this was going to take us in a completely different direction to where the heads of agreement was going to do, particularly in relation to the notion of de- HERR-is-ing [sic] and that if our paths were moving further apart, the union was of a view that it would be time to come back to the Commission.

PN118

How was that resolved; how was it left at the end of the meeting?---There was a pause. The union requested a pause during that discussion, at which the - I don’t think it was a lengthy pause, and that at the point at which the union returned, they indicated that they would need greater detail from us in terms of what we were prepared to accept in terms of the claims; that simply saying we would accept them with a possible view to then not accepting them, they would need greater assurance and that they in turn would need greater assurance around the dot points in our claims. We indicated that it was our desire to reconvene for two full days of negotiations the following week, on the Thursday and the Friday, at which - in advance of which we indicated that we would undertake to provide more detail, both abound [sic] the university’s claims and we would seek from the union detail in terms of their claims. In essence the way that we described it, Commissioner, was that we felt that we needed to get together into a room for two days to negotiate the substance of the two columns, but in advance of that we each needed to provide each other more detail.

**** STEPHEN ADRIAN WELLER XN MR ARGALL
PN119

So these arrangements were made for next week, is it?---That - there was discussion about whether the Thursday or the Friday worked. I understand that the Thursday wasn’t convenient. There was an in-principle agreement to meet on the Friday, Friday of next week.

PN120

That’s Friday next week?

PN121

THE COMMISSIONER: The 21st, is it?---Yes, Friday of next week, and undertaking that in advance of that there would be an exchange of more detail. We suggested that where possible we would like, you know, indicative clauses of what would go in the memorandum of understanding, and I guess to illustrate that, there was a discussion about the first two dot points, where there’s four per cent and five and a half per cent, and a discussion that we would need to bridge that gap.

PN122

MR ARGALL: That was to be done by when?---The intent that I guess the university indicated was that we felt that by spending a full day of negotiation and bargaining around those points, there would be agreement or not.

PN123

No, I’m talking about the exchange of materials prior to that?---I think we indicated Tuesday.

PN124

That’s Tuesday next week?---In advance of the - Tuesday of next week.

PN125

Tuesday of next week so it has not occurred yet?---No. No, the intent was that that would need to take a few days to do.

PN126

Yes?---For both the union and the university. Whilst not exhaustive, it could have been a document akin to the other two or three-page document.

PN127

THE COMMISSIONER: Yes, there’s some detail obviously in that?---Yes, there’s more detail in there, Commissioner, than there is in the dot points and we were of a mind that we both needed a document like that for the eight and the six points.

PN128

Yes.

PN129

MR ARGALL: Thanks very much. I have no more questions. Thank you Commissioner. Thank you Mr Weller.

**** STEPHEN ADRIAN WELLER XN MR ARGALL
PN130

THE COMMISSIONER: Ms Roberts.

PN131

MS ROBERTS: Thank you.

<CROSS-EXAMINATION BY MS ROBERTS [4.19PM]

PN132

MS ROBERTS: Can I just ask, on the basis of the letters that the union sent to the university, which are under tabs, I think, 18 and 20, and on your understanding of the meetings both on 7 November and 11 November; did the university understand that the union was withdrawing any claims for prohibited content
?--- The discussion that took place at the beginning of the meeting on the 11th, as I think I indicated, sought to clarify or confirm those discussions, those - the letters of the 31st and the 5th, and I think it’s true to say that prior to DVC Hickman leaving, there was an acceptance that the correspondence of the 3rd and the 5th was indicating clearly that there would not be prohibited content. The only, I guess, comment that I’d say in respect of the document of the 7th, the heads of agreement and the memorandum of understanding, is that on a number of instances the university indicated that it would require clarity around what was meant by some of the dot points; namely restoration of pre- HERRs entitlements, and whether that was an insertion of clauses that had previously been there or new clauses in relation to those.

PN133

Yes, but I’m talking about the prohibited content question?---Sure.

PN134

So did the university understand that prohibited content was withdrawn?---I think it - as I said, it - there was clarity that the letters of the 31st and the 5th, was that the union was indicating that there wasn’t an intent for prohibited content, yes.

PN135

MR ARGALL: Commissioner, it’s hard for the witness to answer this question. He’s being asked to talk about someone else’s understanding.

PN136

THE COMMISSIONER: Well he was at the meeting.

PN137

MR ARGALL: Yes.

PN138

THE COMMISSIONER: So he obviously must have had an understanding himself.

PN139

MR ARGALL: I’m sure he has an understanding but whether that’s the university’s understanding is another question.

PN140

THE COMMISSIONER: He did refer, as I understand it, to there being discussions with Mr Hickman, before Mr Hickman left, in relation to that. Presumably, I understood that the VU team, if I can put it that way, did have their own discussion at some point in the proceedings and came back to the union.

PN141

MR ARGALL: That’s fine. I just also say that to some extent it’s not even relevant, in a sense. It’s either true or it’s not true. Whether someone thinks it’s true or not true is not a point. The question is - - -

PN142

THE COMMISSIONER: Well I’m understanding this witness to be saying that at the conclusion of that meeting or at some time in that meeting, that there was acceptance that the union was not intending to pursue prohibited content. That’s my understanding of your evidence?---Yes.

PN143

Yes.

PN144

MR ARGALL: Yes, Commissioner.

PN145

MS ROBERTS: Did the union assure the university at any point that it would be prepared to have any final agreement that was reached checked by a legal authority or a relevant authority?---That offer was made, Commissioner.

PN146

Is it true also that the university did not raise any further issues that it thought might potentially be prohibited content, that the union had not already indicated at either of those face-to-face bargaining meetings or in writing?---I guess I’d return to my earlier comment that notwithstanding the request for greater clarity about what de- HERR-i-sa-tion [sic] or pre- HERR-i-sa-tion [sic] meant, and so without knowing what the clause might look like there wasn’t certainty that it wouldn’t have prohibited content, not withstanding the indication in the letters and the discussion that it wouldn’t.

PN147

But it’s true, isn’t it, that the university didn’t indicate that it thought, absent any further clarification, that there might be a problem in relation to prohibited content there?---Only in so far as the university indicated that there was a lack of certainty around what a return to pre- HERRs entitlement went and whether that was a strict removal of the provisions of the HERRs or a return of clauses from the pre-HERRs agreement, namely the 2000 agreement.

PN148

It was indicated also, wasn’t it, by the union at the meeting of 11 November, I think, that the matters put to the university in its draft heads of agreement were, and I quote “threshold issues”, thus matters important to the union?---Yes.

**** STEPHEN ADRIAN WELLER XXN MS ROBERTS
PN149

That was indicated?---Yes.

PN150

It’s true also, isn’t it - I think you have clarified this yourself but I just want to again make clear that the university’s response in relation to those matters was that - if you recall that table, that the matters listed in the table were to be negotiated in the university’s response, rather than to be accepted at this stage?
---Without wanting to be semantic, Commissioner, I guess I would say that we were of a mind that we had accepted that they would be negotiated.

PN151

THE COMMISSIONER: Well isn’t that the title, Scope of Negotiation and Bargaining Matters?---Yes.

PN152

They were to be the matters about which the parties would bargain?---Yes, Commissioner.

PN153

That’s what it looks like to me; is that what you were indicating it was?---Yes Commissioner.

PN154

Yes.

PN155

MS ROBERTS: All right, I just want to go to those last two documents, I think being the proposed heads of agreement proposed by the union and the memorandum of understanding put in response by the university. In fact I’ll go to the last document in the folder which is the document which is the more extensive list of the university’s position put on the 11th, but it says it was tabled on the 7th?---Mm mm.

PN156

THE COMMISSIONER: It was dated the 7th but says it was tabled on the 11th.

PN157

MS ROBERTS: Yes, sorry. Yes.

PN158

THE COMMISSIONER: Yes, that’s all right.

PN159

MS ROBERTS: It’s true, isn’t it, that the union stated clearly in that meeting on 11 November that the university’s proposal to remove review and appeals processes from the agreement and confine them to those available under the Workplace Relations Act was in direct contravention with the union’s claim to reinstate those matters that had been expunged from the agreement, as a result of the HERRs?---I’d agree that that was certainly the view that was put by the union. The university indicated, in response to that, that in the absence of the detail regarding de- HERR-i-sa-tion, [sic] that was something that we were prepared to negotiate on, as was recognised in the two tables.

**** STEPHEN ADRIAN WELLER XXN MS ROBERTS
PN160

It was also put to the university, wasn’t it, that on the side of the VU claims the proposals as currently put by the university, looking at the more elaborate document that was also tabled at that meeting - sorry, what I’m saying is the union put to the university, did it not, that the claims of the university in relation to teaching-focussed appointments, cross-sectoral teaching and the salary increase of four per cent from 1 June 2009 were all completely unacceptable to the union?
---I - - -

PN161

As currently put in the document which was also tabled on that day?---I’d - I wouldn’t dispute that in relation to the salary increase. I mean, that was clearly discussed, that there wasn’t a period. There was a question regarding what cross-sectoral teaching meant and then a discussion about the need to define that before that could be negotiated, and that in regard to teaching-focussed appointments, my understanding is that there was a discussion about how that would be discussed separate to any workload discussions. So I don’t accept that the teaching-focussed and the cross-sectoral were categorically indicated as being unacceptable.

PN162

I’m not asking you whether the university agrees. I’m asking you whether the union put to you that as currently proposed, those matters were completely unacceptable to the union?---I understand the point you’re making and no, I don’t have that recollection, that there was a blatant indication that teaching-focussed appointments and cross-sectoral teaching wouldn’t - I remember a brief discussion in relation to both of them, so I do remember in relation to salary increase that there was a clear statement this would be unacceptable.

PN163

THE COMMISSIONER: Well actually looking at those, there was one thing that was agreed. Both seem to agree to increase the casual loading to 25 per cent?
---Commissioner, there was an indication, I think by the union and the university, that the position between the two areas in relation to casuals were close, and that yes, on that there was - we would have been able to tick something off.

PN164

Yes.

PN165

MS ROBERTS: Sorry, in relation to the casual loading question, not in relation to all the casuals question?---Responding to the Commissioner’s indication - - -

PN166

THE COMMISSIONER: No, no, no. I’m simply referring to the fact that in both claims - - -?---Yes.

**** STEPHEN ADRIAN WELLER XXN MS ROBERTS
PN167

There is an increase in casual loading to 25 per cent so there was one issue of which the parties were in agreement?---Well we were also in agreement, Commissioner, I think, that there would be a salary increase.

PN168

Yes, and the quantum was the matter in debate. Yes.

PN169

MS ROBERTS: All right, so can I just ask you how did the position and response of the university change once you were aware that the union was no longer seeking prohibited content matters?---I’m not sure that it did change, other than there had been a change in relation to the university needing to consider a heads of agreement which had been proposed. At the meeting on the 7th there - I think we had an expectation that there would be discussions about a new agreement, a comprehensive period of negotiation, that that wasn’t going to be for a short period of time. So the change I think that we encountered was the proposal for an instrument for a short, limited agreement and a limited period of time.

PN170

No further questions.

PN171

THE COMMISSIONER: Thank you.

PN172

Is there any re-examination, Mr Argall?

PN173

MR ARGALL: No thank you, Commissioner.

PN174

THE COMMISSIONER: Thank you Mr Weller. You can stand down now?
---Thank you Commissioner.

<THE WITNESS WITHDREW [4.31PM]

PN175

THE COMMISSIONER: Is that the evidence you wish to call, Mr Argall?

PN176

MR ARGALL: That completes our evidence.

PN177

THE COMMISSIONER: Thank you.

PN178

Ms Roberts.

PN179

MS ROBERTS: Thank you. I wish to call Dr Paul Adams.

<DR PAUL ADAMS, AFFIRMED [4.31PM]

PN180

THE COMMISSIONER: Thank you, you can be seated, Dr Adams.

<EXAMINATION-IN-CHIEF BY MS ROBERTS [4.31PM]

PN181

MS ROBERTS: Thanks Dr Adams. Can you state your position in the union, please?---Yes, I’m a member of the branch executive and I’m also a senior and probably key person in the bargaining team.

PN182

How many of the bargaining meetings have you attended?---I’ve been to all of them. There was five, three in September I recollect, and two recently which have been discussed.

PN183

You have got a copy of that folder which we have handed up. If you could just look after tab 17. I think we’re looking at tabs 18 to 32?---Yes.

PN184

You have got them, yes? We’ll just refer to those documents in general. Can I just ask you what view did the union put in relation to prohibited content at the meeting of 7 November?---There was at least a 20-minute discussion, a 20-minute iteration that prohibited content was being withdrawn from the proposed WorkChoices agreement. More than that, we also indicated that we were quite happy to have whatever agreement was reached checked legally, to ensure that there was not prohibited content in there and that our intent was not to put any prohibited content in there.

PN185

Thanks, and what was management’s response at either of those meetings?---I think they listened and they nodded, as I seem to remember. Lionel Newman was there and nodded, as he’s doing now, and I seem to - I took that to mean that he understood what we were saying.

PN186

In response to the union’s clarification of its position, did the university change its general response; did the university change its negotiating strategy in any way that you could tell?---No, not at all. I think they didn’t change it at all and in - and I can’t really see that it made a difference to what they were doing at the time.

PN187

So in general terms what was the tenor of those negotiations on the 7th and the 11th; what transpired in terms of being able to reach agreement there?---On the 7th the NTEU presented a heads of agreement. I guess what we were seeking to do was to advance agreement and to move to a situation of resolution, and we saw it very much as a threshold situation. We were trying to advance that agreement and there were a list of key items that we were seeking to have included in an agreement.

PN188

On 11 November when the university tabled its response what happened at the bargaining then?---They presented a memorandum of understanding which was a response to our heads of agreement. On that memorandum of understanding it included NTEU items but also the items that they wished to put forward. One of the differences I think in the wording of the two agreements, which I think actually is quite key, is the NTEU agreement it talks about including the particular items which are relevant, whereas in the memorandum of agreement it talks about negotiating. Now why this is particularly significant is because one of the issues that has been occurring I think since we have been bargaining, since 28 May, is an issue I suppose to do with what items will be included. The university has been seeking to limit the number of items that would be in an agreement. The word negotiate indicated to us that some of the items that we were putting forward, which we considered to be threshold items, which we had already limited in the first place, may in fact fall off the agreement through - through the process, or that they would be negotiated; whereas we saw the list as things that needed to be included. In other words, a defined list of what needed to be included in an agreement. What management indicated to us was that through negotiation some of those items might in fact drop off. Now I suppose why this was important to us was because we had had a meeting of members in October, where it had been made fairly clear from our membership that this particular kind of approach, of whittling down the number of items that were put is not something that the membership would support.

**** DR PAUL ADAMS XN MS ROBERTS
PN189

So was agreement able to be reached?---No. No, agreement wasn’t able to be reached at that stage. Essentially I suppose because the list of items was potentially one that could be narrowed down. As I think has already been mentioned as well, there were issues to do with the disciplinary provisions which we believe need to be included in an enterprise bargaining agreement, and a ..... should be put in policy and, you know, we were also I suppose concerned that there was a range of other things that management were seeking to put into policy. So there is a sort of a background, I suppose, to particular meetings on the 7th and the 11th and a concern, I suppose, from the union’s side of things, even though we are - we’re trying to reach agreement, that the university is dragging its heels somewhat on this particular issue.

PN190

In your judgment how far apart do you think the parties are?---I think at this particular time where we haven’t actually moved much further in some respects than when we started. I take the point that yes, we do have some agreement on some items. But there are some key issues, threshold issues, where we don’t have agreement on. One is the list of items and what it should contain. The university saying it’s wanting to negotiate it and the union’s side we’re saying we want to include it. There is also some very basic things that I think have not been negotiated since this process began at the end of May. One of them, you know, for example, is a resourcing claim and a framework claim for actual bargaining, which hasn’t really been addressed over the last six months, and that is a fundamental claim in terms of progressing the claims; and I suppose the view from the union’s side is that we would like to reach agreement but the university is very much dragging its heels on some of these issues.

PN191

All right, thank you.

PN192

THE COMMISSIONER: Anything further, Mr Argall?

PN193

MR ARGALL: Thank you.

<CROSS-EXAMINATION BY MR ARGALL [4.39PM]

PN194

MR ARGALL: I would just like to suggest to you that some of the issues the university indicated that it wanted to put on the list of matters to be discussed were in the context of a possible longer agreement, rather than simply the heads of agreement; is that right? That they made it clear that an expanded list of issues they wished to pursue were to be pursued in the context of a possible longer agreement, rather than a shorter agreement?---Look, I think - I think that was made clear both in the union document and also the management document.

PN195

THE COMMISSIONER: There seems to have been, in fact Mr Argall, a bit of a change between 7 November and 11 November in the university’s position on that.

PN196

MR ARGALL: Yes, thank you.

PN197

THE COMMISSIONER: Yes.

**** DR PAUL ADAMS XXN MR ARGALL
PN198

MR ARGALL: Thank you, I have no further questions.

PN199

THE COMMISSIONER: I don’t think anything arises out of that. Thanks Dr Adams, you can stand down.

<THE WITNESS WITHDREW [4.40PM]

PN200

THE COMMISSIONER: Do you have any other evidence you wish to call?

PN201

MS ROBERTS: No, no further evidence. Could we possibly have a five-minute adjournment?

PN202

THE COMMISSIONER: Sure, no worries.

PN203

MS ROBERTS: Yes.

PN204

THE COMMISSIONER: I’ll stand this matter down for five minutes.

<SHORT ADJOURNMENT [4.41PM]
<RESUMED [4.47PM]

PN205

THE COMMISSIONER: Yes Ms Roberts.

PN206

MS ROBERTS: Thank you Commissioner. The university’s main contention, I think, is that the union, although it has made its position clear in relation to its withdrawal of prohibited content in that it’s not seeking prohibited content to be included in the agreement, it has not done so over an important period of time within the bargaining period. I take that to be the university’s main contention. We reject that proposal. We would say that in fact there is evidence before the Commission that the union’s withdrawal of any matters containing prohibited content have made absolutely no difference to the university’s overall bargaining strategy; and it has not led the university to change its position in any significant regard.

PN207

Separate from that we have a number of bargaining meetings which the union has been on the front foot trying to organise, to try and reach an agreement between the parties. In relation to that we acknowledge the university has made some movement towards coming to an agreement, however the evidence before the Commission is in our view unequivocal that that agreement has not yet been reached. The union’s position is certainly that agreement is - we don’t expect that imminently, although clearly further bargaining will continue in the coming weeks. We say that there isn’t any evidence that the withdrawal of prohibited content made any significant difference to the university one way or another, and there isn’t any evidence before the Commission - in fact there is evidence before the Commission that the university was entirely clear about the meaning of the union’s withdrawal of the prohibited content.

PN208

In terms of the question of whether the union has withdrawn its claims for prohibited content over an important period of the bargaining period, we say that the employer’s contention is that that important period must be a long period of time. We reject that. We say that an important period must be an important period, and the last two and a half weeks have in fact been an extremely important period of the timeframe of the bargaining at Victoria University; which I think has been acknowledged by the university. It has been a period in which the union has tried to cut through some of the major issues in contention and try to reach quick agreement, or at least in-principle agreement, on a way forward so as to avoid the need for industrial action. So we say that is has been an important period in the last two and a half weeks and in relation to the comments that the Commission made, I think, in the Blue Circle case, we say that we have fulfilled those requirements.

PN209

We have been bargaining for months. We first logged the university at the end of May this year and there has been evidence before the Commission about how that bargaining has proceeded. We say that we have been genuinely bargaining over that time, and in relation to the requirements of section 461 of the Act our firm contention is that we have fulfilled all of those. We’ve expressed an interest in continuing to meet with the university and to reach agreement, at their convenience, and in fact if you look at the correspondence between the parties you will find that the approaches to organised meetings have come from the union, and the university’s response has been to delay those meetings. If you look at the correspondence since 24 October; so we don’t want to make much of that but we do say that the university and the union- well the union, in particular, has been trying to reach agreement particularly in this last two and a half weeks. The fact that it has only been two and a half weeks and not two and a half years, as it was in the previous bargaining round, should not stand in the way of - - -

PN210

THE COMMISSIONER: Surely something that everyone should be grateful for.

PN211

MS ROBERTS: Yes, indeed, but it shouldn’t stand in the way of the Commission granting the application for the protected action ballot. If it please the Commission.

PN212

THE COMMISSIONER: Thanks, Ms Roberts.

PN213

Mr Argall.

PN214

MR ARGALL: Thank you Commissioner. Ms Roberts makes a point about whether or not the withdrawal of prohibited content by the union made any difference to the university’s strategy. We say that’s a completely irrelevant factor for consideration in this case. Ms Roberts also makes some points about suggesting that the evidence shows that the union is on the front foot organising bargaining meetings and somehow the university is dragging its feet. This is something that we deny. We say that the evidence in fact does not disclose that, and indeed to only look at the correspondence that occurred more recently is to ignore earlier attempts by the university to get these things going. It’s also an irrelevant point, but it’s not true.

PN215

To understand our argument about the important period of a bargaining period, what Vice President Watson says:

PN216

It must be necessary, however, to be satisfied that for an important period of the bargaining period the applicant genuinely tried to reach agreement by pursing claims which did not include prohibited content.

PN217

But he says that in a context and the context relates to the structure of section 461. Section 461 says:

PN218

The Commission must grant an application for a ballot order and must not grant the application unless it is satisfied that (a) during the bargaining period the applicant genuinely tried to reach agreement with the employer and the relevant employees and -

PN219

I emphasise and:

PN220

(b) The applicant is genuinely trying to reach agreement with the employer -

PN221

and it goes on. On one interpretation of that it might be thought that if at any point during a bargaining period an applicant had not been genuinely bargaining, then they could never remedy that deficiency; so that they could not never satisfy A and therefore never satisfy the entirety of section 461. That you could never, by later genuinely bargaining, overcome the fact that you had not genuinely bargained at some point in the process. Vice President Watson’s decision addresses that and rejects that as an interpretation. What he says at the beginning of paragraph 23 of his decision is:

PN222

As a matter of statutory construction section 461(1)(b) involves a consideration of the state of affairs at the time the application is made and determined. Section 461(a) involves a consideration of the same test but over a different time period.

PN223

That is, over the whole of the bargaining period. I continue the quotation:

PN224

A similar formulation of tests are contained in sections 430 of the Act and 170MW prior to the 2005 amendments.

PN225

Again I end the quote and comment on that, saying that’s about a suspension of bargaining periods. To resume the quote:

PN226

The intent of the legislature appears to be to preclude a union from access to a secret ballot and protected action provisions if it has not genuinely tried to reach an agreement before seeking access to those rights.

PN227

Here is where he sort of rejects the hard line on this, I think:

PN228

I do not believe that the intention is to forever disbar a union from access to the provisions if it transgresses at some point in time in the past, and thereafter falls into line with the statutory requirements.

PN229

From there he says:

PN230

In my view it is possible to be satisfied that an applicant genuinely tried to reach agreement during the bargaining period even though at some point in time claims of prohibited content are made, but -

PN231

He goes one:

PN232

- it must be necessary, however, to be satisfied that for an important period of the bargaining period the applicant genuinely tried to reach agreement by pursing claims which did not include prohibited content.

PN233

So it’s in the context of allowing unions a second chance at what might, on a hard line interpretation of this provision, be denied to them. Indeed that second chance, as he says, must be associated with a genuine attempt to reach agreement by pursing claims which do not include prohibited content for an important period of the bargaining period. So it’s an opportunity for the unions to remedy a deficiency that has occurred in the past. We say that the time involved was a very, very short period. We say that it was from 31 October at the earliest, to the date on which the application was made, 11 November; or even arguably from 5 November to 11 November. It’s a bit over a week whichever way you calculate it.

PN234

We have had evidence of what happened in that week and the evidence demonstrates that while there was a fair degree of discussion, the discussion was to a large extent about what the parties were going to subsequently negotiate about and how they were going to subsequently negotiate about those things, rather than the substantial negotiation over those issues themselves. Indeed what we have heard in the evidence was that the substantial negotiations over those issues were to commence at the meeting next week on 21 November.

PN235

So all of that really adds up to our conclusion which we urge upon the Commission, that there needs to be more in the way of overcoming this deficiency before the test established by the precedent of Vice President Watson is met. We would again remind the Commission that we’re talking in his case about a period of some months during which substantive negotiations occur. But here we’re talking about a period of just over a week during which discussions focussed
on - - -

PN236

THE COMMISSIONER: What do you say the test is, Mr Argall? In Tyco, as I understand it, the ETU wrote to Wormald on 13 June and said that they weren’t pursing prohibited content, and they had their application before the Commission on 3 August and the conclusion of the member at first instance in that case was that they were pursuing prohibited content and had genuinely tried to reach an agreement. So he seemed to be saying that you don’t need to have been, as it was in Blue Circle, May to August. But are you saying that there is some timeframe in relation to this?

PN237

MR ARGALL: Well Commissioner, I think Vice President Watson says that will be a question of fact and possibly a matter of degree in any given case. So I don’t think there are any absolutes, time limits, but I think it’s a combination of both the time involved and the behaviour of the parties during that time period.

PN238

THE COMMISSIONER: Yes.

PN239

MR ARGALL: But in Tyco we’re talking about a period of some weeks, rather than a period of - - -

PN240

MR HARTIGAN: Six or seven weeks.

PN241

MR ARGALL: Six or seven weeks rather than a period of some days. I’m not totally familiar with the evidence in that case.

PN242

THE COMMISSIONER: Well I’m familiar with all the evidence as to what happened after 13 June but I think that basically the employer still tried not to meet with them, as I recall.

PN243

MR ARGALL: Well there’s no suggestion of that in this case.

PN244

THE COMMISSIONER: No, no, I’m not suggesting that’s the case here but all I’m saying is you’re not suggesting that there’s any particular time period that needs to be established to show anything in particular?

PN245

MR ARGALL: Not at all, but we say that the combination of the short period of time here and the behaviour of the parties during that time fails to meet the test. That’s what we say. If it please the Commission.

PN246

THE COMMISSIONER: Is there anything you want to put in reply, Ms Roberts?

PN247

MS ROBERTS: Probably yes, Commissioner. Just on that question of the timeframe my understanding of the terms used in that Blue Circle case about the important period - I am assuming they would have been made so that the employer and the union, or whoever is bargaining, has a very clear understanding of the matters in dispute and has had an opportunity to try and reach agreement. There can be no other reason as to why you would desire that prohibited content matters be withdrawn and then bargaining occur over an important period of the bargaining period. It would seem to me that that’s the rationale for there needing to be an important period. In relation to that we would simply restate that the university has not indicated that they’re in any sense confused by the union’s position, or that they in any sense have changed their strategy in any regard, or require further consideration in relation to the union’s withdrawal of prohibited content claim.

PN248

So we’re not sure how any further time really is going to assist us to fulfil this requirement that there be an important period of time that the claims have been withdrawn prior to. Since that time we have tried to reach agreement, we’ve had further meetings, and will continue to do so. But yes, we say that there is no requirement in the Act that there be a time period and in relation to all the other provisions under section 461 we say that we have met them.

PN249

THE COMMISSIONER: Thank you. I don’t intend to provide reasons for decision now. I will do that in due course, but having heard the evidence and the submissions and having also heard the evidence that was provided in proceedings in the previous application, I am satisfied that this order should be granted, and that the applicant has met the requirements of the Act in relation to the provisions.

PN250

In particular, I am satisfied that the union has been genuinely bargaining and is currently genuinely bargaining. I am also satisfied, even though I don’t have to say so, that the university is also genuinely bargaining, and I would encourage the parties to keep on doing that. However, that’s not what I’m here to deal with. I’m here to deal with this application.

PN251

I have received from the Australian Electoral Commission an indicative timetable which they have provided. Before I proceed to making an order I wish to take the parties off the record and discuss that indicative timetable to see if there are matters in that timetable which you would wish me to vary, in terms of any order that is issued by the Commission.

OFF THE RECORD
<RESUMED [5.05PM]

PN252

THE COMMISSIONER: After those discussions the timetable as proposed by the Australian Electoral Commission will be the timetable that is contained in the ballot order. It is my intention that the ballot order will be issued once I return to my office. As I have indicated to you, I’m prepared to provide reasons for my decision to grant this order but I’m not doing it today. Thank you.

<ADJOURNED ACCORDINGLY [5.505PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEU1 CHRONOLOGY DOCUMENT PN32
STEPHEN ADRIAN WELLER, AFFIRMED PN82
EXAMINATION-IN-CHIEF BY MR ARGALL PN85
CROSS-EXAMINATION BY MS ROBERTS PN131
THE WITNESS WITHDREW PN174
DR PAUL ADAMS, AFFIRMED PN179
EXAMINATION-IN-CHIEF BY MS ROBERTS PN180
CROSS-EXAMINATION BY MR ARGALL PN193
THE WITNESS WITHDREW PN199