C2008/3345, Transcript of Proceedings [2008] AIRCTrans 815 (15 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19482-1

SENIOR DEPUTY PRESIDENT DRAKE

C2008/3345

s.496(1) - Application for order against industrial action (federal system).

Healthcare Imaging Services Pty Ltd
and
Health Services Union-New South Wales Branch
(C2008/3345)





Sydney

1.04PM, WEDNESDAY, 3 DECEMBER 2008

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

Reserved for Decision

PN1

MR R GOOT: I appear on behalf of the applicant, instructed by
MS M SKINNER of Clayton Utz.

PN2

MR D LANGMEAD: I seek leave to appear on behalf of the Health Services Union.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR GOOT: We don't oppose leave, your Honour, and I should have sought leave and I apologise for not doing so.

PN5

THE SENIOR DEPUTY PRESIDENT: That's all right. Who is instructing you, Mr Langmead?

PN6

MR LANGMEAD: Sorry, your Honour?

PN7

THE SENIOR DEPUTY PRESIDENT: Who is instructing you?

PN8

MR LANGMEAD: Megan Reeve.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you. Leave is granted to both parties. Mr Goot.

PN10

MR GOOT: Your Honour, we are here today seeking an order under section 496 of the Act in relation to industrial action which is occurring as I speak. I am instructed that there is a stoppage occurring at five sites of the applicants in Victoria and that picketing is taking place at one of those sites. Your Honour, we move on the application and the affidavit of Bruce Heddle affirmed on 2 December. The point in issue is a short point. I don't believe that there is any controversy in relation to the factual matrix.

PN11

The issue is whether the 30-day period following the declaration of the ballot which 30-day period commenced on 10 October and expired on 6 November, whether for the purpose of section 478(1)(d) the action that is now taking place and which has been threatened in a number of notices of industrial action which are referred to in the affidavit of Mr Heddle is action that commenced during the 30-day period and we say that it is manifestly not that action.

PN12

In short, the action that occurred during the 30-day period was limited to not transmitting or processing statistical information and the action that is threatened and occurring is stoppage of work generally. We will in the fullness of time rely on the authority of the Federal Court and of the Commission on the construction of section 478(1)(d) in support of our application. I don't know whether there is to be an application for an adjournment that was foreshadowed, but I don't know whether it's persisted with. If it is, I will deal with that when it is made, but perhaps it might be an appropriate stage to inquire of my learned friend whether that application is made.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Langmead.

PN14

MR LANGMEAD: Your Honour - - -

PN15

THE SENIOR DEPUTY PRESIDENT: You can sit, Mr Langmead. There is a danger I will only be seeing your tie if you stand.

PN16

MR LANGMEAD: Your Honour, we do complain about the procedure which has been afforded to the union in bringing this matter to the Commission. As I believe your Honour knows, the notice sent out by the Commission was addressed to the New South Wales branch of the union and addressed to the federal president - sorry, the branch secretary of the New South Wales branch. He happens to be the federal president as well. That was received late yesterday afternoon in our office, in the union's office.

PN17

THE SENIOR DEPUTY PRESIDENT: What time?

PN18

MR LANGMEAD: When received, it was seen by the administrative assistant and noticed that it was addressed to the New South Wales branch and was presumed to be done for their attention. It wasn't until the New South Wales branch contacted the national secretary late in the afternoon that the contact was made with your office. Contact was then made between the national secretary and my friend's instructors and the request was made of them that they agree to transfer the hearing to Melbourne. It was said that they would seek instructions about that, but I am instructed no reply was ever received. A similar request was made to your office, I am instructed and that also I am instructed met with no further response.

PN19

THE SENIOR DEPUTY PRESIDENT: Mr Langmead, who told you such a request was made to my office?

PN20

MR LANGMEAD: The national secretary?

PN21

THE SENIOR DEPUTY PRESIDENT: Who is?

PN22

MR LANGMEAD: Kathy Jackson.

PN23

THE SENIOR DEPUTY PRESIDENT: And is this in reference to a conversation with myself?

PN24

MR LANGMEAD: I believe it was, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, well, Mr Langmead, that is not the factual position. Ms Jackson indicated that they wanted - might want or wanted a hearing in Melbourne or that perhaps video conferencing might be appropriate and I said you will have to address that with the applicant. It's not a matter to talk to me about on the telephone.

PN26

In the absence of reaching an agreement with those persons, I would expect that an application would be then made to me and none has been until now when earlier this morning in response to an application by somebody whose surname I don't know and I apologise for that, whose name is Fleur, the matter was listed for video conferencing so that is the position in relation to that conversation, but in any event, you're in the position where you've got the application yesterday afternoon, it's listed at 11 o'clock this morning.

PN27

MR LANGMEAD: Yes, your Honour. I was briefed to appear in this matter at about five past 12 today and whilst I have very quickly looked at the materials and I hope that I can deal with them, but depending on what my friend says, I may need to seek a short adjournment to read some material.

PN28

THE SENIOR DEPUTY PRESIDENT: Have you had an opportunity to read Mr Heddle's affidavit?

PN29

MR LANGMEAD: I have read it very quickly, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: All right. It seems to me that having read it myself, what Mr Goot puts about it being a limited question is right.

PN31

MR LANGMEAD: I would agree with that, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: And if there are not any disputes about the factual matters which I think is likely, it is likely to be a very limited argument. Now, I can allow you time to fully acquaint yourself with the matters in the affidavit, get some further instructions and list the matter later. I think that would be appropriate. I haven't canvassed that with Mr Goot, of course. I don't know his attitude to that, but that is what I think.

PN33

MR GOOT: We have no objection to that, your Honour.

PN34

THE SENIOR DEPUTY PRESIDENT: Mr Langmead, are you available to - - -

PN35

MR LANGMEAD: Your Honour, I think it would be useful if I heard from my friend about what his case is and then if necessary I can ask for that further time.

PN36

THE SENIOR DEPUTY PRESIDENT: All right. All I was putting to you is that I have all of the afternoon free and can list the matter at any time that's convenient to both parties and I will do that. Mr Goot, can you assist Mr Langmead?

PN37

MR GOOT: Certainly, your Honour. I read the affidavit of Bruce Heddle affirmed on 2 December. Your Honour, the relevant matters are picked up at paragraph or section (e) of the affidavit, paragraph 22 and following, relating to an application for an order for a protected action ballot in paragraph 22. The application is BH8, but I don't go to it. There was an amended application which is BH10 referred to in paragraph - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Mr Goot, what is happening down there, Mr Langmead? You sound like you're in the middle of a construction site. Is there people opening the door?

PN39

MR LANGMEAD: One of the aids to the Commission brought in some jugs of water, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Can you hear?

PN41

MR LANGMEAD: I am sorry?

PN42

THE SENIOR DEPUTY PRESIDENT: Can you hear Mr Goot properly?

PN43

MR LANGMEAD: Yes, I can, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Goot.

PN45

MR GOOT: In paragraph 26 there is a reference to an amended application for the protected action ballot, but nothing turns on it. The order for the protected action ballot is referred to in paragraph 9 and as annexure BH12. There was a further order which is BH13, but again nothing turns on it. The declaration of the results of the protected action ballot are referred to in paragraph 36 on 7 October and it's annexure BH15 and if I could just briefly take your Honour to that document, your Honour will see that it lists a number of separate and distinct industrial actions, including at the fourth last bullet point:

PN46

No transmission or processing statistical information.

PN47

The affidavit continues in relation to negotiations and at paragraph 38 there is referred to and annexed as BH16 the first industrial action notice and it's summarised in paragraph 38 as referring to the following industrial action which includes no services to outpatients, no services to private patients, no banking of funds, et cetera, and no transmission or processing of statistical information, then, your Honour, I can skip to paragraph 44 where a second notice of action is referred to, action to take place on 3 November 2008 and that is different to the first notice in that no services provided to outpatients as common, no banking common, no transmission or processing of statistical information common and rolling stoppages, that's new.

PN48

Then at paragraph 47, this is significant, it refers to a conversation on 30 October 2008 at 4.40 pm between Ms Fleur Harbridge of the respondent and Ms Mould of the applicant during which conversation it was agreed that the industrial action referred to in the second notice would be limited to not transmitting or processing statistical information, the third, that is the action referred to in paragraph 44(c) and that was confirmed in writing in annexure BH23 and the annexure, the relevant part of the annexure is set out in paragraph 48 of the affidavit and I pick up at the second paragraph of the italicised print:

PN49

Further, provided that a negotiation meeting is reconvened for this Wednesday, 5 November, as previously scheduled, the union will suspend any further industrial action proposed for Monday, 3 November onwards. As such, members should go to work on Friday and only commence the industrial action of no transmission/processing of statistical information and from Monday onwards all industrial action is suspended until further notice.

PN50

The affidavit recites in paragraph 50 that the 30-day period after the declaration of the results of the protected action ballot expired on 6 November 2008 and in 51, the affidavit notes that:

PN51

The only industrial action engaged in by the respondent during the said 30-day period which industrial action was taken in the week commencing 3 November 2008 was the failure to transmit or process statistical information from only one known site.

PN52

The action was not widespread and ceased shortly thereafter, so that is the critical fact upon which we rely in our argument, but moving on, your Honour will see in paragraph 53 that on 20 November and this is well outside the 30-day period there was a third notice of industrial action given which specified industrial action as 12-hour stoppages on specific dates, then there was a fourth notice given referred to in paragraph 57 and annexed as BH28 which indicated that industrial action at all of the sites would take place from 8 am, Monday, 1 December.

PN53

And then in paragraph 58 Mr Heddle deposes to the fact that on 26 November the industrial action specified in the third notice, that is a 12-hour stoppage on that day was taken. He refers in paragraph 59 to the effect of that. In 61 he says that on 27 November the industrial action, that is a 12-hour stoppage on that day, was taken and in paragraph 63 he says that the industrial action foreshadowed in the third notice for 28 November, the 12-hour stoppage, was taken and on 1 December, this is paragraph 66, the industrial action specified in the fourth notice was taken and it involved four-hour strikes at some nine sites in Victoria.

PN54

At 68 he refers to a letter sent on 1 December which is annexure BH30 which called on the HSU to provide a written undertaking not to organise or take any industrial action, failing which an application under section 496 would be made and at paragraph - in the last paragraph I think he also annexes the response to that letter which was that no such undertaking will be given and that was received yesterday shortly after 12 noon. Now, that is the factual matrix, your Honour.

PN55

Section 478(1) provides that:

PN56

Industrial action is authorised by a protected action ballot if, (d) the action commences during the 30-day period beginning on the date of the declaration of the results of the ballot.

PN57

As we have seen, the only action that commenced during the 30-day period was the limited action relating to transmission and processing or processing of statistical information. What has occurred at the expiration of the 30-day period is not that industrial action. It is different, essentially different industrial action of 12-hour stoppages, rolling strikes and the like and it continues on this day.

PN58

Your Honour, there are two relevant cases and unfortunately if my learned friend were here I would give them to him, but no doubt he will make a note of them. The first is a decision in United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) FCA 904, a decision of Giles J given on 14 July 2006 and the second is Cadbury Schweppes Pty Ltd Confectionery Division, Tasmanian Operations Enterprise Bargaining Agreement 2005 (2008) AIRC 1098, a decision of Vice President Watson given in Melbourne on 8 July 2008.

PN59

The facts in the United Collieries case are set out in paragraph 1. His Honour there says:

PN60

This case concerns the nature of the industrial action that might be authorised and, in particular, the consequences of the necessity for such action to be commenced within a period of 30 days beginning on the date of the declaration of the results of the ballot.

PN61

THE SENIOR DEPUTY PRESIDENT: I am sorry, Mr Goot, where is this?

PN62

MR GOOT: Sorry, your Honour, it's in the bottom - it's paragraph 1.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN64

MR GOOT: It's the last sentence on the first page and that continues onto page 3 of the print and there are set out the various propositions that were the subject of the secret ballot, of the protected action ballot and approved and your Honour will see that there was a range of industrial actions, 24-hour stoppages, bans on working non-rostered overtime, seven-day work stoppages, two-hour stop work meetings, shift length work stoppages.

PN65

His Honour notes that the 30-day period concluded on 13 June 2006 and that within the 30-day period there were bans on non-rostered overtime, a shift stoppage, another shift stoppage, a further shift stoppage and a seven-day stoppage of work. If one goes to paragraph 6, your Honour will see that his Honour sets out the competing contentions. Halfway through the paragraph his Honour said:

PN66

United Collieries contends that as the 30-day period has expired, no action of the kind contemplated under the authority granted by the secret ballot would now be protected industrial action.

PN67

And just pausing there, that is not our position, of course. We say that the only action that can be taken is the restriction on transmission or processing statistical information. He then goes on to say:

PN68

On the other hand, the union contends that as a 24-hour stoppage had taken place within the 30-day period, all of the available options of industrial action approved in the ballot are open. Alternatively, the union contends that 24-hour stoppages of work, bans on the working of non-rostered overtime, seven-day stoppages of work and shift stoppages of work would all be protected action if taking place during the bargaining period as each type of action had been commenced during the 30-day period.

PN69

And so much is clear from paragraph 5 where his Honour sets out what industrial action did occur during the 30-day period. His Honour continues at paragraph 7:

PN70

The gist of section 478(1) for present purposes is that industrial action is authorised if the action is the subject of a successful protected action ballot and the action commences during the 30-day period beginning on the date of the date of the declaration of the results of the ballot.

PN71

And his Honour then in paragraph 15 on page 6 of the print says:

PN72

I do not accept the union's preferred argument that as some industrial action commenced within the 30-day period, all options approved by the ballot are now open. In my opinion, each separate question in the ballot relates to a different kind and nature of industrial action...(reads)... questions 1, 2 and 5 as an instance of each form of industrial action occurred prior to the expiration of the 30-day period.

PN73

And the distinction that his Honour draws in paragraph 15 is apposite here because the only action that took place within the 30-day period here is the limitation on transmission or processing of statistical information which would preclude as protected action stoppages, general stoppages of work, four-hour stoppages, rolling strikes and the like. At paragraph 21 his Honour refers to the 30-day period and says:

PN74

It's a time for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion, the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances ...(reads)... rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.

PN75

And we say that's precisely what has happened here, that is the respondent is taking the ballot results as an authority which can be held up the sleeve and has not acted on it within the 30-day period and is therefore precluded from acting on it after the expiration of the 30-day period and they are the principles we take from that decision. In the Cadbury Schweppes decision of his Honour Vice President Watson similar considerations were involved. In paragraph 3 of the print his Honour observed in the last sentence:

PN76

During the 30-day period from 27 February 2008, only industrial action in the form of stoppages on the performance of work for four hours was commenced.

PN77

And he says in paragraph 4 that:

PN78

Subsequently, there were five notices of intention to take protected industrial action. The combined effect of the stoppages notified in the notices of 3 and 4 July is the cessation of all work by electricians at the Claremont factory for 72 hours from 6.30 pm on 9 July and a further cessation of all work for 48 hours from 6.30 on 13 July.

PN79

And, your Honour, the issue there was whether end to end four-hour stoppages which aggregated to 72-hour stoppages and 48-hour stoppages was protected action given that the only stoppages that had occurred in the 30-day period were four-hour stoppages, his Honour held that a series of four-hour stoppages after the 30-day period was protected action in the circumstances there and so much is so from paragraph 7 where he says what the central issue in the case was and in paragraph 9 he says:

PN80

In this case, various forms of industrial action were authorised by the ballot process.

PN81

And just interpolating here, as was the case in the present case, as is clear from annexure BH15, the declaration of the ballot:

PN82

By virtue of section 478(1)(d) -

PN83

his Honour said:

PN84

only the type of action commenced during the 30-day period following the declaration of the ballot results is authorised thereafter. Therefore only stoppages of work for four hours remained available protected industrial action after 28 March 2008. The question is whether the industrial action dealt with in the notices of 3 and 4 July fall within that description.

PN85

And he then in paragraph 10 cites with approval something his Honour Giles J said in United Collieries about promptitude and not holding things up one's sleeve and in paragraph 14 his Honour said:

PN86

In my view, industrial action which on its face conforms with the type of action authorised by a protected action ballot and remains available having regard to the provisions of section 478(1)(d) of the Act should not be regarded as unprotected unless its essential character is different to the type of action available. In my view, the proposed action can be described as a series of consecutive four-hour stoppages. It could also be described by reference to the combined effect of the stoppages as amounting to a 72-hour and a 48-hour stoppage. However, the description of their combined effect does not alter their character of consecutive four-hour stoppages.

PN87

Now, that is quite unlike the position before your Honour. All that had occurred in the 30-day period was a limitation on transmitting or processing statistical information. Notwithstanding that the ballot authorised other industrial action, including rolling stoppages, four-hour, eight-hour, 12-hour, 24-hour stoppages, including those, none of that industrial action was taken within the 30-day period, that industrial action has an entirely different essential character to the industrial action of limiting transmission or processing of statistical information and it follows by dint of the reasoning both of his Honour Giles J and his Honour Vice President Watson that the industrial action the subject of the second, third and fourth notices threatened and occurring is not protected action because it does not comply with section 478(1)(d) and it follows that the orders sought under section 496 must be granted in my submission. If your Honour pleases.

PN88

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Langmead, I think that you would probably be now in a position to understand what Mr Goot's case is. Do you wish to have the matter adjourned to later in the day to give you an opportunity to obtain instructions and respond?

PN89

MR LANGMEAD: I think I am in a position to respond now, your Honour.

PN90

THE SENIOR DEPUTY PRESIDENT: Do you have those cases there with you or do you want me to obtain copies from the registry for you? You're happy with that arrangement?

PN91

MR LANGMEAD: I have those cases, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Thank you. Could you first, Mr Langmead, just tell me if there's any matters of fact in the affidavit of Mr Heddle that you disagree with?

PN93

MR LANGMEAD: I don't think there is anything relevantly at issue, your Honour. I am instructed there are some minor matters which we would take issue with, but they don't seem relevant to this argument.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Langmead.

PN95

MR LANGMEAD: Thank you, your Honour. Your Honour, firstly I am instructed that your Honour conducted the hearing on the application for a protected action ballot. I don't know whether your Honour recalls that at all.

PN96

THE SENIOR DEPUTY PRESIDENT: I do.

PN97

MR LANGMEAD: But the ballot which was originally sought was amended by consent of the parties and your Honour's order reflected that consent position, so the question on the ballot was by consent of the parties. The ballot of course was successful and announced, the outcome was announced on 7 October. If I can take the Commission to paragraph 44 of Mr Heddle's affidavit which in turn refers to his exhibit BH20 which is the second notice of industrial action, your Honour will see that that specified four types of action, (a):

PN98

No service would be provided to outpatients.

PN99

(b):

PN100

No banking of funds, raising of accounts or collection of fees from patients, no transmission or processing of statistical information.

PN101

And (d):

PN102

Rolling stoppages.

PN103

He then says what happened following that which was to the effect that the company and the union agreed that the company would continue to participate in league with the union. I understand on instructions that the company originally proposed not continuing to participate in meetings because of the industrial action, threatened industrial action and it, however, would meet if the union suspended any meaningful industrial action as Mr Heddle puts it by limiting any industrial action taken pursuant to the second notice, that of not transmitting or processing statistical information and your Honour will see the email, that the industrial action will be eased and suspending any further industrial action pending the meetings to take place.

PN104

We say it's significant that that occurred because it does demonstrate a contemporaneous intention by the members of the union and the union itself to organise and take industrial action of the type specified in those notices. We accept the factual position in relation to the third and fourth notices and as your Honour will see, the fourth notice which is essentially the one being relied upon for the present stoppages notified and this is in BH28, notifies rolling stoppages.

PN105

THE SENIOR DEPUTY PRESIDENT: Paragraph what, I'm sorry?

PN106

MR LANGMEAD: Sorry, your Honour?

PN107

THE SENIOR DEPUTY PRESIDENT: I didn't hear that?

PN108

MR GOOT: BH28 I think was the reference.

PN109

MR LANGMEAD: Yes, BH28, your Honour, is the fourth notice which advises that rolling stoppages will take place.

PN110

THE SENIOR DEPUTY PRESIDENT: Yes, I'm sorry, I thought you said paragraph 58. Thank you.

PN111

MR LANGMEAD: That is the action which is complained of or is the subject of the present application. Your Honour, we say that what has occurred is entirely within the scope of protected action and 478(1)(d) does not take it outside the protected action status and we say that because if one looks at the action approved, the question was:

PN112

Do you approve the taking of industrial action that may involve all of any of the actions as listed below for the purpose of supporting or advancing claims for a collective agreement between the Health Service Union and your employer?

PN113

There's quite a list, no services upon emergency patients, no services to outpatients, no services to private patients, no performance of clerical work, no banking of funds, raising of accounts or collection of fees, no answering of phone calls, no attendance at meetings, no deliveries of equipment, stores or transport of materials, no transmission or processing of statistical information, rolling stoppages, four-hour, eight-hour, 12-hour, 24-hour stoppages, no emergency services and I was reading from BH15 then, your Honour, which is the declaration of the result of the protected action ballot. We say that that is consistent with Giles J in United Collieries and it is so because in this instance there is only a single question that has been put to the employees.

PN114

THE SENIOR DEPUTY PRESIDENT: Where is this? What annexure is it?

PN115

MR LANGMEAD: Your Honour, BH15 to the affidavit of Mr Heddle sets out the declaration of the result in the protected action ballot and it's a convenient listing of the question in my submission and the industrial action which has been approved is industrial action that may involve all or any of the actions as listed below so it's a different situation to that pertaining in United Collieries where there were five separate questions, each of which asked a question about a particular form of industrial action.

PN116

Here we have one question which has approved the taking of industrial action of the specified nature in the question. As Giles J said and I should advise the Commission that that decision has been reported at [2006] FCA 904; 153 FCR 543. Mr Goot took you to a number of passages of that decision and if I could also take you to paragraph 21, about halfway through the paragraph his Honour says:

PN117

The purpose of the time limit question needs to be considered. It is a time limit for the prevention of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.

PN118

Clearly that was not a situation which applied here. The union and its members had proposed taking industrial action at the behest of the employer. That action was suspended in large part, but nevertheless it was the contemporaneous intention of the employees concerned to take that industrial action, so the policy purpose which Giles J identifies in our submission does not militate against the construction which we urge upon the Commission. At paragraph 25 Giles J again - sorry, paragraph 26, Giles J having said what he has observed about the purpose of the provision goes on to say:

PN119

It is easy to be swayed by perceived policy arguments in matters of this kind. Statutory construction is the issue. Primary attention should be given to the words of the statute. In my opinion the words "the action" in section 478(1)(a) and (d) refer to the industrial action which is the subject of the proposed action ballot.

PN120

And he goes on:

PN121

And in particular the proposed industrial action put to the employees by way of each question.

PN122

Now, here the industrial action which is the subject of the protected action ballot included all those ones in the dot points identified in the question at BH15, so it is all of them that is the industrial action referred to in the - which was the subject of the protected action ballot and it is each and every of those actions identified is part of the industrial action as identified by Giles J in that paragraph.

PN123

To turn to Cadbury Schweppes at paragraph 14 which Mr Goot referred you to, the action, industrial action which on its face conforms with the type of action authorised by the protected action ballot should not be regarded as unprotected unless its essential character is different to the type of action available. Now, the type of action available is as I said all those dot points.

PN124

All of those are available and in my submission if any of them have been commenced, that means the industrial action has been commenced, particularly given the form of the question that was asked. As agreed by the parties, it may involve - the industrial action may involve all or any of the actions as listed below, so it's our submission that having commenced industrial action which was identified in the first notice and was taken - if the Commission would pardon me a moment - sorry, that is identified in paragraph 38, it was taking place on 31 October and as Mr Goot told the Commission, the action which was taken in response - in relation to the first notice and the second notice I think was the no transmission or processing of statistical information which, of course, is one of the notified options.

PN125

So, your Honour, it's our submission the action did commence within the 30-day period. The particular action that took place was the no transmission or processing of statistical information, but that was part of the industrial action that was approved by the ballot consistent with the judgment of Giles J in paragraph 26.

PN126

The action was the subject of the protected action ballot. Your Honour, it's in our submission a perverse result if that were not the case, because it would mean that the union would have to commence that action, all of those actions within 30 days even though the ballot had given options so it would have to use all of those within the 30 days and we say - - -

PN127

THE SENIOR DEPUTY PRESIDENT: That was the result in the United Collieries case, though, wasn't it?

PN128

MR LANGMEAD: In the United Collieries case, your Honour - - -

PN129

THE SENIOR DEPUTY PRESIDENT: It's really just a very narrow question, isn't it, as to whether or not that all or any of the actions affects the interpretation of what is or is not the action? Does that make sense, that question? I was distracted by your lights going on and off.

PN130

MR LANGMEAD: Yes, they went on and off, yes. I suppose what Giles J had before him was a different factual circumstance because he had five different questions. We say his analysis, however, in paragraph 26 is correct, that industrial action referred to is to be identified by the reference to the ballot.

PN131

THE SENIOR DEPUTY PRESIDENT: All right.

PN132

MR LANGMEAD: And were he to have had this factual situation before him consistent with that principle or the construction on the Act, we would say he would come to the conclusion that our construction is correct.

PN133

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN134

MR LANGMEAD: If the Commission pleases.

PN135

THE SENIOR DEPUTY PRESIDENT: Mr Goot.

PN136

MR GOOT: Thank you. Just briefly, your Honour, the construction contended for by my learned friend, apart from in our submission being contrary to the principles enunciated by their Honours Giles J and separately Vice President Watson would make nonsense of section 478(1)(d) because it would make it otiose.

PN137

It is true that the protected action ballot, BH15, provided the union with a number of options as to industrial action. However, it was a matter for the union to determine which options it would exercise during the 30-day period. Having exercised one option and only one option, namely no transmission or processing statistical information, during the 30-day period and that's common ground, it cannot now exercise other options available under the protected action ballot.

PN138

It doesn't have to do it all within the 30-day period if it doesn't want to, but once it determines what it does in terms of industrial action during the 30-day period, it's made its bed for the rest of the bargaining period and that's the gravamen of the decisions upon which we rely. If the Commission pleases.

PN139

THE SENIOR DEPUTY PRESIDENT: It may be a very persuasive argument not to compromise your industrial action and have conversation.

PN140

MR GOOT: Indeed.

PN141

THE SENIOR DEPUTY PRESIDENT: Indeed. I reserve my decision.

PN142

MR GOOT: If your Honour pleases and can I thank your Honour and your Honour's staff for sitting through the lunch.

PN143

THE SENIOR DEPUTY PRESIDENT: That's all right. Mr Langmead, did you hear me?

PN144

MR LANGMEAD: Yes, your Honour.

PN145

THE SENIOR DEPUTY PRESIDENT: It's sometimes very difficult to see on that screen whether you've heard or not. I reserve my decision.

<ADJOURNED INDEFINITELY [1.56PM]