C2008/3209, Transcript of Proceedings [2008] AIRCTrans 838 (24 December 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19530-1

SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
COMMISSIONER LEWIN

C2008/3209

s.120 - Appeal to Full Bench

Appeal by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2008/3209)





Melbourne

10.04AM, WEDNESDAY, 10 DECEMBER 2008

PN1

MR D DWYER: I appear for the CEPU.

PN2

MR C O'GRADY: I seek leave to appear as counsel on behalf of Australia Post.

PN3

SENIOR DEPUTY PRESIDENT HARRISON: Any difficulty with leave being granted to - - -

PN4

MR DWYER: No, your Honour.

PN5

SENIOR DEPUTY PRESIDENT HARRISON: Leave is granted, Mr O'Grady. You will have to excuse me I have a bit of a cough. We have received written submissions from both of you, thank you. If you want us to we can mark them and we have read them. There's no need for either of you to take us through them line by line but obviously there are key matters that each of you may wish to address or highlight. Now, I don't think we've received a list of authorities from anyone. If we have let us know because I don't think we appear to have received one.

PN6

MR O'GRADY: From our part we haven't provided a list of authorities. We do have multiple copies of the authorities referred to in our submissions.

PN7

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I see.

PN8

MR DWYER: Yes, similarly, your Honour, I have multiple copies.

PN9

SENIOR DEPUTY PRESIDENT HARRISON: All right. Mr Dwyer.

PN10

MR DWYER: Thank you, your Honour. Your Honour, I understand from talking to your associate that the transcript for the 18th December has been provided to you. It wasn't available at the time we filed the application.

PN11

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I do recall that we made an inquiry about the whereabouts of that transcript. Have you got a copy of that,
Mr O'Grady?

PN12

MR O'GRADY: Yes, I do, thank you, your Honour.

PN13

SENIOR DEPUTY PRESIDENT HARRISON: If there's something in particular that should be referred to in that perhaps either of you could take us to it.

PN14

MR O'GRADY: Yes.

PN15

SENIOR DEPUTY PRESIDENT HARRISON: But yes, we do have it and we'll assume that it should be placed in the appeal book as well, Mr Dwyer.

PN16

MR DWYER: Thank you, your Honour. I did bring copies but your associate has assured me you have copies.

PN17

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN18

MR DWYER: The second thing, your Honour, I have a copy of my submissions in writing which I could go through more quickly if I could provide the Bench a copy.

PN19

SENIOR DEPUTY PRESIDENT HARRISON: Are they different to the outline that you filed on 2 December?

PN20

MR DWYER: They're certainly far expanded on what was put. They're in the same format. They follow the same format as the outline of submissions.

PN21

SENIOR DEPUTY PRESIDENT HARRISON: All right. Well, you let us have them.

PN22

MR DWYER: Yes, thank you.

PN23

SENIOR DEPUTY PRESIDENT HARRISON: Do you want us also to mark the outline on the 2nd or is this one in full substitution for it?

PN24

MR DWYER: This one is a substitution.

PN25

SENIOR DEPUTY PRESIDENT HARRISON: So doesn't need to be marked. All right. Well, we'll mark your submissions.

EXHIBIT #A1 SUBMISSIONS OF THE CEPU

PN26

SENIOR DEPUTY PRESIDENT HARRISON: Normally we would have preferred to have read these and not then spend the time of you taking us through them.

PN27

MR DWYER: Yes.

PN28

SENIOR DEPUTY PRESIDENT HARRISON: And I note what you said that they're really just a more full argument in relation to each of the matters that were in the outline.

PN29

MR DWYER: I understand, your Honour. It's just you asked us in the telephone conference to make arrangements in terms of providing these and on Monday evening it was when I received the response that - - -

PN30

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I'm not criticising you. I'm just trying to ascertain what the most efficient way is of dealing with it. I think what we'd prefer to do is adjourn and read these.

PN31

MR DWYER: Thank you, your Honour, yes.

PN32

SENIOR DEPUTY PRESIDENT HARRISON: Now, before we do,
Mr O'Grady, your submissions were reasonably comprehensive, there's not going to be another?

PN33

MR O'GRADY: No, your Honour. I haven't had a chance to read these but I don't have any other document that I wish to hand up.

PN34

SENIOR DEPUTY PRESIDENT HARRISON: Let's then take probably about a 10 minute break to read these submissions.

PN35

MR DWYER: Yes. I have my authorities although they're the TWU case.

PN36

SENIOR DEPUTY PRESIDENT HARRISON: I think certainly the ones you refer to in your first outline are familiar to us.

PN37

MR DWYER: Yes, and I am glad of this process. I didn't really want to read all these words.

PN38

SENIOR DEPUTY PRESIDENT HARRISON: Very good.

PN39

MR DWYER: And I have extracted a lot of the transcript and put it in the submissions to make it more - - -

PN40

SENIOR DEPUTY PRESIDENT HARRISON: Yes, that's helpful. We'll adjourn now.

<SHORT ADJOURNMENT [10.09AM]
<RESUMED [10.32AM]

PN41

SENIOR DEPUTY PRESIDENT HARRISON: Yes, thank you, Mr Dwyer, we've had an opportunity now to read those submissions and you don't need to repeat them but if there's any particular parts you wish to highlight do so. I don't know that you have addressed the competence of the appeal issue. That is a matter we are interested in hearing you on.

PN42

MR DWYER: Yes. I'll just go to that shortly.

PN43

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN44

MR DWYER: In terms of provenance and standing if I separate those two issues, your Honour, the issue of standing of course we would be relying on the section that where a person aggrieved by the decision and as would be well known to the Bench, the organisations registered under the Act as a trade union and their objects of the advancement of their interest of our members and the order covers a large number of the members as you would have seen in the submissions and while no evidence was given as to the percentages there would have been a large number of people at DLC to be CEPU members and those who enter and egress, those people who are not at DLC, as they were drivers there would be a number of members in that area as well.

PN45

In their submissions Australia Post have referred to the case of Manpower Services Australia. I note your Honour was a member of that Bench and I can provide a copy of that, although I'm only really going to go to the same extracts that Australia Post went to in our submissions and particularly paragraphs 11, 12 and 17 of that decision which I have quoted in the submissions of Australia Post. I could provide a copy of the decision if you wish.

PN46

SENIOR DEPUTY PRESIDENT HARRISON: I rather suspect it might be in those volumes or folders next to Mr O'Grady.

PN47

MR O'GRADY: If it's convenient, your Honour, we can hand those up now?

PN48

SENIOR DEPUTY PRESIDENT HARRISON: Yes, it is in here, Mr Dwyer. Which paragraphs did you refer us to?

PN49

MR DWYER: Yes, paragraphs 11 and 12 in the first instance and paragraph 17.

PN50

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN51

MR DWYER: In paragraph 11 there is a quote there from the decision of Ellicott J in the Tooheys case and about midway if I could just quote there:

PN52

A person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public -

PN53

That we submit is the test that we would need to meet that we have an interest beyond that of an ordinary member of the public and we note there in paragraph 12 that the Commission accepted that -

PN54

We accept that this passage should govern our approach in question whether Manpower is a person aggrieved by the certification of the agreement.

PN55

Of course Manpower is a company as opposed to ourselves which is an organisation of members. While I won't go to it I'll also draw your attention to clause 17 of that matter as well which talks about what unions could do, for example, the AIMPE case. I'll read the one part of it at paragraph 17. In that case Justice Gummow found that -

PN56

A registered organisation with members serving in shifts of a particular kind had standing to seek reasons for the ...(reads)... Department of Transport.

PN57

A little further down their Honours in the AIMPE case further said:

PN58

The decision of Commissioner Redmond did not affect the AFMEPKIUs legal interests but the union had an interest in the decision ...(reads)... members' conditions of employment.

PN59

And it goes on from that point of view. In our submissions we say we don't have to be a party to the order and we're not a party to the order to the aggrieved but we have a significant number of members directly affected by the orders and unlike Manpower we're an organisation of members. We have rights and obligations to represent those members. The orders being that the CEPU has members that are subject to the orders and members who are not subject to the orders. We have to advise our members and explain to them the effects of those orders. We have to advise members who are not at the DLC what those orders mean to them and the way CEPU does business is altered, at least in respect to those who are subject to the order.

PN60

The members seek that the CEPU take action to remove the orders. The CEPU members who took no industrial action are aggrieved as well and of course it follows that should any further proceedings arise as a result of these orders the CEPU would be required to represent those members. I note in that same decision at paragraph 51 - I withdraw that. I am actually referring to the decision of Alison v Tenix as my learned friend has mentioned when he filed his submissions at paragraph 51 which talks about service. Just let me correct that, it's at paragraph 24 of my learned friend's submissions and he's referring to Alison and Others v Tenix at paragraph 51 where it says:

PN61

In our view it would be incongruous or otherwise contrary to the process of service if an organisation that was validly represented ...(reads)... after service had been effected.

PN62

Further in the TWU case, which I assume my learned friend has in his list there as well at paragraph 42, I have referred to this in my written submissions in another context but the issue of the status of the organisation is dealt with there and there's a quote from a Full Bench with your Honour Harrison ex parte Reid 1995 in which the Full Court of the Industrial Relations Court of Australia said:

PN63

Ordinarily the Commission will be acting reasonably and in accordance with dictates of natural justice it relies on registered organisations to represent the interests of their members.

PN64

And why I have quoted it earlier is in the context of where the Federal Court had various concerns the amendments of WorkChoices to the Act, it's in that context. But we say that it can't be that if we have sufficient standard to be obligated to accept service that we must be an organisation that has sufficient interest to be aggrieved if a decision is made which affects our members. In summary we say the position of the CEPU is that we are in a position beyond which an ordinary member of the public would be.

PN65

I think the submissions of my learned friend then go on to say we didn't ..... the matter. It's true that in the transcript on 18 September counsel appearing for CEPU, it was not myself at that stage, did state that he did not represent the employees. However it should be read in context that he went on to say about having received the instructions less than two hours before the hearing, he was offered to seek instructions whether to represent Ms Joan Doyle who didn't know at that stage whether she was going to be a party to the orders. The application had been served on us at around 5 o'clock the previous evening. The CEPU was able to find counsel the next morning to appear and it was very clear that he had not had at that stage full instructions as to whether to appear for the employees.

PN66

You will then see submissions on 22 September when the matter to - sorry, interim orders arose out of the hearing on the 18th. The matter went to a full hearing on 22 September where I appeared. You will note that we did attend those hearings. We objected to various documents and cross-examined the Post witnesses and we put submissions. It was the CEPU that no member, no member - sorry, that no member or named member took or were taking industrial action, nor organising industrial action.

PN67

SENIOR DEPUTY PRESIDENT HARRISON: Where are you reading from,
Mr Dwyer?

PN68

MR DWYER: Beg your pardon?

PN69

SENIOR DEPUTY PRESIDENT HARRISON: Where were you reading from?

PN70

MR DWYER: I'm not. I'm just reading out of my notes here.

PN71

SENIOR DEPUTY PRESIDENT HARRISON: I see. You've just referred to the transcript of the 22nd.

PN72

MR DWYER: Yes. I'm talking about if you read the transcript on the day of the 22nd you will see that we were very active.

PN73

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I understand.

PN74

MR DWYER: And we put specific submissions. The suggestion is that because we've called no evidence that somehow detracts from our argument. The position was an organisation, as you have seen from evidence of Post called Union Solidarity was doing certain things, we were not involved - - -

PN75

COMMISSIONER LEWIN: Mr Dwyer, I take it you made submissions that orders other than against the CEPU should not be made?

PN76

MR DWYER: We made submissions that orders should not be made against the named employees or the - - -

PN77

COMMISSIONER LEWIN: Well, against anybody I'm presuming or did you concede that orders could be made and not opposed to making orders against any particular group of employees?

PN78

MR DWYER: The totality of the submissions would be that there was no industrial action and no order should issue at all. I understand - - -

PN79

COMMISSIONER LEWIN: Yes, I understand. You opposed the making of any orders?

PN80

MR DWYER: Yes.

PN81

COMMISSIONER LEWIN: Whether they be against the CEPU or anybody?

PN82

MR DWYER: Yes.

PN83

COMMISSIONER LEWIN: And you made those submissions on behalf of the CEPU?

PN84

MR DWYER: Yes. But specifically what I just wanted to - in order to rebut but my learned friend has put, we dealt with the members and we dealt with the named members and we dealt with the CEPU. We dealt with three core groups of people.

PN85

COMMISSIONER LEWIN: Yes, I understand. I really just wanted to clarify because I have hadn't the opportunity to read all of the transcript.

PN86

MR DWYER: Yes. And I'm only really replying to the point where learned counsel on the first day indicated that he was not representing the members. While this issue wasn't addressed as to who we represented during the proceedings at all it would be clear from the submissions that we were making those submissions not only on behalf of the organisation in its own right but also on behalf of our members and wherever they be. You would have seen in the other submissions there was that complication that we were not on notice about members who entered and egress Dandenong. That was, I suggest, a decision made initially by the Commission. Orders in that area were not sought by Australia Post, nor by us and those sort of issues weren't addressed, if you could just consider it in that context.

PN87

So we say our position in terms of evidence, our position was how do we negative a suggestion that we were taking industrial. I think in the transcript at one point said do we call all the members, there's about 1000 members, what do they say in the witness box or do we just put them there and be it an inquisition as to why they all turned up at work that night. As the evidence suggests, they all turned up at work that night, but I won't go back through what's in the written submissions. There was this extraordinary hearing on 25 September with Australia Post. The matter was concluded and the decision was reserved on 22 September and Australia Post wrote to the Commission and provided additional evidence and submissions a few days later.

PN88

While I won't comment on that so much, our position was - and it dealt with, sorry, the named employees. That's what I’m pointing out, is we then asked for a proper hearing so that that evidence and submissions could be dealt with. It was about the named employees and we ensured that that was put in the proper light. What I'm suggesting to you is at that point we were very clearly representing the named employees and seeking that orders not be made against them. So the suggestion in the submissions of my learned friend that CEPU elected not to represent employees is not borne out by what subsequently happened at the full hearing or on the additional hearing on the 23rd and it's not correct to say we chose not to represent them. They're my submissions.

PN89

SENIOR DEPUTY PRESIDENT HARRISON: Thank you, Mr Dwyer.
Mr O'Grady.

PN90

MR O'GRADY: Yes, thank you, your Honour. Can I deal with that last point first, namely, the representation by the union of the employees. In my respectful submission it's very clear from the transcript that the union at no stage informed the Commission that they were acting on behalf of either the named employees or their members working at the Dandenong Letter Centre. Indeed, on a fair reading of the transcript in its entirety one is driven to the opposite conclusion. The starting point is the transcript of 18 September which I understand the Full Bench has before it and you'll see, and this is referred to in the submissions that we filed pursuant to the Commission's orders, that Mr Irving who as counsel appeared on behalf of the CEPU and I should note didn't appear alone but appeared on our appearance with Ms Doyle at that hearing and Ms Doyle was at the bar table him, said that he appeared for the union. He said:

PN91

We have been served with this application fairly recently. I have not read all the material which has been provided. I do not appear for the employees.

PN92

Now, at no stage in the hearing of 18 September did Mr Irving resile from that position. On 25 September when the union was represented by Mr Dwyer,
Mr Dwyer announced an appearance and that announcement of appearance appears at paragraph 4 of the transcript of the - sorry, 22 September, I apologise, where Mr Dwyer says when he asked:

PN93

Yes, our counsel is not available this morning. I'm now appearing for the CEPU.

PN94

Once again Mr Dwyer did not announce an appearance on behalf of the named employees, nor did he announce an appearance on behalf of the employees who were members or eligible to be members of the CEPU who were engaged at the Dandenong Letter Centre. In my respectful submission if it was the union's intention to now act on behalf of those classes of employees that it was incumbent upon the union to make it patently clear to the Commission and Australia Post that that was the way that it was proceeding. It is the case that there were a number of objections to evidence in the course of the proceeding that related to the named employees and I understand Mr Dwyer's submission in that regard, but in my submission that was - those points were taken in the light of the case that Australia Post was prosecuting at that point in time.

PN95

Our case against the union was that it was open for the Commission to infer that individuals were acting as agents for the union and in those circumstances orders could be made against the union directly and that submission was ultimately not acceded to by the Commissioner. But that was the basis upon which we were putting our case and that was the context in which we understood objections and issues regarding individuals were raised by Mr Dwyer. The point emerged again on 25 September where there was a further hearing before the Commissioner and at that stage at paragraph 104, after Mr Dwyer having raised concerns regarding the individual named employees and the Commissioner asked him:

PN96

But in fact were you representing the named employees?

PN97

And Mr Dwyer's response to that was, and this is at paragraph 105;

PN98

It's a matter I've had some discussions with to clarify what my instructions were. I was representing the CEPU and officials of the CEPU. ...(reads)... doing it outside that role.

PN99

And the Commissioner said yes and Mr Dwyer went on to say:

PN100

Were the CEPU - where the CEPU has not control over them, if I can put it in that way, then that may be a different matter, but it's a difficult ...(reads)... what we as an organisation do.

PN101

Now, whatever that maybe it's in my submission not a clear explanation or announcement to the Commission that the union is changing the position that it announced at the outset of the proceeding which is that it is not acting on behalf of the - - -

PN102

COMMISSIONER LEWIN: It was acting as a registered organisation.

PN103

MR O'GRADY: It was acting as a registered organisation seeking to resist the orders that were being directed against it or being sought against it.

PN104

COMMISSIONER LEWIN: Well, Mr Dwyer has just answered a question of mine saying that they were resisting all the orders sought.

PN105

MR O'GRADY: Well, in my respectful submission having indicated to the Commission at the outset of the proceeding that it wasn't purporting to represent the other entities or individuals against whom orders were sought, the union did not have a standing if you like to - - -

PN106

COMMISSIONER LEWIN: That's what I want to be clear on. That's the nature of your argument, the registered organisation had no standing before the Commission in relation to the orders that were sought other than those against the organisation, that's your submission?

PN107

MR O'GRADY: In the context of the organisation having announced to the Commission that it doesn't purport to represent those individuals.

PN108

COMMISSIONER LEWIN: But what if it said somewhat more clearly given the context in which this discussion is now taking place, well look, we don't have any authority from these individuals and we don't seek to actually represent them as persons but as the registered organisation to which they are in some cases, of which they are in some cases and in respect to which they may be eligible to be members we resist all of these orders, your submission is that there's no standing, the Commission can dismiss that submission and say sorry, I don't need to take that into account because you've got no standing to make that submission because you're not representing the individuals?

PN109

MR O'GRADY: Well, we wouldn't put it that highly, Commissioner, and in my submission we don't have to in the context of the evidence that was before the Commission at first instance. Our position is whereas here an organisation says we are not seeking to appear on behalf of or represent the employees. We are only seeking to represent ourselves and Ms Doyle potentially if she's been named in the application. The union cannot now come along and appeal orders that are directed against members or persons who are eligible to be its members. It may be and I think we've adverted to that in the outline that we've filed, that we appreciate that the authorities support the position that in some circumstances an organisation is going to be a person aggrieved because an order impacts upon its members. But in my submission whereas here the union has disavowed that representative function then it cannot be said to be a person aggrieved when an order is made against its members and alternatively it's not an organisation as to whom leave to appeal should be granted when it seeks to agitate those matters.

PN110

For that to happen in my submission and for the reasons that we have set out in the outline the organisation has to assert from the outset, or at least in the proceedings before the Commission - - -

PN111

COMMISSIONER LEWIN: Is there any authority for this?

PN112

MR O'GRADY: Well, none other than the general principles that we've referred to in the outline.

PN113

COMMISSIONER LEWIN: There's no specific authority within the Commission's jurisdiction of this kind?

PN114

MR O'GRADY: No. The closest we get to it in my submission is the Alison v Tenix case. Now, that was a different situation but in some regards a stronger situation from the union's point of view in my submission because in that case the union having taken a similar course to what was adopted by the CEPU here turned up on appeal purporting to act as agent for named employees who were affected by the order and you will see in the Alison v Tenix decision they've named employees for whom the various organisers were purporting to represent are set out. Even in those circumstances the Full Bench was not inclined to entertain an appeal by those individual employees.

PN115

Now, here of course none of the individual employees, whether they be named employees or employees who are engaged to work at the Dandenong Letter Centre, have sought to take issue with the orders. They have been, on the material before the Commission, the orders, both the interim orders and the final orders made by the Commissioner, no issue was taken about the fact of service pursuant to those orders. Yet none of them have complained about the fact that those orders have been made. The only complainant is the union and it's complaining about orders directed against individuals whom in that first instance didn't purport or seek to represent in my submission on the transcript.

PN116

Can I turn briefly to the matters that have been raised in the written submission that we received this morning.

PN117

COMMISSIONER LEWIN: Sorry, just before you move on, I have a recollection and you might have researched this, Mr O'Grady, in the course of you preparing this particular submission about the aggrieved person, I have a recollection that for the purposes of service of section 496 and the previous section 127 orders there's some authority within the Commission's jurisdiction that the union can be recognised as the representative of its members for the purposes of service.

PN118

MR O'GRADY: Yes.

PN119

COMMISSIONER LEWIN: So your case here is that it's that - or the statements that are made in the running of the case below that basically disqualifies the union as representative of its members.

PN120

MR O'GRADY: Yes, yes. There are certainly a number of authorities, Commissioner. Pryor's case is one. Tenix itself, Alison v Tenix there's a discussion of these principles as well about the ability of an employer to act on the basis that it's properly served named or individual employees by serving the organisation. Those cases of course now have to read in the light of the observations made by the Full Court in the TWU New South Wales case but in my submission that decision itself has to be read consistent with the observations of the Full Bench in the Health Services case and the essence in my submission of the Full Bench's observations are that it will depend on the circumstances whether or not service upon an organisation is deemed to be effective service on the individual employees whom it purports to represent.

PN121

Here of course we rely not only on the service of the orders on the union but there were orders for substituted service made on the employees at the Dandenong Letter Centre and there's no suggestion that those orders weren’t complied with. There were orders, and indeed as I understand, the outline or the submission that has been filed by my learned friend, no complaint is made in respect of the service on the named employees. It seems acknowledged that that service was effected appropriately and we also rely, if your Honours and Commissioner please, on the fact that here we have interim orders made by the Commissioner on 18 September which themselves were served and there's no suggestion that those interim orders weren't properly served pursuant to the terms of the orders and that in my submission would have brought to the individual employee's attention the fact of those proceedings.

PN122

You will have noted in the outline that we filed, your Honours and Commissioner, that we make reference to the fact that even on the union website there was reference to, and this was an exhibit that was tendered in the proceeding, but there was reference to the fact of the interim orders, their application to employees engaged at the Dandenong Letter Centre and the fact that there was going to be a further hearing in the days to come. Now, notwithstanding all of that none of the named employees or the employees at the Dandenong Letter Centre sought to involve themselves in the proceeding and as I've already submitted, none of them have subsequently sought to appeal the orders that were made in respect of them.

PN123

I accept that different circumstances apply with respect to the group 3 employees, the employees who enter and exit the Dandenong Letter Centre, I would like to come to them in a moment because they weren't the subject of the application and accordingly they weren't the subject of the orders for substituted service and they weren't the subject of the interim orders that were made by the Commissioner at first instance. If your Honours and Commissioner please, our primary submission as you will have seen from the outline that we have filed is the appeal is incompetent because of ..... standing.

PN124

That submission is put on the basis that the various aspects of appeal as described in the outline filed by the union are themselves, if you like, individually incompetent. It's submitted that even if it were the case that the Full Bench formed the view that a particular aspect of the appeal was competent then the CEPU would be confined to agitating that aspect of the appeal rather than getting in if you like through that avenue the opportunity to agitate the correctness of the entirety of the orders made by the Commissioner.

PN125

In paragraph 44 of the outline that was filed this morning or the submissions that were filed this morning, reference is made to a decision in transcript of Vice President Lawler. There are a number of observations I'd seek to make in respect of that decision. The first and perhaps the most fundamental one is that on that occasion as I understand the transcript the union and the employees did not appear before I think it was SDP Drake when she made the 496 orders. So there was a circumstance where there was no contradictor notwithstanding that her Honour appears to have made orders and in those circumstances Vice President Lawler considered that given the failures to ensure that a notice of listing was provided to the organisation it was appropriate to set the orders, in my submission that's a very different scenario to the one that pertains here in the light of the matters that I have already referred to.

PN126

The other point I would seek to make that there his Honour wasn't considering an appeal as such, rather he was in effect rectifying or correcting the orders pursuant to the powers set out in section 110 of the Act and accordingly the issues of standing and leave did not have to be addressed by his Honour in those circumstances. In paragraph 49 and following there are submissions put in respect of industrial action. As will be apparent from the transcript and I hope from the outline that we filed the case put by Australia Post below was very much based on inference and asking the Commission to infer that industrial action was threatened, happening or probable in the context of the events that had occurred at Dandenong Letter Centre, including the industrial action that had occurred back in June of this year where there was, if you like, where there was also involvement by Union Solidarity and where there was action taken which in many respects resembled the action that took place on 18 September.

PN127

If I can simply refer the Full Bench to the passages in Mr Ousley's witness statement and it's in the exhibits where that's set out. You will see that
Mr Ousley's witness statement at paragraphs - it sets out a number of exhibits. Exhibits SO4, SO5 and SO6 are the ones that refer to the June orders and SO5 and SO6 set out the evidence that was relied upon in respect of those orders. Paragraphs 68 to 70 of exhibit SO5 and paragraphs 10 to 12 and 54 to 56 of exhibit SO6 detail the fact that when the Union Solidarity picket was erected outside the Dandenong Letter Centre a number of employees engaged to work at that centre refused to cross that picket and the extent of the industrial action is described - - -

PN128

COMMISSIONER LEWIN: Does the evidence point to the refusal to cross the picket specifically?

PN129

MR O'GRADY: It does.

PN130

COMMISSIONER LEWIN: In which paragraph?

PN131

MR O'GRADY: Well, if I can take you, I think perhaps if you go to SO5 to start with.

PN132

COMMISSIONER LEWIN: This is Mr Ousley's statement that was before Commissioner Foggo?

PN133

MR O'GRADY: This is Mr Ousley's statement that was before Commissioner Foggo and attached to Mr Ousley's statement are the exhibits. Exhibit SO5 is the statement of Mr Bass.

PN134

COMMISSIONER LEWIN: Sorry, I'll just get there. SO5, right.

PN135

MR O'GRADY: And he talks about the direction - - -

PN136

COMMISSIONER LEWIN: What paragraph?

PN137

MR O'GRADY: Sorry, I apologise, Commissioner, paragraph 45 on 4 June.

PN138

COMMISSIONER LEWIN: This is June?

PN139

MR O'GRADY: Yes, sorry.

PN140

COMMISSIONER LEWIN: I see. So it's the propensity for the same event to occur based on what occurred in June?

PN141

MR O'GRADY: Yes, Commissioner.

PN142

COMMISSIONER LEWIN: My question was, was there any evidence before Commissioner Foggo that there had not been - there had been a situation where employees had climbed across the picket line and therefore did not present for work in September?

PN143

MR O'GRADY: The evidence of what happened in September is contained in a witness statement of Mr Hammond and that is exhibit AP9.

PN144

COMMISSIONER LEWIN: Say again.

PN145

MR O'GRADY: This is exhibit AP9. It's the witness statement of Peter Hammond.

PN146

COMMISSIONER LEWIN: Yes. I think in fact I've got that.

PN147

MR O'GRADY: If it assists the Full Bench, Mr Ousley's statement was prepared and filed in the light of the threatened industrial action flowing from our receipt of the SMSs indicating that Union Solidarity were going to organise a meeting in support of CEPU delegate at the site. That gave rise to the making of the interim orders. Notwithstanding those orders a picket was erected on the evening of 18 September and what happened on 18 September is described in Mr Hammond's statement and you'll see in paragraph 9 Mr Hammond describes the speech made by Mr Kerrin who was associated with Union Solidarity in which he describes initially what happened in June and then goes on to describe, and this is at the foot of page 3 of his statement:

PN148

So tonight and into the morning we will hold the trucks both in and out. All workers will go in. They have legal injunctions on them at the moment.

PN149

Now, that's a reference in my submission to the interim orders that had been made.

PN150

COMMISSIONER LEWIN: The interim orders. You see, the reason why I asked this question is because I did read Mr Hammond's statement and my summary of the statement was that his evidence that the picket line was permitting the employees to pass through for the purpose of attending work as part of the activity of the picket line.

PN151

MR O'GRADY: I accept that.

PN152

COMMISSIONER LEWIN: I see.

PN153

MR O'GRADY: The trucks didn't attend. The trucks weren't allowed through.

PN154

COMMISSIONER LEWIN: Well, there's a separate sort of argument about whether or not it was Australia Post thought it was better not to cause trouble and said to the drivers, well, don't run over anybody essentially but as for people who were reporting to perform their duties in the DLC, my understanding of
Mr Hammond's evidence is that in fact they were attending and indeed I think there was a corporate counsel for Australia Post who approached a couple of employees who were wearing Australia Post's uniform and they said, "We've come here to work overtime, we're going in to work overtime".

PN155

MR O'GRADY: Yes. And the submission that was put before the Commissioner was in the light of what Mr Kerrin's saying the reason why they're attending and being allowed through the picket line is because of the interim orders and what
Mr Kerrin goes on to say is that that situation won't pertain into the future and at that point in time they're going to stand up again.

PN156

COMMISSIONER LEWIN: Right.

PN157

MR O'GRADY: And so it was put on the basis that - - -

PN158

COMMISSIONER LEWIN: So this is paragraph 9?

PN159

MR O'GRADY: This is paragraph 9 and if you go to the foot of page 3 where
Mr Kerrin deals with that expressly -

PN160

Further down the track these workers will stand up against. We'll keep building up the pressure and next time ...(reads)... should get into Christmas.

PN161

And then we have it concluded saying:

PN162

So if I was Australia Post I would be looking at sitting down doing some good faith bargaining with the union.

PN163

So it wasn't put to the Commissioner below, Commissioner, that the employees on the night of 18 September hadn't attended. What was put is they attended but the reason for their attendance appeared from what Mr Kerrin and look at what happened back in June where there wasn't an interim order on them where the Union Solidarity had a picket and if you go to Mr Ousley's statement and the paragraphs I've referred to earlier, you'll see that there was a significant failure to attend.

PN164

COMMISSIONER LEWIN: At paragraph 61 of his statement where out of 484 employees only 232 attended for work.

PN165

MR O'GRADY: Yes, indeed. And the basis for him saying that is set out in exhibits SO5 and SO6 in particular which I've referred to.

PN166

COMMISSIONER LEWIN: When I read this I got the impression that in essence your claim is that Mr Ousley's evidence particularly at paragraph 68 and to some extent what follows and Mr Hammond's evidence now as you point out are the evidentiary bases for the findings that industrial action was happening in the first instance and was probable in the second instance.

PN167

MR O'GRADY: Yes.

PN168

COMMISSIONER LEWIN: Relying on those two items of the evidence.

PN169

MR O'GRADY: Yes.

PN170

COMMISSIONER LEWIN: And that ..... sounds, is that - - -

PN171

MR O'GRADY: Indeed and impending, if we need to rely upon that.

PN172

COMMISSIONER LEWIN: Probable, yes.

PN173

MR O'GRADY: And if I could simply refer in passing to the observations of the Full Bench in Coal and Allied which is itself referred to by another Full Bench of Thiess v CFMEU which is PR938334. It's a Bench of SDP Marsh, SDP Lacy and Commissioner Larkin of 24 September 2003 where at paragraph 50 of the Thiess decision Coal and Allied is referred to for the proposition that a company is entitled to rely upon a threat or probability of industrial action as a basis for establishing jurisdiction under 127. For that purpose the history of resort to industrial action and evidence about the current state of industrial relations is relevant. There's nothing extraordinary about that but it's very much the way in which we put the case before the Commissioner.

PN174

So we say that there was a basis upon which her Honour - sorry, there was a basis upon which the Commissioner below could have found that there was jurisdiction to make the orders because there was industrial action that was happening, impending or probable and indeed threatened by Mr Kerrin. Just bear with me, your Honours and Commissioner. Can I turn to the orders and the complaints about their breadth, it's put in paragraph 95 of the CEPU submission that there is nothing to justify the length of the order. We relied on below and rely on appeal the parts of Mr Hammond's statement that I've taken to, to justify that.

PN175

It is accepted, your Honours and Commissioner, that there is an issue about the orders made by the Commissioner insofar as they relate to the truck drivers because as I think I have already acknowledged they weren't the subject of the application and they weren't served. Our primary submission in respect of that is that there is for the reasons set out in our outline no competent appeal in respect of those orders and in those circumstances the Full Bench does not have before it an appeal that would enable those orders to be revisited.

PN176

It's submitted that what the Commissioner was attempting to do in respect of that part of her orders was prevent the employees who were based at the Dandenong Letter Centre from interfering with the entrance or egress of the trucks and that was the purport of what she was attempting to do, although it's accepted that that may not be as clear from the reading of the orders as in a perfect world that it might be, with respect. If I could hand up simply for the convenience of the Commission what we say is a form of an order that would achieve that effect.

PN177

SENIOR DEPUTY PRESIDENT HARRISON: Why are we getting this?

PN178

MR O'GRADY: Well, it's simply put on this basis, that when read in context of the evidence and what was put to the Commissioner that this is what in my submission she was attempting to achieve by the orders that she said, if the Full Bench was of the view that there was a competent before it and that leave to appeal should be granted, in my submission that should be confined to the orders that were directed towards the truck drivers and in my submission if there is an error in respect of the truck drivers it's an error in the way in which the order was - the breadth of the way in which the order was expressed and this addresses that but I don't take it any further than that, your Honour. Unless there are any issues that the Bench - - -

PN179

SENIOR DEPUTY PRESIDENT HARRISON: Of course - well, I shouldn't say of course, might not stop you which at least in some consensus with Mr Dwyer to the extent to which you're prepared to talk to him as representative of any of those persons and I understand all the issues there. I suppose there are some issues about difficulties with returning to the Commissioner and asking her to revisit her order and to limit it, yes.

PN180

MR O'GRADY: Yes. The submission that we seek to put in this regard, your Honour, is that if one has regard to the transcript in which her Honour indicated a willingness to make orders against the truck drivers and you will have seen in the submission we've put the union was present at that point in time and didn't raise an issue about it at that point of time, but if one has to regard to it, it seems the vice she was directing herself to is that if the employees interfere with the trucks entering or leaving - the employees at the DLC interfere with the truck drivers entering or leaving then that will in itself be a form of industrial action because of the nature of the work performed at the DLC.

PN181

But I don't take it any higher than that and as I've already submitted, Australia Post's position is that the appeal in its entirety is incompetent and the orders should stand in their current form.

PN182

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Anything in reply, Mr Dwyer?

PN183

MR DWYER: Just very briefly. We've made our submissions about the truck drivers. They tried to enter of course and we're advised by the police and other submissions there about that. This was authorised action being taken which could otherwise have been industrial action. But if our people a re prevented from going through then my strong submissions of it is there is not industrial action. If Union Solidarity they're again a very big picket line and our people are attempting to go through it is not industrial action on the part - - -

PN184

COMMISSIONER LEWIN: The evidence is there was no barrier to them attending to work. In fact the evidence is that the solidarity picket line was resolved to let them do so.

PN185

MR DWYER: Yes, Commissioner. There would have been two groups. There would have been drivers who were stationed at the DLC and there would have been drivers who came from other parts of Melbourne to DLC.

PN186

COMMISSIONER LEWIN: I'm sorry, you mean the drivers.

PN187

MR DWYER: Yes.

PN188

COMMISSIONER LEWIN: I was referring to the other employees.

PN189

MR DWYER: No, all the other people attended work. That's not in issue. The only people who stopped were drivers. The trucks were stopped.

PN190

COMMISSIONER LEWIN: So was Australia Post that said don't try and drive through.

PN191

MR DWYER: The police. In my submissions I refer to the police. Australia Post called the police.

PN192

COMMISSIONER LEWIN: Right. So you say there was no unprotected industrial action?

PN193

MR DWYER: That's our submission.

PN194

COMMISSIONER LEWIN: Because they were acting in accordance with the law.

PN195

MR DWYER: When Australia Post called the police, the police asked our people not to try to cross the line through. They attempted three times, is the evidence, to cross the picket line. They were advised by the police not to attempt for safety reasons. We say that they were authorised - - -

PN196

COMMISSIONER LEWIN: So they were driving their vehicles in accordance with the directions from the police?

PN197

MR DWYER: Yes, and I say Australia Post and that would fall into section 420(1)(g) I think which is action agreed or authorised by the employer, the exemption to industrial action. It would have been industrial action had it not been authorised by the - if the drivers had decided not to go through.

PN198

COMMISSIONER LEWIN: Unprotected industrial action.

PN199

MR DWYER: Yes, yes. That as my primary submission that no industrial action took place at all.

PN200

COMMISSIONER LEWIN: No unprotected industrial action. For our purposes it's the unprotected nature.

PN201

MR DWYER: I understand that. Yes, I have done an analysis of section 430 and I've put aside protected industrial action but within section 420 there are three exemptions - sorry, in the definition of industrial action there are three exemptions which is take action which would have been industrial action outside that ..... We say that when that employer, we say through the police, told our people not to cross that picket line that action was authorised.

PN202

COMMISSIONER LEWIN: You say it wasn't industrial action but even if it was industrial action it was protected.

PN203

MR DWYER: No, I didn't say it was protected. It doesn't fall within the definition of industrial action.

PN204

COMMISSIONER LEWIN: It doesn't fall within the definition of industrial action, I follow.

PN205

MR DWYER: I'm trying to avoid the protected, that's the difficulty.

PN206

COMMISSIONER LEWIN: Yes, I understand.

PN207

MR DWYER: My friend took me to a question. We had this extraordinary hearing where new evidence was tendered after the case had been closed and you saw the Commissioner and my friend mentioned just a while ago, the Commissioner announced she was going to extend the orders and if you read the transcript there you'll see some confusion on my part as if I was being invited to comment on her decision which I think I used the words I don't think it's appropriate for me to go into that, the decision has been made and there was some confusion on my part at that point. I was asked a question about representation. Without trying to go to what was going in my mind it wouldn't be helpful.

PN208

Representation is a difficult issue. I have been reading a case of the CFMEU v Clark which has been stated in the Magistrates Court the union went out and told the members not to take industrial action and the Magistrate I think fined the union even though the evidence was seen to be uncontested and it's found its way through the Federal Court and it's been remitted back. It's been to two hearings of the Federal Court and is now remitted back to the Industrial Magistrate. If we had been out to Dandenong and told our people that we might have had different submissions. The submissions of us was we were to part of Union Solidarity. We had no notice that this was happening.

PN209

So if our members were acting in say a criminal issue, if somebody is on a picket line and beating up trucks, we're not representing members in those sort of circumstances so just how far - our representation goes to industrial issues, genuine industrial issues. I think it's a very difficult question to put a response to. That's all I wanted to say.

PN210

COMMISSIONER LEWIN: What do you say to Mr Ousley's evidence?

PN211

MR DWYER: Well, we weren't there.

PN212

COMMISSIONER LEWIN: Was it contested? He gave evidence that almost half the workforce didn't attend for work.

PN213

MR DWYER: That was in June.

PN214

COMMISSIONER LEWIN: So you're saying paragraph 68 relates to June?

PN215

MR DWYER: I've had to check that.

PN216

COMMISSIONER LEWIN: His statement.

PN217

MR DWYER: In June, I think that statement relates to June, a lot of the workforce didn't cross the picket line in June. In my submissions I've put it to you there, I've referred to it in my submissions - - -

PN218

COMMISSIONER LEWIN: Yes, you're right. So Mr Ousley did not give any evidence about the attendance of employees in this - - -

PN219

MR DWYER: In cross-examination I asked him were any CEPU people on the picket line and he said no and my submissions which were uncontested was that everybody turned up at work that night, apart from the drivers who couldn't cross the line. But all the other employees had.

PN220

COMMISSIONER LEWIN: Right. So everybody at the DLC attended for work who were scheduled to attend for work, apart from the usual sick leave and
et cetera?

PN221

MR DWYER: Yes.

PN222

COMMISSIONER LEWIN: So the situation was quite different to the situation in June?

PN223

MR DWYER: Far different. So all that happened in September was the trucks were not allowed to cross the picket line by the Union Solidarity group.

PN224

COMMISSIONER LEWIN: All right.

PN225

MR DWYER: I'm sorry for that confusion. I do make in the transcript and you'll see that I objected to that evidence as basically running what's called similar fact evidence just because it happened in June in relation to one - a different type of dispute in June as I understand it. This was a dispute over something else.

PN226

COMMISSIONER LEWIN: What was the nature of dispute in June?

PN227

MR DWYER: I understand it was something to do with shift work or shift change. This was in September related, as I understand it, disciplinary action was taken against named delegates or various people.

PN228

COMMISSIONER LEWIN: About the June matter?

PN229

MR DWYER: About the June matter and reading Mr Terrence' statement, if that's a correct transcript of what he said, it appears that the September action was about disciplinary action which was resolved one or two days after the hearing. In fact you'll see in the transcript on the 25th it had been resolved by 25 September. I make mention of that in my submissions.

PN230

SENIOR DEPUTY PRESIDENT HARRISON: What we propose to do is just adjourn for a short time. I should indicate that is principally to discuss whether there's any further questions we have that arise out of this draft, Mr O'Grady, which I know of course comes up in the context of us, if we're against you on the competence and the leave issue, it will come up in that. But it does raise an issue, a dynamic in relation to it being probably arguable that the order should not be so extended but there being no-one here agitating on behalf of those persons.

PN231

MR O'GRADY: Yes, your Honour.

PN232

SENIOR DEPUTY PRESIDENT HARRISON: And what then occurs in this possible scenario if the appeal is not competent but this Full Bench is aware when you have aware when you have indicated I think quite properly there is a breadth of an order that still has four weeks to go.

PN233

MR O'GRADY: Yes, your Honour.

PN234

SENIOR DEPUTY PRESIDENT HARRISON: So what we should indicate is we'll either come back again just to discuss that particular issue or we will then just adjourn reserving our decision. One way or the other my associate will let you know.

PN235

MR O'GRADY: Yes, thank you, your Honour.

PN236

SENIOR DEPUTY PRESIDENT HARRISON: The Commission now adjourns.

<NO FURTHER PROCEEDINGS RECORDED

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SUBMISSIONS OF THE CEPU PN25