RE2010/3826, Transcript of Proceedings [2011] FWATrans 453 (6 May 2011)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 47857-1

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

RE2010/3826

s.508 - Application to restrict rights if organisation or official has misused permit rights

Application/Notification by Fair Work Australia
(RE2010/3826)





Adelaide

10.05AM, WEDNESDAY, 27 APRIL 2011

Continued from 23/12/2010

PN331

THE SENIOR DEPUTY PRESIDENT: Good morning. Are there any changes in appearances?

PN332

MR T. STANLEY: No sir.

PN333

THE SENIOR DEPUTY PRESIDENT: Very good. The parties have provided a great deal of material to me over the last couple of months. I’m not going to go through and try to summarise all of that material. I’ll work on the basis that you’ve exchanged that information with each other and if per chance that there’s something I’ve got that one of you don’t have, that will come out in the course of the next couple of days. The only other preliminary issue that I want to raise is that I think my associates foreshadowed to the parties that I’m in some strife on Friday of this week. So that we’ll be able to proceed today and tomorrow, but then we’ll go into next week.

PN334

Mr Stanley, because of the length of time since the matter was last before me, on the last occasion that the matter was before me I recommended to the parties that they explore the possibility of a form of settlement. If I understand the Baiada position correctly, it is to the effect that Fair Work Australia should act of its own motion to limit or restrict the rights of the NUW to enter the Baiada premises and that that action should be taken on the basis of either the actions of the NUW in September, October and November of last year, or on the basis of a further inquiry that Fair Work Australia may conduct founded on those earlier actions. If I understand the actions in summary form, Baiada say that the NUW set about to insist upon Baiada agreeing to some form of membership arrangement which would be contrary to the provisions of the Act and that in pursuit of that objective the NUW initiated a number of actions which individually and collectively represent conduct inappropriate under the terms of the Act. Is that a fair summary?

PN335

MR STANLEY: Well it is in large part.

PN336

THE SENIOR DEPUTY PRESIDENT: Where have I failed?

PN337

MR STANLEY: Well, I suppose it’s just in the starting point. It’s obviously a matter for the tribunal’s discretion as to what action, if any, it should take if it’s satisfied that the matters prescribed by section 508 have been satisfied. We wouldn’t want the tribunal to operate under the misapprehension, however, that all that the company seeks is the restriction of rights of entry in relation to the company itself. In our submission it is open to Fair Work Australia if it’s satisfied that the matters prescribed by section 508 have been established that it could, if it considers it appropriate, take action in relation to the rights of entry of the union, or particular officials of the union, that are broader than just the exercise of rights of entry, vis-a-vis my client. But otherwise what you’re putting to me sets out the position, yes.

PN338

THE SENIOR DEPUTY PRESIDENT: So reasonably high stakes in terms of the exercise, Mr Stanley. Is that a fair summary?

PN339

MR STANLEY: We wouldn’t resile from that proposition.

PN340

THE SENIOR DEPUTY PRESIDENT: And I take it that the possibility of settlement has been explored, but to no avail?

PN341

MR STANLEY: I should say that the possibility of settlement has been touched upon. Certainly it’s been to no avail thus far. I can’t say that it’s impossible that the matter would settle, but there’s no obvious path to settlement that’s apparent to me at the moment.

PN342

THE SENIOR DEPUTY PRESIDENT: Yes. Is there any capacity that has been explored so far for a settlement that might extend to some form of documented understanding about the exercise of future rights of entry on the part of the NUW with respect to Baiada?

PN343

MR STANLEY: Well that hasn’t been explored.

PN344

THE SENIOR DEPUTY PRESIDENT: Yes, alright. Thank you. Mr Rozen, just in terms of completing my understanding of the task that I think we’re about to embark upon, my understanding of the union position is that whilst it admits certain behaviours by officials, it disputes that any of those behaviours are such that Fair Work Australia should act of its own motion on the basis of the events of September, October and November last year, or that it should initiate any further inquiry pursuant to section 508, and that to the extent that some of those actions may have been initiated as a result of what I understand the NUW are saying was in effect an invitation from the national human resource manager of Baiada to go forth and identify issues, then you say that those actions were appropriate? Is that a fair summary?

PN345

MR P. ROZEN: That is a fair summary of our position.

PN346

THE SENIOR DEPUTY PRESIDENT: And what do you say to me about the possibility of settlement?

PN347

MR ROZEN: I would never rule out the possibility of settlement, sir.

PN348

THE SENIOR DEPUTY PRESIDENT: Again it’s a fairly high stake exercise that you’re both about to embark on.

PN349

MR ROZEN: It is a high stake exercise and that leads me to raise what from my client’s perspective is an important preliminary threshold issue that your Honour ought determine before the entering into the evidence. I’ve taken the liberty, sir, of preparing a brief outline of setting out that argument in relation to the preliminary point. Perhaps I can hand that up to you, sir. I’ve raised this with my learned friend, but I understand there is no opposition to Fair Work Australia proceeding in accordance with the argument as outlined in this submission. Before taking you to it, sir, if I can summarise the point. It picks up on something your Honour has said previously at one of the hearings in relation to the application for a summons for documents. That is that there is a threshold question, and it’s this. Whether Fair Work Australia is minded to act of its own initiative pursuant to section 508(3)(a), I think it is, of the Fair Work Act.

PN350

As we understand the position, sir, that determination has not been made to date. Certainly that’s the common understanding of the parties.

PN351

THE SENIOR DEPUTY PRESIDENT: That’s my understanding.

PN352

MR ROZEN: That’s your understanding, so that makes three of us.

PN353

THE SENIOR DEPUTY PRESIDENT: Unless someone has made a decision without me knowing about it.

PN354

MR ROZEN: It’s unlikely, sir, and would be most irregular if I may say so. We say for a number of reasons that ought to be made now. We are concerned, with respect, with what your Honour said to my learned friend about the nature of the case which my clients are facing. I tried to write it down as accurately as I could.

PN355

THE SENIOR DEPUTY PRESIDENT: Don’t ask me to repeat it because I’d not want it written down either.

PN356

MR ROZEN: I won’t, sir, but it was said by your Honour to my learned friend that the case that Baiada make is that there have been actions engaged in by the union which amounted to conduct that was inappropriate under the Act. And forgive me if I haven’t accurately transcribed what your Honour said. My learned friend embraced that as an accurate summary of the case, and given the evidence that’s been filed it’s not surprising that he does so. The difficulty that that raises is that that type of inquiry is not envisaged by section 508 for the Fair Work Act. Section 508 is quite specific. I’ve taken the liberty of setting it out at paragraph 6 of the outline, sir. It is in our submission important as always when acting under a statutory provision, particularly one which hasn’t been activated to date as we understand it by Fair Work Australia. I may be wrong there.

PN357

THE SENIOR DEPUTY PRESIDENT: No, you’re in new territory.

PN358

MR ROZEN: Our researches haven’t indicated there’ve been any cases under 508.

PN359

THE SENIOR DEPUTY PRESIDENT: I should rephrase that. We’re collectively in new territory.

PN360

MR ROZEN: We are, sir. And it’s obviously important we all head in the right direction in the new territory. We have previously stated our position to be this, sir, and I’ll repeat it. This is a 507 application by Baiada dressed up as an invitation for Fair Work Australia to conduct an inquiry under 508. 507 enables an employer as a prescribed person under the regulations to make an application to Fair Work Australia seeking remedies that are set out in subsection (1). It’s immediately obvious, sir, that when one examines the remedies that are available under 507 they are nothing like the range of remedies that are available under 508. 508 is clearly the big stick in terms of the orders that Fair Work Australia can make in relation to the permit holder.

PN361

For example, sir, if I can just take one example, 508(2)(e) empowers Fair Work Australia to ban for a specified period, but not an unlimited period, the issue of entry permits in relation to the organisation either generally or to specified persons. So it’s open under 508, it would appear, for Fair Work Australia to ban for an unlimited period the NUW having entry permits issued to it. The bread and butter, if you like, of the existence of the union could be potentially significantly undermined by such an order. Now, we don’t say for a moment that such an order is open on this material, and we don’t Baiada to be seeking such an order. The point however, sir, is that the range of orders that are available to Fair Work Australia under 508 far exceed anything that would be available were this an application under 507.

PN362

Baiada has for whatever reason not made an application under 507, nor have they notified a dispute under 505 which is the other alternative mechanism that might have been available to them. They have sought to enliven the jurisdiction of Fair Work Australia essentially to - - -

PN363

THE SENIOR DEPUTY PRESIDENT: I thought there was a matter before Commissioner Hampton.

PN364

MR ROZEN: Under 505?

PN365

THE SENIOR DEPUTY PRESIDENT: I’m not sure what section.

PN366

MR ROZEN: I think there was. As I understand the position, it was brought on either the 18th or 19 October. I think it might have been lodged on the 18th which was the first day of the two day period of entry by Messrs Snelson and Pearce, and it was heard on the 19th and I think resolved. It was a related matter. There was a concern that in addition to their entry there were other notifications, I think five other people wanted to visit the premises. And it was resolved on the basis that there would be only three or two. Mr Portelli, I think, was more involved and he’s nodding, so I think I’ve pretty well got that right. But other than that, there have been no applications under 505 or 507. They’ve brought it under 508. Now, we don’t say they can’t.

PN367

There would seem to be nothing in the Act that would prevent an employer choosing the 508 route instead of pursuing it under 505 or 507. The big difference, of course, is that you sir have to be satisfied that this is an appropriate matter for Fair Work Australia to take on. We say that the appropriate course for you to follow is for you to determine at this time what evidence that is before you is relevant to a determination under 508. I say that because the key provision in 508 is subsection (1). It says:

PN368

Fair Work Australia may restrict the rights that are exercisable under this part –

PN369
PN370

That is part 3-4 of the Act:

PN371

-by an organisation or officials of an organisation if Fair Work Australia is satisfied that the organisation or an official of the organisation has misused those rights.

PN372

So the starting point must be, sir, a finding that there has been a misuse of right conferred by part 3-4 by either the NUW in this case, or by officials of the NUW. Now, when Mr Roberts met with Ms Takla and Mr Donnelly, there’s no suggestion that there was any exercise of rights by either Mr Donnelly or Mr Roberts that were conferred by 3-4. They are both permit holders. There’s no dispute about that. But when you have a meeting with an industrial relations manager you’re not exercising rights of entry, obviously enough, pursuant to part 3-4. So whatever happens, who said what to whom – and there’s obviously a pretty fiery dispute as between them - that ultimately you may have to resolve but we say you don’t because on any view of that material that’s not the exercise of rights under part 3-4.

Therefore it’s not your concern under section 508. We say that’s a pretty straight forward proposition, with respect, that you are not permitted under 508 to conduct some sort of roving inquiry into the activities of the union to determine whether or not it has acted in a manner that is, to use your words sir, “inappropriate under the Act”. And that’s essentially what Baiada are saying. They’re saying look, there’s a major industrial relations blew between the NUW and Baiada, and the NUW have played dirty, they’re not playing by the rules and we want you to do something about it, we want you to make some orders to punish them. And they say you can do that pursuant to section 508. We say you can’t. You are limited in relation to any inquiry under 508, and that’s what it is.

PN373

If you were to conduct an inquiry under 508 you are limited to identifying the misuse of rights conferred by part 3-4, by either the union or officials of the union. So an inquiry needs - - -

PN374

THE SENIOR DEPUTY PRESIDENT: Can I just interrupt you for a moment, Mr Rozen, just to clarify what you’re saying. Am I correct in understanding that you would be suggesting that there could in effect be three outcomes from this preliminary issue that you’re raising? One is that I could adopt the view that you urge upon me, and that is to say simply on the basis of the information currently before me and without any further evidence or confirmation of that information, I could conclude that the threshold for action pursuant to section 508 has not been met and declined to take any further action as Fair Work Australia. The second would be to say that I was not able to reach that conclusion without giving the parties the opportunity to expand upon the evidence that has been put to me in affidavit form to date.

PN375

But having done so, I might then reach a conclusion which fell into that first category. The third would be to say based on that evidence a conclusion might be reached so as to enable some form of action to be taken pursuant to subsection (2) of 508, or alternatively it might be the case that having heard any material the parties want to put to me I might conclude that some further inquiry might be necessary. But what you’re entering is that first issue be determined initially.

PN376

MR ROZEN: We are. If I could be so bold as to suggest a fourth alternative, and maybe I should cut to the chase. If your Honour goes to the fourth page of the outline - - -

PN377

THE SENIOR DEPUTY PRESIDENT: I’ve just done that, yes.

PN378

MR ROZEN: Yes. Paragraph 14.

PN379

THE SENIOR DEPUTY PRESIDENT: I merely started there and worked backwards.

PN380

MR ROZEN: Yes, we usually get it right. Paragraph 14 sets out what we say ought to occur at this juncture and there is a preliminary step in paragraph 14, and that is as a matter of fairness to Baiada we say that it’s appropriate for the determination of this threshold issue to be on the basis of accepting their case at its highest, but limiting any consideration to matters that are relevant to an inquiry under 508. And if I could summarise that. We say that really what this case is about is the filming of the work process. We accept that the filming occurred in the context of the exercise of rights of entry under part 3-4, and we accept that a finding by you ultimately that the filming was in some way a misuse of rights.

PN381

We say it wasn’t, but we accept that if you were to determine that it was a misuse of rights then that would enliven the jurisdiction to consider the sanctions in subsection (2) of 508. So we say what your Honour ought to do is accept the evidence of Mr Hu, Mr Markou, and Ms Smith as to Mr Snelson and Ms Pearce being told they weren’t allowed to film or photograph, although there are considerable differences in that evidence, but even putting that to one side accept that they were told that at some stage by someone. Mr Hu says he did it, Mr Markou says he did it, but even working through that, accept that that occurred, they filmed nonetheless. Is that enough to justify the conduct of an inquiry under 508 having regard to 508(4), which sets out examples of what is meant by misuse.

PN382

Because misuse, of course, only appears in 508. We don’t see misuse in the other provisions that enable the Fair Work Australia to make orders in relation to permits. You can cancel the permit, of course, under 510, or you must cancel a permit without a finding of misuse. And you can suspend or cancel permits under 505 and under 507 without a finding of misuse. What sets 508 apart is that there is that necessary finding of misuse, and misuse of course is an ordinary English word. It’s not defined in the Act, but we all get considerable assistance from 508(4) as to what misuse means in this context. And 508(4) gives examples, or what are said to be examples, in the following terms:

PN383

An official misuses rights exercisable under this part if the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing, or otherwise harassing an occupier or employer, or (b) in exercising a right under subdivision (b) of division 2-

PN384

Which doesn’t seem to apply in this case.

PN385

The official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive.

PN386

And then it goes on. So this is really a case that falls within the ballpark of paragraph (a), in our submission, and even on their case at its highest it doesn’t get close to a case of repeated exercise of rights with the intention or effect of harassing, disrupting, and so on. It’s not that case. At its worst it’s a case of a failure to follow a direction not to film and therefore it doesn’t enliven, we say even at its highest, the jurisdiction under section 508. So we say that the appropriate determination at this juncture is not to proceed, not to act on Fair Work Australia’s own motion under 508. We have an alternative position, and this is the fourth alternative and additional to the three that your Honour has outlined, or maybe it’s a variation.

PN387

THE SENIOR DEPUTY PRESIDENT: I think it’s probably more a variation.

PN388

MR ROZEN: Of option two. And that is to regularise the position so that everyone, Fair Work Australia and the parties, understands where we’re actually headed given that we are venturing into new territory. If Fair Work Australia is going to take it on, then we say as a matter of fairness there ought to be a degree at least of transparency as to what it is that’s been inquired into. And I’ll take one simple example. Is Mr Roberts’ permit at risk in this inquiry? Now, we don’t know that. We don’t know whether if there is to be an inquiry here it extends to the conduct of Mr Roberts in the sense of putting his permit at risk. Or if there is to be an inquiry, is Fair Work Australia going to examine the discussions between Mr Roberts, Mr Donnelly and Ms Takla, and how is that related to the exercise of rights under part 3-4?

PN389

In other words, we need to know, sir, whether what Fair Work Australia is going to do is essentially take the handball and run with it, or does Fair Work Australia take on some of the material that’s been filed by Baiada and say well that’s a legitimate area for examination, the filming for example, or what? And the difficulty we’re in is that we’re in a sense boxing at shadows until we know what it is that is under examination. What’s the scope of the inquiry, who are the individuals whose conduct are being examined in the inquiry, and what are the issues essentially that are on the table. And in the absence of that we can go for days examining, and cross examining, and having heated and lengthy submissions about who should be believed in relation to this conversation, or that conversation.

PN390

Those matters are going to have to be determined at some point. Even if you don’t determine them now, we will object to a lot of the material that the applicants have filed being accepted into evidence on the basis that it’s not relevant. So there is no, in our submission, there is no time lost in it being done now and, if anything, by focusing the inquiry if there is to be one it will enable the matter to be dealt with efficiently and fairly both to the parties, which of course are obligations that Fair Work Australia has under the Act. So we rely on what’s in the outline. I haven’t gone through all of it, but we do submit that this is an appropriate matter to be determined as a threshold question and we don’t understand there to be any objection from Baiada as to that broad proposition.

PN391

THE SENIOR DEPUTY PRESIDENT: The outline you provided to me indicates that you might have had a busy day yesterday, Mr Rozen. But when was it provided to Mr Stanley?

PN392

MR ROZEN: I think it’s just been provided to Mr Stanley now and I apologise for that. And I should add, sir, that this is I think another thing that we agree on, this is ideally something that could have been dealt with or should have been dealt with at a directions hearing in advance of today. But we have alerted Baiada some weeks ago in correspondence - - -

PN393

THE SENIOR DEPUTY PRESIDENT: There is no great surprise in what you’re putting to me.

PN394

MR ROZEN: I wouldn’t have thought so given what has previously fallen from your Honour in the course of the hearing. But to the extent that there is inconvenience to witnesses by the approach that we are proposing, then that’s obviously regretted, but we are where we are. And I raise this matter certainly not to be difficult, but because in our submission it is a legitimate threshold issue that needs to be determined.

PN395

THE SENIOR DEPUTY PRESIDENT: I am shortly going to ask Mr Stanley whether he wants a few minutes to consider his position and possibly obtain some instructions. But before I do that, I asked Mr Stanley and yourself earlier about the possibility of some form of negotiated settlement. Can I just clarify whether or not you have instructions that might allow that such a settlement to be reached today, or whether or not you could obtain them at very short notice? I have in mind that if Mr Stanley wants to take a brief adjournment we’ll make it a double-headed challenge, and that is to see whether the parties can have one last shot at trying to read some form of agreement about behaviour going forward and if that’s not possible, to give Mr Stanley the opportunity to obtain instructions relative to the points that you raised.

PN396

MR ROZEN: I’d appreciate an opportunity to take some instructions in relation to that matter, that is whether some sort of code of conduct or something for future might be - - -

PN397

THE SENIOR DEPUTY PRESIDENT: It’s a simple fact that most unions and most employers are able to work out these sort of arrangements without having to – don’t take offense at this – spend quite so much money on lawyers.

PN398

MR ROZEN: One would hope so.

PN399

THE SENIOR DEPUTY PRESIDENT: Well, depending on your perspective, Mr Rozen.

PN400

MR ROZEN: Perhaps regardless of every perspective, your Honour, but I know what you’re saying.

PN401

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN402

MR ROZEN: Thank you, sir.

PN403

THE SENIOR DEPUTY PRESIDENT: Mr Stanley, I have in mind giving you a period of time to ponder upon that double-headed challenge that I talked about.

PN404

MR STANLEY: Yes, your Honour.

PN405

THE SENIOR DEPUTY PRESIDENT: Would that be appropriate?

PN406

MR STANLEY: Yes, your Honour.

PN407

THE SENIOR DEPUTY PRESIDENT: How long do you think you might need? Half an hour?

PN408

MR STANLEY: Half an hour, yes.

PN409

THE SENIOR DEPUTY PRESIDENT: I’ll adjourn the matter for half an hour. If you need longer then bear in mind I am inclined to giving you slightly longer if you’re dealing still with that first part of the challenge.

PN410

MR STANLEY: Yes, your Honour.

PN411

THE SENIOR DEPUTY PRESIDENT: I will leave that with you.

PN412

MR STANLEY: Thank you, your Honour.

<SHORT ADJOURNMENT [10.35AM]
<RESUMED [11.27AM]

PN413

THE SENIOR DEPUTY PRESIDENT: Mr Stanley.

PN414

MR STANLEY: Thank you, your Honour. Unfortunately the parties haven’t been able to resolve the matter. So I’d just say that option won’t be foreclosed forever, but at this stage there is no obvious path apparent to the parties by which the matter can be resolved. In those circumstances we feel that there is no alternative other than to proceed. Can I then turn to the submissions been put on behalf of the union by my learned friend. The position of the company is that there is a prima facie case established on the documentary material that has been filed on behalf of the company sufficient to satisfy Fair Work Australia that it should take action under section 508(1) on its own initiative.

PN415

The precondition for doing so is that Fair Work Australia is satisfied that a prima facie case exists that the organisation, or an official of the organisation, has misused the rights conferred on the organisation and on its officials under part 3-4. The scope of the power conferred upon Fair Work Australia pursuant to section 508 as to the jurisdictional facts which will invoke a decision by Fair Work Australia in the exercise of its discretion to undertake an inquiry in to whether it should restrict rights exercisable under part 3-4 is not informed by a consideration of the action that Fair Work Australia may take pursuant to subsection (2) if it is satisfied that there has been a misuse of rights.

PN416

The only consideration embarking upon the inquiry which is relevant is, is there material before Fair Work Australia which his sufficient to satisfy the tribunal that it is appropriate to undertake an inquiry as to whether or not there has been a misuse of the rights exercisable under part 3-4 by an organisation or officials of an organisation. Now, in that context I am really looking for some guidance, I suppose, from you, your Honour, as to whether in addressing this preliminary point you require me to apply formally to tender the various witness statements that have been filed, or whether we can just proceed on the basis that the tribunal is apprised that - - -

PN417

THE SENIOR DEPUTY PRESIDENT: I’m happy to go down that latter course.

PN418

MR STANLEY: Yes. So we just proceed on the basis that the tribunal’s apprised of the matters set out in those materials.

PN419

THE SENIOR DEPUTY PRESIDENT: You should work from the premise that I make no assumptions about the accuracy necessarily of that material, particularly where, as Mr Rozen pointed out, the material is in dispute.

PN420

MR STANLEY: Yes. I might say some of it isn’t in dispute, but some of it clearly is in dispute and there is a vigorous contest between the parties to certain events. Now, the tribunal in my submission must be satisfied merely that there is sufficient material before the tribunal which satisfies it that it’s appropriate for the tribunal to embark upon an inquiry and to hear evidence to determine whether or not there has been a misuse of rights by either the organisation and/or its officials which are exercisable under part 3-4. And if that threshold issue is answered in the affirmative, then the inquiry should proceed. If it’s answered in the negative, well then we accept that the order that is sought in paragraph 14 my learned friend’s outline follows.

PN421

If the question is answered, or the issue is answered, in the affirmative, then the matters that arise under paragraph 15 of the union’s outline then need to be addressed. And in our submission the tribunal should proceed to conduct an inquiry into all the matters that are canvassed in the materials filed in Fair Work Australia by the company save and except the affidavit of Rosanna Beard which, as the tribunal might recall, touches upon events in Western Australia. And in light of your Honour’s intimation in your earlier ruling in relation to the production of documents, we don’t press those matters. We say the scope of the inquiry necessarily must be as broad as the matters averted to in the material that has been filed, save and except the Beard affidavit.

PN422

In particular we say it is necessary for the tribunals to proceed to inquire into the events of 8 September, and in particular the meeting between Ms Takler and Mr Donnelly and Mr Roberts. We say that that meeting is relevant to the inquiry pursuant to section 508 as to whether or not there has been a misuse of rights. We say it is necessary because in order to determine whether there has been a misuse of rights it is important for the tribunal to inquire into the purpose for which rights were being exercised because, in our submission, it is opened to Fair Work Australia to conclude that there has been a misuse of rights if the motivation for the exercise of those rights is not legitimate, but rather is being pursued for an arterial purpose which is disclosed by the contents of the meeting between Ms Takler, Mr Roberts and Mr Donnelly on 8 September last year.

PN423

Likewise, we would submit that evidence to the conversation between Mr Hu, Mr Roberts and Mr Garland in August of last year is relevant for the same reason. And further we would submit that the circumstances by which the application was made to Commissioner Hampton for orders pursuant to section 483(aa) and for a certificate pursuant to section 519 is relevant to the exercise of the rights pursuant to part 3-4 in October of last year. So that the inquiry is not confined merely to a consideration of the events surrounding the coming onto the premises pursuant to the exercise of entry rights, but must include where relevant events extraneous to the actual exercise of the rights which will inform a consideration of whether or not those rights have been exercised in a way which constitutes misuse as that determines to be understood in the context of section 508.

PN424

Now, in that regard I should just take a moment to address the argument that’s being put on behalf of the union by my learned friend based on the terms of subsection (4) of section 508. That argument, in our submission, should not be adopted. It involves a far too narrow and restrictive construction of subsection (4). The reference in subsection (1) to the misuse of rights is not a term of art and the categories of misuse are not closed or confined by the terms of subsection (4). Subsection (4) merely affords examples of misuse of those rights and it goes no further than that. It does not govern the definition of the term and the tribunal, in our submission, would be misled were it to adopt the – would be led into error, rather, should it adopt the submission put based on that narrow construction of section 508(4).

PN425

THE SENIOR DEPUTY PRESIDENT: Notwithstanding that, do you say that any of what you describe as the examples in subsection (4) are relevant to this circumstance?

PN426

MR STANLEY: Yes. We say both (a) and (b) apply here.

PN427

THE SENIOR DEPUTY PRESIDENT: And in that regard which official are you referring to, or officials?

PN428

MR STANLEY: We are referring to Mr Snelson, Ms Pearce and Mr Roberts.

PN429

THE SENIOR DEPUTY PRESIDENT: And are those three officials the only three officials who you say should be considered in the context of any inquiry pursuant to 508?

PN430

MR STANLEY: At the moment, but we wouldn’t want to be bound by that, your Honour. The difficultly is this. The material that’s been placed before the tribunal by the union discloses two things. Firstly that Mr Snelson, supported by Ms Pearce, asserts that he took the film. The suggestion appears to be that he took it at the direction of somebody else. And that having taken the film he provided the film to somebody else within the organisation and whatever happened with the film was a result of actions taken by somebody else. So that it appears that the decision to take the film was not a decision made by him, but by somebody else in the organisation other than Ms Pearce. And the decision as to how to use the film was a decision made by somebody else in the organisation.

PN431

Now, there is at least an inference that can be drawn from the witness statement of Mr Roberts, or one of the witness statements of Mr Roberts, that he might have been the official in the organisation who made those decisions. But that’s not entirely clear and the inquiry should not necessarily be confined to the actions of those three officials, but at the moment they’re the only three officials in respect of whom there is evidence of their involvement in these matters. But the inquiry as it proceeds, and if it proceeds, may disclose further information which could implicate other officials. But at the moment my client’s position is that it’s the actions of those three officials which should be the subject of scrutiny and consideration, but that we would not wish to be understood as suggesting that it necessarily is limited to the actions of those three.

PN432

The position is in short this. It would be an entirely artificial exercise and not one that is required by the terms of section 508 for the tribunal in undertaking the inquiry contemplated by subsection (3) to confine itself to a consideration merely of the events surrounding the actual exercise of the rights of entry. If other events might be relevant to the issue of whether or not those rights have been misused. We apprehend from a consideration of the witness statements of both Mr Snelson and Ms Pearce that they in a sense adopted the Nuremberg defence, that they were just following orders and doing what they were told to do. And in those circumstances, if the tribunal confined the scope of its inquiry to a consideration of those matters, it would be hampered in fulfilling its statutory obligation by the selfing position of blinkers which might conceal from the tribunal the true purposes that underpin the exercise of the rights of entry in a way which the company submits constitutes a relevant misuse of those rights within the meaning of section 508. Unless there’s anything, may it please.

PN433

THE SENIOR DEPUTY PRESIDENT: Well there is, Mr Stanley. Are you going to address me specifically in terms of Mr Rozen’s paragraph 15? Or you’ve covered that issue? I understand your position in terms of paragraph 14, but I’m not altogether clear about it in relation to paragraph 15.

PN434

MR STANLEY: Well, your Honour, it’s this. I suppose we would submit this. There are two ways in which the tribunal might proceed with this matter. The first is, I suppose, analogist to an appeal to the Full Bench of the tribunal which would be subject to permission and the satisfaction of a public interest test. And it’s not uncommon procedurally that a Full Bench might hear the actual argument on the appeal before determining the question of whether or not permission should be granted. By way of analogy, we would submit that it’s at least open to the tribunal to hear all the evidence and then at the conclusion of the evidence to determine what the scope of the inquiry should be.

PN435

But we agree that the preferable course is that proposed by the union that at this juncture the tribunal should determine what is the scope of the inquiry and in that regard it’s our submission that the scope of the inquiry ought to be broadly the approach that your Honour was outlining to me earlier, namely that the material put before the tribunal by my client traverses events in August, September, October and November of last year that we say are relevant to the exercise and the manner of the exercise of the rights of entry by the union’s officials Mr Snelson and Ms Pearce on 18th and 19 October 2010.

PN436

And that all of those matters ought to be the subject of the scope of the inquiry and that the individuals that are the subject of the inquiry should be those individuals within the union whose role or involvement in those matters is disclosed by the material placed before the tribunal by my client. So that includes Mr Snelson, Ms Pearce, Mr Roberts, Mr Donnelly, Mr Garland, Mr Gunston and Mr Richardson. Their role is properly the subject of the inquiry. And the evidence should be taken into account as the evidence as I’ve identified it. Now, it is a matter ultimately then for the discretion of the tribunal as to what action, if any, should be taken against the organisation or any individual in the light of whatever findings the tribunal should make having conducted its inquiry.

PN437

But we wouldn’t want there to be any mistake that it’s the company’s position that those officials whom I referred to have been implicated in this matter by the material that’s been placed before the tribunal. That is not to say that ultimately that the tribunal would find that each of them has been involved in a misuse of the rights, but if there is evidence before the tribunal that is sufficient for the tribunal to be able to say at this juncture that their actions should form part of the scope of the inquiry that the tribunal is undertaking, then it’s a matter for the tribunal as to what finding that it ultimately makes and what actions it takes in response.

PN438

THE SENIOR DEPUTY PRESIDENT: Does Baiada make any concessions at all about the extent to which employees were underpaid as might be disclosed by the information that the NUW provided to me and I forwarded it on to the employer?

PN439

MR STANLEY: Yes. The company has always accepted, that might be putting it too highly, the company has always said in response to matters raised by the union that it was prepared to investigate whatever allegations the union was prepared to put to it in specific terms concerning underpayments and investigate them. When allegations were made, the company hampered as it was by a lack of specificity about any of the allegations, nonetheless undertook its own inquiries and the company conceded back in October of last year that there had been an underpayment of superannuation contributions which resulted from the transitional arrangements which were rectified and which were in a sum of less than $6000. I don’t just have it to hand the precise figure, but I’ll have it in a moment.

PN440

And those points were rectified back some six months ago. It’s the sum of $5685.71.

PN441

THE SENIOR DEPUTY PRESIDENT: If I took you back to section 508(1) I understand that the issue of the filming of the workplace, and the publication of that film on the NUW website, and the provision of it to the ABC, are specific examples or instances of what is asserted to be a misuse of rights.

PN442

MR STANLEY: Yes.

PN443

THE SENIOR DEPUTY PRESIDENT: Are there any other specific examples that are now pursued?

PN444

MR STANLEY: Yes, your Honour. There is the misuse of information that was gathered by the union pursuant to the exercise of the rights of entry.

PN445

THE SENIOR DEPUTY PRESIDENT: Sorry, you might need to be a little more specific.

PN446

MR STANLEY: The company alleges that the union used the information of employees’ names and addresses to correspond with those employees for the purpose of undertaking organisation activities.

PN447

THE SENIOR DEPUTY PRESIDENT: Yes.

PN448

MR STANLEY: The company also says that the officials of the union used information that they gathered during the course of exercising their rights of entry and talking to employees in an attempt to coerce other employees into supporting union activities. Your Honour may not recall readily, but there’s an affidavit from a Mr Mayur – which is spelt M-a-y-u-r. Mayur Patel, P-a-t-e-l – to the effect that he’d had a conversation with Mr Snelson and Ms Pearce where he’d said certain things to them about his attitude towards the company, the rates of pay and the conditions, and a short time later he was approached by another employee who repeated back to him the contents of that conversation, complaining to him in effect about why he’d said these things.

PN449

So we say there’s been unauthorised use and disclosure of information that’s been obtained through the exercise of entry rights and that that in itself is a breach both of section 504 of the Act and a misuse of rights for the purpose of section 508.

PN450

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Stanley, the other catalyst for an action pursuant to section 508 is an application made by an inspector. Back in January this year we had the ombudsman’s office present and they indicated that some form of inquiry was being conducted. I have no information to indicate that there has been a conclusion in that regard. Do you say there is any conclusion in that respect?

PN451

MR STANLEY: Some aspects of it have been finalised, as I understand it. There is some correspondence from the office of the Fair Work Ombudsman to indicate that they completed their inquiries in relation to allegations concerning breaches of the general protection provisions and found no basis to take any action. But they were still continuing with inquiries relevant to whether or not there had been a contravention of any of the award provisions and that those inquiries were continuing. Those inquiries included auditing of payments made. By letter dated 21 December 2010 to the company the director of complex investigations and innovation with the Fair Work Ombudsman indicated that he anticipated that the investigation of the alleged underpayments and sham arrangements would be completed some time early in 2011, but the company has received no notification yet as to the outcome of those investigations.

PN452

THE SENIOR DEPUTY PRESIDENT: Alright. And finally if I take you back to paragraph 15 I take it that what you’re saying to me is that at this stage the Baiada position is that the application, or the matter, should proceed?

PN453

MR STANLEY: Yes.

PN454

THE SENIOR DEPUTY PRESIDENT: That it’s scope ought not be limited at this point in time. That the individuals that are the subject of the inquiry, whilst they may initially involve Mr Snelson, Ms Pearce and Mr Roberts, may extend beyond that depending on the evidence. And that the evidence in that regard should constitute all of the material before me.

PN455

MR STANLEY: Well, what we’d say is this. We don’t submit that the scope of the inquiry should be unlimited. We accept that the scope of the inquiry must be limited in some way.

PN456

THE SENIOR DEPUTY PRESIDENT: Limited to the extent that it’s a request made pursuant to 508.

PN457

MR STANLEY: Yes. And it should be confined, its scope should be limited to those factual matters that are set out in the material that’s been placed before the tribunal by the company. The individuals subject to the inquiry should be those individuals I referred to earlier, not in the sense that they would all necessarily be the subject of an inquiry as to whether or not orders should be made against them pursuant to section 508, but that their actions would be subject to an inquiry. And the evidence is, as I’ve suggested the evidence that we have placed before that’s been trialled in the tribunal, save and except the affidavit of Ms Beard.

PN458

THE SENIOR DEPUTY PRESIDENT: Subsequent to my decision in relation to the provision of documents, there was some reference to a renewed request for the provision of information pertaining to the ABC. Is that still pressed?

PN459

MR STANLEY: No.

PN460

THE SENIOR DEPUTY PRESIDENT: I see. Alright, thank you.

PN461

MR STANLEY: Thank you.

PN462

THE SENIOR DEPUTY PRESIDENT: Mr Rozen.

PN463

MR ROZEN: Having just spent the last year and a half of my life in the bushfire Royal Commission, it occurs to me that even Royal Commissions are more limited in their scope at the outset than this proposed inquiry it would seem to be. However my learned friend wishes to dress it up ever so eloquently, this is an invitation for the Commission to inquire into the relationship between the NUW and Baiada in an almost unlimited manner. And I don’t say that without a basis for it. If one looks at the affidavit of Ms Takler, if I can invite your Honour to do that. This is the first affidavit of Ms Takler.

PN464

THE SENIOR DEPUTY PRESIDENT: Just bear with me for a moment that I make sure that I find the right document.

PN465

MR ROZEN: It’s dated 17 December 2010. I’ve nearly depleted my paper stocks for its reproduction. The attachments go up to X.

PN466

THE SENIOR DEPUTY PRESIDENT: Yes.

PN467

MR ROZEN: Bearing in mind, your Honour, that the company’s position clearly put this morning by my learned friend is everything in here is relevant. It is set. Ms Takler explains that she is the national industrial relations manager of Baiada and then at page 2 of her affidavit under the heading Dealings with NUW she said she’s had dealings with the NUW since 2001. On the following page under the heading Recent Enterprise Agreement negotiations she tells Fair Work Australia that she has spent the last 12 months involved in negotiations for approximately eight enterprise agreements. I’m reading from paragraph 24, your Honour. Across Victoria, South Australia, New South Wales, Western Australia and Queensland.

PN468

She then goes on at paragraph 27 to record that in June 2010 she received a text message from Mr McGrath, an NUW organiser in Queensland. I won’t go through this in detail because of course you can do that yourself. But the next three pages up to paragraph 47 deal in glorious detail with the negotiation of an enterprise agreement between Baiada and the NUW in relation to some facility in Queensland. And she attaches copies of correspondence that passed between her and Mr McGrath. She complains about the way in which Mr McGrath refers to her. She refers to numerous other officials, Ms Shannahan, Mr Pegg, Mr Travaskas from Western Australia.

PN469

And what you’re told, your Honour, as I understand the company’s position is that’s all relevant. It’s all said to be context that assists you, apparently, in determining whether or not Mr Snelson and Ms Pearce misused their right of entry rights on the 18th and 19 October at a plant in Adelaide. What we say, your Honour, is there must be some limit to an inquiry under section 508. Otherwise if my learned friend’s submission is to be accepted, there is no logical reason why you should confine yourself to the conversation between Ms Takler and Messrs Roberts and Donnelly in September of 2010. Why stop there? Why not examine in detail the relationship between the company and the union to determine whether there were some malefidies associated with the application heard by Commissioner Hampton, and the right of entry effected on the 18th and 19 October 2010?

PN470

There is no logical reason, in my submission, why you would stop at the meeting between Takler, Roberts and Donnelly. You are being invited by the company’s reliance on this affidavit to go beyond that. You are being invited to examine, apparently, the negotiation of an enterprise agreement between Ms Takler and Mr McGrath and Ms Shannahan in Queensland in the first half of 2010. And that is all said to assist you in determining whether or not there was a misuse of rights. Now, we say that that just can’t be right. It can’t be within the scope of an inquiry under section 508. That one goes back in time to examine the relationship between the parties in search for what my learned friend said – I’ll find it if you’ll excuse me a moment – might assist you, might be relevant. That was the phrase my learned friend used. It might be relevant to determining whether or not there was a misuse of right. That’s said to be the test for determining the scope of the inquiry.

PN471

We say that there would be no limit to an inquiry under section 508 if the test was might this evidence be relevant to an understanding of what may be a specific exercise of the right of entry power. There is an alternative that is available to Fair Work Australia in this case if it is minded to embark upon an inquiry under section 508, and we maintain our primary position that it ought not do so. The alternative is to examine those instances which are, on any view, the exercise of rights conferred by part 3-4. That’s what section 508 is concerned with and that’s all it’s concerned with. It’s concerned with the exercise of rights by either officials, or by the union.

PN472

So it’s a simple matter of identifying instances where there has been an exercise of rights conferred by part 3-4 and then determining whether or not there has been a misuse of those rights in light of the evidence led. And evidence about the negotiation of an enterprise agreement in the first half of 2010 in Queensland are not going to assist Fair Work Australia in determining whether there was a misuse of rights by Messrs Pearce and Snelson. It is clear that what is being proposed by the company is a roving inquiry. They say it’s limited only in the first place by the material that they have filed. If material comes to light, then apparently the inquiry accommodates that material and broadens its scope to take it into account.

PN473

That’s, in our submission, a dangerous course to embark upon in circumstances where the material that’s already been filed, in our submission, goes well beyond any legitimate exercise of the powers conferred by 508. In response to my learned friend’s submissions about subsection (4) of section 508, we accept that subsection (4) doesn’t limit the meaning of the word ‘misuse’. We said at the outset that we accept that ‘misuse’ is an ordinary English word and is to be given its ordinary meaning. However, our learned friend’s construction of subsection (4) effectively robs it of any effect. We say that that is contrary to sound principles of statutory construction. It’s there for the reasons that’s the starting point.

PN474

And the reason is that it clearly gives a flavour of the sort of cases which would fall within the description of misuse. And particularly in relation to paragraph (a) of subsection (4) the use of the adverb repeatedly to qualify the verb ‘exercise’ is important. This provision is not concerned with isolated examples of misuse. This provision is clearly concerned with something in the nature of a campaign and there is two parts to it. Repeated exercise of rights with the intention of hindering, obstructing or otherwise harassing the employer. Or alternatively with the effect of those things. So one needs to look at a campaign, in essence, that is clearly being conducted for an improper purpose. That is not for the purpose of either investigating or talking to potential members, but rather of obstructing and hindering the operation of the employer.

PN475

Even at its highest here the company’s evidence doesn’t get within a bull’s roar of that type of case. My learned friend has also said that they rely on paragraph (b), that is that there was an exercise of a right under subdivision (b) of division 2 of part 3-4. We’re not quite sure how that’s caught. Subdivision (b) of division 2 is concerned with entries to hold discussions. We don’t understand, and certainly the documents that were provided at the time entry was effected on the 18th and 19 October 2010 don’t envisage the entry being pursuant to subdivision (b) of division 2. Such discussions as took place were discussions in furtherance of the investigation pursuant to section 482, that is pursuant to subdivision (a) of division 2.

PN476

So I must say we were a little bit surprised that the contrary is now suggested. The real difficulty, your Honour, will be apparent. We have deliberately refrained from responding to the evidence Ms Takler has given about the negotiations in Queensland. We haven’t put on an affidavit by Mr McGrath. We have made the assumption that that material is not relevant. Now, if we’re wrong about that we will clearly have to reconsider our position. And this is the difficultly with a roving inquiry. Is that we are having to try and hit the targets as they’re put up, and that will unduly lengthen the inquiry because, of course, the inquiry must be fair. And it’s the vice that we’ve tried to point to, that unless there’s some limits placed on the inquiry at the outset, then it causes real difficulty to the respondents.

PN477

Just in relation to the last matter that you raised, or two last matters if I can assist briefly. The concession about the superannuation payments, of course, only occurred after the intervention of the union, as I am instructed. And there is also an ongoing consideration of other underpayments, as I understand the position. Finally, in relation to the ombudsman’s inquiry, it is of course significant that there is non application by an inspector pursuant to section 508(3)(b). It’s not as if the office is unaware of the dispute, if I can refer to it in a broad term. They have been investigating now these very issues for months and of course there is no application before Fair Work Australia.

PN478

In relation to whether that investigation is completed, I am instructed that, as has been indicated by my learned friend, it is ongoing, the union has apparently recently been contacted by the ombudsman in furtherance of that investigation. Your Honour, unless there’s anything that I can further assist, they are our submissions on the scope issue.

PN479

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Rozen. I’m going to consider the position of the parties. I will give you an extended luncheon adjournment and resume the matter at 2 o'clock.

<ADJOURNED INDEFINITELY [12.18PM]