B2012/81, Transcript of Proceedings [2013] FWCTrans 36 (29 January 2013)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033484-1

DEPUTY PRESIDENT SMITH

B2012/81

s.437 - Application for a protected action ballot order

Australian Education Union
and
Department of Education and Early Childhood Development
(B2012/81)
Victorian Government Schools Agreement 2008

[AC315128 Print ]]




Melbourne

4.02PM, FRIDAY, 27 APRIL 2012

Reserved for Decision

PN1

THE DEPUTY PRESIDENT: I'll take appearances, please.

PN2

MR B. HENDERSON: If Fair Work Australia pleases, Henderson, Bri, with MS M. PEARCE.

PN3

THE DEPUTY PRESIDENT: Mr Henderson, thank you. Mr Tehan?

PN4

MR M. TEHAN: If your Honour pleases, I seek permission to appear in this matter for the Department of Education.

PN5

THE DEPUTY PRESIDENT: Thank you. Any objection to the application for permission?

PN6

MR HENDERSON: No objection, your Honour.

PN7

THE DEPUTY PRESIDENT: Leave is granted, Mr Tehan. Thank you. Yes, Mr Henderson.

PN8

MR HENDERSON: Your Honour, we make application for a protected action ballot in the terms of the draft order provided with the application. In support of the application, we make these submissions. The application is made under section 437. In accordance with section 437(3), it specifies "the group of employees who are to be balloted:" those employees of the employer presently covered by the Victorian Government Schools Agreement 2008, who are member of the union and who have not appointed another person or entity as their bargaining representative.

PN9

In the course of preparing the roll, the employer will need to notify the AEC of the names of those employees who have nominated another person or entity as their bargaining representative. The identity of these individuals is not known to the AEU. The question to be put to the employees who are to be balloted, including the nature of the proposed industrial action, is in support of reaching an enterprise agreement: do you endorse taking protected industrial action in the form of an unlimited number of statewide or regional or sub-branch stoppages of work of one to 24 hours in duration or bans or limitations on the manner in which work is undertaken? Yes/no?

PN10

(2) the application is made at a time specified by section 438. The group of employees to be covered by the proposed agreements are covered by an enterprise agreement. The nominal expiry date of that agreement, the VGSA 2008, is 31 December 2011. The notice of application has been provided to the employer in accordance with section 440. The employer was provided, by email, with a copy of the application within 24 hours of the application being made. A copy of this email is available to hand up to the tribunal.

PN11

THE DEPUTY PRESIDENT: Thank you.

PN12

MR HENDERSON: The notice of the application has been provided to the Australian Electoral Commission in accordance with section 440. A copy of the application was provided by email to the AEC within 24 hours after the making of the application and a copy of that email is also available.

PN13

THE DEPUTY PRESIDENT: Do you raise any issues with these, Mr Tehan?

PN14

MR TEHAN: No, your Honour.

PN15

THE DEPUTY PRESIDENT: I'll mark the first one from Mr Bun, AEU1.

EXHIBIT #AEU1 EMAIL FROM MR BUN

PN16

THE DEPUTY PRESIDENT: This document, I'll mark AEU2.

EXHIBIT #AEU2 EMAIL

PN17

MR HENDERSON: The applicant has been genuinely trying to reach an agreement with the employer, as required by section 443(1)(b). In a memorandum of understanding made between the parties at the time of making the previous agreement, the parties agreed that negotiations for the next agreement would commence no later than March 2011. The AEU provided the department with a structured statement of its claims in the form of a draft of a new agreement, on 20 December 2010. However, the department did not agree to commence negotiations until 4 August 2011. The department issued the notification of employee bargaining rights under section 173 on 20 June 2011. The parties have met weekly since 4 August 2011 in an attempt to reach agreement.

PN18

The draft order is in the terms required by section 443(3). It contains the name of the applicant for the order. It defines the group of employees to be balloted. It provides for a date for the ballot to close; of 20 working days from the date of the order. It contains the question to be put to the employees and that question includes the nature of the proposed industrial action. Subject to any questions Fair Work Australia may have, those are the submissions of the applicant, your Honour.

PN19

THE DEPUTY PRESIDENT: Thanks, Mr Henderson. Mr Tehan?

PN20

MR TEHAN: If it please the tribunal, there is a preliminary issue which had not previously occurred to me in relation to this matter. That is, the electoral roll. The department has been negotiating with the AEU, the Australian Principals Federation and some individuals in relation to an enterprise agreement or enterprise agreements. It occurs to me that the provision of a list of people proposed to be covered by the AEU agreement would also include people who have already got a default bargaining representative; namely, the Australian Principals Federation. We don't know who they are. Has that issue arisen before in matters before the tribunal, do you know, your Honour?

PN21

THE DEPUTY PRESIDENT: It would normally go to whether or not an application has been made for a scope order.

PN22

MR TEHAN: Yes. There hasn't in this case.

PN23

THE DEPUTY PRESIDENT: No, not to my knowledge.

PN24

MR TEHAN: No, there hasn't. Anyway, that may be something which needs to be taken on notice.

PN25

THE DEPUTY PRESIDENT: Yes. Thank you.

PN26

MR TEHAN: Your Honour, there are two clear issues I wish to make submissions about today to you and then a third matter I wish to draw to your attention. The first submission is that the bans and limitations part of the proposed question is insufficiently particular for the purposes of section 437(1) of the Act. The second submission, your Honour, is that Fair Work Australia should specify that seven working days' notice is to be given of industrial action.

PN27

The final matter, your Honour, I'll deal with at that end, is a matter of completeness; to draw the tribunal's attention to some parallel negotiations, as I've already mentioned to you. Your Honour, I took the liberty of emailing through to Mr Henderson and to your own chambers, some submissions which we wanted to make in this matter.

PN28

THE DEPUTY PRESIDENT: Thank you. I've received those and read them.

PN29

MR TEHAN: Thank you. Should we mark those, your Honour? Is that a convenient course?

PN30

THE DEPUTY PRESIDENT: Yes, of course. I'll mark this DEECD1.

EXHIBIT #DEECD1 RESPONDENT'S SUBMISSIONS

PN31

MR TEHAN: Your Honour, Mr Henderson was in meetings and has not had much of an opportunity to read them, nor would you, your Honour, as well, because they went through only an hour or so ago.

PN32

THE DEPUTY PRESIDENT: That's all right. I have.

PN33

MR TEHAN: Thank you. I'm happy to agree, if Mr Henderson wants some time to look at them or whatever. There's nothing in it though which is surprising to him, I don't think.

PN34

MR HENDERSON: No.

PN35

MR TEHAN: Your Honour, I don't think it's productive for me to go through the submissions in detail, because we really tried to set out in those submissions precisely the point we want to make.

PN36

THE DEPUTY PRESIDENT: Yes.

PN37

MR TEHAN: The order that the union seeks, or the ballot question they seek to argue, is a rolled up question as to which we - the current state of the authorities is that we would not succeed in a submission to you on that point, but it's a rolled up question which has two different elements to it. One is protected industrial action in the form of stoppages of work for various periods, as to which we are not in a position to put a submission to you for reasons that we would not succeed.

PN38

The second element of the question is for approval for bans or limitations on the manner in which work is undertaken. It's no more particular than that. It's possible that it's slightly more confusing because the stem of the question, the unlimited number of statewide or regional or sub-branch words, may qualify the bans or limitations question; so it's possible that you're not to know whether the bans or limitations are statewide or regional or sub-branch.

PN39

Your Honour, the principal authority on this is a full bench authority in United Firefighters Union of Australia v Country Fire Authority. We set out the relevant provision at paragraph 10 of the submissions in that matter. The decision in UFU v CFA has been followed in numerous decisions of the tribunal in its previous form. It essentially requires that the nature of the proposed industrial action be specified so that employees who are voting on the question understand - this is set out in paragraph 10 of our submissions, your Honour, in an underlined passage in the middle of the paragraph -

PN40

what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work and other relevant circumstances.

PN41

Since that decision, your Honour, the legislation has been amended and the word "particular" protected industrial action was inserted into section 437 of the Fair Work Act. This is set out at paragraph 15 of the submission. In our submission, that suggests that a degree of specificity is required in relation to the proposed industrial action, the proposed protection action, even if it were not clear enough from the authority of the UFU decision. We set out paragraphs 16 and 17, your Honour, some authorities which mention the word "particular" and the fact that that is a particular word which describes things or which identifies things with some particularity.

PN42

"Precise" is used in the Qantas decision - Qantas Airways v Christie - a case involving a provision of the former Act; the Industrial Relations Act 1988. We draw attention, your Honour, in paragraph 19, to the explanatory memorandum. Paragraph 1755 of the explanatory memorandum makes clear that the purpose of the division - and this is the whole of this part of the Act, the division of the Act - is to provide an opportunity to vote on certain types of industrial action. We've provided your associate, your Honour, with a copy of that provision.

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR TEHAN: And you'll find that at tab 14 of the list of authorities. It's paragraph 1755 of the explanatory memorandum. Your Honour, at paragraph 22 and following, we set out some of the difficulties which exist with the words "bans or limitations on the manner in which work is undertaken". We say it pretty much reflects what is in the second part of the definition of "industrial action" in the Act. It's no more particular than that. It's limited, in our submission, your Honour, only by your imagination or the imagination of the AEU officials who might be implementing it. It certainly does not enable employees to understand what work would not be undertaken and what work would remain to be done.

PN45

We set out in paragraph 23 a list of bans that might occur. We have no knowledge of what sort of bans might be there. In one sense that's of no relevance to us, your Honour. It's a question of whether employees know what the bans are, because it's they who have to give the informed choice, but certainly from our point of view, we don't have any idea. We set out there some further paragraphs from the UFU v CFA decision, which is at tab 4, noting that the ballot there was a fairly broadly expressed vote on question 5 in that case. Really very relevantly for the present purposes, your Honour, the full bench held at paragraphs 29 and 30 that it was -

PN46

an attempt to adopt a catch-all category of bans on complying with directions from the employer where the effect of the direction is to act in a way contrary to the protected industrial action.

PN47

In one sense, you might say that was a reasonably specific ban as distinct from the ban which presently exists. They make the point that the description was of a general category of unspecified action, as we set out towards the end of our submission at paragraph 25: "In our view," said the full bench, "it is vague and meaningless." We submit to you, your Honour, that this question is similarly vague and meaningless. Without wishing to anticipate a submission in reply from Mr Henderson, with whom I have discussed this matter - - -

PN48

THE DEPUTY PRESIDENT: But knowing it's coming.

PN49

MR TEHAN: Yes. Mr Henderson may seek to rely on John Holland.

PN50

THE DEPUTY PRESIDENT: Yes.

PN51

MR TEHAN: That was another full bench. In our submission, the ballot questions in John Holland were tolerably clear. Stoppages of various durations were proposed, as was a particular kind. If I can use the words of the explanatory memorandum, a certain type of ban; namely, a ban on overtime. It's a well-known ban, a ban on overtime. There was some vagueness in it, your Honour, in the ban, as was submitted by the advocate for John Holland because of some prefatory words; but I think it's reasonable to say that the voting employees knew what the ban was to be when they voted. Here, your Honour, in our submission, employees would not have any idea what the ban is.

PN52

Your Honour, John Holland makes some other comments which are set out in our submissions at paragraph 13. In our submissions, they're not part of the decision. They're obiter decisions; general observations on section 437. The question to be considered was whether or not the ban on overtime was adequately precise. They concluded - the full bench in that case said that it was clear and they did not object to the provision. Having said that, in paragraph 19 in what was an obiter observation, the full bench said:

PN53

All that the section requires is that the questions should describe the
industrial action in such a way that employees are capable of responding to
them.

PN54

In our submission, even on this test the AEU's proposed protected action ballot does not pass muster. The relevant employees faced with the proposed question will have no idea whatsoever about the types of bans or limitations which are proposed. In other words, your Honour, that will render them incapable of responding, to use the words of the full bench in John Holland, in any informed way to the proposed question. It's not an answer, your Honour, to say employees make that choice; you know, they decide whether or not it's adequately descriptive. In our submission, the jurisdictional foundation must be laid. "Particular", to use the words of the Act, or "certain types", to use the words of the explanatory memorandum, "types of action must be proposed", with the degree of detail set out in paragraph 31 of the UFA v CFA decision so that employees understand the implications of the vote.

PN55

Your Honour, we anticipate some questions which might be asked by Mr Henderson. I simply draw your attention to them there where he'll say, "It's not a matter for us, for the employer, even for the tribunal to draft his question. That's a matter for him." We set out our answers to that at paragraphs 32 and 33 of the submissions; namely, errors may occur, potential difficulties may be identified and of course whilst it is a matter for the AEU, if there are errors or difficulties, then the tribunal will be assisted and indeed the employees will be assisted, so that they can make an informed choice and be properly capable of responding to them.

PN56

Your Honour, there have been a couple of decisions which have followed John Holland in a particular way. O'Callaghan SDP, in a decision that I've noted at paragraph 35, found on balance that a protected action ballot seeking approval of an unlimited number of indefinite or periodic bans on specified duties or tasks was a legitimate question. We respectfully submit to you that that decision should not be followed. We would not have thought that it was sufficiently clear. It's not a binding authority on you.

PN57

Watson DP, your Honour, in a case that we've identified at paragraph 37, approved, in our respectful submission, an unusual question at question 8 of the ones that we've set out at paragraph 37 of our submissions, "Indefinite bans on work related to specific events and/or particular customers." It's pretty vague. We would say, however, your Honour, that even that question had meaning for the parties in the proceeding. The reason we say that is that the transcript, which we've provided to you under tab 19, although it's Delphic, does indicate that the parties seem to know what they meant. That saying I've just used, your Honour, it sounds very like Frawley C, with great respect to the late Commissioner.

PN58

Your Honour, at paragraphs 43 through to 45, we make a submission to you that you should follow United Firefighters Union v CFA because of the doctrine that single members of the tribunal should follow full bench authorities. Perhaps before I say that, it might be thought that John Holland criticised UFU, but it did not, nor did it even distinguish it. In fact, your Honour, it didn't even mention it in the decision. It was thoroughly considered in the case and the transcript reveals that, and we've provided the transcript to you under tab 16, if you wanted to look at it. It was seriously argued what was the significance of UFU, but, as I say, the decision itself did not mention it, let alone criticise it or seek to distinguish it. Thus, your Honour, the United Firefighters remains good law.

PN59

I've attached two decisions, your Honour, authorities for the proposition that appellate decisions, full benches, ought be followed. One of them is in the High Court where Sir Ninian Stephen J said in a matter involving a predecessor tribunal, of course, your Honour:

PN60

For single members to adhere to previously established broad principles, leaving it to the appellate tribunal to alter or depart from ... it sees fit on appeal, is clearly the better course and one which the law should encourage in the interests of rational and proper operation of the system.

PN61

Your Honour, in a more recent decision of the predecessor tribunal, Dalrymple Bay Coal Terminal Pty Ltd, a full bench headed by, as he then was, Ross VP and now Ross J, the President of the tribunal, the full bench noted:

PN62

There is not a developed system of stare decisis in this jurisdiction -

PN63

and it sets out the authority, your Honour.

PN64

However, it is clearly desirable for members of the commission sitting alone to adhere to full bench decisions which are relevant to the matter being determined. Such a policy aids consistent decision making which, in turn, provides the parties to commission proceedings with greater certainty.

PN65

Your Honour, I hardly need to make this submission to you, because I'm sure you'll fully accept this, but there's a very old authority called Harvey v Ottoway, where Madden CJ in the Victorian Supreme Court criticised two magistrates who didn't follow precedent. That case is reported at [1915] ArgusLawRp 84; (1915) VLR 520 at 525. Your Honour, it was a matrimonial - - -

PN66

THE DEPUTY PRESIDENT: Yes.

PN67

MR TEHAN: That case.

PN68

THE DEPUTY PRESIDENT: Now you're going back to the Teachers Registration case.

PN69

MR TEHAN: You cited a very similar passage - you and Coldham J - in that case.

PN70

THE DEPUTY PRESIDENT: Yes.

PN71

MR TEHAN: Where you said about - - -

PN72

THE DEPUTY PRESIDENT: Equally as well married, if I remember.

PN73

MR TEHAN: I don't think you and Coldham J were married, but you made a comment in the Teachers Association, "Those who speak last, must be given more than due respect by an inferior tribunal."

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR TEHAN: What Madden CJ said about that case where the magistrates made their own decision, he said:

PN76

It is better to apply the law which is the wisdom of great many, than to act on one's individual impression. There is naturally a disposition in all of us to believe in our own point of view, to think we know best. That is an unwise proposition, though no doubt a very comfortable one.

PN77

Your Honour, you're not just going to follow a whim of your own, of course, I can understand that, but it's just worth pointing that out as - - -

PN78

THE DEPUTY PRESIDENT: Have you included that in your - - -

PN79

MR TEHAN: I haven't included it, your Honour, but as I say - - -

PN80

THE DEPUTY PRESIDENT: (1915) VLR?

PN81

MR TEHAN: [1915] ArgusLawRp 84; (1915) VLR 520.

PN82

THE DEPUTY PRESIDENT: Thank you.

PN83

MR TEHAN: My good colleague obviously deleted it. I wanted to leave it in, your Honour. That really gets to the essence of that point - - -

PN84

THE DEPUTY PRESIDENT: It's amazing how one's career keeps repeating.

PN85

MR TEHAN: It's a long time ago. If you wanted the Teachers Association, it was in 1989, that decision, your Honour, as you probably will remember.

PN86

THE DEPUTY PRESIDENT: Yes.

PN87

MR TEHAN: Print H9116. Your Honour, there may be some questions you have in relation to that submission, but that would finish that part of the submission, if that's convenient.

PN88

THE DEPUTY PRESIDENT: Thank you.

PN89

MR TEHAN: Your Honour, the second principal matter that I wanted to put to you concerns the exceptional circumstances of teacher industrial action and the submission we make that the tribunal should order that seven working days' notice of the industrial action be given to us. That's a power available to you under section 443(5) and you can extend it from the three working days, which is the standard, up to seven working days.

PN90

Your Honour, the well known authority on exceptional circumstances is Lawler VP's decision in CEPU v Australia Post, which we've attached under tab 20 of the folder of documents that we've given to you. It concerns section 463(5) of the Workplace Relations Act, but that's a mirror provision of section 443(5). He set out what exceptional circumstances were, your Honour, in that case, and we've set out that in the submissions - at para 49 of our submissions. As we set out at paragraph 50 of our submission, his Honour then went on to give some specific examples of what would constitute exceptional circumstances. He said this:

PN91

The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant.

PN92

A further example may be afforded by a strike by teachers, where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose.

PN93

Now, your Honour, we submit, as we do at paragraph 51 in detail and the following paragraphs, that the circumstances of this case are exceptional in the way contemplated by Lawler VP. The case involves tens of thousands of teachers in the state of Victoria and I think judicial notice can be taken of that. Threatened statewide stoppages impacting on all families with school-aged children. Plans need to be made, your Honour, for more than 500,000 primary and secondary students who are educated in the state system. The duty of care is high; very high. Parental expectations of proper notice are legitimate.

PN94

It's trite to note, your Honour, that school diaries are worked out with some care during the course of the preceding year so that everybody knows what's required and parents can make plans for children when schools are closed, for example, for a day or two. In our submission, your Honour, these are exceptional circumstances when compared to the ordinary protected industrial action ballot which comes before the tribunal. Notifying parents, your Honour, is one thing. You can notify parents by a note that afternoon that there will be a strike tomorrow or a strike the following day or a strike the day after that, but parents need more time to make arrangements for their children to be looked after. It's not just a case of the school tells them that that has been done and parents then know. The parents need time.

PN95

As we set out in paragraph 52, your Honour, working families may need one parent or the other to apply for leave from their employer or to make alternative care arrangements. Employers of employees may need to put in place their own alternative arrangements. It can't be assumed, your Honour, that parents will have sufficient annual leave to access for that purpose and you can't necessarily assume that employers of parents will be able to suddenly accommodate decreased numbers of staff. It will all take time, but of course they're necessary when the welfare of the students - particularly younger students - is at stake.

PN96

Your Honour, we make the point that these problems are exacerbated by the prospect of statewide strikes, because then there will be even less people available to assist if that were an issue. There are some particular matters coming up during the course of the next few months. Year 12 exams are in mid-June; 10th to the 14th. There's a general achievement test which is part of year 12, as your Honour will be aware, which is scheduled to be given statewide on 14 June. These exams and tests are not supervised by teachers, but many of them will be available for providing advice and support to the students for which they are responsible.

PN97

In our submission, a ban on limitation on that advice may adversely affect students at an important and stressful time in their lives, and particularly impact on possibly their academic results, but also on their welfare. We don't know what the bans will be of course, your Honour. That's one of the points we're making. We've got no idea and we think that's a fundamental problem, but, even if we did know, we'd want to be given plenty of notice so that we can make necessary arrangements. At paragraph 55(b), your Honour, we set out another series of tests or - data collection, sorry. Not tests, data collection, which will be taking place, again which could be the subject of a ban. This is an Australia-wide piece of data collection and, if alternative arrangements have to be made, we need the maximum amount of notice that we can, so that certain plans can be put in place.

PN98

Your Honour, in case it be necessary, we've set out in paragraph 56 a number of examples where it's held that exceptional circumstances justified an extension of bans. The need to safely shut down a power generation machine was earlier this year and we've set out that decision in tab 21. The performance of border protection functions, the operations of prisons and the operation of public transport systems. All those are important, your Honour, and we say that the duty of care for students equally is an exceptional circumstance. The fact that it was raised by Lawler VP, tends to suggest that that's almost commonsense. It's just one of those things that jumps to your mind.

PN99

Your Honour, if you're not minded to agree to that at the present time, I may trepidate - some trepidation to say this: we'd like the opportunity to put on some evidence for you, if that were an issue that you felt you need to hear more evidence other than the submissions I've made from the bar table. There's a reason why we don't have a witness on this issue by today, your Honour. Mr Henderson knows what that is and I don't think he would have any difficulty with that proposition. Maybe that's for him to say.

PN100

There's another matter, your Honour. As I have mentioned to you, the department has been negotiating with another union - the Australian Principals Federation - and some individuals. When the notice of representational rights went out, it was recognised there might be one or more enterprise agreements. The department is negotiating, in parallel with the AEU, with the Australian Principals Federation. It's possible that an agreement could be reached with one or more of those bargaining representatives, in which case a vote might need to go out.

PN101

Your Honour, that's not submitted in terrorem. It has no relevance whatsoever to Mr Henderson's application, but it's put to you in an abundance of candour so that you're aware of the circumstances, Mr Henderson is aware of it, it doesn't (indistinct) in any way; but we draw it to you as a matter of courtesy and preparation.

PN102

THE DEPUTY PRESIDENT: You might think what it means if industrial action is terminated, that very question.

PN103

MR TEHAN: Yes, that's a possibility. Your Honour, if there are no other matters or anything you need to clarify with me - - -

PN104

THE DEPUTY PRESIDENT: Thanks, Mr Tehan. Mr Henderson?

PN105

MR HENDERSON: Mr Tehan anticipated well, your Honour, in terms of the authorities that I would rely on. His assertion that the question is ambiguous and won't allow members to make a clear and informed choice, part 3-3 of the Fair Work Act, Industrial Action, division 9, Protection Action Ballots, states:

PN106

The object of this division is to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.

PN107

Employers argue against the kind of question that we are putting because they say that it does not allow members to know precisely the particular industrial action which is proposed. On the whole, Fair Work Australia has not been sympathetic to this argument, stressing that where precision is required is in the notification of the industrial action to the employer, which is a separate matter, and it is the union's lookout and the union's problem if the action it notifies is not covered by the authorisation gained through the ballot. See (2011) Fair Work Australia 7257, in which O'Callaghan SDP said in para 21:

PN108

The approach taken by FWA and the level of specificity required in a protected action ballot order has, in the main, been based on the premise that the ballot questions are largely the prerogative of the applicant union, but that these questions must enable employees to make a clear choice about whether to authorise or reject a form of action. Fair Work Australia has accepted that the protected action ballot questions may be broadly cast such that they then allow a union, in concert with its members, to decide exactly what form of industrial action might ultimately be taken.

PN109

He goes on to quote the John Holland full bench in its decision (2010) FWAFB 526, which I note that the former President of Fair Work Australia was on that full bench. I also note that Mr Tehan used to instruct the former President when - - -

PN110

THE DEPUTY PRESIDENT: Do I take judicial notice of his learning?

PN111

MR HENDERSON: Well, I was about to say, your Honour, that I'm sure Mr Tehan would agree that he's an eminent authority on all matters industrial. Employers also argue that bundling a series of questions effectively into one prevents the members from choosing between options that they may, for example, support bans but not stoppages, but be forced to vote for both in order to authorise the one they support. In relation to an argument of this sort, the full bench in (2010) FWAFB 526 said:

PN112

The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans, but the question is not meaningless. Seen in its full context, the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of bans.

PN113

Similarly, the AEU members voting in favour of our proposed ballot question will endorse each of the proposed kinds of action. By putting the question in this way, we have raised the bar for our members. Where a member has difficulty with one of the proposed forms of action, they will not be able to support the question. In terms of Mr Tehan's submission that the memorandum accompanying the Fair Work Act talks about certain types of action, we believe our question does contain certain types of action: stop-work action, bans and limitations. We also say that there is no error or difficulty in that question for our members. They will understand that they are being asked to endorsed those particular types of industrial action and that the union counsel will in due course inform them of the exact nature of the type of action that we are asking them to take, and we believe that they will vote knowing that.

PN114

In relation to the question of notice required in terms of notifying industrial action, part 3-3 of the Fair Work Act, Industrial Action, division 8, Protected Action Ballot, at section 443(5) states:

PN115

If Fair Work Australia is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days.

PN116

In our submission, your Honour, nothing my learned friend has put constitutes exceptional circumstances. No previous action the union engaged in has required more than three days' notice. The State of Victoria has not provided any example or evidence to demonstrate that parents have had any difficulty in making alternative arrangements. Further, your Honour, we submit that Fair Work Australia has not extended the written notification period in any protected ballot order involving the education jurisdiction. This includes schools in the ACT and Northern Territory, and TAFE in New South Wales.

PN117

Any action that is taken by the AEU was always covered by the media well in advance of the action occurring and the AEU always announces the action it will take well in advance of the action. We submit that a longer notification period is redundant and that, in any event, the three days required by the Act is sufficient time for parents to make alternative arrangements, as has occurred of the past 10 years without incident since this regime has been in place. We have in fact, your Honour, a school principal in court, and I'd like to call that school principal to give evidence on this point.

PN118

THE DEPUTY PRESIDENT: Well, if I do that, then it's only fair, isn't it, that I adjourn - I mean, I'm not stopping you. It's just if I do that, isn't it only fair that I adjourn to allow Mr Tehan to call evidence?

PN119

MR HENDERSON: Well, Mr Tehan has had the same opportunity that we have had to provide witnesses and evidence in these proceedings. I don't believe it's fair. He knew that the application was on. He was notified in accordance with the Act. The fact that there is a senior officer of the department who is not available - and I know why the senior officer is not available, and I acknowledge that, but when you look to the reasons that Mr Tehan has given for the exceptional circumstances, they go to parents, not to senior officers of the department. They go to the fact that parents supposedly need this time. I would have thought that the State of Victoria, with its resources, could have found a parent who could have provided the evidence that Mr Tehan asserts.

PN120

THE DEPUTY PRESIDENT: Do you have a view on the calling of evidence, Mr Tehan?

PN121

MR TEHAN: Look, your Honour, we don't object to the witness statement. Mr Henderson has given me a copy of the witness statement of the principal concerned. We don't object to it going in.

PN122

THE DEPUTY PRESIDENT: Do you wish to cross-examine?

PN123

MR TEHAN: No, your Honour.

PN124

THE DEPUTY PRESIDENT: I see.

PN125

MR HENDERSON: I'm happy just to hand that up.

PN126

MR TEHAN: Your Honour, the senior officer concerned of the department is Mr Bugden, the general manager HR. He's on jury duty, considering their verdict in a murder trial, so he's not available to instruct today or to give us proper instructions. That's the reason why he's not here. Probably not much turns on it. I mean, there are submissions. If you think you need evidence, I'm happy to facilitate that, your Honour, at an appropriate time.

PN127

THE DEPUTY PRESIDENT: All right.

PN128

MR TEHAN: But I'm happy to let Mr Adamson's statement go in.

PN129

THE DEPUTY PRESIDENT: Thank you. Thanks, Mr Henderson.

PN130

MR HENDERSON: That completes our submissions, your Honour.

PN131

THE DEPUTY PRESIDENT: Could I just ask one question - I'll mark that AEU3.

EXHIBIT #AEU3 STATEMENT OF MR ADAMSON

PN132

THE DEPUTY PRESIDENT: I've looked at John Holland and I'm wondering if you have a view about the requirement in relation to particular action. I think you've sought to characterise that as types of actions. If one goes to section 19, the meaning of "industrial action", do you think the decision in John Holland takes it as far as the only question that might need to be asked under section 437 is whether or not employees approve action as defined by section 19, excluding 19(1)(d)? Does John Holland go as far as that, 19(1)(d) being the lockout?

PN133

MR HENDERSON: Well, your Honour, all I can say is that in terms of the submissions we've made, the question is really a matter for the union.

PN134

THE DEPUTY PRESIDENT: Yes.

PN135

MR HENDERSON: And the authorities I've used basically say that the emphasis really should be on the type of action that the union notifies the employer - - -

PN136

THE DEPUTY PRESIDENT: Notifies.

PN137

MR HENDERSON: - - - when they propose to take that action.

PN138

THE DEPUTY PRESIDENT: Yes, I follow. Thank you.

PN139

MR TEHAN: Your Honour, the submission we make to you about this is that if the argument that Mr Henderson put to you is correct, the union could say, "We will take industrial action as defined in the Act". I think that's the question you're asking. The reason why I think that the correct answer to that is, "No, that would not be sufficient," is because the words "protected industrial action" in section 437(1) is qualified by the adjective "particular". It says -

PN140

a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action.

PN141

It's the fourth line down, your Honour - the fourth and fifth lines down. Now, "protected industrial action" has a particular meaning, as you know. It's defined in section 408 and "employee action" is defined in 409. You go from 437 to 408 to find the definition of "protected industrial action". Once you go to 408 and you get the definition of "protected action", you see that it then talks about "employee claim action" in section 409, which says that employee claim action for a proposed enterprise agreement is industrial action. That is - and then it goes on to define some provisions.

PN142

So you then go to the definition of "industrial action", which is in section 19, as you correctly said. Protected industrial action by itself has a particular meaning, but when it's described as particular protected industrial action, that then takes you to - as this explanatory memorandum says - certain types of industrial action and it can't be that that's picked up simply by the definition because that isn't particularised adequately, and UFU covers that with some detail. That's how we would interpret that provision, your Honour.

PN143

THE DEPUTY PRESIDENT: Thank you. Anything else you want to say in reply?

PN144

MR TEHAN: Your Honour, there was a decision in the education sector that did order seven days. It was a decision of Deegan C on 29 June 2006. It's print 973213. It's an order under the Workplace Relations Act, but certainly relevant, and it was order 11 that Deegan C made, being satisfied that there are exceptional circumstances. Your Honour, this was by consent, I should say.

PN145

THE DEPUTY PRESIDENT: I see.

PN146

MR TEHAN: It wasn't argued, yes, but - - -

PN147

THE DEPUTY PRESIDENT: That's exceptional in itself.

PN148

MR TEHAN: It is, and there are no reasons given.

PN149

THE DEPUTY PRESIDENT: Yes.

PN150

MR TEHAN: But it seemed to be accepted there that that was the reason.

PN151

THE DEPUTY PRESIDENT: Thank you. I'll consider this over the weekend and issue my decision early next week. Thank you for your time. The matter is adjourned.

<ADJOURNED INDEFINITELY [4.55PM]