B2014/1637, Transcript of Proceedings [2014] FWCTrans 791 (15 December 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051114-1

DEPUTY PRESIDENT ASBURY

B2014/1637

s.229 - Application for a bargaining order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland Divisional Branch
and
Queensland Electricity Transmission Corporation Limited
(B2014/1637)





Brisbane

5.29PM, THURSDAY, 4 DECEMBER 2014

PN1

THE DEPUTY PRESIDENT: Can I start by taking appearances?

PN2

MR W. FRIEND: Deputy President, I seek to continue my appearance for the applicant from Friday.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MS R. GIRARD: If it pleases the commission. Girard, initial R, appearing on behalf of the Queensland Services Industrial Union of Employees.

PN5

THE DEPUTY PRESIDENT: Thank you.

PN6

MR I. NEIL: If it please the commission. I appear with my learned friend Mr Duffy in place of Mr Humphreys who appeared on the last occasion for Powerlink.

PN7

THE DEPUTY PRESIDENT: Thank you. Mr Friend?

PN8

MR FRIEND: Commissioner, can I ask if you have a number of the documents that were very late served because of the urgency of this matter?

PN9

THE DEPUTY PRESIDENT: Yes.

PN10

MR FRIEND: We provided to the commission a statement in reply of Mr Traill this afternoon and an outline of our submissions. We also provided on Monday, in accordance with what was agreed on Friday, a draft order. I need to make one amendment to that, Commissioner. I discussed this with my learned friend. It’s in the second line. What we’re seeking is an order that until application B2014/1637 and B2014/1638 are heard and determined - - -

PN11

THE DEPUTY PRESIDENT: Sorry? It says - - -

PN12

MR FRIEND: It just says 1638.

PN13

THE DEPUTY PRESIDENT: And we need 1637?

PN14

MR FRIEND: 1637, yes, because that - - -

PN15

THE DEPUTY PRESIDENT: Because it’s an interim order.

PN16

MR FRIEND: 1637 is the bargaining order and we would anticipate that the two would be heard together because the same issues arise.

PN17

THE DEPUTY PRESIDENT: But what is being sought in this matter is interim relief.

PN18

MR FRIEND: Under the bargaining order application.

PN19

THE DEPUTY PRESIDENT: Yes.

PN20

MR FRIEND: To preserve both the bargaining order application and the scope order application.

PN21

THE DEPUTY PRESIDENT: Yes, understood.

PN22

MR NEIL: There’s no objection to that amendment.

PN23

THE DEPUTY PRESIDENT: Thank you.

PN24

MR FRIEND: In effect, what we seek is an order which will preserve the current status quo pending the hearing of the scope order and the bargaining order applications. We seek to do that by delaying the counting of votes and the declaration of any ballot in respect of the agreement that has been put out to vote about 10 days ago. You have our outline and I think the most convenient way of dealing with this, Deputy President, is to go through the outline and simply explain the way we see the case.

PN25

You will see in paragraph 3 that we say that in broad terms, we contend that the agreement which the respondent seeks approval of is unfair. It unfairly seeks to target the conditions of technical stream employees and to use the majority of employees in the administrative professional and managerial streams to vote in support of the agreement, which doesn’t affect their conditions very much at all, and I will come to that, but which does affect the minority conditions of the technical stream employees quite significantly. We submit that this conduct is a contravention of section 228 of the Act, the good faith bargaining provisions, because it’s capricious and unfair and undermines collective bargaining. We also seek the scope order to separate out the technical stream employees so that that can’t happen in the future.

PN26

Deputy President, you will see the parties have been bargaining since August of this year. There’s evidence about the three streams within the groups of employees. In paragraph 8, we give the numbers that were given to Mr Traill sometime in September, I think. They, according to Ms Bevan, have changed slightly. In her affidavit at paragraph 34, she suggests administrative is now 163; professional managerial she says is 442, but there’s another category of managers who have been hived off into a separate agreement, 49 in number, and that’s probably therefore just a slight reduction on the 504, and technical have changed from 338 to 337.

PN27

During the course of the bargaining, on 11 November, the respondent unilaterally determined to put an agreement out to ballot. The agreement, as we say, makes significant changes in respect of the technical stream but very few in relation to the terms and conditions of the other two streams, but it does involve a pay increase for all. On 19 November, the applicant wrote, setting out its concerns as is required in respect of the application for a scope order and bargaining order, and on the 21st, the respondent replied that it was not prepared to address the applicant’s concerns.

PN28

Voting commenced on 28 November and concludes not, I think as we say, on 11 or 12 December, which is next Thursday. Once the voting is concluded of course, absent any order, the votes will be counted and if there’s a vote in favour of the agreement, then the process will be that the employer will have to make an application within 14 days for approval of the agreement. That will be dealt with by the commission in due course. One of the things that will have to be considered is whether the scope of the agreement is fairly chosen and there are a number of similar arguments to those which we wish to agitate in our scope order application which will have to be dealt with. An argument at that stage of the process, however, wouldn’t resolve the issue even if we were successful. It wouldn’t resolve the scope issue because the employer could try a different agreement which didn’t have all of the same vices that we complain of and attempt to argue that that one wasn’t unfair and we might be going through the same process again, depending on how the voting goes in respect of any such agreement.

PN29

Our position in relation to this is that the question of scope is an important one in relation to this agreement and will need to be determined. The only way it can be finally and authoritatively determined is by the hearing of a scope application. The applicant might win that or it might lose it but once that’s determined, that will be the answer, and it won’t be determined to finality in any other way.

PN30

We then deal with the question of interim orders and in regard to that, we rely upon section 230 of course, which is a provision in relation to bargaining orders, and 589 which empowers the commission to make interim decisions in relation to a matter before it, and I have got the precise words because I have read very briefly the submissions that have been filed by the respondent and they make the point that the section there uses the word “decision” rather than “order”. We submit that nothing turns on that. A decision can only operate if it is a decision to make an order, otherwise there’s no point in the provision. Section 230 is the section in which the power to make a bargaining order is found. It’s not unknown, and in fact there’s precedent for the commission to make an interim order in a bargaining order application.

PN31

Can I hand up a folder of authorities that we have prepared in relation to that? You will see that we have referred to the HSU v VHIA, which is number 6 in the folder, at paragraph 18. That was a full bench of Senior Deputy President Watson, Deputy President Smith and Commissioner Bissett. The full bench noted that they were hearing an appeal from a refusal by Commissioner Cribb to grant an interim bargaining order which would have preserved the situation that was then in existence until the application for a bargaining order could be finally determined; the same circumstances as face us here today. At paragraph 5 of the decision, which is on page 3, the full bench noted:

PN32

In her decision, the Commissioner applied, as the principles in determining whether or not to make an interim order, whether there was a serious question to be tried and whether the balance of convenience favoured the granting of the interim order sought. No issue was taken with this approach in the appeal and it is consistent with authority -

PN33

and they refer to authority in relation to that. At paragraph 9, which is found on page 5, the full bench said:

PN34

The approach to a serious issue to be tried for the purpose of interim relief does not require the HSU to show that it is more probable than not that its substantive application will succeed, it is to show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the determination of its substantive application -

PN35

and they rely on Australian Broadcasting Corporation v O’Neill for that proposition, which I think we have included - no. We haven’t included it in our authorities but it’s fairly commonplace, Commissioner.

PN36

We have also included an extract from a decision of Greenwood J which, in our submission, just nicely sums up all of these authorities and how to approach this type of question, because what the full bench is saying in HSU, based on authority in the commission, is that you would adopt the same approach as a court would adopt to a question of making an interim injunction, and Greenwood J was dealing with that in CEPU v Blue Star Pacific, which we have set out a passage from at paragraph 19. It’s perhaps a little lengthy to reach, Commissioner, but we would invite you to read it because we submit it sets out the proper approach in relation to matters such as this.

PN37

THE DEPUTY PRESIDENT: I have had an opportunity to read the submission before I came in, Mr Friend.

PN38

MR FRIEND: Thank you, Commissioner - sorry; Deputy President.

PN39

THE DEPUTY PRESIDENT: That’s all right.

PN40

MR FRIEND: We have also set out a passage from Samsung v Apple which has the gloss on those comments of Greenwood J, that you don’t consider serious question and balance of convenience separately, you look at them together, and the serious question need not be so strong if the balance is very strong and vice versa. We submit that that’s the appropriate approach for the commission to take in this case.

PN41

I turn now to the evidence. We have, as I have said, two statements of Mr Traill which we would seek to be received into evidence. The first one was made on 25 November 2014 and has 159 paragraphs and 25 attachments. I will tender that if the commission pleases.

PN42

MR NEIL: No objection.

PN43

THE DEPUTY PRESIDENT: We will mark that as exhibit 1.

EXHIBIT #1 STATEMENT OF MR TRAILL DATED 25 NOVEMBER 2014, TOGETHER WITH ATTACHMENTS

PN44

MR FRIEND: Thank you. The second bears today’s date and has 47 paragraphs.

PN45

MR NEIL: No objection.

PN46

THE DEPUTY PRESIDENT: Exhibit 2.

EXHIBIT #2 STATEMENT OF MR TRAILL DATED 4 DECEMBER 2014

PN47

MR FRIEND: Now, because of some things that were said on the last occasion about the possibility of cross-examination, we have dealt with some issues in relation to that. I perhaps assume that there’s no intention to cross-examine Mr Traill.

PN48

MR NEIL: We don’t seek to cross-examine Mr Traill.

PN49

MR FRIEND: So we can skip - - -

PN50

THE DEPUTY PRESIDENT: The argument about whether - - -

PN51

MR FRIEND: - - - all of that argument.

PN52

THE DEPUTY PRESIDENT: Good.

PN53

MR FRIEND: I’m grateful to my learned friend.

PN54

MR NEIL: I should say, if I may, Deputy President, we do so on the basis that we understand that by the exchange of statements on the part of the applicant and Powerlink, all of the factual issues have been exposed and it will not be suggested against us that Mr Traill has not had a sufficient opportunity to deal with any matters of controversy in the evidence upon which Powerlink relies; in other words, we don’t have to put it to him again.

PN55

MR FRIEND: Mr Traill has done his best. We got the statement of Ms Bevan at 4 o’clock last night. As he says in his reply statement, he has done his best. That’s the way these things work and given, on our submission, you form an impression about whether there’s a sufficiently strong case, I think we can move forward on that basis. We’re not here saying that something is not responded to, therefore it must be accepted. It’s a weight question.

PN56

THE DEPUTY PRESIDENT: It seems that the issues of controversy are the assertions that are made on the one hand, that the agreement disadvantages a certain group of employees, and on the other hand that it doesn’t. They seem - - -

PN57

MR NEIL: That’s one area of controversy. There’s also some controversy about what was said or not said on certain occasions.

PN58

THE DEPUTY PRESIDENT: But there’s no controversy about what dates Mr Traill knew things on because he asserts them himself.

PN59

MR NEIL: Those matters are all uncontroversial and, as you will have seen in our written submissions, are of central importance.

PN60

THE DEPUTY PRESIDENT: Yes. Thanks.

PN61

MR FRIEND: Thank you, Deputy President. Can I go to the evidence in relation to these issues then about the changes? I will start first, perhaps skipping through, with paragraph 33. We note in that paragraph that at 144 to 157, Mr Traill identifies the various terms and conditions which apply only or almost exclusively to the technical stream employees and which he believes are reduced or eliminated. Can I just deal with some of those in a bit of detail? I don’t want to deal with all of them in great detail.

PN62

The first of those is in respect of clause 53 of the existing agreement. Can I hand up a copy of the existing agreement and the proposed agreement? I think these are contained in the material but it will just be easier for you, Deputy President, if you have hard copies that are separate. 53 is in fact a very long clause and the first part of it we seek to take you to is on page 39 of the current agreement which deals with first-aid:

PN63

Powerlink agrees to have a person trained in senior first-aid included in all network field services on-site work teams.

PN64

That’s a requirement under the agreement. Ms Bevan deals with that in her statement at subparagraph 237(l) which is page 61. She concedes effectively that there is no provision which is the same as the senior first-aid provision in clause 63 in the agreement which gone out to vote. We need to bear in mind that the position is that the technical stream are the people who are out and about. They’re all over the state, dealing with things in terms of power supply. The other streams are in the office.

PN65

Ms Bevan says in her statement that the 991 employees are mostly based in the office - this is at paragraph 34 - but it’s fairly clear, if one reads on, that the field-based employees are almost entirely comprised by the technical stream, and you will see that at paragraphs 37 and following in her statement. So we have a group of employees who work in the field, who have a provision which ensures that there’s someone in the team, the field services team, with senior first-aid, and that has been taken out of the agreement. That affects the technical services stream. It doesn’t affect the people sitting in head office in the administrative stream.

PN66

The answer that we’re given in relation to that by Ms Bevan is that Powerlink owes obligations under applicable safety laws to ensure that employees working remotely or in the field receive the appropriate first-aid training to mitigate the risks involved with this type of work, and further, as appropriate, a range of employees across Powerlink receive first-aid training. So what has happened is the decision about what, if any, first-aid training will be provided has been taken back to Powerlink. Regardless of what obligations there are under legislation, those obligations are different and cannot be enforced by the employees, either by injunction or by penalty proceedings if Powerlink refuses to comply, so it’s a very significant change that affects those employees.

PN67

There’s some material from Mr Traill in reply to Ms Bevan’s statement at paragraphs 37 to 40 of his reply statement. He says in 37 that the current clause was first included about 10 years ago because of a claim by the CEPU. There was insufficient first-aid training provided to technical stream employees and they made the claim to ensure there was an enforceable obligation. In recognition of the fact that a number of technical stream employees were unable to access the training during working hours and to ensure there was an incentive to participate, a provision was included in the agreement to allow for first-aid training in an employee’s own time, to be paid for by Powerlink and for Powerlink to also pay for the employee’s partner or spouse. They have been totally removed.

PN68

He then deals in 38 with section 42 of the Work, Health and Safety Regulations for Queensland, a provision which provides that an employer must provide first-aid equipment, ensure each worker has access to the equipment, ensure access to facilities for the administration of first-aid, ensure an adequate number of workers are trained to administer first-aid, and ensure workers have access to an adequate number of other persons who have been trained to administer first-aid. They are less, he says, than the obligations in clause 53, which is apparent, which requires a senior first-aid trained person in all works teams of network field services. It’s a higher level, he says in 40, of first-aid training than the emergency first-aid certificate, which is the basic certificate which would be encompassed by the regulations. So that’s one, we say, significant change which affects the technical stream only.

PN69

The next issue - I’m just taking three of these that we have dealt with in a little more detail - at clause 36 also derives from clause 53, Single Person Tasks. You will see there that it’s said that the parties agree that safety is of paramount importance. Then:

PN70

The parties acknowledge that Powerlink network field services field-based employees have been undertaking single person tasks in certain situations for many years.

PN71

This is only the field services employees. This is the technical stream almost entirely. A list of these that have been agreed is put down there and then there are various provisions in relation to how single person tasks are to operate, and then at the bottom of the page:

PN72

If there is a desire for Powerlink to introduce further single person tasks, this would only occur after appropriate investigations have been completed and after consultation and agreement in accordance with provisions of the Workplace Change and Flexibilities clause.

PN73

THE DEPUTY PRESIDENT: I think I was there, Mr Friend, line by line as this clause got negotiated very late in the year and very late at night, and I remember it vividly.

PN74

MR FRIEND: Then you will know a lot more about it than me, Deputy President. That’s why the commission is a specialist tribunal. I won’t dwell on it too much then because I know it’s late. This is dealt with in 237(k) and what Ms Bevan says in that paragraph is:

PN75

Where a new single person task is being considered, consultation with the relevant employees must occur in accordance with the relevant safety laws.

PN76

That, she says, reflects Powerlink’s obligations under applicable work, health and safety legislation. It’s 31 and 32 of Mr Traill’s reply statement. He has a wrong paragraph number there. He says 273 instead of 237. He says he is not aware of anybody who performs the agreed single person tasks set out in the current agreement other than technical stream employees and he refers to a proposed clause by Powerlink:

PN77

As with all field-based work activities carried out by Powerlink staff, single person tasks require a risk assessment and control measures implemented to ensure that tasks are completed safely. Where a new single person task is to be considered, consultation will occur.

PN78

Mr Traill says:

PN79

The current clause gives considerably more protection to technical stream employees than the proposed clause. The current clause requires that at no time will the safety of employees or the community be compromised. The only single person tasks are those that are set out -

PN80

and he summarises the clause. Then he says in 33:

PN81

The consultation clause in the proposed agreement -

PN82

and that’s the fail-safe -

PN83

is the model consultation clause. It does not include a number of requirements -

PN84

which are all set out in 33 and I won’t take you to, but it does not provide the same sorts of protections as are there in the current agreement. These are things that only affect the technical stream employees.

PN85

At 37, we deal with the final of the three that I wish to deal with, which is clause 78 dealt with in 237(m) of Ms Bevan’s statement. Clause 78 is a restriction on the use of contractors and that can be found at page 58 of the current agreement. You will see that there are quite detailed provisions in relation to the use of contractors. In regard to that, Ms Bevan says - in 237(m), she acknowledges that the clause impacts upon technical stream employees more than administrative professional stream employees, but that the employment security provision is the answer. The employment security is already there, but clause 78 is there for a reason and it has been taken away in this agreement. It’s taken away where the technical stream employees have about a third of the votes and it doesn’t affect the rest of the employees.

PN86

Now, there are a number of other provisions and I will just very quickly, without taking you to the relevant clauses, go through this. Clause 6 is the display of the agreement. That may not seem to be necessarily particularly important but there is a difference between how it affects technical stream employees and others because they don’t have access to an (indistinct) or anything like those who are at head office.

PN87

Clause 23 is the TNR allowances. The difference here is that the allowance, which is really, as Mr Traill explains in his reply statement, a significant part of the wages - this is at 14 - of the employees. They don’t get the increase on that. The allowance to other employees is much lower so they lose a lot more out of there being no increase on these allowances than the others. We’re adding these things up. It’s not as if it’s just one thing or just two things. These are all together in relation to the effect on technical stream employees.

PN88

Clause 41 deals with notification, changes in work arrangements. Ms Bevan says that affects everyone. Mr Traill’s response in regard to that is that that’s incorrect. It’s really something that mainly is going to affect technical stream employees. I will just get the paragraph number for you in a minute. At 17 he says that the vast majority of employees who do the weekend work are technical stream employees, and that makes sense when one looks at who the agreement covers; also at 18.

PN89

Clause 42 is the next one. That’s the introduction of new shift rosters. Ms Bevan says, as she says in many things, this clause is of a general application, and of course a number of these clauses are of general application but that doesn’t mean that they affect everyone. The substantial effect of this change is on technical employees.

PN90

Clause 49 is about remuneration for work on non-Powerlink sites. Again, it’s said it’s of general application but it’s the technical stream employees who are going out to work on the non-Powerlink sites. Paragraph 24 of Mr Traill’s reply statement deals with that.

PN91

Clause 52, Training Packages. There’s no longer a requirement to use national training packages. Again, this has much more of an effect on technical stream employee. There’s another part of clause 53, Communications in the Field. That has been watered down. It also affects technical employees.

PN92

Now, as against this, Ms Bevan set about to find things in the new agreement which affected other groups of employees and not technical stream employees adversely and the best she can do is contained at 238 of her statement and that is a proposed change to remove graduate provisions which will affect engineering and IT graduates. Those changes concern the mentoring of new graduates and their rotations. They can hardly be said to affect any substantial proportion of the workforce at all. Then there are changes in respect of parental leave. That may well affect the technical stream employees as well. What wouldn’t affect them, and this would be the only thing out of those changes that Ms Bevan refers to in 238(b), is probably the Working From Home clauses, but again, that’s not going to be a substantial proportion of the workforce that’s suffering any detriment in relation to the new agreement.

PN93

So on the one hand, you have a number of longstanding conditions, conditions that were perhaps negotiated late at night at the end of the year in hard bargaining, being stripped out of this agreement, but only in respect of a minority of employees, whereas with the balance of the employees there is very little change of that type, and a pay increase.

PN94

We have dealt with some cases, more by way of anticipation. I think it was obviously unnecessary, having seen over a short period of time the submissions of the respondent and so I don’t think I need to take you, Deputy President, to paragraph 40 except to say that the cases in paragraph 40 were about this type of situation where one group of employees who were a minority were disadvantaged. They really, under the Work Choices Act, couldn’t do anything about it. They had to run arguments about reasonable opportunity to decide and those arguments were pretty well bound to fail, but what we do see with the introduction of the Fair Work Act is a requirement that groups be fairly chosen, and one can readily see that that might be an attempt to meet the types of situations that arose in the (indistinct) case and the Coles CDC Eastern Creek case.

PN95

If I can ask you to turn to section 228 of the Act which deals with bargaining orders? In relation to good faith bargaining, we rely on 228(1)(e), capricious or unfair conduct that undermines freedom of association or collective bargaining. We say that the conduct of putting this agreement out like this, which unfairly affects a minority of the workforce, is unfair and undermines collective bargaining.

PN96

In terms of section 230, we say that the requirements of subsection (1) will have been made out, bearing in mind, Deputy President, what I’m seeking to do is establish that there’s a serious issue to be tried, an argument or case that there’s something here that really needs to be heard and determined. The application for the order has been made and we say that the requirements of the section have been met and that we will be able to satisfy - at least there’s a serious issue and we will be able to satisfy the commission that it’s reasonable in all the circumstances to make the order.

PN97

We need still to have one of the paragraphs of subsection (2) apply and obviously (2)(a) applies because the employer has agreed to bargain, and then one also needs to satisfy one of the provisions in subsection (3) and the one we point to is that one or more of the bargaining representatives; that is, the employer, has not met or is not meeting the good faith bargaining requirements in the way that I explained a moment ago.

PN98

The second case that we seek to preserve by this order is the scope order case and we commence to deal with that at paragraph 45 - or perhaps while we’re with the legislation I should take you to the relevant parts of the Act that we’re relying on. Section 238(1) provides that a bargaining representative may apply for an order if the bargaining representative has concerns, and that’s established by Mr Traill’s affidavit, about the bargaining not proceeding efficiently or fairly. The reason for that is that the bargaining representative considers the agreement will not cover appropriate employees or will cover employees it’s not appropriate for the agreement to cover.

PN99

It’s the agreement that is in question, we say, and the agreement that’s in question is the one that the employer has put up with these changes to the technical stream without changes to everyone else. It might be a different argument is everyone was dealt with the same, and of course it has in the past been that there has been one agreement but there hasn’t been a singling-out of one group before. Subsection (2) is irrelevant. (3)(a) relates to the written notice which has been complied with. That’s in Mr Traill’s affidavit at 142 and following; reasonable time, paragraph (b), that’s dealt with in that part of the affidavit; and considers that there has been no response, that’s in his reply affidavit.

PN100

Then we come to subsection (4) that empowers the commission to make a scope order if it’s satisfied that the bargaining representative has met or is meeting the good faith bargaining requirements, and we don’t see any suggestion that that’s not the case here; that making the order will promote fair and efficient conduct of bargaining, and we will submit in due course that that’s the case; that the group of employees is fairly chosen, and we again submit that that’s the case; and it’s reasonable in all the circumstances to make the order.

PN101

I mentioned before that if the ballot were counted and if the agreement were approved by a majority of employees, there would be an argument at the approval stage in respect to whether the group of employees was fairly chosen, section 186(3). It is an important consideration in this matter, in my submission, that the commission should take into account that there will be a serious issue to be tried about that at that stage as well. There will be a serious question, rather, about whether the group is fairly chosen. So if matters are allowed to proceed, an agreement which perhaps ought not be approved because the group isn't fairly chosen will be put up for approval.

PN102

There's a slightly analogous situation dealt with by Smith DP in the CFA v UFU case of a couple of weeks ago, where the UFU had been consistently bargaining for provisions in the agreement which would be, on the current state of authorities in the Family Court, unenforceable and they wouldn't resile from that. The Deputy President made some interim bargaining orders earlier in the year about other matters, another example of interim orders, but he made a final bargaining order telling the UFU that it couldn't bargain for things that it couldn't get. That was not good faith bargaining.

PN103

We've also made the point at paragraph 47 that there's evidence about the technical stream claims not being treated in the same manner as other streams, and we say that goes to efficiency and fairness as well. The evidence is found at paragraph 76 of Mr Traill's first affidavit.

PN104

Our submission ultimately is that there is a reasonable prospect of both of these applications succeeding on the material. In fact we would submit that they're both quite strong. You don't have to determine that, of course, on this material, but what you do need to determine is whether they're strong enough to warrant preserving the status quo and that's where the questions arise about what happens if you do one thing and what happens if you do another thing? What are the effects both ways?

PN105

We've set out something in 51 based upon some submissions that were made at the conference last Friday that under section 182, "the agreement is made when a majority of those employees who cast a valid vote approve the agreement", and there seemed to be a suggestion there that somehow the agreement would reach the status of being made in circumstances where no-one knew whether or not it had been made because the votes hadn't been counted. Our submission is that's not an appropriate way to read the Act.

PN106

It is necessary to have a ballot, it's necessary to have a vote, and at the conclusion of the vote, when everyone has voted - because of course every employee is entitled to vote - then you count them and you know the result. It is not appropriate for an employer to count votes as they come in and say, "I've got 50 per cent plus one. It's all over. The rest of you, don't bother." It's a process that has to be gone through because it's a collective decision. So the outcome of the ballot that's out there now can't be known. We don't know and we can't know if the agreement has been approved, and no-one will know until the votes are counted.

PN107

If they're never counted, it will never be known and those steps will need to be taken. If it is counted, then as I say, it will come up for approval if the vote is in favour.

PN108

THE DEPUTY PRESIDENT: So is your submission that the agreement isn't made until the votes have been counted and the ballot has been declared?

PN109

MR FRIEND: That's correct.

PN110

THE DEPUTY PRESIDENT: And there are 51 per cent?

PN111

MR FRIEND: Yes, that's correct, because you can't know those things until you do that. You can't ascertain whether the votes are valid or whether you've got 50 per cent plus one until the conclusion of the poll.

PN112

THE DEPUTY PRESIDENT: Except, of course, as I understand it if the AEC conducts a ballot they can give you a running total as they go.

PN113

MR FRIEND: That would create a problem for employers. If the case is that the agreement is made during the course of an open ballot, then all of a sudden halfway through the ballot, firstly, the employer says to everyone else, "Don't bother. If you didn't vote, you don't count," and, secondly, the 14 days start running. We say that's not the way it should work. It's a ballot which needs to be determined and declared at the end of the process. That's when the 14 days starts running.

PN114

I mean, theoretically, if you had a 28-day period, you could have enough votes in on an agreement to have it approved within the first three days and have to be off up here getting approval before the ballot is even closed. If you're dealing with a group of employees that are spread far and wide, it's not a result that has an attractive appearance when you're saying to say to employees, "You've got a stake in this, you've got a part in this, your vote counts," to suddenly say, "We don't need to look at anyone else." It's like counting the votes on election day and saying, "Don't bother turning up to the poll for the rest of the day, because you weren't earlier enough."

PN115

THE DEPUTY PRESIDENT: So you would say then interpreting the legislative provisions in that way would be counterintuitive to the - - -

PN116

MR FRIEND: Yes, yes.

PN117

THE DEPUTY PRESIDENT: - - - entire scheme of the Act, which is about agreement.

PN118

MR FRIEND: Absolutely, because it has the effect of disenfranchising people and making them feel disenfranchised, and you'll see that that's what Federal Magistrate Smith said in the TWU v DHL Excel Supply Chain case, which we've quoted in paragraph 61.

PN119

That submission I think is developed in my learned friend's written outline. Unfortunately, we didn't get that - and I'm not being critical; everyone is working as hard and as fast as they can - until shortly before we came to court. I may have to elaborate on what I've said now when I've heard him. That goes for the whole of the outline really. There were some things that we hadn't anticipated, and I'll need to hear what Mr Neil says to respond.

PN120

Then we come to balance of convenience. If we look at it this way - because this is how you do the status quo. Do you keep the status quo, not knowing what the outcome of the agreement is, while the scope order is determined or do you - and the bargaining order, or do you allow that process to take place? If you allow the process to take place and the agreement is approved, then there'll be a hearing about scope but only in relation to that agreement - that "fairly chosen", rather, I should say.

PN121

If you adopt the course that we are urging on you, there is no downside for the employees or the employer. The scope order and bargaining order applications can be programmed to be heard as soon as the commission is able to hear them and dealt with. When they are dealt with, they will resolve all issues in relation to this matter. If we're successful, then the parties will go off to negotiate with an appropriate scope as determined by the commission. If we're not successful and the employees in fact approve the agreement, then it becomes a very simple formal task to approve it at that stage.

PN122

If we're not successful and the employees didn't approve the agreement, then the parties are back to bargaining in any event. If it's approved, no bargaining will take place. If there's no approval, well, there might be additional bargaining, but we need to see what happens.

PN123

There's very little downside from the point of view of the employer, but the horse will have bolted if no interim order was made, because a proper application of the bargaining scope orders won't be able to be determined if the agreement is in fact approved by the employees.

PN124

THE DEPUTY PRESIDENT: But if the scope order was refused and the agreement was approved, surely your client would still be able to pursue to the "fairly chosen" argument.

PN125

MR FRIEND: It would be very difficult, because the arguments are the same.

PN126

THE DEPUTY PRESIDENT: Well, are they?

PN127

MR FRIEND: They're not exactly the same, but the "fairly chosen" argument at the approval stage would be that the technical stream shouldn't have been included, because they were hard done by in the agreement. At the scope order stage it will be that the technical stream shouldn't be included, because this agreement is not fair to it.

PN128

If the scope order succeeds, that'll resolve the issue and the parties can go on and bargain. If the argument "not fairly chosen" at the approval stage succeeds, then the employer doesn't have to change its scope. It can change its agreement a little bit and go through the whole process again without resolving the issue. So the scope order application still has to be heard, and we've got duplication and unnecessary hearings.

PN129

But if the scope order was heard and determined against us - we don't see any way that we can argue - I'll get some instructions, but we could argue that, if the agreement is approved, there should be an argument about "fairly chosen" at the approval stage, but I'll get some instructions whilst my learned friend is on his feet.

PN130

Unless there's anything else I can assist you with, those are our primary submissions.

PN131

THE DEPUTY PRESIDENT: Thank you. Mr Neil.

PN132

MR NEIL: Deputy President, asked as you are to make an interim order, the first question you might properly pose is whether you have jurisdiction to do so. Our submission is that you do not. We develop that submission on three grounds in section C of the written submissions that we lodged this afternoon and in paragraphs 12 and 14. We don't wish to add to what we have there put.

PN133

THE DEPUTY PRESIDENT: I understand.

PN134

MR NEIL: The second question that you might properly ask is by what test should you determine the application for the interim order. The applicant submits that you should do so by a test transposed from that which is applied when courts are asked to make interlocutory injunctions.

PN135

Our submission is that that is not so. We develop that submission in section C of our written submissions. We acknowledge that are statements in authorities binding on you to the contrary. Our formal submission is that those statements are incorrect.

PN136

THE DEPUTY PRESIDENT: And would I be brave or foolish, Mr Neil, to adopt a recent decision?

PN137

MR NEIL: You could not depart from them, but we make the submission now that they are incorrect. We don't wish to add to what we've said in writing about that.

PN138

THE DEPUTY PRESIDENT: Yes.

PN139

MR NEIL: What we did wish to do was to draw attention to two striking and, in our submission, determinative features of the present application. Before we do so, we should tender the statement made by Ms Bevan yesterday. I think you have a copy.

PN140

THE DEPUTY PRESIDENT: Yes.

PN141

MR NEIL: Together with all of the annexures to that statement.

PN142

THE DEPUTY PRESIDENT: Yes, we'll mark it as exhibit 2.

EXHIBIT #3 STATEMENT OF MS BEVAN, WITH ANNEXURES

PN143

MR NEIL: The first of the two striking features - striking and determinative features - of the present application to which we wish to draw particular attention is the delay of the applicant in making the application. In paragraph 23 of our written submission we identify the bases upon which delay is a relevant and determinative consideration. In paragraph 24 we set out some of the salient facts in the chronology of events leading to the making of the present application. The evidence upon which that is based is, we hope, in a helpful way, included in a table which we hope has also been filed. No? Perhaps we could hand it up. We’d invite you, if it please, Deputy President, to read our written submission in light of this table.

PN144

THE DEPUTY PRESIDENT: What I’ve extrapolated from Ms Bevan’s evidence, in addition to what’s in your submission, is that it appears from the evidence that by 28 October there was a draft agreement that had everything in it except the wage increase and the treasurer’s concession and by 11 November there was a final document.

PN145

MR NEIL: Deputy President, you have anticipated the one fact, additional factor, which we had wished to draw attention to complement those that we’ve identified in paragraph 24.

PN146

THE DEPUTY PRESIDENT: Yes. Clearly I’ve had a very - - -

PN147

MR NEIL: By 28 October, as you have very - - -

PN148

THE DEPUTY PRESIDENT: I had a very late night last night reading this.

PN149

MR NEIL: Well, Deputy President, may we say, with unfeigned respect, that your observation is correct. By 28 October every feature of the proposed agreement about which the applicant now complains, every single one, was present and known to the applicant. The only significant change that occurred after 28 October was the concession announced on 11 November, announced in the context of the bargaining process on 11 November - - -

PN150

THE DEPUTY PRESIDENT: Yes. The treasurer announced it on the 10th, as I understand it.

PN151

MR NEIL: That’s correct, by which concession Powerlink abandoned its position that there should be - that there could be no forced redundancy provision in the proposed new agreement, offered instead limited employment security, limited in the sense that it was confined to existing employees, and coupled to that an offer of a 2.75 per cent wage increase in each year of the agreement which amounts to a little over8 per cent compounding over the life of the proposed agreement. That’s the only change that took place after 28 October.

PN152

We could have been here months ago. We could have been here in August when it was perfectly plain that Powerlink would insist upon an agreement that covered employees in the technical stream along with employees in other streams. We could have been here after 28 October when it was perfectly plain that Powerlink was insisting upon an agreement that contained every provision about which the applicant now complains. We could have been here after 11 November when it was perfectly clear to the applicant that Powerlink was not only insisting upon such an agreement but proposed to put it to ballot.

PN153

That didn’t happen. The applicant delayed. It is not a delay which can be explained by circumstance as the facts to which we have been referring demonstrate. It is not a delay that can be explained by inattention, idleness or neglect. The only available inference is that it was and is a calculated delay, conscious and deliberate, designed to back you into a corner, designed to manufacture the element of urgency which at bottom is the central plank in the applicant’s case, manufacture, we submit, because it’s not real.

PN154

It didn’t exist in August. It didn’t exist after 28 October. It didn’t exist after 11 November. It didn’t exist after the initiation of the process that led to the ballot. It exists for one reason and one reason only, and that is that the applicant waited, waited until it could be in a position to come here and say, “Unless you help us now it will be too late.” That single fact is enough to dispose of the present application. The jurisdictional and jurisprudential basis of that disposition is that which we have identified in paragraph 23 of our written submissions. That’s what we want to say on the question of delay.

PN155

Can we turn to the second striking and determinative feature of the present application, and it is this. Although the making of the interim order which is now sought would have a prejudicial effect, it would have no legal or practical effect. What prejudicial effect would it have? If the order were made it would deny to Powerlink and all of the employees who are eligible to vote knowledge about whether they had made an agreement between themselves. It would also have an intangible, unknowable but insidious influence on those employees who had not yet voted. Those are the prejudicial effects that would attend the making of the interim order. Against that one must ask why would you do it? Why would such an order be made? The answer is, in our submission, the making of that order would bring with it no legal and no practical effect.

PN156

We deal with and develop that submission in section D of our written submissions. May we invite your attention to that section, if it please? In paragraph 9 we set out the three bases on which this question is, in our submission, relevant, and then in paragraph 10 we develop the proposition that the interim order, if made, would be incapable of having any legal or practical effect. In order to demonstrate why that is so, may we remind you, Deputy President, first of the terms of subsection (1) of section 182? It is that subsection to which the proposed agreement in question here relates. As you will see, such an agreement, the proposed agreement in question here, is made for the purposes of the Act when a majority of those employees who cast a valid vote approve the agreement.

PN157

We draw attention to the difference between that test and the test that applies in an agreement of a kind to which subsection (2) applies. An agreement of that kind is expressed to be made for the purposes of the Act immediately after the end of the relevant voting process. There is a significance in the difference in the language employed in each of those provisions.

PN158

THE DEPUTY PRESIDENT: Except when does one ascertain validity? Generally a ballot involves persons casting a vote and someone scrutinising the ballot papers, or however - now they do it, I believe, by SMS and a range of other means, but doesn't the term "validity" import that there has to be some final consideration of all the votes that were cast and are they valid votes, and then there are a majority of valid votes?

PN159

MR NEIL: No. It requires a consideration of the validity of each vote. Our point is simply this: that the language of subsection (1) is intractable. It cannot be read to mean anything other than that which it says. It describes an objective fact. The objective fact exists when the majority of those employees who are eligible to vote have cast a valid vote.

PN160

That objective fact exists, if it exists at all, independently of anyone's subjective knowledge of its existence. Subjective knowledge of the existence of the objective fact is statutorily irrelevant. It simply doesn't matter. There may or may not be a point in time during any voting process when the entirely objective test propounded in subsection (1) is met. When that moment arrives the agreement is made, whether anyone knows it or not.

PN161

Our learned friend's response to that is to read into subsection (1) the test which is articulated in paragraph 58 of his written submissions. It is simply impossible to read subsection (1) as though the language that there appears is to be read as paragraph 58 suggests. It simply does not say that an agreement is made when the outcome of the vote is known. If parliament wanted to say that, it could have. It did not.

PN162

THE DEPUTY PRESIDENT: Except if you're right, the effect would be that at some nanosecond in time when the person who constitutes the 51st percentile of the total number of persons who cast a valid vote casts his or her valid vote, the clock starts ticking, and in every case the commission would have to extend time in which to make the application.

PN163

MR NEIL: Correct.

PN164

THE DEPUTY PRESIDENT: If the application must be made within 14 days after the agreement is made, then there's a lot of agreements where the application hasn't been validly made if you're right, because the customary thing is to declare the agreement was made on the day - we've got to give people - I think there's somewhere else, and I haven't had a chance to look at this in a lot of detail, but there's another provision in the Act where you have to tell them the period over which the ballot will take place, and there's a closing gate, and it has to be within certain time frames.

PN165

Typically they declare on the closing date that the agreement was made on that date, and then you look back and a whole range of other things come into effect, so when they are asked to make it, time lines start operating about notices of employee representative rights, the last one must be given, seven-day period of consideration; a whole lot of things hang off the concept that there's a period during which a ballot starts and a period during which it finishes.

PN166

MR NEIL: Yes, but section 182 subsection (1) doesn't talk about any of those things.

PN167

THE DEPUTY PRESIDENT: But don't you have to construe a statute or a statutory provision in the context of the section in which - or the other provisions in which it operates and within the - - -

PN168

MR NEIL: Yes, to a degree, unless the language is intractable, as is the case here. The only provision that hangs off the making of the agreement is subsection (3) in section 185. That's the only one. That's the tail by which the applicant is wagging the dog. Not just wagging the dog, but picking it up, shaking it and turning it into a cat. That's the only provision upon which the applicant's argument hangs.

PN169

Of course, it is immediately apparent when one looks at subsection 185(3) that there is no magic in the 14 days. That subsection provides for two periods and does not express any preference between either one of them. The fact that a practice has developed whereby no-one bothers or commonly no-one bothers to ask for or obtain an extension of time under paragraph (b) proves nothing about the way in which subsection 182(1) ought to be construed.

PN170

We ask rhetorically, Deputy President, how can you read the words that appear in paragraph 58 of our learned friend's submission into subsection 182(1)? How can you do it? The whole concept of the counting and declaration of a ballot is extraneous to the test propounded in subsection 182(1). As it happens, it's also extraneous to the test propounded in subsection (2) of the same provision.

PN171

THE DEPUTY PRESIDENT: What do you say about the authority that the applicant has put in its outline?

PN172

MR NEIL: That is the decision in the Federal Magistrates Court?

PN173

THE DEPUTY PRESIDENT: Yes.

PN174

MR NEIL: It says nothing about the present question. What it says is that it is impermissible for an employer to call a ballot to an end once the requisite majority has been obtained. We accept that proposition. Every employee is entitled to vote, but - - -

PN175

THE DEPUTY PRESIDENT: Whether their vote is an exercise in futility or not?

PN176

MR NEIL: In every ballot cast in this country, the result of which depends upon the attainment of a simple majority, whether that ballot relate to the election of the federal parliament or a state parliament or the committee of management of a registered organisation or the approval of an enterprise agreement, every single ballot is characterised by one circumstance and that is, everyone who votes after the majority has been obtained, whether they vote yes or no, cannot influence the result. There is no answer to that proposition. Every employee must vote, but any employee who votes in a subsection (1) ballot, who casts their vote after the simple majority has been obtained, whether they vote yes or no, cannot influence the result.

PN177

THE DEPUTY PRESIDENT: They don't have to vote. It's not compulsory.

PN178

MR NEIL: No.

PN179

THE DEPUTY PRESIDENT: A lot of them don't.

PN180

MR NEIL: But that's not the point. If they do vote, it doesn't matter. They cannot influence the result one way or the other. Why? Because the result of the ballot is already objectively in existence as soon as, at the very moment that, a simple majority of valid votes is cast.

PN181

THE DEPUTY PRESIDENT: I understand your argument.

PN182

MR NEIL: Of course, because of the terms of the order that is sought this debate really doesn't matter very much at all, and that's because this ballot, whether the interim order is made or not, will continue until the end of the voting process. By 11 December the ballot will close. Every employee who intends to vote will by that time have voted. They will have no opportunity to return to their vote and ensure its validity if for some reason they have not succeeded in casting a valid vote. The universe of valid votes will by that date exist, by 11 December, whether the interim order is made or not.

PN183

On that date, if not before - on that day then the objective fact of whether the agreement is made or not will exist. If a majority of employees who are entitled to vote have cast valid votes in favour of the agreement then the agreement will be made, and that will be so whether anyone knows that fact or not. The interim order cannot stop the subsection 182(1) fact from coming into existence in the event that as a matter of objective fact there is a majority in favour of the agreement.

PN184

The interim order cannot undo that objective fact, nor can any scope or bargaining order that might later be made in these or the related proceedings. Once an agreement is made, the process that follows is inexorable. Nothing can be done by any of the orders presently in contemplation to stop it.

PN185

An application must be made - must be made - by a bargaining representative to the commission for the approval of the agreement. The commission must hear and determine that application. The commission must approve the agreement if all of the requirements of sections 186 and 187 are met. Those requirements include satisfaction under subsection 186(3) that the group of employees covered by the agreement was fairly chosen. There is no power to amend an agreement in the period after the agreement is made and before application is made to the commission for its approval - no power to amend an agreement.

PN186

THE DEPUTY PRESIDENT: Correct any document? It happens quite a bit, Mr Neil, I can tell you, where the parties tell us they have made a mistake, they have left out a schedule that they meant to put in it, and everyone flicks in an email, and customarily a typographical error is corrected.

PN187

MR NEIL: No, no authority can be found for that proposition. There is one statutorily authorised opportunity to revisit an agreement once it is made and that is by way of an undertaking under section - - -

PN188

THE DEPUTY PRESIDENT: 196, I think.

PN189

MR NEIL: It's 190, which, by the operation of paragraph 190(3)(b), might have the consequence of effecting a change, albeit not a substantial change to the agreement.

PN190

THE DEPUTY PRESIDENT: I don't think it does. I frequently get undertakings framed as variations. I don't agree that they vary the agreement. They just affect how it will operate. But what about section 586 that allows an application and a document to be corrected - I mean, we're probably having an esoteric argument anyway.

PN191

MR NEIL: We are to a degree, but that provision could not authorise an amendment to an agreement that was made, because the only agreement that can ever be approved by the commission is an agreement made as a consequence of a process of voting carried out under the Act. What has to come to the commission is the agreement that is made as a consequence of that process of voting, not something else. If it's something else then the commission can't approve it.

PN192

There are two possibilities, objectively speaking. Those two possibilities are open regardless of whether the interim order is made or not. One possibility is that the agreement is not approved by a majority of employees eligible to vote who have cast a valid vote. In that circumstance then it would be open for bargaining to continue and it would be open for the applicant, if it wished to do so, to make application for such scope or bargaining orders as it wished.

PN193

The only other available possibility is that, as a matter of objective fact, a majority of employees eligible to vote who cast a valid vote approve the agreement. In that circumstance the inexorable processes that we have described would be initiated and run until their conclusion.

PN194

One of those conclusions might be that for one reason or another the commission determined that it would not approve the agreement. One of those reasons might be that which is described in subsection 186(3), namely a conclusion or an absence of satisfaction that the group of employees covered by the agreement was fairly chosen. In that event the commission would not, could not, approve the agreement. In that circumstance, then again it would be open for bargaining to resume and the applicant to bring application for such scope or bargaining orders as it wished.

PN195

What the applicant is really proposing here is that the interim order be made, the commission and the parties and the employees, who constitute the electorate, all be kept in ignorance of the result of the ballot while the commission, the applicant and Powerlink all solemnly dealt with and, in the case of the commission, disposed of the applicant's substantive application for a scope order, only then to discover whether the outcome of that application had any utility or not. When the veil was magically lifted, and the commission, the parties and the employees became entitled to know whether an agreement had been made or not, only then would it be known whether there was any utility in the scope order.

PN196

If the agreement had in fact been made back in December 2014, then no scope order would make a blind bit of difference to the result. There would be nothing upon which the scope order could operate - nothing. The agreement made in December would have to go to the commission for approval and have to be dealt with by the commission in accordance with the Act. It would all have been a complete waste of time.

PN197

THE DEPUTY PRESIDENT: So your argument is even if the scope order was made and then the outcome of the ballot was made known, the agreement would be made, it would go to the commission for approval and the scope order couldn’t have any effect?

PN198

MR NEIL: Of course. Of course, because the scope order couldn’t alter the fact that the agreement had already been made.

PN199

THE DEPUTY PRESIDENT: Except the union also has an application for final relief as well in terms of the bargaining order.

PN200

MR NEIL: That would still make no difference. There would be no more bargaining. There’s nothing left to bargain about. In the period between the making of the agreement and the commission’s determination of whether that agreement should be approved or not there is nothing left to bargain about. The agreement can’t be altered by any amount of bargaining that takes place in that period of time.

PN201

THE DEPUTY PRESIDENT: So if the scope order was made and at the end of that process the agreement had been made, then no final order could be made with respect to the bargaining order application and the agreement would have to go forward for approval regardless of the fact the scope order had been made.

PN202

MR NEIL: Correct. However unfortunate that may be for the applicant, it is the inevitable consequence of its own delay. That is so whether I accept your argument about the point at which the agreement is made or not?---Correct, because whatever happens, whether that argument is correct or not, the ballot will close. It will close on 11 December. The interim order does not seek to prevent that event from happening, and if not at any early date then at least by that date, then the fact of whether the agreement had been approved my a majority of employees eligible to vote and casting a valid vote would exist as an objective fact and nothing could be done, not by the interim order presently sought and not by any order of which anyone with the greatest ingenuity could conceive.

PN203

Nothing could be done to alter that fact. That’s the consequence of the quality of industrial democracy that lies at the heart of these provisions. Ultimately the decision about whether the agreement should be accepted or not is entrusted not to Powerlink, not to the applicant, but to the employees who will be affected by it, and their vote and the result of that vote cannot be altered by anything that Powerlink can do or that the applicant can do or, with the greatest of respect, that the commission can do. No order can be made. No order can be made that changes the result of the employees’ will once that will is expressed in a lawful ballot.

PN204

THE DEPUTY PRESIDENT: Unless it’s an order that the ballot stop.

PN205

MR NEIL: That has not been sought.

PN206

THE DEPUTY PRESIDENT: Understood.

PN207

MR NEIL: That has not been sought. It is for that reason that we say and submit that the interim order has no legal or practical utility. It is completely useless and a waste of time, a waste of time that is sought for no other purpose, we submit, no other purpose than to impede progress towards the ultimate approval of this agreement if it is made as a consequence of a vote in the ballot which is presently underway.

PN208

THE DEPUTY PRESIDENT: So you say even though it could have no legal effect, it would still impede the ballot process because it would discourage people from voting.

PN209

MR NEIL: I go back to the prejudice we point to. It must have some effect or influence on those employees who have not yet voted. It is simply impossible as a matter of ordinary human experience to think that those employees would not be influenced by the making of such an order. We don’t know what that influence would be. It is unknowable and intangible, but it is insidious and it must be real. It must be real. Ultimately, of course, what the applicant wants to do is to put aside the result of the ballot and postpone the day when - if the agreement is made as a consequence of the ballot, postpone the day when the commission is asked to approve the agreement. The applicant does not want this agreement to be approved. That’s the inevitable conclusion that one must draw from the position that it has taken, and what we have here is a tactical manoeuvre to manufacture a circumstance to postpone that date. That’s what pulls all the submissions that we have made together.

PN210

Commissioner, we’ve also dealt with a number of other propositions in our written submissions. We have made a submission in section E that there is no case for the so-called substantive underlying bargaining order for which application is made in these proceedings. In section F we have made submissions that the applicant has a weak case for the scope order sought in the related matter. We don’t wish to add to what we have there put. The evidence which supports those propositions is all set out in the table that we have handed up. We did want to draw attention to three other particular circumstances.

PN211

THE DEPUTY PRESIDENT: Sorry, can I just ask you about paragraph 12 where you say that an interim order can only be sought in aid of a final order in the same matter and that the defect is now incurable. Is it cured by the fact that the order is now sought - that there’s an application for a bargaining order and the draft order that’s being proposed now seeks that the interim order be made pending not only the determination of the scope order but the final - - -

PN212

MR NEIL: The term of the bargaining order is really just another way of expressing the interim order. There is in fact no substantive bargaining order. When one looks at the so-called bargaining order it is revealed to be nothing more than an interim order designed to hold the position pending the hearing and determination of the application for a scope order. It’s just an interim order, and whatever else, section - - -

PN213

THE DEPUTY PRESIDENT: 589(2).

PN214

MR NEIL: - - - 589(2) does, and we do make some submissions in section C about that, whatever else it does, it is not a free-standing order. It does not authorise a free-standing order. It can only be made, an interim order can only be made, in aid of a final order. It can’t be made in aid of itself.

PN215

THE DEPUTY PRESIDENT: So you say there’s no application for a final order.

PN216

MR NEIL: No, correct.

PN217

THE DEPUTY PRESIDENT: And adding in a reference to the determination of - I’m just conscious that there was an amendment to the draft order that was proposed.

PN218

MR NEIL: That’s so.

PN219

THE DEPUTY PRESIDENT: But you say that doesn’t cure the defect because it’s still an interim order.

PN220

MR NEIL: That’s so. The reference to the scope order is a reference to a final order made in different proceedings. The interim order is not sought in the scope order proceedings, it’s sought in these proceedings. The language of the so-called bargaining order that is sought in the substantive application in these proceedings is as follows: “Until the hearing and determination of the scope order application or such further order that the respondent take no steps to proceed with or progress the ballot of its employees in respect of the proposed working with Powerlink agreement,” et cetera.

PN221

THE DEPUTY PRESIDENT: But as I understand it, the order that’s now sought is that until application B2014/1638 and 2014/1637 is heard and determined.

PN222

MR NEIL: That's so, but the scope - one of them - I'm not sure which one it is - is a reference to the application for a final scope order.

PN223

THE DEPUTY PRESIDENT: Yes, and the other is the application - 1637 is the application for a bargaining order.

PN224

MR NEIL: But there is no final bargaining order sought. I'm sorry, I don't know that I can - unless I'm looking at the wrong application, unless there's been some amendment since 25 November, there is - - -

PN225

THE DEPUTY PRESIDENT: Sorry, I'm not looking at the application, I'm looking at the draft order that's being sought.

PN226

MR NEIL: Yes, the draft order - yes, and that is a draft order which is sought in matter number - in the bargaining order matter, whatever that number is.

PN227

THE DEPUTY PRESIDENT: Yes.

PN228

MR NEIL: And the bargaining order matter does not ask for any final relief. I'm sorry, I keep hearing the words, "Yes, it does," but I'm not sure - perhaps there has been an amendment since 25 November.

PN229

THE DEPUTY PRESIDENT: No, I accept that the application says in item - the actual application in B1637 as it was filed says in paragraph 6, "Until the hearing and determination of the scope order application or such further order, that the respondent take no step" - and I accept that's an application for an interim order without apparently an application for final relief.

PN230

MR NEIL: Yes.

PN231

THE DEPUTY PRESIDENT: But my point is, by amending - the applicant was asked to file a draft order.

PN232

MR NEIL: Yes.

PN233

THE DEPUTY PRESIDENT: By amending the draft order, has it cured that issue?

PN234

MR NEIL: No, because no final bargaining order is sought. There is no application for final relief of a kind authorised by section 231, which, as a result of section 230 subsection (4) is a mandatory - sets out the mandatory requirements of a bargaining order.

PN235

THE DEPUTY PRESIDENT: So you say, because the draft order doesn't deal with the situation past the hearing and determination of the scope application, it's an interim order.

PN236

MR NEIL: No. What we say is, it's not a bargaining order. There is no application for - I'm sorry to repeat myself, Deputy President, but I'm afraid that I can't think of any other way to put this. There is no application for a bargaining order that answers any of the descriptions in section 230 subsection (1) which, by the operation of section 230 subsection (4), is mandatory.

PN237

The only application that is made in these proceedings - the bargaining order proceedings - is for an interim order, and you cannot have a proceeding in which only an interim order is sought. An interim order can only be made in aid of an application for a substantive final order. Absent such an application, the application for the interim order is beyond jurisdiction.

PN238

Now, the position might be different if the application for this interim order had been made in the related scope order proceedings. Then this argument would not be available, but it's not. Those proceedings aren't listed. We're not dealing with those. There's been no evidence led in support of the scope order proceedings. In those circumstances, the present application is fatally flawed, and that flaw can't be cured. It's too late.

PN239

THE DEPUTY PRESIDENT: Or if the application was that the ballot will cease pending the determination of the scope order and then the order will become absolute; that the ballot will not - - -

PN240

MR NEIL: If such a course were to be taken, first there would need to be an application to amend. That application would understandably be opposed. If it were granted, there would need to be an adjournment, because a wholly new argument would need to be prepared, and rising to the fore of that would be the next consideration that we wanted to bring to your attention so far as the present application is concerned as presently formulated.

PN241

THE DEPUTY PRESIDENT: Yes.

PN242

MR NEIL: It is dealt with in our written submissions in section H. Of all of the parties presently represented, only one is a party or would be a party to the proposed agreement. That's Powerlink. The other parties to the proposed agreement, if that agreement were made and approved, are Powerlink's employees or those of them to whom the agreement would be applied. The applicant and the Services Union would be strangers to that agreement. They might be covered by it if they took the steps set out in section 183 but they would not be parties to the agreement. There would be no contract between us and them.

PN243

Now, of the prospective parties to the proposed agreement, one side is missing. You have not heard one word, whether directly or indirectly, whether by hearsay or otherwise - not one word - from any single employee who would be covered by this agreement, not one.

PN244

They are entirely unrepresented and they been given no opportunity to be heard in connection with the present application. That is a powerful - indeed, in our submission, a compelling reason why the present application would not be granted. It would be an even more compelling consideration if the application were to be amended and the applicant were to be allowed to proceed with an application for an order stopping the ballot and disenfranchising some of those employees. You don't know, because you have not been told, what attitude any employee has - any employee has - towards the present application or the proposed agreement. You know nothing about that.

PN245

The next of the considerations that we wish to point to or wish to address some submissions to relates to the proposition central to the applicant's case that the proposed agreement oppresses employees in the technical stream. Much of the applicant's submissions address that proposition. It is entirely irrelevant.

PN246

Deputy President, suppose you were to find as a fact that you were satisfied that the proposed agreement included provisions that disadvantaged employees in the technical stream and that on balance that disadvantage outweighed any disadvantage that employees in any other stream might suffer if the agreement was made. Suppose you were to make such a finding.

PN247

We of course, as you have seen, submit - and strongly submit - that no such finding could be made, but let us suppose for the purpose of the argument that you were persuaded otherwise. Those findings would be entirely irrelevant. There are three reasons why. First, they would not justify a scope order on a final or an interim basis because they would not be sufficient to meet the requirements of subsection (4) of section 238, the terms of which we respectfully invite your attention.

PN248

Such a finding would say nothing about paragraph (a), it would say nothing about paragraph (b), it would say nothing about paragraph (c) and would be irrelevant to any consideration of paragraph (d). How can the result at the end of a process of bargaining tell you anything about whether the bargaining itself had been conducted in a fair and efficient manner or whether the group of employees who had participated in the bargaining had been fairly chosen at the outset? The answer is, it would not, we respectfully submit.

PN249

It might be otherwise, at least to paragraph (b), if there was some evidence that during the course of bargaining other employee bargaining representatives, representing other streams of employees, had ganged up on the technical stream employees and shouted them down, but there is no evidence of that. In fact the evidence is all the other way.

PN250

The evidence is that each of the unions represents employees in more than one stream, each of the unions bargained from beginning to end as part of a single bargaining unit, and each of them adopted a common and united position in response to Powerlink's claims - each of them. The idea that is propounded, for example, in the second sentence of paragraph 3 of the applicant's submissions is illogical. It's illogical for the reasons that we give at subparagraph 18(b) of our submissions.

PN251

There's no direct evidence to support any finding that employees in streams other than the technical stream will or might outvote employees in the technical stream, because there is no evidence that employees in any of those other streams will vote as a bloc, or at least in sufficient numbers to outvote employees in the technical stream, just as there is no evidence that employees in the technical stream will all vote the same way, and it can't be inferred; it can't be inferred as a matter of logic and it can't be inferred if one has a look at the evidence. There may be all sorts of reasons why employees in other streams would not vote as a bloc.

PN252

A very powerful consideration here is that the Services Union, which represents very many employees not just in the technical stream but elsewhere, is here to support the position of the ETU. Another powerful consideration is that the ETU's representation is not confined to employees in the technical stream but includes employees in other streams. The idea that there is any risk or any basis to conclude that there is a risk that employees in the technical stream will be outvoted by a large bloc of employees in other streams is simply unsupported by the direct evidence and illogical as a matter of inference.

PN253

It may be, of course, that a finding that provisions of the proposed agreement disproportionately disadvantage employees in the technical stream could be relevant at the point of approval. We don't urge a final position in relation to that, but we do draw attention to paragraphs 31 and 46 of the applicant's submissions, which appear to us to suggest that the applicant at least proposes that it will run precisely that argument if the time comes.

PN254

The last matter to which we would wish to draw particular attention is dealt with in section I of our written submissions. It relies on a decision given by Lawler VP in 2003 and it draws attention to the often overlooked requirement that if there is to be an interim order in the nature of an interlocutory injunction that there be an enforceable undertaking as to damages.

PN255

Damage is a very real consideration here. There's damage to Powerlink if the ultimate approval of any agreement that is made is held up and it does not have access to the operational advantages that it seeks in the proposed - or benefits that it seeks in the proposed agreement, and there's damage to the employees who voted to approve the agreement, if that happens, when they are held out of the benefits of the proposed agreement, including the very substantial wage increases that it reflects. We have not seen any such undertaking offered by the applicant in support of the present application and in its absence it can't be made.

PN256

If it please the commission, unless there is anything more with which we can assist you, then those are the oral submissions that we wish to make to supplement our written submissions.

PN257

THE DEPUTY PRESIDENT: Can I just ask you about the submission that you made with respect to the fact that - or your assertion that an order on the grounds that the applicant is seeking it would not relate to any of the requirements in section 238 subsection (4).

PN258

MR NEIL: Yes.

PN259

THE DEPUTY PRESIDENT: Isn't it the case that the issue of whether a certain group of employees might be overborne by the larger group is a factor that frequently leads to a scope application being made?

PN260

MR NEIL: It's not the fact that it's overborne. It's that it disproportionately disadvantages them. That's the fact for which the applicant contends and that is not a ground that supports the making of a scope order.

PN261

THE DEPUTY PRESIDENT: But another way of looking at it is that, leaving aside the question of whether it disproportionately affects them, the concern is that they're the minority in the overall group, and that is a basis upon which a scope application can be made.

PN262

MR NEIL: It's important to observe, we would submit, that the requirements of subsection (4) are cumulative, not disjunctive.

PN263

THE DEPUTY PRESIDENT: Yes.

PN264

MR NEIL: It's not enough to have one, so everyone has to be satisfied. For example, one has to find, in relation to whether the group is fairly chosen or not, that the group is geographically operational and organisationally distinct. The finding for which the applicant contends says nothing about that question.

PN265

THE DEPUTY PRESIDENT: So really your point is: because the basis upon which the assertion is made is the provisions that are now being put out to vote that are said to disproportionately affect people, that's not the relevant consideration.

PN266

MR NEIL: Correct.

PN267

THE DEPUTY PRESIDENT: Really, if that argument was going to be made, it should have been made at the point when the concern arose rather than at the end of the day when something went out that had provisions that are now said to disproportionately disadvantage?

PN268

MR NEIL: Correct. There is, may we submit with respect, substantial harmony in the propositions that we are advancing. If that fact were so, then it was known way back, at least at 28 October, if not before. That was the time to make this application, not now, not at the very end, at the end of the bargaining process, at what we have described in our written submissions as the eleventh hour, when bargaining has concluded and the proposed agreement is out there. It's already been voted on by at least 65 per cent of the employees who are eligible to vote. We're at the very last gasp of the process and the applicant wants to say, "Stop. Let us go back to the beginning," and hive us off and start again.

PN269

THE DEPUTY PRESIDENT: I understand.

PN270

MR NEIL: Deputy President, at the risk - I rather suspect I am at the point where I'm about to make the same submissions all over again.

PN271

THE DEPUTY PRESIDENT: No, I understand. Thank you, Mr Neil.

PN272

MR NEIL: Those are our submissions.

PN273

THE DEPUTY PRESIDENT: Thank you. Mr Friend.

PN274

MR FRIEND: Can I deal with that point, because that's the first point that my learned friend made, that of delay. The thing that has led to the application for a scope order is the unfairness that arises from the technical stream being singled out. Until 10 or 11 November everyone in the proposed agreement was going to suffer a very significant detriment. Everybody was going to lose their job security, the no forced redundancy provision. That was removed from the equation on 11 November and the only group significantly adversely affected by changes in conditions after that time was the technical stream.

PN275

THE DEPUTY PRESIDENT: If I accept all of Mr Traill’s affidavit, all of his statement, as being correct, on his own statement he was raising the issue of scope back in June 2014.

PN276

MR FRIEND: He was. He raised scope a few times and said, “We want you to consider our claims and if you’re not dealing with our claims,” I think, the log of claims that the union filed, “then we’ll make a scope application,” but on 11 November, if you look at his affidavit at paragraph 114, he raises all these issues, 113 and 14, and what is said to him is - “I don’t remember who,” he says, “but the words were, ‘We’re considering all of your claims. We note your concerns.’”

PN277

THE DEPUTY PRESIDENT: But he knew then they weren’t - if that’s correct and someone said that, he knew that they actually weren’t because they were going to put the agreement out to vote. So how could they have been?

PN278

MR FRIEND: If you then go to the notes of the meeting at exhibit 36 on page 4 of those notes Rebecca Girard the ASU says, “The first time you’ve tabled this version. If we come back with feedback next week is it PQ’s intention to put it out if they have feedback?” and what’s said is, “We’ll consider it and then we reserve our rights to put out a ballot.” It was still up in the air at that stage, but there was this huge change on 10 November. The agreement is dropped on 10 or 11 November. The union asks for more time to consider it. They’re told by the 19th that there will not be more time to consider it. On the 19th the letter was written, the response was received on the 21st and the application was made on 25 November, four days after the response, two of which were a weekend.

PN279

THE DEPUTY PRESIDENT: If you look at the minutes of that meeting, then Ms Girard is asking about the intent to go out to vote and the response is, “Yes, it’s our intention. The first time you’ve tabled this version,” but then underneath, “We’ll consider it,” “We reserve our rights to put it out to ballot.”

PN280

MR FRIEND: Well, that’s not, “We’re definitely going to put it out to ballot.” By that time steps in contemplation of being taken were taken after the employer refused to allow more time to consider the agreement.

PN281

THE DEPUTY PRESIDENT: On 23 October there’s an EB update that’s put out by the applicant. It’s annexure 3 to Ms Bevan’s statement where there’s also a suggestion that, “We anticipate that the premier will order Energex, Ergon Energy and Powerlink to pursue the non-union endorsed agreement some time in the next few weeks.” So they’re - - -

PN282

MR FRIEND: Sure, but they’re pursuing an agreement at that stage which affects everyone equally in a significantly detrimental way. It’s not until the treasurer’s announcement on 10 November that there’s not going to be any removal of a job security clause that it changes and it becomes unfair then.

PN283

THE DEPUTY PRESIDENT: But again, all the clauses the ETU complains about were already in the version as at 23 October.

PN284

MR FRIEND: Those clauses were there and Powerlink was still saying they were considering them even at the 10th and were going to talk about them, but the position became significantly more unfair when the other employees were placed in a position where they didn’t have any detrimental effects from the new agreement, only a pay increase. To say, as my learned friend says, that you can’t tell what’s going to happen in regard to the voting is just really to ignore human nature. If people are offered a pay increase with no significant efficiency changes, it’s unlikely they’re going to vote against it.

PN285

THE DEPUTY PRESIDENT: Yes, and the ETU is obviously well aware of that, because they say in their communication they may put a up-front bribe of cash into the deal so employees will take a short-term sugar hit.

PN286

MR FRIEND: Sure, but they didn’t in fact do that. It’s not the generous wage rise that - - -

PN287

THE DEPUTY PRESIDENT: But I guess the point I’m making is it doesn’t appear on any of this material that it can come as any surprise that Powerlink put the agreement out to ballot.

PN288

MR FRIEND: It all happened within the space of a few days, the change in the agreement, the significant change, by removing the proposal to get rid of the job security terms but to keep the detrimental terms for the technical stream that changed the landscape, and it was meant to change the landscape.

PN289

THE DEPUTY PRESIDENT: So if it was going to unfairly affect everybody the same it would have been okay to put it out to ballot.

PN290

MR FRIEND: Yes, because then you’re not having one group singled out and overwhelmed by the potential votes of the others. That’s the point. That is the whole point of this application. The real basis for it didn’t arise until the treasurer’s announcement, when instead of everyone being affected in a significantly detrimental way only one group was, the minority. There was no delay from that time to the time the application was made.

PN291

THE DEPUTY PRESIDENT: But the treasurer’s announcement simply meant that the ETU was - even before the treasurer’s announcement, on its own material the ETU was more detrimentally affected, because not only was it losing the no forced redundancy, it was losing those other things.

PN292

MR FRIEND: I accept that. I accept that, Deputy President, but there’s levels of these things and you have to consider what effects they’re likely to have in determining how it operates in a real way, in a practical sense. As Mr Massy points out to me, Powerlink did a survey, which is in the material that’s in Ms Bevan’s affidavit, and the overwhelming majority of employees thought that employment security was the major factor.

PN293

THE DEPUTY PRESIDENT: Yes, which caused the change in - - -

PN294

MR FRIEND: Which is what led to the change. So they’ve got something that’s a roadblock to the agreement. It’s not the ETU changes, because they’re the minority, but there’s a roadblock to the agreement here. They take that away and then the ETU changes are left out on their own, and that’s when the unfairness arose. The next major issue is this issue about 182. Deputy President, with respect, you correctly pointed out to my learned friend that you construe the section within the Act. The construction that he proposes for section 182(1) is impossible, because you never know when an agreement is approved, and things depend on that. Time-frames depend on that. How can the commission be satisfied that the application has been made in time in any case where it is theoretically possible that more than 14 days has elapsed from the casting of that 55th per centile vote?

PN295

The difference between subsection (1) and subsection (2) is easily explained. Subsection (2) deals with multi employer agreements where there obviously are likely to be different ballot processes which might even be at different times. The construction that Mr Neil puts on subsection (1) would necessitate a counting of the votes and an ascertainment of whether or not they’re valid every day and perhaps during the course of - well, at least every day, and therefore perhaps the publication of how the voting is going out in the community of employees. Is it a few more in favour or a few behind, or what’s the circumstance? We all know that that’s not the way elections are conducted, not the way ballots are taken. It’s inappropriate.

PN296

Given those two very significant inconvenient consequences of that construction you ask what do the words mean in the context of the Act where all these time-frames apply? They mean that the clock starts to run when you ascertained at the conclusion of the ballot which votes are valid and whether there's a majority. The agreement doesn't suddenly become made in a vacuum when no-one knows about it.

PN297

THE DEPUTY PRESIDENT: I don't know, Mr Friend, that I am entirely comfortable either with that kind of existentialist approach that until I know about it - "I think, therefore I am."

PN298

MR FRIEND: Berkeley's chair, yes. You can look at it in a philosophical sense as a question of pure logic, and as a question of pure logic then at some stage that 51st percentile vote will be cast, but the real question is: what did parliament intend when it passed that legislation as to when the clock would start running for the 14 days? When that theoretical 51st percentile vote was cast and no-one knew about it or were they thinking of things operating in the real world and saying it was when the votes were - their validity was ascertained and they were counted? We submit that the second proposition is the only sensible one in all the circumstances.

PN299

At the end of my submissions, Deputy President, you asked if it might not be the circumstance that even if we failed in a scope order application we might turn up at the approval hearing and try and run the whole argument again, and I am instructed to say on transcript that if that occurred we wouldn't turn up on the approval hearing and try and run the whole argument again.

PN300

Can I next turn to this question about the nature of the order that's sought, the bargaining order. The final order sought in the bargaining application is a perfectly acceptable and appropriate one. The bargaining application seeks to ensure that bargaining proceeds fairly. The final order is: until the hearing and determination of the scope order application or such further order, the respondent take no step to proceed with the progress - or progress the ballot in respect of the proposed agreement.

PN301

If the scope application succeeds there may be a case for "or such further order". If the scope application fails then the bargaining order would have no work to do because there would be nothing legitimate for it to protect. What we're trying to protect is the scope application.

PN302

THE DEPUTY PRESIDENT: So it's self-determining?

PN303

MR FRIEND: Yes, but it is a final order and it's sought as a final order notwithstanding that it's cast in those terms. It's cast deliberately in those terms to obtain the minimum relief which is necessary to protect the interests of the employees. That's also the reason that it wasn't sought to stop the ballot. We're almost invited to make an amendment to stop the ballot. We don't want to stop the ballot. The ballot is taking place. If we're right, we're right and orders can be made which deal with things which prevent the counting of the votes - bargaining orders; prevent any determination of the ballot; that then disappears into history because there's a scope order and bargaining has to proceed in a different way.

PN304

THE DEPUTY PRESIDENT: But it would take another order, wouldn't it, to effect that. It would - - -

PN305

MR FRIEND: It's the "or further order" that's in the bargaining order application that provides for that. But we have deliberately said let's try and interfere, as it were, with this process at the conclusion of the ballot so that it can take place and so that the prejudice to the employer, if there be any, is as little as possible, because of course if the ballot was stopped absolutely we'd have arguments about the time taken to start a new one and the cost of all of that, and we understand that. We're not trying to create that situation.

PN306

We're not trying to create delay. As you will remember, Deputy President, we were keen to have a hearing of the scope order application in full this week, to allow everything to take its course. The huge scaffolding of surmise that came from Mr Neil about the motives of the union are simply not based in fact and not supported by what's happened in this commission.

PN307

Can I also draw to your attention that the interim bargaining order made in the HSU v VHIA case - and I don't think that's in the list of authorities. The case is there, but the order isn't. It's PR522059. We'll send it to you - probably first thing in the morning rather than later tonight. I'm sure you won't want to read it tonight, Deputy President.

PN308

THE DEPUTY PRESIDENT: I really don't have much choice, Mr Friend. I've got a matter all day tomorrow at 10 o'clock.

PN309

MR FRIEND: We will send it to you tonight and I will speak more quickly.

PN310

THE DEPUTY PRESIDENT: That's all right. Take your time.

PN311

MR FRIEND: Thank you.

PN312

Further to the decision issued and pursuant to sections 230 and 589 of the Fair Work Act it is ordered that until application B2012/520 is heard and determined or until further order of Fair Work Australia, the Victorian Hospitals Industrial Association and the employers respondent to that application shall not take steps under sections 180 and 181 of the Act.

PN313

Our interim order is based on that order, and that's made by a full bench. We will email it to you.

PN314

THE DEPUTY PRESIDENT: I can get it. So it's PR522059?

PN315

MR FRIEND: It is. Thank you, Deputy President. I apologise for not making that available.

PN316

THE DEPUTY PRESIDENT: That's all right.

PN317

MR FRIEND: Next, it's said that we're a stranger to the agreement, but we are the bargaining representatives for the employees. That's how these things work. We're in there and the employer is engaging with us, bargaining about what should go into the agreement. It's a really odd submission, I suggest, to say that we don't have anything to do with it and don't represent those people who we've been bargaining on behalf of since August.

PN318

In respect of the scope order it was suggested that we couldn't get a scope order on the basis of the case we put. We reject that. 238(4), which does, as my learned friend says, have concurrent requirements - and if we go through them. (4)(a):

PN319

The bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements.

PN320

No suggestion otherwise.

PN321

Making the order will promote the fair and efficient bargaining.

PN322

If the bargaining is not fair because the scope is wrong, and making a scope order will reduce, that, we can satisfy (b) and that's what we seek.

PN323

The group of employees to be covered by the agreement proposed to be specified in the scope order was fairly chosen.

PN324

We submit we'd easily satisfy that criterion. And:

PN325

It is reasonable in all the circumstances.

PN326

We submit that that would also be satisfied. (4)(a) is not, as my learned friend suggested, an absolute condition. It simply requires the commission to take into account whether the group is geographically, operationally or organisationally distinct. We'd submit that the technical stream is operationally distinct at least, but it's something that has to be taken into account. We don't have to tick that box to get the scope order.

PN327

THE DEPUTY PRESIDENT: But equally it's not, because it hasn't been before.

PN328

MR FRIEND: No. I think the MFB case says - well, in terms of - I beg your pardon, I'm thinking of "fairly chosen". If I can respectfully inquire, Deputy President, did you mean that because there's been an agreement involving all employees in the past - - -

PN329

THE DEPUTY PRESIDENT: Yes.

PN330

MR FRIEND: But that doesn't mean that you can't have a different scope order and it doesn't mean that at that time that group wasn't fairly chosen. In the MFB case, the major full bench scope case which first considered all these things in detail, the bench said, "Well, you can have two sets of groups that are fairly chosen."

PN331

THE DEPUTY PRESIDENT: There's a number of places in the submission where it seems to be asserted that the scope is the choice of the employer, and it's equally arguable that in this case everyone has just gone along with the scope and it's always been.

PN332

MR FRIEND: Not in terms of putting the agreement out. The negotiations have been conducted on that basis, I accept that, but once the landscape changed significantly, my client thought that the scope had become unfair, and then it became the employer's choice to put the agreement out or not. We couldn't do anything to stop that. So that's the purpose of that point.

PN333

Undertaking as to damages - if that's required, I'm instructed to give it in the form that's usually required in the Federal Court of Australia. There's a practice note, and my learned friend would be well aware of it.

PN334

THE DEPUTY PRESIDENT: I can't even begin to think how you'd quantify it.

PN335

MR FRIEND: Neither can I, Deputy President, but that's a matter for further down the track. If it's required, I'm instructed to give it on the part of the CEPU in the Federal Court form. That's to pay such amount as the commission considers appropriate in respect of any losses occasioned by the order. We don't think there will be anything significant. It would require the agreement to be approved and to come into force.

PN336

The agreement has a fixed date, 28 November of this year, for the start of the increase in pay, so there won't be anything there. There might be some being kept out of the two and three-quarters per cent over however long it takes for this to be sorted out. I'm not sure what loss Powerlink could point to, but those are matters that can be dealt with another day if necessary, and the undertaking offer is there if that's necessary.

PN337

MR NEIL: May we inquire whether that offer extends to losses occasioned to third parties, including employees?

PN338

MR FRIEND: It includes the employees.

PN339

MR NEIL: The Federal Court undertaking does not, but you are giving - - -

PN340

MR FRIEND: No, no. Yes, to the employees.

PN341

MR NEIL: Thank you.

PN342

MR FRIEND: And to the (indistinct) Unless there's anything further, Deputy President, those are our submissions.

PN343

THE DEPUTY PRESIDENT: Thank you, Mr Friend.

PN344

MR NEIL: Deputy President, may we deal with one matter that is new, as we understand it. We listened very carefully to the submissions made in reply, from which we detected that the so-called interim order that is being sought in the bargaining order proceedings - the proceedings you have before you now - is said to be, in effect, the final order that is sought in those proceedings.

PN345

THE DEPUTY PRESIDENT: That's as I understood it.

PN346

MR NEIL: If that is so, then the present application cannot be determined on an interlocutory basis.

PN347

MR FRIEND: That's not true.

PN348

MR NEIL: You must be satisfied of all of the matters in section 230 on a final, not an interlocutory, basis. You can't have your cake and eat it too, we say to the applicant. It's either a final order or an interim order and, if it's a final order, then, Deputy President, you must deal with it as such, including attaining the requisite degree of satisfaction required of a final order. That's a very important point.

PN349

Lastly, may we assist with just some calculations. If the date of the treasurer's announcement is the critical date in the applicant's case, nine days passed after that announcement before the applicant wrote to us, 15 passed after that announcement before the applicant made the present application and 23 days have passed since that announcement as we stand here now.

PN350

MR FRIEND: Can I simply in response to the first of those points, it is not uncommon in interlocutory applications for the relief that's sought to be, in effect, final relief. There has been a debate for many years over whether the test is different. There's a recent decision of the Court of Appeal in Victoria, which I think has been followed, called Bradto, which said the test is the same. You make the interim order and then at the final hearing it might be the same order.

PN351

In other words, if someone comes to court with a restraint of trade and they want to stop someone going out working, and it's not going to be heard for a year, the order - it's the same order. It's still an interim or interlocutory order and the test is the same, if the commission pleases.

PN352

THE DEPUTY PRESIDENT: Thank you. Can I indicate that I will reserve my decision but I'll issue it - what I want to do is stand the matter down for half an hour and consider whether I'll be in a position to indicate the outcome this evening and, if I do that, I'll give full reasons tomorrow. I understand time is of some significance, but also if any party is going to appeal, then if I've given you the decision you don't need the reasons.

PN353

My difficulty is, I've got a full day of hearing tomorrow in a matter that we're on about day 99, it feels like, and I'm going on leave on Friday evening and I'm away for a week. So I won't be back in time to write a decision. So I'll have to do the best I can in the circumstances. On that basis, I'll adjourn. I'll stand the matter down for half an hour.

<SHORT ADJOURNMENT [7.55PM]
<RESUMED [8.36PM]

PN354

THE COMMISSIONER: I'm in a position to indicate that I have reached a decision. In doing that, I would put on the record that I'm grateful to learned counsel and instructing solicitors for their assistance and their diligence in filing material and the submissions in a short time frame and for the manner in which they have conducted their respective cases.

PN355

I have considered all of the material and the submissions and, after doing so, I am not satisfied that the requirements necessary for an order to be made have been met and I intend to dismiss the application in B1367 of 2014 and an order to that effect will issue. I will provide written reasons for reaching that decision tomorrow.

PN356

I can also indicate to the parties that I have expedited the transcript of proceedings so that that should be available very quickly and hopefully by tomorrow. On that basis, I'll adjourn.

<ADJOURNED INDEFINITELY [8.38PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 STATEMENT OF MR TRAILL DATED 25 NOVEMBER 2014, TOGETHER WITH ATTACHMENTS PN43
EXHIBIT #2 STATEMENT OF MR TRAILL DATED 4 DECEMBER 2014 PN46
EXHIBIT #3 STATEMENT OF MS BEVAN, WITH ANNEXURES PN142