B2015/317, Transcript of Proceedings [2015] FWCTrans 177 (27 March 2015)

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Community and Public Sector Union
and
Commonwealth of Australia represented by the Department of Employment
(B2015/317)
DEEWR Enterprise Agreement 2012 - 2014

(ODN AG2012/1881)
[AE894557 Print PR524899]]

PN1

THE VICE PRESIDENT: Good morning, Mr Benfell. How are you?

PN2

MR BENFELL: Good thank you, your Honour: I appear for the CPSU and my name is Benfell, initial L.

PN3

THE VICE PRESIDENT: I take it you’ve got no objection to the grant of permission being given to Mr Vane-Tempest?

PN4

MR BENFELL: No, that’s correct, your Honour - but also I have with me (indistinct), I beg your pardon, initial B.

PN5

THE VICE PRESIDENT: Thank you. Hello, Mr Vane-Tempest.

PN6

MR VANE-TEMPEST: Hello, your Honour: I am unable to actually see you but I understand you’re on the bench there.

PN7

THE VICE PRESIDENT: Yes, that’s right.

PN8

MR VANE-TEMPEST: We seek permission to appear on behalf of the department and I understand that’s not opposed by the CPSU.

PN9

THE VICE PRESIDENT: Thank you. Pursuant to section 596(2)(a) I am satisfied that the efficiency of the matter will be increased materially by grant of permission. Mr Vane-Tempest is not opposed so I exercise my discretion to grant that permission.

PN10

MR VANE-TEMPEST: Thank you, your Honour.

PN11

THE VICE PRESIDENT: I understand that there’s no substantive opposition to an order being made in the sense that there’s no contention that the union has not and is not genuinely trying to reach an agreement. There’s only an issue around the content of the orders. Is that correct, Mr Vane-Tempest?

PN12

MR VANE-TEMPEST: That is so, your Honour - and, your Honour, if I can address you very briefly on that, just to give your Honour the latest status of the matter, as it were: I think the parties have been engaged in some fruitful discussions late yesterday and earlier this morning and we’ve commenced an exercise of trying to reduce to writing those matters that we’ve either agreed in part or in whole and which are outstanding. There are still a few of those matters which we think would be assisted by some further opportunity for discussion. Perhaps we could do that off the record, with your Honour’s assistance.

PN13

THE VICE PRESIDENT: That’s fine. So I’ll go off the record. You’re happy with that course, Mr Benfell?

PN14

MR BENFELL: Yes, your Honour.

PN15

THE VICE PRESIDENT: That’s fine; we’ll go off the record then now.

OFF THE RECORD [12.10 PM]

ON THE RECORD [2.12 PM]

PN16

THE VICE PRESIDENT: Mr Kidd, I understand that the VC equipment has not been working properly in Brisbane and you had difficulty hearing me and I apologise for the angry outburst directed at you in those circumstances when it was unwarranted. Now, as I understand it the parties have not reached agreement and you need an arbitral determination in relation to the issue that was being debated before.

PN17

MR BENFELL: Yes, your Honour. Well, we have reached accommodation on various matters but in relation to the compilation of the role and the information that the employer will be required under the directions to provide the ballot agent, unfortunately we have not reached agreement on that point.

PN18

THE VICE PRESIDENT: Can I just say I have two documents in front of me.

PN19

MR BENFELL: Yes.

PN20

THE VICE PRESIDENT: One is entitled, “Draft order,” which appears to incorporate - I withdraw that. I got a draft order which originally had directions in it and I’ve got another document of draft directions ‑ ‑ ‑

PN21

MR BENFELL: Perhaps you should mark them, your Honour, so there’s no misunderstanding about which one we’re dealing with.

PN22

THE VICE PRESIDENT: Okay. Do you have any difficulty with that, Mr Vane-Tempest?

PN23

MR VANE-TEMPEST: Sorry, your Honour: my understanding is that what we’ve provided to your Honour’s chambers is a marked-up version of what was an order that was proposed by the CPSU and effectively we’ve taken material that was previously in the order from the CPSU and represented that in some cases in the direction and in other cases what we’ve done is deleted the reasons that we think it’s unnecessary. So that’s the overall picture, your Honour, so the order itself will be shorter. Much of the material that was previously in the order is now in the directions.

PN24

THE VICE PRESIDENT: Mr Benfell was simply suggesting that it would be desirable to mark for identification or as exhibits the documents, so that there’s no debate in due course about what it is that we’ve been referring to. Do you have any ‑ ‑ ‑

PN25

MR VANE-TEMPEST: Thank you, your Honour. Yes - no, I have no objection to that.

PN26

THE VICE PRESIDENT: Right. Mr Benfell, do you happen to have a spare copy of the two documents - the two relevant documents - because I’m not 100 per cent certain that I’ve got in front of me what it is that you’re seeking.

PN27

MR BENFELL: Yes, I have, your Honour. Firstly, we have the draft order and directions that the union attached to the application which unfortunately I ‑ ‑ ‑

PN28

THE VICE PRESIDENT: Yes, that’s okay. No, I have that document attached to the application.

PN29

MR BENFELL: Yes. So that’s our initial order sought.

PN30

THE VICE PRESIDENT: I’ll mark the draft order as attached to the application as exhibit 1.

PN31

THE VICE PRESIDENT: That’s a document entitled, “Draft directions in fact.”

PN32

MR BENFELL: Sorry, there’s two documents attached to the application, your Honour. One was a draft order and also there was a draft directions.

PN33

THE VICE PRESIDENT: I will mark the draft order as - sorry, I withdraw the previous exhibit marking. I mark the draft order as exhibit CPSU1.

EXHIBIT #CPSU1 DRAFT ORDERS

PN34

THE VICE PRESIDENT: The draft directions attached to the application will be exhibit CPSU2.

EXHIBIT #CPSU2 DRAFT DIRECTIONS

PN35

MR BENFELL: Thank you, your Honour. The materials ‑ ‑ ‑

PN36

THE VICE PRESIDENT: Then there is a draft order which is marked up, which I infer is the one that Mr Vane-Tempest has proposed, together with a set of draft directions, which is also being proposed with Mr Vane-Tempest on behalf of the employer.

PN37

MR BENFELL: Yes.

PN38

THE VICE PRESIDENT: So there are in fact four documents. I’ll mark the draft order as proposed by the department as exhibit Department 1.

EXHIBIT #DEPARTMENT1 DRAFT ORDERS

PN39

MR BENFELL: Yes.

PN40

THE VICE PRESIDENT: The draft directions proposed by Mr Vane-Tempest will be exhibit Department 2.

EXHIBIT #DEPARTMENT2 DRAFT DIRECTIONS

PN41

MR VANE-TEMPEST: I apologise, your Honour: the sound from you is breaking up intermittently so it’s becoming a little bit difficult to hear.

PN42

THE VICE PRESIDENT: I’ve just moved the microphones closer. Is that better, Mr Vane-Tempest?

PN43

MR VANE-TEMPEST: It is at the moment, thank you, your Honour.

PN44

THE VICE PRESIDENT: Thank you. Yes, Mr Benfell.

PN45

MR BENFELL: Thank you, your Honour.

PN46

THE VICE PRESIDENT: Can I just ask this - sorry - before you proceed: is it agreed between the parties that there should be two documents issued, a set of directions and a set of orders?

PN47

MR BENFELL: We have no objection to that course, your Honour, subject to - if we can - an opportunity to further make sure that the directions and orders are consistent with what we appear to have agreed. The reason I say that is that we only got these directions this morning ‑ ‑ ‑

PN48

THE VICE PRESIDENT: That’s fine.

PN49

MR BENFELL: --and we were hoping to seek your indulgence to have until about midday on Monday for the parties to send you an agreed order and directions. That’s not to say that they are going to change in substance.

PN50

THE VICE PRESIDENT: That’s fine. Okay, so I don’t need to trouble myself with selecting one of these two groups of documents and then making it the draft that I’m working upon. Rather we’re going to have an argument now about the extent of personal information included in the employer list and that’s all. Then I will adjourn the matter generally. The parties will provide me on Monday with the agreed documents ‑ ‑ ‑

PN51

MR BENFELL: Yes.

PN52

THE VICE PRESIDENT: --directions and orders, which will incorporate the employer list content that I determine arbitrarily now.

PN53

MR BENFELL: Yes.

PN54

THE VICE PRESIDENT: Okay.

PN55

MR BENFELL: Sorry, I must say, your Honour, I understand the department will want to make other statements which we don’t necessarily agree with but Mr Vane-Tempest is prepared to outline those for you.

PN56

THE VICE PRESIDENT: Fine. So there are two issues to be determined.

PN57

MR BENFELL: Yes.

PN58

THE VICE PRESIDENT: One is the content of the employer list and the second is these additional matters that Mr Vane-Tempest seeks to have included?

PN59

MR BENFELL: Yes, but I don’t know if he wants you to arbitrate those matters, I must say. But that’s a matter for him. He’s going to raise issues that we haven’t reached agreement on.

PN60

THE VICE PRESIDENT: Okay.

PN61

MR BENFELL: I’m not trying to be obtuse.

PN62

THE VICE PRESIDENT: That’s fine. That’s fine. It’s your application.

PN63

MR BENFELL: Yes.

PN64

THE VICE PRESIDENT: You should go first.

PN65

MR BENFELL: Yes.

PN66

THE VICE PRESIDENT: What submissions do you wish to make about the content of the list that the employer will be directed to provide?

PN67

MR BENFELL: Yes, your Honour ‑ ‑ ‑

PN68

THE VICE PRESIDENT: Proceed on the assumption that I act on the basis that the AGS number is a unique identifier for employees. But can I just say so as to assist you in tailoring your submissions in the shortest way possible, my provisional view is as follows ‑ ‑ ‑

PN69

MR BENFELL: Before you decide that, your Honour, I must say I need to provide you with additional information about that very matter ‑ ‑ ‑

PN70

THE VICE PRESIDENT: Okay, away you go, Mr Benfell.

PN71

MR BENFELL: --because I think the assumption has been made that the AGS number is a clear identifier and does not change.

PN72

THE VICE PRESIDENT: Yes.

PN73

MR BENFELL: From the employees’ perspective we agree with that.

PN74

THE VICE PRESIDENT: Yes.

PN75

MR BENFELL: Unfortunately, our membership records, when an employee in the APS joins the union they are not obliged to put the AGS numbers. It’s a voluntary field.

PN76

THE VICE PRESIDENT: Yes.

PN77

MR BENFELL: Because of that, if there is any issue about identifying the person it sometimes is going to be unlikely for the ballot agent to take the AGS number from the employer and reconcile it with the union.

PN78

THE VICE PRESIDENT: I understand.

PN79

MR BENFELL: So I thought you should know that before you ‑ ‑ ‑

PN80

THE VICE PRESIDENT: Thank you, and I was going to indicate that my provisional view is that the list should contain the information sought by the union and supported by the ballot agent so that you, perhaps, can make submissions in response to Mr Vane-Tempest in that regard.

PN81

MR BENFELL: Yes. On that basis - sorry, your Honour. Do we need to lead evidence from Mr Kidd as to the reasons why they are necessary or can we rely upon what he said?

PN82

THE VICE PRESIDENT: Well, what’s said in conference is not admissible in subsequent proceedings.

PN83

MR BENFELL: Yes.

PN84

THE VICE PRESIDENT: I think it would be desirable to have Mr Kidd ‑ ‑ ‑

PN85

MR BENFELL: Yes.

PN86

THE VICE PRESIDENT: Perhaps I’ll outline it to Mr Kidd and you can correct me, Mr Kidd, to the extent that I get it wrong: your contention is that in order to most efficiently and effectively perform the statutory function of ballot agent in accordance with the terms of the Act, the employer list that includes information with the postal address and the date of birth of the employees will improve the efficiency and effectiveness of the task that you have to perform by increasing the ease with which you can resolve questions of identity that arise from time to time in ballots of this sort? Is that the essential position?

PN87

MR KIDD: That’s correct, your Honour; absolutely.

PN88

THE VICE PRESIDENT: So, well, Mr Vane-Tempest, I’ll treat that as a submission upon which I can act in accordance with the principles laid down by Chief Justice Barwick in Melbourne Metropolitan Tramways unless you challenge that contention, in which case it will be necessary to have some evidence from Mr Kidd.

PN89

MR VANE-TEMPEST: Your Honour, I would seek to at least ask Mr Kidd some questions in respect of his proposition and in particular to ‑ ‑ ‑

PN90

THE VICE PRESIDENT: Fine, you’re entitled to do that. Unfortunately it’s necessary to act upon evidence when a submission from the bar table is challenged. Accordingly what I’ll do now is administer an affirmation to you. You should remain where you’re seated and Mr Vane-Tempest will ask you some questions. Mr Benfell may have some questions first but Mr Vane-Tempest will then have some questions for cross-examination. For the record, can you state your name and business address, please?

PN91

MR KIDD: My full name is Richard Lloyd Raymond Kidd and the business address is unit 10, 18-20 Cessna Drive, Caboolture, Queensland, 4510.

<RICHARD LLOYD RAYMOND KIDD, AFFIRMED [2.23 PM]

EXAMINATION-IN-CHIEF BY MR BENFELL [2.23 PM]

PN92

THE VICE PRESIDENT: Mr Benfell, any questions?

PN93

MR BENFELL: Just a couple if I can, your Honour.

PN94

THE VICE PRESIDENT: Yes.

*** RICHARD LLOYD RAYMOND KIDD XN MR BENFELL

PN95

MR BENFELL: Mr Kidd, have you made a statutory declaration in relation to this application?‑‑‑I believe that what has been submitted is a statutory declaration that applies from the previous matter.

PN96

Yes. Secondly ‑ ‑ ‑?‑‑‑The content of that ‑ ‑ ‑

PN97

Carry on.

PN98

THE VICE PRESIDENT: Do you tender that statutory declaration?

PN99

MR BENFELL: Yes, if I can, your Honour.

PN100

THE VICE PRESIDENT: Any objection to the receipt of the statutory declaration that’s annexed to the application, Mr Vane-Tempest?

PN101

MR VANE-TEMPEST: No, your Honour.

PN102

THE VICE PRESIDENT: That will be exhibit CPSU3.

EXHIBIT #CPSU3 STATUTORY DECLARATION OF RICHARD LLOYD RAYMOND KIDD

PN103

THE VICE PRESIDENT: Yes, Mr Benfell.

PN104

MR BENFELL: Thank you, your Honour. Mr Kidd, you’re aware that the employer is seeking to not provide you as the ballot agent ‑ ‑ ‑?‑‑‑Sorry, you’re fading out and in.

PN105

Sorry, I’ll try and focus more on the microphone. Can you hear me now? Is that better?‑‑‑Yes, that’s good.

*** RICHARD LLOYD RAYMOND KIDD XN MR BENFELL

PN106

The only questions I wanted to ask you in relation to the fact that the employer seeks not to provide you as the ballot agent, the date of birth or the postal address of employees to be balloted. I want to ask you why you think it’s important for the conduct of the ballot to have the employer provide the date of birth and the postal address of the employees?‑‑‑Notwithstanding that the AGS number provides absolutely correct as presented is an identifier we utilise date of birth as a primary identifier in all electoral work and that dates back to my days in the Australian Electoral Commission to. Date of birth is a critical piece of information and it is used, obviously, as an identifier once we’ve got the ballot off and running so we protect the sanctity of the ballot. But it’s also critical in terms of developing and compiling the roll as we will be required to do. When material is sent to us and we have to go through the matching exercise, it is not a simple matter just to run the two lists together. We go to extensive lengths to try and insure that every possible person that we believe is eligible to vote in respect of the particular BAB is able to be matched and therefore put on the roll for polling. Date of birth is a critical aspect of that, as is the postal address.

PN107

THE VICE PRESIDENT: Mr Kidd, can I just clarify this: when you are talking about a large number of employees there is an increased risk that there will be some employees who have changed identification information: maiden name will have become a married name, for example, so that there can be a mismatch between the name information for a given individual between the employer’s records and the union’s records?‑‑‑That’s correct, your Honour.

PN108

In those circumstances you use date of birth as the primary check datum?‑‑‑Yes, your Honour.

PN109

Thank you. Yes, Mr Benfell.

PN110

MR BENFELL: So the date of birth is a primary information required to cross-reference the material; why is the postal address important in addition to that?‑‑‑The postal address is important because again, it’s another useful identifier for us when we’re speaking to people and checking their identity but at the most basic level, to send a BAB notice out if we don’t have a working mail address - and say someone is on leave and they’ll need this to be provided - if we don’t have a reliable residential or private email address the union is apt to have address information we believe that is more likely to be outmoded than would be expected by the department. We would expect that any department would have more current address information available so that in the sense that as a last resort we want to send the notice out, we can send it to the addresses provided by the department and again use it as a validator check when we’re talking to people about their passwords and the like.

PN111

THE VICE PRESIDENT: And, Mr Kidd, you would say that in a ballot where there’s a large number of employees there’s a statistical probability there will be a small number of employees who will be on leave and will not be able to receive a notice or ballot paper by their usual recorded email addresses, either at work or at home, because they are travelling?‑‑‑That’s correct, your Honour.

*** RICHARD LLOYD RAYMOND KIDD XN MR BENFELL

PN112

And you use the home postal address, being the most current home postal address that’s available, as the last-stop position on the basis that many people have arrangements for their home mail to be checked and forwarded to them while they’re on leave?‑‑‑That’s correct, your Honour.

PN113

Thank you. Yes, Mr Benfell.

PN114

MR BENFELL: Mr Kidd, it has been put to us by the department that in the event that you can’t - the information provided is not sufficient for you to compile a roll, that you can issue a direction to them and provide that information. I seek your view about that but in particular - I don’t know if you’re aware of section 467 of the Act, which essentially provides that as a ballot agent you cannot provide information to the employer if it identifies who is a member of the union?‑‑‑You’re fading out, Lindsay.

PN115

Sorry.

PN116

THE VICE PRESIDENT: Does it matter? That’s the fact.

PN117

MR BENFELL: Sorry, I withdraw that. I have no further questions, thank you.

PN118

THE VICE PRESIDENT: Yes, Mr Vane-Tempest.

PN119

MR BENFELL: Sorry, before Mr Vane-Tempest, your Honour - I apologise for this but I’ve just received information which may assist Mr Vane-Tempest and he should know about before ‑ ‑ ‑

PN120

THE VICE PRESIDENT: Please convey it.

PN121

MR BENFELL: This issue really is about what information is required to conduct a ballot and I think part of the problem we have here is we are engaging a private ballot provider ‑ ‑ ‑

PN122

THE VICE PRESIDENT: Yes.

PN123

MR BENFELL: - - -largely because the Australian Electoral Commission will not provide electronic ballots.

*** RICHARD LLOYD RAYMOND KIDD XN MR BENFELL

PN124

THE VICE PRESIDENT: Yes.

PN125

MR BENFELL: So in a sense we have to look at what would happen if the Australian Electoral Commission was to conduct the ballot and I’ve just received an email which sets out what the AEC requires of employers when they are conducting ballots of this nature.

PN126

MR VANE-TEMPEST: Yes, well, your Honour, if may, your Honour ‑ ‑ ‑

PN127

THE VICE PRESIDENT: Yes, Mr Vane-Tempest.

PN128

MR VANE-TEMPEST: --I haven’t seen that document, obviously, but I would question its relevance in these circumstances. What another agent may or may not do is not relevant to what ought to happen in this particular circumstance.

PN129

THE VICE PRESIDENT: I’ll allow it on the basis that the AEC is not just another ballot agent. Is the default ballot agent and the independent statutory body that can be expected to engage in best practice in relation to the conduct of elections. Yes, Mr Benfell - what you do need to do is to forward that email to Mr Vane-Tempest.

PN130

MR BENFELL: Yes.

PN131

THE VICE PRESIDENT: Hopefully he has a phone that will allow him to see it just as you’re reading it from your instructor’s phone.

PN132

MR BENFELL: Yes.

PN133

THE VICE PRESIDENT: Do you want me to adjourn for a moment or two while you arrange for that to happen?

PN134

MR BENFELL: If you could; if that’s convenient. Either that or I could read it but if he wants it physically that would be ‑ ‑ ‑

PN135

THE VICE PRESIDENT: I think he should have it. I’ll just adjourn for a moment or two.

*** RICHARD LLOYD RAYMOND KIDD XN MR BENFELL

PN136

MR BENFELL: Can we send it to your associate as well so you’ll have a copy as well?

PN137

THE VICE PRESIDENT: We’ll print it out; yes, please. I’ll adjourn for a few moments.

SHORT ADJOURNMENT [2.33 PM]

RESUMED [2.49 PM]

PN138

THE VICE PRESIDENT: Thank you. Mr Vane-Tempest, you’ve had a change to look at that document?

PN139

MR VANE-TEMPEST: I have, your Honour.

PN140

THE VICE PRESIDENT: Is there any objection to its tender?

PN141

MR VANE-TEMPEST: Only as to relevance, your Honour, but I made that point previously and I understand your Honour’s position in respect to that.

PN142

THE VICE PRESIDENT: Thank you. For the reasons indicated in the exchange before the last brief adjournment I over-rule that objection and admit the letter from the AEC, being a request for a list of employees in protected action ballot number B20113008 as exhibit CPSU4.

EXHIBIT #CPSU4 LETTER FROM AUSTRALIAN ELECTORAL COMMISSION

PN143

THE VICE PRESIDENT: Are you finished with Mr Kidd now, Mr Benfell?

PN144

MR BENFELL: Yes, thank you, your Honour.

PN145

THE VICE PRESIDENT: Yes, Mr Vane-Tempest.

PN146

MR VANE-TEMPEST: Thank you, your Honour.

CROSS-EXAMINATION BY MR VANE-TEMPEST [2.49 PM]

*** RICHARD LLOYD RAYMOND KIDD XXN MR VANE-TEMPEST

PN147

MR VANE-TEMPEST: Mr Kidd, it’s apparent from your evidence that you’re an experienced practitioner when it comes to organising ballots?‑‑‑I believe so.

PN148

You’ve conducted a lot of these sorts of ballots both for corporate entities and for Commonwealth organisations?‑‑‑Elections for corporate identities, for board of directors and where relevant things like employee ballots and also a couple of protected action ballots on behalf of ‑ ‑ ‑

PN149

Thank you. So can I just go through the process with you of how you compile a roll for the purposes of this exercise? How long physically does it take you to compile a roll in a circumstance such as this where you’ve got - as I understand it - two lists: a list from the union and a list from the employer?‑‑‑Depending on the number of employees, several days. If there are many thousands of employees it may be a week.

PN150

So you go about that through some form of manual exercise or is it done through some computer?‑‑‑I have a very smart programmer who is a wizard with Excel but we also do manual checks as well as required.

PN151

So in a circumstance such as this where there are 1,800 employees in the department and I imagine - and I think you can take this as read - fewer than that number are members of the union, you may be dealing with two lists of 1,000 employees and 1,800 employees. Would that be a reasonable assumption?‑‑‑We’ll have to wait and see, won’t we?

PN152

Well, what has been your experience to date in terms of Commonwealth departments?‑‑‑Typically there will be fewer on the CPSU list than of course the department’s. But how many fewer depends on all the circumstances.

PN153

Well, can you tell me whether there’s been any occasions to date where you’ve seen membership of in excess of 60 per cent?‑‑‑Probably not for the Commonwealth Public Sector Union ones we’ve done.

PN154

So if you bear with me then, if we are looking at a circumstance where we’ve got a list which may be 60 per cent of the size of the department - or let’s make it 50 per cent for ease of calculation - that might be 900 names?‑‑‑That’s 50 per cent of 1,800, isn’t it?

PN155

Yes, yes. How long do you think it would take you to match up 900 names with 1,800 names?‑‑‑Well, depending on the quality of the information that’s provided by the entities involved, several days.

*** RICHARD LLOYD RAYMOND KIDD XXN MR VANE-TEMPEST

PN156

That’s because it takes you that long to organize an Excel spreadsheet?‑‑‑No, it takes that long to do a thorough-going examination of all the information to try and determine who is eligible to participate in the proposed ballot.

PN157

Can I ask you ‑ ‑ ‑?‑‑‑I was just going to say, running a protected action ballot is considerably more complex than running an enterprise agreement employee ballot, because you just - with an enterprise agreement employee ballot you’re just given a list of names by the relevant organization and we do checks on those because invariably we find that there are problems with addresses, there are problems with names, there are duplications, triplications and the like. So by the time you take that into account with a protected action ballot where we have to go through a very, very detailed exercise to compare, contrast and compile it does take that time, believe me.

PN158

Okay. Can I then ask you in terms of the process, do you start with examining the names on the list, given the names? Is that how it works?‑‑‑You need to talk to my programmer.

PN159

So you’re not sure how it actually works?‑‑‑I know that he does a matching exercise but I don’t know what he starts with. I presume that a name is one of the most basic things - he’s going to start with a surname. But then we also of course ultimately look at Christian names and given names. There are misspellings in surnames, there are misspellings in given names from one list to the other and so forth.

PN160

Sorry, yes; continue?‑‑‑I was just going to say it is not just a simple exercise with Excel to sit down and suggest that we’re going to do a great match. There is more involved than that and you would be best to talk to my programmer to find out exactly what’s involved.

PN161

THE VICE PRESIDENT: Mr Kidd, can I interrupt? It works this way, doesn’t it: your programmer is able to put the two lists into an Excel workbook and then for each name in the union list - which is the maximal list of people who’ll be voting - your programmer is able to insert some logic in a cell in each row that checks whether the name, the surname, given name and other information when looked up in the employer list is there and then assign a true value if that is so and in that fashion you will be able to isolate out those rows, those employees who do not have a true value for each of the comparison items and confine your checking to that remainder?‑‑‑I am not absolutely, 100 per cent sure the way he does it but that sounds entirely reasonable. But we always have to follow up with manual checking and close observation to make sure that we have picked everybody out that we possibly can.

*** RICHARD LLOYD RAYMOND KIDD XXN MR VANE-TEMPEST

PN162

MR VANE-TEMPEST: Can I just ‑ ‑ ‑?‑‑‑I was going to say it’s always the case that people change their names, too; their surnames and the like. Ladies may be on the union roll in their maiden name but they may be married on the other list and so forth. So that is why we need to try and compare and contrast and utilise all the pieces of information that we have including date of birth and postal address to ascertain and develop the most accurate and full roll that we can compile for this purpose.

PN163

Thank you, Mr Kidd. Can I just ask you - because I think his Honour has made a very sound observation as to how you would expect this sort of arrangement to run - so again, assuming there is an exercise undertaken exactly in the way his Honour has said, you’re aware, aren’t you, that the department says that in this particular department there are no employees who have the same name - that is the same first, middle and third name - anywhere in the department? You’re aware that’s the evidence or that’s the position of the department?‑‑‑That’s what you said, yes.

PN164

THE VICE PRESIDENT: Mr Vane-Tempest, can I just in a sort of plaintive fashion indicate that I’ve got another matter that’s meant to be starting in three minutes’ time and I’m concerned that you really don’t need this evidence. I understand the basic proposition that you’re putting. In every ballot of this kind - that is, where there is a material number of employees - after the initial pass of checking is done there will be a certain number of employees on the union list who cannot be found on the employer list and it is that sub-group that we are focussing on.

PN165

Mr Kidd says, “We resolve the individuals in that sub-group by utilising the other pieces of information, including date of birth and postal address.” You’re going to contend that in respect of that sub-group - which is probably a quite small number - it could be done a different way, namely by exercising the power in the Act that’s conferred upon the ballot agent to require the employer to provide further information. That’s the fundamental point, isn’t it?

PN166

MR VANE-TEMPEST: Your Honour, you’ve correctly apprehended what I’m attempting to do. Rather than perhaps beating around the bush ‑ ‑ ‑

PN167

THE VICE PRESIDENT: So we don’t need to spend any more time on that because I accept that that is so and must be so.

*** RICHARD LLOYD RAYMOND KIDD XXN MR VANE-TEMPEST

PN168

MR VANE-TEMPEST: Your Honour, all I’m trying to ascertain now from Mr Kidd is the nature and extent of that sort of exercise because it may well be different, your Honour, if you’re talking about 10 per cent of 35,000 employees as opposed to 10 per cent of 90 employees. Your Honour, I’ve got other questions of Mr Kidd which relate to what value the date of birth has. There is a suggestion made by the CPSU that not every member in the CPSU quotes their AGS number. I’d like to know from Mr Kidd, given his experience, what percentage of members provide their date of birth.

PN169

THE VICE PRESIDENT: But, Mr Vane-Tempest, all of this is designed to put you in a position to make the submission that there’s a relatively small number of employees on the union list who cannot be identified by the information that you’re content to be provided and that that small group can be properly handled by the mechanism of requesting further information from the employer in respect of that group only.

PN170

MR VANE-TEMPEST: Your Honour, that’s precisely right and we’re prepared to accept that.

PN171

THE VICE PRESIDENT: I am prepared to accept that because it’s just logically obvious. What we don’t know is - or what we don’t have a good handle on is the likely size of that group. Is it ‑ ‑ ‑

PN172

MR VANE-TEMPEST: No, your Honour; that’s right, your Honour.

PN173

THE VICE PRESIDENT: --1 per cent, 3 per cent, 10 per cent? Mr Kidd, do you have some impressionistic view, based upon your experience with previous protected action ballots, as to the proportion of employees on a union list who can’t be checked off on the first run of information provided by the employer by reference to the full name?‑‑‑I don’t. I couldn’t put a particular figure on that, your Honour.

PN174

Could you say it’s certainly likely not to be anywhere in the order of, say, 30 or 40 per cent? It’s likely to be something much less than that?‑‑‑Probably - it would be less than that, yes. It would be maybe 15 per cent or something. I’m not - I don’t know. Less than 30, obviously ‑ ‑ ‑

PN175

THE VICE PRESIDENT: Mr Vane-Tempest?‑‑‑But the important thing is that - we have to strive to provide and compile the best possible roll for this exercise so that people can participate who are going to be eligible.

*** RICHARD LLOYD RAYMOND KIDD XXN MR VANE-TEMPEST

PN176

Mr Vane-Tempest, for the purpose of your argument, it doesn’t really matter what proportion it is, does it, because on your contention the ballot agent will be able to isolate a list of employees that it can’t match to the employer list and it can send that list, requesting the additional information, postal address and date of birth, requiring the employer to produce it when it’s got it, however big it is?

PN177

MR VANE-TEMPEST: That’s correct, your Honour. But the only reason I say this is because - and the reason for seeking this information is to deal with the question of what is reasonable. So on the one hand there’s the provision of this sensitive personal information for 1,800 people, in respect of which it may be only relevant for - if it’s 10 per cent of 900 people it’s 90 people.

PN178

THE VICE PRESIDENT: Yes.

PN179

MR VANE-TEMPEST: That’s the particular reason ‑ ‑ ‑

PN180

THE VICE PRESIDENT: Sorry, Mr Vane-Tempest: my focus at the moment is on trying to get this disposed of as efficiently as possible and to avoid further cross-examination. We do not need any further evidence from Mr Kidd for you to be able to advance that argument, do we? He’s given his evidence thus far ‑ ‑ ‑

PN181

MR VANE-TEMPEST: Your Honour, I was only seeking to obtain some - I mean, I think all I can say, your Honour, is you’re absolutely right. It doesn’t appear that Mr Kidd has sufficient knowledge to be able to provide the answers that I would seek, so we are in the realms of speculation.

PN182

THE VICE PRESIDENT: Let me say, I’m more than happy though to proceed on the basis that it will be something in the order of 10 or 20 per cent at most and so that that will allow you to say, if it’s 900 employees, then we’re talking in the order of 90 to 180 at most but perhaps even a lot less than 90.

PN183

MR VANE-TEMPEST: Well, your Honour, that’s right because that’s starting with a proposition that there’s 50 per cent union membership within the department and I’m not sure that that is so.

PN184

THE VICE PRESIDENT: What you want is some figure which we can work with for the purpose of the argument which is indicative of the number of employees on the union list that can’t be matched on the initial pass.

PN185

MR VANE-TEMPEST: Yes, your Honour.

*** RICHARD LLOYD RAYMOND KIDD XXN MR VANE-TEMPEST

PN186

THE VICE PRESIDENT: Can we proceed on the basis, Mr Benfell, that that’s going to be certainly not in the order of 30 per cent but more likely in the order of 10 per cent max?

PN187

MR BENFELL: I have no objection to that.

PN188

THE VICE PRESIDENT: Okay, fine; well, let’s proceed on that basis. Does that mean there’s no further questions of Mr Kidd?

PN189

MR VANE-TEMPEST: No, your Honour.

PN190

THE VICE PRESIDENT: Thank you. Thank you, Mr Kidd.

<THE WITNESS WITHDREW [3.04 PM]

PN191

THE VICE PRESIDENT: Mr Vane-Tempest, your submissions?

PN192

MR VANE-TEMPEST: My submissions are fairly short, your Honour. The position is as follows: the requirements are that under section 450(4) of the Fair Work Act that the Commission direct the employer to provide names of employees and additionally any other information that is reasonable for the agent or the Commission to require to assist in compiling the roll of voters. My submission is simply this: if given the sort of numbers we’re talking about, given the unchallenged position put by the department that in fact in this case there are no employees who have exactly the same name, we are talking about providing personal information which is sensitive for 1,800 employees where the problem may be involving 900 employees.

PN193

That, with respect, is seeking to squash a walnut with a sledgehammer. In that case, it’s not a reasonable proposition to require that information, particularly when in circumstances where that information may subsequently be required, it is required under the Act for the department to respond to a direction which is reasonable and that’s the safety valve, your Honour, that exists.

PN194

THE VICE PRESIDENT: Where is the provision that allows the agent to require production of information?

PN195

MR VANE-TEMPEST: Section 452, your Honour; subparagraph ‑ ‑ ‑

PN196

THE VICE PRESIDENT: Yes, (3); thank you.

PN197

MR VANE-TEMPEST: So, your Honour, my submission is given this is sensitive information, given we are trying to smash a walnut with a sledgehammer, it is not reasonable at this point to direct the department to provide all of that information when it is fundamentally unnecessary to do so to compile the roll and particularly when there is a capacity for the ballot agent to obtain that material. The department has already indicated that when that material is requested it will give a response to that request or direction within four business hours, subject to any exceptional circumstances such as an IT failure.

PN198

THE VICE PRESIDENT: Yes. Yes, is that the end of your submissions?

PN199

MR VANE-TEMPEST: Yes, it is, your Honour.

PN200

THE VICE PRESIDENT: Yes, Mr Benfell; do you have submissions in response to that?

PN201

MR BENFELL: Yes, very quickly, your Honour, if I can: we start on the objects of this part of the Act, which requires the provision to be dealt with to provide a fair and simple and democratic process to determine whether employees support the action and we focus in particular on the simpleness and democratic nature of - well, the need to be simple and democratic. Our fundamental reason for seeking this information is that the process is done expeditiously and avoids unnecessary requirements of the ballot agent to write to the employer when compiling the list of voters.

PN202

Mr Kidd’s evidence is that it takes him about a week to reconcile the material. If he has to write to the employer and seek further information that may unnecessarily delay the compilation of the roll and delay the process entirely. As to the issue of reasonableness, we say that because the Australian Electoral Commission - the default provider for these ballots - requires, as you can see in exhibit CPSU4 - requires the employee to provide surname, given name, home address, date of birth and their employee number, then that should also be the default for private ballot agents.

PN203

The only other thing I’d like to say is that it is said that the name - there are no two names the same - there is no evidence to that effect and we don’t necessarily accept that. But more importantly, that doesn’t help much even if we were to accept it ‑ ‑ ‑

PN204

THE VICE PRESIDENT: You’re playing very hard ball by doing that because you know by making that submission that Mr Vane-Tempest can’t rely upon what he’s asserted from the bar table and he’s got to call evidence and it’s really ‑ ‑ ‑

PN205

MR BENFELL: I withdraw that then, your Honour.

PN206

THE VICE PRESIDENT: I mean, it’s very unlikely that he’s telling us fibs about that.

PN207

MR BENFELL: Yes, so I was going to go on to say that ‑ ‑ ‑

PN208

THE VICE PRESIDENT: It doesn’t matter, does it? What you say is it just doesn’t matter.

PN209

MR BENFELL: No. Also bear in mind that some surnames are different between the employer’s list and the employees’ list and so it becomes - you’ve got other matters to attend to, your Honour. I think you probably know enough about this matter to determine it.

PN210

THE VICE PRESIDENT: Thank you. Mr Vane-Tempest, do you feel the need to reply to any of those submissions?

PN211

MR VANE-TEMPEST: Only very briefly, your Honour: the AEC material I note is material which is based on the capacity for directions to be made under 452(3). The material that I have at least refers to a specific instance involving a particular department. It seems to me that that may well be the case in that particular department, where it is reasonable to do so. What we say is in these circumstances it is not reasonable to require this information.

PN212

Obviously in the context of the phone, your Honour, we didn’t have an opportunity necessarily to explore how valuable a date of birth will be. We don’t know, for example, how frequent the date of birth appears in the CPSU’s records as compared to other indicators such as the AGS number. Those are my submissions, your Honour.

PN213

THE VICE PRESIDENT: Thank you. This is an application by the CPSU for a protected action ballot order made pursuant to section 437 of the Fair Work Act 2009. The parties are in general agreement about the form - first of all, there is no substantive objection raised by the employer to the issuing of an order. There is, however, a debate about the appropriate terms of the order and associated directions that should be issued. The parties are in substantial agreement about the terms of an order and directions.

PN214

However, there is a disagreement between them about what information should be included in the list of employees to be provided by the employer to the ballot agent. The union seeks a list that would include postal address and date of birth and the employer objects to the provision of that information, contending that the information that it does consent to providing - the AGS number, surname, first name, second name, work email address - is information that will be reasonably sufficient for the ballot agent’s purposes and that to require the information sought by the union and endorsed by the ballot agent that is proposed is an unreasonable intrusion into the personal information of employees, particularly in circumstances where, pursuant to section 452)3), a ballot agent can require an employer to provide additional information.

PN215

In this case there are some 1,800 employees in the department who are likely to be covered by any enterprise agreement. There is not any clear evidence about the number of those employees who are also members of the union, bearing in mind that it is only members of the union who will be entitled to be balloted in the protected action ballot that is to occur pursuant to the orders in the matter. The parties have made submissions on the basis that a figure in the order of 900 is likely to be within the range and ‑ ‑ ‑

PN216

MR VANE-TEMPEST: Your Honour?

PN217

THE VICE PRESIDENT: Yes?

PN218

MR VANE-TEMPEST: Sorry; my sincere apologies, your Honour. My instructions are that that number - which is one I plucked from the sky - is unlikely in the department’s view to be anything like the number of employees but I hesitate to say that other than I wouldn’t want your Honour to think that that’s the department’s position.

PN219

THE VICE PRESIDENT: I withdraw that. Thank you, Mr Vane-Tempest.

PN220

MR VANE-TEMPEST: My apologies, your Honour.

PN221

THE VICE PRESIDENT: There is no clear information about the number of that total of 1,800 employees who are members of the union. The department believes that it is likely to be significantly less than the number 900, which was the figure used for the purposes of argument and cross-examination. The essence of the employer’s contentions here are that after the initial matching phase, using the information that it is prepared to provide, there should only be a relatively small number of employees on the union list who cannot be matched to the employer list and who will need to be manually assessed by the ballot agent and that it would be sufficient for the ballot agent at that point to request further information in relation to that small group of employees pursuant to section 452(3).

PN222

The union contends in support of the provision of a list that includes all the information it seeks that that is reasonable, given the processes of compilation that have been described by Mr Kidd in the evidence and given that the default ballot agent, the Australian Electoral Commission, appears to require information of that kind in its standard request for list of employees. Exhibit CPSU4 is an AEC request for list of employees in relation to a particular ballot. I think in all the circumstances I can draw an inference on the balance of probabilities that CPSU4 is indicative of the approach adopted by the AEC.

PN223

Section 450(4) provides that:

PN224

To enable the roll of voters to be compiled the FWC may direct in writing either or both of the following: (a) the employer of the employees who are to be balloted to give to the FWC or the protected action ballot agent (c) the names of the employees included in the group or groups of employees specified in the protected action ballot order and (d) any other information that it is reasonable for the FWC or the protected action ballot agent to require to assist in compiling the roll of voters.

PN225

The dispute between the parties focuses on what it is reasonable for the FWC to require the employer to provide to assist in the compiling of the roll of voters by the ballot agent. Mr Vane-Tempest’s fundamental contention on behalf of the employer is that given the sensitivity attaching to personal information such as date of birth and home address, there ought be a determination that it is not reasonable to require the provision of that information at that stage in the circumstances of this particular employer, where there are only two instances out of 1,800 employees where employees have the same name, such that it is likely that the number of employees who cannot be matched on the more limited list proposed by the employer in this case is likely to be relatively small, such that it is reasonable to proceed on the basis that the additional information will only be sought in respect of those employees, pursuant to section 452(3) of the Act.

PN226

I have not had an opportunity to give extensive consideration to the issues that arise for determination. In particular I have not had an opportunity to consider whether there are any authorities that bear upon the issue or to consult the explanatory memorandum and any other extrinsic material that might be available to assist in the determination of the ultimate question, which is concerned with what is reasonable in the circumstances of this case having regard to the terms of section 450(4)(d).

PN227

Notwithstanding that the arguments advanced by Mr Vane-Tempest on behalf of the employer are clearly available arguments I am not persuaded in this case that it would be unreasonable to make the direction as sought by the union. In reaching that conclusion I place reliance upon the evidence of Mr Kidd that as a matter of his experience such information is in fact useful and used to resolve inconsistencies between lists in cases of this kind and noting in particular that section 467 of the Act imposes confidentiality - a strict confidentiality in relation to information about employees on a roll of voters.

PN228

It is in the nature of the information that is provided to compile a roll of voters that it will be personal and private. The legislation is predicated upon the proposition that provision of such information is necessary for the purposes of the preparation of a roll for the conducting of a protected action ballot under the Act. I accept the force in the submission made by Mr Benfell that the objects of the Act underline or underscore that protected action ballots are supposed to be completed in an expeditious fashion and that embracing the approach argued for by Mr Vane-Tempest carries with it the risk of additional and unnecessary delay in circumstances where information of the kind that the union contends for is used by the default provider and is used in the fashion described by Mr Kidd.

PN229

For these reasons I determine that the directions should contain the information as sought by the union. I will direct that a transcript of those reasons be prepared with maximum expedition and they will be provided to you, Mr Vane-Tempest, in the event that your client wishes to consider its appeal rights.

PN230

MR VANE-TEMPEST: Thank you, your Honour.

PN231

THE VICE PRESIDENT: Is there anything else that you require, Mr Benfell?

PN232

MR BENFELL: Thank you, your Honour. Well, the only other thing of course is that there is an application for the order and I presume you have decided to make that order.

PN233

THE VICE PRESIDENT: Well, there is no substantive opposition to the making of an order. The argument is only in relation to the terms of the order and any directions. Just to deal with the formalities of having a proper basis to make the order ‑ ‑ ‑

PN234

MR VANE-TEMPEST: Your Honour, may I interpose briefly in respect of that?

PN235

THE VICE PRESIDENT: Yes.

PN236

MR VANE-TEMPEST: There are a few matters that the department wishes to place on the record in respect of this application. Your Honour and Mr Benfell are correct; there is no substantive opposition to the making of the order. Given, your Honour, the circumstances and I think Mr Benfell’s view that he wants some time to consider the precise nature of the order and the directions and the fact that the department would like the opportunity to just make a number of points on the record, would your Honour consider adjourning the proceedings at this point and having them dealt with - I imagine relatively swiftly - on Monday, at which time your Honour may have an agreed set of directions and orders in place?

PN237

THE VICE PRESIDENT: I am inclined to accept that but I wish to have the proper evidentiary/unchallenged submission basis to be able to make the order now so that any resumed hearing which can be done by telephone to minimise the inconvenience to the representatives is confined to any arguments that are left as a result of the inability of the parties to agree the balance of the terms of the orders and directions. Just pardon me one moment. Mr Benfell, on behalf of the union, do you submit - sorry, an application has been made. It was served on the ballot agent within 24 hours. Do you make that submission?

PN238

MR BENFELL: Yes.

PN239

THE VICE PRESIDENT: You make the submission that the applicant has been and is genuinely trying to reach an agreement with the employer on the employees that are to be balloted?

PN240

MR BENFELL: Yes, and we rely upon the statement of Mr Taylor in that respect.

PN241

THE VICE PRESIDENT: Thank you. I note that there’s no challenge to those submissions and that accordingly the statutory preconditions in section 443 have been met and an order must be made. However, I note the agreement of the parties that the matter is to be adjourned until early next week to enable further discussions about the precise terms of the order and directions and I will stand the matter over to a time that we will determine for that purpose. Yes, Mr Benfell.

PN242

MR BENFELL: Just one matter you should be aware of, your Honour, and that is the form of questions: there is a slight change that has been agreed by the employer. I can provide you with an amended draft order that I prepared this morning.

PN243

THE VICE PRESIDENT: Thank you. Well, I think the ideal, Mr Benfell, is for you to provide my associate with the ultimate versions that the parties get to as a result of the discussions that occur after today ‑ ‑ ‑

PN244

MR BENFELL: Yes.

PN245

THE VICE PRESIDENT: --with an indication on the face of the documents what’s left to be argued, if anything.

PN246

MR BENFELL: Won’t be argued - I accept what you say, your Honour.

PN247

THE VICE PRESIDENT: Thank you. Monday was the date that you were looking for?

PN248

MR BENFELL: I wasn’t looking for it, your Honour; Mr Vane-Tempest was. Sorry, yes, I’m available on Monday if that assists.

PN249

THE VICE PRESIDENT: You’d like it as soon as possible, I take it?

PN250

MR BENFELL: Yes.

PN251

THE VICE PRESIDENT: Yes. Mr Vane-Tempest, Monday was the date that was suitable for you, is that correct?

PN252

MR VANE-TEMPEST: Yes, your Honour.

PN253

THE VICE PRESIDENT: Is 4 pm a suitable time, by telephone?

PN254

MR VANE-TEMPEST: Yes, your Honour. Thank you, your Honour.

PN255

THE VICE PRESIDENT: Fine, well, I’ll adjourn the matter until 4 pm on Monday by telephone. Anything further from you, Mr Benfell?

PN256

MR BENFELL: No, thank you.

PN257

THE VICE PRESIDENT: Anything further from you, Mr Vane-Tempest?

PN258

MR VANE-TEMPEST: No, thank you, your Honour.

PN259

THE VICE PRESIDENT: Mr Vane-Tempest, can I just say that the particular issue that needed to be determined today is not without its difficulties. Whilst I have made a determination I recognise that your position is arguable and in fact may be the preferable position and I regret the fact that the exigencies of the circumstances have prevented a more thorough consideration of it but that’s the view that I came to on the basis of the material and arguments before me. Thank you.

PN260

MR VANE-TEMPEST: Thank you, your Honour.

PN261

THE VICE PRESIDENT: The matter is adjourned on the basis I’ve indicated. Thank you.

ADJOURNED INDEFINITELY [3.26 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 DRAFT ORDERS................................................................. PN33

EXHIBIT #CPSU2 DRAFT DIRECTIONS........................................................ PN34

EXHIBIT #DEPARTMENT1 DRAFT ORDERS............................................... PN38

EXHIBIT #DEPARTMENT2 DRAFT DIRECTIONS...................................... PN40

RICHARD LLOYD RAYMOND KIDD, AFFIRMED...................................... PN91

EXAMINATION-IN-CHIEF BY MR BENFELL............................................... PN91

EXHIBIT #CPSU3 STATUTORY DECLARATION OF RICHARD LLOYD RAYMOND KIDD................................................................................................................................. PN102

EXHIBIT #CPSU4 LETTER FROM AUSTRALIAN ELECTORAL COMMISSION PN142

CROSS-EXAMINATION BY MR VANE-TEMPEST.................................... PN146

THE WITNESS WITHDREW............................................................................ PN190

Fair Work Commission Transcripts

B2015/317, Transcript of Proceedings [2015] FWCTrans 177 (27 March 2015)