B2015/340, Transcript of Proceedings [2015] FWCTrans 215 (13 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                                    

COMMISSIONER MCKENNA

B2015/340

s.437 - Application for a protected action ballot order

Application by CPSU, the Community and Public Sector Union
(B2015/340)

Sydney

4.17 PM, WEDNESDAY, 11 MARCH 2015

PN1

THE COMMISSIONER: Good afternoon, this is Commissioner McKenna speaking. Could I have the appearances, please; first for the applicant?

PN2

MR L BENFELL: If it please the Commission, I appear for the Community and Public Sector Union. My name is BENFELL, initial L.

PN3

THE COMMISSIONER: Thank you. Mr Pick, you’re appearing for the Commonwealth, are you?

PN4

MR PICK: Sorry, Commissioner?

PN5

THE COMMISSIONER: Mr Pick? Do I have you on the line and can you hear me clearly?

PN6

MR PICK: I can hear you clearly.

PN7

THE COMMISSIONER: Good, thank you. Are there any other relevant appearances?

PN8

MR PICK: Commissioner, it’s Tony Pick here. I have my instructors from the department with me: Ms Louise Memmolo, Mr Del Cranwell and Ms Kellie Wright.

PN9

THE COMMISSIONER: Thank you.

PN10

MR R KIDD: Your Honour, Richard KIDD and Duke Ellis from Australian Election Company.

PN11

THE COMMISSIONER: Good afternoon, Mr Kidd. Who did you say you had with you, I’m sorry?

PN12

MR KIDD: Mr Duke Ellis.

PN13

THE COMMISSIONER: Thank you. Are there any further appearances not already noted? If not, thanks very much. Yes, Mr Benfell, just a short time ago I’ve been handed a document that was filed about 15 minutes ago. I confess I haven’t had an opportunity to properly read it, although I have skimmed it. Perhaps you might wish to make your submissions?

PN14

MR BENFELL: Thank you, Commissioner. Following the proceedings on last week, the parties have been feverishly attempting to reach agreement on this matter and I’m pleased to say that we have reached agreement and the terms of that agreement are set out in the order and directions. But before I go there, if I can just address you on the technical requirements for the application? Firstly, the CPSU is the bargaining representative for the relevant employees. The application seeks - sorry, specifies the group of employees to be balloted and that’s at part 3 of the application. The application specifies the questions to be put, and that’s at part 4 of the application. The application has not been made within 30 days before the nominal expiry date of the old agreement. The application seeks a person other than the Australian Electoral Commission to conduct the ballot in accordance with section 437(4) and that’s at part 6 of the application.

PN15

Finally, the application is - sorry, the applicant is genuinely trying to reach agreement and we rely upon the evidence of Mr Taylor in that regard. If I can address you on the issue of the ballot agent, Commissioner ‑ ‑ ‑

PN16

THE COMMISSIONER: If I could just ask you to stop for one moment? I apologise for that interruption. Yes, please continue, Mr Benfell.

PN17

MR BENFELL: Thank you, Commissioner. In relation to the appointment of Mr Kidd or the Australian Election Company to conduct the ballot, the Commission can be satisfied that Mr Kidd is a fit and proper person as required by section 444(1)(b). In relation to the directions that the Commission must issue in relation to the conduct of the ballot, as section 450(1) requires, the parties have agreed on the terms of the directions to be issued to the ballot agent and we are confident that the directions satisfy the requirements of section 450(2) and 450(4) of the Act.

PN18

In relation to the particular details of the orders and directions, defence have identified security concerns which are peculiar to defence. Consequently, the parties - with the assistance of the ballot agent - have constructively negotiated an amended draft order and draft directions to accommodate the security concerns of defence. This is reflected in particular in clause 10.1 of the draft order, where you’ll see there is a clause setting out the validation process that the parties have agreed to while the agent is compiling the list of - the roll of voters.

PN19

Also in addition to that at clause 3 of the directions, you can see there is - it’s actually identified as clause X - the validation process. It’s on page 2 of the directions and you can see is quite a detailed set of arrangements that the parties have agreed to, to meet the peculiar needs of defence. That of course is also identified at the beginning of clause X, the validation process in the directions, where it is said that these arrangements are made to accommodate the security concerns which are peculiar to the Department of Defence. Commissioner, this is actually an important matter for the union and an important component of the directions, as it makes it clear that the method of compiling the roll of voters and conducting the ballot set out in the directions and order are special arrangements to accommodate the security concerns which are peculiar to the Department of Defence.

PN20

The union is particularly concerned about the arrangements agreed with defence to accommodate their particular needs, that they are not seen by others to be available to them. Consequently, the union would - with respect - appreciate it if the Commission could note that any decision the Commission decides to issue that the ballot arrangements set out and these orders and directions are to accommodate the security concerns which are peculiar to the Department of Defence.

PN21

MR PICK: Commissioner - sorry, it’s Tony Pick here for the department. Could I just confirm that this mention is being transcribed?

PN22

THE COMMISSIONER: It is indeed.

PN23

MR PICK: Thank you. Sorry to interrupt, Lindsay.

PN24

MR BENFELL: In addition to that, Commissioner, the union also provides the following undertaking in relation to question 5 of the ballot questions, which relates to stoppages of up to and including one hour duration and we give the following undertaking and I quote:

PN25

In relation to question 5 of the ballot questions, the union undertakes that it will not give notice for organised stoppages of work of less than 15 minutes’ duration.

PN26

We understand that defence will give an undertaking on transcript that it will allow CPSU delegates to place ballot-related notices on workplace noticeboards of if there are no delegates, then members. This is to overcome concerns raised by the ballot agent in relation to insuring that he complies with the Act in relation to providing notices, given the particular restrictions identified in the directions in relation to the use of workplace email addresses provided by the Department of Defence.

PN27

Finally, Commissioner, the last part of the order refers to an extended notice period. The union accepts that exceptional circumstances apply to warrant five days’ notice for the particular actions set out in clause 13.1 of the order. As all of the requirements of the Act and regulations have been satisfied, we ask the Commission to issue the orders and directions as sought by the parties. Unless you have questions, Commissioner, that is our submission.

PN28

THE COMMISSIONER: Yes, I do have a number of questions but they go more to the form of the draft order and the directions. Would it be convenient for me to raise those matters now?

PN29

MR BENFELL: For my part, yes, Commissioner.

PN30

THE COMMISSIONER: Yes. Does everyone have a copy of the consent order and consent directions that have been lodged, so that you can see what I’m about to ‑ ‑ ‑

PN31

MR KIDD: Your Honour, it’s Richard Kidd here from the Australian Election Company. We don’t have that.

PN32

THE COMMISSIONER: I see. Could somebody there please - if you have access to a computer there - kindly forward a copy of the draft order and directions to Mr Kidd, if that can be done now? Mr Pick, I think the document was forwarded by yourself?

PN33

MR PICK: : Commissioner, I’m in the process of doing that now. I apologise for not sending the final drafts. Mr Kidd, is it all right if I send it to you alone rather to Duke as well?

PN34

MR KIDD: That’s fine. I’ll just have to adjourn for a moment and go upstairs to receive the email and I’ll print it and then return. But Duke will stay here. I shan’t be long.

PN35

MR PICK: I have sent that email now.

PN36

THE COMMISSIONER: Thank you. I’m not sure how long Mr Kidd will be. If the parties are just content to wait, I certainly am.

PN37

MR BENFELL: In a sense it depends on whether your questions relate to Mr Kidd’s activities, Commissioner, or other unrelated matters.

PN38

THE COMMISSIONER: No, it’s matters no more significant than numbering and matters of that nature. We’ll wait for Mr Kidd.

PN39

MR BENFELL: Thank you, Commissioner.

PN40

THE COMMISSIONER: Can I ask, is there anyone there from Mr Kidd’s office who might be able to ascertain how much longer he may be?

PN41

MR ELLIS: Yes, Duke Ellis here, Commissioner. I’ll just duck up and check.

PN42

THE COMMISSIONER: Thank you very much.

PN43

MR ELLIS: We have the directions, Commissioner, but we’re just waiting for the order. Another couple of pages to print so it should only be a couple of minutes.

PN44

THE COMMISSIONER: Thank you for that update.

PN45

MR ELLIS: He’s with us now, Commissioner.

PN46

THE COMMISSIONER: Thank you. If I could go first to the draft order and you’ll see - if you could turn to clause 4, which is the date by which the ballot closes, and I just raise this as an anticipatory matter: in relation to another protected action ballot that I’ve dealt with recently, it’s been foreshadowed that an application is going to be made by the Australian Electoral Commission, who have expressed concern about the impact of Easter breaks and the like coming up. Have the parties considered that there might be any difficulties arising in relation to time frames?

PN47

MR BENFELL: Commissioner, if I may - it’s Benfell, CPSU - as you can see, we have adjusted the closing date from 20 to 23 days, largely to accommodate the peculiar arrangements about the compilation of the ballot, et cetera, to provide Mr Kidd more time.

PN48

THE COMMISSIONER: Yes.

PN49

MR BENFELL: I didn’t understand that we had any concerns about Easter or the like.

PN50

THE COMMISSIONER: I see. I just flag it that you’ve taken it into consideration?

PN51

MR BENFELL: I can try and obtain further instructions about that matter but I understood the organising teams had factored that in. But do you intend to issue the orders today or tomorrow?

PN52

THE COMMISSIONER: Let’s see how we go.

PN53

MR BENFELL: All right.

PN54

THE COMMISSIONER: If I could go next, please, to clause 7, the employer to provide a list of eligible employees? So it’s only up to column 5 now, unlike the other applications that we’ve dealt with?

PN55

MR BENFELL: That’s correct, Commissioner, except for column 6.

PN56

THE COMMISSIONER: Thank you. Then in clause 7.2, there’s the new proviso that it’s subject to clause 7.4 and that’s the personally delivered USB stick or compact disc? Good.

PN57

MR BENFELL: Yes, Commissioner.

PN58

THE COMMISSIONER: Is there any incompatibility between 7.1.3 and 8.1.3 in relation to the information in the various columns?

PN59

MR BENFELL: No, Commissioner. In a sense you’ve struck upon the essence of the arrangements. We have conceded to accommodate defence’s particular security issues, to not require the postal address and the date of birth of the employees.

PN60

THE COMMISSIONER: I see.

PN61

MR BENFELL: Rather, we are - the union is providing those details.

PN62

THE COMMISSIONER: Thank you. If you would turn the page and go to the clause headed, “Validation Process?”

PN63

MR BENFELL: Yes.

PN64

THE COMMISSIONER: That’s numbered clause 10 and so is the following subheading, “Information.” So we have two lots of clause 10s.

PN65

MR BENFELL: Yes, and I must say it’s so.

PN66

THE COMMISSIONER: Then there are other references then, for example, if that were renumbered it will throw out other clause numbers, such as the amended reference in clause 10.2 of the information subheading of clause 11.1.

PN67

MR BENFELL: Yes, and also - yes. Can I say, Commissioner, the parties have been frantically trying to finalise these orders. The same issue, as no doubt you’ll say next, arises in the directions, where there’s a ‑ ‑ ‑

PN68

THE COMMISSIONER: Yes, I’ll come to that in a moment.

PN69

MR BENFELL: Yes.

PN70

THE COMMISSIONER: So just on the face of the documents, there just needs to be some further work done on them. If I could go, please, to clause 13.1? It might just be the way it’s written but clause 13.1(a) reads as follows:

PN71

For proposed action referred to in question ‑ ‑ ‑

PN72

I take it that’s questions 1(a) and then you’ve got through to (k) and then you’ve got question 2, question 5 and question 6 that effects critical work areas. Could you read that out to me in the sense that it’s intended to read? It’s not abundantly clear to me.

PN73

MR BENFELL: Maybe Mr Pick can comment. These arrangements are designed to provide some sort of assurance to defence that ‑ ‑ ‑

PN74

THE COMMISSIONER: No, I’m sorry, it’s not that. I don’t actually - it says:

PN75

For proposed action referred to in question 1(a), 1(b), 1(c), 1(e), 1(h) and 1(k); question 2, question 5 and question 6.

PN76

MR BENFELL: Yes. The parties have agreed that those particular actions and only those actions warrant more than the normal three-day notice period.

PN77

THE COMMISSIONER: Yes, but perhaps it’s a matter of phrasing.

PN78

MR PICK: Commissioner, Tony Pick here.

PN79

THE COMMISSIONER: Yes.

PN80

MR PICK: I think it is a chunky subparagraph, if I can put it that way. Can I suggest, perhaps, that a comma be added after question 6 and a comma be added after the word “slipper”?

PN81

THE COMMISSIONER: I just can’t quite follow, with respect, what it says. Perhaps you both have an entirely clearer understanding as between yourselves as the import of it but it might just be grammatical but I just don’t quite ‑ ‑ ‑

PN82

MR PICK: Commissioner, the wording should reflect the wording of the order that was made last week for the AMWU and Professionals Australia. The only difference is that it’s made longer by the separating out of the - some limbs of the rolled-up question 1. As Mr Benfell said before, it’s the parties’ intention that a longer notice period of five days apply to industrial action referred to in those nine questions, insofar as they either speak of work areas that insure or support the safety of certain operations or impact on safety more generally and we’ve set out a couple of areas.

PN83

THE COMMISSIONER: I see.

PN84

MR BENFELL: Commissioner, the expression may be improved by adding an, “s” to the word, “action” in the first line so that it reads, “For proposed actions referred to in question 1(a)”, et cetera, et cetera.

PN85

THE COMMISSIONER: Yes, could you just look at the wording of it?

PN86

MR BENFELL: Yes.

PN87

THE COMMISSIONER: You might be right, Mr Pick. There might be some needs for commas or brackets or something like that. I’m not sure. If I could then go to the draft directions and similarly, I see that you’ve expanded clause 2.2. There’s an expansion to 23 days and then there’s the new heading, “Validation process”, and it is just numbered X. If I number were put in it may throw out some other internal number references. I’m not sure. As I said, I haven’t had an opportunity to really, fully check this, given the time that I’ve had it.

PN88

MR PICK: Commissioner, it’s Tony Pick here again. I can confirm that the only cross-reference that’s affected in either document is the cross-reference that appears in what is shown as subclause 10.2 of the order.

PN89

THE COMMISSIONER: I see, I see.

PN90

MR BENFELL: Commissioner, if it would assist, I’m sure Mr Pick would agree to finalising these directions and orders with the appropriate changes to clause numbers, et cetera, and to re-arrange the notice period issued early tomorrow, if that would assist the Commission.

PN91

THE COMMISSIONER: I would be very much assisted by that, Mr Pick. That was very kind of you, Mr Benfell, to volunteer Mr Pick.

PN92

MR BENFELL: No, I meant both of us.

PN93

MR PICK: We’ve got a very cooperative atmosphere prevailing, Commissioner.

PN94

THE COMMISSIONER: Yes, so ‑ ‑ ‑

PN95

MR PICK: That should be fine.

PN96

THE COMMISSIONER: It’s just a matter of form, not substance. But as to the substance, in relation to - as you say - the peculiarities. Could somebody just explain to me what all of these extra protections do, being protection particular to the Department of Defence? I confess to being a Luddite and I don’t know what clouds are and matters of that nature. Can anyone just give me a really brief overview of the effect, the technical effect, of all of these different protections other than that I know that they’re by consent? Can anyone, just for my own elucidation, tell me what it all means?

PN97

MR BENFELL: Yes, I was going to say Mr Pick would be able to assist in that regard.

PN98

THE COMMISSIONER: Yes.

PN99

MR PICK: Commissioner, I might in turn rely on my instructors to flesh this out but if I can I suppose amplify two key things. Clause 7 of the draft order, as you’ve already noted, we’ve struck out a number of columns which pertained to information that other agencies have provided to the CPSU’s alternative ballot agent. The non-provision of that information is a security measure which protects the information of the department and in particular certain personnel within the department whose functions and duties traverse matters of security and intelligence functions.

PN100

So that’s important to the department, from the standpoint of not having comprehensive lists of 19,000, 20,000 employees with all of those unique identifiers circulating in IT environments outside of its own restricted network. So that’s the first major point at which we’ve departed from the Department of Agriculture documents. Secondly - and I think this was probably more what your question was directed at - what appears as clause X on page 5 of the draft directions: we’ve inserted a number of undertakings of the RMK Investments, the ballot agent, as the cloud connectivity and data storage. At the risk of over-simplifying it, broadly speaking, all of these things go to the ease with which a targeted IT intrusion could occur and all of these things are designed to minimise the likelihood of that happening, in particular subsection (5) where we’ve included some very specific strategies to mitigate the risks that are involved in the collection, storage and disposal of this sort of information.

PN101

As you would appreciate, Commissioner, the complete list of defence personnel would be of interest to certain third parties and while we appreciate that Mr Kidd and his company has certain measures in place already to safeguard against misuse of information, the evidence which we intended to lead, had this been a contested issue, last week would have gone to establishing the genuine nature of those risks and I guess justify the measures which we’ve been able to agree with the union.

PN102

THE COMMISSIONER: I see. Thank you very much for that further information. Would you mind if I just called on Mr Kidd before I hear any other submissions that you wish to make, Mr Pick?

PN103

MR PICK: No, Commissioner.

PN104

THE COMMISSIONER: Mr Kidd, you’re not here as an advocate but is there anything additional that you wish to add in relation to the matters that have been touched upon there by Mr Pick, concerning those measures?

PN105

MR KIDD: Yes. We comply fully with all those points that are featured in the directions so we have no issue with those and we do appreciate that we’re dealing with national security, ultimately, so there’s no way in the world we’d want to jeopardise anything like that, so we comply, we understand and everything will be fine in that respect.

PN106

THE COMMISSIONER: Thank you, Mr Kidd. Mr Pick, then, as to the submissions that have been made by the union in support of its application, is there anything that you want to say concerning those matters?

PN107

MR PICK: Yes, just picking up something that Mr Benfell alluded to before: this is in relation to clause 10 of the draft order and clause 3 and 4 of the draft directions, defence, in recognition of the more limited arrangements in place regarding the provision of ballot-related information defence agrees to allow union delegates to post ballot-related materials issued by the protected action ballot agent on workplace noticeboards and in circumstances where there is no established delegate structure at a particular site, that same consent is given in relation to ordinary union members, to post official ballot-related materials issued by the agent. We acknowledge the verbal undertaking given by the union in relation to question 5 of the questions to be put to voters in the ballot and that the particular arrangements which have been agreed that are reflected in the draft directions in particular reflect and are designed to accommodate the security needs which we’ve raised with the Commission last week and this week.

PN108

THE COMMISSIONER: On that basis, would I understand it to be the case, then, that you do not oppose the making of the order and directions?

PN109

MR PICK: That’s correct, Commissioner.

PN110

THE COMMISSIONER: Thank you. Unless there’s anything you wish to say in response, Mr Benfell?

PN111

MR BENFELL: No, Commissioner.

PN112

THE COMMISSIONER: I can indicate that I’m satisfied on the basis of what’s been put in submissions and my reading of the materials that I must make the order, the subject of this application. You may have seen recently, with some of the matters that I have referred when issuing the decision to extempore reasons but what I will do - once I have received the reconsolidated documents, Mr Pick, I’ll publish a decision tomorrow, just noting the matters that have been raised, namely, that these arrangements are quite particular to accommodating the peculiar security concerns arising self-evidently in relation to the Department of Defence.

PN113

So, Mr Pick, you’ll do that renumbering and matters of that nature and could you just send the consolidated changes? I won’t need to see the track changes? Are you still there, Mr Pick?

PN114

MR PICK: Yes, Commissioner.

PN115

THE COMMISSIONER: Good, thank you. When do you anticipate you might be able to get that documentation to my office?

PN116

MR PICK: Half an hour?

PN117

THE COMMISSIONER: I see, all right.

PN118

MR BENFELL: Commissioner, if I may, you raise the question about the time and the date the ballot will be concluded. I would appreciate an opportunity to confer with the people who are responsible for organising and if it’s possible provide the final draft orders and directions by 10 am tomorrow. The only issue is whether 23 days is sufficient, given the issues you raised, that is Easter coming, et cetera.

PN119

THE COMMISSIONER: As I say, it’s only because a matter has arisen today in relation to another matter. I’m not even sure if it’s an issue here but perhaps that’s something, Mr Benfell and Mr Pick, you could discuss between yourselves and obviously, because I know you’ve done this before, you settle the documentation as between yourselves and then whatever final documentation is provided will come with your concurrence, I would take it?

PN120

MR BENFELL: Yes, Commissioner.

PN121

MR PICK: Commissioner, in that event, there’s no point me pushing for something ‑ ‑ ‑

PN122

THE COMMISSIONER: No, no point at all sending it this afternoon.

PN123

MR PICK: Yes.

PN124

THE COMMISSIONER: Good, I’ll stand this matter over pending the receipt of the settled form of the directions and orders and I note that will be anticipated tomorrow. I do not know if the parties are aware - I think the CPSU might be aware - I have multiple protected action ballot applications tomorrow, all involving - not just Commonwealth public sector matters. So could I just ask, Mr Pick and Mr Benfell, are you in any of those matters?

PN125

MR BENFELL: I may be, Commissioner. We’re awaiting the outcome of today’s proceedings to determine who would be with you tomorrow.

PN126

THE COMMISSIONER: I see. Could I just strongly - this is not concerning these matters - but could I strongly encourage any relevant parties to hold discussions because I think that there’s about half a dozen applications involving different organisations tomorrow and there just won’t be time to have people and proceedings for extended periods of time such as we sometimes have.

PN127

MR BENFELL: Yes, that is regrettable, what has happened in the past, Commissioner. I can advise you that in relation to one of the applications discussions are taking place or have taken place today.

PN128

THE COMMISSIONER: I very much appreciate that, Mr Benfell. I think my Associate has been contacting relevant parties today to pass it down the line, as it were, that you really need to hold discussions because of the limited time availability given the sheer number of matters tomorrow.

PN129

MR BENFELL: Yes, I agree, Commissioner.

PN130

THE COMMISSIONER: I might say they’re not all applications by the CPSU either, so good. Thank you very much for your participation in the proceedings today. An unusual, an atypical type of application and I am much informed now about some of these technical issues that have been described to me and I’m pleased that the parties have been able to reach an accommodation to address those particular security concerns. I’ll stand the matter over pending the receipt of the final settled form of the draft order and directions. Thank you very much.

ADJOURNED INDEFINITELY                                                           [4.56 PM]