B2015/356, Transcript of Proceedings [2015] FWCTrans 286 (14 May 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1051797

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VICE PRESIDENT WATSON

B2015/356

s.229 - Application for a bargaining order

Queensland Nurses' Union of Employees

and

Carinity Baptist Community Services

(B2015/356)

Queensland Baptist Care - Nurses Enterprise Agreement 2011

Melbourne

10.00 AM, TUESDAY, 28 APRIL 2015

PN1

THE VICE PRESIDENT: I don't know whether you can hear us in Brisbane. Can I have the appearances, please?

PN2

MR L REIDY: Yes. Your Honour, my name is Reidy, initials L.S. I'm counsel instructed by the Queensland Nurses Union of Employees and I have with me Ms V SEMPLE and Ms (indistinct).

PN3

THE VICE PRESIDENT: Thank you, Mr Reidy. Mr Herbert?

PN4

MR H HERBERT: Yes, thank you, your Honour. I appear in this matter for Carinity, instructed by (indistinct) Solicitors.

PN5

MR B PEVERILL: Your Honour, surname Peverill, initial B, for United Voice, Industrial Union of Employees, Queensland Branch.

PN6

THE VICE PRESIDENT: Thank you, Mr Peverill.

PN7

MR B WATSON: Your Honour, also initial B, for the Australian Workers' Union of Employees.

PN8

THE VICE PRESIDENT: Thank you, Mr Watson. I ve received various material that s been filed and I ve had a chance to read that, although perhaps not digested all in great detail, but I note there s some evidence proposed to be called and submissions in support of an interim order, Mr Reidy. How would you like to begin?

PN9

MR REIDY: I might begin by calling Ms Semple, unless there s any objection. I don't know how Mr Herbert wants to proceed. I haven't discussed that with him. Do you intend to cross‑examine?

PN10

MR HERBERT: One decision ordinarily cross‑examine witnesses on an interim application of this kind. I have nothing in particular that I wish to cross‑examine Ms Semple about. Unless my friend wishes to call some fresh evidence we haven't seen yet, then I don t require her to be called. I don't know whether the reciprocal position might also apply in relation to Ms Darwin, but she is here, but at this stage I don t require Ms Semple to be called to be cross‑examined.

PN11

THE VICE PRESIDENT: Do you have any objection to Ms Semple s evidence being accepted into evidence for the purposes of this application?

PN12

MR HERBERT: No, your Honour. But for the purposes of this application only, yes, I believe we have no objection to that material being received into evidence.

PN13

THE VICE PRESIDENT: Thank you. I take it no one else requires Ms Semple to be available for cross‑examination.

PN14

COUNSEL: That's correct, VP.

PN15

COUNSEL: That's correct, yes.

PN16

THE VICE PRESIDENT: Thank you.

PN17

MR REIDY: On that basis, I would seek to tender both of the statements of Ms Semple and have them tendered separately. They're affidavits. The first affidavit with 19 attachments is sworn on 22 April 2015.

PN18

THE VICE PRESIDENT: I'll mark that affidavit exhibit R1.

EXHIBIT #R1 AFFIDAVIT OF MS V. SEMPLE DATED 22/04/2015

PN19

MR REIDY: Then the second statement has three attachments, so the second affidavit has three attachments, and it s sworn on 27 April 2015.

PN20

MR HERBERT: Your Honour, could I indicate that we haven't been served with the attachments? We have no attachments and the affidavit says we re not going to be provided with those attachments except in some circumstances outlined by Ms Semple as to the basis upon which she would be prepared to allow that material to be in the public domain, but it looks as if, in effect, that affidavit says that we re not to be provided with that material under any circumstances, so it would not be appropriate, in my submission, to tender an affidavit with attachments when the attachments haven't been served and won t be served.

PN21

THE VICE PRESIDENT: How do you ‑ ‑ ‑

PN22

MR REIDY: In relation ‑ ‑ ‑

PN23

THE VICE PRESIDENT: Yes, Mr Reidy?

PN24

MR REIDY: Yes. That was the second part of the tender of this affidavit and that is to go with the attachments. The attachments are detailed in your membership lists and I apply, under section 593(3)(d) for an order that those attachments not be published to other parties in the hearing and I also apply for an order under section 594(1) for the publication of attachments 1, 2 and 3 be prohibited. They are in their nature confidential, confidential to the people whose names appear on them and I will have some submissions in relation to that issue in the course of the hearing, but my submission is that this material arises from Ms Darwin s affidavit, paragraph 7. Ms Darwin makes a complaint that she doesn't have the names of union members.

PN25

In response to that complaint, the names are provided as an attachment and the purpose of the tender on this basis is to demonstrate that there s a serious issue in relation to the membership that the QNU has of people in the classification of AIN or assistants in nursing.

PN26

MR HERBERT: Your Honour, if my learned friend is intending to convey that we have a list of names, we don t have a list of names. We have no attachments whatsoever (indistinct).

PN27

MR REIDY: No, I'm sorry if that wasn't clear. I didn't convey that at all. What I said was that this affidavit was responsive to a statement made it might be worth going to paragraph 7 of Ms Darwin s affidavit. I don't know if you have that, your Honour.

PN28

THE VICE PRESIDENT: I do.

PN29

MR REIDY: In paragraph 7, Ms Darwin complains that having read the bargaining dispute application and looked at attachment 3 to the application, there are no (indistinct) whatsoever of the names of QNU members and then goes on to talk about further unidentified persons. As (indistinct) the names of union members are not relevant to any matter in issue, but to the extent that we need to respond to this, we respond in a way that observes the confidentiality, the common law confidentiality of these names, and the fact that union membership and it also observes the statutory rights to privacy of information which under the Privacy Act 1988 is sensitive information. That's the submission I will ‑ ‑ ‑

PN30

THE VICE PRESIDENT: Mr Reidy, can I ask you this: is it appropriate that we proceed in one of two alternative ways? The first might be that the affidavit without attachments is tendered in evidence on the basis that the attachments have been provided to the Commission and to the extent that it might be necessary may need to be considered further. So the question of their receipt can be reserved for later consideration. Their existence is noted, but they don t form part of the affidavit as such. That's one alternative.

PN31

The second alternative is that the attachments are provided to the legal representatives of Carinity on the basis that they are not disclosed to Carinity as such, simply for the purposes of enabling their receipt into evidence and their treatment on a confidential basis. Are either of those alternatives appropriate?

PN32

MR REIDY: Could I have a chance to get some instructions on that?

PN33

THE VICE PRESIDENT: Yes, you can. I might leave the courtroom and you can not only get instructions on that. Mr Herbert can also get instructions and you can discuss the matter with Mr Herbert as well and the other representatives and so if you need five or 10 minutes to do that then that s certainly available. I'll adjourn for a short time.

PN34

MR REIDY: Thank you.

SHORT ADJOURNMENT [10.11 AM]

RESUMED [10.31 AM]

PN35

THE VICE PRESIDENT: Mr Reidy?

PN36

MR REIDY: Your Honour, thank you for that. We are prepared to provide for Mr Herbert s viewing on a confidential basis a copy of each of those three attachments for his own viewing. We re not prepared to provide them to any union party to the proceeding. So we take your Honour's first suggestion. Secondly, your Honour, we just need to work through the logistics of this, but we are also prepared to provide a redacted form of those exhibits which identifies two names who were involved in the bargaining and known by the employer to the union members and to our AIN. So that s the second thing that we are prepared to do.

PN37

MR HERBERT: Your Honour, whilst I'm grateful for my friend s endeavours to try and get the material, providing me with a list the names and so that I am required to keep it to myself confidentially is absolutely of no assistance whatsoever to my client. I don't have anything like it with the ability to be able to discover the relevant facts in relation to the names that might be provided to me and I wouldn't be able to even communicate with my client on those terms as to who they might be. I have to presumably go to my client s premises and do some confidential searching in a room of their records in order to try and discover facts that I have no idea what I'm looking for. So that, whilst we re certainly grateful for the attempt, it will be of no practical assistance and I wouldn't want to mislead anyone to think that it would.

PN38

So far as the second proposal, that is that there be a redacted list of two names of persons who are known members of the QNU who have been involved in bargaining. I understand from what my friend has told me that the bargaining that he refers to is the bargaining in relation to another agreement and not the agreement in contention in these proceedings, that is, there is a nurses agreement and there s a personal carer agreement. They have been involved, so far as I'm told and I haven't seen it yet, but they're names of persons who have been involved in relation to the negotiations for the nurses agreement.

PN39

Again, as I understand, and my friend has told me the location where they are said to work. The current agreement, that is the agreement which is proposed in these proceedings, the subject of the orders in these proceedings will not extend to that facility in relation to carer employees. So on two counts those two names are utterly irrelevant in the proceedings because those two names would be of persons who are not to be covered by the present agreement and have not been involved in bargaining in relation to the present agreement, as I understand it, what has been told to me.

PN40

So on that basis, again, I wouldn't want it to be thought that providing two names of persons who have been involved in bargaining for another agreement is going to have any impact on these proceedings. If my friend wants to show me those claims, I d be happy to read them, but again that doesn't it will have no bearing on the proceedings and matters will not be advanced one step by that process.

PN41

THE VICE PRESIDENT: Any other views, Mr Peverill?

PN42

MR PEVERILL: Vice President, United Voice can only be prejudiced by Mr Reidy s two options. Whilst we share the employees view that in the event that those names are provided that we could readily determine whether or not they are covered under the agreement for today s purposes, we would say that under section 577, this can only prejudice United Voice and I would imagine the AWU as well. It s neither fair nor just. It s neither quick nor informal. It s far from being open and transparent.

PN43

If QNU are seeking to press that they are eligible members under this agreement, the offer to provide to the employer and not to the other relevant parties can only prejudice those other parties. We say that in consideration of section 577 of the Act it is neither open nor transparent. Even if they were to provide those numbers, we couldn't readily assess whether those numbers were covered under this agreement. Where QNU s second option likewise, your Honour, again if there is an offer of redacted materials we couldn't readily determine whether or not they are employees covered under this agreement nor could we, if that wasn't the provided to us, press our application that QNU aren t bargaining representatives for the purposes of this.

PN44

THE VICE PRESIDENT: Thank you. Mr Watson?

PN45

MR WATSON: Yes, your Honour. The Australian Workers' Union is of a similar view to the UV, so rather than go through those submissions again, I'll just say we are of the same view as those.

PN46

THE VICE PRESIDENT: Thank you. Mr Reidy, what I propose to do - I'm not sure how critical the actual member details will be. What I propose to do is admit the affidavit into evidence without the attachments and so the affidavit of 17 paragraphs will be admitted into evidence. I'll mark it exhibit R2.

EXHIBIT #R2 AFFIDAVIT CONTAINING 17 PARAGRAPHS OF MS V. SEMPLE

PN47

THE VICE PRESIDENT: I'll reserve the question of the attachments to a later point. You can renew the application if that detail is critical, but at this stage the attachments are not part of the exhibit. Is there any other evidence you wish to rely on?

PN48

MR REIDY: There s no other evidence. I do have some short cross‑examination of Ms Darwin.

PN49

THE VICE PRESIDENT: Is it convenient, Mr Herbert, if you call Ms Darwin now?

PN50

MR HERBERT: Yes. That could be done. We may need to slightly realign the camera. I don't know if we ve got controls here so that your Honour can see Ms Darwin, unless Ms Darwin sits where Mr Watson is and Mr Watson could go to the witness box perhaps.

PN51

THE VICE PRESIDENT: I can see the witness box; only just. I think we might be able to realign the camera. Perhaps you should call her to the witness box.

PN52

MR HERBERT: Yes. I call Margaret Darwin.

PN53

THE VICE PRESIDENT: Ms Darwin?

PN54

MR HERBERT: I don't know if you can see the witness, unless the camera is realigned, if we moved a little closer to Mr Watson, without being too chummy. Can your Honour see the witness now?

PN55

THE VICE PRESIDENT: Yes, I can see her very well. If you can just remain standing, Ms Darwin, while my associate administers the oath or the affirmation.

PN56

THE ASSOCIATE: Could you please state your full name and address?

PN57

MS DARWIN: Margaret Darwin (address supplied).

<MARGARET DARWIN, AFFIRMED [10.39 AM]

EXAMINATION-IN-CHIEF BY MR HERBERT [10.39 AM]

PN58

THE VICE PRESIDENT: Thank you, Ms Darwin. Please be seated.

PN59

MR HERBERT: Ms Darwin, you've given your full name is Margaret Darwin to his Honour?‑‑‑Yes.

PN60

You have provided an affidavit in these proceedings which you swore on 24 April 2015. Is that so?‑‑‑Yes.

PN61

It consists of 27 paragraphs and contains your signature?‑‑‑Yes.

PN62

Are the facts and circumstances set out in that affidavit to the best of your knowledge true and correct?‑‑‑Yes.

PN63

Thank you. I tender the affidavit of Ms Darwin.

PN64

THE VICE PRESIDENT: That affidavit will be exhibit H1.

EXHIBIT #H1 AFFIDAVIT CONSISTING OF 27 PARAGRAPHS OF MS M. DARWIN DATED 24/04/2015

PN65

MR HERBERT: Thank you, your Honour. That is the evidence of Ms Darwin.

PN66

THE VICE PRESIDENT: Thank you. Mr Reidy?

CROSS-EXAMINATION BY MR REIDY [10.40 AM]

*** MARGARET DARWIN XXN MR REIDY

PN67

MR REIDY: Ms Darwin, do you know Julie Morris?‑‑‑No, the name doesn't come to me.

PN68

Can you have a look at do you know Ms Semple filed an affidavit?‑‑‑Yes.

PN69

In that affidavit there were many minutes. Have you got Ms Semple s affidavit in front of you?‑‑‑No, I haven't.

PN70

I'll see if I can get a copy for you. I have one here somewhere. I'll put this back here. I might do this. I want you to have - I'll actually give you this, I think. It might be simpler. If you can have a look - I don't know if your Honour has this. It s attachment 13.

PN71

THE VICE PRESIDENT: Can you describe what it is?

PN72

MR REIDY: Have you got attachment 13 to Ms Semple s first ‑ ‑ ‑

PN73

THE VICE PRESIDENT: Actually, I have 11, 12 and 14.

PN74

MR REIDY: The numbering is written close to the line, your Honour. It s at the top of the page and it says minutes immediately following 12.

PN75

THE VICE PRESIDENT: Yes.

PN76

MR REIDY: There s another way to find it and it s also attachment 5 to the application.

PN77

THE VICE PRESIDENT: I have attachment 13.

PN78

MR REIDY: Good. You'll see that attachment 13 has a list of people present at an enterprise bargaining meeting on 9 December 2014. Do you see that?‑‑‑Yes, I do.

PN79

In your role, which you've only taken this on in early March?‑‑‑That is correct.

PN80

You have familiarised yourself with the bargaining process?‑‑‑Yes.

PN81

And the people involved in the bargaining process?‑‑‑Yes.

*** MARGARET DARWIN XXN MR REIDY

PN82

MR HERBERT: Your Honour, could I ask my learned friend to be fair; if he indicates to the witness which bargaining process he s talking about, which agreement?

PN83

MR REIDY: I was going to get to that.

PN84

There are two bargaining processes, one was the process in relation to nurses?‑‑‑That's correct.

PN85

And you re involved in that process at the present time?‑‑‑Yes.

PN86

And you're familiar with the history of that?‑‑‑By briefing the members, yes.

PN87

You're also involved in what I'll call the services agreement?‑‑‑Yes.

PN88

And you're involved in that currently and you're also familiar with the history of that?‑‑‑By briefing the members.

PN89

By briefing the members? So you would make it a point, would you not, to familiarise yourself with who the participants in the bargaining are? That's a sensible thing to do, isn't it, as an experienced practitioner?‑‑‑I know that by going by the minutes that the QNU had representatives there from our facilities and, yes, the names are on them and we re referring to the bargaining for the nurses agreement at the moment not the support services agreement.

PN90

That's not the question I'm asking you?‑‑‑The question you asked me was regarding the nurses agreement.

PN91

Yes, but if you could just listen to my question. The question is there are two names on that document in front of you that I want to draw your attention to, Patricia Lithgow and Julie Morris?‑‑‑Yes.

PN92

Do you see those names?‑‑‑Yes.

PN93

They are AIN, aren t they?‑‑‑Off the top of my head I couldn't tell you their positions.

*** MARGARET DARWIN XXN MR REIDY

PN94

You can t dispute that they're AINs, can you?‑‑‑No, I can t because Wishart has AINs. It does not have personal carers employed there.

PN95

You don t dispute this that both of those women are members of QNU?‑‑‑No, I don t.

PN96

You said you're familiar with the services agreement negotiations?‑‑‑Yes, I think yes.

PN97

And you're familiar with the document that contains the services agreement?‑‑‑Yes.

PN98

That is the draft enterprise agreement. You're familiar with that, aren t you?‑‑‑Yes. Are you talking about the one that s out ‑ ‑ ‑

PN99

The one that s out to bargaining at the moment. Yes?‑‑‑Yes.

PN100

If I could just get 13 back. You're familiar with the content of that proposed agreement, are you not?‑‑‑Yes.

PN101

You're familiar with its coverage clause, are you not? Have you got it in front of you?‑‑‑Let me just no, I haven't.

PN102

You haven't? I want you just to look at this document. Do you accept that s the document that s proposed to be balloted on?‑‑‑Yes.

PN103

Can you have a look at clause 4, the coverage clause?‑‑‑Yes.

PN104

Do you see that that covers first of all Carinity. Do you agree?‑‑‑Yes.

PN105

And it then covers all of its employees and the classifications listed in schedule A?‑‑‑Yes.

PN106

And then three unions, but not the QNU?‑‑‑Yes.

PN107

Then schedule A, if you could just turn to schedule A, contains the classification structure. Do you see that?‑‑‑Yes.

*** MARGARET DARWIN XXN MR REIDY

PN108

That classification structure has, would you agree, five levels to it?‑‑‑Yes.

PN109

That applies throughout the entirety of the Carinity business, doesn't it, that classification structure?‑‑‑The people working in those classification structures.

PN110

Yes. No matter where they work?‑‑‑Yes.

PN111

Those are the questions I have for this witness. Now, in relation to tendering that, I will tender that document. Unfortunately, I don't know how I'm going to get a copy of it to you. That's the difficulty, your Honour.

PN112

THE VICE PRESIDENT: We'll find a way.

PN113

MR REIDY: Sorry. I'm told the simplest way - Mr Herbert has pointed this out to me. There s attachment 7B to the application, but I dare say it s not precisely in the same form as the document that I ve just taken the witness to. However, for the purposes of the questions I asked her, it is in all material respects the same. Would you accept that?

PN114

MR HERBERT: (Indistinct.)

PN115

MR REIDY: I might put it this way, it s going to have to be a little bit indirect. If the witness could look at 7B to the application.

PN116

MR HERBERT: Is there a copy?

PN117

THE VICE PRESIDENT: It appears to be a marked up version of the existing agreement.

PN118

MR REIDY: Yes.

PN119

THE VICE PRESIDENT: The 2011 agreement.

*** MARGARET DARWIN XXN MR REIDY

PN120

MR REIDY: In your review of the records is this the case that the 2011 agreement was used as a template and then changes were made to that to produce the document that s formed the ballot?‑‑‑Changes were made and, yes but there were a there were other underpinning agreement, too, such as the (indistinct) agreement for our transferring employees and we also had employees under the Aged Care award, so it s I guess the template it would be fair to say the template was all three.

PN121

But in terms of a working document, if you could go to the one that is four pages in, to clause 4, coverage?‑‑‑Yes.

PN122

There is a difference, isn t there, between this draft and the one that s formed the ballot?‑‑‑The classification structure has changed.

PN123

No, no, I'm just talking about the wording of the clause. So the wording of the coverage clause here instead of having the employer as Carinity and the (indistinct) gone to ballot?‑‑‑Yes.

PN124

It certainly also refers to employees working in classifications in a schedule, but in the ballot it just simply refers to schedule A not A and B, as in this one?‑‑‑Yes.

PN125

The current one also lists an additional union, doesn't it?‑‑‑That's correct.

PN126

Those are the only changes that have been made in the current agreement?‑‑‑To the coverage clause?

PN127

Yes?‑‑‑I don't have them in front of me here.

PN128

Do you want to just compare the two and identify the other changes? Yes, any other changes?‑‑‑Insofar as I'm saying yes, my understanding that there s one slight difference in the name of one of the unions that they wanted, but other than that it was all the same, yes.

PN129

Can you then go - and just keep the document that s gone to ballot in front of you I want you to have a look at attachment 16 from Ms Semple s first affidavit, which is R1? I'll just get 16 for you. If you could just confirm to me and to his Honour that that s the same classification structure that appears in the document that s gone to ballot?‑‑‑My understanding is, yes, but there could be some typo changes in there, but other than that, yes.

PN130

So to all intents and purposes it s the same. Going back to your previous answer, if you put all that together the agreement applies to people in those classifications working across the Carinity enterprise?‑‑‑Where we have an employee (indistinct).

*** MARGARET DARWIN XXN MR REIDY

PN131

The other thing that I just wanted to ask you is this that what you want from the QNU are names of members, isn't it?‑‑‑Going to the minutes and also the letters that mention the QNU to establish whether they were a bargaining representative, we asked them to tell us not of the names of members, but to tell us who we needed to understand that they did have members that were employed at (indistinct) and they came back saying that they had people at Kepnock Grove, Shalom and John Cani. We asked them to produce a name from those facilities and we did not receive that.

PN132

You want the name of the union member. That's what you want, isn't it?‑‑‑To say that they are the bargaining representative; of the name of the person employed as a personal carer in those facilities that will be covered by this agreement, that they are saying are QNU members.

PN133

The short answer is you want a name, isn't it? That's the short answer. Yes?‑‑‑No.

PN134

You don t want the name?‑‑‑We re asking for the name of people employed in those facilities that were personal carers. We were not asking that would be covered by this agreement. We were not asking for the name of AIN members.

PN135

You might be misunderstanding my question. You wanted the name of a QNU member. That's what you wanted, wasn't it? That's what you say in your affidavit at paragraph 7. Do you want to have a look at it?‑‑‑We wanted the name of the QNU members and in the attachments that would be covered by this agreement.

PN136

That was all you wanted and that was the only thing that would satisfy you, wasn't it?‑‑‑We didn't get into the argument about whether they covered that. We were still waiting for the Blue Care Agreement to come down, as I understand it decision at the time, but we were asking to say, (indistinct) bargaining rep, the second step is that you need to have union coverage of people that would be employed under this agreement.

PN137

I don t want to be going around in circles here, but you wanted the name of a union member to do that, didn't you? That's a simple yes or no?‑‑‑No, it s not a - I don't believe it s a simple yes or no. We wanted the name of the union member who would be employed under this agreement who is employed.

PN138

Yes. That's what your affidavit says, isn't it?‑‑‑Yes.

*** MARGARET DARWIN XXN MR REIDY

PN139

You didn't consider any other option beyond providing the name of the union member, did you?‑‑‑I'm sorry, I don t ‑ ‑ ‑

PN140

You didn't consider any other option to satisfying the bargaining representative issue than supplying the name of the union member, did you?‑‑‑Saying the union member who s employed under this agreement. Our belief is that some for the union to be a default bargaining representative, they have to have a member that s employed under this agreement that they're bargaining for.

PN141

I'm sorry if my question isn't clear. I'm talking about you and when I'm talking about you, I'm talking about Carinity. Carinity did not consider any other option to satisfy this issue about union membership short of disclosing the name of the union member, did you?‑‑‑Well, the union could have had a representative. We asked the other unions to if they were a bargaining representative.

PN142

I'll ask the question again. I don't think it s a complicated question. You didn't consider any other option that didn't involve disclosing the name of the union member, did you?‑‑‑We put that to the union, yes.

PN143

That was the only thing that would satisfy you, wasn't it?‑‑‑To be a default bargaining representative, we believe that is the case, that they have to have it, so, yes, we could achieve ‑ ‑ ‑

PN144

Okay. Those are the questions that I have, your Honour.

PN145

THE VICE PRESIDENT: Ms Darwin, can I just ask you this ‑ ‑ ‑

PN146

MR HERBERT: Just one matter sorry.

PN147

THE VICE PRESIDENT: ‑ ‑ ‑ before Mr Herbert asks you some questions. You mentioned that the latest draft of the agreement, the one that s out to ballot, adds another union. What is that union?‑‑‑Look, the union that covers the clerical staff.

PN148

And what s its name?

PN149

COUNSEL: I'm acting for them, your Honour.

PN150

WITNESS: Together.

*** MARGARET DARWIN XXN MR REIDY

PN151

THE VICE PRESIDENT: Together Queensland?‑‑‑Together Union out at ‑ ‑ ‑

PN152

Yes, thank you?‑‑‑Yes.

PN153

Mr Herbert?

RE-EXAMINATION BY MR HERBERT [10.59 AM]

PN154

MR HERBERT: Just to make it clear, I think you mentioned this, Ms Darwin, but it may have been lost in the exchange. Attachment 13, you were taken to the minutes of the nurses enterprise bargaining meeting. That is a meeting at which the Nurses Union obviously have entered?‑‑‑Yes. Correct.

PN155

From reading the minutes, it also appears that a number of their members attended at the nurses enterprise bargaining meeting and identified themselves as union members and turned up for the meeting?‑‑‑Correct.

PN156

Did they do a similar thing in relation to the on your view of what you see in the minutes and your experience with bargaining since you've been here, did the QNU turn up with workplace representatives in relation to the personal care bargaining agreement?‑‑‑Not at any time.

PN157

Your attention was drawn to the names of Patricia Lithgow and Julie Morris and the word Wishart appears in brackets after there. That's a reference to a facility in the Brisbane suburbs called Wishart?‑‑‑That's correct.

PN158

Are there any personal carers currently employed at that site?‑‑‑No, there s not.

PN159

What category of employee or what classification of employee performs personal care type work at the Wishart facility?‑‑‑It s based on a model which has assistants in nursing.

PN160

Thank you. I have nothing further. Thank you, your Honour. May Ms Darwin be excused?

PN161

THE VICE PRESIDENT: Yes, Ms Darwin. You can leave the witness chair and return to the body of the court.

<THE WITNESS WITHDREW [11.01 AM]

PN162

THE VICE PRESIDENT: That's the ‑ ‑ ‑

PN163

MR HERBERT: That's the evidence of Carinity, your Honour.

PN164

THE VICE PRESIDENT: Thank you, Mr Herbert. Mr Peverill and Mr Watson, do you wish to call any evidence?

PN165

MR PEVERILL: United Voice doesn't wish to call any evidence at this stage, your Honour.

PN166

THE VICE PRESIDENT: Thank you. I ve received submissions, which we'll come to, but it appears that that s the totality of the evidence. Can we move to submissions, Mr Reidy?

PN167

MR REIDY: Yes, your Honour. Your Honour has an outline which I will speak to, but which I won t repeat. I'll assume that your Honour is familiar with its contents. What I propose to do is deal with the matters of sorry, your Honour?

PN168

THE VICE PRESIDENT: I didn't say anything. But seeing you've stopped, I'll mark the outline of submissions exhibit R3 and that includes the draft interim orders that were received at the same time.

EXHIBIT #R3 OUTLINE OF SUBMISSIONS AND DRAFT INTERIM ORDERS FOR THE APPLICANT

PN169

MR REIDY: Thank you, your Honour. Sorry, your Honour, there s just some little bit of feedback that comes through and I wasn't sure whether your Honour was speaking or not. That's why I hesitated.

PN170

THE VICE PRESIDENT: I apologise for the technology difficulties.

PN171

MR REIDY: Yes. Your Honour, I'll deal with these issues: firstly, the matter of the serious issue to be tried and then the balance of convenience. As I ve noted in my outline, the conventional approach to these interim applications has been to adopt the sort of approach taken by courts on interim injunctions, but I do note in my outline arising from some propositions that have been posited by Richards SDP in more than one case, but the one to which I refer to is, Thiess Pty Ltd v CFMEU. It is, in my submission, a broader exercise that is governed by the legislation which gives a very wide scope to the Commission to make procedural and interim orders and not necessarily limited to the sorts of considerations that operate in a serious issue to be tried and the balance of convenience.

PN172

My submission is that, in any event, these matters are made out on this application and they're made out because fundamentally the proposal for the services agreement involves a document, an instrument, that will capture assistants in nursing. It is not a matter that has ever been disputed that my client covers assistants in nursing, but has members who are assistants in nursing. The principal that I develop is this that the position that has been put by the other parties involve an invitation to ask the wrong questions and that question is based around a misunderstanding of the QNU enrolling people at (indistinct) as personal carers. The real question in this case, and the correct question, is: does the QNU have AIN members and that s really what the serious issue matter boils down to in this case.

PN173

The second issue is in relation to balance of convenience and, as I ve set out in the outline, the exclusion of the QNU as a bargaining representative when it is thought that not only it be a participant in the services agreement for some considerable time, starting towards the end of last year, but also in the context of what clause that could happen, that is to get some clarity over the coverage of people who are titled Personal Carers doing the work of assistants in nursing. That history is relevant and what the net result would be, if the QNU is unable to agitate its claim for good faith bargaining, is that a bunch of people working in Carinity will be covered by this agreement but doing AIN work and that is a significant matter, we say.

PN174

Can I go back to the issue first of all of serious issue to be tried? The red herring in all this and it came out in the evidence of Ms Darwin is this fixation on whether the QNU has signed personal carer members, or people doing personal care work as members, and wanting the names of such a person. That's not the issue. The issue is and can I take your Honour to the logical approach to this but what the issue is, is what work does this agreement, the services agreement, seek to capture and what we concede from the document that is attachment 16 to Ms Semple s first affidavit, which is exhibit R1, is this do you have that, your Honour?

PN175

THE VICE PRESIDENT: Thank you.

PN176

MR REIDY: Yes. If I can take your Honour to the second paragraph, the way that this classification structure operates is that it provides for employees to be assigned levels according to not only the skills that are set out, but by reference to a document that doesn't appear in here, that is a position description. The words used in the second paragraph, in my submission, vital and important , so to facilitate the structure, the employees are provided with appropriate responsibilities within their position description:

PN177

They may be required to undertake any duties

PN178

any duties

PN179

within their level or a lower level provided they have been provided with the appropriate training.

PN180

That is the hinge on which this document moves. The levels, as your Honour will see from reading them, are very general and very vague and I ve dealt with that in the outline and I won t deal with it again, but they are clearly able to be all things to all people. To track the course of the changes to this document because what one sees from the - I'll come back to that, but I think it s actually an important point, but we should have a look at the Blue Care submission because this is very important.

PN181

I don't know if your Honour has that independently, but it can be found in the attachments to the application and it s, I think, attachment 2, from memory attachment 4.

PN182

THE VICE PRESIDENT: Yes.

PN183

MR REIDY: I ve set out that decision in my outline and I don t intend to repeat what I said there, but what I do want to take your Honour to is the crux of this decision. The crux of the decision can be found at paragraph 43 and 44 and it was instructed because it says that what we need to do is to look first at the classification structure. Could your Honour just read paragraphs 43 and 44?

PN184

THE VICE PRESIDENT: Yes.

PN185

MR REIDY: Your Honour, the document that is the schedule to which Ms Darwin was taken in evidence and which is attachment 16 to Ms Semple s first affidavit bears many of the hallmarks of the sort of personal care descriptors, the generic and vague statements, that were dealt with in Blue Care. In my submission, they are not seriously distinguishable. For example, in paragraph 44, the Blue Care document referred to an employee who is not a nurse, who is multi-skilled and undertakes a range of duties that assist in the care of her client as a personal support assistant; said in other words, but that is the same message that appears in the schedule of the document being put to ballot.

PN186

In my submission, it doesn't matter that the document says they're not a nurse. That doesn't help because assistants in nursing aren t nurses. What is critical is what duties those people can undertake. We only really know that in this case from an examination of the position descriptions and I'll come to those, but before I finish with that case, this is key, in my submission, that the terms of the proposed agreement are the opening words in paragraph 44:

PN187

Provide Blue Care with such flexibility that the work that will be performed under the support agreement has the capacity to extend to an assistant in nursing, as defined, and covered by the QNU eligibility rules. The QNU is eligible to cover assistants in nursing.

PN188

There is evidence, at least evidence enough, to establish there s a serious issue to be tried, that the QNU has assistants in nursing members and doesn't appear to be seriously argued by Ms Darwin that that s the case. That being so, the QNU is a bargaining representative for this agreement. In my submission, it s a simple case. Does the QNU cover AINs? Yes. Does the QNU have AIN members? Yes. Do they work for this employer? Yes. When we look at the classification structure, is that classification structure capable of covering the work or will it cover the work of AINs? The answer is yes.

PN189

THE VICE PRESIDENT: Is there any question ‑ ‑ ‑

PN190

MR REIDY: To underline that ‑ ‑ ‑

PN191

THE VICE PRESIDENT: Sorry, Mr Reidy. Is there any question of the proportion of work that might be required of a care and support worker and bearing on the question of eligibility for membership of the QNU?

PN192

MR REIDY: The cases, your Honour, haven't approached this on the basis of proportion of work. They have been surveyed in a great deal of detail in the decision, but what, in my submission, it boils down to is this: it requires an examination of the duties that are carried out to see whether those duties are nursing type tasks and I ve outlined some of those in my written submissions and those include, if you go to page 3, things like: bathing, showering, hygiene needs, changing beds, toileting and this is the second aspect. In an environment of residential care where there are high care residents, that is those who need nursing services, need something other than just someone to drive them to the pictures or take them on outings or help do their banking and run errands.

PN193

The proposition in answer to your Honour s question is this: it matters not that some of the functions of the AIN may be in the nature of provision of personal care for peripheral or incidental work. What the focus is, is the context of the work that the person does and this might be a useful point to take your Honour to the position descriptions because in the course of this and might I just take a step back before I move into that? Does your Honour have the chronology?

PN194

THE VICE PRESIDENT: Yes.

PN195

MR REIDY: We have to look at how this all unfolded. The first date is that the nominal expiry date for the services agreement was June 2013 and essentially the pace on that has been mail pedestrian. What you may see from that outline of Ms Semple s affidavit is that the Nurses Union was seeking to get a replacement for the nurses agreement as hot on the heels of the expiry date of the nurses agreement as possible. If your Honour has a look at what happens on 20 January, one of the first items is no personal carers to be employed to do AIN work.

PN196

Your Honour, that is why we are here today and why the QNU is, on our case, bargaining representative in the support services agreement. It is a matter that has not been resolved in either the QNU bargaining or in sorry, the nurses agreement bargaining or in the services bargaining. It just hasn't been resolved. So where we are at is we have this murky, dark grey area of cloud in the services agreement that as I'll take your Honour to presently will cover the work of AINs.

PN197

If one looks at the history and the chronology, it shows that time and again the QNU has raised this issue about AINs and by about November of 2014, having gotten nowhere with it and being aware of the services agreement, advised that it was the default bargaining representative in that agreement on the view, quite rightly, and based on the experience of another like organisation Blue Care, that this agreement, the services agreement, had the capacity to cover AINs and would cover AIN work.

PN198

When one puts the two together, the refusal to exclude AIN work from the support agreement and the flip slide, the refusal in the nurses agreement to make it clear and make provision as to what AIN work is and that personal carers weren't to do that work, there was no choice except to seek to bargain to follow its members, its AINs, who will be caught up in this cloud created by the approach to the services agreement and that s what the QNU ‑ ‑ ‑

PN199

THE VICE PRESIDENT: Mr Reidy, why isn't it just a matter that is a disputed claim where your client has had the ability to advance its position and the employer has not agreed to it? Why is it not capable of being described in such a manner?

PN200

MR REIDY: Why isn't it capable of being described as disputed claim? It clearly is. In a sense, it s not a disputed claim because a dispute requires a party to provide an answer in response and what the QNU has been met with is no answer in response and so it s very ‑ ‑ ‑

PN201

THE VICE PRESIDENT: The employer hasn't agreed to it, either in the nurses agreement or in the support services agreement.

PN202

MR REIDY: Yes. No agreement has been able to be reached and the logical consequence of the prospect that not only the prospect, but the reality that an agreement a services agreement has been proposed that will cover AINs the logical step is to be involved in the bargaining for that agreement.

PN203

THE VICE PRESIDENT: But your client has advanced its proposition and the employer hasn't agreed with it.

PN204

MR REIDY: That's, I suppose, one of characterisation of it, your Honour, but the characterisation we say is that we should be involved in an agreement and have a role as bargaining representative in an agreement where we have members and where we are seeking to prosecute - seeking to be involved in the bargaining as the Act contemplates we will be.

PN205

THE VICE PRESIDENT: Can you take me to the evidence on your involvement in the agreement? I read something that you were involved in the negotiations.

PN206

MR REIDY: Yes. What happened was this that if I can take you to Ms Semple s first affidavit and the earlier paragraphs deal with the difficulties in relation to the nurses agreement and that covers that s about the first 19 paragraphs. It starts at about paragraph 20 where Ms Semple asked for confirmation if the AINs would continue to be employed and classified as such and Mr Turner, who was then involved, for Carinity couldn't advise the position and so from paragraph 20 onwards, what those paragraphs set out is that the QNU sought to negotiate in relation to AIN positions, sought a draft document about what was going to be contained in the services agreement, and you can see that at paragraph 24, and at 25 there was a response to the QNU s request to be part of that agreement.

PN207

It wasn't until, your Honour, we get to 30 January that Mr Turner advised the QNU that he wasn't sure if they were a bargaining representative, but invited them along to a meeting which occurred on 3 March and that was the one and only meeting to which the QNU has been invited. That meeting, as the evidence shows and in particular it was contained in the application the meeting disintegrated on the basis of a non-recognition by the other union parties and the employer of the QNU s capacity to be a bargaining representative, which then caused the QNU to give a concerns notice and then when that met with no response, the application for bargaining orders was made.

PN208

So that s the general history of it; one meeting to which the QNU was invited, a meeting which disintegrated because of disagreement about the ability of the QNU to progress a role in that agreement as a bargaining representative. In this ‑ ‑ ‑

PN209

THE VICE PRESIDENT: But in one or both of the negotiations, your client has had the ability to advance its position and that which is described which you described earlier that personal carers do not undertake do AIN work. You've advanced that proposition and it s not been agreed to and apparently that position is not reflected in the agreement that s now out for ballot.

PN210

MR REIDY: Sorry, I just went past the note. I'm just, I suppose, reflecting on the response to that question because in my submission and I'll answer rhetorically how does one get an opportunity to advance a position and not only in relation to the whole issue about AINs, but what is going to be the content of this services agreement that will cover AINs and how should it operate with respect to the work of our AINs? How does one have an opportunity to do that when one doesn't get invited to the meetings, one doesn't know what happens at the meetings and when one gets to the one and only meeting and it achieves nothing and doesn't get beyond the issue of people refusing to talk because they re not recognised as a bargaining representative. So, in my submission, there s no opportunity to advance the position, particularly when you don t ‑ ‑ ‑

PN211

THE VICE PRESIDENT: What about in the nurses agreement negotiations?

PN212

MR REIDY: In the nurses agreement negotiations, the position was put and not accepted and, of course, the difficulty with that is putting a proposition in the nurses agreement that the nurses agreement not - I think the proposition that was originally put was no personal carers to be employed to do AIN work. That wasn't accepted in that form or in any form and what became clear and this is really, in my submission, the relevant unfolding of the history, what became clear is that this work, that is this AIN work, was going to be captured in the agreement for services and for the services agreement.

PN213

In my submission, it s a proper place a more than proper place for the QNU to be, particularly in light of the Blue Care decision when an agreement is to be made that covers work that the QNU has traditionally covered when it has members doing that work, it has a place there and it s no answer I'm ‑ ‑ ‑

PN214

THE VICE PRESIDENT: Does the nurses - I'm sorry. Does the nurses agreement cover personal carers?

PN215

MR REIDY: No.

PN216

THE VICE PRESIDENT: Putting the proposition no personal carers to be employed to do AIN work in the nurses agreement was really a proposition relating to the employment practices of Carinity in the entirety of its operations.

PN217

MR REIDY: That's probably one way to characterise it. It certainly is the ‑ ‑ ‑

PN218

THE VICE PRESIDENT: Why isn't it the correct way?

PN219

MR REIDY: Sorry?

PN220

THE VICE PRESIDENT: Why isn't it the correct way?

PN221

MR REIDY: Sorry, I might have got lost in transmission. I think I said that s one way to characterise it and that question of your Honour s flows from something I said earlier and that is this that the nurses agreement, even with the provision of that nature might not, and would not, in my submission, effectively deal with a competing later agreement, presuming there s a later agreement or there may be an earlier agreement, but a competing agreement that covers AIN work.

PN222

THE VICE PRESIDENT: I'm just trying to understand in a practical sense why you say there hasn't been bargaining in good faith when in substance your client has put a position and it has not been agreed to and you say that it needs to be agreed to in the support services agreement and you haven't had a full role in that process, but nevertheless in a practical sense you've put the position and it s not been agreed to. I assume the agreement that s out to ballot reflects a position that is inconsistent with the claim that you've made.

PN223

MR REIDY: The agreement that s out to ballot puts a position that s inconsistent with the QNU being a bargaining representative and it hasn't been the subject of good faith bargaining because of the exclusion of the QNU from any effective bargaining role in that services agreement. It has been excluded from meetings. It hasn't received minutes of meetings. It hasn't had an opportunity to put its views in the forum of the meeting. Even the one and only meeting it went to, it didn't have that opportunity and bargaining has to be real. It can t be, in my submission, a putting the proposition and having a response, which has been the response up to 30 January and including 30 January, a response of, Well, we really don't know the position. That's been the Carinity response and then ‑ ‑ ‑

PN224

THE VICE PRESIDENT: Mr Reidy, in circumstances where your client has put a position in the nurses negotiations regarding the employment practices across Carinity s operations and that position has been rejected to the extent that the position description in the support services agreement is what it is, to the extent that that s a rejection of your client s claim, it s been dealt with, then why has there not been a real opportunity for your client to raise its position and have it considered?

PN225

MR REIDY: Because it wanted to attend meetings to discuss its position, to discuss what was in the services agreement, to know what was in the services agreement, and to have an influence or an opportunity to have the influence and input into the content of that services agreement, such as if one looks at 16, that s attachment 16 to Ms Semple s first affidavit, there was no opportunity to have an input into how that provision would operate. I mean, in particular, for example, to examine how the position descriptions would work and what was involved ‑ ‑ ‑

PN226

THE VICE PRESIDENT: But that s because your client s position was rejected, wasn't it? Your client s claim has never been accepted and the classification structure, which is attachment 16, was developed to be what the employer believed was the appropriate classification structure for the support services stream and clerical and maintenance stream and there s a disagreement as to what should be covered by the classifications. Your client has put its position and the employer has not agreed to it.

PN227

MR REIDY: And I would disagree with that, your Honour, because it hasn't had an opportunity to put a position on that schedule because it hasn't seen it. As far as anything has ever got is this issue about whether or not the QNU is a bargaining representative. On that basis, it doesn't get to first base in getting a copy of the agreement and having an influence on the schedule. QNU can t put a position on something it hasn't seen and is not shown and is withheld from it. It just can t do it. That's why it presses to be a bargaining representative so it can be put in that position.

PN228

THE VICE PRESIDENT: What you're saying ‑ ‑ ‑

PN229

MR REIDY: And in my submission ‑ ‑ ‑

PN230

THE VICE PRESIDENT: I'm sorry, Mr Reidy. What you're saying is that your client wanted an opportunity to participate in the support services agreement negotiations to confine the classification structure and the duties performed by employees in the support stream to work that was not AIN work. That's what your client wanted an opportunity to do.

PN231

MR REIDY: Sorry, the last bit disappeared there, your Honour. Could you just repeat that again?

PN232

THE VICE PRESIDENT: At the end I said, That's what your client wanted an opportunity to do.

PN233

MR REIDY: I think I missed the bit before that. It got a bit cut off.

PN234

THE VICE PRESIDENT: Okay. Let me repeat it.

PN235

MR REIDY: Thank you.

PN236

THE VICE PRESIDENT: Your client wanted an opportunity to participate in the support services agreement negotiations in order to advance its position generally and specifically in relation to the classification structure to ensure that there was no AIN work falling within the work of a support stream services employee.

PN237

MR REIDY: No, I don't think that s the full story, your Honour. The full story is that if that agreement was to cover AIN work, which it does, then the classification structure has to properly reflect that AIN work and that s a second position that it never got the opportunity to put because it was excluded and because it never saw the document.

PN238

THE VICE PRESIDENT: So you say that AIN work should have been covered by the support stream classification structure?

PN239

MR REIDY: What I say is this that the services agreement, to the extent that the employer intended or wanted it to cover nursing work of the type that I ve set out in the outline and of the type that the Full Bench has accepted is assistant in nursing, that the classification structure should reflect that. That meant that was the opportunity denied. It wasn't as simple as a proposition to exclude AIN work. That may have been one position, but there were many positions in the negotiation that could have been put that the QNU wasn't given the opportunity to put.

PN240

THE VICE PRESIDENT: Can you tell me the current position? I don't know that the chronology identifies everything. There s apparently an agreement that is out to ballot.

PN241

MR REIDY: Well, Mr Herbert would be of more help to ‑ ‑ ‑

PN242

THE VICE PRESIDENT: What do you understand it to be for the basis of your application for an interim order?

PN243

MR REIDY: We understand the position to be that the ballot is to be finalised tomorrow and that s all we know because that was all that we were told at the last directions hearing.

PN244

THE VICE PRESIDENT: What were your members told?

PN245

MR REIDY: What were our members told?

PN246

THE VICE PRESIDENT: What were your members employed involved in the vote or the support services agreement, what were they told?

PN247

MR REIDY: They were given if I could just - sorry, I just need to get instructions.

PN248

THE VICE PRESIDENT: I assume they were told something that purported to be the requirements under the Act, noting in a ballot and when the ballot opens and how to cast a vote and when it closed and those sort of details.

PN249

MR REIDY: We haven't got that. A member provided us with a copy of the draft services agreement, which is the one that I sought to tender through Ms Darwin, and all that that said was that it provided a summary of the document and invited members to come to information sessions. There was nothing in what was provided to us about the date of the ballot.

PN250

THE VICE PRESIDENT: Why didn't you ask your members?

PN251

MR REIDY: I'll just have to get instructions. Can I answer the question this way: as I said, we were provided with the support services agreement. We didn't get any information from either the members or the employer about balloting and we don't know why that is and there could be any number of reasons and it would be mere speculation, in my submission, and speculation which I don t wish to indulge as to why that information didn't come to us. But one would expect, as I ve said in the outline, when we've got an application for good faith bargaining before this tribunal where we have been in conference before the Commission and then negotiation outside the Commission about the matter, that the employer at the least would tell us what its timetable is on and it didn't.

PN252

It s now seeking to take some forensic advantage of that and, in my submission, it oughtn t be allowed to take forensic advantage to push through an agreement that on any test in the Blue Care case, based on the Blue Care case, covers AINs.

PN253

THE VICE PRESIDENT: When did your client become aware that an agreement was going out to ballot?

PN254

MR REIDY: When Ms Darwin informed us at the last directions hearing on the 16th.

PN255

THE VICE PRESIDENT: So the information from the members happened after that?

PN256

MR REIDY: Yes.

PN257

THE VICE PRESIDENT: So at the time you made the application you were not aware that the agreement was going out to ballot?

PN258

MR REIDY: No. And we still don't know what the time is.

PN259

THE VICE PRESIDENT: Have you had an opportunity to communicate with your members as to how they should vote in the ballot?

PN260

MR REIDY: No. Because we haven't had sufficient time and we ve only belatedly got the agreement.

PN261

THE VICE PRESIDENT: So the mention in this matter was the 16th of this month.

PN262

MR REIDY: Yes.

PN263

THE VICE PRESIDENT: So in those 12 days you haven't had an opportunity to advise the members how they should vote in the agreement?

PN264

MR REIDY: The answer to that is no; and the second point to make to that is that it appeared that the ballot had opened before the 16th and with every day passing of the opening of the ballot, the opportunity to have an influence on it just diminishes.

PN265

THE VICE PRESIDENT: But couldn't it be said that your client has been sitting on its hands, at least since the 16th, when it became aware that there was a vote its ballot in a sense of advising its members as to how it should vote in the ballot?

PN266

MR REIDY: No, your Honour, it isn't sitting on its hands. It s seeking to be a bargaining representative and it has done all that it can possibly do to assert its position and to assert the requirements of the Act that it be recognised as a bargaining representative and have an opportunity to influence the document that s put in this. It s purely a case, your Honour, of insofar as having any opportunity to do anything with members when the ballot is already open and when you don t get a copy of the agreement until after the 16th, that the only practical option the only practical option is to pursue this application.

PN267

THE VICE PRESIDENT: Okay. Can I take you back to the question of whether there has been an opportunity to advance its claims? What I am interested in your response to is the notion that in substance your client has had an opportunity to advance its claim about the coverage of AIN work by the support services agreement. It has had that opportunity. It s advanced that position. It s not been agreed to and it is while it may not have had the opportunity to advance further arguments and further specific variations in the support services agreement, it s a proposition which has been advanced and has apparently been rejected by the employer.

PN268

The circumstances indicate that in substance that proposition has been put. In substance it has been rejected and that the alleged breach of the good faith bargaining obligations is more a question of form rather than substance. I'm interested in your response to that.

PN269

MR REIDY: It s a question of deep substance and it s a question of deep substance because, firstly, it hasn't had an opportunity to put proposals of the nature that I described, that is, it hasn't had an opportunity to put proposals about, for example, how the schedule might work, given that it covers AINs or what the content of the schedule would be and, therefore, it hasn't had because it can t put the proposals, it hasn't had the opportunity of looking at a response to the proposals. It has been and this is a matter of deep substance, it has been shut out of meetings and at the one and only meeting that it got invited to, it got to know the substance of the agreement because it disintegrated over the bargaining representative issue. Therefore, it not only didn't attend, it had no opportunity to participate in that meeting. Participate has to be meaningful participation. It hasn't had disclosed to it relevant information, let alone in a timely manner. It hasn't seen or been provided with copies of the agreement so that it can respond to that respond to the content of that. That is a matter of substance and not form.

PN270

In all of that history, there cannot have been any genuine consideration given to proposals or an opportunity for that to occur when the QNU was never in the position to put proposals because of the withholding of information, for example, that is the proposals in the agreement, and because of its exclusion from the meetings. It was also and again a matter of substance not recognised as a bargaining representative when it should have been recognised as a bargaining representative and that was the explanation for the disdain or offhand and dismissive nature of its treatment by the employer in the bargaining process. Those matters go to the deepest substance of section 228 and go beyond mere relations, they go to the whole trust of what bargaining is about and independent in this case.

PN271

THE VICE PRESIDENT: Can I take you back to the approach of the Commission in relation to such matters? You're seeking interim orders. I think you accept that that s a discretionary matter.

PN272

MR REIDY: Yes.

PN273

THE VICE PRESIDENT: It s also discretionary as to whether a bargaining order should be made at all in terms of any final order. So subject to limitations in the Act, such as section 255, you say there s a broad discretion in relation to both matters and the nature of the interim relief you seek is not on the basis of an interim outcome, but more in the nature to preserve the final application that you wish to make, being the orders that you've attached to the submissions, final orders.

PN274

MR REIDY: So what we seek is the ability to do that which the Act contemplates we should have been able to do but were prevented from doing and those are the sorts of things that are set out in the draft orders.

PN275

THE VICE PRESIDENT: Yes, thank you.

PN276

MR REIDY: I'm not sure if I'm answering your Honour s question.

PN277

THE VICE PRESIDENT: It s up to you how you answer it. You've given an answer.

PN278

MR REIDY: Yes. The purpose of the application is like any interim application or any interim order of this nature, which is to, as I said, allow the QNU the opportunity to ensure that the objectives of the Act in relation to bargaining are met and it s the simplest way that I can put it. In relation to and this might be a useful point on which to deal with this, your Honour is the issue of the balance of convenience. I don't know if your Honour has the HSU v Victorian Hospitals Industry Association [2012] 201 IR decision. One was emailed to your Honour s associate earlier this morning.

PN279

THE VICE PRESIDENT: Yes, the decision of the Full Bench?

PN280

MR REIDY: Yes.

PN281

THE VICE PRESIDENT: April 2012. Yes.

PN282

MR REIDY: In April. Yes. The Full Bench dealt with the interim orders matter, similar but not the same as this, in the bargaining process and did it in the - I'm instructed seems to be well adopted of serious issue to be tried and balance of convenience. Their Honours dealt with the balance of convenience at paragraph 20 in circumstances, which not unlike these, where their Honours observed:

PN283

The making of the interim order will potentially delay the agreement approval process

PN284

and substituting HSU for QNU

PN285

QNU s primary application fails, the time that will have been wasted and how it will be covered resulted in the delay in approval and operation of the agreement to the detriment of the relevant employers and employees. Against that, if the interim order is not made, the union and its members in mental health would be denied the opportunity to have efficiencies in the bargaining in respect of an agreement to have their employment rectified if the general agreement is put out for approval and approved. We think the balance of convenience favours the making of the interim order so that the status quo can be preserved. The purpose is to permit the substantive application before the Commissioner (indistinct) orders to be considered.

PN286

That captures, in my submission, the position here; a position which is designed to allow the QNU as a bargaining representative to have a real opportunity to have the classification structure in this agreement dealt with in a way that reflects the work of AINs and dealt with in a way that reflects what the Full Bench decided in the Blue Care decision.

PN287

COUNSEL: Did you have a copy of that?

PN288

MR REIDY: I think they were emailed this morning, but I'll just provide copies. It s no answer, your Honour, to say, Well, you've told us what the QNU thinks and we re just not going to respond to it or not going to respond in a way that could be taken to be a rejection. That's form. That's not substance. That's not even done through the motions. It s not attempting to go through the motions, in my submission, and that s what s occurred here.

PN289

I might just respond to some of the matters that have been made in submissions by my friends. There s an issue that I have to deal with concerning the basis of the fact that the union hasn't provided names of union members. The issue of the identity of a person who s a union member is firstly dealt with in Ms Semple s second affidavit where she refers to the policy of the union of not disclosing union memberships. That's a quite unremarkable policy and I think that can be found at paragraph 1 of her statement where she refers to the formal policy about the right to privacy.

PN290

That reflects the common law approach, in my submission, and that common law approach was dealt with in Kierath, K‑i-e-r-a-t-h, v The Western Australian Builders Labourers, Painters and Plasterers Union which is a decision of the Supreme Court of Western Australia. That should have been sent to your Honour s chambers this morning.

PN291

THE VICE PRESIDENT: I have that.

PN292

MR REIDY: Yes, thank you, your Honour. I'll just provide copies to my friends. That's reported in [1997] 75 IR 124. Your Honour, in that case there was an appeal in respect of the registrar allowing an application by a minister to gain access to membership records of the union in order that the minister could use that register to send mail out to the members. One of the bases upon which the judge at first instance and this was on an appeal basis found against a minister was what he described as the self-evident confidentiality of such information.

PN293

That approach was adopted by the court on appeal. If your Honour goes to page 132, the Full Court of the Supreme Court explained why that was so. The relevant passage starts just slightly under halfway down with the words:

PN294

Legislation that has the effect of placing individuals that could be at risk requires the strict instruction.

PN295

And then goes on to say:

PN296

The legislation that has the effect of curtailing the right to privacy has to be afforded the construction that that favours a narrow intrusion into privacy.

PN297

I pause at this stage to say that there is nothing in the legislation that requires a union to disclose the identity of its members and there is very good reason to that and that is that it accords with a long custom and practice in industrial relations about the confidentiality of such matters. In the absence of a specific power for a specific requirement in the legislation to give that information, there is, in my submission, no requirement for a union to do so. In terms of establishing a bargaining representative status, that is a governing criteria. If your Honour goes over the page to page 133, and their Honours say this about halfway down, the third sentence in the third paragraph on that page:

PN298

What can be said is that the power has the potential to subordinated right of privacy, that parliament can confer a power for that purpose is beyond doubt, that parliament can only do so by clear language is also beyond doubt. It seems to us that the issue of confidentiality in the context of this legislation is relevant to the proper construction of the Act.

PN299

They go on to say:

PN300

However, it seems to us the task of the court is to identify the purpose for which the power was conferred and, in doing so, to bear in mind all the principles we have mentioned.

PN301

What is of course the position here is that there is no power. We re not talking about power, even where such a power exists there is a strict approach to it. The second matter that arises is in relation to the privacy is the statutory position and that can be found in the privacy legislation, the Australian Privacy Principles, which are schedule 1 to the Privacy Act of 1988.

PN302

Before I take your Honour to that, I will deal with some observations made by the Commission in Australian Liquor Hospitality and Miscellaneous Workers Union v (indistinct) 30 AIRC and I think I ve sent your Honour a copy of that. The relevant passage is on the second page of that document and what their Honours say there is that the privacy principles were in that case a quite different case, but were a relevant consideration. But what their Honours found was that the privacy principles didn't actually have an application. Again, this was another registrar s decision appeal case, but what is pertinent is that they do have a role to play in this jurisdiction and I'll now turn to those principles. Your Honour will have had some pages sent to you which are extracts from the Privacy Act.

PN303

THE VICE PRESIDENT: Yes.

PN304

MR REIDY: Does your Honour have those? I'll whizz through these, your Honour, but what I ve included is the definition of APP Entity, which your Honour will find at the bottom of page 3, which means an agency or organisation. As we will come to, organisation includes both the QNU and Carinity. On page 5, your Honour will find the definition of personal integration and union membership records come within that definition, but even more importantly over the page, at page 6, your Honour will find the definition of sensitive information and (a)(vii) is membership of a trade union, as I have before on page 7 seek the definition of organisation as a body corporate captures both the QNU and Carinity.

PN305

Your Honour, then we'll come to division 2, Australian Privacy Principles. Section 14 days, The parties set out in schedule 1. The next page, 9, will take your Honour to principle 3 in that schedule and principle 3 deals with personal information other than sensitive information. 3.2 deals with Carinity, that, It can t collect personal information unless it s reasonably necessary for its functions or activities, and, in my submission, it isn't and, in any event, the issue is specifically dealt with under sensitive information 3.3(a), It can t be collected unless the individual consents.

PN306

In the case of an organisation, the added requirement in (a)(2) is that, The information is reasonably necessary for one or more of the entity s functions. In my submission, this information can t be properly requested and is properly refused in the absence of consent.

PN307

THE VICE PRESIDENT: How can Carinity ascertain its obligations under the Act if it doesn't know whether your client has members covered by the support services agreement?

PN308

MR REIDY: There are mechanisms short of disclosing the identity of members and some of those mechanisms were put in place here so that what the QNU did, in the circumstance where it was notorious based on the previous nurses agreement, that the QNU covered AINs. It was also notorious that QNU had AIN members, but it also narrowed the focus to three facilities and said, We have members at those facilities. What it then degenerated into was name names of members and that, in my submission, is a bridge too far in both the entitlements to collect information and the obligations of the QNU in relation to disclosing that confidential and private information.

PN309

What could have been done, and what Carinity didn't do, was to say, Look, we don t want to breach the confidentiality of the members. Can we involve a third party a third party independent who can, without identifying this information to us, examine your records and answer the questions that we posed? That could have been done and it wasn't done and, constructively, it doesn't seem to be an issue that was raised in - hasn't been raised since this an issue that s been raised by Carinity, that is the identity of members since this application has been filed.

PN310

So there are mechanisms and, in my submission, contrary to what and I'll come to Ostwald and what Richards DP said in Ostwald - but in my submission the concept of onus, that is there s an onus on the QNU is an unhelpful one because the next question, and which has become a sticking point in this case, is: what is the standard of proof. That is where the sticking point has been.

PN311

The focus really shouldn't be on that. The focus should be when a mechanism or satisfying the requirement in a way that doesn't offend the confidentiality and privacy of the union member and there are those mechanisms available, but Carinity didn't see to explore those. In my submission, even if one adopts the approach of Richards DP in Ostwald, the union has discharged its onus, such as it is, by firstly the notorious and accepted fact that it covered AINs and AIN members throughout this organisation. But, secondly, it s gone to the further step of identifying people who are classified as PCs, personal carers, working in three facilities who were doing AIN work.

PN312

The onus, in my submission, if there is one, shifts back to Carinity to say either, We re satisfied with that. We accept that, or, We re not satisfied and this is how we propose to become satisfied in a way that doesn't offend confidentiality or privacy. That wasn't done. While I'm on Ostwald, which has the large passage dedicated to it in Mr Herbert s submission, that was quite a different case, factually, because in Ostwald the union in that case simply made no attempt to respond to any request for information about membership and as it transpired later when it did come out and was resolved in the very early stages of the proceedings and that issue disappeared it turned out that it enrolled a whole stack of members that it wasn't entitled to enrol; a much different case to here.

PN313

The second thing that was observed by someone in Ostwald was that the performance of the union in that case was episodic, ill defined and contingent; quite a different approach where here the QNU has been persistent, both in the bargaining for the nurses agreement and bargaining in the attempt to have an influence in the services agreement bargaining. Similar, in Ostwald, the employer said quite clearly, If you can establish some basis for you having members then we will recognise you as a bargaining agent, and they made that specific statement.

PN314

There was no such statement in this case from Carinity. So the QNU was faced with the prospect that it didn't know whether Carinity was still going to accept it as a bargaining agent or, for that matter, where the other union participants were going to accept it. His Honour in Ostwald uses the expression, Open to demonstration, rather than demonstrates beyond a reasonable doubt or on the balance of probabilities . That expression, in my submission, was used advisedly.

PN315

Open to demonstration is, in my submission, equating to a prima facie test. The prima facie test is satisfied when the union takes a step of saying it s got members, going on the record as saying that it s got members. Some considerable weight should be attached to that because the consequence of that being incorrect would be very negative for the union. Secondly, it s never been disputed that the QNU covers AINs and that it has AIN members in Carinity.

PN316

Thirdly, as I ve said, the union has gone one step further and narrowed down the inquiry of the class of people to PCs working in three facilities and that, in my submission, is also showing that membership is open to demonstration where a prima facie case of membership and to the extent that Ostwald might be understood to require unions to provide evidence of their members to the employer, in my submission, that s a wrong reading of it; or if that is what his Honour intended then, in my submission, there s no basis in the legislation for that and it s wrong. His Honour, in my submission, never intended for that meaning in his decision. If one starts with paragraph 93 - I don't know if you've got it in front of you, your Honour. Have you got it in ‑ ‑ ‑

PN317

THE VICE PRESIDENT: Yes, I do. Yes.

PN318

MR REIDY: At paragraph 93 his Honour refers to ordinary circumstances and requirements of 176 of the Act not generally being subject to contest. Importantly, paragraph 100 has a qualifier has, in my submission, probably a number of qualifiers where his Honour observes:

PN319

The parties may often resolve these matters between themselves by provision of a certified copy (indistinct). Where concerns might arise over an employer having access to the information, the matter is more complicated and third party assistance might be called upon.

PN320

That, in my submission, is where Carinity was at, but it was faced with a prima facie case of membership and it didn't seek to call on that third party assistance. The categories in which concerns might arise are limited. They are limited to concerns about how the employer, for example, might treat employees whose identities have been disclosed and also extends to the confidentiality - you've given confidentiality and, secondly, the requirements of the Privacy Act itself.

PN321

These provisions insofar as establishing bargaining representative status is concerned, are practically workable. In the framework that I ve described, where a union goes to the extent of providing a prima facie case and the onus then shifts to the employer who wants to displace that prima facie case, well, firstly, one would expect them to say, Why? But, secondly, in any event, even if it had no reason, the third party option described by his Honour is available.

PN322

Mr Herbert in his submissions at paragraph 3 and I ve already addressed this in my submissions says that if an award is sought does not give a de facto or any other standing. I'm not sure what he means by submissions - the purpose of the orders sought is nothing to do with getting a de facto or other standing. It is directed to the purpose I described earlier. I ve addressed Mr Herbert s observations in relation to the balance of convenience, both in my written submissions and in my submissions to your Honour.

PN323

I know that Mr Herbert s submissions don t seem to go so far as to require or say that it s incumbent on the QNU to disclose the names of members to the employer. The QNU, for reasons I ve given earlier, has demonstrated, at least on a prima facie case, to the employer that it is entitled to then the bargaining representative.

PN324

I'll deal briefly with the submissions which are those provided on behalf of United Voice. Most of my response has already been dealt with in the written submissions and what I ve said today. The observation that the classification of an assistant in nursing is not required in the rules of the QNU is nothing remarkable because it s formed not only on the basis of the Blue Care decision and extensive discussion there, but also in all the previous decisions that are surveyed in Blue Care. The same goes for what is said at paragraph 12 in relation to nursing work, but I do want to say in response that it s not a simple exercise as described here in the primary purpose test. In any event, that matter is that the matter properly agitated in a full hearing not on an interlocutory basis.

PN325

The QNU s submission is that in this case it s a factor of looking at the duties, the facility in which they're performed and what the workers - particularly the residents being nursed by those staff. There s also some references to cases which I don t contend go to - to deal with majority support determinations and I don t want to take you to those; in my submission they have no relevance. There is some reference made to a decision of your Honour s concerning section 255. This is not such a case as the case that was - Chep Australia, C-h-e-p. That was a case where the orders were specifically directed towards the cancellation of a ballot. That's not the case here and in fact the form of orders are the standard form of orders well accepted by the Commission in these proceedings directed towards the processes under the enterprise bargaining issues (indistinct) from the terms of the orders.

PN326

In conclusion, there is a serious issue to be tried because not even the bare form of good faith bargaining was engaged in by Carinity, let alone the substance contemplated by section 228 and that was because of a wrong view that the QNU couldn't cover people under the services agreement, even though that services agreement is capable of having people perform the work of AINs under the rubric of personal carers. The balance of convenience weighs can I say this any material of any substance that s been put on by the employer in relation to the balance of convenience issue, the inconvenience of a short delay to ascertain the true position and the correct position under the Act is a very small price to pay for the much greater inconvenience, the much greater role of excluding the QNU from having the capacity to influence an agreement that will have longstanding effects for people that do AIN work and at the same time shut the QNU out of representation. Unless there s something particularly you wanted to ask, your Honour ‑ ‑ ‑

PN327

THE VICE PRESIDENT: I do want to clarify one further thing with you, Mr Reidy, and it relates to the constitutional coverage of your client. I'm looking at paragraph 5 of your outline. Your client has constitutional coverage of AINs.

PN328

MR REIDY: Yes.

PN329

THE VICE PRESIDENT: If no work of an AIN is performed by a personal carer, does your union have constitutional coverage of the personal carer?

PN330

MR REIDY: No. We don t cover personal carers.

PN331

THE VICE PRESIDENT: Right.

PN332

MR REIDY: The issue here, your Honour, as I ve said, is the schedules to incorporate AIN work.

PN333

THE VICE PRESIDENT: Then there s the argument that we've touched on as to whether someone who might be a personal carer, but does a limited amount of work that could also be done by an AIN, whether that person is eligible to belong to your union or not. That question arises, does it not?

PN334

MR REIDY: The question arises and can only be determined at a proper hearing. That's the first answer to it. The second is that it will depend on not just the extent of the nursing work, but the nature of what I would describe as the nursing work that the person engages in.

PN335

THE VICE PRESIDENT: Yes.

PN336

MR REIDY: So if it s just glancing and insignificant and is capable of debate then we most likely wouldn't have coverage, but that really falls to be examined in the proper way.

PN337

THE VICE PRESIDENT: Yes. Let s assume that there are some people who, depending on the ultimate threshold of the extent of the duties that AIN duties, someone is eligible to belong to the QNU at either Kepnock Grove, John Cani or Shalom and if the nurses agreement is made and the support services agreement is made, what agreement applies to that person?

PN338

MR REIDY: That is really the $6 million question, your Honour, because that will what we are faced with is people who will be described as personal carers and paid as personal carers and classified as personal carers and it will require examination of Fair Work if their work is AIN work then they are AINs and the question then is notwithstanding that, are they in - we re in the unsatisfactory position, are they in the nurses agreement or are they in the services agreement and this is where the problem is, the capacity or of confusion between both of the limits or confusion between ‑ ‑ ‑

PN339

THE VICE PRESIDENT: Might it depend on which agreement is approved first?

PN340

MR REIDY: That may well be the case. That may well be the case.

PN341

THE VICE PRESIDENT: The nurses agreement is at what point at this stage?

PN342

MR REIDY: It appears the draft hasn't been finalised yet so it s obviously less advanced than the other agreement.

PN343

THE VICE PRESIDENT: Yes.

PN344

MR REIDY: Could I just say in response to an earlier question which I should say, one of the indicia of whether or not the work is personal carer work or AIN work is the nature of the resident. The nature of the resident, being a high care resident, it would follow, as someone once famously said, Surely as night follows dark, that the care of those people is nursing work because that s what they require as high care people in those facilities, as in all the facilities.

PN345

THE VICE PRESIDENT: Thank you, Mr Reidy. Mr Herbert?

PN346

MR HERBERT: Your Honour, can I say that that last statement by my learned friend is highly controversial. That's if you accept it to be so. The position is that the matter is the subject of weekly contested hearings before Asbury DP in a reserved decision before her Honour that and the contentions put in that case, which I appeared for another party the contentions in that case for all of the parties under than the QNU were that the AIN classification is a subset of the work undertaken by personal carers in that it is dramatically more restricted to what a personal carer has traditionally done for the last 10, 15 years at least and is certainly not a matter that s demarked by the question of whether the resident is high care or low care because the distinction between high care and low care in the system was abolished a long time ago in terms of Commonwealth funding and other arrangements and that that is not a point of distinction. An assertion of that kind from the bar table by the QNU is simply not accepted.

PN347

Your Honour, can I return to the core consideration in this matter and that is there an extant application for bargaining orders which this application is sought, as we understand it, to preserve what was said then to be the status quo, which has moved on since that time in relation to the bargaining arrangements between the parties who have been bargaining and if applied and the practical outcome of the proceedings will be to stop the ballot which closes tomorrow.

PN348

The ballot was undertaken in the circumstances as outlined in the affidavit of Ms Darwin where there had been bargaining for a significant period of time with the unions that have a demonstrated capacity to be bargaining representatives. The QNU sought to involve themselves in those proceedings somewhat late in the piece and that they were quite reasonably asked to explain the basis upon which they should be granted rights to act as bargaining representatives in the matter and that explanation was not forthcoming, I'll come back to that, but over a significant period of time requests were made repeatedly by Carinity for information and proof that would demonstrate that they have the capacity that they claimed and asserted.

PN349

Over a long period of time, despite numerous requests and even an invitation to one of the bargaining meetings, there was no meaningful response other than a mere assertion, at which point Carinity took the view that an absence of evidence being produced meant that there was in fact an absence of evidence and they proceeded in the ordinary course, as they're bound to do, having reached agreement with the only known bargaining representatives in relation to the matter they were bound to put the matter to ballot which they have done.

PN350

A couple of matters of fact that you asked my friend about. The ballot opened formally on the 14th of this month - I'm sorry, the 17th of this month. The materials in support of that ballot were sent out and approximately a fortnight before that and I don't have the exact date here in relation to that matter, but it was approximately a fortnight before and each individual employee was to be balloted as well as ballot materials which were provided with a copy of the draft agreement.

PN351

It s passing strange that a union who claims to have members in this space is absolutely unable to obtain a copy of the agreement that has been put to ballot when, if they do have members in this space, they're members that have had the document since about 1 April or thereabouts or certainly the first week of April and yet a copy has not yet managed to filter its way through to the union and I'll say a little bit more about that shortly.

PN352

The process has been proceeding in clear open air transparently. I think Mr Watson and Mr Peverill will be able to inform your Honour as to the program of the consultation meetings which they attended, that have extended over a long period of time, over the past few weeks prior to the ballot being actually undertaken. The ballot has been conducted in open consultation with everybody concerned and yet it is claimed or asserted in these proceedings the QNU only found out about it on 16 April at a directions hearing; whereas ever single member by then knew exactly what every single employee, I'm sorry, who was affected by this ballot knew about some weeks before that.

PN353

So the QNU has not to say that they have not been provided with any information in relation to the matter would suggest that they have no meaningful dialogue with anybody in the workforce or they would have access to that material and they have not been. If they were at any time seeking to represent anybody, one would have thought that material would have been passed up the line, but that being said, there was no bargaining that was required to be done for the QNU. They have not at any stage, despite numerous requests, taken any steps to establish their entitlement to be treated as a bargaining representative, particularly in the thick of objections from two other unions who were bargaining representatives, and in circumstances where the employer gave them every opportunity to do that.

PN354

In support of the submissions in this matter, we said that the application for interim orders cannot succeed if there is no case for the bargaining orders at all, in any event, and that s raised in the question of whether there s an arguable case. There is not anything in the nature of a strong arguable case in these proceedings for the primary bargaining orders; so that one will not hold up the proceedings on that case and the proceedings have gone as far down the track as they have in total. For four weeks now the bargaining process has been underway and the consultation process has been underway and it is only now that they seek to halt that and not for the purposes of necessarily participating in it for any constructive or other reason, but for putting it, as your Honour put it to my learned friend earlier for the purposes of putting again an argument that they ve already put to the employer and the nurses agreement negotiations, which has been rejected by the employer.

PN355

It s not as if they haven't put their argument. They ve put it. They ve put the argument. They ve had the debate and the employer has said that they simply don t agree and they pulled out an agreement which doesn't contain that provision. The purpose ‑ ‑ ‑

PN356

THE VICE PRESIDENT: Mr Herbert?

PN357

MR HERBERT: Yes?

PN358

THE VICE PRESIDENT: Can I just ask you this question: the issue of whether the QNU knew as a bargaining representative of any of the employees covered by the proposed agreement depends in part on its membership employed at the three facilities and also in part, and perhaps more fundamentally, as to whether any of the employees covered by the agreement are eligible to belong to the QNU.

PN359

MR HERBERT: Yes.

PN360

THE VICE PRESIDENT: What is the position of your client in relation to the eligibility of the QNU to enrol employees covered by the support services agreement under its eligibility rules?

PN361

MR HERBERT: That has not been demonstrated. It s highly contentious and in all probability we say it s an incorrect assertion by the QNU and my client s position is it is no accident that they failed to produce the name of one single person from those three facilities. Can I mention to your Honour there are more than three facilities involved in this? The Wishart facility, for example, is not one of the three names facilities that is mentioned. The three facilities that are mentioned in the QNU correspondence are three of a number Wishart and they put the northern facilities, Wishart is in fact on the south side. It s not even involved in those three. So there are more than three facilities involved. But it is no coincidence or no mistake or accident or preciousness in relation to privacy that they haven't produced a name of a member who is working within the calling of assistant in nursing because that is a very controversial matter that would require some effort in order to illustrate it to be try and would require a dissection of the work of the person and to demonstrate that the work that that person is confined in the way that the definition of AIN is defined.

PN362

It s a process which can be undertaken without a court hearing, but in the case of Blue Care I think the hearing went on for about two weeks in order to determine the question of whether that was the case or not and that was based on the facts of the Blue Care work model they adopted. My client has a different work model and all of that would depend, as the Full Bench on an analogous process the Full Bench described in the Blue Care appeal where one looks to the question of the classifications. One then looks to the duties of a particular employee and then one ascertains as to whether the duties that a particular employee is engaging is fall within the are confined and fall within the scope of the AIN descriptor as it s been distilled in the Blue Care case and then you make a decision as to whether that person, albeit employed as a personal carer, is in fact also capable of being characterised as the vocational description of an AIN.

PN363

One can only do it by reference to the work functions of the individual employee concerned, not by general descriptors in enterprise agreements which might apply or would propose to apply to them. Bear in mind, the agreement my friend went to is not in force yet in relation to the matter. One needs to look to the question of whether by reference to the existing personal carers agreement, those persons and the work that they perform under the existing personal carers agreement, the QNU is entitled to represent them and in either ‑ ‑ ‑

PN364

THE VICE PRESIDENT: But if your sorry. Your client would be aware of the work requirements of its employees.

PN365

MR HERBERT: It s aware of the work requirements of employees, but it doesn't know which employees the QNU might be referring to. So far as my client knows, they might well be engaged in non-nursing work, in kitchen work, in cleaning work or any other kind of work. They have all of those work functions within their business. They might be engaged in such a combination of those things that they cannot properly be described as an assistant in nursing.

PN366

THE VICE PRESIDENT: Does your client accept that there may be some of its employees that can be properly described as an assistant in nursing?

PN367

MR HERBERT: No, your Honour.

PN368

THE VICE PRESIDENT: So the question of the identity of anyone that might be a union member is irrelevant as far as your client is concerned, given the view it holds as to the duties of its employees.

PN369

MR HERBERT: Your Honour, my client doesn't accept that because it hasn't undertaken the task of trying to superimpose the AIN classification on to the work that it does. I'm not saying it s their position to accept it or deny it. It simply doesn't accept it as being an axiomatic conversion or, as my friend put it, a notorious fact. It is not a notorious fact. It would involve taking the template of what is said in the cases to be AIN work and finding out if there s any employee who actually performs a discrete the employees who performs that discrete group of functions and then apply it to their work model and see whether in fact that person is capable of falling within the classification of an AIN as described in the rules of the QNU because that s not a function that they presently form. The two ‑ ‑ ‑

PN370

THE VICE PRESIDENT: That's not an exercise that s been carried out by your client.

PN371

MR HERBERT: It s not an exercise that can be carried out without reference to the individual who is said to be a member and (indistinct) the entire workforce would be an extraordinary waste of time and effort if in fact we didn't know who it was that we were looking for or whose work was relevant.

PN372

THE VICE PRESIDENT: So when you said that your client has the view that it doesn't employ anybody who can be properly characterised as an AIN you might not have put it in those terms that was a view ‑ ‑ ‑

PN373

MR HERBERT: But the ‑ ‑ ‑

PN374

THE VICE PRESIDENT: I think you put it in reverse. It hasn't been established that there is.

PN375

MR HERBERT: No, that s right.

PN376

THE VICE PRESIDENT: But your client s position is not informed by a detailed analysis.

PN377

MR HERBERT: It isn't and that s a detailed analysis that it wouldn't be required to do unless there was an employee whose position was in question in that regard. It would be a completely empty exercise to undertake that process in the circumstances.

PN378

THE VICE PRESIDENT: Can I ask you the same question I asked Mr Reidy? If there was somebody who was properly classified as an AIN, was eligible to belong to the QNU, and both the nurses agreement and the support services agreement are approved, which agreement would apply?

PN379

MR HERBERT: If their work fell within the description then the support agreement would apply to them. Now, whether they are also eligible to be a member of the QNU by reason of them being classified as an AIN or not is something we simply don't know and we ask for the first piece of information necessary and that is, Do you have a member? If you have a member, we only need one name. We don t need any other personal details. We simply need one name so that we can then go and look at that member and see whether they're employed as a cook or a bottle washer or they're performing nursing work or a combination of duties which falls outside the description of an AIN in order to discover whether in fact your assertion has any substance and we were denied that simple piece of information, despite asking for it on a number of occasions.

PN380

That's the key to this, in my submission, because it all comes down to the question of whether my client has in any way misconducted itself in relation to the bargaining and says that it has not undertaken has not complied with good faith bargaining principles. We rely absolutely on the decision in Ostwald in which Richards SDP set out precisely the way that these matters fall to be determined. We would endorse that as being the only sensible approach because the question as to whether a particular organisation is or is not a bargaining representative is a jurisdictional question in relation to many aspects of the Act.

PN381

If it is merely asserted and you couldn't imagine a more self-serving assertion from a union bargaining, but if it is merely asserted and is challenged in these circumstances - and it wasn't a flippant challenge at all it s a challenge which based on the way in which the analysis of Blue Care was undertaken in extraordinary detail, it s a matter that requires a great deal of examination and thought and analysis if we were going to come up with an answer for the most part. So it wasn't just a flippant challenge. It was a real challenge and having been challenged, it is incumbent upon the person asserting their entitlement to demonstrate with some probative evidence that they do actually have the entitlement they assert. The entitlement is not theirs for the claiming in a sense.

PN382

If the employer has no doubt about the matter and has general knowledge or other specific knowledge, such as for example it s been making payroll deductions for certain employees as union members and pursuant to that, finds out where they are and knows those things then in those circumstances it may very well be the case that an employer may not challenge the assertion, but in this case it s entitled to challenge the assertion when dealing with a personal carer classification which, as Mr Reidy has put it, the QNU does not cover personal carers.

PN383

On the face of it, that would seem to be a bit curious. The QNU are saying, But we do cover people who are working under a personal carers agreement, are negotiating for a new personal carers agreement. Our union doesn't cover personal carers, but we say we've got members there who fit within our classification anywhere because they're not in fact personal carers but are something else. So that s a complicated assertion that would require some examination and the starting point of that examination is: tell us who you're talking about and we will examine to see whether there s any truth in what you say.

PN384

Never was it said at any point that the union refused that information on privacy agreements. Your Honour can examine all the material and I can tell you now to say your Honour looking, it isn't there. The first reference to privacy was after we put in a written submission in this matter that they came back with an excuse as to why it was that they didn't produce that material.

PN385

Your Honour, the privacy claim is transparently manufactured. It s concocted. In the Blue Care case, in which the QNU spent weeks in the Commission hearing this precise issue, they produced two witnesses who came forward and gave detailed evidence of the fact that they were union members and what they did at work and it s referred to in the Full Bench at paragraphs 44 to 46, to which my learned friend took you to earlier, that not only is it possible that work under that proposed classification in that case would be described in some circumstances of covering that person who was an AIN. They moved to the next step and said, And those two named persons Scott and Aurile, I think their names were, have given evidence that they in fact do that work and that s the work they do, and they ve given evidence.

PN386

The QNU understood the way that this works and understood the necessity from that case, which was only a couple of months ago it completed, that it was necessary to produce a person who actually did that kind of work in order to close the loop of the requirements to be a bargaining representative under section 176. So it has not presented a difficulty in that case. It has not presented a deficiency in relation to this employer because, as Ms Darwin said in evidence here today, the two main nursing union representatives at the Wishart facility in negotiations for the nurses agreement are in fact AINs apparently off the shop floor, as it were, who had no difficulty identifying themselves and being identified by the union of their union membership, which (indistinct). So the privacy issue didn't seem to present a difficulty with that agreement, but for some reason it presents a difficulty in relation to the personal carer agreement and no explanation is made as to why that is different.

PN387

The other considerations in relation to the so‑called privacy issue is that, as I submitted earlier, we only needed one name and no other personal details and hardly confidential information because that one person would be our employee. As I ve mentioned, I d suggest that my client had a lot more confidential details about that person other than the fact that they were a member of the union. So it is bound by all the relevant privacy considerations.

PN388

Secondly, the next thing is that in relation to questions of privacy, everything my learned friend went to could be overcome by consent of the person concerned. All the cases where there were circumstances where Commissions and courts and registrars were ordering people to divulge ordering unions to divulge information, none of that is happening here. All the principles in those cases and all the principles in the Privacy Act can be overborn by consent of the employee concerned.

PN389

You will note, interestingly, that at no point did Ms Semple, on behalf of the union, tell your Honour in these proceedings that she had canvassed those members as to what their attitude was about providing the fact of there being a union member to the employer and they refused and one would think that would be highly unusual in any event that an employee would do that. There wasn't a shred of evidence to suggest, as was referred to by Richards SDP in the Ostwald case there wasn't any evidence to suggest the employer was badly disposed towards these people and that there was going to be some suggestion that they were going to take it out on any of these employees because they happened to be a member of the QNU; nothing of the kind was even hinted at, much less proved.

PN390

One would have thought if privacy was a real issue that one would have heard evidence from Ms Semple to the effect that, I have these members. I ve canvassed them all for their views about whether they would allow me to give the name of the employee so that we can be getting on with negotiations and they refused to allow me to tell the employer that they were members of the union. None of the kind.

PN391

So the privacy notions, in my submission, aren t self‑imposed and it s a self-imposed excuse which you will note, your Honour, is mentioned for the first time in reply submissions after the union was confronted with the submissions that we put on it wasn't mentioned in the primary submissions at all. It was only mentioned after submissions that I put on to the effect that the Ostwald case said if you don t produce some sort of meaningful information of that kind, then the person seeking that information cannot be found to be in breach of the bargaining principles. After that (indistinct) obstacle is placed in the path, all of a sudden we have this recourse to privacy. We have the affidavit a new affidavit came out from Ms Semple saying, We have a policy never to do that.

PN392

As I say, that policy wasn't observed in Blue Care and it s not been observed in relation to this time - in relation to the nurses agreement. It just happens conveniently not to be observed in relation to this agreement in circumstances where if they did produce a name or two, it would involve an analysis being undertaking as to whether that assertion was true or not. The complete absence of and as I stand here today, your Honour, we still do not have evidence that my client can examine in relation to that issue. We still don t have it. That was they were told in January that they would be required to do it. They were told again at the meeting in February. They were told again in a letter in February and on and on that that information or something of that kind was required and we stand here at the end of April and we still don t have that information. We don't have any information from which we can undertake any sort of meaningful analysis at all.

PN393

My learned friend puts it because they say they have members, but refuse to produce evidence that one will (indistinct), that they're accustomed to producing on other occasions, that that involves a prima facie case on the part of the union. As I say, self-serving evidence of that kind is a prima facie case that must have been (indistinct) other than when I looked at it. That has nothing to do with the prima facie case. That is simply a self-serving assertion.

PN394

On that basis, in my submission, we simply come back to the Ostwald situation. The organisation has failed inexplicably because at the very as in yesterday they chose to attempt to come up with excuses as to why they hadn t done it and the excuse doesn't hold water. So I return to the point, inexplicably they have failed to explain why it is that they won t give the information that they gave in spades in the Blue Care case to my client.

PN395

My learned friend said that unlike Ostwald in which the Senior Deputy President said that excuse me, your Honour at paragraph 98 his Honour said:

PN396

The company had indicated expressly it would meet the CFMEU on designated dates upon establishing the status of the bargaining representatives.

PN397

My friend said, Well, that didn't happen in this case. Could I take your Honour to the affidavit of Ms Darwin? The sequence is this attachment 4 of the affidavit and this also answers the question that my learned friend told your Honour from the bar table that they didn't have a copy of the agreement and they ve got one a draft from their member or something of that kind. This series of documents absolutely produced all of that. Firstly, the sequence is:

PN398

Whilst Carinity is unsure whether or not the QNU was a bargaining representative in this enterprise agreement, we are prepared to allow you to attend carers support service negotiation. Please find attached the documents so far distributed in relation to these discussions.

PN399

What happened is the parties the next annexure is the minutes, which is attachment 5. Attachment 5, Ms Badke, in behalf of QNU, is amongst the attendees. After there were introductions and the first block of discussion, the last item:

PN400

The union has expressed concerns about not receiving draft documents of the EA.

PN401

So it would seem that the email didn't attach those documents:

PN402

B: apologised for the confusion and arranged for all unions to receive a hard copy immediately and confirmed (indistinct).

PN403

So a hard copy of the draft EBA and other documents was handed out to, inter alia, Ms Badke, according to those minutes. I'm sorry, your Honour. Then going to the next page of those minutes, which is two of three, halfway down the page:

PN404

Deedee

PN405

who was the United Voice representative

PN406

asked who the QNU represented and should not be part of this forum and that topic should be dealt with separately.

PN407

Your Honour will note the response of Ms Badke:

PN408

KB said, The QNU probably have members that were covered by this agreement and is a party to these negotiations.

PN409

It falls a long way short of a definite assertion of a fact, speculating it was probably so. Given that the time that these things were occurring, one would have thought they might have come armed with a bit more information than that, having been admitted to the meeting. So it s probably:

PN410

The members covered by the agreement as party to the negotiations. PD sought clarification on probably and said that a request had been sent to QNU to provide proof of the right to be bargaining representatives. QNU had not forwarded the information. KB stated QNU had not received this request. PD informed KB the request had been forwarded to Vonnie Semple and then the matter went forward and the unions made their objection.

PN411

Attachment 6, a letter of 12 February. This is the request my learned friend said was never mailed. If your Honour goes to the third, fourth and fifth paragraphs of the relevant part, of the critical part, is in the fourth paragraph:

PN412

We've since been advised by other bargaining representatives of the carer service agreement they are concerned that their position as bargaining representatives could be undermined by the continued presence of the QNU. Given the QNU was an external party, that has not established its status as a bargaining representative, absent being (indistinct) representative is not able to be appointed as an employee representative we understand the concern. Please provide evidence to support your assertion that QNU is a default bargaining representative. If you are able to provide evidence of this, we will recognise this status as we are required to do. However, until then we re not prepared to extend an open invitation to attend the negotiation meeting.

PN413

Nothing could be clearer and that s exactly what my learned friend has told your Honour 15 minutes ago didn't occur. It did. They said, You prove it. You give us evidence and we will bring you to the meetings as we are bound to do. So this is on all fours with the Ostwald situation. A very clear undertaking was given, You demonstrate you are who you say you are and we'll invite you to the meetings. We already did so, in effect, to give you a chance to demonstrate that and the best you can say is, We've probably got members, in the circumstances.

PN414

It s little wonder in the circumstances that Carinity concluded, as Ms Darwin said, by April with this exercise just trundling on in this same way Carinity asking and the QNU refusing. It s little wonder by April that it was determined that because the QNU wasn't producing anything at all by way of evidence and it didn't produce an excuse as to why it wasn't producing the evidence, such as privacy, which could have been if that was the issue the sort of speculation my learned friend has put forward as to how that might have been dealt with could have been perhaps engineered to get around privacy concerns, but because it was never raised until yesterday, my client couldn't deal with it in February, March or April by way of some separate arrangement to have a third party involved in something of that kind.

PN415

All there was was a blank refusal, No, we re not producing it, or ignoring letters like this. How could my client have possibly known that there was a privacy issued involved that they needed to engineer their way around? How could they have known there was a sensitivity issue in relation to members of the union not wanting the employer to know, which hasn't been proved and hypothetically, if that were the problem? How could my client have got involved in a third party process when they didn't know that sensitivities of that kind existed? The reason why they didn't know they existed and therefore they weren't put on notice to try something else was because the QNU didn't tell anyone until yesterday that that was their alleged concern.

PN416

So when one comes to good faith bargaining, we ask rhetorically, What on earth more could my client have done? If they admit somebody into the negotiations who isn't a bargaining representative, that undermines and dilutes the position of the other two genuine bargaining representatives or three, or however many were in the room, and creates some difficulties in relation to the way in which bargaining proceeds if there s an unauthorised interloper in the room. That throws the system out of significant balance.

PN417

In those circumstances, all that was required of the QNU was a very simple thing, to produce a name and it happens all the time in workplaces all around Australia, Tell us who your member is. We'll look at their classification. We'll look at their work duties and if you're right about that, you come to the meetings. It s as simple as that. My client demonstrated their good faith by inviting the unions to meet again, quite obviously to give them an opportunity to be heard about this issue in the meeting, not through correspondence and Ms Badke, as it were, dropped the ball in relation to that issue at the meeting and the union came with nothing other than apology.

PN418

So, again, one asks rhetorically, What was it that my client was supposed to do? invite, procure into the room, over the protests of the other genuine bargaining representatives, possibly disrupt the whole process at the expense of another bargaining representative of those employees at the best of somebody who the company had no reason to believe, or the employer had no reason to believe actually was a bargaining representative and had every reason to believe they weren't because the simple of proof will be (indistinct) April at 100 miles an hour.

PN419

Now, we re coming forward to today s date, your Honour, and we still don t have that information. The only two persons who have been pointed to in these proceedings were the two persons whose names were on the Nurses Agreement Bargaining panel. They are not, on my instructions, the subject of this ballot. They have not been balloted. They have not been provided with any ballot material because they're not involved in this matter. They will not be covered by this agreement and therefore have not been balloted because they're AINs and they're the only two names that we've been offered up.

PN420

So still we have not been provided with any names such that we can and we don t even require the union to tell us why it is that they're AINs. We only require the union to tell us who they were so that we can investigate the matter for ourselves. As Richards SDP said if we re provided with that information. Had it not been for the silly technical stance in relation to the matter, for example, then that may have put my client in a difficult position that they're not complying with their bargaining responsibilities, but in these circumstances, your Honour, none of that has occurred because they have provided absolutely no excuse for justification whatsoever until yesterday, which one would have to say is way too limited and far too late.

PN421

If they were to persuade your Honour that my client s commencement of the balloting process in the (indistinct) of that sequence of events is in some way related to a failure or it constitutes a failure to behave in a way that is consistent with the good faith bargaining principles. We would go so far as to adopt the observations of Richards SDP in paragraph 97 in the opening sentence:

PN422

Where one bargaining representative seeks to satisfy itself as to the status of another bargaining representative for the purposes of section 176 of the Act, that conduct therefore cannot be in breach of the good faith bargaining requirements of the Act.

PN423

He goes on to say at the end of that paragraph:

PN424

The company s conduct could only be inconsistent with good faith bargaining requirements of the Act if after having demonstrated a status that had merely continued refusal to recognise the employee organisations bargaining

PN425

It s simple. It s clear. Everybody understands how it works and if QNU elected, contrary to the way it behaved in the Blue Care case, contrary to the way that it has behaved in relation to the nurses agreement with the same employer, has elected not to provide any such information. He didn't turn up to the meeting. Ms Badke didn't turn up with representatives from the workplace, the way they did under the nursing agreement with the same employer. They didn't ask any of the members, so far as we know, for their consent to have their names released to the employer; none of those things. They simply stood there and said, You have to take our word for it and that s all there is to it and we re a bargaining representative and there s a very good reason we say we are.

PN426

Again, Richards SDP very simple formula as to how one deals with those things is precisely what we say your Honour should do. If that is so, if your Honour adopts that approach, then there are two steps that follow from that: firstly, your Honour must remain unsatisfied that the QNU is a bargaining representative because your Honour has no evidence that they are. Your Honour has, as I stand here - your Honour only still has assertions from the QNU that they are and no evidence. The QNU knows how to put on that evidence because they did it, as I say, in spades in the Blue Care matter and as a result of the decision in Blue Care matter, there is a formula there as to what they need to do in order to establish themselves as a bargaining representative where that issue is challenged in this same industry. They didn't do it.

PN427

So your Honour cannot say as a matter of reasonable satisfaction that the QNU is a bargaining representative and that it has demonstrated that. That has fatal implications for the interim application as well as for the underpinning application for bargaining laws because you can t be satisfied that there is an arguable case based on the simple fact that you can t be satisfied that they are what they say they are and mere assertions about notorious facts and look at the cases, well, they have nothing really, all the cases tell you that one would need a fairly long (indistinct) and substantial submissions in order to establish this so‑called notorious fact insofar as it applies to a particular workforce and the particular circumstances of my client.

PN428

Ms Darwin s affidavit demonstrates what happened. There are a range of facilities involved in this process. Some of them have been acquired from the Catholic Church. Some of them have been acquired from other places and some of them are old facilities that have been in the family, as it were, for some significant period of time and there s quite a wide range of existing arrangements. Ms Darwin said there are at least three types of regions and the award that are to be taken into account when making this single agreement. That's all explained in her affidavit.

PN429

How that all translates into the question of whether there are any persons who fall within the vocational description of an AIN can t be determined by reference to the fact that in Blue Care there was a determination based on the arrangements that they had in place and that they proposed to put in place. This is a completely different picture from the picture that was in Blue Care. Having been in both matters, I can say, your Honour, that there are dramatically different considerations involved in that.

PN430

So it is not possible for the union to satisfy your Honour by standing here and making bald assertions that, There s notorious factors; we probably have AINs in there somewhere, but they're not going to tell you who they are, but that fact can be checked. The second thing is, your Honour, that one needs to demonstrate the fact of membership, working in this impugned classification, even if that classification can be found.

PN431

We have no idea who those members are and we still haven't been provided with that information in a way that we could possibly have examined before these proceedings started. We were told after the proceedings had started that they would show me. One may as well take it out and show it to a passer-by. What use would that do? But that being the case, that sort of revelation would appear to be constructed in a way as to fail because there was no possibility that my client could do anything about that here and now in relation to the matter and that that kind of refusal to disclose, in my submission, bespeaks a lack of genuineness in relation to the matter.

PN432

Therefore, you cannot be satisfied as we sit and stand here today that they actually do have members in those classifications because there s been, up till today, not even an attempt to reveal that material and today there was an attempt which was so heavily conditioned that it was, as I say, appeared to be designed to fail. So based on that, the ultimate bargaining order application, based as it is on the fact that my client, despite repeatedly asking for some evidence at all of the matters that needed to know before they could be satisfied of the jurisdictional fact of the QNU being a bargaining representative and being refused at every turn for that information, if the bargaining orders are based on that conduct then they must fail if the Ostwald principles are to be applied because my client is seeking that information and then giving a long period of time for it to be produced and when it wasn't produced, getting on with business, that conduct cannot be taken to be a lack of good faith bargaining; cannot be.

PN433

So the ultimate application the final application that this is interim application is said to support must fail and that it must fail, of course, there can t be a prima facie or any sort of an arguable case in relation to this application. One can then turn to the question of balance of convenience, again, and it s heavily wrapped up with the question of conduct by the QNU - one further matter which is in the nature of a crossover matter that I should deal with and it s a matter that your Honour raised with my learned friend and that s the question of what it is that the QNU is really what their strategy really has been in relation to the matter.

PN434

It s self-evident from the material what the QNU is trying to do by this process. It s to put to the same employer but in a different meaning the same contention that they have been hammering for some time in the meetings that have been going on in parallel in relation to negotiations for the nurses agreement. The clear evidence of that, to assist your Honour with that, if your Honour goes to exhibit R1, Ms Semple s first affidavit, attachment 6 is the minutes of the nurses enterprise bargaining meeting. Ms Semple has provided all the evidence your Honour wants as to the point that your Honour was making. If one goes to Ms Semple s minutes, attachment 6. Does your Honour have that?

PN435

THE VICE PRESIDENT: Yes.

PN436

MR HERBERT: Page 4 of 5 of those minutes, in the middle of the page (indistinct) Mr Turner was, of course, then the HR manager:

PN437

Sought classification re PCAs

PN438

which is personal care assistants

PN439

doing AIN work

PN440

et cetera

PN441

V. Semple clarified not seeking PCs to be converted to AINs and definitely don t want AINs to become PCs. Recent Blue Care case re not employing AINs and going with the PC model

PN442

the matter was raised very squarely. If your Honour then goes to attachment 7, which is the next set of minutes that was provided, page 4 of 7 in those minutes, towards the top of the page, the topic heading:

PN443

No personal carers are employed to do AIN work. D. Turner stated that Carinity was going to watch and reserve a response to this claim as there was a precedent case pending between Blue Care v QNU. V. Semple asked if Carinity wanted to employ PCs to work within high care. D. Turner confirmed Carinity did not have any immediate plans to do this. However, they would like to reserve a decision with this matter. V. Semple asked for commitment to not convert PCs to AINs. D. Turner commented he was not in a position to give a firm commitment and reiterated there was no immediate plans to change the current status of AINs and PCs.

PN444

So it s very clear that the matter was raised. It was discussed, it appears at some length. It was dealt with by the company not accepting what it was that the union was proposing in that regard. On those minutes I'm not sure that the matter surfaced again in the minutes other than potentially in attachment 10 at page 8 of 9 where there are from the middle of the page:

PN445

V. Semple asked for clarification on the personal care assistant nurse issue, wanting confirmation that AINs will continue to be employed as such while performing the duties of an AIN and Carinity was not intending to move from the PC model. D. Turner advised it is hard for Carinity to have a position on this issue as it was currently debated in the Commission. D. Turner advised that Carinity would consider the definition determined by the Commission once it s become available. V. Semple stated she understood Carinity currently has AINs over all these sites, Keprock Grove and John Cani did not, to which D. Turner clarified those two sites were purchased from the Catholic Church. D. Turner reiterated that Carinity s position is to wait and see as there is not enough information currently available to make an informed decision. V. Semple asked D. Turner if Carinity was currently negotiating the support services agreement, to which D. Turner confirmed.

PN446

That was on 5 May 2013. The matter was discussed. There was a very distinct refusal on the part of Mr Turner to commit to anything that the union was putting in that regard and there was simply no agreement reached in relation to the matter. One asks rhetorically again, what is it that the QNU wanted to put to the employer and it would be the same - it would be the employer representatives who were going to both meetings, what is it that they wanted to put that they hadn t already put and that is the question of a demarcation like, in effect, sought by the QNU between the work of AINs and PCs.

PN447

The employer said very clearly, Well, we re not prepared to do that. We re not prepared to make commitments about that. We re not prepared to do anything. We'll wait and see what happens out of the Blue Care decision and then we'll decide what we re going to do, absolutely no acceptance of the firm position that the union want. When one comes to the question of balance of convenience in relation to these matters, one has to ask whether this is really at the end of the day a genuine attempt to become involved in anything that might conceivably be new or different from what they have already had from very fulsome opportunity to put to the employer in the context of the nursing EBA meetings because the point that they want is the same point, in this case and in relation to that agreement, and that is to draw a demarcation between the work of an AIN and personal carer.

PN448

If there was ever any doubt about that, my learned friend Mr Reidy said in his submissions when your Honour asked him, What is it they want out of this process? and he said, Well, we want to have something to say about the conceivably what they wanted was to have something to say about the classification structure to ensure that within the this is me paraphrasing what my friend said that within that classification structure there was, in effect, an isolation or an identification of the work of AINs as an identifiable separate function, or words to that effect.

PN449

That is exactly what s been discussed with the employer in those minutes which was rejected. They wanted the opportunity to go into the room and seek to persuade the employer in another room in another set of meetings to do exactly what the employer said they weren't going to do, that is to quarantine PC work and AIN work and not engage PCs to do what s said to be AIN work or vice versa and not convert one to the other. They were asked all those things and they said, We can t agree with that. We'll reserve a mention on that for some later time.

PN450

If your Honour were then hypothetically disposed to stop the ballot which closes tomorrow and to have all of that time, money and effort put in the bin so the parties will have to go and do it all again, one asks rhetorically, What for? All it could be would be to have another shot at this argument in another room and it is, therefore, as your Honour put it by way of a proposition to my learned friend for his comment that this is really just an attempt to be involved in negotiating as a matter of form rather than a matter of substance because as a matter of substance anything that they wanted to articulate and your Honour asked my learned friend, What was it that you wanted to say? Everything they want articulated has been told to them - has not been available to them because the employer won t agree and that position hasn't changed, as one can tell from the form of the agreement that s gone out to ballot because it doesn't contain that form of quarantining within.

PN451

It would be in those circumstances the agreement is not something, in my submission, which would that the negotiations to the agreement would not be advanced one iota by stalling the ballot and all the good work that s been done by the other unions, all the consultation meetings, everything else that has occurred, all the notices that have been given, the ballots that have been forwarded, all the work that s been done around that, stopping all of that simply to allow the QNU to go forward in circumstances where even if your Honour were to stop it because they haven't proved yet that they are a bargaining representative, they're going to have to go and prove that they are first and there remains the very real possibility, as there has been today, that they can t do that and then where are we? We stopped it all for a bargaining representative who was in truth and in fact not a bargaining representative and then we've all got to go and start it all over again.

PN452

But even if they do manage by some strange means to demonstrate that they are a bargaining representative then all we have is a rehash of an argument that s been put to the employer in a number of meetings and the same representatives of the employer and the (indistinct). On the balance of convenience test, in my submission, there is no possible argument saying that the QNU hasn't had an opportunity to put the position that they wish to advocate for as a result of the orders they seek in this proceeding.

PN453

It s no basis for saying that the authorities that my friend has gone to in the HSU case has any bearing on this matter because even if there are members of the QNU who are affected by this and who are in fact eligible to be represented by the QNU, that is that they are engaging in work that s described as an assistant in nursing, assuming they get under all those hurdles, which they haven't done yet, all of them have had that position put to the employer on their behalf by the QNU as demonstrated in these minutes and that position has been refused.

PN454

So there s not the faintest suggestion that the employer is going to adopt a different position than the one that they ve adopted repeatedly in these minutes simply because they ve had the ballot stopped and they ve got to go and sit down with the QNU in another room and talk about the same topic again. There is absolutely nothing to suggest that those persons even if the QNU has anyone that they can represent have been denied advocacy on their behalf arising from that issue because that issue, as I say, has been done to death.

PN455

On that basis, in my submissions, there is really neither (indistinct) the making of a reasonably plausible case or an arguable case, a strongly arguable case, depending on the test that one applies can, applying the balance of convenience test to it, in my submission clearly fails on all levels and the appropriate step would be for your Honour to refuse this application so the ballot can be determined and so that the will of the workforce can be known.

PN456

There does seem to be something of a suggestion inherent in the submission that my learned friend has already put that the real agenda here is for the QNU to stall this ballot until they can get their own ballot done, apart from the fact that negotiations seem to be taking a long time, that they want to try and have their own ballot done so as to have an agreement in place first in time. From the exchange between your Honour and my learned friend, it would appear it s occurred to my client that the real agenda behind all this is simply to stop the personal care agreement being made so that the nurses agreement can get ahead of it despite the fact it s not ready, it s not done and may (indistinct).

PN457

Of course, that isn t going to be achieved because, as on the precedent of the Nurses Union case, all that was done in that situation, which was an equivalent circumstance of the parties being fairly retractable about the matter and the involvement of the QNU was not thought to have any likelihood of changing anything, but her Honour allowed them the opportunity to go to meetings and even then her Honour simply allowed for a delay of a month in relation to that matter.

PN458

If your Honour were to accede to the request, in my submission, there would be nothing other than a short delay so the parties can have a meeting to get them out of the way, presumably they will put the demarcation and work position. It will be refused and we'll all go back to a ballot again so that it s only going to delay things by about a month. That prejudices the employees, who I understand have not had pay increases for some significant period. It prejudices the employer s organisation of work all against the possibility that the QNU might be able to get a deal up and running and dealt with within the next month, which of course is technically impossible.

PN459

So on that basis there would be no utility served, even if what appears to be perhaps the undisclosed agenda if the QNU were allowed to run. It s going to be not productive, in any event. On that basis, we d ask your Honour that the application for interim orders be dismissed. Can I assist your Honour any further?

PN460

THE VICE PRESIDENT: No, Mr Herbert, but I'll mark your submission as exhibit H2.

EXHIBIT #H2 OUTLINE OF SUBMISSIONS FOR CARINITY BAPTIST COMMUNITY SERVICES

PN461

MR HERBERT: Thank you, your Honour.

PN462

THE VICE PRESIDENT: Thank you. Mr Peverill?

PN463

MR PEVERILL: Thank you, your Honour. Can I assume that you've got the United Voice submissions which are 10 pages and 32 numbered paragraphs?

PN464

THE VICE PRESIDENT: I have those submissions, Mr Peverill. I ve read them and I'll mark them exhibit P1.

EXHIBIT #P1 OUTLINE OF SUBMISSIONS FOR UNITED VOICE

PN465

MR PEVERILL: Your Honour, my submission will be based essentially on two bases. I will take the Commission shortly to United Voice s submissions. I do, however, want to address two propositions that Mr Reidy advanced in his submissions earlier, but before I do can I take your Honour to numbered paragraphs 31 and 32 of our submissions? It s United Voice s submission that for all of the reasons described in our outline are that the orders sought by the QNU should not be granted or any orders that are substantially similar and for that reason the application should be dismissed.

PN466

Your Honour, I'll take you to the two propositions that Mr Reidy advanced earlier. United Voice has only been placed on notice more than likely the earliest as of yesterday or, I would say, as late as this morning. That's on the issue of disclosing members names. Your Honour, Mr Reidy s first proposition is he'll have you believe that good faith bargaining provisions need only apply to Carinity and QNU. We say those submissions are flawed and we say those submissions are flawed for two reasons. On 12 February 2015 in the attachment 6 to Mr Allen s affidavit dated 24 April 2015, Carinity in fact notified the QNU that it had genuine concerns following an earlier bargaining meeting in which the QNU s representative, Ms Badke, attended. The QNU went to the extent of documenting that in the letter dated 12 February and invited the QNU to make an assertion to document their assertion that they were in fact in bargaining representatives for the purposes of the service agreement.

PN467

However, Mr Herbert, my learned friend at the bar table, suggested that has not been forthcoming. Neither United Voice nor the AWU nor Carinity have received that in writing in any substantial probative way. What proceeded that, your Honour, is the bargaining meeting on 3 February 2015. The unions - United Voice included its expressed concerns about QNU s presence at the meeting and invited the QNU to demonstrate, as it should under section 176, that it was in fact a bargaining representative.

PN468

So on two occasions in open forums sorry, on one occasion in an open forum and again in follow up correspondence dated 12 February the QNU has been pressed to provide in writing the grounds on which they assert they are a bargaining representative for the purposes of the carer support agreement. So in terms of Mr Reidy s assertion, your Honour, we say that that is ultimately flawed. I made some earlier representations that we say under section 577 that QNU is almost obliged to operate in an open and transparent and procedurally fair matter.

PN469

We don t think it is beyond the powers that the Commission holds that QNU should be ordered to provide them to the parties. The second assertion that Mr Reidy made sorry, the second proposition that Mr Reidy made earlier, your Honour, is the the submission that for some reason the ability for the QNU to demonstrate its membership is somehow biased, that is that it s open to demonstration. We would say that s a nonsense. In the Ostwald proceedings, paragraph point 7, clearly identifies and Richards SDP s decision that QNU is obliged by getting the employer to demonstrate for the purposes of good faith bargaining that it is in fact a bargaining representative pursuant to section 176 provisions.

PN470

They're the only comments I wish to make in terms of Mr Reidy s submissions, your Honour. As I said, they're not of any concern, to be honest, of United Voice other than to make those comments. Can I take us to our submissions, your Honour? United Voice has identified in a number of paragraphs that - paragraphs 8, 8.1, 8.2 and 8.3 that there are essentially three matters in dispute and these matters, your Honour, are not unlike the Blue Care [2014] matter that came before her Honour Asbury DP. It s our understanding that the QNU seeks to be acknowledged as a bargaining representative. That's clear on the facts.

PN471

QNU s position is that they cover AIN work and they assert that the rubric of the support services agreement (indistinct) to personal carers. We reject that outright. There is no evidence that has been the case. Carinity have invited the QNU to make submissions on that in the letter dated 12 February. That's yet to be forthcoming.

PN472

Your Honour, the bargaining order applications fall under section 229 provisions. United Voice submits that the QNU falls down at the very first level, that is the section 176 prerequisite. To date United Voice is still not satisfied that the QNU, much like those others at the bar table, haven't in fact satisfied that deeming provision and for that reason are excluded from seeking to make an application under the bargaining order provisions.

PN473

United Voice has made a submission in terms of the QNU s opportunistic attempt to obtain good faith bargaining orders when it seems to be clear on the evidence that as early as 5 May 2014, the QNU had to ought to, or did, have some apprehension of the concern around the employer s coverage of employees bargaining. Again, we find ourselves at the eleventh hour, the ballot closes as of tomorrow. The QNU have taken steps to prevent the approval of the agreement.

PN474

Now, we say there are powers afforded to the Commission that prevents QNU from doing this precise action and that s contained in the decision of your Honour in the decision of Chep Australia under section 255 provisions. Your Honour, QNU has agitated on this issue for a period of time. It s not an issue that is unknown to the parties, yet here we are replicating the very same applications as we've seen in the Blue Care matter. The Blue Care the QNU had an opportunity to raise this matter as early as 2014 and yet have chosen to disadvantage employees and members of the AWU and United Voice to see approval of the carers support agreement.

PN475

We say the potential detriments suffered by those employees far outweighs any benefit that can reasonably be attributed to the QNU. Your Honour, the only other issue I wish to raise at this stage is the extent to which the parties have reached agreement. So we are one day out from the conclusion of the ballot. Again, it goes to the nature, the capricious nature, of the QNU s application. We say that again, not unlike the Blue Care application, QNU has embarked on a process that is not consistent with good faith bargaining provisions. In fact, if you have Ms Semple s evidence, it s clear that she has a rigid pre‑determined position that has no intention to reach agreement with the respondent and other bargaining representatives in relation to the support services agreement.

PN476

This in itself does not constitute good faith bargaining. So if your Honour was inclined to issue the interim orders proposed by the QNU, United Voice maintains real concerns that the QNU wouldn't participate in those meetings, as outlined in their interim orders, pursuant to the good faith bargaining obligations and for that reason, those interim orders should be dismissed. If I can offer the Commission anything further ‑ ‑ ‑

PN477

THE VICE PRESIDENT: No, thank you, Mr Peverill. Mr Watson?

PN478

MR WATSON: Your Honour, the Australian Workers' Union obviously opposes the application before the Commission today. In essence, we support the submissions relied on by United Voice. Our concern in addition to what s been put to you today is that the result would be if the application is granted that our members the agreement for our members will be delayed and that s of concern to us. I think it s been put to the Commission earlier today by Mr Herbert that it s been a while since this group of employees have had a pay rise. We re particular keen to not see that take place on this occasion and I just wish to inform the Commission that that will be the outcome if the application is approved by the Commission. Apart from that, we support the application of UV.

PN479

There is one matter that I did mean to perhaps put on the record, there has been a consultation process with the employees that obviously the parties around the negotiating table have been aware of and support and that has been in place since, I believe, the first of this month. That meeting schedule was distributed to our members. Whilst I don t anticipate that any of those member that meaning myself some of our organisers have attended some of those meetings. So there has been what I would consider to be a normal enterprise bargaining consultation and bargaining process took place. As I said, if this application is granted that will disrupt that process. Thank you.

PN480

THE VICE PRESIDENT: Thank you, Mr Watson. Mr Reidy, how long do you expect to be?

PN481

MR REIDY: Probably about 20 minutes.

PN482

THE VICE PRESIDENT: I do have another matter at 2 pm. In the light of that, I think I should adjourn this matter until after the other matter is completed. I'll adjourn till 3 pm and hear your reply at that stage.

PN483

MR REIDY: Thank you, your Honour.

PN484

THE VICE PRESIDENT: We'll now adjourn.

SHORT ADJOURNMENT [1.49 PM]

RESUMED [3.00 PM]

PN485

THE VICE PRESIDENT: Mr Reidy?

PN486

MR REIDY: Thank you, your Honour. First of all, I want to commence by just correcting a submission I made earlier and Mr Herbert quite correctly pointed out that there was a document, a letter, of 12 February where a similar sort of statement was made as in Ostwald and I do apologise for that submission being incorrect. The rest of the matters of distinction in Ostwald still stand. The first matter of response covers these issues concerning the classification structure which, in my submission, goes to the heart of this case and your Honour has put the same question both to me and to Mr Herbert about, in effect, how one can tell under the current position description or the classification descriptions whether a person is an AIN or a personal carer. In response Mr Herbert said these things as I ve noted them:

PN487

To determine an AIN or a personal carer requires a dissection of the work, looking at the duties, seeking that it falls in the AIN descriptor. It cannot be done by general descriptors or by reference to existing personal carers and there s no formal quarantining of AIN and personal carers in the current agreement.

PN488

What my submission is in response to that is it s saying the very things that we are saying entitle the Queensland Nurses Union to be a bargaining representative in these agreements. The second response to that is this that in my written submissions I gave a summary of what Hall P said in a much earlier related matter and that has been extracted in the Blue Care decision. That can be found at paragraph 28 of the Blue Care decision.

PN489

The Full Bench has underlined the particular passage. I think this is actually a quote from the no, the Full Bench has underlined this passage. I don't know if you have it, your Honour. It s on page 17 of the decision.

PN490

THE VICE PRESIDENT: I have that. It s a passage ‑ ‑ ‑

PN491

MR REIDY: Yes, your Honour.

PN492

THE VICE PRESIDENT: It s the passage at point 7 of the page, is it?

PN493

MR REIDY: Page 17 it s a long passage. It s right down the bottom of page 17 and it says:

PN494

In any event, as I previously found

PN495

are the first word underlined words.

PN496

THE VICE PRESIDENT: Yes.

PN497

MR REIDY: And, in my submission, this underlining is an adoption of what was said here:

PN498

The domestic duties, time consuming as they were, did not change the essential nature of the work performed by the two persons formerly employed as assistants in nursing. Their services were rendered by way of assistance to, and under the supervision in some cases of physical and immediate supervision and in others an indirect supervision by way of a care plan or registered nurse.

PN499

That is the way in which the distinction has to mean aid and, as Mr Herbert said, it involves an analysis of the duties and the principle is that domestic duties can be time consuming, but it s a matter of looking at what the essential nature of the work is. In that regard the essential nature of the work when a choice has been made to use these generic descriptors or these very general and vague classification descriptions makes it almost inevitable, in fact inevitable, that the work is AIN work.

PN500

Just to point to that, can I just refer you to 7B in the application, which is the initial draft of the Support Services Enterprise Agreement, which took Ms Darwin and I'll just get the correct page. Yes. If you look at the bottom of the pages, your Honour, it s page 58.

PN501

THE VICE PRESIDENT: Yes.

PN502

MR REIDY: It s not the 58th page, but it s a few pages in from the front. Have you got that, your Honour?

PN503

THE VICE PRESIDENT: I ve got that. That's schedule A.

PN504

MR REIDY: Yes, schedule A and a personal carer is described by reference to duties and these include duties such as, Bathing, showering, toileting, dressing, undressing, and then further down, Assistance with medication and also with diet and also with illness. Further down at F, Treatment including with eye drops and other sorts of treatments. That is, on any view of it, nursing work. What one then sees, if it s compared to attachment 16 to Ms Semple s affidavit, is the complete removal of the duties and there being couched in a position description which isn't in the document and presumably sitting behind the position description is some other sort of allocation of duties.

PN505

What Blue Care says is this type of approach this type of approach fairly and squarely makes for a classification that covers AINs. So that s in response to that aspect of Mr Herbert s submissions. I'll go back through some of the others. The AWU seem to make a submission about balance of convenience and the denial of a pay rise. I'll just make two points in relation to that. First, in my written outline there is nothing as I said, there s nothing preventing that being paid administratively, particularly when the agreement itself has the employer saying that pay rises will be backdated.

PN506

Secondly, the AWU raises an issue about the scheduling of meetings and consultations. There is a fundamental difficulty here and that is that no other party who is in a position to do so has put on any material to tell us what those meetings were, when they were, what occurred and, more importantly, when they ve all had the opportunity, including Ms Darwin for Carinity, to tell us what has been done to comply with the balloting provisions in section 181, what steps were taken and when. Everyone is extremely vague on that and that does, in my submission, raise some alarm bells but also highlights the exclusion of the QNU and how could it do anything when the other parties can t even tell the Commission what the time frame is for things having happened?

PN507

It s instructive that I must say I need to have a look at the transcript about what Ms Darwin said on the 16th. I got the impression, rightly or wrongly, that the ballot had already commenced, but it appears that it commenced the very next day. That's obviously a decision made by the employer in circumstances where it didn't have to do that.

PN508

I'll deal with some of the submissions from United Voice and as reluctant as I am to reply to matters that deal with factual issues, some of the attacks from the other parties can t go unremarked. United Voice has said that the QNU is involved in a or has a rigid pre-determined position. That is just simply not the case. There s no evidence for that. In fact, the evidence is that what the QNU has sought to do at all times is to be engaged, absolutely engaged, and trying to bargain a position, but meeting a brick wall when it comes, in particular, with what we've concerned today, the services agreement.

PN509

United Voice also seem to and I hope I don t misunderstand the submission say that section 577 applied to the QNU. Section 577 deals with the performance and the functions of the Commission and really has no relevance. It was also said by United Voice that the submission for the QNU was that good faith only applied to the bargaining between Carinity and QNU. That wasn't the submission that was made. Obviously, the focus of the submissions are the events concerning the QNU and Carinity, but the other unions have also good faith bargaining obligations and that s not in dispute.

PN510

Mr Herbert said that the eligibility rules of the QNU are pretentious. In my submission, that s wrong. They're plainly well settled and they ve been covered extensively in the Blue Care decision and they're well settled to the point of the courts and Commissions Commissions in particular giving them a wide operation both in respect of nursing and the vocation of nursing and the duties of nursing and the role and duties of AINs.

PN511

The submission also was made that, as I understood it from Mr Herbert, it wasn't a legitimate approach to bargaining to exclude to go into bargaining on the basis of excluding AIN s work from the agreement, the services agreement. As I said in my submissions, that was but one possible position that could have been taken. So that submission on that point is wrong and as has been observed in the Blue Care decision itself, the fact that Full Benches have held that there is no indication in the statutory provisions that a bargaining representative arguing for a different scope for an agreement is necessarily not trying to reach agreement.

PN512

The scope of the agreement can be the subject of negotiations; that the QNU seeks to negotiate a different scope to that agreed by other bargaining representatives is not grounds for refusing to exercise the discretion to make the bargaining orders. So that submission, if it is a correct understanding, is wrong in law and that particular passage can be found in paragraph 48 of the Full Bench decision, which adopts paragraph 113 of the decision of the Deputy President appealed from.

PN513

Mr Herbert again in the category of ad hominem submissions made this, in my submission, quite outrageous submission that the QNU was engaged in stalling the ballot to get the QNU ballot first. There s simply no evidence for that submission. There s no basis to make that submission. It s quite an outrageous submission and might I also say if that is what the submission is, the rhetorical question is: how is it that the services agreement which started, one would be able to infer, many, many months, probably eight months, after the QNU nurses agreement bargaining started, suddenly accelerates over a few months to be on first. We don t make that submission because we've got no evidence of it and, likewise, Mr Herbert shouldn't have made such an outrageous submission.

PN514

Mr Herbert also made a submission that Blue Care does not have to deal with how to establish a bargaining representative. Mr Herbert s submission was that Blue Care is authority for the proposition as to how a bargaining representative is determined and that the approach in Blue Care is what was required of the QNU. Firstly, that s not what Blue Care says. Blue Care has nothing to say about how you provide evidence or give evidence to establish a bargaining representative position.

PN515

To adopt that submission would be ludicrous because where would it end? Would the union have to provide full blown sworn witness statements, complete with documents, with coverage of all the duties that were performed before Blue Care could accept them as a bargaining representative? In other words, run a case for the employer, in this case Carinity, to be the decision‑maker? The submission really doesn't stand any scrutiny.

PN516

In regard to Blue Care, Mr Herbert makes the submission, both in writing and seems to follow it up in his oral submissions, that all the evidence put on in that case went to the position of only two AINs. Well, that s clearly not the case on the reading both of the first instance decision and the appeal decision. The two people who gave evidence were both AINs and had done work as personal carers. They were simply witnesses in the case. The case wasn't about whether they were the only two people concerned with bargaining representation rights.

PN517

The other ad hominem attack that I need to deal with from Mr Herbert is the accusation in rather tropical language that the QNU has manufactured and concocted matters in relation to the policy on privacy. The simple response is the evidence has gone in. It s unchallenged, when there was an opportunity to challenge it. The evidence is the evidence and the evidence is that there s a formal policy. That submission again is quite outrageous, particularly when it s not been put to a witness and a witness hasn't been given an opportunity to respond to it.

PN518

Mr Murdoch on some occasions gave evidence from the bar table and I won t respond to all sorry, Mr Herbert - I'm back in another matter during the week sorry about that. Mr Herbert gave evidence from the bar table about payroll deductions. If Mr Herbert wants to get into that game, I can also say that there are payroll deduction processes in place so Carinity would know from payroll deductions at least who some of the union members are. Mr Herbert also said that AINs are a sub-set of personal carers. That submission again is wrong. If anything, they're different positions, but if anyone is a sub-set of anyone, then a personal carer may perform what might be regarded as the peripheral non-nursing task that an AIN might perform so the personal carer would be the sub-set of the AIN.

PN519

Mr Herbert also referred to the matter of requiring probative evidence and this links in with a submission I made earlier. There is simply no basis in the legislation for the concept of probative evidence about membership and in fact all that needs to be raised on an application of this nature is material to satisfy the serious issue to be tried test, not the finalisation of issues in dispute. In my submission, there is evidence of the standard that establishes the serious issue to be tried; and secondly, there s no sanction in the Act for the concept of probative evidence.

PN520

On the subject of corrections, I have it in my chronology there is an error for 9 December. That entry refers to the QNU asking for the duties of personal carers and the note says, This request was not met until three months later. In fact, the note doesn't properly explain how it was met because it was met by provision only of a position description but not of the duties, which are a different thing. What the QNU did was to put Carinity on notice in those three establishments of the duties of persons designated as personal carers being such as to be the work of assistants in nursing.

PN521

Finally, the matter that Mr Herbert addressed in relation to the functions of an AIN and a personal carer in response to a submission of mine concerning the attendance of people in high care, I just simply draw your Honour s attention to the attachment that is 18. It s attachment 18 to Ms Semple s first affidavit. That is a summary prepared by Ms Semple of publicly available audit reports from the Australian Aged Care Quality Agency it s accreditation standards report.

PN522

What Ms Semple has gathered there is information in relation to persons, residents, who require high care. You'll see, your Honour, that the percentages, about halfway down, are very high, up to 98 per cent with a minimum of 43.48 per cent in John Cani, 71.4 per cent in Shalom, and Kepnock Grove has 53.3 per cent. That raises, in my submission, a serious issue to be tried or evidence page 2, I'm told, the most current record. Sorry. So if you go over the page, your Honour, there s a previous report and there s a most current report, but what one sees is very high numbers of high care people and high care is what it is. It s people who need nursing attention, people who need the assistance of those engaged in nursing work. Those are my submissions.

PN523

THE VICE PRESIDENT: Thank you, Mr Reidy. I'm just getting a bit of light on the subject. Thank you for those submissions. I think given the nature of the application and its timing, I should indicate my decision in the matter now. The application is made under section 229 of the Fair Work Act for bargaining orders and section 230 of the Act sets out the circumstances when the Commission may make a bargaining order.

PN524

For the purposes of today s proceedings, an interim order is sought which is set out in an attachment to the submissions filed on behalf of the Queensland Nurses Union of Employees to the effect that until the application is heard and determined in full or until further order of the Commission, Carinity shall not take steps, or any further steps, under section 180 and 181 of the Fair Work Act. That is the interim order that s sought.

PN525

Clearly, that order must be considered against the provisions of the Act relating to the application itself and the requirements for an order under section 230. The evidence in this matter deals, I think, quite comprehensively with a chronology of negotiations, both in relation to a Nurses Enterprise Agreement and a Support Services Enterprise Agreement. The evidence, as given by Ms Semple on behalf of the Queensland Nurses Union of Employees and by Ms Darwin on behalf of Carinity, I have had regard to that chronology and all of that evidence.

PN526

I do not propose to summarise it and I do not propose to give detailed reasons for my decision in this matter. I have considered the application for an interim order based on the approach advocated by all parties that there needs to be essentially a prima facie case, expressed differently, or serious issue to be tried in relation to the matters that fall for determination and also the balance of convenience should favour granting an interim order.

PN527

The critical requirements, in my view, for an order under section 230 is that the Commission must ultimately be satisfied that Carinity, in this case, has not met or is not meeting, the good faith bargaining requirements and the other critical requirement, I think, is that the Commission must be satisfied that it is reasonable in all the circumstances to make the order. There are other requirements, but I think those two requirements are of the utmost importance; certainly in terms of the interim application.

PN528

I am not satisfied that a prima facie case has been established on the material today in relation to either of those tests. I am not satisfied in the context of the bargaining matters that occurred, that the employer Carinity has not met the good faith bargaining requirements of the Act. There is obviously a complicated chronology and a number of disagreements that have occurred during the course of various meetings over a period of many months. The negotiations have stalled under the support services agreement concerning the QNU over the issue of establishing the legitimacy of the QNU as a bargaining representative.

PN529

I do not propose to say more about all of those circumstances, but I do not believe that the applicant today has established a prima facie case that Carinity is not meeting the good faith bargaining requirements. Further, I am not satisfied that there is a prima facie case that it is reasonable in all the circumstances to make the order. In that regard, I have regard again to the chronology and the content of meetings which have occurred between the parties, the nature of representations that have been made, the status of those negotiations and the position of Carinity in seeking to progress its enterprise bargaining negotiations to the point of putting an agreement to its employees engaged in support services to a ballot. So I am not satisfied of either of those matters.

PN530

Further, I am not satisfied that a case has been made that the balance of convenience favours the granting of an interim order. That would be a separate reason for not making the interim order if I was satisfied of a prima facie case in relation to the other matters. It seems to me that the negotiations have followed a lengthy path. They have advanced to a very final stage of reaching agreement with bargaining representatives representing the employees.

PN531

There is obviously an outstanding disagreement between Carinity and the QNU about matters regarding the scope and proper classification of employees, but to make an interim order and prevent the finalisation or the outcome of the ballot and the following steps, which may arise from that outcome, in my view, does not strike an appropriate balance and the balance of convenience in fact favours the matter proceeding, the agreement process proceeding in the way that it is currently doing without interference from an interim order from the Commission.

PN532

Having regard to those conclusions, it follows that I dismiss the application for an interim order. What I propose to do is direct the parties to confer in relation to further proceedings in relation to the substantive application. I have indicated that I have reserved the dates of 14 and 15 May for the hearing of the application. It would appear to me to be appropriate to make directions for the filing of supplementary material in advance of that hearing and also to permit reliance on the material that s already been filed in relation to the application today.

PN533

I ask the parties to confer in relation to future directions and to notify my associate of any agreed position. If it is necessary to argue alternative positions, I will list the matter further for a telephone directions hearing. We will not adjourn the proceedings.

PN534

MR REIDY: Could I just raise one matter, your Honour? Could I raise one matter?

PN535

THE VICE PRESIDENT: Yes, Mr Reidy?

PN536

MR REIDY: It hasn't been dealt with and that s the annexures 1, 2 and 3 to Ms Semple s second affidavit. There is confidential material there and I would be seeking orders under 593(3)(b) that that material be prohibited from any form of disclosure to the other parties and I would also seek an order we probably only need one order, which is the order under 594(1) restricting publication of those annexures.

PN537

THE VICE PRESIDENT: What s the second order?

PN538

MR REIDY: The first order relates just to the parties to these proceedings. The second order is a general order that that material not be published or available or accessed by anyone without a further order of the Commission.

PN539

THE VICE PRESIDENT: Yes. I will make an order. I hereby make that order that the annexures to the second affidavit of Ms Semple will be retained on the file, but they will be regarded as confidential to the QNU and will not be provided to any other party or anyone else. That matter can be revisited at a further time as sought by the parties.

PN540

MR REIDY: Thank you, your Honour. That's the only matter I have.

PN541

THE VICE PRESIDENT: Thank you. We'll now adjourn.

ADJOURNED INDEFINITELY [3.36 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 AFFIDAVIT OF MS V. SEMPLE DATED 22/04/2015............ PN18

EXHIBIT #R2 AFFIDAVIT CONTAINING 17 PARAGRAPHS OF MS V. SEMPLE PN46

MARGARET DARWIN, AFFIRMED................................................................ PN57

EXAMINATION-IN-CHIEF BY MR HERBERT.............................................. PN57

EXHIBIT #H1 AFFIDAVIT CONSISTING OF 27 PARAGRAPHS OF MS M. DARWIN DATED 24/04/2015................................................................................................................. PN64

CROSS-EXAMINATION BY MR REIDY.......................................................... PN66

RE-EXAMINATION BY MR HERBERT......................................................... PN153

THE WITNESS WITHDREW............................................................................ PN161

EXHIBIT #R3 OUTLINE OF SUBMISSIONS AND DRAFT INTERIM ORDERS FOR THE APPLICANT......................................................................................................... PN168

EXHIBIT #H2 OUTLINE OF SUBMISSIONS FOR CARINITY BAPTIST COMMUNITY SERVICES............................................................................................................. PN460

EXHIBIT #P1 OUTLINE OF SUBMISSIONS FOR UNITED VOICE......... PN464