B2015/1190, Transcript of Proceedings [2015] FWCTrans 499 (26 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052323

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DEPUTY PRESIDENT GOSTENCNIK

B2015/1190
B2015/1191

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

National Union of Workers

and

CSL Limited T/A CSL

(B2015/1190)

Melbourne

5.20 PM, TUESDAY, 18 AUGUST 2015

PN1

THE DEPUTY PRESIDENT: Yes, good afternoon. Ms Barrett and Ms Hilt.

PN2

MS E BARRETT: Yes, we're seeking ‑ ‑ ‑

PN3

THE DEPUTY PRESIDENT: Appearing for the applicants? And Mr Doyle, you're seeking permission to appear for the respondent?

PN4

MR DOYLE: Yes, Deputy President.

PN5

THE DEPUTY PRESIDENT: Ms Barrett, do you have a view?

PN6

MS BARRETT: Yes. We oppose the application. We don't see any grounds for it being made, especially since Mr Fridell is here, who has previously appeared on behalf of CSL as an experienced advocate.

PN7

THE DEPUTY PRESIDENT: Yes, Mr Doyle, I had better hear your application.

PN8

MR DOYLE: Thank you, Deputy President. The request for permission to represent CSL is made pursuant to section 596 subsection (2)(a) of the Fair Work Act; that is on the basis that:

PN9

It would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

PN10

Deputy President, the tribunal will be aware that applications of this type are not frequently opposed; and when they are, it is even less frequent that such opposition is successful. That's largely due to the very broad discretion that the tribunal has in relation to these matters.

PN11

In the present case, however, CSL intends to submit the circumstances facing it and the other bargaining representatives are quite unique. To CSL's knowledge, the argument is that CSL will put have not been the subject of specific consideration by the tribunal in the context of this type of application before.

PN12

In particular, CSL submit making an agreement in the intervening period between the ballot and this application is a circumstance which would lead the tribunal to dismissing the application. These are complex matters, Deputy President, that will be dealt with more efficiently with the assistance of a legal practitioner that's experienced in relation to industrial relations, particularly given the urgency in which this application has been called on to hearing. Thank you, Deputy President.

PN13

THE DEPUTY PRESIDENT: Yes. Ms Barrett.

PN14

MS BARRETT: We maintain our objection. We don't believe it's a matter of sufficient complexity to warrant representation.

PN15

THE DEPUTY PRESIDENT: Yes, all right. Thank you, Ms Barrett. I will grant you permission, Mr Doyle. How do the parties propose to proceed this afternoon? Ms Barrett, do you propose to call any evidence?

PN16

MS BARRETT: Yes, I do, Deputy President. We're in your hands, but one suggestion I do have is that I provide some brief opening, and then once we've heard from the respondent about the grounds of objections, then Ms Hilt can give her evidence, because it may be that some of the evidence is not in issue in terms of the grounds in dispute.

PN17

THE DEPUTY PRESIDENT: Yes. It might be - I don't particularly need an opening, Ms Barrett, unless you desperately want to do that. I'm happy for you to give an opening.

PN18

MS BARRETT: I think it's worthwhile just outlining the facts.

PN19

THE DEPUTY PRESIDENT: Away you go, then, Ms Barrett.

PN20

MS BARRETT: Thank you. In terms of we're seeking that the Fair Work Commission exercise its discretion to extend the 30-day period of industrial action in relation to these ballots. We note that the only - - -

PN21

THE DEPUTY PRESIDENT: Which expired yesterday, did it not?

PN22

MS BARRETT: Pardon?

PN23

THE DEPUTY PRESIDENT: Which expired yesterday?

PN24

MS BARRETT: I believe so, but the application was made prior to expiry.

PN25

THE DEPUTY PRESIDENT: Yes, I understand that.

PN26

MS BARRETT: We note that the only prerequisite for making that application is that it has not previously been extended. There are two applications before you, Deputy President. I've got copies of the original protected action ballot application orders, the orders, and then also the - - -

PN27

THE DEPUTY PRESIDENT: I don't have the orders, but I have the declaration of results from the AEC.

PN28

MS BARRETT: Fantastic. In relation to both?

PN29

THE DEPUTY PRESIDENT: Yes, I do.

PN30

MS BARRETT: Great. So two protected action ballot applications were made on 16 June: one was in relation to NUW members who are currently covered by the CSL Limited 2002 Enterprise Agreement, and that ended up being B2015/607; and the other application was in relation to members who are currently covered by the CSL Limited 2012 Stores, Warehouse, Cleaning and Gardeners Enterprise Agreement, which ended up being B2015/608.

PN31

Orders for both of these ballots were granted by Watson SDP on 19 June. In relation to B2015/607, Watson SDP specified that the notice of industrial action - more notice had to be given in specified circumstances.

PN32

THE DEPUTY PRESIDENT: I think I actually make the order in 607.

PN33

MS BARRETT: Pardon?

PN34

THE DEPUTY PRESIDENT: I think I made the order in 607. Watson SDP made the order in 608.

PN35

MS BARRETT: Thank you.

PN36

THE DEPUTY PRESIDENT: I told you I didn't need an opening, but away you go.

PN37

MS BARRETT: The results of the ballot - postal ballots - as you said, you've got copies of them - were that in each ballot an overwhelming majority of the employees who voted, voted in favour of the industrial action. Since that time in relation to action authorised under 607, the NUW has taken industrial action in the form of a ban on overtime of an indefinite duration; a stoppage of work of four hours' duration; and a ban on the use of work-related communication devices.

PN38

In relation to action authorised under 608, the NUW has taken industrial action in the form of a ban on overtime of indefinite duration; a stoppage of work of 24 hours' duration; a stoppage of work of four hours' duration; a stoppage of work of one hour duration; and a ban on the use of work-related communication devices. The bans on the overtime are continuing, and the stoppages were taken as recently as last Wednesday.

PN39

The orders that the NUW are seeking would enable the NUW to commence taking the other types of industrial action approved in those two ballots. CSL put three agreements out to vote on 7 August. On 13 August the results were declared. Of those three agreements, only one was voted in favour of by employees. That agreement is known as the bioCSL EBA. This was voted up by a very narrow margin of 341 to 277 employees.

PN40

It's important to note, Deputy President, that those other two agreements were voted down, and negotiations are ongoing in relation to these. There's a meeting scheduled for next week. Many of the members covered by the two protected action ballot applications and the ballots are not covered by the agreement that was voted up. To be precise, 71 out of the total pool of 95 members who are on the ballot list for those two ballots were not covered by the bioCSL agreement. So 71 employees still need to negotiate their enterprise agreement.

PN41

We've created a list, Deputy President, of the people who would be covered by the - we've got the ballot lists that we provided to the AEC and we've highlighted on those those people who are covered by the bioCSL EBA that was voted up last week. I guess we are seeking to preserve the integrity of the AEC process whereby we don't see the company's list and they don't see ours, but I would like to hand that up to you on a confidential basis if that - and Kathryn can later give evidence as to the integrity of that list.

PN42

THE DEPUTY PRESIDENT: Mr Doyle?

PN43

MR DOYLE: Deputy President, the bulk of that, I think, from the company's perspective, is not contentious or disputed, save for one.

PN44

THE DEPUTY PRESIDENT: You accept 71 of the 95 ‑ ‑ ‑

PN45

MR DOYLE: The company is just simply not in a position to say anything contrary to that, Deputy President, not knowing the membership rolls of the NUW.

PN46

THE DEPUTY PRESIDENT: Sure.

PN47

MR DOYLE: But on my instructions, the numbers are not outside the realms of what might be appropriate.

PN48

THE DEPUTY PRESIDENT: On those circumstances it seems unnecessary, does it not, Ms Barrett?

PN49

MS BARRETT: Thank you, Deputy President. We say in any event the fact that the bioCSL agreement was voted up last week is irrelevant, because there is serious doubt as to whether the bioCSL - that that agreement can actually be approved by the Fair Work Commission. This was for reasons ‑ ‑ ‑

PN50

THE DEPUTY PRESIDENT: That's an argument for another day. But ultimately it's presently not approved.

PN51

MS BARRETT: It's presently not approved, Deputy President, but in our view the fact that it has been made is irrelevant, because the notice of representational rights was defective, and in that sense, as per AMOU v Harbour City Ferries, a decision I provided you with, that means that the agreement cannot be approved because they have failed to comply with the requirements under section 174(1A).

PN52

THE DEPUTY PRESIDENT: As I say, that's an argument for another day.

PN53

MS BARRETT: Yes.

PN54

THE DEPUTY PRESIDENT: As a matter of fact, an application either has been made or will be made for the approval of an agreement, and that will run its course. Presently there isn't an operative agreement.

PN55

MS BARRETT: That's correct, Deputy President.

PN56

THE DEPUTY PRESIDENT: But there is one for which there was a ballot and for which a majority of employees who participated in that ballot appeared to have supported its approval.

PN57

MS BARRETT: Yes. We were just making the point that there will be ‑ ‑ ‑

PN58

THE DEPUTY PRESIDENT: I understand. I understand the point you make. You say the ballot was invalid because there was no valid notice of employee representational rights issued.

PN59

MS BARRETT: That's correct. The stores people, which are the NUW's members that would be covered by the bioCSL were excluded from the scope of the notice of representational right. In terms of the factors that go to your discretion to exercise - to exercise your discretion to extend the notice period, I will briefly refer you to the cases I've provided you with.

PN60

In Energy Australia v CFMEU, a decision that was upheld by a full court of the Federal Court. If I can take you briefly to paragraphs 20 to 22. In our view, in paragraph 20, this is:

PN61

particular circumstances where it would be unfair or otherwise inappropriate to hold an employee bargaining representative strictly to the 30 day time limit in section 459(1)(d)(i) and impose upon them (and the employees they represent) the cost, delay and inconvenience of going back to scratch and making a fresh application for a new protected action ballot.

PN62

And in paragraph 21 it says:

PN63

There will be many cases where it would be entirely conducive to the purposes and objects of the Fair Work Act, and Part 3-3 in particular, for the 30 period to be extended. In many cases it will be clear on evidence that majority employee support for the action in question continues to exist and that resort to the species of protected industrial action will be a legitimate way of seeking to achieve agreement where bargaining has stalled.

PN64

And so on.

PN65

And in relation to the second case I've referred you to, which is TWU, a decision of Lewin C in 2011, we say that all the factors he has listed in paragraph 28 in terms of whether it's relevant to consider to grant the application are met for the reasons set out in paragraphs 29 to 39 of his reasoning.

PN66

And we also submit that the full 30-day extension should be granted for the reasons expressed by O'Callaghan SDP in NUW v Symbion Pharmacy Services. In particular we note that one of the protected action ballot orders requires more than three days' notice, and he says at paragraph 17 that that is a relevant factor. He says in the middle of that paragraph:

PN67

Secondly, the requirement that seven days' notice of protected industrial action be given means that, in the event that the NUW did seek to actually take protected industrial action, the period within which this action can be commenced is already relatively short.

PN68

And that is also applicable in this case in relation to one of the ballots, in relation to the 2015/607, for which there are extended notice period requirements. I promised I would be brief, Deputy President.

PN69

THE DEPUTY PRESIDENT: Not as brief as not giving an opening, but brief nonetheless. Thank you, Ms Barrett. Yes, Mr Doyle.

PN70

MR DOYLE: Thank you, Deputy President. CSL does not contest that the jurisdictional prerequisites for the application have been met. An application has been made by the NUW, being the applicant for the ballot order, and the 30-day period has not yet been extended; rather, CSL's opposition to the application rests on the Fair Work Commission's discretion in relation to making that order to extend the 30-day period.

PN71

It submits that in the present circumstances, the Fair Work Commission should not exercise its discretion to extend that period. The essence of CSL's argument is this: if the NUW's protected action ballot application was made today, the permissible voting population would be very different than it was in relation to its previous application.

PN72

In fact, depending on the NUW's current approach to scope in the coverage of its proposed agreement, it may be that the ballot order could not be made at all as it stands today. We say that because of the fact that the bioCSL enterprise agreement was made by employees on 13 August 2015.

PN73

I had intended, Deputy President, to call Mr Fridell to give evidence, and I anticipate that my friend, Ms Barrett, intended to do the same. It does seem to me, though, that the facts are perhaps not in contest - and my learned friend will correct me if I'm wrong about that - which might assist us in expediting ‑ ‑ ‑

PN74

THE DEPUTY PRESIDENT: Why don't you set out what you say are the facts, and Ms Barrett can either agree or not with them.

PN75

MR DOYLE: From CSL's perspective the key facts are these: that on 13 August 2015 the enterprise agreement known as the bioCSL Enterprise Agreement 2015 was made, on the basis that it was approved by a majority of employees that were covered by the agreement.

PN76

CSL also submits - and it has been conceded by the NUW today - that there were at least some of the NUW's members that are covered by that bioCSL agreement that has been made and is now a fully-fledged enterprise agreement, albeit it that it has not been approved and is yet to be operative. Because of that, Deputy President ‑ ‑ ‑

PN77

THE DEPUTY PRESIDENT: Ms Barrett would say, what, there are 24 ‑ ‑ ‑

PN78

MS BARRETT: Yes, that's correct.

PN79

MR DOYLE: That's right, Deputy President, on my calculations.

PN80

THE DEPUTY PRESIDENT: 24 members of NUW that are covered by the bioCSL agreement.

PN81

MR DOYLE: So because of that, Deputy President, it seems clear that CSL's submission holds. I will take the tribunal through the relevant legislative provisions that result in that conclusion.

PN82

THE DEPUTY PRESIDENT: Just before you do. Ms Barrett, are you able to tell me, of the 24 members you say are covered by the bioCSL agreement, how many of those - what proportion of that 24 fell within each of the protected action ballot order results?

PN83

MS BARRETT: There were some falling within both ballot ‑ ‑ ‑

PN84

THE DEPUTY PRESIDENT: I would imagine that, but are you able to be more precise than that?

PN85

MS BARRETT: I would need to go back and double check.

PN86

THE DEPUTY PRESIDENT: Because as I anticipate Mr Doyle's submission, for example, if all 24 of the voters - all 24 NUW members were caught by the ballot application that resulted in an approval in, for example, 608, there were 30 on the roll, 20 voted; if all 24 were covered by that scope, that means they were within the 30; that lends support to the submission that Mr Doyle, I anticipate, will be making, and that is that there can no longer be assumed to be support for the industrial action. Do you follow?

PN87

MS BARRETT: I do follow, Deputy President. Could we just have a brief adjournment while I just clarify the list?

PN88

THE DEPUTY PRESIDENT: Of course. That's why I say the number, I think, is an important one in that sense, to understand the break-up.

PN89

MR DOYLE: Deputy President, what might assist for the purposes of that adjournment, the further proposition that we would put, it's not just about what those 24 ‑ ‑ ‑

PN90

THE DEPUTY PRESIDENT: No, I understand there are other propositions, and I wasn't suggesting that that was your only proposition.

PN91

MR DOYLE: No, absolutely. But there is one additional point that may assist Ms Barrett to get instructions.

PN92

THE DEPUTY PRESIDENT: Yes, go ahead.

PN93

MR DOYLE: And that is it's not only about what the 24 might have voted yes or no, but an equally important proposition is whether those 24 would have voted at all. If those 24 were in the group of employees that did vote and they fell out of the voting population, it seems very clear on the declaration of results that the participation threshold would not have been reached.

PN94

THE DEPUTY PRESIDENT: Yes. Look, I understand. And rather than a consideration in the exercise of my discretion, is whether it can continue to be said that action is authorised. And if there's some - I understand where the submission goes, that's why the break-up in the number is an important factor in making that assessment.

PN95

I do understand the secondary point, that some of them may not have - all of them will have been somewhere in the pool of 65 and 30 respectively - we don't know how many in each; what we also don't know is how many of those 24 voted, and the break-up will at least give a clear indication as to what inferences can reasonably be drawn from that mathematical exercise. Do you want an adjournment for how long, Ms Barrett?

PN96

MS BARRETT: Just five minutes, just so I can do some arithmetic.

PN97

THE DEPUTY PRESIDENT: How about 10 minutes, so I can have a cup of tea.

PN98

MS BARRETT: Thank you.

SHORT ADJOURNMENT [5.40 PM]

RESUMED [5.56 PM]

PN99

THE DEPUTY PRESIDENT: Yes, Ms Barrett.

PN100

MS BARRETT: My arithmetic, which I think we have already discovered an error with, was that 59 of the 65 employees on the 607 ballot list would not be covered by the bioCSL agreement and - - -

PN101

THE DEPUTY PRESIDENT: So it's 55, did you say?

PN102

MS BARRETT: Fifty-nine.

PN103

THE DEPUTY PRESIDENT: So 59 of the 65.

PN104

MS BARRETT: And that 12 from the 30 on 608 would not be covered by the bioCSL agreement.

PN105

THE DEPUTY PRESIDENT: Twelve of the 30 would not be?

PN106

MS BARRETT: Yes.

PN107

THE DEPUTY PRESIDENT: So that means 18 of the 30 would be.

PN108

MS BARRETT: Yes.

PN109

THE DEPUTY PRESIDENT: So 18 of the 30 and in relation to the second one, six would be covered.

PN110

MS BARRETT: Yes, that's right.

PN111

THE DEPUTY PRESIDENT: Thank you for that. Yes, Mr Doyle.

PN112

MR DOYLE: Thank you, Deputy President. Given the discrepancy with the numbers, it is clear based on Ms Barrett's submission that there would be 24 employees that would no longer be eligible to vote in these two ballots were they conducted today. The numbers that were just given amounts to 22. If it suits the tribunal, Deputy - - -

PN113

THE DEPUTY PRESIDENT: Eighteen and six is 24 on my count.

PN114

MR DOYLE: Was it 18 - 18 and four were the numbers.

PN115

MS BARRETT: It was 18 and six.

PN116

THE DEPUTY PRESIDENT: No, 18 and six.

PN117

MR DOYLE: Apologies.

PN118

THE DEPUTY PRESIDENT: Six in relation to the 607 and 18 in relation to the 608.

PN119

MR DOYLE: If I may just get an instruction very quickly, Deputy President.

PN120

THE DEPUTY PRESIDENT: Sure.

PN121

MR DOYLE: Deputy President, given the split between the numbers between the two agreements, I am instructed to request that if it comes to pass that this particular issue is determinative of the tribunal's decision on this matter I ask that CSL be given the opportunity to furnish their list of employees covered by each of the current stores and current general agreements to then test that list with the number of members of NUW. I imagine that could be done very quickly, Deputy President. Perhaps tomorrow my instructors tell me, Deputy President. I am hopeful though, Deputy President, that the other matters that we intend to put will mean that this issue is not determinative of the application.

PN122

THE DEPUTY PRESIDENT: Yes, all right.

PN123

MR DOYLE: Thank you, Deputy President.

PN124

MS BARRETT: I'm not done. Do you have more - is that the extent of - - - ?

PN125

MR DOYLE: That's the crux of the position that CSL intends to put, Deputy President. At the appropriate time I will take you through those provisions and explain the position in further detail.

PN126

MS BARRETT: Perhaps it will be helpful now if I outline the evidence that Ms Hilt was going to give today to see if there is any objection in relation to that. Firstly, that she has been genuinely trying to reach an agreement with CSL, yes. That the notice of industrial action that I specified earlier was, indeed, taken by the CSL employees.

PN127

MR DOYLE: There is only one area of disagreement in relation to that, Deputy President, and that is for the stores agreement. The communication - the ban on communication devices has not be taken in relation - - -

PN128

THE DEPUTY PRESIDENT: Is that the 607 or 608 ballot?

PN129

MR DOYLE: That is BR568533 which is - - -

PN130

MS BARRETT: The 608.

PN131

THE DEPUTY PRESIDENT: The 608?

PN132

MR DOYLE: The 607 on my - - -

PN133

THE DEPUTY PRESIDENT: The 607.

PN134

MR DOYLE: Is the general agreement.

PN135

MS BARRETT: So you're talking about the stores or general?

PN136

MR DOYLE: The general agreement.

PN137

THE DEPUTY PRESIDENT: So which form of industrial action has not been taken? Well, look, let us go through them again. Let's just go through them again so we are clear. In relation to the 607 ballot results, Ms Barrett, you say the industrial action contemplated by question 1 has or has not been taken?

PN138

MS BARRETT: 608.

PN139

THE DEPUTY PRESIDENT: 607 I'm on. So the one hour duration strike or stoppage of work.

PN140

MS HILT: No, it's the - - -

PN141

THE DEPUTY PRESIDENT: Yes, Ms Hilt?

PN142

MS BARRETT: That's 608.

PN143

MR DOYLE: Deputy President, if I might assist, I can very quickly read through the types of action that CSL says have been taken.

PN144

THE DEPUTY PRESIDENT: In relation to 607?

PN145

MR DOYLE: In relation to 607, which is the general agreement.

PN146

THE DEPUTY PRESIDENT: Yes, all right.

PN147

MR DOYLE: Those types at question 2.

PN148

THE DEPUTY PRESIDENT: So you say question 2. Presumably that's agreed. Yes.

PN149

MR DOYLE: Question 5.

PN150

THE DEPUTY PRESIDENT: Question 5, yes.

PN151

MR DOYLE: That is all.

PN152

THE DEPUTY PRESIDENT: Does that correspond with your understanding, Ms Barrett?

PN153

MS BARRETT: This is 607.

PN154

THE DEPUTY PRESIDENT: 607.

PN155

MS BARRETT: It doesn't - - -

PN156

MS HILT: Can I answer that?

PN157

THE DEPUTY PRESIDENT: Yes, Ms Hilt.

PN158

MS HILT: Is that going to be expedient? My understanding is that that ban was taken by members interstate, not in Victoria.

PN159

MS BARRETT: But we can just refer to the notice that was - - -

PN160

MS HILT: Yes.

PN161

MS BARRETT: So that was the notice given on 6 August for Mansfield. With Queensland the ban on the use of work related communication devices between 11.00 am and 2.00 pm to occur daily commencing at 11.00 am on Wednesday 12 August.

PN162

THE DEPUTY PRESIDENT: Which question does that fall within?

PN163

MS BARRETT: That would fall within question - the work related communication - question 8.

PN164

MS HILT: And it is in both (indistinct).

PN165

MR DOYLE: Deputy President, that is the area of the dispute. My instructions are that that particular ban relates to the stores agreement only. Deputy President, this particular issue isn't of any great relevance to the arguments that CSL intends to put today.

PN166

THE DEPUTY PRESIDENT: But what is agreed is that no industrial action of the kind contemplated by questions 1, 3, 6 and 9 have been taken within the 30 day period.

PN167

MS HILT: Which ballot?

PN168

THE DEPUTY PRESIDENT: In 607.

PN169

MR DOYLE: And 4, Deputy President.

PN170

THE DEPUTY PRESIDENT: And there is some dispute - sorry, I apologise. One, 3, 4, 6, 7 and 9, that's agreed no industrial action has been taken of that kind. It's also agreed that industrial action of the kind contemplated by 2 and 5 in relation to 607 has been taken and there is a dispute about whether industrial action of the kind contemplated by 8 has been taken. Yes, that's in relation to 607.

PN171

MR DOYLE: That's correct, Deputy President.

PN172

THE DEPUTY PRESIDENT: All right. In relation to 608 - - -

PN173

MS BARRETT: We say, Deputy President, that industrial action has been taken in the form of a ban on overtime. So question 5. A stoppage of work of 24 hours duration.

PN174

THE DEPUTY PRESIDENT: Three.

PN175

MS BARRETT: So question 3. A stoppage of work of four hours duration for question 2, a stoppage of work of one hour duration, so question 1 and a ban on the use of work related communication devices, so question 10.

PN176

MR DOYLE: That's agreed, Deputy President.

PN177

THE DEPUTY PRESIDENT: And consequently it is also agreed that industrial action of the kind contemplated by questions 4, 6, 7, 8 and 9 have not been taken. All right.

PN178

MS BARRETT: And we also would be putting, establishing by Ms Hilt's evidence, that industrial action was ongoing in the form of the overtime bans.

PN179

THE DEPUTY PRESIDENT: In relation to which ballot?

PN180

MS BARRETT: Both ballots, Deputy President.

PN181

THE DEPUTY PRESIDENT: So the overtime ban being question 5 in each case?

PN182

MS BARRETT: Yes.

PN183

MR DOYLE: That's agreed, Deputy President.

PN184

THE DEPUTY PRESIDENT: Yes.

PN185

MS BARRETT: And we would also be establishing that Ms Hilt has had discussions with members at CSL since the bioCSL agreement was voted up last week in which they endorsed taking further industrial action.

PN186

THE DEPUTY PRESIDENT: I'm not sure that's something that Mr Doyle can agree to, not having been there, but there's a question whether or not they would put it in issue.

PN187

MR DOYLE: We do not know, Deputy President, but don't take issue.

PN188

MS BARRETT: And finally, the impact of the application if it wasn't granted today would be significant given that the NUW are still bargaining in relation to the majority of members and being able to take the right - having the right to take all the forms of industrial action would be necessary to bring negotiations to a conclusion.

PN189

THE DEPUTY PRESIDENT: That's really a submission rather than evidence, is it not?

PN190

MS BARRETT: Yes.

PN191

THE DEPUTY PRESIDENT: All right. What's next?

PN192

MR DOYLE: Thank you, Deputy President. CSL submits that it is agreed that the scope of the proposed enterprise agreements has been in dispute. The scope of the NUW's agreements that went to ballot is different to the scope of the agreements that have now gone to vote. It is also agreed that the bioCSL agreement that has now been made covers at least some of the NUW members that voted in the ballots and as a result, some of the employees that are now covered by the NUW's proposed agreements are unable to engage in any further protected industrial action in relation to the bioCSL agreement.

PN193

Now, there are a number of authorities which I will take you to and in the interests of time, Deputy President, I will hand those up in a bundle. There are four of those.

PN194

THE DEPUTY PRESIDENT: You say they can't take industrial action now or they can't take industrial action when the agreement is approved and commences operating?

PN195

MR DOYLE: CSL submits that those employees covered by the bioCSL enterprise agreement which has been made can now not take - as of 13 August not take protected industrial action in support of claims in relation to that proposed agreement. Now, the reason that CSL makes that submission, Deputy President. It might be most efficient if I take you first to the decision of CFMEU v Carter Holt Harvey Wood Products Australia Pty Ltd [2011] FWAFB 2163 which is an ex tempore decision that deals with a very similar scenario whereby industrial action was sought to be taken in respect of an agreement that had been made. It had been put to vote. The reason the Full Bench comes to the conclusion that protected industrial action can't be taken at that point in time, Deputy President, you will see at the very bottom of that decision. It's all in one paragraph, unfortunately, Deputy President, but the bottom of page 2 says that:

PN196

We also accept that it is in the public interest that we grant permission to appeal given this is apparently the first time the issue of whether protected industrial action can be taken between the time of making an enterprise agreement and the approval of the enterprise agreement has been dealt with by a Full Bench. However, we dismiss the appeal. In our view, Division 2 of Part 3-3 of the Fair Work Act makes clear that protected industrial action is only available in respect of a proposed enterprise agreement covering the relevant employees and is not available once an enterprise agreement covering the employees has been indisputably made.

PN197

Now, Deputy President, to that point, I take the tribunal to section 182 of the Fair Work Act which identifies when an enterprise agreement is made. Subsection (1) says:

PN198

If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

PN199

Now, it doesn't seem to be contested today that a majority of employees covered by the bioCSL agreement cast a valid vote to approve the agreement. It may be that there are other grounds by which the NUW challenges that the agreement should not ultimately be approved, but in CSL's submission, Deputy President, there is no challenge to the circumstances set out in 182(1) having been met.

PN200

The implications of that are that the moment the agreement is made - in the bioCSL agreement case, 13 August 2015 - it ceases to become a proposed enterprise agreement. It is no longer a proposed enterprise agreement. It becomes a fully-fledged enterprise agreement and that is apparent from sections of the Act that, chronologically speaking, come after section 182, but come after the time at which employees vote on the agreement. To give an example, Deputy President, I refer to the obligation on a bargaining representative to apply to the Fair Work Commission for approval of the enterprise agreement under section 185 and you will see, Deputy President that in that section, it being chronologically at a time after the vote has taken place, there is no reference in that section to the word "proposal". It refers to the document for which approval is being sought at the Fair Work Commission. It refers to that document by way of the term "enterprise agreement". There are other examples that make that point, Deputy President, but there is no reference - beyond the point of the vote there is no reference in the Act to the enterprise agreement being proposed anymore because it is not. It is an enterprise agreement.

PN201

Now, the reason I labour that point, Deputy President, is because once it becomes an enterprise agreement it also covers the employees that it is expressed to cover. If I can take the tribunal to section 53 of the Fair Work Act, section 53(1) says:

PN202

An enterprise agreement covers an employee or employer if the agreement is expressed to cover, however described, the employee or the employer.

PN203

Now, of note, Deputy President, there is nothing in there that ties coverage to operation meaning that CSL concedes that at this point in time the agreement is yet to operate and that is because, if you look at section 54, Deputy President, the enterprise agreement has not yet been approved by the Fair Work Commission, but regardless of - - -

PN204

THE DEPUTY PRESIDENT: How do I reconcile that submission with section 417? That is, a person referred to in subsection (2) which is somebody that's covered by an agreement must not organise or engage in industrial action from the day on which an enterprise agreement is approved by the Commission until its nominal expiry date.

PN205

MR DOYLE: That's right, Deputy President, there is no need to reconcile. It's just the case that section 417 imposes an additional hurdle, and an additional threshold and CSL concedes that we do not have the protection of section 417 at this point. That's because, for whatever reason, the legislature has found it necessary, in order to impose that additional hurdle that Fair Work have approved the enterprise agreement prior to the protections being available under section 417 of the Act.

PN206

So in the event that industrial action is taken, in the event that that industrial action is not protected, CSL would not yet have the option of going to the court, pursuant to section 417 but, Deputy President, CSL submits that that has no real bearing on the argument that it is putting in relation to section 53, and that it that once an enterprise agreement is made it covers, because the only precondition on an enterprise agreement covering an employee is that set out in section 53, subsection (1) and there is no - there could quite easily have been, Deputy President, an additional requirement there that tied coverage to operation.

PN207

THE DEPUTY PRESIDENT: What happens in circumstances where an agreement is made and it covers particular employees and then neither bargaining representative makes an application for the agreement to be approved? At what point in time is a bargaining representative or an employee entitled to take industrial action? You see, on your scenario, never.

PN208

MR DOYLE: Well, they would never be entitled to take protected industrial action in relation to claims being advanced in respect of that agreement.

PN209

THE DEPUTY PRESIDENT: Even though no application has been made to seek its approval?

PN210

MR DOYLE: That's correct, Deputy President.

PN211

THE DEPUTY PRESIDENT: It kind of seems more a sure-fire way of ensuring no protected industrial action in having the agreement approved.

PN212

MR DOYLE: That is perhaps why, Deputy President, there is the obligation to apply within 14 days.

PN213

THE DEPUTY PRESIDENT: Yes, but there's no consequence. What's the consequence of no application being made? The agreement can't be approved without an application.

PN214

MR DOYLE: Although Deputy President - - -

PN215

THE DEPUTY PRESIDENT: The consequence of an agreement not being - an application not being made within 14 days in the case of a greenfield agreement is that it can never be made, in the case of a non-greenfield agreement, there's provision for an extension of time, but if an extension of time is not granted, the agreement can never be approved, but it is nonetheless been made.

PN216

MR DOYLE: In the scenario, Deputy President, it does put the parties in an interesting dilemma. It may be that if the employer was faced with - - -

PN217

THE DEPUTY PRESIDENT: Do you know whether the decision in Carter Holt Harvey has been considered by any of the Full Bench or referred to?

PN218

MR DOYLE: Not that we have been able to find, Deputy President. As far as we are aware, we are not aware of this issue being expressly considered beyond that case. So to take that proposition further Deputy President, if we accept that section 53 has the effect that the bioCSL enterprise agreement covers the employees that are expressed to be covered by that agreement, then section 438 assumes some relevance. I take the tribunal to that section.

PN219

THE DEPUTY PRESIDENT: Sorry, section?

PN220

MR DOYLE: Section 438 subsection (1). That section reads:

PN221

If one or more enterprise agreements cover the employees who will be covered by the proposed enterprise agreement, an application for a protected action ballot order must not be made earlier than 30 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date -

PN222

THE DEPUTY PRESIDENT: The employees that are at issue will still be covered by the agreement that's proposed by the NUW which is the subject of the protected action ballot. It's a different question altogether whether they apply to them, but the employees will still be covered by that proposed agreement.

PN223

MR DOYLE: That's correct, Deputy President, and if the end - it's not - perhaps my learned friend might clarify what their current - what the NUW's current proposal is on scope, but if we assume that it's consistent with those proposed agreements that went to ballot, then it is apparent on the agreed facts that at least some employees are covered by those proposed enterprise agreements by the NUW that are also covered by the enterprise agreement that's been made in relation to bioCSL

PN224

THE DEPUTY PRESIDENT: Yes.

PN225

MR DOYLE: Now, the effect of that is that - - -

PN226

THE DEPUTY PRESIDENT: The effect of it is that the earlier in time an agreement will operate in relation to those employees and the later time agreement - if you follow the logic through and it's ultimately made, it's assumed CSL nonetheless agreed to make an agreement in the terms sought by the NUW - the later agreement would have no operation in relation to the - or the later agreements in the relation to the 24 employees.

PN227

MR DOYLE: Assuming that they will get through the approval hurdles, that's correct, Deputy President. But for the relevance of this application, if the NUW were to today make that same ballot application again in respect of the same proposed agreement, the same group of employees, the Fair Work Commission could not make the ballot order. That's because, looking at section 438(1) - that's because some of the employees who would be covered by the proposed enterprise agreement are currently covered by an enterprise agreement that has not reached its nominal expiry date.

PN228

THE DEPUTY PRESIDENT: Well, because it's not an enterprise agreement that's been approved. You say, "You should read that as an enterprise agreement that has been made and not reached its nominal expiry date."

PN229

MR DOYLE: There's no need to read those words in, Deputy President, on CSL's submission. CSL submits that we read - the words that are there only refer to the words "enterprise agreement". "If one or more enterprise agreements cover" - there's no reference to operation, being in operation of having been approved by the Fair Work Commission - words that are used elsewhere in the legislation, such as section 417 as, Deputy President, you've pointed out.

PN230

It doesn't refer to those words. The only preconditions are that it is an enterprise agreement that covers, and in light of the sections that I've taken the tribunal to, CSL's submission is the bioCSL Enterprise Agreement 2015 is and enterprise agreement - it was immediately on conclusion of the ballot on 13 August 2015 - it became an enterprise agreement and it covered those employees.

PN231

As a result, had an application been made today for a fresh ballot, the NUW had two options, or would have two options. One is to change its proposed enterprise agreement to exclude those employees. Now, that may raise other issues in relation to the merit of their application, such as generally trying to reach agreement, but they're matters for another day. If the NUW did not change its proposed enterprise agreement, CSL submits that section 438 would be an impediment to that order being made, even though that enterprise agreement is yet to be approved by the Fair Work Commission.

PN232

Now, whether that take us, Deputy President? CSL submits that those are very weighty considerations that play into the exercise of the discretion to extend the 30-day period. We have heard that there are, at least on the NUW's view of their membership role and how that relates to CSL's coverage in enterprise agreements. We've seen that there are 24 employees that would no longer be able to vote in a ballot were it to take place today, even leaving to one side the arguments that I've put about capacity for a ballot to actually take place.

PN233

But if we were to exclude those 24 people, Deputy President, and more particularly if we were to exclude the 18 people from the ballot designated to be 2015/608; that is, the Stores ballot, we would be let with, on my maths, 12 employees on the roll, and because none of us can know who voted and what the outcome of the votes were, on the construction most favourable to CSL, the declaration envelopes returned could be as low as two.

PN234

If you assume that the 18 that we are pulling out of the roll of voters were those that did, in fact, vote. Where that leads us, Deputy President, is the position where the minimum voting threshold of 50 per cent has not been met.

PN235

Now, on the NUW's figures, CSL does concede that you don't quite get to that same outcome in relation to the other ballot, to the other declaration that results in relation to the general agreement, because of 65 from the roll of voters, you would only be subtracting six, leaving us with 51.

PN236

So the numbers could potentially still stack up there, Deputy President, but CSL submits that's not fatal to CSL's case. That's because the discretionary factors as they apply in relation to section 438 are still very real and very live. There has been a significant change in the bargaining framework and the bargaining environment and an enterprise agreement is being made that covers a proportion, a significant proportion of the employees that were in the broader mix covered by these various proposed enterprise agreements.

PN237

That of itself, in CSL's submission is another factor that leans towards refusal of the application to extend the ballot period. Rather, the appropriate - given the changes in the bargaining dynamic, and given the changes in the capacity for employees to potentially take protected industrial action, and given the changes in the capacity for the NUW to obtain even ballot orders at this stage, it is more appropriate that the NUW lodged a fresh ballot application in order to test a number of things.

PN238

The first test: who would actually be covered by the proposed enterprise agreement that the NUW chooses to advance? It might be different from the one that it is advancing now; we don't know, but also to test whether the views of the employees have changed. Now, there's no evidence before the tribunal that they have.

PN239

Equally, there's no evidence before the tribunal that they haven't. That's to be seen in the context of what's been a very significant event in the context of broader bargaining, with the bioCSL enterprise agreement having been made.

PN240

Now, just to close, Deputy President, there are a few additional authorities I'd like to take the Tribunal to, to make good - - -

PN241

THE DEPUTY PRESIDENT: Before you do, look, I understand the point you make about an application not being available in respect of persons who are covered by an agreement.

PN242

MR DOYLE: Yes.

PN243

THE DEPUTY PRESIDENT: I just want to go back to this industrial action point. Putting aside for a moment section 417, the division 2 of part 3(3) of the Act sets out the meaning of what is protected industrial action for a proposed enterprise agreement. Relevantly, its section 409, employee claim action, talks about employee claim action being particular things organised for the purpose et cetera, "meets the common requirements of subdivision B and meets the additional requirements set out in this section which are the protected action ballot et cetera."

PN244

When I go to the requirements - the common requirements in subdivision B, which is in section 413, the common requirements amongst other things, "genuinely trying to reach agreement, notice requirement, compliance with order," and then subsection (6), "The person organising or engaging in the industrial action must not contravene section 417", which is industrial action before the nominal expiry date of an agreement, and that is confined to agreements that are approved by the Commission. There is nothing in those divisions which says that industrial action - a common requirement of the industrial action is that it not be organised by person covered by an enterprise agreement as such.

PN245

MR DOYLE: That's correct, Deputy President. That's a concession that CSL makes. CSL is not saying that an employee - any CSL employee is unable to engage in protected industrial action, full stop.

PN246

THE DEPUTY PRESIDENT: No, I understand that, but there's nothing in those sections which would deprive the 24 employees of a right to take protected industrial action.

PN247

MR DOYLE: No, but what could potentially deprive, and I say "potentially", because it depends on the facts and that to an extent has not been an issue for today, but it all turns on section 409(1), Deputy President, and that is employee claim action is for a proposed enterprise agreement.

PN248

So that's one proposition that I put, Deputy President, that depending on what the claims being advanced are and what the proposed enterprise agreement is, whether it's different to the one that's been made. All of these things - - -

PN249

THE DEPUTY PRESIDENT: But is that - I understand that you put it on a discretionary basis, but it's not advance of me extending the period, it might be advance of the employees participating in industrial action.

PN250

MR DOYLE: That's correct, Deputy President, and the reality of all of this is that there is no bar to the Fair Work Commission extending the 30-day period.

PN251

THE DEPUTY PRESIDENT: Well, I certainly think there - a relevant and significant consideration is that if there were serious doubt about whether or not the industrial action continues to be supported by a majority, that would be powerful discretionary considerations for not extending it.

PN252

MR DOYLE: When I say "no bar", Deputy President - - -

PN253

THE DEPUTY PRESIDENT: No, I understand there are statutory preconditions but ultimately it's discretionary consideration but it seems to me my discretion would miscarry if I ignored the real prospect that a majority of employees may not any longer support the taking of protected industrial action.

PN254

MR DOYLE: That's one issue, Deputy President, but equally the participation thresholds may - would not otherwise have been met, potentially, if the ballots were undertaken today. That's another very significant issue, at least in respect of one of the two protected action ballots.

PN255

THE DEPUTY PRESIDENT: Yes.

PN256

MR DOYLE: 24 is quite a number, Deputy President. It's not the majority, but it's a significant number.

PN257

THE DEPUTY PRESIDENT: Relevantly, the pool of voters in relation to the 608 is 12. Now, if - - -

PN258

MR DOYLE: Yes, that's right, and if we took the position that each of those - the 18 that fall out of the pool - were those that otherwise voted and exercised their right, then we fall below the participation threshold.

PN259

THE DEPUTY PRESIDENT: I mean, the point is we don't know.

PN260

MR DOYLE: That's right, and we could never know.

PN261

THE DEPUTY PRESIDENT: I understand that point. Well, we could know, we could call them all and ask them how they voted.

PN262

MR DOYLE: That's right, Deputy President. That's true. Now, just to address the point, Deputy President, my learned friend might say, "Well, if this circumstances that section 438 would other prohibit the same application and order being made today, well, why not have that as a precondition to the making of the order extending the 30-day period, and I think the answer to that is quite simple, Deputy President. I mean this is a rather unique set of circumstances. We have various different enterprise agreements proposed by different parties and only one of more than one has been made.

PN263

So on CSL's submission that doesn't represent a barrier to that being taken into account as part of the tribunal's broader discretion. As far as the discretion goes, Deputy President, there are just three authorities I'd like to take the tribunal to. The first in your bundle should be United Collieries Pty Ltd v CFMEU [2006] FCA 904 is the citation I have in front of me.

PN264

THE DEPUTY PRESIDENT: Yes.

PN265

MR DOYLE: The relevant passage there, Deputy President, is at paragraph 21, the last two sentences, and I will read that:

PN266

In my opinion, the purpose of the provision is to insure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.

PN267

Now, that passage, Deputy President, refers to the equivalent 30-day period under the old workplace relations act. I'll come back to the point I make about that in a moment. I'll first take the tribunal to EnergyAustralia Yallourn Pty Ltd v CFMEU [2014] FCAFC 8. The relevant passage of that, Deputy President, is at paragraphs 15 and 16. I'll read a portion of that, commencing at paragraph 15:

PN268

Consistently with the purpose of section 459(1) made apparent by its first three requirements, the fourth requirement also addresses the same purpose, namely to prescribe the requisite nature and quality of the authorisation given by employees. What the fourth requirement seeks to do is to insure that the authorisation which has been given by employees for taking a particular industrial action remains current, in the sense that it continues to reflect the will of the majority of employees.

PN269

I'll skip the next sentence, Commissioner, and move on:

PN270

By that means, a temporal limitation is placed on the authorisation given by employees through the ballot, so as to address the possibility of the will of the majority of employees to take particular industrial action may have evaporated prior to that industrial action taking place. Once that purpose is recognised the object of the function given to the Commission to extend the period of the temporal limitation becomes apparent. As the full bench correctly observed in paragraphs 20 to 21, many cases will be plain that majority of employees support the taking of particular industrial action has continued beyond the 30-day period. In those circumstances the Commission's discretion to extend the initial period by up to a further 30 days would sensibly be utilised to avoid the cost, delay and inconvenience involved in assessing the will of the majority through a fresh application for a new protected action ballot.

PN271

I'll stop there, Deputy President. Now, the real key to be taken out of that passage is that this is not one of those cases where it is plain that the majority employee support for taking a particular industrial action still exits. CSL concedes there is no direct evidence one way or the other on that point. It's the NUW's application. It was open for the NUW to lead evidence to that effect. Rather what we do have evidence of is a very significant intervening event, the making of an enterprise agreement that covers a significant number of the employees that are the subject of this application, which directly goes to the purpose of that initial 30-day period and where the additional 30-day period may warrant being afforded.

PN272

The final authority that I'll take you to, Deputy President, should be the last one in your bundle and that is Australasian Meat Industry Employees' Union [2015] FWC 2712.

PN273

THE DEPUTY PRESIDENT: Just bear with me.

PN274

MR DOYLE: Now, the benefit of this decision is that it summarises a range of authorities at paragraph 11 and it says - - -

PN275

THE DEPUTY PRESIDENT: Sorry, I'm trying to locate it. How many cases did you hand up to me?

PN276

MR DOYLE: There should be four, Deputy President.

PN277

THE DEPUTY PRESIDENT: I only received three.

PN278

MR DOYLE: Apologies.

PN279

THE DEPUTY PRESIDENT: That's all right.

PN280

MR DOYLE: I'll find a copy just now.

PN281

THE DEPUTY PRESIDENT: Sorry, let me start again. Ms Barrett, before proceedings started you handed to my associate a bundle of four decisions? Sorry? Commissioner Lewin's decision in TWU - - -

PN282

MS BARRETT: Yes.

PN283

THE DEPUTY PRESIDENT: - - a full bench decision in Maritime Offices - - -

PN284

MS BARRETT: Yes.

PN285

THE DEPUTY PRESIDENT: - - the EnergyAustralia full bench decision; did you also hand me up Symbion?

PN286

MS BARRETT: Yes.

PN287

THE DEPUTY PRESIDENT: Okay, they're the four. I do have four decisions handed up but the other I have from you, Mr Doyle - Carter Holt Harvey, United Collieries, a decision of Justice Giles in the full court decision in EnergyAustralia and there was also in the bundle a decision of Deputy President Asbury?

PN288

MR DOYLE: Yes, Deputy President, that's right.

PN289

THE DEPUTY PRESIDENT: And to which decision were you taking me then?

PN290

MR DOYLE: I have a copy here, Deputy President, if I can hand that to you. It's a decision of Australian Meat Industry Employees' Union.

PN291

THE DEPUTY PRESIDENT: Yes, the one you handed me was CFMEU, Deputy President Asbury decision.

PN292

MR DOYLE: Apologies; I did not intend to hand that up.

PN293

THE DEPUTY PRESIDENT: Okay, I'll give that back. All right. I'm with you now.

PN294

MR DOYLE: Thank you, Deputy President, apologies.

PN295

THE DEPUTY PRESIDENT: That's all right.

PN296

MR DOYLE: I take the tribunal to paragraph 11 of that decision, which reads:

PN297

It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and extension is consistent with the objects of the Act as specified in section 436. Discretion is wide and is unconditioned by statutory direction. Parliament has provided for a one-off extension without the need for a further ballot and cogent reasons are required to refuse an application for an extension such as a change in disposition or composition of employees.

PN298

Now, Deputy President, CSL concedes the threshold here is very high. We accept that. But in CSL's submission this is the very type of case in which it is appropriate that the tribunal not exercise its discretion to extend the period because (1) we have a change in composition; we have a change in the composition of employees that would otherwise be entitled to vote in a ballot, were it to take place today or beyond today.

PN299

We also have evidence of a very significant change in the bargaining dynamic and environment, in that one of the enterprise agreements has been made. Whilst we don't seek to draw any inferences as to the impact that might have on employees' disposition to industrial action, it is at least a very real prospect that it might have an effect, bearing in mind that we accept there is no evidence going either way before the tribunal. So in light of that, Deputy President, CSL submits that it is in these circumstances it's appropriate the tribunal not exercise its discretion to extend the 30-day period for the reasons I've outlined and in fact, absent evidence might broaden the example that, Deputy President, you gave earlier.

PN300

Absent evidence from all employees that they had changed their mind and didn't want to take industrial action anymore, it's hard to envisage a scenario that is better-suited to exercising or not exercising the discretion to extend the 30-day period. There are two other matters before I finish up, Deputy President, that I'd draw the tribunal's attention to. The first is the date in relation to the expiration of the initial 30-day period. CSL submits that that 30-day period - the last day of that 30-day period is in fact 15 August, not the 18^th, given that the first day is the declaration of results, being 17 July. That does mean that the period can only be extended - - -

PN301

THE DEPUTY PRESIDENT: What does the statute say; that the initial action has to be taken within 30 days of the declaration?

PN302

MR DOYLE: It says, Deputy President: 459(3) - sorry, 459(1)(d)(i), that the action commences during the 30-day period, starting on the date of the declaration of results of the ballot.

PN303

THE DEPUTY PRESIDENT: You count the date?

PN304

MR DOYLE: Yes.

PN305

THE DEPUTY PRESIDENT: Okay, so 30 days ends on the 15^th. You say the Act's interpretation of that, if there is anything to say about when an Act for doing something falls on a non-working day, et cetera, that the - - -

PN306

MR DOYLE: I don't have that provision in front of me, Deputy President, but I would submit - - -

PN307

THE DEPUTY PRESIDENT: I don't have it in front of me either and it's actually not the provision which - it's not the provision that's currently in the Act which is relevant: it's the provision that was in force as at - what does section 40A say?

PN308

MR DOYLE: 25 June 2009.

PN309

THE DEPUTY PRESIDENT: Yes. Anyway, I'll just leave that with you for - - -

PN310

MR DOYLE: That would be subject to any contrary intentions expressed by the legislation, Deputy President, and I would say that the words here at quite clear: the 30-day period expressly states it starts on the day of the declaration and it's a 30-day period, meaning that if that period ends on a weekend, then so be it. Industrial action can be taken on a weekend. The context would suggest that 30 days are 30 days, which on our maths means that the period can only be extended to as much as 14 September.

PN311

THE DEPUTY PRESIDENT: Yes, I understand.

PN312

MR DOYLE: The final point I make, Deputy President, is just to address the issue that my learned friend raised about the notice of employee representational rights. CSL is not aware of the basis for the concern raised by my learned friend. It would certainly assist if we were made aware of the detail of that but in any event, based on the words of section 182, when an agreement is made and therefore when it covers, we would submit that that is an issue for another day. Thank you, Deputy President.

PN313

THE DEPUTY PRESIDENT: You say the period can't be extended beyond 14 September, did you say?

PN314

MR DOYLE: Yes, that's right, Deputy President.

PN315

THE DEPUTY PRESIDENT: If it ended on 15 September and it includes that day, then the first day of extension would be 16 September. Seven days after that would be the 22^nd, if you count the 16^th, which you should - 22 August - then 14 days is 29 August - sorry, it's my Calculite. 21 is the 5^th, 28, 29, 30; yes, I agree with that; 14 September, on that analysis, putting aside any work that the Acts Interpretation Act might have. But all right, I understand.

PN316

MR DOYLE: Thank you, Deputy President.

PN317

THE DEPUTY PRESIDENT: Yes, Ms Barrett.

PN318

MS BARRETT: Thank you, Deputy President.

PN319

THE DEPUTY PRESIDENT: So I take it from that, Mr Doyle, you don't propose to call Mr Fridell, because there are no particular factual matters?

PN320

MR DOYLE: Perhaps if I ask whether Ms Barrett has any objections to the factual matters that I've put as part of my submissions, subject to that clarification we have no - - -

PN321

THE DEPUTY PRESIDENT: Well, she's already flagged one and that is that the agreement was approved on the day but that's a legal argument, ultimately.

PN322

MR DOYLE: That - - -

PN323

THE DEPUTY PRESIDENT: As a matter of fact there was a ballot - putting aside the validity of it - but there was a ballot and as a matter of fact the majority of employees who participated in the ballot approved the agreement on that day.

PN324

MR DOYLE: That's right and aside from the issue of the notice of representational rights, Deputy President, there is no need to call him.

PN325

THE DEPUTY PRESIDENT: Right, yes.

PN326

MS BARRETT: Thank you, Deputy President.

PN327

THE DEPUTY PRESIDENT: But even if were minded to follow that which seems to be the conclusion of the full bench in Carter Holt Harvey there's this notion of an enterprise agreement covering the employees that has been indisputably made, whatever that may have been. It seems to suggest that if there is some dispute about whether it was made the industrial action can continue, which doesn't seem to me to be a terribly - with all due respect to them - sensible approach. But in any event, there seems to be some dispute about that.

PN328

MR DOYLE: At the very least, Deputy President, I'd put them until there was a finding to that effect it would have to be taken that it has been made.

PN329

THE DEPUTY PRESIDENT: Yes, all right.

PN330

MS BARRETT: Thank you, Deputy President. If I could take the Commission to sections 53 and 54 of the Act, 54 specifies when an agreement is in operation:

PN331

An enterprise agreement approved by the Fair Work Commission operates from seven days after the agreement is approved. If a later is specified in the agreement, that later day.

PN332

The clear intention of the Act is that only once an agreement commences operation is it an enterprise agreement that has a nominal expiry date for which industrial action cannot be taken before. If I can take you to section 53(4) of the Fair Work Act it says:

PN333

Despite subsections (1), (2) and (3) an enterprise agreement that has ceased to operate does not cover an employee, employer or employee organisation.

PN334

So it's clearly implied that the reverse is also true; until it commences operation then it does not cover anyone in accordance with section 53. I also note that the conclusion of Mr Doyle's argument he would be that if an agreement ultimately isn't approved, that would still mean that employees could not take industrial action because if the significant act isn't being made, then where does that leave the employee if the agreement ultimately isn't approved? It was still made in the sense that employees voted for it, it just didn't meet the requirements of the Act and so that is clearly not consistent with the scheme put forward by the Act.

PN335

THE DEPUTY PRESIDENT: Mr Doyle's proposition isn't unheard of in the sense that if one considers the scheme that operated under the workplace relations act industrial action could only be taken during a bargaining period and the bargaining period ended when an agreement was made, so that from that point industrial action couldn't be taken even though the agreement hadn't been certified.

PN336

MS BARRETT: Well, I would suggest firstly that this scheme is different and in any event, the - - -

PN337

THE DEPUTY PRESIDENT: All I'm saying is that Mr Doyle's proposition seems to be the same as the notion of industrial action not being available other than during that bargaining period, the bargaining period ending and an agreement was made.

PN338

MS BARRETT: But if you refer to section 413(6), 417(1) and 438(1), they all refer to the concept of a nominal expiry date, so that's the scheme put forward by this act, in our submission.

PN339

THE DEPUTY PRESIDENT: Well, they're two propositions: (1), that the agreement is in operation and (2) the nominal expiry date. If it was only the nominal expiry date then that makes good Mr Doyle's point because I'm sure that agreement has a nominal expiry date in it.

PN340

MS BARRETT: We would say that the nominal expiry date only commences operation once the agreement is made, otherwise employees could be forever - - -

PN341

THE DEPUTY PRESIDENT: I can tell you that I've approved an agreement knowing that when it was approved the nominal expiry date had passed, because there is nothing in the scheme of the Act which, I think, prevents me from doing that.

PN342

MS BARRETT: No, all that's required is that there is a nominal expiry date. But there still needs - the expiry date is only relevant once the agreement is approved, otherwise you have an agreement that is voted up that may be fatally flawed, that contains a nominal expiry date and on Mr Doyle's submission that agreement - say for example in this case the CSL agreement, that's a three-year agreement.

PN343

THE DEPUTY PRESIDENT: Or is not capable of being approved, for example.

PN344

MS BARRETT: Yes, if it's not capable of being - - -

PN345

THE DEPUTY PRESIDENT: On any measure doesn't pass the no-disadvantage test or wouldn't pass the no-disadvantage test - on any measure wouldn't pass the no-disadvantage test, for example.

PN346

MS BARRETT: Yes, and the effect of this would be that for the next three years - - -

PN347

THE DEPUTY PRESIDENT: Yes, look, I understand the point you're making.

PN348

MS BARRETT: Thank you.

PN349

THE DEPUTY PRESIDENT: But Mr Doyle's real point is that - or his additional point - is that the character of the electorate has substantially changed since the orders were made across both of them but certainly in respect of 608.

PN350

MS BARRETT: Well, in our submission, we say that the character of the electorate has not changed in relation to the 607. It quite clearly has not. There's very few employees who would be covered by the bioCSL agreement and in relation to 608, whilst there are more employees who would be covered by the bioCSL agreement, the uncontested evidence of that was put by Ms Hilt, was that they endorsed taking further protected action.

PN351

THE DEPUTY PRESIDENT: That might well be right but the issue is whether or not the declaration continues to an expression of that endorsement in circumstances where in the case of 608 there are more than half of the electorate would no longer be eligible to vote and on one view, if all of them did vote now, because they'd made an agreement or at least covered but it they would no longer support the taking of industrial action.

PN352

MS BARRETT: I guess in our submission, Deputy President, firstly 438 wouldn't preclude us making the same applications again because again, we say the enterprise agreement only covers employees once it's in operation, which is not in case. In any event - - -

PN353

THE DEPUTY PRESIDENT: That is not so. An agreement covers employees as it's expressed to cover. It might only apply to those employees when it's in operation.

PN354

MS BARRETT: Yes, but in terms of whether a majority - if in the event that the agreement cannot be approved because of issues with the notice of employee representational rights, not exercising your discretion to grant the order would have the effect that those employees who have indicated to Ms Hilt they want to take industrial action would not be able to exercise all forms of industrial action. It would be a different situation if the agreement had been approved but it has not and the NWU has indicated there's real issues with it.

PN355

In terms of the approval of the CSL agreement was - as I indicated earlier - it was only approved 341 to 277 so that does not demonstrate that employees do not want to take industrial action. The only evidence is to the contrary; is that they've been taking industrial action as recently as last week and that Ms Hilt - they endorsed taking further industrial action so there doesn't seem any basis to say that majority support no longer exists. In fact it's the contrary. So whilst the fact that an agreement has been made might go to whether other factors in terms of whether protected industrial action could be taken - for example whether it's genuinely trying to reach agreement - it does not in itself have any effect until the agreement commences operation; until it's approved by the Fair Work Commission.

PN356

Because the flip side of that, Deputy President, is that you could have an agreement that is never approved by the Fair Work Commission but employees would be precluded for however long is expressed in the nominal expiry date. It might even not be approved by the Fair Work Commission because the nominal expiry date is too long but it would still have the effect that because a nominal expiry date is expressed in there for a length period of time they cannot take industrial action. So the scheme of the Act quite clearly does not prohibit, just by section 438(1), employees being able to take industrial action whilst in the agreement - once an agreement has been approved. There may be other sections that might mean it's not protected but that in itself does not prevent it and so that means that you should exercise your discretion to extend it, given - - -

PN357

THE DEPUTY PRESIDENT: One of the questions I need to ask myself, Ms Barrett - at least according to the decision in Energy Australia, the Federal Court decision - is whether the will of the majority of employees for taking protected industrial action continued beyond 30 days. By necessary implication that means the will of the majority of the employees who were balloted not the will of the majority of employees who remain.

PN358

MS BARRETT: Yes, but the evidence was that from that employees - not just employees who are not covered by the bioCSL agreement - endorse taking further protected action. There has been no evidence to the contrary. It may be that there may be a section 418 application preventing them taking that action but that does not go to whether their disposition is towards taking that action. They want to be able to take further industrial action, especially in the event that this agreement is not approved.

PN359

So in our view it's irrelevant whether an agreement has been made. The employees have expressed a view. There is no evidence that they no longer have that view. In fact the evidence is to the contrary and so in that case the applications both should be made, and especially as we've noted in relation to at least one of the ballots a minimal amount of employees are now covered by the bioCSL agreement - covered in the loose sense, expressed to be - and in relation to the other agreement those employees have endorsed taking further protected action and there is no evidence that they do not want to take further protected action.

PN360

The results of the bioCSL agreement do not say that these particular employees do not want to take further industrial action. They just set up a massive pool of employees. There was 341 voted to approve it and 277 said no. So in our submission, given the prejudice that the NUW face, if further ballots were required - the last ballots were a postal ballot and I would anticipate that would again be the case, given the amount of sites that CSL is covered by. SO it's not - it would mean that rather than being able to take all forms of industrial action in order to bring negotiations to a quick end it would be the opposite.

PN361

THE DEPUTY PRESIDENT: But in relation to 608 didn't you say that there was a meeting of the relevant members who indicated to Ms Hilt that they supported ongoing industrial action?

PN362

MS BARRETT: Yes, and it wasn't - in fairness to Ms Hilt - it wasn't a meeting. It was a series - there was a meeting today but there was also conversations as well.

PN363

THE DEPUTY PRESIDENT: So in relation to the 608 people, are they located all over the country or in one particular place?

PN364

MS BARRETT: 608 - - -

PN365

THE DEPUTY PRESIDENT: It's late, Ms Hilt; stay seated.

PN366

MS HILT: By and large they're our production members in Broadmeadows but they are rotated shift workers.

PN367

THE DEPUTY PRESIDENT: Okay, but they're - - -

PN368

MS HILT: No.

PN369

THE DEPUTY PRESIDENT: In relation to the role of the 30 that were balloted last time, they're all in Broadmeadows, are they?

PN370

MS BARRETT: The stores or the - - -

PN371

MS HILT: The stores.

PN372

MR DOYLE: I'm sorry?

PN373

MS HILT: The ones who are left, the 12?

PN374

THE DEPUTY PRESIDENT: Yes.

PN375

MS HILT: Yes, they're all in Broadmeadows.

PN376

THE DEPUTY PRESIDENT: So the 12 that are left are all in Broadmeadows?

PN377

MS HILT: They're all in Broadmeadows in that store.

PN378

THE DEPUTY PRESIDENT: The 18 others are not in Broadmeadows?

PN379

MS HILT: They're partially in Parkville. There are some covered in Queensland.

PN380

THE DEPUTY PRESIDENT: Yes. But ultimately a further ballot in relation to the 12, they're all located in Broadmeadows; they just work shift work? Yes? For the record that's Ms Hilt nodding, "Yes."

PN381

MS HILT: Beg your pardon?

PN382

THE DEPUTY PRESIDENT: I was just recording your response on transcript.

PN383

MS HILT: Yes, yes.

PN384

MS BARRETT: I guess just following up on that point though we would say that it wouldn't just be the 12 that should be balloted. We would be seeking that all 30 be balloted because again an agreement hasn't been approved by the Fair Work Commission.

PN385

THE DEPUTY PRESIDENT: Yes, well, you'll be - obviously there will be an argument about whether - there will be the same argument about whether you can make an application in relation to those employees.

PN386

MS BARRETT: Yes, and then there would be - AEC potentially would take up to 20 working days to conduct the ballot so there would be unnecessary prejudice to the employees as a result of not exercising your discretion, in our submission.

PN387

THE DEPUTY PRESIDENT: What do you say is the problem with the notice of employee representational rights in relation to the bioCSL agreement?

PN388

MS BARRETT: Pardon?

PN389

THE DEPUTY PRESIDENT: In relation to the bioCSL agreement?

PN390

MS BARRETT: The notice of employee representational rights specify which employees were to be covered by the proposed agreement.

PN391

THE DEPUTY PRESIDENT: Yes.

PN392

MS BARRETT: It did not specify stores employees. That agreement was - that notice of employee representational rights was put out twice. The second time it was CSL's - it covered - it was proposed to cover workers that work in the bioCSL Pty Ltd business and are classified CSL levels one to six, met and SLS. So specifically left off the stores reference - the decision that I referred you to in relation to the - so a significant portion of employees, employees that we represent, were not notified that they were to be covered by the proposed enterprise agreement. In the full bench decision of AMOU - - -

PN393

THE DEPUTY PRESIDENT: Sorry, does that mean that they've not received a notice of employee representational rights?

PN394

MS BARRETT: No, they received the notice of employee representational rights but that is not sufficient because in the full bench decision in AMOU v Harbour City Ferries it specifically stated that in order to comply with section 174(1)(a) the employee needs to identify in the notice of employee representational rights what is intending to be the coverage of the proposed enterprise agreement. Now, the employer did not do that. The employer did not identify even on what the original proposal for the scope of the enterprise agreement was and it didn't vary, apart from to include an extra level. They did not include stores.

PN395

The stores that work for bioCSL were effectively disenfranchised because the other notice of employee representational rights that was in relation to - was specifically in relation to CSL bearing workers so did not cover these employees either. In the decision of AMOU v Harbour City Ferries the full bench held that even though the employer is required to insert the information about the coverage it still needed to go in there and that was an issue to be considered under section - - -

PN396

THE DEPUTY PRESIDENT: Well, ultimately, 188, who's the - - -

PN397

MS BARRETT: Yes, and it wasn't just the discretionary factor that it had to go in and whilst if there was a mere typographical error or an inconsequential misrepresentation it might be okay. This isn't the case and a whole section of employees - 40 employees, on the figures that CSL gave us last year - have not had the opportunity to receive a notice of representational rights that indicates that they wish to - that they could be covered by the proposed enterprise agreement.

PN398

THE DEPUTY PRESIDENT: The test ultimately is whether or not the employer took reasonable steps to give the notice.

PN399

MS BARRETT: No, with respect, your Honour; the test is whether the actual requirements of the notice of representational rights were met and what this case, Harbour City Ferries, established was that those requirements as well as having the requisite wording also including specifying the coverage.

PN400

THE DEPUTY PRESIDENT: I accept the submission that the content requirements of the notice may not be met if the scope or coverage of the proposed agreement is not adequately described. That's - but the issue for the purposes of section 188 - it might invalidate the notice vis a vis those particular employees. It doesn't invalidate the notice vis a vis other employees necessarily because it was a valid notice in relation to other employees.

PN401

MS BARRETT: We would say it still invalidates it because it doesn't describe the proposed coverage of the agreement that CSL intended to have so it invalidates it in relation to everyone.

PN402

THE DEPUTY PRESIDENT: On that basis, if the union proposed an agreement in relation to scope A, and the employer - as the employer is obliged to do - agrees to bargain and puts out a notice in relation to scope A and during the bargaining the union says, "Well, we want the agreement to cover scope A and B," you say that you can't make an agreement on the face of scope - in relation to the original scope in the agreement.

PN403

MS BARRETT: No, we don't say that, Deputy President. Paragraph 30 of the full bench decision in AMOU v Harbour City Ferriesspecifically deals with that. It says that the proposed coverage (inaudible) as bargaining progresses does not matter:

PN404

Contrary to the submissions of HCF the fact does not mean that when bargaining commences the employer is not obliged to identify what it is then intending to be the coverage of the proposed enterprise agreement.

PN405

THE DEPUTY PRESIDENT: And in this case - and that brings me to the reasonable point - in this case if the employer intended the agreement to cover the scope that was specified in the original notice but as bargaining progressed that evolved, that doesn't invalidate the notice.

PN406

MS BARRETT: No, it wouldn't, but the employer quite clearly intended for a different scope.

PN407

THE DEPUTY PRESIDENT: Well, that's a question of evidence.

PN408

MS BARRETT: It is a question of evidence. But it's an issue that could cause the - - -

PN409

THE DEPUTY PRESIDENT: No, I understand the submission, thank you. Is that it, Ms Barrett?

PN410

MS BARRETT: Yes, thank you.

PN411

THE DEPUTY PRESIDENT: Thank you, Ms Barrett. Mr Doyle, you seem to be wanting to jump up and down again. Or do you just want to get out of here?

PN412

MR DOYLE: Forgive me, Deputy President; just four very brief points. One is in relation to the notice of representational rights: my instructions are that perhaps this really establishes that this will need to be a matter for evidence at the appropriate time but my instructions are that CSL levels one to six, which are referred to in the notice, are the stores classifications and that there are no employees who are employed within a classifications called, "stores." IN any event, that would be a matter for another day.

PN413

My learned friend also referred to section 54(2) about the operation of an agreement, which reads - subsection (2) reads:

PN414

The enterprise agreement ceases to operate in the following days.

PN415

Now, CSL submits, Deputy President, that that doesn't take the argument any further. All that does is identify when the agreement ceases to operate. It doesn't identify when an enterprise agreement commences to cover an employee. Further in relation to the issue of what cover means and when an enterprise agreement will cover the employee, I take the tribunal to section 185(3), which in addition to my earlier point about the word, "proposed," dropping off the phrase at the appropriate time in the Act, also note from section 185(3) the phrase, "who will be covered by the agreement," the words, "who will be," also drop off.

PN416

Section 186(3), apologies, Deputy President; section 186(3) is the section I'm referring to and that is dealing with the circumstances in which the Fair Work Commission deals with in deciding whether to approve an agreement. At that time it is clear that the relevant group of employees are covered by the agreement, not, "will be," covered. Finally, Deputy President, in relation to - my learned friend made a number of submissions about capacity for NUW members to take industrial action. It's important to recognise that CSL doesn't submit that the entirety of the 95 members are now unable to take protected industrial action. At the very least, the 71 that my learned friend has identified are able to and can continue to do so subject to compliance with the relevant requirements under the Act. They have taken some action in the 30-day period and continue to take it, even without an extension. The position in relation to 24 is perhaps a little bit more complex and is best left to another day.

PN417

Unless there is anything further, Deputy President, those are CSL's submissions.

PN418

THE DEPUTY PRESIDENT: Thank you. All right, I'm going to consider both applications overnight. I'll endeavour to make a decision tomorrow in relation to both matters with reasons to be published at a later date. I'm mindful of the time and the apparent desire of the NUW to have this matter resolved one way or the other in an expeditious fashion and I will endeavour to do so but substantive reasons will follow at some later time, I'm afraid. I thank you all for your submissions this evening. We're adjourned.

ADJOURNED INDEFINITELY [7.13 PM]