B2015/1253, Transcript of Proceedings [2015] FWCTrans 563 (13 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052501

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DEPUTY PRESIDENT GOSTENCNIK

B2015/1253

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Workers' Union, The

and

Skilled Offshore

(B2015/1253)

Melbourne

4.04 PM, FRIDAY, 25 SEPTEMBER 2015

Continued from 15/09/2015

PN860

THE DEPUTY PRESIDENT: Good afternoon. Who wishes to go first? Mr Caspersz, it might be easier if you just remain seated, yes. Well, if you're content to go first Mr Caspersz and Ms Lim, you and your colleagues content with that course?

PN861

MS P LIM: That's fine with us, Deputy President.

PN862

THE DEPUTY PRESIDENT: All right, yes, Mr Caspersz.

PN863

MR T CASPERSZ: Thank you, your Honour.

PN864

THE DEPUTY PRESIDENT: I'll remind each of the parties that (a) I've read the materials that have been filed and bearing in mind that it might only be a little past 2 o'clock there, it's a little bit past 4 o'clock here. So, away you go.

PN865

MR CASPERSZ: I completely understand your Honour. Thank you for that.

PN866

THE DEPUTY PRESIDENT: Although we don't have any football here to go to.

PN867

MR CASPERSZ: And that your Honour, is entirely the making of others.

PN868

Your Honour, for the reasons mentioned I don't intend to read through or traverse in any detail what we have written in our outline of submissions and of course that's the outline of submissions that was filed.

PN869

THE DEPUTY PRESIDENT: Yes.

PN870

MR CASPERSZ: I'd just like to clarify and amplify a couple of points, your Honour. Three main points really. Firstly I'd just like to make a few further submissions by way of clarification of our submission concerning the decision of his Honour Vice President Hatcher in Hunter. Second, I would like to make some submissions in relation to my opponent's contention that the respondent agreed to bargain as from 9 September. Third, I'd like to make some contentions and submissions further amplifying and clarifying the respondent's submission in relation to why question one is currently framing, encapsulates action that is potentially not industrial action.

PN871

Against the background and before I actually come to the detail of that, can I just say one or two things in very quick succession about the written submissions to the Commission, I'll add further assistance to the Commission. There is a reference at paragraph right at the end, paragraph 99 to some pieces where an order for the extension of the notice of period was made. And whilst the respondents content was similar circumstances and there's reference as a couple of decisions there, your Honour, in relation to the last one, Maritime Union, I can't myself find the reasons supporting that in the actual context or the text of the decision of the order where it states that.

PN872

As far as the CBI case is concerned, if I can direct your Honour to paragraph 72 onwards of that case, which we submit, supports the contention that given the circumstances outlined from paragraph 96, 97, only certain circumstances that are out of the ordinary and exception circumstances justify the extension sought.

PN873

Then finally your Honour, in relation to the actual form of the order you will see, for example, point 88 of the written submissions that the respondents contend for all good reasons set out there, that the (indistinct) period should be extended for at least the duration of 21 days. That's particularly important of course, taking into account the democratic object of the PABO.

PN874

I am instructed that the respondent is able to provide the Commission with a draft of the particular order that it seeks (indistinct) assistance of the Commission and its intention would be to send that order through to your chambers later on this afternoon or first thing on Monday morning if that would assist you, sir.

PN875

THE DEPUTY PRESIDENT: That would be fine, send through any draft.

PN876

MR CASPERSZ: Thank you. Of course these submissions, your Honour, are all by way of alternative submissions that an order is made.

PN877

THE DEPUTY PRESIDENT: I understand.

PN878

MR CASPERSZ: I can then return to my first point and just amplify and highlight it a little bit more, what the respondent's contentions are in relation to Hunter. In short, we submit that what the decision of his Honour, Hatcher VP, is about in Hunter is a decision that deals with discretionary aspects of the word "may" with a (indistinct) to section 230(1) and the word "satisfy" in section 231(c). Of course that word "satisfy" is the same word that is used in section 443(1)(b) which is one of the aspects that the Commission must consider in these proceedings.

PN879

We've written submission about what satisfied meanings and we don't certainly need to explore the meaning of the word may, save to say that in our submission really what the reasoning was by his Honour in Hunter was along these lines. First, what ultimately his Honour held that there was no point in issuing the bargaining order there, exercising his discretion with the single event that constituted the employer's agreeing to bargain for the purpose of section 230(2)(a) triggered the commencement of the notification time.

PN880

In section 230(2)(a) it's a section that has got a couple of elements in our submission. It says that the FWC must be satisfied in all cases that one of the following applies to the employer or employers have agreed to bargain or have initiated bargaining for the agreement. Through that expression agreed to bargain that his Honour Hatcher VP focussed on in Hunter, hoping that that was the single event triggering the commencement of a notification. Of course the facts there were that on the finding of his Honours as to when that event occurred the end did not (indistinct) mandatory (indistinct) thereafter.

PN881

Thereafter and therefore for the purposes of section 181(2) there could never have been a request to employ a vote on an agreement, no earlier than 21 days after the getting of the (indistinct) because logically that didn't happen and therefore the agreement could never be approved and therefore his Honour took the view that there was no utility in making a bargaining order in relation to a process for an agreement that could never be approved. Noting right at the end of the decision that what the union could have done there would have been to try and trigger the notification time once again through an application commenced being successful.

PN882

That's our submissions as to how his Honour rationalised the matter in Hunter. Can I just take you to a couple of the particular paragraphs, just by way of further analysing that reasoning. Starting at paragraph 4 of the reasons in the decision. I trust you have a copy of this your Honour.

PN883

THE DEPUTY PRESIDENT: Yes.

PN884

MR CASPERSZ: Paragraph 4 highlights the (indistinct) and frames it, if you like, in relation to section 230(2)(a) and then after making his finding his finding at paragraph 37, "It was not in dispute that Hunter Operations never issued a notice of representational rights". Relevantly, it's necessary to go to paragraph 50 where his Honour's reading really starts in relation to this.

PN885

His Honour notes at paragraph 50 that what constitutes an agreement to bargain is not defined in the Act and makes some observations there versus the significance in paragraph 52. Then going on in paragraph 52, his Honour says this, picking it up at the third sentence, I think it is, about a quarter of the way through the paragraph:

PN886

The expression "notification time" is, for relevant purposes, defined in section 173(2)(a) to mean the time when the employer agrees to bargain or initiates bargaining for the agreement. This definition indicates that an employer's agreement to bargain is a single event which happens at a particular time.

PN887

Of course to interpose here that as your Honour will be well aware that the respondent's primary submission is that there is no evidence of that single event having occurred in this matter prior to the application being made and prior to finally, the initiation of bargaining by the respondent when it issued its (indistinct) on 14 September which is attachment MW14 to the statement of Mark Wakelin. His Honour then goes on to make various observations for the remainder of that paragraph and following in paragraph 53.

PN888

If I can then take you to paragraph 61 where his Honour makes his finding as to when that single event occurred on the first instance when Hunter agreed to bargain and then at paragraph 64 he really starts analysing the discretionary conditions. The essence of it is in the second sentence in paragraph 65:

PN889

I consider that if the making of a bargaining order could not possibly result in the making of an enterprise agreement capable of approval under the Act, then it would not be reasonable in all the circumstances to make a bargaining order and a bargaining order should not be made.

PN890

Then his Honour goes on to further analyse that at paragraph 66 and following, at 69 concluding that the critical question is whether a notice issued outside the time limit is invalid. Paragraph 70, his Honour refers to Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union in relation to the significance of the notice in the scheme of enterprise bargaining. Particularly I draw your Honour's attention to what his Honour Hatcher VP extracted at paragraph 20 on the Full Bench decision in Peabody where it is said "As to the context, the Notice provides employees with important information about the nature of an enterprise agreement..."

PN891

I suppose once again as your Honour is aware, the respondent's primary contention must be that here, the nature of the enterprise agreement in that the title of the agreement to be bargained for and the industry framework agreement or something else had not been identified until at the earliest 7 to 8 September when the unions signified their refusal to bargain for an industry framework agreement.

PN892

To further illustrate that, turning back to attachment MW14 of Mark Wakelin, it's at the bottom of page, the numbering is paragraph 71 of the Wakelin statement. Paragraph 72 is actually the NERR that was ultimately issued by the company on 14 September. Then your Honour will immediately see the specificity with which the nature of the agreement has been identified in the first paragraph there by reference plainly to that vessel the Castorone on the side (indistinct) and I can only infer that if the consensus had been arrived at, that the negotiation for the agreement would have been an industry framework agreement that would not have been in those specific precise terms.

PN893

I'll say something more about the importance of the NERR to the unions as well in a little while. But returning back to the reasons for the decision of his Honour Hatcher VP, at paragraph 71 his Honour refers to the Full Bench analysis being consistent with the Federal Court in Construction, Forestry, Mining and Energy Union v Hamberger. I'll also draw your Honour's attention in this context to the decision of the Full Court in National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98, their Honours Jessup, Pagone and White.

PN894

At this point, if I can direct your Honour's attention to the recent decision of Jessup J at paragraph 22 and 23 in particular. I don't know whether your Honour has a copy of that decision. It wasn't actually cited in my outline of submissions.

PN895

THE DEPUTY PRESIDENT: I'm familiar with the content of those paragraphs, Mr Caspersz.

PN896

MR CASPERSZ: Thank you, your Honour. It's not a point that Jessup J there, in our submission makes observations that are consistent, once again, with what Hatcher VP refers to at paragraph 71. Within the ratio in our submission of Hunter Operations is set out in paragraph 72. Your Honour is obviously familiar with what is said there. The essence of it is if an NERR has not been issued as required, within 14 days, that is a finite date after which it could never be issued in relation to that agreement, therefore no agreement could ever be proved because no compliance could ever be had with section 181(2) and therefore no (indistinct) under section (indistinct). That is the way his Honour reasoned that in Hunter.

PN897

The reasoning of the respondents based on what is not said has been set out in some detail in the written submissions. I don't need to go back to that, save to say that, in our submission, one cannot distinguish Hunter Operations from the matter before the Commission if, on the basis that his Honour was dealing with a matter of a bargaining order requiring the exercise of discretion here. Whereas in this matter, the Commission is dealing with an application where the Commission must make the order or must not make the order.

PN898

First, if the application's been made under section 437 and second, if the Commission is satisfied that the applicants each of the applicants have been and are intending to reach an agreement. One can't distinguish on the basis of discretion for these reasons. The expression of an agreement as used in section 230(2)(a). Although not expressly focussed upon by his Honour Hatcher VP, it's plainly the same agreement as the agreement that Hatcher VP referred to in section 181(2) and section 173. He's framed the agreement that is referred to in section 437(1) and in (indistinct) section 443(1)(a) and (b). In other words three out of the Act is the same agreement.

PN899

The respondent's submission often comes down to this, for all of those provisions that use that expression of proposed agreement, a proposed enterprise agreement, regardless of the discretion that might otherwise resile within any particular provision, that expression means the same thing. It means the same thing, with all due respect, as analysed by Hatcher VP. It means an agreement that is capable of being approved. Not necessarily an agreement in respect of which an NERR has already been achieved. I'll come back to that because the Full Bench tells us in JJ Richards that that's not enough.

PN900

THE DEPUTY PRESIDENT: Yes.

PN901

MS DOUGLAS: One can understand how JJ Richards sits comfortably with the submission I'm making. When (indistinct) said that in JJ Richards, the agreement there was plainly identified, it's just that the employer had refused the bargaining of it and therefore, by using the PABO to bring industrial action to put pressure on the employer to bargain, once the employer agrees to bargain, in the event that that arose. But of course that could trigger commencement of a notification time, trigger the issue of the NERRs and so on and so forth. So JJ Richards sits very comfortably with Hunter Operations.

PN902

The point that's been made by the respondent in this matter is that at no time until at the earliest 7 or 8 September when the unions signified their clear refusal to further consider a consensus as to bargaining for an industry framework agreement, did the shape, the nature of an agreement converge. It's up until that time it was not determined. Plainly there is a vast gulf of difference, your Honour, from the industrial point of view between the industry framework agreement and something else. That's the evidence by the unions.

PN903

If I can direct your Honour to for example, the evidence of Mr McCartney in cross-examination at PN68. In cross-examination when my friend Ms Leden asked Mr McCartney, "In your experience Mr McCartney, what's the difference between an industry negotiation and enterprise negotiations." Well enterprise negotiations are done with one particular person and one particular company. Industry based bargaining is about more players and a lot longer around the table.

PN904

So mainly from the industrial point of view, from a negotiation point of view, a palpable difference between the concept of negotiation from an industry framework agreement and something else. Seeing as I understand my friends on the other side of the bar table contend that the proposed agreement was simply (indistinct) it's far too simplistic on the facts of this case, given that type of evidence. Completely misses the point of the industrial reality of the difference between these two paradigms.

PN905

It misses the point particularly also, of the importance of the NERR and the importance of the NERR as accepted by the unions themselves. Say for example, if I can direct your Honour to the evidence of Mr McLaren on this point at PN429 where in cross-examination I asked him. You've given us some evidence the other day on representational rights and you refer to it in there. Just to clarify once again, (indistinct) view that the notice of representational rights be issued. Mr McLaren answered "Well, as I explained previously, it's clearly an indication of whether a company's genuine in wanting to reach agreement (indistinct)."

PN906

Commence an enterprise agreement negotiation process with ourselves. Plainly even in the mind of Mr McLaren, NERR marked a single event, if you like, spoken of by Hatcher VP of signifying the commencement of the negotiation process and apart from other things, the respondents, as your Honour contends that no negotiation, no (indistinct) for a proposed agreement as should be understood in the Act prior to the commencement of these proceedings.

PN907

Your Honour, just to wrap up this part of the submissions and to wrap up the submissions in relation to Hunter, what the respondents derive from Hunter is this, in our submission Hunter is not distinguishable, it doesn't (indistinct) in these circumstances. Plainly there was no agreement that was identified at the time of making the application that any steps had been taken by the applicants to reach an agreement on.

PN908

Plainly there was no steps taken by the applicants to reach an agreement on the agreement identified in the NERR issued by the company on 14 September, attachment NW14 I think it was in the statement of Wakelin. In the (indistinct) the application was not made under section 437(1) because there was no agreement as envisaged. If, for example, that prior submission is rejected and the counter argument is held by Commissioner (indistinct) that bargaining commenced maybe on 21 July or 7 August or sometime more than 14 days before the making of the application. Applying Hunter once again to stop (indistinct) then claiming there was no agreement that was capable of being (indistinct) section 4371(1).

PN909

There was no agreement as conceived with reference to section 443(1) (indistinct) 443(1)(e) and plainly there could have been no genuine steps taken to try and reach an agreement which had not been identified which is not capable of being approved. So in all of those submissions, your Honour, the respondents say that Hunter does apply, but applies in that way.

PN910

Having dealt with that, I now move on to address the applicant's submissions at paragraph 82(3). Just to reply to those submissions very briefly. The essence of their submissions as we understand them, your Honour, really concludes at paragraph 33 that the applicants contend that the respondent only agreed to bargain for the proposed agreement (indistinct) on a non-industry basis on 9 September which is 14 days when the union (indistinct) to issue. This is in the context of the applicant's submissions in relation to Hunter.

PN911

The respondents respond to those contentions as follows. As at 9 September, the respondent's submission is that the proposed agreement was still unknown. It certainly was the case that the unions on 7 or 8 September had made it clear that they would not agree to bargaining within the industry framework agreement. Differentially, the union therefore had a desire to bargain for something else but that had not been identified.

PN912

The respondent acknowledged the union's refusal on 9 September and committed to issuing an NERR. This is recounted in the applicant's submission at paragraph 80 of where the respondents extract that email from Mr Wakelin. That email, your Honour, is actually at MW13, attachment MW13, page 67 to 68 of the Wakelin statement. Now it's necessary to look at that email in order to actually understand what Mr Wakelin was saying. I can take you to that. MW13 your Honour, page 67, the top email is one dated 11 September, the (indistinct) one is dated 10 September and Mr Wakelin's email of 9 September actually appears on page 2 of that email which is page 68 of the statement.

PN913

There he says "I acknowledge receipt of your email" this is addressed to Mr McLaren, copies to various others. "As per our previous discussions, SKO (indistinct) respondent will now proceed to issue the notices of employer representational rights as soon possible."

PN914

The previous discussion, when read in the context of the email of the lawyer from Mr McLaren to Mr Wakelin in late September, either discussions referred to on page 2 of Mr McLaren's email. I can take your Honour to page 3 of this email and page 69 of the statement, to the second last sentence where Mr McLaren writes "We ask that is discussed at the Fair Work Commission on 17 August that Skilled Offshore commit to issuing a notice of employee representational rights as soon as possible."

PN915

If I can then take your Honour to the statement proper of Mr Wakelin as to what the evidence was of that conference from what we've discussed and that is Wakelin at pages 5 to 6 of his statement, commencing at paragraph 24. Where at paragraph 24 Mr Wakelin gives evidence that he attended the conference on 17 August and identifies he was there. Paragraph 25 Mr Wakelin gives evidence about what was said in substance at that conference. I don't recollect that Mr Wakelin was cross-examined, or at least not cross-examined in any detail in relation to this this.

PN916

Particularly in paragraph (c) where Mr Wakelin gives evidence of what he explained were the two bargaining options (indistinct). He identifies option one, the industry framework agreement. Option two, the (indistinct) and the initial bargaining four weeks after (indistinct) issued a senior (indistinct).

PN917

Returning back to NW13, at page 69 of the statement, these were the discussions at the Fair Work Commission, in my submission, referred to by Mr McLaren. Going back, once again, to Mr Wakelin's response to Mr McLaren's email at page 68 of the Wakelin statement, this is the discussion that Mr Wakelin's referring to. And when you put that all together, your Honour, the submission the respondent makes is this: against the background of the discussions that have taken place, the email from Mr Wakelin to Mr McLaren on 9 September was not agreement to bargain.

PN918

The email on 9 September from Mr Wakelin to Mr McLaren was an indication that the respondent would be issued with NERRs, as per the discussions. Inferentially, now that it's been made known by the unions that the industry framework is no longer a possibility, the NERR will be issued in relation to option two, which was the Castorone specific project, and that is evidence further by the NERR that is actually issued, which is attachment 14. I will refer to that and your Honour will see that set out on page 22 of the Wakelin statement.

PN919

So the evidence does not support the (indistinct) intention that the respondent agreed to bargaining for the proposed agreement for 9 September, but in any event, the respondents contend that there is no evidence that the unions took any steps to reach a Castorone agreement that the respondent indicated on 17 September that would issue the NERR for.

PN920

Finally, in this part of my submissions, your Honour, the respondent submits as follows: before September, this date that's proposed as the date when the respondent agreed to bargaining, the only steps that the applicant had taken were, in simple terms, to indicate a desire to re-negotiate the current agreement, to initiate clause 16 proceedings, to engage with the respondent in those proceedings, to talk about and discuss how or what type of agreement would be bargained for, the industry framework agreement or something else, culminating in their refusal to consider that option any further on 17 September.

PN921

In all the circumstances, your Honour, the respondents contend that there is no evidence of any steps or certain sufficient step to constitutes a genuine try to reach an identified agreement with the client by section 443(1), particularly (1)(b). Those are my submissions in relation to that point, your Honour, and finally, leads me to make some short submissions in relation to the respondent's outline of submissions, particularly paragraph 65 to 67. Your Honour, paragraphs 65 to 67, we write there - - -

PN922

THE DEPUTY PRESIDENT: Just hang on, Mr Caspersz. Let me find it. Yes?

PN923

MR CASPERSZ: We write there some submissions and contentions about question one. And the primary contention is set out in point 65, where you will see that the respondent submits that question 16 (indistinct) and whether they will approve action that could include action and various unsafe conditions for themselves and others, and I apologise for the typographical error there, your Honour (indistinct).

PN924

Point 66 is the respondent's contention that this flows from the fact that parliament could not have intended otherwise, as that would require an interpretation of the FW Act (indistinct) occupational health and safety legislation. Then, the submissions set out in point 67 are quite to the contrary. And just to frame it further, your Honour, if I could take you back to .2.2 of the application, you'll see, apart from the amendment that was made by the proceedings last time to, as it were, that our members in the emergency response team to attend to emergencies, the question is still very wide, in our submission, particularly compared to paragraph 2, which has got that carve out in parenthesis for (indistinct) legislation including (indistinct) legislation.

PN925

The respondent submits that that is the sort of carve out that question one must, as a matter of instruction of the term, "industrial action" because otherwise, the question (indistinct) following employees in respect of action that is not industrial action. Of course, anything that is not industrial action cannot be employee claim action, therefore, the object of the application, if that is correct, would not be in accordance with section 437(1), it would be for some other object, an illegitimate object, or at least an object which renders the application competent, because it would not have been made under section 437(1) in accordance with section 443(1)(a).

PN926

In relation to the term, "industrial action", your Honour is more than familiar with that term. I've already referred to section 19(2) as giving some sense of what parliament intended in this regard. A powerful indication of parliament's intention, in my submission, in this context, is also section 26, which is a pivotal provision in the Fair Work Act. Section 26(1) in particular, which expresses parliament's intention that the Fair Work Act excludes state or territory industrial laws, so far as they would otherwise apply to a national system employer or a national system employee, such as the people we are concerned with in this application.

PN927

And then you have section 27, which contains the not excluded matters, and in particular, for the purposes of this argument, section 27(2)(c), the non-excluded matters are as follows: occupational health and safety, an immediate beacon, in my submission, of guidance as to parliament's intention in relation to occupational safety matters. That's further supported by other provisions in the act. For example, the act, as everyone would now, specifically curbs the rights of permit holders to exercise rights of entry in relation to occupational safety matters arising under state or territory laws. I think that could be section 494.

PN928

There are other provisions including, in relation to section 491, where, for example, the permit holder themselves must comply with (indistinct) occupational health and safety requirement that applies to the premises, which all, in the respondent's submission, indicate that parliament could never have intended that the definition of including industrial action, wide as it is, could include action that would jeopardise the health and safety of employees. And just as the carve out appears in question 2 of the application, certainly the respondents could see that the carve out should be there in question one and that the answers to that question 1 goes too far. It goes further than what the application (indistinct) specified, while aware of the questions to be asked (indistinct) and the application is incompetent for that reason as well. Your Honour, unless you have any questions of me, those are the submissions for the respondent, in closing.

PN929

THE DEPUTY PRESIDENT: How does that submission, that is, that industrial action should not be so widely construed as to include action that endangers the health or safety of another employee, or presumably anybody else, sit with the power of the Commission to terminate industrial action in circumstances where industrial action endangers the health, safety or welfare of the population or a particular part of it. It seems inherent in that power that industrial action may have that effect?

PN930

MR CASPERSZ: At the end of the day, it may have that effect, your Honour, but the point I'm making is that for the anterior purpose of the application for a PABO, to ask employees to engage in action that would include that type of action is not a legitimate object. If a PABO is made in respect of action that can be taken by employers that is properly employee claim action, industrial action, and that action, when it is taken, has a consequential effect, that comes later and that is when these provisions cut in.

PN931

THE DEPUTY PRESIDENT: I understand that. Thank you, Mr Caspersz. Ms Lim?

PN932

MS LIM: Thank you, Deputy President. First, from the AMWU I'd like to thank the Commission and also my friend for consenting to have this listed at a later time. I'm also mindful of the fact, Deputy President, that it is now 10 to 5.00.

PN933

THE DEPUTY PRESIDENT: It's all right, Ms Lim. I don't have football to go to, so it will be right. Take your time.

PN934

MS LIM: Commissioner, we intend to rely on our written submissions, which we lodged with your chambers on 9 September, and the closing submissions lodged on 18 September. There's been an excessive amount of material exchanged by both sides, so in so far as the union submissions today, I just wish to make some points with regards to six contentions that we have identified within the respondent's closing submissions.

PN935

The first one is that the proposed agreement was not identified. On this point, the finding particularly in contention, I don't plan to go into that in great detail, beyond highlighting that our closing submissions, the written ones, outline the evidence from the McLaren, from Dixon and also from Mr Wakelin that, over the course of 17 June to 15 September, a combination of Mr McLaren for the AMWU, and Mr Dixon from the AWU, and Mr McLaughlin from the CEPU, make it clear to the respondent what the unions wanted, namely, number one, a direct enterprise agreement with SKO; number two, an agreement that covered their employee, Robert Castorone; and number three, an agreement that was not negotiated from an industry framework approach.

PN936

The unions with to also identify the evidence of Mr Wakelin, both orally and through various correspondence to the unions, that SKO understood the unions' joint position. On the respondent's assertion that a proposed agreement was not identified, not much has been made of this particular point, but we do believe it's relevant. We wish to make one thing particularly clear, that an industry framework agreement like the one that the respondent was envisaging and was putting is not a separate type of agreement that is recognised by the Fair Work Act. In one regard, it is a method of implementation. Industry framework agreement, particularly in this instance, would refer to an agreement that is picked up by multiple companies in the same sector. We wish to make it very clear that the Fair Work Act makes express provision for only three types of agreement: single enterprise, multi-enterprise and greenfields agreements. Quite clearly, in this case, it can't be a greenfields because there are employees. It is our submission that the unions made it very clear, both in correspondence and through evidence at the hearing, that what they wanted throughout all this is a direct agreement with SKO.

PN937

So we wish to make clear that when we're talking about industry framework, we're not talking about something that requires a different approval form of some sort. It would still be the same approval forms which exist for either a single, multi or greenfields agreement. When we talk about industry framework, we're talking about what we say is implementation. When we talk about industry framework, we would say that there is disagreement or not one unified position on how an industry framework agreement can be reached.

PN938

MR CASPERSZ: I hesitate to interrupt my friend, but I don't wish to be (indistinct) submission, which, in my submission, is effectively evidence from the bar table, by (indistinct) give evidence from the bar table. I have no objection if my friend goes to the transcript, but I would like my objection in relation to that part of the submission.

PN939

THE DEPUTY PRESIDENT: Yes, Mr Caspersz. Yes, Ms Lim?

PN940

MS LIM: Deputy President, can I just my friend to be specific in terms of what he is objecting to with regards to what I've just said?

PN941

THE DEPUTY PRESIDENT: I think all that he's noting is that he doesn't want it later interpreted that his silence should be an indication that he accepts the propositions that you're making which he says are evidentiary in nature rather than submissions, as such. That's his point.

PN942

MS LIM: I would never take Mr Caspersz (indistinct).

PN943

THE DEPUTY PRESIDENT: I think that's more for my benefit for later, when I'm reading the transcript and I've forgotten about this pleasant exchange on a Friday afternoon that I'll remember.

PN944

MS LIM: Deputy President, it was the evidence of Mr McCartney on the witness stand and certainly, from his witness statement, that the current SKO agreement, the origins of that was an agreement that was first negotiated with Brunel and then other parties became involved and it certainly became implemented across varies companies. So in that we say that there are two ways identified of negotiating an industry framework agreement (indistinct) identified the current industry framework agreement to (indistinct).

PN945

The second, of course, is the way that my friend highlighted, from the evidence of Mr McCartney, that another possible way of doing it is with all the employers involved. So what we say about industry framework negotiations is that it's not a separate type of agreement that's recognised by the Fair Work Act. We just wish to make that point, because a lot has been made of the fact that no proposed agreement was identified, in that it was not determined whether or not the agreement would be negotiated on an industry framework basis or a direct enterprise agreement. First and foremost, we disagree on that point. Our position is that at all times we've been very clear what the unions' position is with a renegotiated agreement. But in the alternative, we do wish to make it very clear that an industry framework agreement, per se, is not considered a separate agreement under the act.

PN946

The second point we wish to respond to is the respondent's remarks with regard to question one, in particular, in their submissions they make the argument that the inability to perform work as normal, for example, as part and parcel of the proceeding industrial action, and I can take you to that reference if you require, Deputy President. It's at 59 of the respondent's submissions.

PN947

We would just like to make the point, Deputy President, that, as you'd be well aware, industrial action does not occur in a vacuum. Industrial action takes place on worksites where multiple employees, (indistinct) they're all affected in different ways. And we submit that this is no different to a situation where, perhaps, crane drivers on a construction site take action and this prevents other workers from being able to perform their work, or nurses, for example, taking action at a hospital, which in turn prevents perhaps doctors or orderlies from being unable to perform their work. We also wish to expand on the point that your Honour made a little bit earlier during my friend's submissions with regards to occupational health and safety. We concur that applications can be made. If the respondent had concerns about occupational health and safety, with regards to industrial action, there is recourse for them under the act and we know, certainly, that these sort of applications are heard very quickly.

PN948

We also wish to note that, as a matter of principle, the unions are never in a position where we are encouraging our members to be taking unsafe action that might jeopardise their or their co-workers safety. We also wish to note that, if you follow on from my friend's submissions that we are asking our members to agree to unsafe action. We say that this is a ridiculous assertion, because it's not required under the act to carve out in every single question that occupational health and safety matters should be excluded from industrial action. We agree industrial action should never compromise the health and safety of our members, of the respondent's workers. And we intend to leave it simply at that.

PN949

Our third point that we wish to make is with regards to question two. My friend made some brief comments with regards to question two in his written submissions that question two is vague and that workers will not know what is required. We make two points: number one, what is required is that those who were balloted understand the question, and it is a common question. It is a question that is frequently put to our members and is frequently answered with zero confusion. We also wish to note that this question has been approved a number of times across various (indistinct), across various Commissions in the history of applications.

PN950

The fourth point we wish to make is with regards to the respondent's submission on whether or not it has been made a genuine try for an agreement. It is our understanding that the respondent makes the point that the unions were trying for a notice (indistinct) and the type of agreement desired rather than a proposed agreement. We say that this is splitting a hair quite finely, Deputy President, in that they are separating the significance of the NERR from actual bargaining.

PN951

Mr friend highlighted in quite some detail the importance of the NERR and we say that yes, we were absolutely trying for the NERR to be issued because the NER is part and parcel of bargaining for an agreement. It is not a separate part where it stands just on its own. An NERR is only ever issued in the context of bargaining. My friend also made, in his oral submissions, a point I believe that said prior to 9 September, the only steps that the applicants had taken in terms of trying to reach an agreement was taking steps to indicate a desire for a non-industry framework agreement and Fair Work Commission proceedings to discuss the type of agreement. With respect, we feel that substantially more than that has occurred. We say that a number of emails have been exchanged. We know that three Commission conferences were heard. We know that there were three meetings before the application was made where the log of claims was also served on the respondent. So we've made it very clear the type of agreement we want, the general ambit of it, and also the claims that we're seeking.

PN952

The (indistinct) we wish to make, Deputy President, is in terms of the proposed agreement. In written submissions, the respondent made a number of comments regarding the proposed appointment of the Australian Election Company and its principal, Mr Richard Kidd. I wish to note that Mr Kidd was made available for cross-examination and that opportunity was not taken. I wish to note, Deputy President, Mr Kidd's extensive experience as an official of the Australian Electoral Commission, which is all noted in his statutory declaration. He also has experience in the (indistinct).

PN953

Deputy President, the respondent also made some points about the balloting timeline, the first one being that the respondent requires three days to prepare a list of employees, I believe was the evidence of Mr (indistinct) that this was due to the employee list for the company (indistinct) spreadsheet and he said it would take three days. We accept that. We accept that three days would be acceptable to the applicants.

PN954

The second point which I make, however, is that the balloting period should be one (indistinct) 21 days. We wish to make a point that the uncontested evidence of Mr McLaren is that this particular project which the employees are working on is scheduled to finish in early November. A 21 day ballot period, in combination with the preparation time for the ballot, the time for the provision of lists and also, the time for the Commission to issue a decision, should it choose to do so, means that, in combination with a 21 day balloting period, the employees will, at best, in the best case scenario, only have a week or two to take action, and at worst, not be able to exercise that right at all. We'd just like to make that point very clear because, of course, if it should be held an issue, it would be counter-productive if the timeline is one that that employees would not actually be able to exercise that right.

PN955

The last point we wish to make, Deputy President, is with regards to the extension of time. In its written closing submission, the respondent identified the harm that would be done and the preventative measures required should protected action take place. The unions simply wish to note here, Deputy President, that it is, of course, accepted by all that the point of industrial action is to cause the employer inconvenience and even pain, as leverage to advance their claims in an agreement. We say that it is not an exceptional circumstance that a company would need to take mitigating measures or that their operations will be impacted. However, we do wish to note that if the Commission is persuaded that exceptional circumstances do exist and do justify extension of the notice period, we submit that the notice period should only extended for question one and not for question two. There has been no evidence led that question two requires an extension of time. Deputy President, we wish to note the decision of McCarthy J in CEPU v Laing O'Rourke Australia Pty Ltd [2014] FWC 5434. I apologise this decision was not made available going through submissions, but we've applied, so after today's hearing. But in that particular matter, a similar argument as heard about whether or not exceptional circumstances exist to justify the taking of time. What his Honour in that matter found was that there were exceptional circumstances, but only for certain types of action. In that particular matter, he extended the time required for the notice period to seven working days, but only when the industrial action proposed resulted in a cumulative number of hours of 30 hours in any five day period.

PN956

In this particular case, we're not suggesting anything as complex. We simply note that no evidence has been led in regards to question two requiring an extended notice period and nor should it, because it is a standard question that is asked in a number of different (indistinct) and we would say that, should extension of time be granted, it should not be granted to question two. Unless the Deputy President has further questions, that is the submissions as made for the unions, though I understand that my colleague, Ms Douglas, may wish to make further comments.

PN957

THE DEPUTY PRESIDENT: Ms Lim, I'm trying to find your submissions. Bear with me. At paragraph (indistinct) you make a submission that the respondent did not lead any evidence on why the location of the Castorone, et cetera, would be an exceptional circumstance. Can I direct you to Mr Schneider's statement at exhibit 6, and in particular, paragraph 16(c), where he seems to address that issue? That is the first point. The second point is, at 51, you say:

PN958

The respondent did not lead any evidence in relation to the harm of protection on their business.

PN959

It seems to me that significant portions of exhibit 7, that is, Mr Tese's statement, go to that very point, particularly what he says about the consequences of abandoning the pipeline and so on. So I'm just wondering whether you're as firm on that submission. You might still say that the evidence doesn't establish exceptional circumstances, but I'm not sure that it can be said that the respondent led no evidence in relation to those two matters.

PN960

MS LIM: I'm happy to be corrected on that particular point, Deputy President, but of course, our submission remains that exceptional circumstances do exist.

PN961

THE DEPUTY PRESIDENT: I understand. Thank you, Ms Lim. Ms Douglas?

PN962

MS DOUGLAS: Thank you, sir. Only briefly, the respondent noted in their submissions that each of the unions should be identified individually and assessed individually in terms of whether they have genuinely tried to agree. On behalf of the AWU, I just wanted to note that Mr Dixon's evidence outlines the action that he took on behalf of the AWU in terms of emails, meetings he attended, logs of claims and the other involvement that, on behalf of the AWU, he took in this matter to genuinely try to reach agreement for a proposed agreement here. Also that the CEPU and the effort that the CEPU was taken to genuinely try to reach agreement has been reflected in the evidence of not only Mr Dixon, but the other witnesses for the applicants. However, sir, we do say that the unions were acting collectively and working together as a collective unit to be genuinely trying to reach agreement with the respondent. Those are the only other additional comments I seek to make. Thank you, sir.

PN963

THE DEPUTY PRESIDENT: Thank you. Ms O'Brien?

PN964

MS O'BRIEN: Nothing further that we wish to add, Deputy President. We obviously dealt with submissions of both the other unions.

PN965

THE DEPUTY PRESIDENT: Thank you for those submissions. I will reserve my decision. I will publish my decision as soon as practicable.

ADJOURNED INDEFINITELY [5.07 PM]