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C2012/3099, Transcript of Proceedings [2012] FWATrans 386 (11 April 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033226-1

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT SMITH
COMMISSIONER BISSETT

C2012/3099

s.604 - Appeal of decisions

Appeal by Health Services Union
(C2012/3099)





Melbourne

9.43AM, FRIDAY, 30 MARCH 2012

Continued from 22/03/12

Reserved for Decision

PN238

SENIOR DEPUTY PRESIDENT WATSON: I shall take appearances, please.

PN239

MR R. REITANO: If it please the tribunal, my name is Reitano and I appear for the HSU.

PN240

MR F. PARRY: If the tribunal pleases, I seek permission to appear with my learned friend MR M. FELMAN for the respondent.

PN241

SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Parry. I take it there's no issue about permission in either case. Permission is granted. Mr Reitano?

PN242

MR REITANO: If it please the tribunal, this is an application for permission to appeal of an appeal against a decision of Cribb C, during which Cribb C refused to make an interim order effectively putting things on hold awaiting the outcome of a substantive application that the HSU have made in respect of seeking, in the vernacular, bargaining orders. The issue came down to, before Cribb C - or at least should have come down to whether or not there was an arguable case that the Victorian Hospitals Industrial Association was not engaging in good faith bargaining. It was the HSU's position that if the VHIA was not engaging in good faith bargaining, that an interim order should be made, as I said, putting things on hold so that the ultimate application which sought bargaining orders could be dealt with.

PN243

The substance of the issues - and I say substance of the issues because I'll come to it in a little more detail - before Cribb C was this - and I'm very much putting this in the broad so that the members of the tribunal have the broad background against which the matter was heard before Cribb C. I will come to the detail. In early July 2011, one of the branches of the HSU, known as the HACSU or the No 2 branch, commenced a process of negotiations in respect of the negotiation of an agreement to cover all employees employed in mental health in Victoria. That was to include not simply professional employees and psychiatric nurses and the like, but also what I might call admin and support employees. It wrote to the VHIA and said so much; that that's what they were seeking. It enclosed a log of claims.

PN244

Representatives of the HACSU branch, or the No 2 branch, then engaged in a process of negotiations that included, amongst other things, I think many meetings with the VHIA. There was some discussion at one of those meetings about the scope of any agreement and whether it would cover all employees employed in mental health in Victoria or only some of them. There was also discussion about other things to do with other terms and conditions of employment for all mental health employees employed in Victoria. Those negotiations proceeded for a period of time throughout 2011 and into 2012, but for relevant purposes there are two important dates in respect of the process.

PN245

Unbeknownst to the people negotiating on behalf of the HSU, VHIA was also negotiating an agreement with the HSU East branch to cover some of the same employees; what I might call allied services employees; not professional staff, not professional mental health practitioners, not psychiatric nurses, but all the other employees. Unbeknownst to the people negotiating on behalf of the HACSU, on 7 November VHIA entered into what became known in the proceedings before Cribb C as the heads of agreement. I will come to that document specifically in a moment, suffice to say that that was a significant issue before Cribb C.

PN246

Although the agreement - that is the heads of agreement - was only tendered in submissions in reply when Mr Wood, senior counsel on behalf of the VHIA, stood up and commenced his submissions, it formed a central plank in the Commissioner's reasoning and we say, in the House v R sense, that her Honour erred both in respect of the construction the Commissioner afforded to the agreement, but also in the way in which she dealt with the test that needed to be satisfied having regard to the terms of the agreement. I'll come to that, as I say, very shortly.

PN247

After 7 November - it matters not how for present purposes - someone got wind of the fact that the No 3 branch had entered into or was purporting to have entered into an agreement covering mental health employees employed in Victoria and so, on 1 December, the HSU through Mr Mylan, I think the acting general secretary of HSU East, wrote to VHIA informing it of a resolution of the national council of the HSU, the supreme governing body of the union, which put VHIA on notice if there had ever been any doubt - and we say there wasn't any, but had there been any doubt on 1 December, VHIA were on notice that the only emanation of the union that had authority to negotiate an agreement in respect of all employees employed in mental health in Victoria, was the HACSU or the No 2 branch, or Mr Williams who was I think the branch secretary.

PN248

I'll come to that correspondence in a moment; but the correspondence did not admit of any doubt. It was clear and unambiguous that the HSU was telling VHIA that the only body who could negotiate such a deal on behalf of the HSU, or the only emanation of the HSU that had authority, was the HACSU. I think on about 6 December - I might have the date wrong, but it will become clear shortly - someone from VHIA wrote back to the East branch, through its executive president, and made some claims about the fact that the previous letter had been on HSU East branch letterhead and that didn't appear to be a legal entity, and they were wondering what was going on. That didn't seem to concern them on 7 November when they entered into the heads of agreement. As I say, I'll come to that, but Ms Jackson wrote back to VHIA on 9 December and said, "Yes, that's right. I don't have authority. The East branch doesn't have authority. Authority resides in the HACSU." Negotiations continued.

PN249

On 23 December, there was two pieces of correspondence exchanged between the VHIA and the East branch; one going one way and the other one going the other way on the same day. On that day, VHIA renounced any intention to seek an agreement with Ms Jackson's branch that dealt with mental health employees. Again I'm putting that perhaps in the vernacular, but that's the substance of it - presumably accepting the fact that they had been told on 1 December and on 9 December that Ms Jackson or Ms Jackson's branch, HSU East, did not have authority to negotiate such an agreement. The other piece of correspondence on that day was from HSU East branch and it was to the effect that, "We confirm that that is so. We do not have authority and we do not seek such an agreement." Negotiations continued.

PN250

In February, it became known - again for present purposes it matters not how - to officers of the HSU that VHIA was proposing to circulate to employees an agreement under the Act that would cover all employees employed in health in Victoria and allied mental health employees. No such agreement had been negotiated by the HSU and no such agreement had been negotiated by the HACSU or the No 2 branch. The HSU then came to this tribunal, having made an application for good faith bargaining orders, to in effect restrain the process of commencing the circulation of the agreement with the consequence of then a vote and so on and so forth, until such time as the VHIA had engaged in good faith bargaining.

PN251

It had several planks to its argument about what was said to constitute conduct that was not good faith bargaining and I will point to those in due course in a moment, but can I summarise what I want to impress upon the tribunal in my submissions and what I think was impressed on Cribb C below that negotiating with someone who does not have authority, cannot be good faith bargaining. It is either unfair or undermines collective bargaining. Negotiating secretly with two different emanations of the same organisation about the same matter also cannot be good faith bargaining. There are a range of different ways in which the argument can be put, but for present purposes I want to focus on what was put to Cribb C by the VHIA and why we say even that was not good faith bargaining.

PN252

The VHIA's position before Cribb C was, "Of course we negotiated in good faith because we entered into this heads of agreement on 7 November," and there was a vague suggestion in the evidence and a stronger assertion by senior counsel for the VHIA that what happened between 7 November, contrary to correspondence of 23 December that I've referred to, was that there was an attempt to accommodate the HSU's position by the employers so that there would not be a health agreement that included mental health employees and there were active steps of some kind - undisclosed, but some kind - to try and accommodate that position, but, "Gee whiz. Oh well, we couldn't do it. By 24 February when we did the deal, we just found we couldn't accommodate that position." That was contrary to a whole range of things; in particular the renouncing of seeking such an agreement on 23 December that was published to the world. I keep saying 23 December. I thought I was wrong. It's 21 December and I apologise for that.

PN253

Now, the central plank of the VHIA's case before Cribb C was the heads of agreement on 7 December. That shows we had negotiated and we had negotiated in good faith. I want to come to that, because it is said that that heads of agreement applied to not only health employees, but health employees including mental health employees, and it was also said that it was an agreement with the HSU. I want to deal with that. I'm going to deal with that immediately before coming to Cribb C's reasons, because I think it's important to highlight what the agreement is and so forth. The second thing I want to come to, because it does seem to form a central plank in Cribb C's reasons, is the correspondence of 1 December, equally relevantly the correspondence of 9 December and the correspondence of 21 December. They seem to be the things that Cribb C focused on as considering that were important to demonstrate that there had been good faith bargaining. I will return to the reasons after going to those.

PN254

Could I first take the tribunal to the heads of agreement. They are found in the appeal book at page 592. I would ask the tribunal to accept for present purposes what I said earlier, that these were tendered at the commencement of senior counsel for VHIA's submissions in reply. There was no telegraphing that they would be tendered or anything like that. They were tendered for the first time then. There had been an attempt to get hold of them early on in the proceedings by the HSU. That was by way of an order for production that was refused by the Commissioner. There was then an attempt to get them intra-union. They weren't disclosed then. We knew they existed. We hadn't seen them. The first time we saw them was when they were produced by senior counsel for VHIA.

PN255

This is said to be an agreement that covers not only health employees in Victoria, but mental health employees, and it is said to be the agreement that entitled VHIA on 24 February to revert to the position of including mental health employees in the deal. The first thing is on page 592. The members of the tribunal will see that the agreement is described as being between the VHIA and the Health Services Union East. This Health Services Union East is the very same Health Services Union East that the VHIA said on 21 December was not a legal entity and they were wondering what was going on.

PN256

Could I just skip over to the end of the agreement before I come to the beginning of it, or to the attestation clauses, because you will hear mantra-like - as I understand the submissions below and something that I've read in the submissions here, you will hear mantra-like that Kathy Jackson was the national secretary of the HSU and we were entitled to rely on the fact that she was the national secretary; quite apart from the fact that that totally misunderstands the role of national secretary and the rules of the organisation.

PN257

This agreement was executed quite properly by Ms Jackson as executive president - of the Health Services Union East branch, I should add. The only possible role that that could pertain to is the East branch. There's no such thing as executive president in the national union. That description of executive president is attributable to the branch, so they knew. When they say manta-like to Cribb C, "She is the national secretary of the union," they knew she was acting in her capacity as executive president because that's the capacity in which she signed the agreement.

PN258

Could I then go back to 593 of the appeal book and just highlight several other things about this agreement. What is important in one sense - and I'll come to in one sense why it isn't important - is that this was understood to be an agreement that justified reversion on 24 February to an agreement that covered mental health as well as health generally. It was said that this deal in this agreement related to both and therefore the very virtuous VHIA was entitled to go back to this position, for reasons that were unexplained. If one goes to 3.1, the parties to this heads of agreement are - and you'll see VHIA, and 3.1.2, Health Services Union East, and there's an address in Melbourne. Then there's a heading Background, and in 4.2:

PN259

This heads of agreement completes the negotiations between the VHIA and HSU East for a single-enterprise agreement to cover all health professionals, health and allied services managers and administrative officers who are eligible to be members of the HSU East and who are employed by one of the hospitals listed in (a).

PN260

The agreement applied by reference to eligibility. I don't think it's any secret that the HSU East branch cannot cover employees employed in or in connection with mental health under the rules of the organisation. It's not a question of attributing knowledge to the VHIA and it's not a question of attributing knowledge to anyone about the rules of the union. They entered into an agreement that in black and white was referrable to the rules of the union. They should be taken and are taken to have understood what the agreement was and what they intended because of the very particular words "who are eligible to be members of HSU East." Could I go to 4.3, and I'm not going to labour this beyond I think 4.3:

PN261

This heads of agreement details the terms of in-principle settlement between the parties and the matters herein contained are in full settlement of all claims made during bargaining by either party. The terms of the heads of agreement will only become operative if and when the terms of settlement contained within the heads of agreement are endorsed by the members of the HSU East and VHIA in accordance with the heads of agreement.

PN262

That's not quite right. I don't think it matters for present purposes. If one looks at the next clause, there's another precondition to operation, as well, which is approval by the Department of Health and there are some other things that can tip the agreement over, but for the present purposes what I want to emphasise is "endorsed by the members of HSU East". As I said, I'm not going to labour the point, but all through the agreement you see references to HSU East, particularly in 5.3, 5.3.1, 5.3.2 and 5.3.4. There are all references to HSU East, HSU No 3 branch, No 1 branch, No 5 branch. What you don't see is any reference to No 2 branch and you don't see any reference to the HACSU. I've dealt with, in the written submissions, other clauses of the agreement. For present purposes that's enough.

PN263

Could I then just briefly jump to - just to make good the point - the union rules about eligibility. The relevant rule is found at appeal book 194. While I'm in the rules, I'm going to go to some other rules just while I'm there, but the present rule I want to go to is rule 48 which is found on page 194. The tribunal will see that there is, in rule (a), a listing of eight branches. The first one is the No 2 branch and the fifth one is HSU East. Then in rule (b):

PN264

The HSU East branch shall consist of all members of the union in New South Wales and the Australian Capital Territory, and all members of the union employed in Victoria other than members -

PN265

and I don't need to worry about 1(b) for present purposes, but in (b) -

PN266

employed in or in connection with the provision of mental and/or mental
retardation services.

PN267

So "in or in connection with mental services" are excluded and then in (ii):

PN268

eligible to be members of the Victoria No. 4 branch.

PN269

Then in "Note":

PN270

Members of the union employed in Victoria who are employed in the following classifications, other than those eligible to be members of the Victoria No. 2 or 4 branches, are members of the HSU East branch.

PN271

So there is a clear exclusion of mental health within the East branch eligibility and that is complemented by the clear inclusion in (c):

PN272

The Victoria No 2 branch shall consist of all members of the union employed in Victoria who are (i) employed under the provisions of the Public Administration Act 2004 -

PN273

but again in particular:

PN274

(ii) employed in or in connection with the provisions of mental health and/or mental retardation services.

PN275

It did not admit of doubt or ambiguity that the heads of agreement on 7 November did not apply to people who were employed in the No 2 branch who worked in or in connection with mental health in Victoria. As I will come to in a moment, a central plank in the Commissioner's reasoning was the fact that that agreement applied to mental health employees. One appreciates that the Commissioner was dealing with the matter extempore, was dealing with it urgently, but, with respect, it was wrong and it's what enlivens the appeal directly relevant to what my learned friend in his submissions describers as House v R grounds.

PN276

While I'm at the rules, just because they're relevant and I don't really want to have to come back to them - but could I just go to several of the other rules just to paint the picture. At  rule 40 , there's a rule headed Industrial Agreements. Some of these go to dealing with the mantra-like reference to "national secretary", some of them go to other points, but  rule 40  in relation to industrial agreements:

PN277

(a) The national executive shall have full power and authority to negotiate and enter into industrial agreements. Such agreements may be signed for or on behalf of the union by the national secretary.


The national secretary is a signatory to such agreement, can do it for and on behalf of the union, but the national executive has full power to negotiate them.

PN278

(b) A branch committee shall have power to negotiate and enter into industrial agreements affecting only the members of that branch and such agreements may be signed for or on behalf of the branch by the branch secretary. Claims shall be signed for and on behalf of the branch by the branch secretary.

PN279

I'll come to the relevance of that in terms of the correspondence that I'm going to turn to next. The only other rules that I'd want to take the tribunal to is rule 58 that relates to the HSU East branch executive position that I referred to earlier:

PN280

In the HSU East branch, the executive president shall (a) be subject to the direction of the general secretary.

PN281

That again is relevant to the correspondence that I want to turn to in a moment. At rule 32 on page 184 - and I'm not going to read all of it, but I just point to it because it's relevant - is the rule about the powers of the national secretary. At page 167 of the appeal book is the rule about the powers and duties of national council. Again that's relevant to the correspondence I'm going to come to in a moment and it's important that I at least read the preparatory words:

PN282

The national council shall, subject to these rules and the control by the members as hereinafter mentioned, be the supreme governing body of the union and have the management and control of the affairs of the union and, without limiting the generality of the foregoing, shall in particular have power-

PN283

and then the powers are set out and they're wide-ranging. So in terms of the first ground of appeal or in terms of the first matter I wanted to develop in addition to what I've got in my written submissions - I've dealt with the heads of agreement and I've dealt with them in a confined way. I now just want to turn to the correspondence I've referred to, because the correspondence, in my submission, should disavow anyone of any belief that possibly could be put that this employee organisation was negotiating in good faith on 24 February 2012.

PN284

Before I turn to the first piece of correspondence, I need to turn to appeal book 297, which is attachment 18 to the witness statement of Ms Svendsen. This is described - from the title we see, but described in Ms Svendsen's statement as "the resolution of the national council of the union" and there is a long recital in paragraphs (a) to (j), but at the bottom of the page these words appear:

PN285

In the exercise of these powers and any other powers conferred on it by the rules, the national council resolves and determines (1) the Victoria No 2 branch will be the only branch to which the Victorian mental health members shall belong and (2) the Victoria No 2 branch will be the only branch which shall negotiate on behalf of the Victorian mental health members.

PN286

Then there is, over the page - - -

PN287

DEPUTY PRESIDENT SMITH: Can I ask you to pause there. Why was (1) necessary?

PN288

MR REITANO: I think it was simply reiterating the rule. I don't know that it was necessary, Deputy President.

PN289

DEPUTY PRESIDENT SMITH: Thank you.

PN290

MR REITANO: The rules are the rules and they can't interfere with eligibility by way of resolution. Then over the page, (b) - and I'm not sure where (a) is, I have to say. I meant to make an inquiry about that. I don't know if it has been photocopied off and I'll see if during the course of the morning I can get - - -

PN291

SENIOR DEPUTY PRESIDENT WATSON: The document seems to be a partial document in many respects.

PN292

MR REITANO: I think what we've done is we've only recited what was relevant to the tribunal. We've redacted what wasn't relevant, but I'll obtain some instructions on it and see if I can find a complete copy.

PN293

SENIOR DEPUTY PRESIDENT WATSON: There has to be some prelude to (b), (c) and (d) to make sense of it.

PN294

MR REITANO: Indeed. It may be also that there's a page missing. That's the other possibility. It does seem to flow from (2) in an informal sense. (b):

PN295

Represent that they are negotiating on behalf of Victorian mental health employees -

PN296

no, it doesn't, and I'll get some instructions on it and come back to it. Could I just go to 301, and it deals with I think the question that your Honour Deputy President Smith asked:

PN297

(10) In this resolution, the Victorian mental health members means the members of the union who are employed in or in connection with the provision of mental health services.

PN298

Again it seems to reflect the rule. I think what I may need to do is substitute the whole document. I have a complete copy. I only have one copy.

PN299

SENIOR DEPUTY PRESIDENT WATSON: Yes, well, we can have copies made.

PN300

MR REITANO: I can continue without it, other than to say it makes clear that the HSU East branch did not have authority and that the No 2 branch did. It does that in particular detail. It gives directions to the executive president of the East branch as to what she's required to do to implement the resolution and it gives directions as to what the East branch is required to refrain from doing, and what the No 2 branch can do. I'll return to it when we have copies of it, but could I continue and go to the correspondence that followed from that, which is attachment 19, page 304 of the appeal book. This is from Mr Mylan, the acting general secretary of HSU East branch, and he says:

PN301

There has apparently been some confusion generated by circulars sent out over the signature of Kathy Jackson that has caused uncertainty amongst members and amongst employers about the negotiations of EBAs in Victoria. I am writing this letter to you pursuant to a resolution made by the national council of the union, which is its supreme governing body. This letter conveys the official position of the union. It cannot be countermanded or undermined by any officer of the union, including Ms Jackson.

PN302

HACSU, the Victoria No 2 branch, is and will be the only branch to which members can belong if they are employed in or in connection with the provision of mental health services in Victoria. HACSU is the only branch that will negotiate on behalf of these Victorian mental health members. HSU East branch will not be negotiating on behalf of Victorian mental health members. Any suggestion that has been made to you by Ms Jackson or any other officer to the contrary, is incorrect.

PN303

HSU East branch will not be seeking an agreement covering the terms and conditions of employment of these Victorian mental health members, nor will it seek the approval of members of the union of an enterprise bargaining in 2011 covering the terms and conditions of employment of the Victorian mental health members. Everything said in this letter applies to all health professionals, all managers, all administrative staff and everyone else employed in Victoria in or in connection with the provision of mental health services.

PN304

It could not be clearer. If Ms Jackson or anyone on behalf of the HSU East branch has done anything, they were doing so without authority. Here we are, we're telling you now, as at 1 December in the middle of the negotiations we're having with the HACSU, the No 2 branch, we're telling you they are the people who have authority to negotiate this deal. If one then goes over the page to 306, there is a letter from - I think I said earlier, yes - Mr Williams, the branch secretary of the HACSU. You will note that Mr Williams starts, because it was the truth, "I refer to our ongoing discussions and negotiations," because he had been negotiating about mental health employees in Victoria while VHIA were off not only negotiating with him about them, but also apparently negotiating with other people about them.

PN305

I refer to our ongoing discussions and negotiations aimed at concluding agreements with individual public sector health employers who provide mental health services to the Victorian community. You'd be aware that the union has been seeking to conclude agreements with each health service which cover all employees engaged in the provision of mental health services. More recently and despite -

PN306

I don't think I need to read that paragraph. If I can just skip over that.

PN307

This concern has been elevated by the rumoured in-principle agreement between the public sector health employers and the HSU East branch which allegedly purports to cover employees classified as health professionals, administration or support staff, or managers engaged in or in connection with mental health services. HACSU has not been involved in those negotiations and it is of grave concern that the VHIA on behalf of the employers has engaged in negotiations with us about our claims for these employees while knowingly engaged in concurrent negotiations with another branch of the HSU which does not have rules coverage in mental health.

PN308

It could not be clearer. This is a huge matter of concern.

PN309

The Victorian No 2 branch referred this matter to our meeting of national executive and national council on 30 November. The HSU national executive and national council resolved that the No 2 branch is the only branch that may negotiate agreements for employees engaged in or in connection with mental health services in Victoria. As branch secretary, I'm authorised to conduct these proceedings in this respect. National council, the supreme governing body of the union, has directed the national secretary and officers of the HSU branch not to -

PN310

and that was the part of the resolution that I couldn't read because (a) had been, I think, obliterated.

PN311

I expect that you will receive correspondence in accordance with the resolution of the acting general secretary of the HSU East branch shortly. On 23 November 2011, we wrote to employers seeking confirmation that any public sector agreements for which an offer has been made specifically excludes mental health and a copy of any proposed settlement is provided to verify the exclusion of mental health. Most of the employees have responded, stating that the VHIA will respond on their behalf.

PN312

Accordingly, we seek your urgent response to our correspondence on this matter and confirmation that the VHIA will undertake that in the 2011 bargaining round (1) the VHIA shall not negotiate with or seek an enterprise agreement with HSU East branch or its officers covering employees engaged in or in connection with mental health services in Victoria; (2) any enterprise agreement between the VHIA and the members its represents in the HSU East branch shall exclude employees engaged in or in connection with mental health services in Victoria.

PN313

The national executive has also passed two other resolutions of note. First, a resolution that I, as branch secretary of the Victorian No 2 branch, am authorised to represent the union at any hearing in Fair Work Australia dealing with members engaged in or in connection with mental health services in Victoria. Second, a resolution that the national secretary shall not be authorised to represent the union at any hearings in FWA about such matters. We note that the VHIA has now made an application for an authorisation of a single-interest employer under section 248. All correspondence should be forwarded to me. I look forward to hearing from you urgently in respect of the undertakings sought.

PN314

Mr Williams is still waiting for a reply. He was still waiting for a reply when the matter was before Cribb C and he's still waiting for a reply today - and, parenthetically, good faith bargaining, question mark, close parenthesis. Could I then go to AB309 - no, before I go to AB309, could I ask the members of the tribunal to go to AB487. I know it's a bit odd, but that's the next letter in the sequence. I can explain why, but it's probably not all that important. We sought to have production from the employers. They declined to produce any documents and the Commissioner wouldn't make an order in that respect. I don't intend any criticism, but the Commissioner wouldn't make any order.

PN315

We obtained this ultimately from the HSU East branch. We weren't aware of its existence and had to put it on in a statement in reply, which we did before we commenced our submissions. This is a letter of 6 December 2011 from the chief executive officer of the VHIA. It's responding to Mr Mylan's letter by writing to Ms Jackson.

PN316

Today I received the original of a letter from Peter Mylan, dated 1 December. Copy attached. A fax copy was received on 2 December. I do note that the letter is on HSU East letterhead, which we believe is not a federally registered body.

PN317

I wonder if you had that belief on 7 November.

PN318

Given that the federal office is registered with Fair Work Australia, can you as the national secretary please confirm the contents of this letter is correct and accurate given that we are currently in the process of enterprise bargaining in Victoria.

PN319

Ms Jackson, quite properly, on 9 December - at AB309 - I've made the point, and perhaps I made it too flippantly, but it is relevant that the letter is not to Mr Mylan. The letter, for reasons that aren't explained, is to Ms Jackson. In any event, Ms Jackson quite properly, at AB309, within days, responds to that letter on 9 December and Ms Jackson says:

PN320

I refer to your letter of 6 December and enclose same. I confirm that national council of the Health Services Union has resolved that HACSU, the Victorian No 2 branch of the HSU, is and will be the only branch of the union to which Victorian members can belong if they're employed in or in connection with the provision of mental health services. HACSU is the only branch of the union that will negotiate on behalf of these Victorian mental health members. The HSU branch will not be negotiating on behalf of the Victorian health members. The HSU East branch will not be seeking an agreement -

PN321

note "not be seeking an agreement" -

PN322

covering the terms and conditions of employment of these Victorian mental health members, nor will it seek the approval of members of the union for an enterprise bargain in 2011 covering the terms and conditions of employment of the Victorian mental health members.

PN323

So VHIA are on notice not only that they've got to talk to the No 2 branch because they're the only people authorised by the national council and authorised by the rules to negotiate on behalf of these people, but they are being told by Ms Jackson that the HSU East branch won't be pursuing that at all. Now, the next piece of correspondence that is relevant is - - -

PN324

DEPUTY PRESIDENT SMITH: How does a branch do that?

PN325

MR REITANO: How does a branch do - - -

PN326

DEPUTY PRESIDENT SMITH: Isn't it the HSU that either applies or doesn't apply for an agreement?

PN327

MR REITANO: That's correct, but the union - like any corporate body - can only act via various emanations; whether it be officers of the branch, the members of the branch, the members of the whole union, whatever it may be. This is the HSU East branch saying, "Well, we as that part of the union, won't be doing that."

PN328

DEPUTY PRESIDENT SMITH: They're saying the HSU will not be seeking an agreement to cover terms and conditions of employment for the Victorian mental health members. Isn't that how it has to be read?

PN329

MR REITANO: No, it's the HSU East branch. This emanation of the union, the - - -

PN330

DEPUTY PRESIDENT SMITH: Yes.

PN331

MR REITANO: If I can just simply it.

PN332

DEPUTY PRESIDENT SMITH: If I saw that on an application, I'd send it back, wouldn't I?

PN333

MR REITANO: If you saw HSU East branch?

PN334

DEPUTY PRESIDENT SMITH: Yes.

PN335

MR REITANO: What application?

PN336

DEPUTY PRESIDENT SMITH: An application for a certification of an agreement.

PN337

MR REITANO: If it said the HSU East branch will not be seeking an agreement, you'd be wondering what they were doing.

PN338

DEPUTY PRESIDENT SMITH: No. If the party was purporting to be the HSU East branch, I'd send it back, wouldn't I?

PN339

MR REITANO: I don't want to be flippant in this, but a lot of people wouldn't send it back.

PN340

DEPUTY PRESIDENT SMITH: I follow.

PN341

MR REITANO: But here there's no doubt what's going on. I mean, let's not be nice about this. Well, sorry, nice is not me, but let's not be cute - that's not me either. Let's not be too fine about this. There's no doubt what's going on here. There's no secrets about this. The union is telling the employer, "The people who are the HSU East branch, whether it be Ms Jackson, whether it be Mr Mylan, whether it be the receptionist, if you find those people in the HSU East branch, they're not the people who can talk to you about this agreement. They're across the road. They're Mr Williams, Ms Svendsen, and they're the people who can talk to you about this agreement. They're the people who have authority."

PN342

It's a bit like a board of directors saying, well, the chief executive officer is authorised to go and negotiate something, and VHIA going and negotiating with the receptionist. This is no secret. We're not talking about ostensible authority here. Forget about ostensible authority. We're telling you who has got authority and who hasn't got authority, and it's not the receptionist at the HSU East branch and it's not anyone else at the HSU East branch; it's Mr Williams.

PN343

Could I then go to the next piece of correspondence in the sequence, and I think this is the last one I want to go to, or the last series of letters that I want to go to. I've already taken the tribunal to 487, which is Ms Jackson renouncing, or the HSU East branch renouncing an intention to seek such an agreement. Could I go to 491 and I invite the tribunal - not now, but to try and find the word "accommodate" in this letter, because it's not there. "On 21 December 2012," and I think it should be 21 December 2011, "VHIA write to Ms Jackson" - and note that Mr Williams is still waiting for a response to his letter of 1 December, but there's a flurry of activity in respect of writing to Ms Jackson. I note that I don't think Mr Mylan has had a response to his letter of 1 December either, but, in any event:

PN344

Please find enclosed the proposed draft agreement. I'm writing to confirm the following points: Scope of Agreement. Following your advice to me -

PN345

not Mr Mylan's and not Mr Williams' -

PN346

of 9 December advising the HSU East branch will not be seeking an agreement covering the terms and conditions of employment - who are employed in or in connection with the provision of mental health services. The enclosed draft agreement has made it explicit that mental health employees are to be excluded from the scope of the agreement. This will require consequential adjustment to the classification review process as noted below.

PN347

I don't need to read any more. You won't find, "We're still trying to accommodate that position," or, "That's creating some difficulties," or, "One day somewhere in February next year we might return to the position that we adopted in the heads of agreement that senior council from the VHIA will say covered mental health employees." You won't find any of that. "We are positively disavowing of any intention whatsoever to seek an agreement that deals with people employed in or in connection with mental health."

PN348

Now, I have in the last hour or so focused upon what ultimately will be a very strong case in respect of bargaining orders. The Commissioner could not find that any of this was even arguable and that was the test that she was required to apply. In my respectful submission, it is overwhelming. The secretiveness of what went on between July and February, but in particular July and 29 November or thereabouts, or 30 November, of negotiating with HACSU at the same time that negotiations were being had with other people, the secretiveness of the heads of agreement at all times - that is after 1 December - why didn't someone write to Mr Mylan on 9 December and say, "Whoa, what's going on here? We've got these heads of agreement that Ms Jackson has entered into and they cover mental health employees or employees employed in or in connection with mental health. You've got to be kidding. This isn't real negotiation. This isn't genuine. This isn't in good faith. We thought she had authority." The reason they didn't, of course, is because they knew that she didn't.

PN349

Well, why didn't, on 21 December, the chief executive of the Victorian Hospitals Industrial Association write to Ms Jackson, the person that they preferred to deal with apparently, and say, "Look, we don't try and accommodate the position, but we just don't know if we're going to be able to do it and these are the efforts we're making." Why didn't they write to everyone and tell them that? If there was this level of confusion apparently because of the lack of legal entities and because they were getting different messages from Mr Mylan and from Ms Jackson, or the national council or Mr Williams, why didn't they write to everyone and say, "Look, what is going on here?" because what was going on was VHIA were disavowing any intention to negotiate in respect of mental health employees, at least after 21 December 2012.

PN350

Any claim to right to revert to the 7 November agreement requires one to come to the conclusion that that agreement, firstly, applied to mental health employees and, secondly, itself was negotiated in good faith, and we now know it wasn't because they were negotiating in the next room with Mr Williams and Ms Svendsen about exactly the same matter. I said that Mr Williams had not received a response to his correspondence and when I say "his correspondence", I mean of 1 December. I don't want the tribunal to be led into the belief that Mr Williams simply sat in his office and waited for a response. On 10 December, Mr Williams wrote to the chief executive officer, Victorian Hospitals Industrial Association, and noted that he'd been forwarded correspondence from - sorry, I'll read it. It's at appeal book 314.

PN351

I note the attached correspondence that you've now received from Kathy Jackson, national secretary, confirming the position of our national council, our union's supreme decision-making body. This advice was outlined in the earlier correspondence you received from both me and Mr Mylan on 1 December and confirms my branch's long-standing legal coverage and agreement-making rights which have been advised to the VHIA over many years. As a matter of courtesy -

PN352

be ever courteous to those who are rude to him -

PN353

I would appreciate you forwarding me a copy of the correspondence from the VHIA to which Ms Jackson refers. We trust that the VHIA will now focus on real negotiations around the issues in our claims for all staff working in mental health and provide urgent and unambiguous advice to the health services identified in the mental health SIEA about the rights of all of our members, including our health professionals, administrative managers, staff and all NDC support staff to engage in protected industrial action in support of their claims. Would you kindly provide us with a copy of the bulletin.

PN354

And then he says:

PN355

I note that I've not received a response for my letter dated 1 December and seek your urgent attention and response to that correspondence.

PN356

Still no reply. What could be more bad faith than brushing correspondence? Could I then just complete the picture and go to appeal book 321. Mr Williams is much more patient than I am. On 13 January 2012, Mr Williams wrote again to the chief executive officer of VHIA:

PN357

I refer to my correspondence to you, dated 1 December, on 10 December. To date we have not received a response to these letters. We note that you've also received from the acting general secretary of HSU East, Mr Mylan, and HSU national secretary, Kathy Jackson, in particular our correspondence dated 1 December.

PN358

Just in case it has been misplaced, I think, he was reiterating what he was seeking from the correspondence and I don't read it again.

PN359

We are now in possession of the attached summary of settlement of the agreement that has been concluded with HSU East for public sector health professional health and allied services managers and note the time line on page 2 of the document with respect to drafting the agreement and the approval process. Given that I've not received a response to our abovementioned correspondence, I am seeking that the VHIA provide us with a copy of the proposed agreement which the VHIA and HSU East tend to seek employee and FWA approval. We expect that the proposed agreement shall include in unambiguous terms the necessary exclusion of all employees engaged in or in connection with mental health.

PN360

We remind the VHIA that the union's national executive has passed two other resolutions of note. First, a resolution that I as the branch secretary of the Victorian No 2 branch am authorised to represent the union in any hearings of FWA dealing with members engaged in or in connection with mental health services in Victoria. Second, the resolution that the national secretary shall not be authorised to represent the union at any hearings in FWA about such matters. I advise that the union shall oppose the approval of the proposed agreement with HSU East if the agreement does not expressly and unambiguously exclude employees engaged in or in connection with mental health services. Your urgent response -

PN361

and I think the "to" is missing -

PN362

to this matter and the provision of a copy of the proposed agreement is sought.

PN363

Mr Williams is still waiting. I thought that was the last one. Then at 324, three days later, Mr Mylan writes again to the chief executive officer and in the second paragraph:

PN364

Further to my letter of 1 December when I made it clear that the HSU will not be seeking an agreement covering the terms and conditions of employment of these Victorian mental health employees, nor will it seek the approval of members of the union of an enterprise bargaining agreement covering the terms and conditions of employment of the Victorian mental health members, I wish to advise that I received a copy of the letter from Mr Williams, dated 13 January 2012.

PN365

As the acting general secretary and the authorised officer to conclude an agreement on behalf of HSU East and its members, I advise that HSU East supports that the scope clause in the Victorian public sector agreement are amended to expressly and unambiguously exclude employees engaged in or in connection with mental health services. I would appreciate it if you could provide me with a copy of the proposed agreement containing the necessary amendment to the scope clause.

PN366

Now, in all of that there has been no response whatsoever to the authorised officers of the HSU. Mr Mylan is telling them, Ms Jackson is telling them, Mr Williams is telling them. They have disavowed. "We are not going to seek an agreement in respect of mental health." What do they do in February; they enter into a proposed agreement in respect of mental health employees in circumstances where they have simply steadfastly refused at all relevant times to negotiate, to bargain, with the authorised officers of the union in respect of such an agreement. Now, that is the substance of our case.

PN367

I briefly and finally want to go - and I know it's usually done at the beginning, but I want to briefly come to Cribb C's reasons. I don't want to labour them. I do want to note one thing that I have not emphasised enough in my submissions and that is that Cribb C was dealing with the matter extempore and therefore one shouldn't apply too fine a toothcomb to the reasoning process. In anything I say, it should be understood that I am at least endeavouring to take that into account. The criticisms that I level in the written submissions, one will note that in very many respects - at least in respect of the agreement - Cribb C picked up what senior counsel for the VHIA said to her and picked up that reasoning.

PN368

Could I go to the decision, which is found at appeal book 110. I have dealt with this in my written submissions that I understand were forwarded to the tribunal last night. I have dealt with this in paragraphs 14 to 23. Could I just remind the tribunal of paragraph 23 which summarises - perhaps a little unfairly, but summarises what appear to be the two central planks in the Commissioner's reasoning. One is the heads of agreement are clear in what they provide for and, secondly, that there was an entitlement for VHIA to revert to the position in the heads of agreement.

PN369

DEPUTY PRESIDENT SMITH: Mr Reitano, can you assist me with one matter. Does HSU have an agreement with VHIA?

PN370

MR REITANO: Does HSU have an agreement with - could I answer your Honour's question in a roundabout way? As I understand my instructions in respect of employees employed in health generally, the authorised emanation of the HSU has entered into an agreement. In respect of employees engaged in or in connection with mental health services in Victoria, there is no agreement.

PN371

DEPUTY PRESIDENT SMITH: And if the employer sends out an agreement which purports to cover mental health, does the HSU have an agreement?

PN372

MR REITANO: No. With respect, no, but can I deal with that this way: they don't have to agree with us before they send out an agreement.

PN373

DEPUTY PRESIDENT SMITH: No, I understand that.

PN374

MR REITANO: But what they do have to do - - -

PN375

DEPUTY PRESIDENT SMITH: But they won't be purporting that the HSU or any of its emanations have an agreement? They couldn't, could they?

PN376

MR REITANO: I don't know what they'll do, given their conduct between July last year and February this year.

PN377

DEPUTY PRESIDENT SMITH: I'm sorry - - -

PN378

MR REITANO: I would not be able to - - -

PN379

DEPUTY PRESIDENT SMITH: They couldn't purport that to accurately reflect the view of the HSU.

PN380

MR REITANO: No. I have to confess that I fell for a trap that I'm sure your Honours and Commissioner, you won't fall for, because I don't deal with these things day in, day out. There's no requirement for the HSU, as I said, to agree to anything, but - and there's no requirement for them to await our agreement. There can't be any issue about that.

PN381

DEPUTY PRESIDENT SMITH: Yes.

PN382

MR REITANO: But what is important and it goes to - I think it's in bold in my learned friend's submissions. I think it's the only part of his submissions that is in bold as distinct from bold, and that is permission to appeal. It goes very much to permission to appeal, that you cannot deprecate - and I know your Honour doesn't because I've read some of your Honour's decisions in particular from a bygone era about consultation in terms of redundancy; but you cannot deprecate and you must not deprecate the importance of bargaining. You can't say, "Oh, look, we spoke to them in November and, you know, we're going to do this, anyway, and we don't care what they say."

PN383

This Act gives primacy to not only the requirement to bargain, but the requirement to bargain in good faith. It gives this tribunal very important and significant powers to make sure that's done and it may not be that we have to agree with them or they have to agree with us, but the one thing that we're entitled to as a valuable right, is good faith bargaining. If there's anything that admits of argument in respect of that, then one has to approach it cautiously and carefully.

PN384

I've gone off on a bit of a tangent, but I may as well deal with it. This goes to balance of convenience. If we're right and they haven't bargained in good faith, well, nothing is lost, if there's a hole in that, because they should never have done what they're proposing to do in the first place. If we're wrong, what's lost? A couple of weeks? What is the detriment? There is an agreement, an industrial instrument, in place. What is the real and practical detriment in terms of allowing us to agitate our argument before the tribunal about the fact that they haven't bargained in good faith? In particular could I be so brave as to suggest where we have such a strongly arguable case, what is the downside of a couple of weeks? At best, maybe a month. What is the inconvenience to anyone in allowing us to preserve that which the Act gives us; the right to be received in good faith in the bargaining process.

PN385

I just go one step further, because then I won't need to say much more about it when I come to it. It is important to understand that if we are right, some people would say, "Well, what are you going to get out of a few meetings and then they'll say no, and then they'll put their agreement out." I don't want to tell them how to do things, but that's what some people might say. Our response to that is, no, that might be what they propose to do, but if they're not doing things in good faith and we go to a meeting and we pick up that what they're doing is lip service or just brushing us, let's be rest assured of one thing: we will come back here and try and have our right to be received in good faith protected again and we will seek other good faith bargaining orders, whether it be written reasons for their decision, whether it be other things, but we won't stop at simply saying that they have to meet and talk to us.

PN386

That's our first step, because they won't. That's the respect they accord to Mr Williams. They don't even speak to him in respect of this agreement, in respect of mental health employees.

PN387

DEPUTY PRESIDENT SMITH: No, I understand that point you make, Mr Reitano. I was just wondering - there's always two answers in these cases. If the answer was against you and the agreement was sent out, then you say that the employer wouldn't be entitled to say that they have an agreement with the HSU.

PN388

MR REITANO: Yes, that's right.

PN389

DEPUTY PRESIDENT SMITH: Thank you.

PN390

MR REITANO: Could I just go to, very briefly, the reasons of the Commissioner. As I say, I've dealt with most of it in writing from paragraphs, I think, 14 to 23. I note Mr Parry has dealt with it in his written submissions. He emphasises slightly different things to what I emphasise, but I don't think there's any real controversy about what the substance of the reasons is. There are two things I need to note. Firstly, the Commissioner at 1042 confesses that it's not going to be elegant. The second is that the Commissioner, quite correctly, and I think it's common ground between us, understood that the issue or the question that needed to be dealt with - and I think this is at 1052 - was whether or not the VHIA had not engaged in good faith bargaining.

PN391

Can I say - and again I think I've dealt with it in the written submissions - it's not quite the right question. The question was, was it arguable that they have not engaged in good faith bargaining. I note the Commissioner refers to that at the commencement of her reasons when she outlines whether there's a serious question to be tried, at 1043, but that seems to be converted to a more affirmative question at 1053. The commissioner also refers to whether there's a serious question to be tried as being the test, at 1052, but that seems to me, as I say, converted in the conclusion of the reasons to whether the Commissioner could conclude prima facie that there's a serious question to be tried.

PN392

As I say, I'm not going to move through this with a fine toothcomb, but there's a lot of old law on the use of the words "prima facie" as being relevant to whether or not there's an arguable case and that old law rejects it; but I don't need to succeed on that ground because of the errors that I rely on and I don't think it would be fair to the Commissioner in the context of an extempore decision to do so.

PN393

SENIOR DEPUTY PRESIDENT WATSON: Mr Reitano, the Commissioner commenced on that basis and her ultimate conclusion in 1062 was that she was not prima facie satisfied that the VHIA had not met the good faith bargaining requirements.

PN394

MR REITANO: Yes, that's not, with respect to the Commissioner - I understand that she commenced referring to a serious question to be tried and I think there was common ground between the parties as to what the test was. Whether it be put as a serious question to be tried or arguable case, it doesn't matter, but the use of the words "prima facie" calls for alarm because that is not the test. We don't have to establish a prima facie case. It only has to be arguable. As I say, I don't want to make any great moment of that other than to point it out on the way through.

PN395

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN396

MR REITANO: The two matters that the Commissioner deals with - the issue that's identified at 1053, firstly, the question of the heads of agreement. At 1054 there is the enormous, in my respectful submission, House v R error where the Commissioner says:

PN397

In exhibit R4 is a heads of agreement that was signed by a number of parties on 7 November 2011. On the basis of all of the material before me, I am satisfied that the heads of agreement includes mental health.

PN398

With respect, we say that's wrong. Then the Commissioner turns to what I might call the correspondence that I've taken the tribunal to this morning. At paragraph 17 of my written submissions, I've dealt with what the Commissioner said about that. She referred to the correspondence which we say pointed to the fact that Ms Jackson and the HSU East branch had no authority to negotiate with respect to mental health, and tells them who did have authority, but she didn't refer to those aspects of the correspondence. She only referred to the fact that the HSU was announcing that any agreement would not apply to mental health.

PN399

Our point is that it was vitally important to our argument before the Commissioner and vitally important for her to understand that what we were saying about this correspondence was that it was telling people who was and who was not authorised to negotiate about mental health employees. There appears to be little referred to about that in the Commissioner's reasoning. At 1057, the Commissioner says:

PN400

Given that factual matrix, has the VHIA bargained in good faith? As I understand it from Mr Wood, the submission is that on 7 November 2011, there was an in-principle agreement reached with the bargaining representative on behalf of employees to be covered by the proposed agreement and that after there was advice to the VHIA that the HSU’s bargaining representative, with respect to mental health employees, was Mr Williams.

PN401

Well, that wasn't right either, with respect. Mr Williams wasn't appointed as a bargaining representative. He was the person that the HSU was informing the VHIA had authority to negotiate on behalf of the HSU. Moreover, he was the person who between July and 29 December was negotiating with VHIA about these people. That is, about all mental health employees employed in Victoria. That is, all employees employed in or in connection with mental health. Irrespective of what was going on in the next room and the secret deal that was being done, they were negotiating with Mr Williams at the same time.

PN402

It is easy to say that there's a pre and post-1 December delineation because of the correspondence, but we say that it was well known before 1 December by VHIA who was negotiating about mental health employees. That is in our grounds before the Commissioner and in our grounds of appeal here about the secretiveness with which VHIA was pursuing the matter. The reasons go on:

PN403

The VHIA made an effort to accommodate the changed circumstances that they were presented from the other side of the bargaining table and it would seem to me that from the first draft on 16 December right through until 25 February, there was that accommodation.

PN404

I'm not sure what that means. They took out mental health employees. They said they were taking them out on the 21st. If they took them out on the 16th, I'll accept that. I don't have a problem with that, but I don't know why it is said that from 16 December to 25 February there was an accommodation. What they were telling the HSU is they're out. They're gone. They didn't say that the HSU were talking about accommodation at all. They said on 21 December when they wrote to the HSU, or to Ms Jackson, "We're not talking about mental health employees. They're gone. They're out of the game. They're not part of this deal."

PN405

As I said I think when I came to 21 December, I challenged Mr Parry or anyone else to find the word "accommodation" or the concept of accommodation referred to in the 21 December letter. If they were, in any event, trying to accommodate us during that period, then they should have been bargaining with us about it. They should have at least been talking to us about it if that was what was going on. We shouldn't have to wait to hear for the first time from Mr Wood for VHIA in his submissions in reply that that was what was going on. Why didn't they put that in the letter to Mr Mylan or put that in the letter to Mr Williams, that, "Look, this is a real problem" - or to Ms Jackson even. With respect, it's because it wasn't the case.

PN406

However, as I understand it, the submission was that the VHIA, following consultation with its membership, found that it was not in a position to continue with a proposed agreement if it excluded mental health and that it needed to adhere to the agreement in principle that was reached in November -

PN407

no evidence -

PN408

and was the subject of a heads of agreement - November 2011, subject of a signed heads of agreement which included mental health employees.

PN409

I don't reiterate what I said about that.

PN410

In negotiating the in-principle agreement that culminated in a signed heads of agreement on 7 November 2011, it is my view that the VHIA was entitled to accept that Ms Jackson was the Health Services Union bargaining representative for the proposed agreement.

PN411

Again she was never a bargaining representative for any reason, the HSU was by reason of the default in the Act, but put that to one side. Why were they entitled to accept that in circumstances where they were talking to Ms Svendsen and Mr Williams in the next room about the very same thing? That was the evidence - about exactly the same thing. When Mr Williams was saying, "We need a comprehensive health agreement for all employees in health," why were they entitled? Forget about black and white. You don't have to accept either version, but, boy, is it arguable. What were they doing talking to two different people about the same set of employees; two different people from the same organisation? Why were they entitled to accept that one or other of them had authority?

PN412

As Mr Irving said, it's up to the union to select who is their bargaining representative, as can equally be said of the employer, so it's my view that in good faith the VHIA negotiated an in-principle agreement with a bargaining representative for the HSU and that was put in writing in the form of a heads of agreement. I don't repeat what I said. Then the VHIA, after confirming with Ms Jackson that Mr Mylan's letter that the proposed agreement was not to cover mental health - was confirmed. The first draft excluded mental health and, as I understand it, was the basis of trying to accommodate the change that had occurred. I don't repeat what I said about accommodation.

PN413

The VHIA, on 25 February, in the form of the seventh draft of the agreement adhered to - to use the terms in the submissions parenthetically of Mr Wood SC - the in-principle agreement that had been reached in November 2011. Now, they're my words and I know that Mr Wood didn't accept that, the VHIA having attempted to accommodate the changes that had occurred on the other side of the table and receiving instructions from their members saying that they were unable to do that; and in my view we're entitled to go back to the agreement in-principle that had been negotiated. As I found before, it was negotiated in good faith at the time.

PN414

Well, two problems. Firstly, I've said what I need to say about they weren't talking to us about accommodation, but why were they entitled to the benefit of negotiating in good faith at the time when, as I said, the evidence before the Commissioner was that they were talking in two different rooms to two different people on behalf of the same organisation? How could it be said that there wasn't something that was serious to be tried? I accept that Mr Wood said that if there had been Speedy Gonzales following the heads of agreement on 7 November, there had been agreement that could have gone out, that was put out to the employees to vote on 10 November, none of us would be here. There was an in-principle agreement reached in good faith in November. They're entitled to seek adherence to that and for them to adhere to it. Again I don't repeat what I've said.

PN415

In the final paragraph, my submission is that the Commissioner doesn't deal with balance of convenience. I know there's a contrary position I think that's put by Mr Parry in his written submissions. In any event, there are no reasons that support the conclusion that the balance of convenience weighed one way or the other. In my submission, the correct position is what I said earlier about balance of convenience and that is that it was no skin off their nose to wait a few weeks, particularly if we won of course, but if we lost, there was nothing lost of any moment in terms of the process. There's industrial regulation in place at the moment. The agreement has run its nominal term. There's no downside for anyone, in my respectful submission.

PN416

Those are the matters that I wanted to deal with in the appeal and the application for leave to appeal. I rely on the written submissions, I rely on the grounds of appeal and I rely in particular on what I've said about permission to appeal in the notice of appeal and also this morning. I note that I dealt with permission to appeal in answer to a question. I was going to deal with it at the end, but we say that it is a significant matter in the scheme of the Act for any employee to be put out of the right to be the receiver of good faith bargaining. We say that the whole scheme of the Act depends upon that. Particularly in circumstances where there is no obligation on anyone to achieve agreement, good faith bargaining is foundational to an orderly system of collective bargaining and it is something that this tribunal cannot and should not deprecate, in my respectful submission. If it please the tribunal, those are my submissions.

PN417

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Reitano. Mr Parry, we intend to adjourn for five minutes before hearing from you.

<SHORT ADJOURNMENT [11.08AM]
<RESUMED [11.22AM]

PN418

MR REITANO: Could I, before Mr Parry starts, just formally deal with page 298 of the appeal book. I understand copies have been provided.

PN419

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN420

MR REITANO: Could I ask the tribunal to substitute the photocopy for what appears at 298.

PN421

SENIOR DEPUTY PRESIDENT WATSON: Thank you. We'll do that, Mr Reitano. Mr Parry?

PN422

MR PARRY: If the tribunal pleases, we have filed an outline which we rely on.

PN423

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN424

MR PARRY: I don't propose to repeat that to the tribunal. The outline of submissions that are relied on by our opponents commence with the proposition in the very first line, "The issue before Cribb C and now is whether it was arguable that the VHIA was not engaging in good faith bargaining," and that epitomises exactly what has happened today. We've just had the case re-run again. The issue before this tribunal is not that question, the question that was before Cribb C. The issue is what she did on the day, was it attended by appealable error? She may have come to a view on the material before her and in the circumstances of that case which this tribunal does not agree with. However, unless that was arrived at in error, then it was open to her and not appealable.

PN425

Now, further might we say the outline of submissions of my learned friend contains many assertions, rhetoric, not based on the evidence, not formatted and are simply submissions made with the characteristic flourish my learned friend engages in. We say what has occurred today is simply a re-run of the case before her and we say on a fair reading of the material before the Commissioner at first instance, there were no errors. The material that she had before her underpinned and gave her a totally reasonable and appropriate foundation for the conclusions she reached.

PN426

I think, to be fair to the Commissioner below, it's worth going through - hopefully with some expedition - what was before the tribunal below. Now, if I take the tribunal to the appeal book and, as the tribunal would be aware, there were various applications that were lodged and appeal book 1 is the first transcript, and it's 24 February. At PN14 on appeal book page 2, Mr Irving who was then appearing for the HSU, said there was a matter, which was the application for an interim application, and there was a request that it be dealt with probably at the same time as other matters.

PN427

Now, he returns to that, at appeal book 7, and he asks for it to be listed in the week of 5 March. This is at PN59. As is said at PN62 - and the tribunal will note curiously that at this stage the HSU seems to have two advocates representing branches; Mr Irving advocating this application and Ms Reeve. As she said at PN62:

PN428

The primary concern of the HSU East branch is the delay that these applications have caused to our members. We seek a speedy resolution of the issues in order that improvements in terms and conditions of employment can be afforded to members of the HSU East branch.

PN429

So you have that imperative, as well. You have one part of the union saying this has to be dealt with quickly so that the members can get the benefits. You have another part saying they have an interim application to delay. This is the context the commission is dealing with. At AB9, PN87, Mr Irving says, recording the position, that - he says at bottom of AB9:

PN430

It's just that there's a huge number of employees awaiting the outcome of this application to progress towards - their enterprise bargaining awaits the outcome of this application.

PN431

She then programs the matter, as the tribunal will see at the bottom of appeal book 10, on 14 March, by agreement of the parties. It comes before her on 14 March 2012. Mr Irving makes a sort of opening for the HSU and his position at AB14, PN136, in asking for documents - indeed what's happening is one part of the union is asking for documents from another part of the union and this is what Mr Irving is telling the tribunal, as he says at PN136:

PN432

The situation with the Health Services Union, Commissioner, is simply this: a series of officers, including the national secretary, have gone rogue. They are acting well beyond their authority. They are refusing to comply with directions -

PN433

and so forth.

PN434

They are playing games with the union, they're playing games with the commission.

PN435

He repeats this submission further on and this is the sort of context that the tribunal is dealing with. The HSU advocate is saying the union has gone rogue, other parts of it are saying the matter has to be dealt with quickly, other parts are somewhere else.

PN436

DEPUTY PRESIDENT SMITH: Mr Parry, are we in a better position on the appeal? This is an appeal by the union and it says that an order should have been granted.

PN437

MR PARRY: Well, the tribunal will only get to the stage of rehearing the matter and determining it if it finds error in the part of the tribunal below.

PN438

DEPUTY PRESIDENT SMITH: Yes.

PN439

MR PARRY: And when the tribunal below is dealing with an urgent interlocutory application in the context that I'm briefly going to take the tribunal to, we would submit that there's no basis to find error below. We'll make the alternative submission that if the tribunal was to find some error below, that it would essentially come to the same conclusion on all the material before it now.

PN440

DEPUTY PRESIDENT SMITH: Thank you.

PN441

MR PARRY: Without going through the debate, there's a debate about a single-interest employer authorisation. At PN189 - this is the advocate for the union. He tells the tribunal:

PN442

In November this year it became apparent that the East branch was negotiating with the VHIA for mental health members.

PN443

That's what their advocates told the tribunal, that in November the union knew this was the position. Now, the actual hearing - because they'll be heard together; a bit mixed up together - of the interlocutory application commences at appeal book 43. At PN376, another application is adjourned off just to leave the interim application for the interim order as the only thing to be determined. Then the union tenders some witness statements of Ms Svendsen, the employer tenders a statement of Ms Lehane. The parties agree there's not going to be any cross-examination. The evidence essentially goes in uncontested.

PN444

Then Mr Irving makes submissions and in these submissions it's said - PN414, there's the notice of employee representational rights distributed, and that's accurate. There was. As it's clear as he describes there, the employers wanted an agreement, at PN415, with mental health; so by their own advocate telling the commission there was the employers wanting an agreement about mental health, there had been representational notices issued in compliance with the Act. Then the HSU advocate - and this wasn't something that was contested - at PN416, talks about the further negotiations; 3 October, 5th, 10th, through to November.

PN445

COMMISSIONER BISSETT: Mr Parry, which negotiations are we talking about? My understanding is that there were two lots of negotiations that involved officers of the HSU and people from the VHIA. I'm just wondering which ones these refer to.

PN446

MR PARRY: These negotiations were the follow-up - yes, there was a set for the psychiatric employees and there was a set more generally across the sectors. These ones, as I understand it, were - well, I'm only relying, I suppose, on what the advocate was telling the tribunal, that there were negotiations and there had been a number of meetings.

PN447

COMMISSIONER BISSETT: Well, the reason I asked the question is that my reading of that transcript suggests the notice of representational rights and these negotiations were with, what I might call for convenience, the HSU No 2 branch - Victoria No 2 branch - ie, the mental health group.

PN448

MR PARRY: Well, that may be the case. That may be the case.

PN449

COMMISSIONER BISSETT: Yes. Thank you.

PN450

MR PARRY: The long and the short of it is the position was that at PN425, he tells the Commissioner that someone has gone rogue and:

PN451

She -

PN452

presumably Ms Jackson -

PN453

has started to negotiate, purporting to negotiate, on behalf of members when she just has no authority to do so.

PN454

So I suppose whichever negotiations it is, the union's position to the Commissioner was that Ms Jackson was negotiating on people the union had the view she didn't have authority to negotiate for. The point we make here is that it's manifestly clear that Ms Jackson was negotiating and she was negotiating in respect of mental health employees, and that was taking place in October.

PN455

COMMISSIONER BISSETT: So you say that Ms Jackson was at those negotiations on the 3rd of the 10th and the 17th and so on, of October?

PN456

MR PARRY: This is the issue here that is of concern to us. This is a proceeding before the Commissioner, being dealt with at short notice. This is the material she is confronted with and this is what she is being told by the advocate. She has been told, the Commissioner, that the union were negotiating on behalf of members that the union had the view she had no authority to do so. Now, these are the sorts of submissions made and then at appeal book page 62 we end up in this proceeding where the Commissioner is asking Mr Irving about how is the VHIA to know who was going to be the bargaining representative for the HSU. She probably, as the Commissioner has indicated, was trying to work out what was going on.

PN457

It's put by Mr Irving that the negotiating meetings - and he talks about 26 September, and Mr Williams attended and there were officers who turned up to negotiate those agreements, and something about what the VHIA knew. She asks at PN521:

PN458

How did the VHIA know from HSU's side as to who was going to be the bargaining representative?

PN459

Mr Irving asserted, "They knew - they asked themselves the question," and the Commissioner says, "Is the onus on VHIA or is it on the HSU?" He says, "It's not an onus of any nature." She says:

PN460

The HSU you have said is the one who chooses who their bargaining representatives are, so HSU at some point in time chose who they were negotiating with VHIA about the agreement that's about to go out to members.

PN461

Mr Irving said, "Yes." The Commissioner then said:

PN462

What did the HSU do, apart from appearing in front of VHIA pursuant to those negotiations that let them know anything other than what their eyes could see and that was the people across the table were the ones who were HSU selected to be their representatives?

PN463

Mr Irving's response was, "What the HSU did was: - basically the rules. He just says the rules are there and she said:

PN464

Yes, but hold on a minute, who turned up at the meeting? Who turned up with VHIA to negotiate on behalf of HSU the agreement that is proposed to go out shortly? Who?

PN465

MR IRVING: Katherine Jackson.

PN466

THE COMMISSIONER: Right. So how were VHIA to know that she wasn't the appropriate person? She had the HSU hat on.

PN467

MR IRVING: Yes, for this simple reason, as soon as she said, "I'm negotiating not only on behalf of East branch, you know the East branch coverage we have had for 50 years … I am negotiating on behalf of the HACSU coverage, too."

PN468

THE COMMISSIONER: But why is it bargaining in bad faith, as in not in good faith if the employer accepts the HSU bargaining representative that is presented to them?

PN469

Mr Irving's response is, "It's an obvious lie." Well, that's not really assisting the position. He says they've been told; there have been letters written. Now, here is the slip. They're talking about letters that are written in post - in December. The Commissioner:

PN470

But I am assuming the negotiations started before all of the paperwork in November?

PN471

This all goes back years - the Commissioner:

PN472

Within that context, Kathy Jackson turns up representing HSU.

PN473

MR IRVING: She says - yes, she's representing - - -

PN474

THE COMMISSIONER: HSU.

PN475

MR IRVING: Yes.

PN476

So here is the union telling the Commissioner that Ms Jackson is turning up representing the HSU. The Commissioner:

PN477

In the negotiations for this agreement that's about to go out.

PN478

MR IRVING: Yes.

PN479

THE COMMISSIONER: I'm not talking the mental health one, I'm talking the parallel universe one, right?

PN480

MR IRVING: Yes.

PN481

The Commissioner quite rightly asked:

PN482

So why is it bargaining in bad faith if they accept, given that HSU chooses its bargaining reps, like management choose their bargaining reps - why is it bad faith if they accept Kathy?

PN483

MR IRVING: The first time when she said … they would automatically have known.

PN484

Well, that's an assertion. Indeed it's an assertion that's contested and it's an assertion on which there was evidence from the employer. That's the sort of material that's put before the Commissioner about the negotiations. The Commissioner, at 559, talks about the regime changing, about bargaining representatives. Mr Irving said, "I can't take the point any further." The Commissioner, at about 565, talks about when the agreement concluded, "Did that precede 1 December?" Eventually Mr Irving said:

PN485

No, but I should also say this. Do we today reward a liar and a fraud by allowing this to go forward?

PN486

So here is the advocate for the union saying she has been negotiating for the HSU. There's an assertion she didn't have authority based on the rules and ultimately it's said that the representative of the HSU is a liar and fraud. This is the sort of context we have where the Commissioner is making a decision about allegations of bad faith bargaining against the VHIA. The Commissioner, quite correctly - at 571:

PN487

It is the Act that guides my decision. You may couch it that way, but that's not the way the tribunal is looking at it. It's looking at it in terms of the requirements of the Act.

PN488

Now, there are few more toings and froings which I won't burden the tribunal with and eventually we get to the end of 14 March, and it gets adjourned until 2 o'clock on 16 March, so it's all moving fairly quickly. On 16 March, Mr Irving at PN606, AB71, hands up a supplementary witness statement of Ms Svendsen. Then there is some more material put, but the Commissioner is at this stage trying to work out what the allegations are against VHIA. At PN668 she says:

PN489

And so the complaint in terms of the capricious behaviour, not acting in good faith, is really between 31 January 2012 and the present.

PN490

Now, that is the present being 16 March; so that's the material, that's the case that was before her. Today we've heard much rhetoric about bad faith in December and January, and allegations made. Well, that's a different case. That's not the case that was being run before her. Then we end up in a world where there's more - Mr Irving is tendering - the supplementary witness is marked as an exhibit and there is then some more submissions made by Mr Irving, and there is then some more material tendered by the VHIA, on appeal book page 84.

PN491

There's a further supplementary statement of Ms Lehane tendered and there's an exhibit, R4, the heads of agreement. This is rather unremarkable. We have this sort of rhetorical stuff added being put in reply. It's manifestly simply being put as part of the employer's case in this proceeding. Mr Irving then proceeds to basically do what we've heard today. He reads the rules of the union. He goes through the correspondence that you've heard. Mr Wood, who is appearing for the VHIA, makes some submissions. At 861, the Commissioner starts asking about what has happened since the 16th with negotiations about that head of agreement and the primary position for VHIA is as is set out in 868; it was a drafting exercise.

PN492

Then if I could take the tribunal to 942. We're back here debating and making submissions about the heads of agreement. Again the union position is it's the rules and the HSU East, and he refers to the rules, rule 49, and the exclusion of mental health. Again the same sort of thing today. The Commissioner here starts getting to the real nub of the case in a way because she says:

PN493

You're the wrong person to ask because you weren't there. Isn't it as to - and I'm not being legal here, I'm just being practical -

PN494

and that's what bargaining considerations in this tribunal are about; just being practical -

PN495

all of the signatories to this HOA who they thought was covered by it?

PN496

Mr Irving takes the position:

PN497

It is what a reasonable person in a position of reading that statement would understand the parties to have intended. It's not a journey into the mind of Ms Jackson and it's not a journey into the mind of -

PN498

and he was probably going to say the VHIA. Well, I'm not sure of that. We could possibly say it is a journey. When one's looking at bargaining, one is looking at the deliberate and intentional conduct of the parties. The Commissioner says:

PN499

I understand that, but objective facts that are agreed … about what was happening at the time are relevant.

PN500

Mr Irving makes a submission, ending up talking about Guinness and the Irish person, whatever that means. The Commissioner says:

PN501

But from a tribunal's perspective, it's what did the little Vegemites who signed it - who did they think was going to be covered by the scope of the proposed agreement, because they should have known.

PN502

Mr Irving makes some submissions about that. She says, at 959:

PN503

It's important for the tribunal in terms of exercising the judgments required of it by this application, to have clarity about who the heads of agreement that was signed on 7 November 2011 covered, and I need that, otherwise nothing much is going to happen from here because it's fundamental to where you both sit.

PN504

The position of the union, they looked at the words. They adopted a legalistic approach, "Let's look at the words of the document." The Commissioner was adopting the right approach. That is, looking practically, who was this intended to cover when looked at in all the circumstances, and there were submissions made to her about that. At 963, she's following up what we say is the right approach"

PN505

Mr Irving, you seem to catch the brunt of the interruptions. Mr Wood, do you have instructions as to what exhibit R4 - who it applied to? Who it was going to cover?

PN506

Mr Wood makes the submission:

PN507

It was intended to cover everyone, including mental health employees. That was the understanding that Ms Jackson had and that was the understanding that Mr Djoneff had -

PN508

now, could I just stop there. That was the evidence. He goes on -

PN509

and it was consistent with previous agreements.

PN510

That's also true.

PN511

That is, the previous agreements have covered people in mental health -

PN512

and he refers the commission to exhibit R5. Exhibit R5 is the statement of Ms Lehane. Exhibit R5, I think that appears in the appeal book at 550. At 550, in paragraph 5, it sets out basically what he reads, but it's set out in rather more - on page 552 is actually that paragraph. He goes on and refers to the previous negotiations that had taken place, and there's reference to the statement of Ms Lehane in paragraph 966. That also appears at appeal book 548 where there is reference in paragraph 6(c) and 6(d) that - it's rather important here, because this is the evidence that was before her; Mr Djoneff, who was in the negotiations. 6(c):

PN513

At no stage prior to 1 December 2012 had anyone from the HSU indicated to him, or to his knowledge to anyone else from the VHIA, that the VHIA could not deal with Ms Jackson in respect of any aspect of the Allied Health Professionals.

PN514

Now, that is contrary to the sort of submissions we've heard, both written and orally, today. In (d):

PN515

In previous rounds of negotiations for predecessors of the Allied Health Professionals Agreement, VHIA dealt with the predecessors of HSU East branch.

PN516

The sort of suggestion that this is going off doing something different, is simply wrong. The HSU East branch had previously dealt with these negotiations, this particular position. That's the position of Mr Djoneff. This was an agreement on his understanding, and I think it appears also on appeal book 518 at paragraph 7. Mr Djoneff's instructions were that in late October 2011 following negotiations with Ms Jackson and other bargaining representatives, an in-principle agreement was reached with the HSU to cover allied health professionals including those workings in mental health.

PN517

In answer to the question that the Commissioner is asking, which we say is the correct one, Mr Djoneff - his evidence through Ms Lehane to the tribunal was - his view was that this agreement covered mental health. Now, the position of Ms Jackson wasn't directly put to the tribunal and indeed - - -

PN518

DEPUTY PRESIDENT SMITH: Could I just, I'm sorry, ask you to pause for a moment, Mr Parry.

PN519

MR PARRY: Yes.

PN520

DEPUTY PRESIDENT SMITH: I've gone to the heads of agreement. Mr Djoneff thought it covered those employees. Can you just indicate to me where they're covered in the wage increase clause?

PN521

MR PARRY: We don't interpret it as a legal document.

PN522

DEPUTY PRESIDENT SMITH: No, I understand, but if he believed that he was covering those persons for the purpose of agreement, where are they covered in wage increases? If they're not, then I understand the nature of the agreement reached.

PN523

MR PARRY: Well, they would be getting the wage increases in 5.3.1 and 5.3.2, on page 594. They just fall within that category.

PN524

DEPUTY PRESIDENT SMITH: Thank you.

PN525

MR PARRY: So as far as Mr Djoneff and the VHIA were concerned, this was an agreement that applied to mental health employees and it was going to be applied to them. One can pick out certain parts which can be read by legal practitioners one way, other parts we would say are consistent with it being an agreement simply to apply in an industrial sense; but that's not all the evidence. Some four days after this heads of agreement was reached, Ms Jackson is in the market - appeal book 278 - advising in a distribution of a newsletter to all Victorian public health members, which must by definition include mental health workers. In the second paragraph:

PN526

The union wishes to make sure that it is understood that the current negotiations being conducted by HSU East do cover health professionals and support service employees employed in or in connection with mental health in the Victorian public health sector.

PN527

At around the time the heads of agreement is reached, it has been made pretty clear to the members and to the union that the HSU East branch is representing mental health workers. Ultimately that's consistent with the way the Act operates. The Act doesn't break down to components of branches within unions. The HSU is appointed as the representative by operation of the Act. It's matter for the union as to who it authorises to attend. It can authorise somebody that's not even employed by the union to attend. It could authorise anyone to turn up to the meetings and of course it can authorise one of its own employees or officers, and indeed here where Ms Jackson is the national president, she could clearly be so authorised. We would say it's fairly clear that - I'm sorry, the national secretary of the union, has fairly broad powers on an apparent basis.

PN528

Indeed if we were required to go to the rules - which we say we're really not - then if somebody had have carried out that exercise, they would have found fairly clearly that she had at the very least ostensible authority to negotiate. Now, we've set these out in our written submissions at page 10, footnote 10, where we refer in particular to rule 32 where the national secretary, in 32(n), has authority to control and conduct the business of the union between meetings of the national executive. Now, these are broad powers and have so been read.

PN529

In the proceedings before the Commissioner, she has been asking the right questions and she has been taken to the appropriate material before her. She has been taken to the evidence and that's put to her at 969. The argument is put that all you've got really is the evidence of Ms Jackson and that's what they take the position. The Commissioner at 971 says:

PN530

Let's do it another way. Mr Irving, you have been very careful in your submissions. You have talked about the rules of the HSU No 2 branch. In terms of the material that Mr Wood has just pointed to, which were, for example, in exhibit R3, Ms Lehane's statement regarding what she had been informed by Mr Djoneff … are you going to argue with that?

PN531

MR IRVING: Yes.

PN532

THE COMMISSIONER: Why?

PN533

MR IRVING: For two reasons. First, there is in existence a mental health certified agreement which expired … which covered employees engaged …

PN534

THE COMMISSIONER: Which agreement are we talking about?

PN535

MR IRVING: The Mental Health Agreement which has been in place for three years.

PN536

Now, whether what that is is an argument, I'm not sure, but he then goes on:

PN537

The second proposition: Ms Jackson then went and got a certified agreement made which covered employees in mental health, as well, so there were two certified agreements running parallel covering the same employees, setting out different conditions. That happened in 2010 and 2011. As George Bush once mangled, "Fool me once, shame on you; fool me twice, shame on me." Ms Jackson may have got away with it the first time, but she has been called to account on the second time and we're not going to have the position where people surreptitiously reach these agreements in secret and then have a branch walked all over a second time around.

PN538

That's the argument that's put against and this is before the Commissioner. The Commissioner quite rightly says:

PN539

But the proposed agreement that is the subject of this application is a successor agreement to what I would call 1, 3 and 5, because it has been around too long, so in terms of this application, it's not about the psych agreement, if I can put it colloquially; it’s actually about the health professionals agreement really, which got added 1 and 5 to -

PN540

and the argument goes on. There's no real answer to the sort of arguments that have been put. There are some more arguments raised by Mr Irving, basically the rules argument again, saying that, "Well, you know, when she turned up, we should have known she had - this branch had on - we shouldn't have treated her like the national president." We can say this: at the end of the day, the union can authorise anyone they like. She could have been authorised as the HSU East executive president. She could have been authorised as the national secretary. At the end of the day the VHIA was entitled to treat her as a representative even though in these proceedings the union was quite happy to say that her authority had been revoked and she was an unfit person to be negotiating in any case.

PN541

Now, ultimately after hearing all this argument and remembering the context it's in, the Commissioner hands down an extempore decision. We would say that having everything that has been put to her - this is a tribunal that has before it an urgent application. It's a matter that has to be dealt with, with some expedition. You've got on the first day one group of a union saying, "We want it put out." You've got another group saying, "Well, we want this application dealt with to stop it going out," so she's in this war.

PN542

Quite appropriately, we'd say, she deals with the matter expeditiously and in a way it's a matter where the effect of the order either way would have some significance for the parties. In some ways this is a bit beyond just the debate about whether there's an arguable case and the classic separate headings test. This is a tribunal where really she has dealt with the matters together. In a practical sense she has looked at what's the right decision at this point in time and, as she said, it's an extempore decision. She sets out the common ground, the debate and ultimately she gleans down to, at 1053, have the good faith bargaining requirements been met?

PN543

She then makes a finding about exhibit R4, being the heads of agreement. In exhibit R4, she finds it's a head of agreement signed by the parties on the 7th of the 11th.

PN544

On the basis of all of the material before me, I am satisfied that the heads of agreement includes mental health.

PN545

Now, all the material before her totally justified that conclusion. That was a satisfaction that she was entitled to come to. It's not an appellable error to say she could have been satisfied of something different. It really has to be said that she could not, on a reasonable view, have been satisfied of that. We say when you've got the evidence of Mr Djoneff, what's said by Ms Jackson publicly, that she was entitled to conclude that the deal that was struck included mental health. Our submissions at paragraphs 25 and onwards set out that ample evidence that we say applied.

PN546

From that premise - and we say there's no error been demonstrated today, just an argument based on some legal construction of this, absent all the other evidence. My learned friend hasn't taken you to any of that other evidence. He is just running this pure legal argument. On this purely legal argument, then you can't be satisfied of this. He has consciously, I've got no doubt, decided to leave this other stuff aside and on that basis we say the satisfaction of the Commissioner isn't open to appellable challenge.

PN547

The second issue then she deals with again, quite correctly we say, and she talks about the factual matrix and what occurred after that agreement was reached. As Mr Djoneff has said - and I've taken the tribunal to in Ms Lehane's statement - after that there was a drafting exercise. After the in-principle agreement there was a drafting exercise where the VHIA was preparing documents and forwarding them to the HSU. She makes a finding at PN1057 that:

PN548

The VHIA made an effort to accommodate the changed circumstances that they were presented from the other side of the bargaining table.

PN549

My learned friend says, well, he can't find the word "accommodation" anywhere. Well, that is, with respect, a sterile argument. Ultimately that was her characterisation of what occurred. I also would say that it would be fairly clear that the VHIA never recanted or said that the heads of agreement had no effect or they weren't going to apply it. Indeed, everything the VHIA has done since was consistent with them treating the heads of agreement as something industrially binding on them. They did make an effort to accommodate the changed circumstances and we say that description of what occurred in December and January is fair and open to her on the material that was before her.

PN550

They did attempt to accommodate it. They did attempt to address this sort of changing face of what was on the other side of the table in the vernacular with people having authority, then not having authority and apparently people within the union not talking to other people within the union. That may have been going on or it may not have been. Ultimately as an employer the VHIA was entitled to deal with the people on the other side of the table and assumed that the bargaining representative by default, being the HSU, was acting essentially as one and able to, within its own machinations, work out who was going to deal with the matter.

PN551

The Commissioner below, at PN1058, made a finding consistent with that. Again it's an unarguable proposition in a way that she was - it was a view that she was entitled to form, at PN1058, that they were "entitled to accept that Ms Jackson was the Health Services Union bargaining representative for the proposed agreement," and that they negotiated the in-principle agreement in good faith and they put it in writing. Now, at PN1059, they received Mr Mylan's letter, as she finds, and she said:

PN552

The first draft then excluded mental health and, as I understand it, it was on the basis of trying to accommodate the change that had occurred on the other side of the bargaining table.

PN553

Again, an unremarkable finding clearly open on the evidence.

PN554

The VHIA on 25 February -

PN555

then she says -

PN556

adhered to, to use the terms in the submission, the in-principle agreement that had been reached in November 2011.

PN557

My learned friend says from the bar table today there's no evidence of that, and that's something that she reached a view of without evidence. We say that that is and was the evidence, and that's at appeal book 519 in the witness statement of Ms Lehane at paragraph 11. Referring to correspondence in that, referred to in the good faith bargaining application, Ms Lehane said:

PN558

The effect of those letters was that HACSU did not want the enterprise agreement being negotiated to include allied health employees working in mental health. I am instructed by Mr Djoneff that while VHIA initially was prepared to agree to this request, VHIA decided to adhere to the allied health professionals agreement following feedback from the employers for whom VHIA was the bargaining representative.

PN559

There was evidence that she could have accepted. Her conclusion was unremarkable. She goes on her decision to say:

PN560

I know that Mr Wood didn't accept them, the VHIA, having attempted to accommodate … found that they were unable to do that and in my view were entitled to go back to the agreement in-principle that had been negotiated.

PN561

Again can we say that was a view she was entitled to form. It was a view open on the evidence and we would say it was the correct view. It is not uncommon in industrial affairs for parties to reach agreements and then reduce them to writing whereby they have industrial effect, and then there's often attempts to renegotiate or bring up new issues or new issues are discussed; but that doesn't mean these agreements reached in an industrial sense simply can be consigned to the dustbin and forgotten. Depending on the position of the parties, they can still have force and effect, and they can be required to be adhered to in an industrial sense; and that's what occurred here. That was, we would say, unremarkable, and the Commissioner was quite entitled to form the view she did and there's no error that can be pointed to with regard to that.

PN562

She repeats again the efforts of the VHIA to try to accommodate the matters and she forms the view ultimately that at an interlocutory level there wasn't a serious question to be tried that the VHIA had not met the good faith bargaining requirements. We would say, fairly reading the judgment and fairly reading the material that was before her, that was a conclusion that was open to her, it was consistent with the evidence and is not attended by error. Accordingly, we say that leave to appeal shouldn't be granted with regard to this matter.

PN563

Now, obviously if I take up Deputy President Smith's observations, we would say if there is error - and we don't in any way acknowledge that, if there is error - then this tribunal can re-hear the matter, make its own determination. With regard to that, we would say that they would respectfully come to the same conclusion having all that material before them and there's no new evidence that has been put in today. The material and the submissions below were what were before her and, as we say, we say there's no error with regard to these matters and we would say that the right conclusions were reached. Clearly our submissions go into a bit more detail with regard to some of these matters, but for those reasons we say this application should be dismissed, if the tribunal pleases.

PN564

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Parry. Mr Reitano?

PN565

MR REITANO: I will try and desist from my characteristic flourish and therefore my submissions will probably be a little more boring than they might otherwise be. Could I deal with, right up at the very front, what is the two huge chasms that appear between the submissions of my learned friend and myself. They appear to be two things that I think ultimately come together as where we part company in respect of the appeal. That is this: firstly, it is said that we have not identified relevant error in the House v R sense, and I'll provide the relevant passage from House v R in a moment to demonstrate why that's wrong.

PN566

Secondly, and more importantly, it is absolutely essential to understand that this is not an appeal in the usual or normal sense in the way in which my friend developed his submissions, because it needs to be said - or the Commissioner needed to find not only that the facts were so, and bearing in mind that she's dealing with hearsay evidence largely from VHIA because it's an interim application and bearing in mind because it's an interim application and my friend seemed to have some tangential criticism of this, we say it's absolutely right, there was no cross-examination. If we were going to the Supreme Court of Victoria, we'd need leave to cross-examine in an interim - well, sorry, the Supreme Court of New South Wales. I don't know what they do in Victoria. We'd need leave to cross-examine. Usually people don't cross-examine in interim applications.

PN567

It is important to understand that the principle the Commissioner was applying was not that she needed to find black or white. It was not a question of finding in unambiguous terms as one might, for example, on the balance of probabilities or on any other onus in a final hearing that, for example, the heads of agreement didn't apply to mental health employees. Now, I, with or without flourish, put that it is clear as day that it didn't apply to mental health employees. One only has to look at the terms of it and no amount of fudging of the wage increase clauses is going to turn those clauses into applying to mental health employees. In black and white they don't apply to them, full stop, end of story.

PN568

The Commissioner's task was to determine it on the basis of whether there was an arguable case, so it's not quite correct to say this is right and that was wrong, or it was open to the Commissioner and so on. The Commissioner had to find that what we were saying was hopeless, unarguable. I withdraw "hopeless" - had to find that what we were saying was unarguable. With respect, it just isn't open. That's the first arm of the error. The second arm of the error is it's just wrong in any event, which is what I developed when I was on my feet. That is, that one only looks at the agreement to see - and looks at the evidence - and I'm sure if there was other evidence that supported the conclusion that I didn't refer to, I'm sure my learned friend would have referred to it.

PN569

There was a distinct want of any reference to any other material or evidence that supported a conclusion that the agreement related to mental health employees. The reason for that is because there wasn't any. The reality of the fact is that the evidence about who the agreement applied to, was the agreement itself. In black and white, it cannot be read to apply to them. Could I just hand up a copy - I don't want to label this. House v R has been done to - - -

PN570

DEPUTY PRESIDENT SMITH: Mr Reitano, what are you asking us to do, apart from upholding the appeal?

PN571

MR REITANO: Well, there are three things I'm asking the tribunal to do. Firstly, grant permission to appeal. Secondly, uphold the appeal, quash the decisions and orders below. Subject to instructions, either make an interim order or have someone deal with urgently an application for an interim order to the effect of what the Commissioner was asked to do.

PN572

DEPUTY PRESIDENT SMITH: And how long was she asked to make the order for?

PN573

MR REITANO: I don't want to mislead the tribunal, but until the determination of the good faith bargaining application, I think. If that's not what she was asked for, that's what I would ask for - I'd seek instructions to ask for. If that can be dealt with next Monday or Tuesday, we are available. Because we are asking for the matter to be dealt with on an urgent basis, we must participate in that process and we certainly would deal with it as quickly and as expeditiously as we could.

PN574

Could I just hand up copies of House v the King. I don't want to deal with it in any great length, but I do want to point out that - could I have that copy back. I'm sorry. I had one marked up with my notes on it. The relevant passage is well known. It's found at 505 of what I've handed up. Often it's circumscribed, but the well-known passage starts from the third line:

PN575

It must appear that some error has been made in exercising the discretion if the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts -

PN576

and that's what we say about the agreement. There's a mistake about the facts.

PN577

If he does not take into account some material consideration -

PN578

and parenthetically grounds 2 and 3 of the notice of appeal are the material considerations that we say should have been taken into account -

PN579

then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so.

PN580

I think that maybe perhaps deals with Deputy President Smith's question. It is open for the tribunal to deal with it, because all the material in respect of the interim order is before this tribunal as constituted.

PN581

It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

PN582

That's the passage we rely on and we say that our grounds of appeal squarely fit within those principles. The third matter I wanted to deal with in reply is I think Commissioner Bissett raised the question as to were parallel negotiations going on, or words to that effect. That is precisely what the evidence was below; that there were negotiations with Ms Svendsen and Mr Williams that commenced somewhere after 8 July 2011 - and I'll disclose the secret why that's the date - and at the same time there were other negotiations going on with Ms Jackson.

PN583

The other negotiations with Ms Jackson involved health generally, but they were well aware. This is no surprise. They were well aware that the people dealing with mental health employees, the people who were held out by the union to have authority to talk about mental health employees, were Williams and Svendsen. Why? Because on 8 July when the process started, they were, in effect, told that.

PN584

If I could ask the tribunal to go to appeal book 237. Now, I think the first page is the letter that accompanied the log of claims. You'll see that it's to Alfred Health. I don't want to make a great deal of this issue, because Alfred Health is not the VHIA, but in the third paragraph there's a reference to the certified agreement that's going to expire and the need to negotiate a new agreement; then on the next page there's a letter to the chief executive of the Victorian Hospitals Industrial Association. I think the letter is enclosed. One letter encloses the other because it says:

PN585

Enclosed please find the union's claim issued on behalf of our members working in mental health services and sent to all mental health services today.

PN586

It's not surprise to anyone that it's signed by Mr Williams, the state secretary, and it provides:

PN587

In addition, we've included a copy of the cover letter sent with the claim. This claim has been developed through extensive consultation with our members via surveys, meetings and forums, and seeks to address the issues of most concern with respect to employment standards, workload and professional development. It is a claim for a single, comprehensive agreement to cover all employees regardless of classification, including mental health nurses, health professionals, psychiatrists, direct care and support staff.

PN588

Then there is a reference to the agreement that is about to expire and then in the last paragraph - and I'm sure most people don't read them, but the last paragraph here is vitally important:

PN589

If you have any queries, please contact our senior industrial officer, Leigh Svendsen -

PN590

and provides her phone number. Not Ms Jackson, not Mr Mylan, but Ms Svendsen. If I could then ask the tribunal to turn to 255. I don't read any of this, other than to note that this is evidence in written form of the chief executive officer of the Victorian Hospitals Industrial Association dealing with and writing to Mr Williams as the state secretary, and then again at 267 there is a letter of 7 October, again not from HSU East or not from that emanation of the union, not from Ms Jackson, but from Mr Williams - - -

PN591

SENIOR DEPUTY PRESIDENT WATSON: Sorry, what page?

PN592

MR REITANO: 267. This is referred to as being provided to - I think it's provided to the chief executive officer by way of a complimentary copy at the foot of the letter. It's a letter sent to the senator, but provided to the chief executive officer of VHIA. You will see there in the first paragraph they seek a single-interest declaration for employees in the mental health sector in Victoria:

PN593

The Health Services Union No 2 branch covers all classifications of employees who work solely or predominantly in psychiatric of mental health services and who would be covered by replacement agreements in the sector, whether a single agreement under a single-interest declaration or separate agreements with each employer -

PN594

and then there's a list. I don't labour the point in the next paragraph about the scope of classifications. It's all about everyone in mental health, and that letter is then sent for the information of the Victorian Health Industrial Association. Again the same thing happens in the letter at 269, where the Victorian Hospitals Industrial Association is writing to the minister and there's reference in the second paragraph:

PN595

The relevant employers wish to bargain together for an agreement to cover them and the following employees and employers.

PN596

That's over his hand. Now, that was all in the context of Ms Svendsen's statement, and I'm not going to read it to the tribunal, but at appeal book 126, paragraph 12 through to about paragraph 47, Ms Svendsen sets out the history of the negotiations and the meetings that she attended with VHIA, which includes meetings throughout September and October as I recall. That is all summarised in another document in the appeal book and again I just provide the reference to it, which is found at page 503.

PN597

This was handed to the Commissioner and again all the dates there refer to all the meetings that Mr Williams and/or Ms Svendsen were having in respect of an agreement to cover mental health employees. They could not have been confused in the period from 8 July to 30 November about who was negotiating an agreement for mental health employees in Victoria. There could not have been any serious issue about that. 1 December put it to bed, because there appeared to be some issue that arose, perhaps inferentially by sleight of hand or otherwise - but before 1 December, they knew who they were talking to and the suggestion to the contrary, to the extent that it's unarguable is, with respect, misplaced.

PN598

Finally, I want to deal with two points. The first one is I invite the tribunal on appeal to treat very carefully the employer's attempt here to suggest that there were two HSUs, as it were. It is true that on the first occasion that the matter came before Cribb C, there were two people seeking to represent the HSU. One of them left very quickly soon thereafter in terms of running the case and Mr Irving ran the case. It is tempting to say or tempting to look at, or maybe tempting to accept the submission, well, this is all very confusing and a curse on the HSU for the creating that confusion.

PN599

The answer back at that is it doesn't entitle people, if there is that confusion, either to take advantage of it and nor should it be seen to depreciate the rights of employees to have their union to engage in good faith bargaining both ways, with VHIA in this case and HSU in the other.

PN600

DEPUTY PRESIDENT SMITH: Can I just ask you this: the union then left -and when I say left, I mean left in the proceeding below - then criticised itself for purporting to bargain in a way in which it was authorised. That was, Mr Irving - - -

PN601

MR REITANO: I don't understand the question. I'm sorry.

PN602

DEPUTY PRESIDENT SMITH: That's all right. The point that Mr Parry made was what was before the Commissioner was a concession by the union that the VHIA had indeed believed it was negotiating properly with Ms Jackson.

PN603

MR REITANO: I didn't understand that. I'm not for one moment suggesting that that's not what was said, but I didn't understand that from the submission. In terms of negotiating properly with Ms Jackson, if the effect of the concession is that, the answer to that is twofold. Firstly, we know after 1 December that that just couldn't be the case.

PN604

DEPUTY PRESIDENT SMITH: Yes.

PN605

MR REITANO: Because they're on express notice. In one sense I don't need to go back behind 1 December, because as at 1 December they were told by the union, "That's just not the case. It's not the case today and hasn't been the case in the past." They knew. "Now talk to us. If you want to talk about accommodating things in mental health employees, if you want to talk about scope clauses, talk to us, but whatever has happened to here, not right. We're putting you on notice. The only body authorised is HACSU." If it was before 1 December and if a concession was made, the highest the concession could get is that there may have been confusion about whether Ms Jackson had authority or whether the East branch had authority.

PN606

If there was confusion, why don't they ask? They knew. I keep coming back to it and deliberately so. They knew they were talking to two sets of people. They must have known, because they were. They couldn't have gone into one room and then immediately forgot when they left, and gone into the other room.

PN607

SENIOR DEPUTY PRESIDENT WATSON: Maybe there were different people that sit in negotiations.

PN608

MR REITANO: No, no evidence of that.

PN609

MR PARRY: No evidence. That's right.

PN610

MR REITANO: No evidence of that. There's certainly evidence below that Ms Svendsen was talking and there's certainly evidence that Ms Jackson was talking, and it appears that the person they were talking to or the people they were talking to were the same people; the chief executive officer and others.

PN611

DEPUTY PRESIDENT SMITH: But has there been overlapping coverage in two industrial agreements?

PN612

MR REITANO: There has been. I don't run away from the proposition that the Commissioner I think referred to in argument and that Mr Parry puts, and I don't need to run away from it because it is, strictly speaking, irrelevant. The predecessor to the agreement was done in a way where allied health classifications or allied - yes, allied mental health classifications were included in a health agreement. That has happened, but here, dare I say it, the universe was being disturbed and HACSU was saying, "We want one agreement for mental health." 8 July. "There's our log of claims. One agreement for mental health."

PN613

Now, maybe the employers didn't like that. That's just, you know, something that they're dreaming up. Maybe they didn't like that and they wanted to do it some other way, but that didn't entitle them to disregard good faith bargaining rules or obligations. Whether there was division within the HSU, whether there were five sets of people negotiating, they still had to negotiate in good faith and that meant either making sure that the people they were negotiating with - one set of them - were the people who had authority, and talking to them. After 1 December, talking to them, the people they knew who had authority, and saying to them, "Look, we know she didn't have authority before 1 December, but she was offering us an agreement with everyone, and we want to sit down and talk to you about that. We want to talk to you about accommodation, if that be the case," but that's not what they did.

PN614

After 1 December, in particular on 21 December, they said, "We renounce" - don't be cute about it. "We renounce an agreement that includes allied health people." That's what they said. "We are no longer seeking that." On any reading of the 21 December letter, that's what it said, and Ms Jackson said likewise. If we're in breach of an agreement that we reached in - which I've been at pains to emphasise was not so, but if we are in breach of an agreement that we made on 7 November, then that is not the position. That was what Ms Jackson was saying and the employers were saying, "We're walking away from that. That's not what we want any more out of an industrial agreement or an enterprise agreement." If they did want it, then they should have been talking to them in good faith. If it please the tribunal, those are my submissions.

PN615

SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Reitano. We'll reserve our decision on the appeal.

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