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B2013/ 721 , Transcript of Proceedings [2013] FWCTrans 250 (4 April 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1047721-1

COMMISSIONER BISSETT

B2013/ 721 

s.437 - Application for a protected action ballot order

Australian Principals Federation
and
State of Victoria (Department of Education & Early Childhood Development)
(B2013/ 721 )





Melbourne

9.36AM, TUESDAY, 26 MARCH 2013

Reserved for Decision

PN1

THE COMMISSIONER: Changes in appearances?

PN2

MS A DUFFY: Yes, Commissioner. If the Commission pleases, my name is Duffy, initial A. I seek permission to appear for the applicant.

PN3

THE COMMISSIONER: Thank you, Ms Duffy.

PN4

MS DUFFY: I should say I appear with MR GARDNER, this morning.

PN5

THE COMMISSIONER: Thank you, Ms Duffy.

PN6

MR FORBES: I appear for the department, Commissioner. I'm not sure whether permission was actually granted on the last occasion, but I seek that permission.

PN7

THE COMMISSIONER: Thank you. I assume there's no objection to permission?

PN8

MS DUFFY: No.

PN9

THE COMMISSIONER: Permission is granted. Ms Duffy?

PN10

MS DUFFY: Commissioner, I only propose to make brief discussions at the outset, and I think that's primarily because many of the matters that the applicant relies on are in a statement of Mr Cotching, that you should have received, I think, last yesterday.

PN11

THE COMMISSIONER: Yes, I did, thank you.

PN12

MS DUFFY: And I would certainly propose to call him early in the piece and then return to some of the matters, particularly, the legal matters that have been raised by the department.

PN13

Now, Commissioner, as you're probably are aware is, of course, an application for a protected ballot order from the APF and it's clear, under the Act, that the Tribunal must - the Commission, I should say, must make a protected action ballot order in relation to a proposed enterprise agreement if the criteria that is set out in section 443(1) of the Fair Work Act are satisfied.

PN14

The first of those, sub paragraph (a) is that an application has been made under section 437. I don't think there's any dispute about that. The second part of section 443(1) is sub paragraph (b) which says that the Commission must be satisfied that each applicant, in this case there is only my client, has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

PN15

Now, Commissioner, essentially, that's where we say that you need to hear the evidence from Mr Cotching to make that determination. It's my submission that that - the question - the key question that must be determined by the Commission is whether the APF is genuinely trying to reach an agreement and my submission is that you will be persuaded by the evidence of Mr Cotching that that certainly is the case.

PN16

Now, as we understand the department's claims, essentially, they are that the APS is not genuinely trying to reach agreement because some of the claims they say are outside the powers that referred - under the Referral Act and/or because the claims infringe the AEU limitations which is, essentially, very similar in terms of the way that the terms of the Referral Act are framed to pick up those AEU limitations.

PN17

Now, it's submission, Commissioner, that the department's submissions on those, I suppose, technical or, certainly, legal matters are really just an attempt to try to prevent the APF from exercising its rights under the legislation and, in fact, having a ballot with a view to taking protected industrial action.

PN18

I am instructed that those matters have not been raised at any stage during negotiations, and those negotiations have been extensive. I don't think there's any dispute between the parties. There's been, I think, some 30 or 33 meetings and those negotiations have been taking place since August 2011.

PN19

I'll just briefly explained, Commissioner, that the evidence that Mr Cotching will give will indicate that not only does the history of those negotiations indicate that the APF has been genuinely trying to reach agreement but further they are intending no impairment in a AEU sense on the State's functions because insofar as any of the APFs claims are said to offend AEU, or go outside the powers under the Referral Act, those claims are not pursued and that's contained in a resolution that is attached to Mr Cotching's statement.

PN20

Further, Mr Cotching will give evidence that those matters have, essentially, been hived off to a working group. So they're not part of the current claims that are, in fact, what the union is seeking in relation to a proposed enterprise agreement. But it's probably less, Commissioner, unless there are other matters that you want to go to, that we hear that evidence before I take those matters any further.

PN21

THE COMMISSIONER: Certainly.

PN22

MS DUFFY: I call Mr Cotching.

PN23

THE ASSOCIATE: Please state your full name and address?

PN24

MR COTCHING: Christopher John Cotching (address supplied)

<CHRISTOPHER JOHN COTCHING, SWORN [9.42AM]
<EXAMINATION-IN-CHIEF BY MS DUFFY [9.43AM]

PN25

MS DUFFY: Mr Cotching, you are currently the federal president of the Australian Principals Federation, and also president of the Victorian branch of the Australian Principals Federation, that's correct, isn't it?---Yes, it is.

PN26

Your business address is Unit 2, 12 to 21 Vale Street, North Melbourne, Victoria?---That is correct.

PN27

Mr Cotching, you've prepared a statement for the purpose of today's proceedings, haven't you?---I have.

PN28

Do you have a copy of that statement in front of you?---I do, indeed.

PN29

Can I ask you just to confirm that the statement runs to four pages, some 22 paragraphs, and has a two page attachment?---I confirm that, yes.

PN30

Are there any changes or corrections that you need to make to that statement?
---No.

PN31

I ask, Commissioner, that the statement be marked.

PN32

THE COMMISSIONER: Certainly. I will mark the statement of Christopher Cotching consisting of 22 paragraphs and one attachment as exhibit APF1.

EXHIBIT #APF1 WITNESS STATEMENT OF CRISOPHER JOHN COTCHING CONSISTING OF 22 PARAGRAPHS WITH ONE ATTACHMENT

PN33

MS DUFFY: I have no further questions.

PN34

THE COMMISSIONER: Thank you. Mr Forbes?

**** CHRISTOPHER JOHN COTCHING XN MS DUFFY
PN35

MR FORBES: Thank you.

<CROSS-EXAMINATION BY MR FORBES [9.44AM]

PN36

MR FORBES: Mr Cotching, you referred to - in your statement you referred to a log of claims that was served upon the department in May 2011. The log of claims referred to the Principal Class Officers' Agreement 2012 Proposed Log of Claims. Now, that log of claims is the same log of claims, is it not, that your union annexed to section 240 application filed with this Commission earlier this month?---Yes.

PN37

It is the position, is it not, that application, pursuant to section 240 was filed with the Commission on 5 March this year?---Yes, that's correct.

PN38

The log of claims was filed - or was attached to that application?---Are you referring to the 240 application?

PN39

To the 240 application, yes?---Yes, it was.

PN40

That was identified as the matters in dispute?---Yes.

PN41

Thank you. Yes. And it's the case, isn't it, that as at 5 March this year when that log of claims was filed with the section 240 application that the claims contained in that log were, in fact, the matters in dispute between your union and the department?--- - - - in terms of matters in dispute I would make the statement, if I could, that - - -

PN42

Well, I asked you the question that as at 5 March, when you filed the 2011 log of claims or attached the 2011 log of claims, to the section 240 application, and identified in the application that those were the matters in dispute, those were, in fact, the matters in dispute?---I dispute that they were - - -

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN43

Thank you?--- - - - (indistinct)

PN44

Now, I think your evidence is that there's been in the order of 30 or so meetings between - - - ?---Correct.

PN45

- - - your negotiating team and the department's negotiating team?---Correct.

PN46

Those negotiations have been confidential to the parties?---Absolutely.

PN47

And it's the case, isn't it, that during the course of those negotiations the parties have explored ways of seeking to reach an agreement of some kind?---Correct.

PN48

Proposals have been put forward and - proposals have been put forward by both parties?---Correct.

PN49

There have been discussions about various matters contained in that log of claims?---Correct.

PN50

Yet the fact of the matter is, as we stand here today, no agreement has been reached, has it?---Correct.

PN51

Now, it's the case, isn't it, Mr Cotching, that nothing is agreed until everything is agreed?---Correct.

PN52

Thank you. You've given evidence in your statement - you referred in your statement to a resolution that was made by the Principals' Federation Executive yesterday?---Yes, correct.

PN53

The attachment CC1 is that resolution, isn't it?---Correct.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN54

Now, am I correct in saying that by reason of that resolution your union is no longer pursuing certain claims in the log?---It makes that clear.

PN55

Well, you tell me where it makes that clear?---Well, we make reference, of course, to the Referral Act and the limitations of the AEU. And we're aware that those items, of course, have been - long been removed and are the subject of working party discussion.

PN56

So is it the case, is it, that there are now claims within the log of claims, which are no longer claims at all?---That's right. They're matters that are outside the EBA process - - -

PN57

So they're not - - - ?--- - - - limitations or Referral Act.

PN58

So they're not being pursued at all?---They're being pursued through another avenue.

PN59

Well - - - ?---And the avenue being the working parties.

PN60

Well, are they being pursued by your union or not?---They are being pursued by unions with but replaced by the working parties as I refer in my statement.

PN61

Yes. And is agreement being sought in relation to those - - - ?---No agreement has been sought in relation to those matters at this present time.

PN62

Do you say no agreement is being sought in relation to - - - ?---I'll come back to the proposition you put before, if there's not total agreement there's no agreement.

PN63

Yes?---So these are matters that are being referred to in working parties for discussion and elaboration and further clarification. They are matters that we understand cannot be part of an EBA given the limitations of the AEU and the Referral Act.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN64

So you're seeking to negotiate those matters with the department?---We certainly - yes, we're certainly seeking to negotiate those matters - - -

PN65

You're seeking to take industrial action in relation to those matters?---Not in relation to those matters, we're more concerned about pay and conditions and classification.

PN66

Now, do you have a copy of the log of claims in front of you?---No, I don't.

PN67

I'll just see if I can get a copy. Commissioner, I think you'll find a copy of the log of claims behind tab 4 in Mr Bugden's draft statement.

PN68

THE COMMISSIONER: Thank you.

PN69

MR FORBES: Now, that - I'm instructed that that is the log of claims that was attached your union section 240 application. Do you agree with that?---Is that a question, sorry, I missed that.

PN70

Yes. My instructions are that that log of claims - - - ?---Yes.

PN71

- - - that you have in front of you, is the log of claims that was attached to the section 240 application that was made to the Commission on 5 March?---Yes.

PN72

Is that correct?---Yes.

PN73

Is it your evidence that as of yesterday seven claims in that log are no longer being pursued?---There's acknowledgment those claims would be referred to - would be dealt with other matters.

PN74

Well - - - ?---No, they're not being pursued.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN75

They're not being pursued?---No.

PN76

Is it the case then that certain claims with that log of claims have now been formally abandoned by your union?---They've been abandoned as part of an EBA process.

PN77

So insofar as you're seeking to negotiate an enterprise agreement to be certified or approved by this Commission, there are claims within that document which have now been formally abandoned, is that correct?---They've been abandoned - well, your words, abandoned; our words is they've been hived off to other places.

PN78

Well, see, I just want to be clear as to whether these claims have been withdrawn or not?---Well, they're withdrawn at the moment in the EBA process with limitations to the AEU and the Referral Act.

PN79

I see. Well, can you please tell the Commission which claims have been withdrawn?---All those matters that are detailed in the statement refer to items that have been referred to working parties. Matters that have been referred to working parties are matters that are no longer in the EBA.

PN80

Yes. Which ones?---Well, do you want me to go through them one by one?

PN81

Yes?---See section 14 there on my statement where I refer to various clauses.

PN82

Yes?---And I refer to them - you can refer to them - you can see them referred to in 14.1 through to 14.8. They detail the clauses that are now being dealt with through other mechanisms.

PN83

Now, I just want to be clear on this: so are you saying if we refer to your statement that each of the clauses in the log, which are referred to at, 14.1 through to 14.8, that each of those clauses are now withdrawn as claims from the log?

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES

---Well, there's an explanation for each of them if we can take them one by one, perhaps.

PN84

Yes. Well, you refer to clause 10.3(b). Is that claim - - - ?---It concerns consultation and major changes (indistinct) impact of work of PCAs.

PN85

Is that clause withdrawn or not withdrawn?---We maintain it effects the workload and conditions of employment.

PN86

My question is - - - ?---Therefore - - -

PN87

- - - is it withdrawn or not ?--- - - - is covered by an agreement, will be covered by the terms of an agreement because it effects of the employment and conditions of a principal and their workload.

PN88

So it's not withdrawn?---No.

PN89

You refer to 10.6 of the log. Is that withdrawn or - - -?---Well, that's withdrawn because it's referred to - we've got that referred to in a working party. In good faith we've considered - we've taken that off to a working party which is referred to in the statement under closure and restructure of school.

PN90

So it's withdrawn?---Withdrawn.

PN91

And clause 10.7 is no longer pursued. I take it that that's withdrawn?---Yes. Withdrawn.

PN92

Yes. You refer to clauses 12.1 to 12.6. Are they withdrawn or not withdrawn?
---Well, they're withdrawn.

PN93

They're withdrawn. Thank you. Clause 13.5?---13,5, direct - establishing the classification and wage (indistinct) by being a proxy to the work value - that is not withdrawn. It is not withdrawn because it refers to the work value and classification of the PCA.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN94

All right. So that's not withdrawn. And clause 13.6, is that withdrawn or not withdrawn?---It's a clear value - work value for PCA and it relates to classification, so it's not withdrawn.

PN95

Okay. Clause 15.5 you refer to, is that withdrawn or not withdrawn?---That's covered in terms - the work covered in the area of PCA health and well being and PCA working environment so it would not be - it would be withdrawn because it's covered by a working party arrangement for discussion.

PN96

THE COMMISSIONER: I'm sorry, that is withdrawn?---It's withdrawn.

PN97

Thank you.

PN98

MR FORBES: And you say, at 14.6, you say that clauses 15.6 and - - - ?---Not pursued.

PN99

Not pursued. So I take it that means that they're withdrawn?---Correct.

PN100

Thank you. And 23.1, what's the position there?

PN101

THE COMMISSIONER: I assume that's a typographical error in that clause, we're not talking about passionate transfers at all?---Certainly, it should be compassionate transfers.

PN102

MR FORBES: It raises the concept of passionate leave, doesn't it?---It's covered by PCA work environment.

PN103

So that's not withdrawn?---It's covered by PCA work environment.

PN104

It's withdrawn?---Yes.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN105

Thank you. And clause 24, I take it you say - - - ?---It's not pursued, no.

PN106

So I take it that that's withdrawn?---Yes.

PN107

Thank you. So some of those clauses - claims are withdrawn and some are not?
---Sorry, can I - there is some (indistinct) in terms of the urgency of which I've (indistinct) for late responses.

PN108

I want you to give, obviously, the best evidence that you can?---Yes, I want to be clear I understand what I'm doing here. And I - can I just refer to your question, if I can, in relation to 14.1?

PN109

Yes?---And your question - can you please repeat that question at 14.1?

PN110

Well, my question: you've referred to two clauses there, 10.3(b) and 10.2, are the claims in the log at clause 10.3(b) - just take them one at a time, is the claim in the log at 10.3(b) withdrawn or still being pursued?---No, it's still being pursued.

PN111

Clause 10.2 is that being pursued or that - - -?---Yes.

PN112

That's being pursued also?---Yes.

PN113

I see. Now, clause 20 - if you've got the log in front of you there? Can I take you to clause 26? That's headed Principal Class Selection. Do you see that?---Yes, I do.

PN114

Is that claim being pursued or not being pursued?---Not being pursed.

PN115

It's not being pursued?---No.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN116

Has a resolution been passed not to pursue that claim?---No, it hasn't.

PN117

Thank you. Can I take you also to 10.3(h)? Is the union seeking to pursue a claim in relation to the impact of change on principals involving the restructuring of jobs?---We're not pursuing that because of terms of employment and classification.

PN118

You're not pursuing that. Thank you. You say that a number of these matters are not long being pursued because they've being hived off to a working party. Is that right?---Correct.

PN119

Is it a condition of reaching an enterprise agreement that the working party reaches agreement on any of these matters?---No.

PN120

In the - now, the executive, obviously, had a meeting yesterday?---Correct.

PN121

The executive has passed a resolution - just pardon me a moment. One of the - point 2 of the resolution is to confirm that you want to reach an agreement, in effect, not to the extent that the claim exceeds the capacity of the Commission to certify the agreement?---Correct.

PN122

Now, apart from the matters which are no longer pursued that I've asked you about, are there any other matters not being pursued in the log of claims, or do I take it that all other matters are currently being pursued?---At this stage they're currently being pursued.

PN123

Now, insofar as - I withdraw that. Now, the decision not to pursue certain matters - the matters that you've referred to to date, that was made yesterday?---Well, no, it wasn't because it was formally moved through a resolution (indistinct) but there was a log of claims that's been privy to a confidentiality clause for some time and the (indistinct) clarified are general claims.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN124

The - - - ?---We do too.

PN125

Well, just let me put it to you again. The decision made to withdrawn certain claims or not pursue certain claims in the log, that decision was formally made
- - - ?---Correct.

PN126

- - - yesterday?---Correct.

PN127

Have you communicated that decision to the department?---It's been communicated by our counsel.

PN128

Well, there's a negotiating - I take it there are negotiating teams?---Yes.

PN129

And you have a team and the department has a negotiating team?---That's right.

PN130

There have been meetings between those teams on 30 or more occasions?
---Correct.

PN131

And there's been exchange of documents?---Yes.

PN132

Exchange of positions?---Yes.

PN133

Have you communicated the position as resolved yesterday to the negotiating team of the department?---Well, that comes through our legal counsel.

PN134

Well, do you know who was told?---It was communicated by legal counsel to the employer.

PN135

Do I take - - - ?--- - - - I don’t know, no, I don't know.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN136

Do I take it that what you're referring to is the fact that this resolution was annexed to your draft statement that was sent at 4.55 last night. That's the communication you're referring to? Have you met with the department in relation to the claims, now that the number of claims have been formally withdrawn?
---No, we haven't.

PN137

Okay. Pardon me. The matters that you referred to as being hived off to working parties, have those working parties been established?---No.

PN138

Thank you. The claims which have been withdrawn and are not to be pursued, have you informed your members about that?---Some members have been informed, yes.

PN139

You haven't communicated that to your entire membership?---No, I haven't.

PN140

The members to whom you have informed are, what, other members of the executive?---Yes, other members of counsel and (indistinct)

PN141

I see. Just pardon me one moment. Now, you've also given some evidence about the impact of the bans. I just refer you to paragraphs 18 through to 22 of your statement. Now, you say you've been a school principal since July 1994?---That's correct.

PN142

Are you still a school principal?---Well, yes, I am, but I'm on leave.

PN143

Yes. When were you last actively a school principal?---June 2007 - 2010, sorry.

PN144

2010?---Yes, right.

PN145

You're a primary or secondary principal?---Primary.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN146

Now, if - tell me if I’m wrong, but the gist of your evidence seems to be that the bans that are proposed to be taken are unlikely to be - or in your experience, are unlikely to be reacted to by the department?---Correct.

PN147

So what's the purpose of them?---What's the purpose of them?

PN148

Yes?---The purpose is to indicate to the employer that we are - we have a stalemate in our negotiation and we're seeking to take protected industrial action to further the pursuit of an agreement.

PN149

And it really wouldn't surprise you at all if the department sought to get replacement personnel to cover the inconvenience of this (indistinct) ?---Good luck to them if they find them, yes.

PN150

And you're aware that Mr Bugden has given evidence about that and the time he believed that it would take for that to occur?---If it occurred.

PN151

Now, you have made this application to the Commission seeking a protected action ballot order in which you propose putting a number of questions to your members?---Yes, that's correct.

PN152

You made that application on 15 March?---Yes.

PN153

Friday a week ago?---Yes.

PN154

I take it, Commissioner, you've got a copy of the application?

PN155

THE COMMISSIONER: Yes, I do, thank you.

PN156

MR FORBES: The question that you propose to put is that in support of reaching a Principal Class Enterprise Agreement with the secretary, do you authorise the taking of protected industrial action, et cetera. Now, you refer there to reaching a Principal Class Enterprise Agreement?---Yes.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN157

What agreement are you referring to?---I'm referring to an agreement that's by way of an change of understandings through claims sought and received and negotiated over a period of time under a confidentiality clause, which both parties have some understanding as to what both parties want. (indistinct) hasn't been agreed to but is in the process of being agreed to - hopefully, being agreed to or being sought for an agreement.

PN158

Well, do your members know what claims they're pursuing?---Yes, they do.

PN159

How do they know that?---Because they're quite clear on the matters of the items that are - about salaries and conditions and terms of employment. The classification structure, the quantum of payment being made by way of salary increases and any quantum by way of a range review process that would be granted to them. Other matters are known to be outside and not of interest to that agreement.

PN160

So how do your members know that?---Because I've gone - 24 of us around the State telling them. Excess of 24 of us.

PN161

Now, at the time you made this application, the claims that were pursued included the matters that you've now withdrawn. That's the case, isn't it?---Yes.

PN162

Mr Bugden - do I take it you've seen his statement?---Yes, I have.

PN163

You're aware that Mr Bugden says a number of things about the impact of industrial action - - - ?---Yes.

PN164

- - - which he believes is likely to occur - - - ?--- I'm not sure where in his statement, but it's in here somewhere.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN165

In fact, the book you've got probably has his statement in the front, or in the sleeve. Have you got that? Now, Mr Bugden gives some evidence about the - about NAPLAN?---Yes.

PN166

He says that principals have a responsibility in relation to NAPLAN testing?
---Well, let me see where you're referring to - - -

PN167

Paragraph 50?---Paragraph 50. Yes, thank you.

PN168

Well, perhaps, let me take you to 48 first. He states that NAPLAN testing is to track students' acquisition of literacy and numeracy skills that are developed over time. You don't disagree with that, do you?---No.

PN169

And that NAPLAN testing is to occur on the 14 to 16 of May this year, that's correct, isn't it?---I understand it to be so.

PN170

Yes. And you're aware, aren't you, that NAPLAN testing takes place simultaneously across all States and Territories across various cohorts of students?---That's my understanding, yes.

PN171

And there's a degree of careful coordination and security around NAPLAN testing, isn't there?---There certainly is.

PN172

Yes. To ensure, for example, that no-one gets to see the questions ahead of anybody else?---No.

PN173

No. And principals play a role, don't they, in the conduct of the coordination and security of the NAPLAN testing?---Yes, they do.

PN174

It's the case, isn't it, that principals are, effectively, the custodian of the papers?

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES

---Correct.

PN175

Yes. Would you agree with the statement at paragraph 52 from Mr Bugden, that conducting NAPLAN testing is a major logistical exercise?---Do you mean across the nation or are you talking about at the school?

PN176

Well, let's look at it both ways. Certainly, in a school, it's a major logistical exercise?---I would have thought that there are other functions that are more complex and more demanding. I don't know whether it's a major logistical exercise in a school.

PN177

All right?---It's an exercise.

PN178

Yes. And Mr Bugden says that 55 - that members of your union who are members of the Principal Class participate in the NAPLAN plan but a part will experience great difficulty in performing the NAPLAN tests in Victoria. That's the case, isn't it?---It would seem so, yes.

Yes. And that's the reason why your union has sought to target NAPLAN as part of its suite of bans?---It could be seen so, yes.

PN179

Yes. Well, you want inconvenience of any pressure to bear on the employer?
---Well, we just want to further whatever we can do to get Principal Class (indistinct) yes.

PN180

Mr Bugden says that - at 57 - that whilst it might be possible to have alternate arrangements such as engaging invigilators and volunteers to perform the test, that the role - effectively, the role - the administrative worked performed by the school principals is not easy to replace. Do you agree with that?---I'll just read this for a minute if I can.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN181

Yes, sure?---Yes, I'd agree.

PN182

It's also the case, isn't it, that NAPLAN is, in fact - Mr Bugden refers to - there's a point in time - nature of NAPLAN testing, it's in inherent in the nature of NAPLAN testing that it be conducted across the country pretty well simultaneously?---Yes.

PN183

Yes. That there's a window which, in which the tests must take place or otherwise there's point in doing it. Do you agree with that?---Yes.

PN184

NAPLAN testing is done - is it every year or every second year?---Every year.

PN185

But it's done for every second - - - ?---Yes.

PN186

- - - every second cohort of students, is that correct?---Yes, 3, 5, 7 and 9.

PN187

Yes. It's the case, isn't it, that if a year 7 student missed a NAPLAN test, well, that opportunity has gone forever?---Well, assuming he was progressing, yes, that would be the case.

PN188

If you just pardon me one moment. Just pardon me, I'm sorry. Yes, can I just take you to 22 of your statement? Do you see that you say in your opinion if bans 8 to 11 were not performed defensive action would only be taken by the department after an extended period of time and regardless of whether the notice was three days or seven days. It would make no difference to the timing of the department to attend to such matters. Is that your view that the department would not take any action that might effect, for example, NAPLAN?---I agree with that, yes, because it wouldn't be able to.

PN189

Wouldn't be able to - - - ?---Wouldn't have people on the ground to do it.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN190

I see. You'd expect them to try though, wouldn't you?---Try as they may, they would - I would have thought they'd be found wanting.

PN191

Mr Bugden also gives some evidence about the impact of the bans on leadership and management delivery of the SSSO service?---Yes.

PN192

He refers to that in paragraph 63 and onwards in his - now, the Student Support Officers Service is - they're the range of services that are offered by, well, psychologists, and speech pathologists, and others in schools?---Yes.

PN193

Yes. And principals play a role in coordinating the delivery of those services, don't they?---Yes, they do.

PN194

Yes. And if principals chose to place a ban on the delivery of those services, you would agree with me, wouldn't you, that students would be the ones that suffer the brunt?---There would be functions that would be picked up by (indistinct)

PN195

Do you agree with me that students would suffer as a result of bans imposed by your union?---Not necessarily.

PN196

You're saying not necessarily because - - - ?---Well, it would depend on the circumstances. It would vary from school to school. It would vary from the size of the school to various delegations in the school, it would vary on the complexity of the cohort of children involved. It's not simple.

PN197

Do I take the gist of your responses so far as that the department might try but they're unlikely to be successful to be able to cover what principals do?---I concur with that.

PN198

Yes. And, therefore, the logic is is that they wouldn't be able to fill the gap which leads to students receiving these services?---Well, they find ways of delegations in the school.

**** CHRISTOPHER JOHN COTCHING XXN MR FORBES
PN199

They find ways?---They find ways.

PN200

Thank you. Yes, thank you. Nothing further?---Thank you.

PN201

THE COMMISSIONER: Thank you. Just before you get to your feet, Ms Duffy. Something is pinging like an iPad or iPhone receiving, I'm hearing a pinging every now and then - not at this particular moment. But if someone has an iPad or an iPhone that isn't turned to silent could they turn it to silent. But if people could check, thank you. Ms Duffy?

MS DUFFY: Commissioner, I'm just checking my iPod is not the offending one. One phone is off, I can assure you of that.

<RE-EXAMINATION BY MS DUFFY [10.22AM]

PN202

MS DUFFY: Mr Cotching can I ask you to go back to your own statement, if you've still got that in front of you and, particularly, paragraph 14.1. Have you got that in front of you, Mr Cotching? Can I ask you, the claim that is referred to in paragraph 14.1 of your statement, is that a claim that's been referred to a working party?---This is the first consultation.

PN203

You were asked some questions about the executive decision that was made yesterday?---Yes.

PN204

And specifically about when the department was informed about that?---Yes.

PN205

Would the department have been aware that some of the APFs claims were not being pursued before that decision was made yesterday?---Yes, it is.

PN206

How would that have occurred?---It would have occurred through the confidentiality arrangements and the interchange of claims being made and discussed through the pursuit of those 31 meetings over a period of time. They'd be aware of what claims were being sought and at what point.

**** CHRISTOPHER JOHN COTCHING RXN MS DUFFY
PN207

Are you able, with any certainty, to indicate to the Commission when that might have occurred?---It would have occurred progressively over a period of time. There wouldn't be one particular time. It would haven't happened over - it would have evolved over a series of meetings that were subject to confidentiality protocols and over some months.

PN208

I'd ask you, Mr Cotching, in relation to - and without divulging anything that is subject to the confidentiality provisions, are you able to tell the Commission when the working parties were first discussed?---No, I couldn't - I couldn't with any accuracy recollect when that occurred. It would be some - it would be fair to say it was some months ago, I think. I couldn't give an accurate date as to when that occurred.

PN209

Again, without going to any of the terms - or the details that may be confidential, can you tell the Commission whether there is any document that effectively describes the APF's as they currently exist?---No, there is no document as it currently exists. I mean, we've got - we have a document of 14 February but it's - but there is - coming back to the notion that unless all is agreed, nothing is agreed. The claims are still subject to the interchange between both negotiating teams, and it's understood what those claims are on both sides.

PN210

That is 14 February this year, is that what you mean?---Yes.

PN211

And that's the most recent document that's been - - - ?---From my recollection, yes.

PN212

- - - by the APF. Yes. I have no further questions.

PN213

THE COMMISSIONER: Thank you, Mr Duffy. Thank you, Mr Cotching, you're excused?---Thank you.

**** CHRISTOPHER JOHN COTCHING RXN MS DUFFY

<THE WITNESS WITHDREW [10.27AM]

PN214

MS DUFFY: Commissioner, that's the applicant's evidence.

PN215

THE COMMISSIONER: Thank you. Mr Forbes?

PN216

MR FORBES: Yes, Commissioner. The - I just have the one witness and rather than - I think, perhaps, we just go to the evidence and I'll save everything else for submissions. I call Mr Anthony Bugden.

PN217

THE COMMISSIONER: Thank you. Mr Bugden.

PN218

THE ASSOCIATE: Please state your full name and address?

PN219

MR BUGDEN: Anthony John Bugden (address supplied)

<ANTHONY JOHN BUGDEN, SWORN [10.28AM]
<CROSS-EXAMINATION BY MR FORBES [10.28AM]

PN220

MR FORBES: Your name is Anthony John Bugden?---That's correct.

PN221

Mr Bugden, your business address is 2 Treasury Place, Melbourne?---That's correct.

PN222

You are currently executive director human resources for the Department of Education and Early Childhood Development?---That's correct.

PN223

For the purposes of these proceedings, Mr Bugden, have you prepared a witness statement?---I did.

PN224

Do you have a copy of that in front of you?---I do.

PN225

Is that witness statement over 14 pages and 78 paragraphs?---Yes, it is.

PN226

It's dated 21 March?---That's correct.

PN227

The statement refers to 12 annexures?---Yes.

PN228

Each one of those are contained in a folder behind your statement?---Yes.

PN229

Is the statement true and correct?---It is. I have one correction to make to paragraph 29.

PN230

Yes, please, if you would tell the Commission what that change is?---In paragraph 29 I indicate that there were no further negotiating meetings scheduled. It's - my understanding is we have a further meeting scheduled for today at 4 o'clock.

**** ANTHONY JOHN BUGDEN XN MR FORBES
PN231

So the further meeting is scheduled today?---Today, at 4 o'clock, yes.

PN232

Apart from that change - - - ?---Apart from that, no, that's - yes.

PN233

I tender the statement, Commissioner.

PN234

THE COMMISSIONER: Yes. I'll mark the statement of Anthony John Bugden, dated 21 March 2013 along with 12 annexures as exhibit VIC1.

EXHIBIT #VIC1 WITNESS STATEMENT OF ANTHONY JOHN BUGDEN WITH 12 ANNEXURES, DATED 21/03/2013

PN235

MR FORBES: Thank you. Now, can I just take you to paragraph 23, please, Mr Bugden. You refer there to a lot of claims that was served upon you by the APF?---Yes.

PN236

Which is referred to at tab 3?---Yes.

PN237

I think there's some evidence given that that log of claims may have contained an annexed schedule?---Yes.

PN238

Are you able to recall whether that schedule was, in fact, served with the log of claims?---At the time I made the witness statement it was a little unclear to me which log of claims had been served because there one served in hard copy on the - our then secretary, and one served by email on the person who works for me. As far as I understand now the document served on the secretary had attachment 3 in that document, which was a hard copy of the current Principal Class contract that we had. So I think tab 4 reflects the document that was served on the secretary.

PN239

Thank you. So tab 4 is what was served on you in - - - ?---In a formal sense, yes.

**** ANTHONY JOHN BUGDEN XN MR FORBES
PN240

- - - May 2011?---Yes.

PN241

Now, you were in the room which Mr Cotching was giving some evidence and you heard him say that, words to the effect of, nothing is agreed until everything is agreed?---That's correct. That's my understanding.

PN242

What do you say to that?---That's my understanding. My practice in negotiations is the parties each have their starting positions, their logs of claims, or their management position. And until such time as agreement is reached my understanding is always that that remains the position to both parties in the event the negotiations break down, or are unsuccessful.

PN243

Yes?---Everything else, in my view, is without prejudice.

PN244

Yes. You were also in the room this morning when you heard me asking Mr Cotching about certain claims within the log and whether they were being pursued or not being pursued?---Mm.

PN245

Did you learn about matters not being pursued prior to that evidence given by Mr Cotching?---No, my understanding has been that in trying to find a suitable position to reach settlement on, that there has been a lot of conversations about whether matters would be dealt with via working parties rather than by - through the formal instrument of agreement, and we certainly are considering that. But those working parties are not agreed until such time as we settle these claims. Those working parties haven't been agreed separate to these negotiations. So a possible outcome of these negotiations is the establishment of those working parties.

PN246

Yes?---But that remains without prejudice.

**** ANTHONY JOHN BUGDEN XN MR FORBES
PN247

You are aware from Mr Cotching's evidence that the executive of the APF made a resolution yesterday?---I became aware of that this morning, yes.

PN248

Thank you. How did you become aware of that?---When I read Mr Cotching's witness statement.

PN249

And have there been any meetings with Mr Cotching or his union in relation to the claims post those withdrawals?---No.

PN250

Yes. No further questions, thank you.

PN251

THE COMMISSIONER: Thank you, Mr Forbes. Ms Duffy?

<CROSS-EXAMINATION BY MS DUFFY [10.34AM]

PN252

MS DUFFY: Mr Bugden, can I clarify - I take it from what you said earlier that, essentially, you agree with Mr Cotching has said about the log of claims, that there weren't two separate log of claims, it was - - - ?---No, that's correct. I think tab 4 is the correct log of claims.

PN253

So initially where was some confusion - - - ?---There was some confusion - - -

PN254

- - - on your part - - - ?--- - - - between an email version and a hard copy version.

PN255

Okay. I understand what you're saying about the working parties, but do you agree - and I'm not sure if it's probably fairer to show you, Mr Cotching's statement again, if you don't have a copy of that in front of you, do you?---I do have it front of me.

PN256

Okay?---Yes.

**** ANTHONY JOHN BUGDEN XXN MR DUFFY
PN257

If I could ask you to look at paragraph 16, do you agree that those matters are the matters that are proposed to be dealt with by the working parties?---That's the position that was the last position we were discussing. The point I'm making is that that's the proposition to settle those matters. It's not an agreed proposition, it was a proposition that was on the table when the negotiations last occurred.

PN258

I understand that but I'm just asking you - - - ?---Yes.

PN259

- - - confirm that they are the topics that were - - - ?---To my understanding those are the topics the APF proposed be dealt with by a working party.

PN260

Okay. Now, you are actively involved in the negotiations, aren't you?---I am.

PN261

You attend all, if not, most of the meetings?---I do, yes.

PN262

And as the negotiations move along, you are personally aware, aren't you, as to what matters the APF is pursuing or not pursuing?---I'm aware of the various proposals the APF put in an attempt to see whether we can reach agreement.

PN263

And you received the document that you heard Mr Cotching mention in his evidence, I think it was dated, 14 February, didn't you?---That's correct.

PN264

That's the most recent statement of the union's position?---The most recent without prejudice position, yes.

PN265

So it's fair to say, isn't it, that even before the resolution that was passed yesterday, you certainly had some understanding of claims that were no longer being pursued by the APF?---I actually don't think their claim is not being pursued, what I think there - well, the proposal was that that was one way to deal with those claims. That was the difference I would put on it.

**** ANTHONY JOHN BUGDEN XXN MS DUFFY
PN266

Well, if I can separate it away from the matters that might be dealt with by the working party, there are some claims, in fact, from the original log, that are just not being pursued at all, that's correct, isn't it?---In terms of their proposed settlement position that might be true. But if we don't settle, I'd always understood that they would pursue those issues in other ways. So today was the time I was aware they wouldn't pursue those matters in any other forum or in any arbitration or conciliation that might occur in these matters.

PN267

I want to ask you some questions about the SSSOs, and that's dealt with in your statement. The ban that is proposed by the APF, essentially, goes to the management and not the delivery of those services, doesn't it?---That's correct.

PN268

And it may, in fact, be the case that there's no immediate impact on delivery, isn't that correct?---Depending on whether or not - how the particular network of principals has those services organised. But normally the network would be responsible for directing the services of those people.

PN269

At paragraph 70 of your statement, your main concern there - I'll give you a chance to find that?---Yes.

PN270

Is notice, isn't it? Having enough notice to make sure that those services are not disrupted rather than there being any real threat of them actually being cut off?
---Yes, I mean, the - my main concern is the ongoing services, but where a network order is in place that a child will be subject to a scheduled regular set of visits then, obviously, there would be limited impact. It's more where unexpected services are needed. If I could use an example, for instance, where there's a death of a child in a school, it's not uncommon for the SSSOs to be deployed into that school to assist staff and students in managing with that particular event.

PN271

But those kind of arrangements could be made even if they were not assisted by principals, couldn't they?---Normally they're directed by the network chair, the leadership group, because those individuals have to be taken away from other services to be deployed into these services. So there is a logistical issue scheduling those sort of things.

**** ANTHONY JOHN BUGDEN XXN MS DUFFY
PN272

Yes. But it would be possible for those arrangements to be made even if the principals were not assisting with the services?---Well, someone else would have to do it, not the principal.

PN273

Yes. I have no further questions.

PN274

THE COMMISSIONER: Thank you. Ms Duffy. Mr Forbes?

PN275

MR FORBES: No re-examination, Commissioner.

PN276

THE COMMISSIONER: Thank you, Mr Bugden, you're excused.

<THE WITNESS WITHDREW [10.40AM]

PN277

THE COMMISSIONER: Ms Duffy?

PN278

MS DUFFY: Commissioner, it's clear, if I can make some submissions first on the evidence, I don't think there can be any real dispute that the APF does not seek an agreement in the form of the May 2011 log of claims. The claims of the APF have effectively evolved over the course of must be some 18 months of negotiations now since August 2011 and I think some 30-something meetings means that those claims have in fact evolved. You've heard there is in fact a document the contents of which can't be disclosed that's been provided by the APF to the Department recently in mid-February and further you have the resolution that has been passed effectively to give clarity to which matters are pursued and which matters are not pursued and that's the resolution of course that was passed yesterday by the APF executive and is attached to Mr Cotching's statement.

PN279

It's my submission that the Commission can be satisfied that the APF is genuinely trying to reach an agreement which is able to be approved under the Fair Work Act. The APF clearly does not seek to include terms in the proposed agreement that would offend the relevant limitations, that is either those under Re AEU or under the referral because in a sense that would be self-defeating. The APF is committed to reaching an agreement with the employer and its my submission that the evidence you have heard about the APFs conduct of negotiations and right up until the passing of that resolution yesterday indicates that that is their position, they want to reach agreement with the government. Mr Bugden has alluded to some sort of suggestion that he thinks some of those claims might be issued in some other way if agreement is not reached, but there is really nothing before you to suggest that the APFs position is that it is genuinely trying to seek an agreement. That's what all its resources and time has been devoted to since the serving of that original log back in May of 2011.

PN280

I should say not only has Mr Cotching given evidence about claims from the original log that have been specifically withdrawn for the purposes of bargaining but that there are obviously other claims that might potentially be affected by the more generic resolution made yesterday in relation to the claims not going beyond what the powers conferred on the Commission are. To a great extent, Commissioner, the APF is somewhat hamstrung by the negotiating protocols, particularly in relation to confidentiality of those discussions and documents. We can't give you a document that outlines exactly what the current claims are but we say that they are well known to the Department and they know that a number of those claims in the original log are not being pursued.

PN281

THE COMMISSIONER: Just out of interest, Ms Duffy, who determined that the negotiations had to be confidential, is that a government edict or was that an agreement between the parties?

PN282

MS DUFFY: I understand that is the case, Commissioner, it's - I think its by agreement but it's something that is suggested by the Department, it's not exclusive to these negotiations as I understand it, Mr Forbes might be able to - - -

PN283

MR FORBES: Just briefly, Commissioner my instructions are it was actually an agreed position and the parties documented a protocol regarding communications, regarding negotiations generally and it was agreed that negotiations would remain confidential.

PN284

THE COMMISSIONER: Thank you.

PN285

MS DUFFY: I don't think we quibble with that, Commissioner, other than I think my instructions are it's initiated by the government, (indistinct). Commissioner, I'll turn to some of the legal submissions and I particularly want to deal firstly with Re AEU. It's my submission that the relief granted by the high court in Re AEU on the basis of the implied limitation was in relation only to awards that had been imposed on the state of Victoria or its agencies and that of course was as a result of the compulsory arbitration process that existed at the time. It is important to note that the thrust of the high court decision was that the court held that the state must have the right to determine the number and identity of those that it employs. In my submission, Commissioner, the process of agreement making is clearly different to a situation in which an award imposes obligations on an employer or a state agency.

PN286

Agreement making is essentially a voluntary process, there is no imposition by the Commission of terms that would offend either of those limits, which I will come to in a minute but they are essentially the same. The Re AEU limits are codified really in the referral legislation. There are of course some mandatory terms that need to be in agreement but it is my submission that none of those offend the relevant limitations and I don't think that's claimed by the Department. So leaving those to one side, Commissioner - - -

PN287

THE COMMISSIONER: Except for a coupel of parts of the consultation clause I think they do. I think the Department in their submission suggest that two sub-clauses in the consultation clause which I think is the standard clause offend the referral.

PN288

MS DUFFY: I think that has been suggested, Commissioner, but that clause need not be agreed in that exact form, so in that sense there is still no imposition. Presumably by the time the parties come to the Commission with an agreement that matter can be dealt with and it won't necessarily have to be in effect posed by the Commission. Essentially, Commissioner, that is the nub of my submission in that it is up to the state or the Department in this case to agree to terms or not agree to terms if there is an issue. There simply is no suggestion that those terms will be imposed by any decision of the Commission, we're not talking about a workplace determination or award or any other instrument that would be effectively arbitrated. We're talking about an instrument that comes to the Commission in the form of an agreement between the parties.

PN289

Commissioner, this issue was considered by the high court in the industrial relations case, that is the State of Victoria v. Commonwealth of Australia reported at volume 187 of the CLRs at 416. It is a very long decision, I can hand a copy up, Commissioner, I'm sure we don't probably need another copy of this decision. I'll provide one to my friend as well. Commissioner, the court in this matter considered the similar provisions of the legislation at the time that applied to agreement making and the court found that agreements entered into rather voluntarily by the states did not require any reading down and did not offend the implied limitation.

PN290

The references where you will find that principle, Commissioner, are at page 535, page 542 and page 563. The reason for those three references, Commissioner, essentially is because they're in the way the question was stated to the high court so you've got to look really at all those references to extrapolate that point. In my submission, Commissioner, the principle in the industrial relations case is that an agreement entered voluntarily between a state or an agency of a state is not subject to the implied limitations in Re AEU. Commissioner, there is a decision by Commissioner Roe in relation to a similar matter although it arose in the context of a dispute resolution under an agreement. I can provide you with a copy of that decision, Commissioner, because it goes to this issue of essentially voluntariness in entering an agreement. That is a decision of Commissioner Roe on 21 August of last year 2012 and the reference is 2012 FWA 7155.

PN291

THE COMMISSIONER: I have that.

PN292

MS DUFFY: Got a copy of that, Commissioner?

PN293

THE COMMISSIONER: I have that one, yes. That’s is subject to appeal?

PN294

MS DUFFY: Yes, it - - -

PN295

MR FORBES: It is.

PN296

MS DUFFY: It is subject to appeal, Commissioner.

PN297

MR FORBES: In the federal court.

PN298

MS DUFFY: As I understand it the appeal has essentially somehow gone from the Commission and it's to be heard by the federal court.

PN299

THE COMMISSIONER: I think it's gone to the federal court, yes.

PN300

MS DUFFY: As I understand it the trial is taking place at the end of April. So it hasn't actually been heard yet. But Commissioner I would urge you to take the same position as Commissioner Roe does. You will see particularly at paragraphs 105 and 106 he sets out his reasoning in relation to this issue of the voluntary nature of agreements and in the middle of paragraph 105 - - -

PN301

THE COMMISSIONER: Is that one of the matters that is subject to the proceedings in the federal court?

PN302

MS DUFFY: As I understand it, yes, Commissioner, that's right.

PN303

THE COMMISSIONER: It would be a bold move on my part to make a decision while the matter is sitting before the federal court.

PN304

MS DUFFY: I think Commissioner there is certainly an obligation to make a decision under the Act in relation to this application - - -

PN305

THE COMMISSIONER: Well - - -

PN306

MS DUFFY: It is my submission that until the federal court says something different there is nothing that should stop you from making a similar decision.

PN307

THE COMMISSIONER: Certainly I need to make a decision, I don't quibble with that.

PN308

MS DUFFY: No, that's right, Commissioner, I mean you are entitled to make whichever decision you say is appropriate but it is my submission that just because that matter is before the federal court late in April that shouldn’t dissuade you not to make a similar decision or along the lines that Commissioner Roe has made and that's not just because Commissioner Roe of course has made the decision, it is my submission that that fits within the decision of the high court in the indsutrial relations case I have just referred you to.

PN309

But you will see there, Commissioner, in paragraphs 105 and 106 that Commissioner Roe essentially explains a little bit further as to why an agreement voluntarily entered into does not fetter the power of the state and that is essentially again going to that point of it being a voluntary restriction or something that the state has entered into, rather than there being any imposition or impairment on the functioning of the state. In paragraph 106 Commissioner Roe goes further to say that the state in fact can prevent any limitation of that kind by deciding not to agree to a particular clause in a proposed agreement and of course that is the situation here, Commissioner, if the state is concerned about any imposition or impairment it need not agree to any such clause.

PN310

Essentially, Commissioner, the same principles arise in relation to the Referral Act. As you would be aware the excluded matters in section 5 of the Referral Act are effectively crafted to reflect the language and the exclusion in Re AEU. Again in relation to that I make the same submissions in that there must be a distinction between an obligation that is entered into voluntarily and one that is imposed by a tribunal or court. For instance, the Commission could not make an award or a workplace determination which imposed regulation on the state as to the number of employees in the public sector, or could not mandate an inclusion in a workplace determination that regulated the number of employees that then bound the state of Victoria. That in fact was the case Commissioner in the Parks Victoria case and for that reason because it dealt with a workplace determination it is my submission that can be distinguished from the situation before you today.

PN311

I should say something, Commissioner, about the matters that are before you in relation to the period of notice for the bans. It is my submission that the evidence of Mr Cotching indicates that clearly in relation to the bans posed at number eight through 11, three days notice would be enough and we say there is no evidence before you that should convince you otherwise.

PN312

THE COMMISSIONER: On the other industrial action what do you say on the notice (indistinct)?

PN313

MS DUFFY: It's our position, Commissioner, that three days certainly should be enough for those matters as well. But as I said I've drawn your attention to the extensive evidence which doesn't seem to have been challenged in relation particularly to bans eight through 11.

PN314

THE COMMISSIONER: Thank you.

PN315

MS DUFFY: Commissioner, unless there are any other matters you wish me to deal with at this stage those are my submissions.

PN316

THE COMMISSIONER: Thank you, Ms Duffy. Mr Forbes.

PN317

MR FORBES: Thank you. Commissioner, what you have heard is that on 5 March the union filed with the Commission an application pursuant to section 240 seeking the Commission's assistance in relation to a bargaining dispute and the evidence from Mr Cotching is that the matters in dispute constituted the log of claims which was attached to that statement and his evidence that those were other matters in dispute. The application for a protected action ballot order was filed on 15 March, it was listed before you last Thursday and you will recall we foreshadowed opposition to the application primarily on jurisdictional grounds and we filed an outline of submissions which I'll go to very briefly, and we also foreshadowed an application for an extension of the notice period in the event that you proposed making the order.

PN318

Since that time you have heard that at 4.55 last night my instructing solicitors received a statement from Mr Cotching and attached to that statement was a resolution of the Australia Principals Federation Executive which you have heard was passed yesterday. In light of the developments yesterday our position is as follows. First of all we submit, and I will develop this in a moment, but we submit the application before you, namely the one made on 15 March can no longer be maintained and ought to have been withdrawn, that has not occurred so alternatively it ought be dismissed by you. Secondly, that if the Commission is prepared to entertain that application it should nonetheless be dismissed for the jurisdictional reasons we have outlined in our submission.

PN319

What we say in relation to that point, Commissioner, is that if the application is one that you say is live and to be determined that there is nothing that the union has done by way of its executive resolution that cures the fundamental jurisdictional issues. Thirdly, we say that if the Commission does not dismiss the application on jurisdictional grounds the application should be dismissed because the ballot question in the context of the evidence is incomprehensible. Finally, we say that if you are minded to grant the application then we seek the extension of the notice period. That is the sensible structure of my submissions. I will first of all address, Commissioner, why we say the application should be dismissed in light of what has occurred yesterday. Mr Cotching has told us that a resolution of the executive was passed yesterday and that as a consequence of that the APF now purports to have formally abandoned certain claims, either generally or expressly.

PN320

There seems to be a general abandonment in the resolution in the form of, well we won't pursue claims insofar as they offend the Referral Act or the Re AEU limitation. So it's a non-specific but general abandonment, and then there is the specific abandonment which you heard about through the questions and also Mr Cotching's statement. Also the evidence from Mr Cotching in his statement is that the 2011 log of claims does not represent the current negotiating position. At the time the application was made for this protected action ballot order on 15 March the Commission must know, as employees must know, what agreement is being pursued. As at 15 March the claims being pursued in my submission must be all the claims in the log for this reason.

PN321

The evidence from both Mr Cotching and Mr Bugden is that the underlying principle is that nothing is agreed until everything is agreed and of course it may well be the case that parties have swapped positions and position papers and had 30 meetings, but Mr Bugden I think said in his evidence words to the effect that he understood that he was under the impression if matters were not settled they were free to pursue their claims. That is a logical position that exists in enterprise negotiations. Nothing is agreed until everything is agreed. Parties have discussions off the record and without prejudice, but the log of claims represents the formal public position adopted by the union and opposition to those is the formal public position adopted by the employer.

PN322

What we have heard is that that log of claims which was attached to the section 240 application, which represented claims as at the time that this application was made and must be taken to have been the proposed agreement or body of claims in relation to which employees are to take protected industrial action, that has now changed and its changed in quite a substantive way. Not only has it changed in a substantive way as recently as yesterday, but the evidence is that members don’t know about it, other than some. The employer negotiating party only learnt about it this morning through reading a statement. But what is unquestionable is there has been no negotiation or meetings or discussion on the claim as currently formed and insofar, Commissioner, as you are required, putting aside the jurisdictional argument about content, but insofar as you are required to find as a prerequisite of making an order under 443(1)(b) that, "You are sissified that the applicant has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted," in my submission you can't make that finding in relation to the claim.

PN323

The claim now made is one which is different to the one which formed the basis of the application and there is no evidence that the claim being pursued now has been the subject of any genuine attempt to reach an agreement. There is a meeting at four o'clock this afternoon and no doubt there will be a discussion in relation to that and it may well be as a consequence of that the union might want to come before you and make an application for a protected action ballot order. But in my submission the application currently before you, which has not been amended, was made on the basis of a log of claims which is behind tab 4 of Mr Bugden's statement and that is the body of claims in relation to which employees must believe that they are to take protected industrial action if the ballot is approved.

PN324

In my submission you can't fix these things up on the run and make a general statement that well, there is evidence before you that the union has been genuinely trying to reach an agreement. In a conceptual sense of course that is true, parties have been negotiating between themselves about a range of things and they have not reached an agreement. But what is critical in terms of an application for a protected action ballot order is the content of the claims that are being pursued. That has to be known because to take an extreme example, if all the claims being pursued were about non-permitted matters, you can't cure it by saying we have been trying to reach an agreement. It's the content which is critical and the content has proven to be a bit of a moving feast. But it would appear, in my submission it's self-evident, that the concessions made by the executive yesterday almost make our case that there must have been claims which are now conceded that were either offended Re AEU or outside the referral. It was that log of claims which in my submission form the basis of this application.

PN325

THE COMMISSIONER: Maybe they just changed their mind?

PN326

MR FORBES: They might have changed their mind but it would appear, I think a proper inference to be drawn from the material is they've changed their mind based on Re AEU and the referral because it appears that a number of matters which are no longer being pursued are the matters that we raised, in our submission. There are still some left in there I should say and I will come to that. So what we submit is on a proper assessment of the evidence it's the log of claims which at least up until yesterday formed the basis of the negotiations between the parties and insofar as there has been a significant change in position and certain claims jettisoned there is no evidence of a genuine attempt to reach agreement on the remaining matters.

PN327

THE COMMISSIONER: That's because there's been no meeting.

PN328

MR FORBES: There's just been no meeting, no. The employer might agree to it all but that's unlikely. But as a matter of factual finding that you have to make it's just not open, in my submission. So that is that point. We say fundamentally that the application before you in effect has been overtaken by subsequent events and it just can no longer stand and should be dismissed. I apologise for repeating myself but what we say is the application currently before you, Commissioner, is an application premised on claims being advanced at the time of the application. All of which in the absence of formal withdrawal must be taken to be claims in respect of which the union wishes to take employee claim action and that's a significant link is that protected action ballot orders are part of the scheme of bargaining and the process is to seek an order from the Commission authorising the asking of certain questions to support claims.

PN329

It must mean the claim's extant at the time the application is made and insofar as it's shifted then the question becomes - well, it's a different question and we now hear that the employees are probably not alive to what the new position is and certainly the employer hasn't responded to it. That takes me to my next point about the ballot question. If I can just take you, Commissioner, to the ballot question. The question to be put is - and this is at paragraph 4 of the applicant, the question to be put is, "In support of reaching a principal class enterprise agreement with the secretary of the Department do you take the taking of protected industrial action," et cetera. So in support of reaching a principal class employee agreement. Now, in my submission that is highly ambiguous and is only going to give rise to extreme confusion.

PN330

Employees who are to engage in protected industrial action and employers who are to be the subject of protected industrial action have to know the claims in respect of which action is to be taken because if they don't there is a risk on each side that employees might well take action in relation to matters which are not protected and employers might be subjected to unprotected action. The ballot question has to be referrable to a particular proposed agreement. In the ordinary course what one finds in bargaining is that usually a union will put forward either a log of claims or a proposed draft agreement and that the ballot question is referrable to that. It is do you authorise the taking of industrial action in relation to the proposed agreement or the log of claims. There is some definite body of claims which are being pursued. But here what is being sought is a ballot question which is referable to reaching an agreement and employees can't possibly know, in my submission, what that means.

PN331

THE COMMISSIONER: What else does it mean? What else can it mean?

PN332

MR FORBES: It means to pursue reaching an agreement but it has to be referable to pursuit of certain claims because it's employee claim action and its to pursue the claims being made on behalf of the employees by the union. It is critical that those are known because again for example to take an extreme case it might be a list of non-permitted matters, that could not possibly justify - - -

PN333

THE COMMISSIONER: Are you saying that the employees who would be subject to this ballot - just putting aside for the moment the problem of the change in the claim that may have occurred in the last 24 hours, are you saying that the employees don't know the claim or that they don't know the current state of the claim?

PN334

MR FORBES: Perhaps I can address the question this way, Commissioner, you can't put to one side what's just happened, that's really the point.

PN335

THE COMMISSIONER: So the argument is that they can't know the state of the claim at this particular point in time.

PN336

MR FORBES: That's right, given the fundamental change which has occurred. So if the evidence was that there was nothing but the log of claims and that was what was being pursued by the union, we could hardly argue that there would be any disagreement, that that log of claims set the parameters for what employees were taking action to support. But one can't ignore what's happened in the last day, that log of claims would appear not to be the claims being pursued, something else is being pursued and employees - if Commissioner you ever make this order, employees would be saying well, what are we pursuing? I'm about to ban something, is it one of our claims or is it not one of our claims?

PN337

THE COMMISSIONER: But can I take that in the normal course of events the APF would communicate to their members on the adjusted claim? They've passed a resolution.

PN338

MR FORBES: First of all there is no evidence of that as we speak but I think there is a step before that, Commissioner, and that is that you would also have to be satisfied that there had been genuine attempts to reach agreement on that.

PN339

THE COMMISSIONER: Yes, I understand that.

PN340

MR FORBES: If I can put it this way, they're the filters that one would go through so that at the time you make a ballot order there is a degree of certainty that there is a log of claims, the parties have been talking about that log of claims, it hasn't been resolved and where you have a no agreement until all is agreed, one then retreats back to well, the union will pursue its action in relation to that log. The Commission being satisfied that at least the parties have tried to resolve that. But the evidence before you certainly as we speak is that only some members know about this substantive change and that, in my submission, would not allow the Commission to be confident that the average principal out there reading an order of the Commission in these terms would really understand what they're voting on.

PN341

The reason this is particularly important, Commissioner, is that a ballot question in my submission has to be referrable to a set of claims which does two things. A set of claims which first of all doesn't contain claims which can't be in an agreement and secondly that there has been your satisfaction to you that the union has been genuinely tyring to reach an agreement on those claims. Unless both of those are satisfied then one can't really have a sensible and unambiguous ballot question. I think I have already made the point about we say that it's just not open to find that steps have been taken to genuinely negotiate an agreement in relation to the changed circumstances. As to the content of the agreement, Commissioner, just pardon me a moment, I've lost my submissions. I will just ask, Commissioner, the outline of submissions I filed last Thursday, should those be marked?

EXHIBIT #VIC-2 RESPONDENT'S OUTLINE OF SUBMISSIONS

PN342

MR FORBES: The submissions, Commissioner, I take it you have had an opportunity to look at.

PN343

THE COMMISSIONER: I have.

PN344

MR FORBES: I rely upon those so I won't go through them in fine detail but you will see that the thrust of our submission - first of all it's largely directed to the log of claims that we say it was prior to the adjustments yesterday and our submission is that because the employer here is the State of Victoria that brings with it certain limitations on the jurisdiction of this Commission to deal with bargaining matters. I have sought to summarise the position at paragraph 10 and that is that we say that a protected action ballot order can't be made by this Commission certainly based on that log because the claims contain matters which are excluded from the referral. The claims also contain matters which are subject to the implied limitation and I think the critical point is this, as a conusance of that the log contains claims which can't form the subject matter of an agreement approved by the Commission.

PN345

If I just divert for a moment and address one of my learned friend's submissions which is well, the state can voluntarily enter into an agreement and that the implied limitation doesn't apply. With respect that is entirely missing the point of the application that you have before you. The application that you have before you, Commissioner, is part of the scheme of bargaining. We are not here seeking to deal like Commissioner Roe I think was dealing with a dispute in relation to an agreement already made, we are dealing here with the process of bargaining towards the making of an agreement. The process of bargaining essentially deals with what happens on the way to get into an agreement and what rights parties have in relation to their bargaining and their negotiation and the rights parties may have to take action in relation to things that they wish to be in the agreement.

PN346

What the Act provides, Commissioner, is that the legislation does not allow the Commission to certify or approve any old agreement. There are content rules and there are permitted matters and invalid matters and various other things and there are also matters which we submit by virtue of the Referral Act and/or Re AEU can't be or can't be part of the subject matter of an agreement made by this Commission. That is the critical point, that it's not a matter of whether the state can voluntarily or not enter into an agreement, it's whether this Commission can make the agreement and if it can't make the agreement then the bargaining process which leads to it is beyond the bargaining powers of the Commission to deal with and the Electrolux case which I've cited in some detail really goes to the point that if the Commission doesn't not have the power to make an agreement in relation to a particular matter, then the pursuit of those claims which I think then were non-permitted claims, then the pursuit of those claims can't be authorised or can't be protected and can't be authorised through the legislative bargaining process.

PN347

So it is here that where matters have not been referred by the State of Victoria or been reserved to the State of Victoria such that they are not even within this Commission's hands to certify or approve, then bargaining toward those matters is also beyond the power of the Commission. That is really the central issue here is that it's not about whether once an agreement made can be reflected upon with a view as to whether the state voluntarily entered into it or not, the issue here is you are being asked to make an order which is part of a bargaining process which exists only for the purposes of leading to an agreement which this Commission has to be able to make. If you can't make the agreement in my submission you simply can't legitimise the action to be taken in relation to those claims.

PN348

THE COMMISSIONER: You say I can't make the agreement because of the reserve matters and Re AEU?

PN349

MR FORBES: Yes, indeed Commissioner and - - -

PN350

THE COMMISSIONER: But isn't that Ms Duffy's point that if the State and the Principals Federation voluntarily enter into an agreement that covers those reserved matters then the imposition and the implied limitation doesn't exist because it's a voluntary agreement as opposed to an imposition of this Commission?

PN351

MR FORBES: In my submission it's a matter of the powers being sought to be exercised and the powers that are being sought to be exercised here is to seek from the Commission the imprimatur for protected industrial action to be taken in pursuit of matters which are not agreed by employees who are seeking to have those matters part of an agreement with the state. Insofar as that is the scheme of bargaining that if those - no, let me withdraw that. You could not make that agreement anyway involuntarily, it would not be an agreement within the power of the Commission to make if it includes matters which have not been referred and therefore it must follow, as it did in Electrolux that if it is not possible for the Commission to make an agreement which includes a particular matter then it is not legitimate for the Commission to exercise power to authorise the taking of industrial action in pursuit of that agreement.

PN352

THE COMMISSIONER: Yes, I appreciate that absolutely, the question is whether I could make an agreement that contained - - -

PN353

MR FORBES: In my submission no and the reason is this that there is - or simply the Referral Act doesn't bring to the Commission the power to make an agreement in relation to those certain reserved matters. The Commission's power of course in relation to the State of Victoria is derived from the constitutional power of the state to refer to the Commonwealth certain powers and unless the state has conferred upon the Commonwealth, the Commonwealth Parliament, I should put it that way, not directly you, Commissioner, unless the state refers to the Commonwealth Parliament the power to make laws with respect to certain matters then the Commonwealth Parliament doesn't have the power to authorise the Commission through certain legislation to do certain things.

PN354

THE COMMISSIONER: I understand.

PN355

MR FORBES: That's the way it follows. What the Referral Act does it he Referral Act excludes from the referral at section 5 I think certain matters which Ms Duffy is right are very, very close to what the Re AEU implied limitation is. They're not exactly the same and I think the federal court is debating that at the moment, but for the purposes of my submission they're pretty close.

PN356

THE COMMISSIONER: Yes, and I think the full bench in Parks Victoria made that observation.

PN357

MR FORBES: Yes. I am obliged to my instructor here that what we say is even if it were possible for you to approve the agreement the issue really is the application before you is an application for a protected action ballot order. It is an application for an order to force us to enter that agreement or at least empower the union to force us toward that path.

PN358

THE COMMISSIONER: Encourage I think is the word.

PN359

MR FORBES: And that is we say in excess of the powers being conferred by the parliament.

PN360

THE COMMISSIONER: Yes, but you are never required to reach that agreement.

PN361

MR FORBES: You are never required to reach that - - -

PN362

THE COMMISSIONER: And Parks Victoria shows what happens when you don't.

PN363

MR FORBES: That's right, so we are not required to but the power that you are being asked to exercise is part of the scheme of manoeuvring or muscling or whatever, bargaining and therefore - well, our submission is really as simple if you can't make the agreement then what really sits beneath it in terms of agreement making is just not open. I am reminded the full bench in Australia Post v. CEPU which I think is in our bundles does go to the question that even if the Commission can make an order which included a non-permitted matter, the Commission can't make a protected action ballot order to force a party down that path.

PN364

So I have dealt with if you like the legal analysis in considerable detail, Commissioner, unless you want me to go into that in greater detail I won't. But just a couple of observations. The Referral Act or the exclusion from the Referral Act and I refer to this at paragraph 18 of my submissions, excludes from the matters referred matters pertaining to the number, identity of appointment other than terms and conditions of employees and matters pertaining to the number, identity of the employees to be dismissed or to be dismissed on the ground of redundancy. I've just made the observation in the footnote that it's important I think to read the language of the Referral Act. It excludes matters pertaining to those things and in Parks Victoria I think his Honour the President discussed what "pertaining to" meant. It means within the orbit or the sphere.

PN365

So to take an example I think in Parks Victoria what President Ross observed or raised the question in relation to merit promotion for example and said well, merit promotion may well offend the question of the number or rather the identity of the appointment of an individual because it might not go to the issue of a specific individual but the issue of merit brings with it comparison and imposes on the state a criterion that might not necessarily or that might impinge upon the state's approach to such matters. So we have identified in our submission - there is a table at paragraph 36, we identified the matters which we submit would appear to offend the referral or Re AEU, these are matters out of the log of claims. In the time available - I haven't had an opportunity to go through and cross off which one of these are no longer pursued but some of them are still clearly being pursued.

PN366

THE COMMISSIONER: Yes.

PN367

MR FORBES: The important point to make, Commissioner, is this that it only needs one matter in a log of claims to offend the referral or Re AEU to bring it down. It only needs one. Our submission also deals with the question of whether the log of claims constitutes a proposed enterprise agreement and we deal with this a couple of ways. First of all I have highlighted the objects clause of division 8 and I think it's important to bear that in mind in the overall consideration of this matter, Commissioner, and that is that the object of division 8 which deals with protected action ballots, "Is to develop a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular action for a proposed enterprise agreement."

PN368

That really comes back to the point I was making before that this is designed to empower the union to conduct a ballot of its members as to whether they wish to engage in particular forms of industrial action, and they have been listed, for a proposed enterprise agreement. They have got to know what the proposed agreement is that they're taking action in relation to. If they don't or if there's any doubt the Commission shouldn’t make the order. What we have said is that a proposed enterprise agreement for the purposes of section 443 of the Act can only be an agreement which is about permitted matters and which is capable of being approved. We have dealt in the submission at paragraph 36 with the various clauses in the log of claims which we submit can't be approved and can't form the basis of the agreement.

PN369

It follows, in my submission, that if the Commission can't make an agreement then what is being sought can't be a proposed enterprise agreement for the purposes of the legislation because it would be absurd if it were open to a union to seek to pursue an agreement which the Commission could never make. I have dealt also in the submission with Electrolux and Electrolux really stands brightly as an authority which is highly relevant to this case, albeit a circumstance in Electrolux what was being dealt with was a non-permitted matter. Here we are not dealing with a matter which is not permitted by the Act, we are dealing with a matter which never finds its way to this Commission and we submit that Electrolux stands for the proposition that if the Commission can't make the order then the Commission cannot approve the bargaining process including the taking of protected industrial action to support that.

PN370

So those are our submissions in relation to the jurisdictional point, Commissioner, and I seek to rely on those and I'm happy to have any discussion if there are any matters arising. What we therefore say, Commissioner, is even if you find that this application remains valid because of the changed circumstances you should nonetheless decline to entertain it on the jurisdictional grounds because the log still contains matters which offend Re AEU and the referral. Commissioner, if you are minded to make an order - I'm sorry, and the other point I have not dealt with in the submission but really arises more laterally is because of the changed circumstances the ballot question in my submission is now just ambiguous, no one can make sense of it.

PN371

If you are minded to make an order, Commissioner, we say that there are exceptional circumstances which justify the extending the notice period. We have referred in the outline to Vice President Lawler's well known decision in CEPU v. Australian Postal Corporation. I won't repeat all of that but what his Honour said there is, we have to demonstrate exceptional circumstances but we also have to demonstrate that the exceptional circumstances justify the extension of time and when all is said and done exceptional circumstances always depend on the circumstances. And what we say here, Commissioner, is you have got evidence before you from Mr Bugden which has not really been seriously challenged in any respect.

PN372

Mr Bugden has said in his statement what the anticipated impact of various forms of industrial action would be, but also most importantly is that the Department is not likely to stand idly by because it has got responsibilities to children and care and so forth that it wishes to endeavour to cover the gaps and mitigate the impact. Insofar as the Department can do that it is really not going to be possible to do things within three days. You will be aware, Commissioner, that the teachers - I think the protected action ballot order in teachers authorised an extension of time to five days. An important part of the evidence here is that we seek an extension of time to seven days and that is because principals play a significant role in the management of industrial action and the consequences of industrial action of teachers.

PN373

Principals are by and large the representatives of the Department on the ground. Principals are heavily involved in mitigating the impact of teacher industrial action and effectively if you have a coordinated process of action being taken by both teachers and principals then the Department is impossibly hamstrung and the consequences of that are really very significant. All of that is dealt with in detail in Mr Bugden's statement but the matters which we seek to highlight particularly are the impact on NAPLAN - - -

PN374

THE COMMISSIONER: This is predicated - my recollection of Mr Bugden's statement in this respect is these concerns are predicated on if the AEU and CPSU and United Voice and the principals all took action at the same time that would cause - - -

PN375

MR FORBES: That is one element of it but there is also certain responsibilities that the principals have separate. So the principals also have certain responsibilities in relation to management of industrial action but in relation to NAPLAN for example the principals have that sort of leadership role, being the custodians of the papers and security and various other things.

PN376

THE COMMISSIONER: Aren't they, Mr Forbes, principals who are covered by the proposed agreement that the AEU is attempting to negotiate?

PN377

MR FORBES: Yes.

PN378

THE COMMISSIONER: So they are already taking industrial action on five days notice?

PN379

MR FORBES: Yes.

PN380

THE COMMISSIONER: Yes, and the Department seems to have survived this long?

PN381

MR FORBES: I'm not sure.

PN382

THE COMMISSIONER: It's still here.

PN383

MR FORBES: Yes, I am instructed the bans being taken are different, that is that the bans being taken by principals as part of the broader AEU bans are different to the ones being proposed here. But in my submission the evidence really speaks for itself that the exceptional circumstances here really flow from the environment in which the principals work. We are dealing with hundreds of thousands of students for whom - who have parents and carers and other persons who have to organise their lives around students attending school and care and other matters, and it is just not possible within three days to take reasonable steps to mitigate the impact of these forms of industrial action. That is not to say that that Department has a right to totally mitigate the impact of the action, we accept that it doesn't and this is supposed to cause us irritation and difficulty but the principle that arises out of David's and other cases is that the employer should nonetheless be given an adequate opportunity to organise itself to mitigate the impact.

PN384

It may well be, as Mr Cotching says, that the Department won't be able to cover people, it won't be able to totally mitigate the situation but it has to be given an adequate opportunity to do so and in my submission seven days is an appropriate period of time. I think I have got another note coming so just pardon me. I will just come back to the Act, Commissioner, in relation to section 443. I should address this because my learned friend I think said at the outset that there really shouldn’t be any argument about whether an application has been made under section 437. In my submission that can't be taken as read. There has certainly been a document filed. Whether it's a proper application we submit that it's not because it’s not possible for protected industrial action to be taken. Section 437 refers only to an application for a ballot in relation to protected industrial action, and for all the reasons I have referred to before we submit that if action were to be approved to pursue the log of claims as it stood at the time the application was made that would involve employees taking unprotected industrial action.

PN385

THE COMMISSIONER: Yes, but the application has been made. It seems to me section 437 goes to the mechanics of getting a document before the Commission, ensuring it goes to the Electoral Commission, that it specifies the group of employees and so on. If an application is never competent because there's a debate about whether the applicant can be made, I would have thought it puts the Commission into a bit of a tailspin because there is a point where we can't get out of is it a valid application because there is an argument about whether the action would be protected if it was taken.

PN386

MR FORBES: I understand your point, Commissioner, the point we make is yes, a document has been filed, it can't be rejected. You have got to deal with that but we would submit that you confine for the reasons we have articulated, going to the Referral Act and Re AEU that protected action can't follow and therefore the application simply can't be made out.

PN387

THE COMMISSIONER: I can't be satisfied under section 443 I think is probably the cleanest course.

PN388

MR FORBES: So, Commissioner, we would submit firstly that you should dismiss this application for the reason that it is effectively incompetent having regard to the factual changes which occurred yesterday. If you don't do that we would invite you to dismiss the application on the basis that it is beyond the jurisdiction of the Commission to make that order. Thirdly, we would submit that you ought dismiss the application on the basis that the ballot question is incomprehensible and fourthly, in the event that you are minded to make the order we would respectfully submit that you make an order to extend the notice period to seven days.

PN389

THE COMMISSIONER: Yes, thank you, Mr Forbes. Ms Duffy.

PN390

MS DUFFY: Commissioner, there are a few matters I need to address by way of reply and I will essentially follow I think the same order as my learned friend's submissions. If I can start with a section 240 application. The way that my learned friend has characterised what Mr Cotching has said about that is not in fact fair in my submission and you will see Mr Cotching specifically deals with the reason for filing the log of claims - the original log of claims that is with the section 240 application at paragraph 7 of his statement where he essentially says that it sets out the history of the bargaining. You would need to look at the section 240 application to really determine what the matters in dispute are.

PN391

THE COMMISSIONER: Except that I shouldn’t have to go to another application that's before the Commission to work out whether I've got the power to do what I have to do under this application. I mean it's fortunate that the section 240 application is before me so I know of its existence. I can't say that I've read it in absolute detail. But I shouldn’t have to go there to know what the current claim is.

PN392

MS DUFFY: No, I would certainly agree with that, Commissioner, but what my learned friend has put is that you should effectively extrapolate from that section 240 application that the claims in this application are in fact still the log of claims, I understand that's how the argument was put and I would say it shouldn't do that at all.

PN393

THE COMMISSIONER: Isn't the problem though I either take the log of claims that's in the 240 application and at tab 4 of Mr Bugden's statement, or the only other thing I have are some changes that were made to the log of claims by the executive last night and I know nothing in between. Apart from what the executive determined last night I know nothing of what is in the log of claims except the section 240, the document that was attached to the 240 application.

PN394

MS DUFFY: Commissioner, with respect you don't need to look at the document that's attached to the 240 application because it's essentially the same document that's before you in this application. All that does, in my submission, is confirm essentially that it's a historical document that started the process of bargaining.

PN395

THE COMMISSIONER: The problem is I don't know anything else except for the executive resolution last night.

PN396

MS DUFFY: And the reason for that, Commissioner, is because of the confidentiality arrangements between the parties. I mean the Department would have you believe that the original log of claims is the current claim of the APF, now that's clearly just not an argument that is sustainable on the evidence.

PN397

THE COMMISSIONER: But isn't it up to the APF to put to - it's the APF's responsibility as the applicant to show me that they are genuinely trying to reach agreement and genuinely trying to reach agreement means that you're not pursuing matters that can't be included in an agreement.

PN398

MS DUFFY: That's exactly right, Commissioner.

PN399

THE COMMISSIONER: So whether there's been confidential negotiations or not it is not - I can't skip over a step in the process just because the negotiations have been confidential.

PN400

MS DUFFY: No, that's right, Commissioner, but what you need to be satisfied in the context of the submissions that have been put by the respondent, you need to be satisfied that the applicant is genuinely trying to reach agreement by not pursuing matters that would otherwise be excluded by Re AEU and/or the Referral Act and it is my submission that there is sufficient evidence from Mr Cotching for you to make that determination in the sense that the APF has very clearly stated and set out in the paragraphs of Mr Cotching's statement that go to the specific matters that the Department has taken issue with, he has indicated that most of those claims are in fact no longer pursued and insofar as those claims still do remain, you have got a very clear resolution from the executive of the organisation saying that they are not pursuing any claims that would offend the relevant limitations.

PN401

THE COMMISSIONER: I understand that. Mr Forbes then says well, even if that's the case the members of the APF don't know what the claim is because it's been amended and Mr Cotching's evidence is that he hasn't told his members of the amended claim.

PN402

MS DUFFY: For a start, Commissioner, I don't think - that was not his evidence and (indistinct).

PN403

THE COMMISSIONER: His evidence as I heard it was that some of his members, the executive and some others are aware of the resolution of last night but not that all of his members are aware of that change. But Mr Forbes' point is the members don't know, but anyway there haven't been any negotiations over this new restructured claim.

PN404

MS DUFFY: Commissioner, I've got to go back a step there because that's firstly accepting this is somehow new. Now, that's simply not the case. We say that it's been clear since 14 February, the document that was referred to and negotiations that occurred before then that these matters were not being pursued and I can't remember exactly what Mr Cotching said and forgive me if I don't express this correctly but the resolution that was passed yesterday is in effect not something new, it is effectively to clarify the position because of the concerns that were only raised by the Department last Thursday and in terms of what the APFs position is it might have been much easier to clarify their position on some of these matters if we had had any inkling that there was any sort of suggestion that there was a problem, that's simply just not been raised at all by the Department until the documents were presented to the Commission last Thursday.

PN405

As I have indicated, Commissioner, really that entire submission made by my learned friend is predicated on what I say is not the correct premise that the original log of claims is the current log of claims. Mr Cotching is in a difficult position because he has tried to present evidence to the Commission without going beyond that confidentiality agreement, but there is certainly no requirement under the Act, Commissioner, and my learned friend has not taken you to any requirement that says the Commission before approving a ballot order has to see every single claim expressed. It is important obviously that the members understand the claims but the evidence was not that the members don't understand the claims. There was certainly no suggestion that I think Mr Cotching said he had been to some 20 meetings around the state, forums to keep the members up to date with the bargaining position but there was certainly no suggesting put to Mr Cotching that that was the only communication there has been with his members. It is certainly not the evidence that that is the entirety of those communications, there just isn't any evidence before you.

PN406

It is my submission, Commissioner, that really the resolution has been passed to give some clarity as to the APFs position on the matters that were raised by the Department last Thursday and that the Commission should take some comfort from that in essentially being comfortable that the claims being pursued do not offend any of the relevant limitations. The other issue of course, Commissioner, is that that is presuming there are any claims still being pursued that offend any of those limitations. We say simply that there aren't. Mr Cotching has taken you through several of the specific claims that were referred to by the respondent in his statement and it is my submission that in any event the claims referred to and dealt with specifically in the evidence, they are 10.3B, 10.3H and 13.5 and 13.6 can be maintained anyway because they are permissible and do not offend either of the limitations.

PN407

The power that you are being asked to exercise today, Commissioner, to make a ballot order simply isn't one that you are prevented from exercising because of any limitations in Re AEU or the Referral Act. For those reasons, Commissioner, we say that the order should be granted. I think there was only one other matter I wanted to deal with in relation to the evidence about the proposed bans and I think my learned friend made a comment along the lines of essentially Mr Bugden's evidence was unchallenged on that. I just wanted to draw your attention to the matters that are dealt with at paragraphs 19 to 22 of Mr Cotching's statement which in my submission certainly do challenge that evidence and particularly paragraph 21 of Mr Cotching's statement where he indicates that the bans 8 to 11 do not in fact involve absences of the PTOs, so to that extent he says that Mr Bugden has in fact got that wrong. Those are the matters I wish to raise in reply, Commissioner.

PN408

THE COMMISSIONER: Thank you, Ms Duffy. Any other matters? I will reserve my decision.

<ADJOURNED INDEFINITELY [12.03PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

CHRISTOPHER JOHN COTCHING, SWORN PN24
EXAMINATION-IN-CHIEF BY MS DUFFY PN24
EXHIBIT #APF1 WITNESS STATEMENT OF CRISOPHER JOHN COTCHING CONSISTING OF 22 PARAGRAPHS WITH ONE ATTACHMENT PN32
CROSS-EXAMINATION BY MR FORBES PN35
RE-EXAMINATION BY MS DUFFY PN201
THE WITNESS WITHDREW PN213
ANTHONY JOHN BUGDEN, SWORN PN219
CROSS-EXAMINATION BY MR FORBES PN219
EXHIBIT #VIC1 WITNESS STATEMENT OF ANTHONY JOHN BUGDEN WITH 12 ANNEXURES, DATED 21/03/2013 PN234
CROSS-EXAMINATION BY MS DUFFY PN251
THE WITNESS WITHDREW PN276
EXHIBIT #VIC-2 RESPONDENT'S OUTLINE OF SUBMISSIONS PN341