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581 
, Transcript of Proceedings [2016] FWCTrans 268 (1 July 2016)
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1053598
DEPUTY PRESIDENT CLANCY
B2016/ 581
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
and
AGL Loy Yang Pty Ltd T/A AGL Loy Yang
(B2016/ 581 )
Melbourne
2.12 PM, FRIDAY, 10 JUNE 2016
Continued from 7/06/2016
PN957
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Bakri.
PN958
MR BAKRI: Thank you, Deputy President. Deputy President, before I commence making the closing submissions for my client, there is just a minor housekeeping matter.
PN959
THE DEPUTY PRESIDENT: Yes.
PN960
MR BAKRI: This afternoon an outline of submission was filed and served by AGL.
PN961
THE DEPUTY PRESIDENT: Yes.
PN962
MR BAKRI: I would just like to say at this juncture in the time available we have done what we have been able to do and have tried to review the material. We haven't been able to get right through it given the size of it. That is no criticism of my friends, it's just the nature of the timeline.
PN963
THE DEPUTY PRESIDENT: Yes.
PN964
MR BAKRI: But what I will say is that if throughout the course of this hearing, I form the view that there is something, a matter that my client ought to have the opportunity consider further and research and provide a further submission, that I will raise that with you because there a few new cases raised and those sorts of things. It is not the summary of the evidence that provides some concern. It is more if there are new doctrines or authorities referred to, fairness dictates that there should be an opportunity to respond to those things. That is all I wish to say at this point about that.
PN965
THE DEPUTY PRESIDENT: Do you have a - - -
PN966
MR O'GRADY: It is hard to respond at this juncture. We, of course, were both operating under tight timeframes and that flowed from the urgency that the union said was associated with this application. But it is ultimately going to be a matter for you, Deputy President. I would only ask that if such leave was asked for and granted, then obviously my client might need an opportunity to respond or anything that Mr Bakri seeks to put in.
PN967
THE DEPUTY PRESIDENT: All right, well, let's see what emerges and we will see whether we are dealing with a moving feast.
PN968
MR O'GRADY: Yes.
PN969
MR BAKRI: Deputy President, I have handed, prior to the hearing commencing, an outline of closing submissions which I rely on.
PN970
THE DEPUTY PRESIDENT: Thank you.
PN971
MR BAKRI: What I intend to do is step you through this document. I can indicate that this document is intended to replace the outline that was previously filed. It essentially builds off that document. It incorporates those, so you can disregard the previous document.
PN972
THE DEPUTY PRESIDENT: Thank you.
PN973
MR BAKRI: As indicated in paragraph 2, my client relies on the oral evidence of Mr Hardy, in addition to the two witness statements that were filed.
PN974
THE DEPUTY PRESIDENT: Yes.
PN975
MR BAKRI: I will commence by addressing you on whether the Commission should make an order and then I will turn to the second question of whether the notice period should be extended.
PN976
The first objection made by AGL is: does the application specify the group or groups of employees to be balloted? We contend that that objection should be dismissed on the basis that the group is clearly set out. The way that the submission is put by AGL is that there is real uncertainty as to whether each of the six individual bargaining representatives are properly appointed as bargaining representatives under section 176(1)(c) and thus the group of employees is unclear.
PN977
The way we respond to that is as follows. Firstly, we deny that there is any such uncertainty and the key submission we make is that in the absence of a determination which was made by a court acting within jurisdiction, that the individual bargaining representatives are valid bargaining representatives and there is no basis therefore to find that the group is unclear. To put that a different way, the bargaining representatives are validly appointed at law unless it is found by a court to be otherwise. So we would contend that the Commission can't properly reach the conclusion that the group is unclear merely because an employer fronts up in responding to a protected action ballot application says that there is some uncertainty in its views.
PN978
Mr Hardy gave the following evidence. He said:
PN979
I reject any suggestion made by AGL Loy Yang that any bargaining representative is not free from the control or improper influence of the CFMEU.
PN980
That is paragraph 7 of exhibit A2. Counsel for AGL made the decision not to cross-examine Mr Hardy on that evidence. The result of that is that Mr Hardy's evidence is unchallenged and accordingly it ought to be accepted by the Commission.
PN981
On the evidence, AGL have failed to establish that there is any uncertainty as to the validity of the bargaining representative's appointment. If they want to make that submission and make it with any serious way, Mr Hardy should have been challenged. In the absence of that, there is no basis to find that his evidence is incorrect.
PN982
At this point it might be convenient to respond to some of the contentious made by AGL in their outline of today.
PN983
THE DEPUTY PRESIDENT: Yes.
PN984
MR BAKRI: You will have to bear with me. I might be jumping around a little bit. At paragraph 11 of AGL's outline, it is contended that the absence of a legislative provision in the Fair Work Act facilitating the making of a judicial determination as to whether the bargaining representatives are independent or not tells against the CFMEU's argument that this is a question for the court.
PN985
Our response to that is that that is misguided. The Fair Work Act provides various rights and obligations and does not have provisions that say you can go to court to have that provision enforced and that is because the Fair Work Act operates in conjunction with other laws that confer jurisdiction on the courts. Most significantly here is the Judiciary Act and section 39(b) which provides federal courts with the jurisdiction to enforce the laws of the Commonwealth.
PN986
So if a person or a company had a legitimate view or a union for that matter, the legitimate view that a purported bargaining representative was not validly appointed because the appointment was contrary to regulation 2.06 and that I the independence requirement if we call it that. It is plain that there is an avenue and that avenue to pursue that is to make an application in the Federal Court under 39(b) of the Judiciary Act seeking a declaration that the person is not independent and therefore the appointment is invalid. So that is how we respond to that.
PN987
The next point that I want to respond to is made at paragraph 13 of AGL's outline and I will attempt to do the point justice, but my reading of this point is that the Commission has the power to interpret the law and express its opinion about the law and that is not exercising the judicial power. It is just something that the Commission is able to do in undertake its statutory functions.
PN988
We don't cavil with that proposition per se, but what we say is that what the authorities reveal is that those opinions as to the law, so it is quite right that the Commission doesn't exercise judicial power to make any binding determinations as to the operation of the law. But those opinions are only to be expressed insofar as the Commission finds it necessary to do so in order to determine the matter.
PN989
To take an example, if an individual brings an unfair dismissal application and in an application they are of course contending that the dismissal was harsh, unjust or unreasonable, there is no question whatsoever that it is necessary for the Commission in exercising its power under the Fair Work Act to determine that allegation that it express an opinion as to what has occurred or what hasn't occurred and also the meaning of the definition of what an unfair dismissal is and how broad that concept is. That is a clear example where the Commission can express those sorts of opinions because it is necessary.
PN990
We say here that there is no such requirement in what the Commission has jurisdiction to do is to determine whether an application has been made in accordance with the provision and, significantly, whether the bargaining representative is genuinely trying to reach agreement. That is the jurisdictional task at hand and in undertaking that task it is unnecessary for the Commission to go off on a tangent and express some opinions as to whether a bargaining representative has been appointed validly or not.
PN991
The next point that I would seek to respond to in AGL's submissions is the point made at paragraph 14 and this is where AGL refers to the presumption of due appointment and capacity to act. I won't attempt to read the Latin there, but what that is also referred to is, in my understanding, the presumption of regularity. We can contend that what AGL say about the law at paragraph 14 is incorrect. On a quick review of Heydon's "Cross on Evidence", it appears that what Cross is referring to is that the key in determining whether there is a presumption of regularity or not is the source of the capacity or the authority in which a person is acting.
PN992
Here, where we are talking about the operation of a statute, it is a capacity or authority which is properly characterised as a public right. So that is to be distinguished from a person appointing another in an individual capacity to be their agent to go and buy a car or to buy a sandwich at the shops. In that instance, the law provides that there wouldn't be a presumption of regularity. You would need to prove that the other person was acting within authority.
PN993
But where there is a public right, there is a provision in an Act that says that someone can appoint someone, we contend that the presumption of regularity applies and it is not as confined as AGL seem to contend it is in paragraph 14. Now, dealing with paragraph 15, AGL put an argument in the alternative. They say, well, even if it didn't apply, the presumption is rebuttable and they say that once AGL adduces evidence tending to negative the appointment, it then becomes incumbent on the CFMEU to satisfy the Commission that those individuals were duly appointed.
PN994
Our response to that is that is completely and utterly misguided. It is not incumbent on the CFMEU to rebut that. It is incumbent on AGL to prove that that fact is right. The onus does not shift to the CFMEU and it is an entirely unsustainable submission.
PN995
Turning back to the outline of submissions of the CFMEU, at paragraph 11 we set out our response to the Ingham's Enterprises decision. We say it is completely different. It doesn't really provide much assistance here. It makes clear that it is one instance in which the Commission has found that the requirement in 4373A was not met, but completely different facts and just doesn't take the matter any further.
PN996
Turning to the alternative submission that the CFMEU makes, we contend that in the event that contrary to the submissions that I have just made, Deputy President, you will be troubled by the contention that the group of employees is not clearly specified. It is a matter that can be easily addressed by the Commission exercising its discretion to allow a very simple amendment to the application and we set out the form of that amendment in paragraph 13.
PN997
It is trite that the Commission has the power to allow the amendment under section 586 and such an approach would be consistent with the objects of division 8 of part 33 of the Act. So we are here because the union wants to ballot employees who it says it is representing to see whether they want to approve certain forms of industrial action. That is all. The Commission should be guided by the fact in exercising its powers. It should not approach these matters in an overly technical way and if there is a concern that the group is not clear, which we say there shouldn't be, and there is an easy amendment that rectifies that, the amendment should be allowed if it rectifies the issue and allows the simple and democratic process to go ahead.
PN998
THE DEPUTY PRESIDENT: So your intention in pressing this application is that it is only to apply to the approximately 90?
PN999
MR BAKRI: That is correct.
PN1000
THE DEPUTY PRESIDENT: And, therefore, it will be that 90 that vote and therefore if they vote in the affirmative, take the industrial action in a protected manner.
PN1001
MR BAKRI: That is right. That is our intention and that is what we are here trying to achieve. There are some hurdles that are thrown up in the way and the hurdles are easily dealt with by our primary submissions and in the alternative, you are concerned about it, despite our urgings that you shouldn't be, Deputy President, this is how you deal with it.
PN1002
THE DEPUTY PRESIDENT: The alternative position you put, the alternative wording, does that really advance things? Because if the controversy here is that the argument, as I understand it, is these bargaining representatives are part of the CFMEU or are part of the CFMEU because of the manner in which they were appointed and other characteristics such as whether or not - - -
PN1003
MR BAKRI: I think as high as it is put, there is some uncertainty as to whether that is the case.
PN1004
THE DEPUTY PRESIDENT: Yes. So my question is, does the uncertainty attach to it, does the alternate wording take it any further?
PN1005
MR BAKRI: We say that it does because under the alternate wording, even if the person, the individual bargaining representative, if they were right at law, the person was not validly appointed, this seeks to deal with that by saying, well, it is anyone who - - -
PN1006
THE DEPUTY PRESIDENT: Purported to - - -
PN1007
MR BAKRI: Yes, who have not nominated or purported or an intention there is that anyone that has attempted to do the act of nomination.
PN1008
THE DEPUTY PRESIDENT: So you say purported to nominate means that even if I was persuaded that there was uncertainty about their appointment purported to nominate doesn't.
PN1009
MR BAKRI: We say that that rectifies it, so we think. But it is the kind of matter, Deputy President, where no matter what wording we put there, I think we face an argument there is still some uncertainty from the other side of the Bar table.
PN1010
THE DEPUTY PRESIDENT: In the context of this bargaining round, it seems that anything could be put.
PN1011
MR BAKRI: Yes, it seems the way, doesn't it?
PN1012
THE DEPUTY PRESIDENT: Yes, all right, thanks.
PN1013
MR BAKRI: Now dealing with the Jones v Dunkel submission at paragraph 24 of AGL's outline.
PN1014
THE DEPUTY PRESIDENT: Yes.
PN1015
MR BAKRI: Our response is that it is a misguided submission. Jones and Dunkel does not apply in this situation because our key contention is that the question of whether the bargaining representatives are actually independent or not, which they say they are, of course, is not something that arises for determination in this proceeding. So Jones v Dunkel only applies in particular circumstances where all the boxes are ticked and one of those requirements is that there is an unexplained failure to call someone. Well, here there is no unexplained failure.
PN1016
Quite simply, our contention is that in performing in assessing the jurisdictional test which the Commission is required to do under this application, this question does not arise. Well, that is the explanation for why we didn't call evidence that we say is not relevant or of assistance in this application. This needs to be looked at in the context of Mr Hardy making a clear and direct denial of the allegation of those individuals not being independent and AGL making the forensic decision not to challenge him on that.
PN1017
THE DEPUTY PRESIDENT: But what about the evidence that went in saying, well, this is the manner in which they were appointed? Mr Hardy sent forms to two of the individuals. Does that not challenge it, even though he wasn't cross-examined on it?
PN1018
MR BAKRI: If he is not cross-examined on that, his evidence stands intact.
PN1019
THE DEPUTY PRESIDENT: Yes, yes.
PN1020
MR BAKRI: He ought to have been cross-examined no that.
PN1021
THE DEPUTY PRESIDENT: Yes, but don't I then have to prefer a version of evidence?
PN1022
MR BAKRI: I say that Mr Hardy ought to have been cross-examined on that, otherwise it stays intact. And also out of fairness it ought to have been put to him if they want to make a real submission about this. And what we would also say is that the evidence that has been put on by AGL from the good faith bargaining proceeding before Commissioner Gregory goes nowhere near to establishing that those bargaining representatives are not free from control of the union and free from - sorry, that they are not free control and that they are not free from improper influence. The bar is very high and there is just simply not enough. At most there were some communications and cooperation and, as Deputy President Gooley found in the TCFUA case, there is a level of cooperation. That doesn't mean that that is necessarily something untoward.
PN1023
THE DEPUTY PRESIDENT: Yes.
PN1024
MR BAKRI: I should just quickly address the submissions that AGL make in response to our fall-back position. So that is the amendment application.
PN1025
THE DEPUTY PRESIDENT: Yes.
PN1026
MR BAKRI: AGL seem to submit that the effect of - and this is at paragraphs 35 onwards - the effect of the union's proposed amendment, should it be necessary, is that it would disenfranchise certain employees from the ballot and that this would be undemocratic it said at paragraph 37. The submission ought to be rejected. It is up to the union who it wants to - it is up to the applicant in a protected action ballot order application as to who it wants to ballot. There is no obligation on that applicant to decide to ballot everyone. It could decide hypothetically to have a ballot and this is done often of a particular department in a workplace or a particular work site.
PN1027
What that would mean, of course, is that only those employees that were balloted could then take the action. But there is no obligation to make the processes democratic as possible by making sure that everyone has a say on it. The only people that are required to have a say are those that are then going to want to take the action. So it is a misguided submission and doesn't assist.
PN1028
Now turning to objection number two and this is where the CFMEU is genuinely trying to reach agreement.
PN1029
THE DEPUTY PRESIDENT: Yes.
PN1030
MR BAKRI: I won't run through all the principles; they are well known. We set out the provision at paragraph 17 of our outline and we go through JJ Richards which we say is the key decision in the area at paragraphs 18 and 19.
PN1031
THE DEPUTY PRESIDENT: Your position is that anything that happened before the letter of 28 September when the CFMEU said, "We have already bargained, anything before that doesn't matter" - - -
PN1032
MR BAKRI: My apologies. Which date did you say?
PN1033
THE DEPUTY PRESIDENT: Late September, ahead of 16 October 2015.
PN1034
MR BAKRI: Yes.
PN1035
THE DEPUTY PRESIDENT: So 16 October was the first meeting.
PN1036
MR BAKRI: Yes, yes, that's right.
PN1037
THE DEPUTY PRESIDENT: But there was a letter ahead of that where the CFMEU said, "We're ready to bargain", and they fixed the date of the 16th.
PN1038
MR BAKRI: That is right, yes.
PN1039
THE DEPUTY PRESIDENT: So your position, is it not, that anything prior to at least that letter or if not 16 October, is irrelevant.
PN1040
MR BAKRI: Is irrelevant, yes, that is one of the things we say and I think the evidence is that AGL was bargaining with other bargaining representatives I believe is the evidence. But it has got no relevance to this application because it is about whether the CFMEU as the bargaining representative making this application was genuinely trying to reach agreement. Now, the focus, as is made clear by the Full Bench in JJ Richards is on what is the intention, object or purpose of the CFMEU. We set out the evidence that we say meets that requirement at paragraphs 20 to 22. The key thing is that Mr Hardy gives evidence that his intention is to reach an agreement and then he also gives evidence of the various steps that the CFMEU has taken in its pursuit of reaching agreement. That is exchanging claims, responding to claims, meeting.
PN1041
THE DEPUTY PRESIDENT: This is at 22?
PN1042
MR BAKRI: Yes, all of those things and what I have done there is I have set out the reference to Mr Hardy's evidence and the reference to the evidence of Mr Clinch where he agreed with those propositions. Now, Mr Hardy was not challenged at all on what his intent, object or purpose is. It was not suggested to him that there is some extraneous purpose. Everything that has been occurring, I submit you must find has been as part of the bargaining process in an attempt to reach agreement.
PN1043
It is irrelevant whether the view is that there are tactics being employed that are good, bad or otherwise, or un-strategic or strategic. It is irrelevant if there is hard positional bargaining which is what Commissioner Gregory found was occurring. What matters is what is the CFMEU seeking. If it is seeking an agreement and it is genuine in its attempts to seek an agreement, then that jurisdictional requirement is met.
PN1044
The AGL attempts to essentially conflate the test that you are required to apply with the good faith bargaining requirements. They say that is not what they are doing, but that is exactly what they do. And their complaint, Deputy President, is really about the tactics that are being employed in aid of bargaining or what in the CFMEU's view is in aid of bargaining. It doesn't matter whether it is or it isn't, it is irrelevant.
PN1045
So in the good faith bargaining decision, Commissioner Gregory made references to the various strategies that are being employed by the parties and he said that bargaining had been characterised by behaviour that might variously be described as robust, adversarial and involving what is sometimes described as hard positional bargaining. Now, these are the very strategies that AGL now object about in aid of their contention that we are not genuinely trying to reach agreement.
PN1046
What seems to be AGL's key submission is the assertion that the CFMEU's involvement in putting forward individual bargaining representatives who it contents don't appear to be independent should lead to a finding that they are not genuine in seeking to reach agreement. Our position is that that is a misguided submission that has been previously rejected and we rely on the TCFUA decision.
PN1047
I see in AGL's outline and we say that the key part of that decision is paragraphs 57 and 58 which we reproduce under paragraph 29 of our outline. We see that AGL contend in their outline from paragraphs 104 onwards that the TCFUA decision is of no assistance and it was a different scenario. Well, we disagree with that and we refer to what the Commissioner directly says at 57 and 58 where it is found that the submission that by acting in concert, bargaining representatives are not genuinely trying to reach agreement is simply not sustainable.
PN1048
And if a union encourages members and non-members to nominate as bargaining representatives, which is the allegation here, that is not relevant to the question to be determined in a PABO application. Now, at paragraph 106 of the AGL outline, AGL makes the somewhat surprising submission that in that case, the witness for the union, Ms Kruschel gave evidence in relation to the appointment and resignation of the individual bargaining reps.
PN1049
If you read that decision, you will see that the reason she gave evidence is because the advocate for Godfrey Hirst in that case that was opposing the application, cross-examined her and questioned her having made the assertion that there had been this conduct that meant that those bargaining representatives weren't individual, actually did the right thing and cross-examined her on that. So that is why Ms Kruschel gave evidence on that matter.
PN1050
Now turning 32 and 33 of the CFMEU's outline, we address what I refer to as the temporal requirement in the jurisdictional test and this is that it needs to be that the CFMEU has been and is genuinely trying to reach agreement and we refer to the Coles decision in that regard as making it clear that what the Commission should look at when applying the test is whether at the time of the termination, the Commission is satisfied that the union is genuinely trying to reach agreement and whether before the determination, the union also has been genuinely trying to reach agreement.
PN1051
Some complaint, I think, is made in AGL's submissions about that we seek to artificially restrict that, the 'has been' requirement. Just to be really clear, what we say about that is that decision says it is not at the time of the application. So the 'has been' is any time before the determination. That includes the time from the application being made, but it also includes what has happened in bargaining previously. And that is why we put on evidence and we rely on evidence about claims that have been exchanged and the various meetings that have been had.
PN1052
It might be put against us, well, in that case if you accept that conduct that happened months ago, then there is an argument that the union was seeking non-permitted content. Now, that doesn't really take AGL very far because the state of the evidence now and prior to the determination is that the CFMEU addressed the concerns that had been raised and I should say not conceding that that material is non-permitted content, but in a genuine attempt to put to bed an issue that was between the parties and said to AGL: "Let's meet, let's keep bargaining."
PN1053
So any historical complaints do not stand in the way - do not properly stand in the way of the finding that the union has been genuinely trying to reach agreement.
PN1054
THE DEPUTY PRESIDENT: Does one outweigh the other? The 'has been' versus the 'is'?
PN1055
MR BAKRI: The Act does not appear to ascribe any importance to one or the other. I would submit that they are both important in considering whether the requirements are met.
PN1056
THE DEPUTY PRESIDENT: Yes, because, look, I accept what you say. You say there was at one time non-permitted content. There is no longer and there might be other things along the way that have been addressed or cured or overtaken by other events.
PN1057
MR BAKRI: Yes, and that is the nature of bargaining. It is a fluid beast and what is important and what Parliament has made clear is that before someone can have a ballot, the Commission needs to be satisfied that at the time they are coming before the Commission and saying, "We want a ballot", that at that time they are genuinely trying to reach agreement and prior to then they have.
PN1058
THE DEPUTY PRESIDENT: As long as there is more 'has been' than 'hasn't been'. Yes, okay.
PN1059
MR BAKRI: Now turning to what we describe in our outline as part 2 and that is the extension application. We set out the relevant provision at paragraph 34.
PN1060
THE DEPUTY PRESIDENT: Yes.
PN1061
MR BAKRI: Paragraphs 35 to 40 we set out what we see as the key principles. I think we are at one on those. The CEPU V Australia Post decision is the decision that everyone seems to refer to and does provide guidance. We add references to Justice Barker in Alcoa and Commissioner Bissett in the Berkeley Challenge v UV case. And that is just, Deputy President, to remind you of the fact that what your task essentially is to do is to balance the interests of the employees who will be taking the action and with the employer's legitimate rights to be able to take legitimate defensive action.
PN1062
But by extending the notice period, it just necessarily flows that there is a reduction in potentially the effectiveness of the action. So you just need to be mindful of that and that is really why there doesn't just need to be exceptional circumstances, but there needs to be exceptional circumstances which justify the extension. We need to weigh it all up and decide whether they have put on enough to satisfy you of that fact.
PN1063
We really see that there are two controversies before you, factual controversies that you need to work your way through to be able to determine the extension application and we see the first one as being - we put as forced cool versus natural cool. So which process you should be satisfied is likely to be used. And we would submit that there needs to be a sufficient likelihood that they will use a natural cool for you to extend the notice period.
PN1064
The second issue is if the forced cool procedure is used, how long is needed for that to happen. So starting with the first area of controversy, we contend that on the evidence, you should not be satisfied. I will put it a different way. We contend that on the evidence you should not be satisfied that there is a sufficient likelihood that the natural cool process is likely to be used. And we refer to four submissions seeking to make good that proposition
PN1065
So, firstly, we point to the failure to call the general manager. It is our position that AGL failed to call acceptable evidence to establish that it would be likely to use the natural cool procedure. On the evidence, it is somewhat unclear who at AGL would ultimately make AGL's decision as to which shutdown procedure is to be used.
PN1066
THE DEPUTY PRESIDENT: Is it?
PN1067
MR BAKRI: It is. I direct your attention to PN590 to PN593 where, to paraphrase Mr James, he in effect said that he expects that the general manager will make the decision at 590 to 593.
PN1068
THE DEPUTY PRESIDENT: What about the evidence about Mr Schumacher saying he would provide - as I understood Mr Schumacher's evidence it was this: "I'll make an assessment and I can override a local site decision about whether it goes ahead or not. That is my veto. But ultimately if I am overruled, I can be overruled by the chief executive, the chief operating officer."
PN1069
MR BAKRI: Who is offsite.
PN1070
THE DEPUTY PRESIDENT: Yes, but isn't that where the ultimate decision - - -
PN1071
MR BAKRI: Mr Schumacher's evidence was a bit, I would contend, unclear as to what his powers were and the extent of those powers was, I found, quite confusing in how he delivered that evidence. And the evidence of Mr James was that he expects - - -
PN1072
THE DEPUTY PRESIDENT: 590, yes.
PN1073
MR BAKRI: Yes, 590.
PN1074
THE DEPUTY PRESIDENT: 590, yes, I have got it here.
PN1075
MR BAKRI: Yes. He expects it will be the general manager that will make the operational decision, but he hadn't had that discussion which is remarkable. He says he has been busy and had a lot on his plate. That is one explanation. That is not an acceptable explanation where AGL has come to the Commission and said, "Yes, there are exceptional circumstances that justify you stepping in here and reducing the effectiveness of the industrial action those workers are going to take." And in those circumstances they have said, "Yes, we are likely to use natural cool and they haven't even called the person who is going to make that decision."
PN1076
They have called people that at its highest will provide recommendations and Mr Schumacher who, as I understand his evidence, could step in at the site level if he feels the decision made is wrong. But they didn't call the person who is going to make the operational decision after having those recommendations. So it is a step before Mr Schumacher would exercise what he describes his veto. It is a problem.
PN1077
THE DEPUTY PRESIDENT: I thought it was the other way around, that Mr Schumacher would make a determination based on what he thought would be appropriate in terms of the integrity of the plant and other considerations, but that ultimately his authority only extended so far and that it would be the chief executive and the chief operating officer who would say, "Right, well, I have heard what you have got to say and then we will take into account other things", and I think he mentioned, you know, there might be commercial elements and others.
PN1078
MR BAKRI: Yes.
PN1079
THE DEPUTY PRESIDENT: They would make the final call, but it would be based on advice that he had and some other issues.
PN1080
MR BAKRI: To Mr Schumacher. But if you take that evidence, for example, so the evidence there is that it's not the general manager, it's either the CEO or the COO. Those individuals were not called either and I put it to Mr James that it's possible. So he thought it was the general manager. He was on a different tram. And I put it to him, "Isn't it possible that the general manager will have a very fixed view about what decisions should be made?" And he said, "Yes, it's quite possible", is in effect what he - - -
PN1081
THE DEPUTY PRESIDENT: Yes, this is at 594, yes.
PN1082
MR BAKRI: Yes, is in effect what he said.
PN1083
THE DEPUTY PRESIDENT: Yes.
PN1084
MR BAKRI: But we don't know if the ultimate decision - there is no clarity as to who the ultimate decision maker is and whether they do have a fixed view or not and how this will be approached. And in the circumstances where - - -
PN1085
THE DEPUTY PRESIDENT: But isn't part of an answer to that, well, until we know what the industrial action is, until we know how many units, et cetera, et cetera, we can't make a decision in terms of our defensive action?
PN1086
MR BAKRI: We would accept - - -
PN1087
THE DEPUTY PRESIDENT: And then wouldn't they also say, "Well, there was one last week, there is one this week, we have got to look at how the plant is going based on it was only a short and then they were back on the job and we fired it up again and then we're fine."
PN1088
MR BAKRI: We would accept that there is some way in the submission that an ultimate decision will be made after every notice is served. We would accept that.
PN1089
THE DEPUTY PRESIDENT: Yes.
PN1090
MR BAKRI: However, AGL have not - they have failed to adduce sufficient evidence to satisfy the Commission as to what general approach would be taken. Now, the ultimate decision maker, given the amount of money at stake, hundreds of thousands of dollars, Deputy President, given that amount of money, the ultimate decision maker will be an operational manager and not from the engineering side of things, might have a very fixed view and there is no evidence as to what approach that person would take. There has been no even discussions with that person and there is no clarity as to who that is.
PN1091
THE DEPUTY PRESIDENT: Yes.
PN1092
MR BAKRI: When AGL wants to satisfy you that they would take a particular approach, it is incumbent on them to firstly establish who the decision maker would be and what approach they would take, not by calling someone more junior in the hierarchy who hasn't even had the requisite discussions. Now, the next matter that we refer to is that based on the evidence before it, the Commission should not be satisfied that the forced cool process increases the risk of damage to the units and we make this submission at paragraph 50 through to 54.
PN1093
THE DEPUTY PRESIDENT: Yes.
PN1094
MR BAKRI: Firstly, we refer to Mr James's evidence that he has quite properly conceded that the forced cool procedure doesn't cause damage if it is followed. Now, that is not the end of the matter. It leaves the question of wear and tear, what Mr Schumacher referred to as fatigue that is caused by a shutdown. Mr Schumacher gave evidence that a forced cool causes a greater level of fatigue to a turbine than a natural cool. And he accepted under cross-examination that AGL logs and tracks the effects of shutting down the turbines on the expected operating life of each turbine and that he has access to that data. And the references there are PN773 and 801. Now, notwithstanding the fact of the importance that AGL seeks to put on - - -
PN1095
THE DEPUTY PRESIDENT: But isn't the difference with that, though, the logs? That is tended to be done in an atmosphere where the whole thing was planned, controlled and monitored.
PN1096
MR BAKRI: The log is every time they are shut - every day they are logging what the expected life is, just like another business might.
PN1097
THE DEPUTY PRESIDENT: Yes, but if you are looking at the effect of a forced cool, that is a forced cool that has occurred in circumstances where you have planned it.
PN1098
MR BAKRI: Yes, yes, I would accept that, but it is just like if industrial action is notified, there is still planning that goes into it.
PN1099
THE DEPUTY PRESIDENT: Sure, sure.
PN1100
MR BAKRI: But they are not miles apart.
PN1101
THE DEPUTY PRESIDENT: But if we are talking about the effect on the plant, right?
PN1102
MR BAKRI: Yes.
PN1103
THE DEPUTY PRESIDENT: And they have logged overtime, right, well, this is when we did forced cools and it might have been in relation to a maintenance shutdown or the like. If you are in a period where industrial action is going to be taken and it might be taken on multiple occasions and there might be, as a result of that, either a forced or a natural cool, let's say it's a forced cool, isn't at the end of all that when you are done and hopefully there is an agreement made, then they will have the logs and then they will be able to measure the impact of that sort of a forced cool?
PN1104
MR BAKRI: Deputy President, whether a forced cool is done as part of industrial action or in maintenance, it has the same effect. It's - - -
PN1105
THE DEPUTY PRESIDENT: But isn't their complaint or their concern that it is going to happen more often and it is going to happen in times and circumstances he can't plan for and control.
PN1106
MR BAKRI: That are unknown.
PN1107
THE DEPUTY PRESIDENT: And aren't known, yes.
PN1108
MR BAKRI: And that is right, it is unknown and that is because it is an entirely speculative submission which we are getting ahead ourselves.
PN1109
THE DEPUTY PRESIDENT: Yes.
PN1110
MR BAKRI: That is not what we should be looking at at this point and I will come to that in a minute. But if I could just say this. The point that I am seeking to make is that, accepted at its highest, Mr Schumacher's evidence is that the extent of fatigue is greater when a forced cool is used. That is, greater than a natural cool.
PN1111
THE DEPUTY PRESIDENT: Yes.
PN1112
MR BAKRI: He accepted that they do log in some way the turbine life and effective cooling.
PN1113
THE DEPUTY PRESIDENT: Yes.
PN1114
MR BAKRI: There has been no evidence put before you about that. So there is no material before you as to the extent of the difference or the extent of the effect of the force cool vis- -vis a natural cool. Now, I submit that in those circumstances the Commission is on solid ground to infer that AGL's records indicated a significant greater extent of fatigue being caused by a forced cool, that evidence to that effect would have been adduced by AGL. It is an inference that you should draw.
PN1115
Mr Hardy gave evidence that a 24-hour period of shutdown is a factor that can save more turbine life than was used up by shutting down by a forced cool. And Mr Schumacher accepted that the period during which a turbine was shut down during that period the operating life would not be consumed. Now, to be fair he resisted the proposition that if a turbine was shut down for more than a day, the effect of the shutdown would be effectively neutralised.
PN1116
It is our submission that Mr Hardy's evidence ought to be accepted on the matter. The Commission ought to find that the effect of a forced cool on the overall life span of a turbine is negated by any shutdown period of at least 24 hours.
PN1117
THE DEPUTY PRESIDENT: Yes.
PN1118
MR BAKRI: Mr Schumacher seemed to cavil with the use of the term "negate" or "neutralise." The evidence is that he accepted that having it shut down saves - - -
PN1119
THE DEPUTY PRESIDENT: It is doing things.
PN1120
MR BAKRI: Yes, not doing things and he used the analogy of a car.
PN1121
THE DEPUTY PRESIDENT: It is not fatiguing, but I didn't take it that he accepted that it was restorative to fatigue that had already occurred.
PN1122
MR BAKRI: He certainly did not and that wasn't put to him. What was put to him was that if you have the turbine shutdown for long enough, and we put that at a day, that it means that the amount of turbine life that would have been used up by just running through that period is more than if you shut it down.
PN1123
THE DEPUTY PRESIDENT: Was it his point or someone's else point that said, well, if you have driven your car - --
PN1124
MR BAKRI: It was his point, yes, shut it down.
PN1125
THE DEPUTY PRESIDENT: Yes, and then the car has been driven, the wear and tear has occurred.
PN1126
MR BAKRI: Yes.
PN1127
THE DEPUTY PRESIDENT: If you sit it in your driveway for two weeks it is not going to come back. Your brake pads are going to be as worn, for example, as they were two weeks ago if you haven't driven it.
PN1128
MR BAKRI: Yes, but our point is this, that that is right. Once the brake pads are worn, the brake pads are worn.
PN1129
THE DEPUTY PRESIDENT: I am just trying to understand it.
PN1130
MR BAKRI: But if you drive around and for a week continuously, you are going to abuse your brake pads more than if you put the car in the garage for a few days. So that is the point we are seeking to make. There has to be a point at which by having the turbine shut down the effects of the shutdown process which on the evidence are that going through the shutdown - we will concede going through the shutdown process does cause some degradation.
PN1131
THE DEPUTY PRESIDENT: Yes.
PN1132
MR BAKRI: Now, it is unclear what the level of degradation is.
PN1133
THE DEPUTY PRESIDENT: Yes. Once it is shut down, there won't be further degradation by virtue of it not running.
PN1134
MR BAKRI: Yes.
PN1135
THE DEPUTY PRESIDENT: But there is degradation on the point of the journey to shutting down.
PN1136
MR BAKRI: Yes.
PN1137
THE DEPUTY PRESIDENT: Isn't that - - -
PN1138
MR BAKRI: That is right, that by being shut - - -
PN1139
THE DEPUTY PRESIDENT: But your submission is then, okay, we don't know - or is your submission this that if there was an industrial action and it was continuing to run there would be degradation anyway, we just don't know what the difference is.
PN1140
MR BAKRI: Yes, that is right.
PN1141
THE DEPUTY PRESIDENT: So if it continues to run, there is degradation. If it is idle, there is not degradation. But isn't the point he was trying to make, well, when you shut it down, there is degradation that wouldn't otherwise have occurred.
PN1142
MR BAKRI: Yes, and the point we tried to make is but then by having it shut down, you don't cause other degradation by the normal - - -
PN1143
THE DEPUTY PRESIDENT: No, you don't take it further, but you have caused some in the meantime, so there is a difference.
PN1144
MR BAKRI: Yes, yes.
PN1145
THE DEPUTY PRESIDENT: You are saying there is no way of measuring the difference
PN1146
MR BAKRI: Our submission is that Mr Hardy gave evidence that there is and it is after a day that you are in the position in terms of where turbine life would have been up to.
PN1147
THE DEPUTY PRESIDENT: Yes.
PN1148
MR BAKRI: But Mr Schumacher didn't accept that proposition, I have to make that clear.
PN1149
THE DEPUTY PRESIDENT: Yes, all right.
PN1150
MR BAKRI: We also refer to the history of turbine cooling we say which supports the proposition that there is a low likelihood that the natural cool process is to be used. And finally and significantly - - -
PN1151
THE DEPUTY PRESIDENT: Sorry, so this is paragraph 55.
PN1152
MR BAKRI: Fifty-five, yes, 55. At 56, we make the point that - - -
PN1153
THE DEPUTY PRESIDENT: Well, isn't a forced cool going to be used if they have got to take it offline in time?
PN1154
MR BAKRI: Well, it depends how urgently they wanted to take it offline. If they were prepared to wait for the turbine to naturally cool, that could have been used, but - - -
PN1155
THE DEPUTY PRESIDENT: But isn't it at the end of - when the industrial action starts, the thing has got to be offline, doesn't it?
PN1156
MR BAKRI: In this instance, of course.
PN1157
THE DEPUTY PRESIDENT: Yes.
PN1158
MR BAKRI: Of course it does, yes, and then the question for you is whether - well, we say there is two real controversies. Which process are they going to use? And they say, "We want to reserve the right to use the natural cool", and I say to you there has to be a sufficient likelihood that they are going to, in fact, do that. And my point here is that historically where they have had to decide and a very similar decision each time they had to maintenance. Are we going to force cool or are we going to natural cool? Forced cool causes extra fatigue. Shall we do a natural cool? But then it is going to cost us more money.
PN1159
THE DEPUTY PRESIDENT: So your position if it is a four-day period, what are they going to use?
PN1160
MR BAKRI: One second, Commissioner. Yes, we will concede that under a four-day period they would have to use the forced cool procedure, Deputy President.
PN1161
THE DEPUTY PRESIDENT: Yes.
PN1162
MR BAKRI: The final matter we refer to supporting the proposition that you shouldn't be satisfied that they are going to use a natural cool is the economic impacts and that is fairly self-explanatory and the relevant evidence is set out in paragraph 56.
PN1163
THE DEPUTY PRESIDENT: Yes, thank you.
PN1164
MR BAKRI: Turning to the second issue and that is if the forced cool procedure is to be used, how long is needed. We set out that evidence at paragraphs 58 through to 64.
PN1165
THE DEPUTY PRESIDENT: Yes.
PN1166
MR BAKRI: And we explain the various submissions we make in support of the proposition that, in effect, AGL are exaggerating how long they say is needed and that Mr Hardy's evidence should be preferred. I don't intend to take you through that line by line now unless you want me to. Now, the next point and this is about the speculative nature about the industrial action.
PN1167
THE DEPUTY PRESIDENT: Yes, the form, yes.
PN1168
MR BAKRI: I want to address that. At paragraph 65 and 66, we deal with that issue. Now, in CEPU v Australia Post, VP Lawler considered an argument from Australia Post - and that was an extension application of course - because it did not know what the degree of disruption to the mail service would be, an extended notice period should be ordered or it was justified to be ordered. Now, in that case, VP Lawler rejected that argument and noted that really the adverse effects on the employer would degree on the disruption caused by industrial action including its form, location and timing which quite naturally - because at that early stage you are seeking a threshold order to get the ballot, to seek the authorisation and to provide the notice, all of that was unknown.
PN1169
So in those circumstances, the Vice President found that that was an insufficient basis to justify an extension and he noted, of course, as I now point out, that there are other mechanisms that are available to employees to respond to industrial action once they know what the form of action is. And if it is an extreme form of action, there might be other options. But in performing the task at hand, Deputy President, if you were to speculate about what is the worst case scenario is and that is what a lot of the cross-examination was about, what is the worst case scenario with this action and therefore does that justify the extension.
PN1170
THE DEPUTY PRESIDENT: What was the industrial action going to be in Australia Post?
PN1171
MR BAKRI: What was the industrial action?
PN1172
THE DEPUTY PRESIDENT: What was the industrial action going to be in Australia Post?
PN1173
MR BAKRI: It was - I haven't read that decision for a few days, but it was bans and disruption to the mail service, in effect. But the argument there was that there was an upcoming I think Federal election and it was going to have some serious impact. So it has nothing to do with plant and equipment, but the point is that the Commission found there - and, with respect, we would say it's the correct decision that to speculate about what form the action might take is not what's required when you're deciding whether they're exceptional circumstances and if that is to occur the Commission would be falling into error.
PN1174
If an extreme form of action was notified and AGL had the view that it would disrupt electricity supply to the State or it would blow up a turbine or something, no doubt we'd be in here pretty quickly and that is the time where that could be dealt with but it's not your duty to speculate as to what action might be taken and to take that into account when deciding whether there's exceptional circumstances. And if you do so it would be contrary to the Australia Post decision we contend.
PN1175
At paragraph 68 and 69 we make a submission about what the utility of previous decisions are in this area. I won't repeat that submission. It's fairly straightforward, in essence, we have to say - you need to make up your own mind based on the evidence before you now. Commissioner Bissett made up her own mind based on the evidence before her. She didn't have the benefit of Mr Hardy's evidence. Thank you, deputy President, that's all I propose to say now.
PN1176
THE DEPUTY PRESIDENT: Yes.
PN1177
MR BAKRI: And reserve my rights to reply.
PN1178
THE DEPUTY PRESIDENT: Yes.
PN1179
MR BAKRI: I tried to reply as much as I could where it fit in but I will see what else what I need to reply to.
PN1180
THE DEPUTY PRESIDENT: Yes. No, that's fair enough. Thank you, Mr Bakri.
PN1181
MR BAKRI: Thank you.
PN1182
THE DEPUTY PRESIDENT: Thanks Mr O'Grady.
PN1183
MR O'GRADY: Thank you, deputy President. Deputy President you should have the outline of submissions that we filed along with our witness statements.
PN1184
THE DEPUTY PRESIDENT: Yes.
PN1185
MR O'GRADY: That's dated the 31 May. The final submissions that we filed this morning.
PN1186
THE DEPUTY PRESIDENT: Yes.
PN1187
MR O'GRADY: And accompanying those final submissions were three schedules which set out a number of propositions that we say can be derived from the transcript along with the relevant parts of the transcript that we rely upon in that regard.
PN1188
THE DEPUTY PRESIDENT: Yes, I have those. Yes.
PN1189
MR O'GRADY: As you would have seen from the final submissions that we filed we maintain our reliance from the outline of submissions. So, unlike Mr Bakri we haven't sought to replace or supersede that document and we'd ask you to have regard to all of those documents in reaching a determination.
PN1190
I understand my learned instructor has also provided the Commission with a folder of authorities.
PN1191
THE DEPUTY PRESIDENT: Yes.
PN1192
MR O'GRADY: Can I ask the Commission to have regard to an additional authority.
PN1193
THE DEPUTY PRESIDENT: Yes.
PN1194
MR O'GRADY: Which conveniently deals with the first point that I wanted to make in response to what Mr Bakri put. This is the decision of the Full Bench in Xiu Zhen Huang v Rheem Australia [2005] AIRC, 108. The Full Bench was Vice President Lawler, Deputy President Leary and Commissioner Deagon. The importance of that decision, deputy President, is that in respect of the issues concerning the validity of the ballot application and the genuinely trying to reach agreement, Mr Bakri has put considerable reliance on the proposition that Mr Hardy was not cross-examined in respect of what he said in paragraph 7 of his witness statement.
PN1195
There are a number of points we make about that. The first and perhaps the most fundamental point is that when you have regard to paragraph 7 what Mr Hardy is doing is simply expressing an opinion. He is importantly he is not setting out any evidence as to any material fact.
PN1196
THE DEPUTY PRESIDENT: So this is the second witness statement.
PN1197
MR O'GRADY: The second witness statement filed in this proceeding.
PN1198
THE DEPUTY PRESIDENT: Yes. Seven.
PN1199
MR O'GRADY: Which is the foundation upon which the entire edifice of Mr Bakri's submission on this head is put is - "I refer to paragraphs 14 to 24 of the Clint statement. I reject any suggestion by AGL Loy Yang that any bargaining representative is not free from control or in proper influence of the CFMEU."
PN1200
Now, there's a couple of points I'd make about that deputy President. The first is it's clear from the first sentence that Mr Hardy knew that it was being alleged by AGL Loy Yang that there were problems with the appointment of the six nominated bargaining representatives and when one has regard to what appears in Mr Clinch's statement and what appears in the AGL Loy Yang outline that those problems went to the control and/or improper influence being exercised by the CFMEU over those bargaining representatives.
PN1201
So this is not a case as - where the rule in Browne v Dunn which is dealt with in the Xiu decision that I've handed up arises. The second point is that if you look at the substantive point made by Mr Hardy in this paragraph is he expresses his position in respect of that evidence. So he doesn't point to any inaccuracy in what Mr Clinch says. He doesn't provide any explanation as to how he came to be sending emails to these bargaining representatives or how he came to be involved in the process in the first place. He simply asserts an opinion, namely that he rejects the suggestion or any suggestion that any bargaining representative is not free from the controller and proper influence of the CFMEU.
PN1202
A statement of opinion of that nature is not of this order or will prove anything with the greatest of respect. Section 76 of the Evidence Act makes it very clear "that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed." So the first point we make in respect to Mr Bakri's response to our attacks on the specification of the group to be balloted and the issue of generally trying to reach agreement is it is not correct to suggest that the CFMEU put on unchallenged evidence in respect of this issue because they didn't put on any evidence which could be given any weight in the first place.
PN1203
The second point, deputy President, is that it's not the case that there was any requirement on my client to cross-examine Mr Hardy about these issues in circumstances where he was on notice, not only of the material that we relied upon in respect of the concerns over the appointment of these nominated bargaining representatives because he had the emails and he had Mr Clinch's witness statement and you will see, of course, that he is aware of that from that first sentence in paragraph 7. But he was also aware from the outline what we said about it. And in that outline we made it very clear that Mr Hardy's involvement in the appointment of those six nominated bargaining representatives raised concerns and threw into issue or threw into question, the validity of their appointment. And that was dealt with in a number of places in our outline but, in particular, in paragraph 11 of the outline that we filed.
PN1204
And you will recall at the outset of Mr Hardy's cross-examination I went to some lengths to make sure that Mr Hardy (a) was aware of the material that we had filed, and I did that because of the extensive nature of the material, then I actually went through the various components of that material and how Mr Hardy should be taken to have been aware of it, whether he was a witness who had put in responsive statements or he was there in the courtroom instructing when evidence was given.
PN1205
But I also asked him whether he had responded and had the opportunity to respond to that material where he thought it was appropriate to do so. And the effect of his evidence in that regard was well where he thought it was relevant he did so.
PN1206
And it's in those circumstances that, in my respectful submission, the discussion of the rule of Browne v Dunn in Xiu Zhen Huang is with respect right on point. And if I could ask you to go to paragraph 21 of that decision? That's the one that I handed up.
PN1207
THE DEPUTY PRESIDENT: Yes.
PN1208
MR O'GRADY: Just a moment ago. And with the greatest respect to Mr Bakri, in my submission, the Full Bench could have been referring to him in the first paragraph or the first part of paragraph 21 where they say, "The rule in Browne v Dunn is much misunderstood. Advocates frequently assert that the rule obliges the Commission to accept evidence not challenged in cross-examination or prevents the Commission from making a finding contrary to evidence not challenged in cross-examination."
PN1209
Well, that's exactly what Mr Bakri was saying to you 20 minutes ago. "We hasten to add that the remarks do not apply to counsel for the appellant in this case." And then what the Full Bench do is they refer to the decision in Bourke's case where the Chief Justice and Justice McInerney set out a lengthy analysis of the rule. And you'll see in the third paragraph - well, in the second paragraph in the emphasised passage there's a note that there needs to be caution in its formulation and then they direct themselves to the case of Browne v Dunn itself and that's dealt with in the third paragraph whether they say, "Browne v Dunn was a case in which there was an issue about whether a document was genuine or a sham." "Counsel for the appellant in the House of Lords put an argument to the effect that it should have been concluded at first instance the document was a sham, however a number of persons who had signed the document as witnesses had been called at trial and it had never been suggested to them that a document was anything but genuine."
PN1210
And then they go on to set out a passage from what Lord Chancellor Herschel said and once again referring to the emphasised passage at the foot of the page where his Lordship referred and said it was essential to fair play and fair dealing with the witnesses. And went on to say -
PN1211
"Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakeably given and the point upon which he is impeached and is to be impeached is so manifest that it is not necessary to waste time putting questions to him upon it.
PN1212
All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever - in the course of the case that his story is not accepted."
PN1213
Well, with the greatest of respect you couldn't ask for a clearer case than this one where Mr Hardy has been put on notice both through Mr Clinch's evidence, the exhibiting to his statement of the emails that Mr Hardy was the author of and the outline of submissions in which we're told the CFMEU what we make of all of that and yet rather than engage with that evidence Mr Hardy simply expresses the opinion that is found in paragraph 7 of his second witness statement.
PN1214
And then you'll see there's reference to the other members of the court in Browne v Dunn. And in paragraph 22 the Full Bench went on -
PN1215
"We interpose to observe that the speeches in Browne v Dunn recognise a key issue will be whether the witness had notice of what was to be alleged against them. The archetypal circumstances of unfairness is where adverse matters are later alleged without them having been put to the witness in cross-examination and where the witness had no notice that those allegations would be made."
PN1216
And then there's reference back to what the Chief Justice said and once again I rely upon the highlighted passage in the first paragraph of that quote where the Chief Justice said,
PN1217
"The central purpose of the rules is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide based on the practical requirements of the rule and the given case into the consequence that it may properly flow from its non-observance, including the remedies that are available to deal with the problems so created."
PN1218
And then there are further passages set out which I don't need to take you to deputy President, but then you'll see in paragraph 24 the Full Bench goes to the other leading authority on this point which, of course, is his Honour Justice Goldberg's decision in White Industries v Flower and Hart. Where, once again, speaking about Browne v Dunn, his Honour Justice Goldberg said,
PN1219
It is apparent from the judgment of Lord Herschel that notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made.
PN1220
Well, once again, with respect, that's exactly what's happened here and then he refers to what Justice Hunt said in the Pastoral Holdings case and in the second paragraph of the quote he continues but as Hunt J pointed out, "In many cases, of course, counsel for the party calling the witness in question will be alert to the relevance of the other material in the case to be relied upon for the challenge to the truth of the evidence given by his witness or to credit of that witness and in those circumstances counsel will be able to give his witness the opportunity to deal with the other material in his own evidence-in-chief."
PN1221
Now what would appear to be the case here, with respect, deputy President is that the CFMEU have made the forensic decision not to engage with this issue in Mr - sorry, Mr Hardy's evidence - they've dealt with it in only the limited way set out in paragraph 7 and in those circumstances it is simply not accurate or not correct to suggest that it was incumbent on me to cross-examine Mr Hardy and then to open up a field of re-examination that could be pursued by the CFMEU after I had raised the issue. You know, there is a real unfairness, in my respectful submission, to be suggesting that my client should be put in that situation where Mr Hardy has elected not to deal with the matter in the first place.
PN1222
There are a number of other passages in the discussion that I'd ask you to have regard to, particularly, the proposition that appears just above paragraph 25 on the next page where his Honour, Justice Goldberg explains the limits of the rule and the endorsement of his Honour Justice Goldberg's approach by the Full Court that's set out in the quote to paragraph 25.
PN1223
And you'll see the conclusion of the Full Bench is that a particular consequence of this summary of principle, by the Full Court, is that there may often be little scope for the operation of the rule in Browne v Dunn in relation to matters clearly placed in issue in the statements or affidavits filed and served before a hearing, whether there is any scope for the application of the rule and such circumstances will depend upon the particular circumstances and the dictates of fairness in the particular case.
PN1224
So, in my submission, the primary attack made to the submissions that we make about the application and genuineness falls away because it's based with the greatest of respect on a misunderstanding or a misapplication of the rule in Browne v Dunn and that is clearly, in my respectful submission, the case in respect of the evidence concerning the appointment of the six nominated bargaining representatives.
PN1225
The same point can be made in my respectful submission in respect of Mr Hardy's - once again - assertion of opinion that the CFMEU is trying to reach agreement. Once again, Mr Bakri said, "Well, Mr Hardy wasn't cross-examined about that and therefore that's the end of the matter." In my respectful submission what Mr Hardy says about that is nothing other than his opinion and it is not something that is necessarily admissible for the reason I've already made clear.
PN1226
But, secondly, it's not something we have to cross-examine Mr Hardy about in circumstances where we have clearly raised in both our witness material and in our outline that we do take issue with the genuineness of the CFMEU's conduct. Of course in respect of that argument which I will need to come to in a moment we also say that the JJ Richards approach needs to be seen in the context of the facts and circumstances in that case, namely, whether you could be genuinely trying to reach an agreement with an employer who had not agreed to bargain.
PN1227
The broader issues that arise from the general observation of the Full Bench in Esso are what we rely upon for the construction of the provision that we have set out in the submissions. Could I then go to the final submissions, deputy President?
PN1228
THE DEPUTY PRESIDENT: Yes.
PN1229
MR O'GRADY: And you'll see, in paragraph 3 we make what, in my submission, is an important point or a point to which we would ask you to have regard in assessing our submissions. We are not suggesting that in the normal run of the mill of the case there would necessarily need to be this degree of scrutiny as to either the process by which individual bargaining representatives had been appointed or the positions taken by the parties to bargaining.
PN1230
We accept that there are a number of authorities that refer to the need for this to be a simple and expedient process but, in my respectful submission, the way in which the CFMEU has carried on in this bargaining round, including but not limited to this extraordinary appointment of the six bargaining representatives some nine months into bargaining to represent the vast bulk of CFMEU members on site, and the involvement of the lead negotiator of the CFMEU in that process. And the fact that some of those bargaining representatives are themselves CFMEU delegates, takes this case way out of the norm.
PN1231
And those are matters, as I've already said, deputy President that we put up front in our outline in order to invite an explanation for this carrying on from Mr Hardy and from the CFMEU more generally and those are matters that were not responded to by the CFMEU or Mr Hardy other than through one - the sentence that I've already taken you to in paragraph 7 of the statement. And one has to ask, with the greatest of respect, "What is going on?"
PN1232
One assumes that the CFMEU believes that there is some tactical advantage in manipulating that the group of employees to be balloted in this perverse way but they're not going to tell us what it is they're seeking to do and Mr Bakri put the proposition to you earlier that, "Well, it is open for a bargaining representative to only seek to ballot a particular part of a business or a particular division of employees or a particular workplace."
PN1233
But they may or may not be the case, deputy President, but that's not the issue before you in this case. Here, the issue is, is it open for the CFMEU to seek to artificially define the category of employees who are to be balloted through the mechanism or artifice of arranging for those employees to be represented by individuals thereby taking them out of the group who are to be balloted. Because that's what's happened here.
PN1234
Mr Hardy has, through facilitating the appointment of the six nominated bargaining representatives, providing the six with forms, providing them with - communicating to them about how they should participate in bargaining and that's all set out in the emails that have been provided - he has set up this mechanism that has the effect of withdrawing a large group of CFMEU members from the pool of people who are to be balloted.
PN1235
Now, if it is open for the CFMEU to behave in that way then, in my respectful submission, it has to do so in an open and transparent way not through this sort of artifice. And once again we haven't been given by the CFMEU, by Mr Hardy or by any of the six nominated bargaining representatives an explanation as to what is going on.
PN1236
So it is deputy President, in those circumstances, that we say that the scrutiny that we ask the Commission to engage in needs to be applied to both the group of people to be balloted and the genuineness of the CFMEU's conduct in bargaining.
PN1237
You will see in paragraph five of the submissions we set out the background and make reference to the earlier submissions. We obviously rely upon the evidence of our witnesses in both this proceeding, the earlier proceeding and the good faith bargaining proceeding. It was in an effort to bring that evidence together in a convenient form, at least as far as the transcript is concerned that we have provided the schedules that we have filed with this submission. And we set out what those schedules do in paragraph 7.
PN1238
The first submission we put is that there is an obligation to properly specify the group of employees to be balloted and that the mechanism - the Pabo application in this case, when read in the light of the circumstances surrounding the appointment of the six nominated bargaining representatives means that that pre-requisite just has not been satisfied. And we've set out in the outline why we say that is so. You'll see that I have expanded upon that or we've expanded upon that in paragraphs 8 and following of these submissions, including reference to the various dictionary definitions I'll specify.
PN1239
And you'll note that in the CFMEU's submissions they've sought to replace the term "specify" with terms like "describe" and "articulate". That, in my respectful submission, is not the case. There needs to be a degree of certainty as to who's in and who's out and with respect at the moment we just don't know.
PN1240
We don't know who's in and who's out because we don't know to what extent there has been any valid nomination of the six given the involvement of Mr Hardy in that process that the fact that a number of the bargaining representatives are themselves CFMEU delegates. The fact that this has occurred, you know, en masse some nine months after bargaining has commenced and no proper explanation has been provided by the CFMEU.
PN1241
THE DEPUTY PRESIDENT: Well, how does it go to genuineness?
PN1242
MR O'GRADY: Well, I'll come to that in a moment but I will deal with it now. We say that to engage in behaviour of that type which we say is analogous to some form of sharp dealing falls outside what is caught by or connoted by genuineness.
PN1243
Now, in that and I'll deal with this further but, in my respectful submission, when one has regard to what the Full Bench said in Esso and it has regard to the legislative history of these provisions, genuinely trying to reach agreement is a broader notion than really wanting to reach an agreement.
PN1244
THE DEPUTY PRESIDENT: Just in terms of that the action of - we don't know why they've done it but what is left is, is there not 90 or so can be said to be represented by the CFMEU?
PN1245
MR O'GRADY: Yes.
PN1246
THE DEPUTY PRESIDENT: And they - if the application is granted they get to vote and they get to take industrial action. So the pool has been reduced by the change in the composition of bargaining representatives.
PN1247
MR O'GRADY: Well, it may have been reduced because at the moment we say you don't know, with the greatest of respect, to what extent it's been reduced.
PN1248
THE DEPUTY PRESIDENT: Yes.
PN1249
MR O'GRADY: We say that there is on the evidence a real question about whether any of these nominations are valid and so - and that's our complaint about the lack of specificity.
PN1250
THE DEPUTY PRESIDENT: Yes.
PN1251
MR O'GRADY: Because we say if you don't know whether these nominations are valid you don't know whether you're dealing with 90 or you're dealing with 500 or 400 and something. So that's the first point with respect. The second point is that if the CFMEU are engaged in this game playing, if for whatever its reasons the CFMEU is behind the scenes manipulating the appointment of these purportedly individual bargaining representatives because it perceives that there is some tactical advantage associated with that, that type of conduct cannot be described as genuine in the broader sense. It's not acting in good faith. It is engaging in the sort of sharp tactics that we say parliament did not intend you could engage in and enjoy the privilege of seeking to take protected industrial action. So we say the word "genuineness" means you have to be upfront and on any view of it Mr Hardy's involvement in the appointment of these six nominated bargaining representatives is not upfront.
PN1252
THE DEPUTY PRESIDENT: Are you saying they're distorting the - - -
PN1253
MR O'GRADY: Yes. That's the effect of it. And in so doing it undermines the scheme of bargaining that's set out in the Act. The Act, in my respectful submission, through the incorporation of the regulation in 2.06 that bargaining representatives not be under the control or improper influence of another bargaining representative requires bargaining representatives to behave in a transparent way. And rather than behaving in a transparent way the CFMEU, through Mr Hardy, have been engaged in this subterfuge and that, in my submission, is disentitling conduct.
PN1254
THE DEPUTY PRESIDENT: So it's the mere involvement with the change in composition of representation on the site of the CFMEU.
PN1255
MR O'GRADY: Well, it's not confined to involvement but what we have, on the evidence, is Mr Hardy sending to some of - through the subpoenas we found this out - not through anything he's told us. But through the subpoenas to produce documents we know that Mr Hardy was sending out the proformas to a number of the people who were appointed as nominated bargaining representatives.
PN1256
Clearly, given the fact that these are people who had, for the last nine months, been represented by the CFMEU coupled with the fact that some 58 of them had previously purported to nominate Mr Hardy as an individual bargaining representative and Mr Walsh as an individual bargaining representative, you know, when they apparently were quite content to be represented by the CFMEU, coupled with the fact that Mr Hardy appears to be coordinating how these people will engage in bargaining through the single bargaining unit, that raises a question as to, "Well, what is going on with respect to these appointments?"
PN1257
And that's an issue that Mr Hardy and the CFMEU have elected not to respond to. So we would say that in those circumstances there is a clear lack of transparency. So it's not a case like would apparently appear to be the case in the Godfrey Hirst decision where, as I understand it, at a time when the Act did not allow individual bargaining representatives to participate in the ballot there was some involvement of the TCFUA in the appointment of those bargaining representatives and some advice given in that regard which was subsequently explained by the official from the TCFUA in the PABO application. Here you are, in my respectful submission, left in the position where there's clearly something fishy going on but the CFMEU have not done anything to inform you as to what they're trying to do.
PN1258
And if you accept our submission that when the legislative change was made from trying to reach agreement to genuinely trying to reach agreement and we trace all of that in the final submissions so as to bring into consideration a broader range of matters, including we would say the transparency through which the bargaining representative has engaged in bargaining then that factor, in my submission, is in itself a basis for rejecting the application.
PN1259
Now, I've got a little bit ahead of myself, deputy President, but if I can simply ask you to have regard to what we have set out in the written submissions regarding the lack of specificity in the ballot question Mr Bakri referred to the presumption of regularity and he suggested that the presumption does not apply here. In my submission, with respect, he's not correct in that regard.
PN1260
There is a clear distinction between an appointment that affects the public at large and an appointment reflecting or concerning an individual relationship between persons and the reference in paragraph 14 of the submissions to a person is a solicitor. That's a reference to an example given by Cross of the fact that somebody is on the roll, if you like, of Australian Legal Practitioners. So that's a public status and there is a presumption that that status has been regularly appointed.
PN1261
Cross goes on to explain that the presumption does not arise when the question is, is Mr Jones Mr Smith's solicitor, ie is there a personal relationship between Mr Jones and Mr Smith going to Mr Jones's status as a solicitor and, in my submission, that's the analogous situation to the one that you're confronting here and that's made good in my submission from the passages in Cross that we have referred to.
PN1262
We also make the point that even if you were of the view that the presumption did have application here it's clearly rebutted by the material that we've put into evidence or put into evidence and we've set out the evidence that we rely upon in paragraph 20 and what we say the effect of that evidence is in paragraph 21 through to 24. In paragraphs 25 and 26 we deal with the number of the sort of alternative positions that have been put by the CFMEU in its submissions.
PN1263
The difficulty, of course, is that those solutions don't solve the problem because the AEC is, in my submission, in a worse position than yourself to determine whether or not any of these 330-odd employees have been validly appointed as bargaining representatives.
PN1264
Then there is a submission that we put regarding the alternative approach being put forward by the CFMEU. Can I make the point at the outset that, in my respectful submission, you should not allow the CFMEU to amend its application at this juncture.
PN1265
If there is a problem associated with the CFMEU's application because Mr Hardy and the CFMEU have engaged in this conduct of surreptitiously arranging for six individuals to be appointed as bargaining representatives then that infects the entire application and as a matter of discretion if nothing else you would not allow that to be remedied through the mechanism that the CFMEU are putting forward at this juncture.
PN1266
Further, in my submission, the proposed remedy doesn't solve the question. There's no clarity as to when it is. We're talking about people having purported to nominate a bargaining representative other than the CFMEU and we know from the evidence that there's at least two individuals who purported to appoint Mr Hardy and Mr Walsh back in August of last year who are not included in the 330. So there's still uncertainty associated with the group that we would be dealing with.
PN1267
But more fundamentally, in my submission, it is very unsatisfactory to have the group defined in such broad terms. It would require the AEC to, in effect, go and do an analysis of individuals and find out whether they had at any time, in bargaining, nominated or purported to nominate - whatever that might mean. That might for example extend to somebody in the lunch room saying, "Well, Fred will you represent me in bargaining?" We just don't know. And, in my submission, it's not a cure for the problems that have been identified with the application.
PN1268
THE DEPUTY PRESIDENT: Isn't the AEC - wouldn't they just read the order and say, "Well, you know people from the CFMEU - who are you representing here?"
PN1269
MR O'GRADY: Well, the CFMEU doesn't know. See, the CFMEU does not know who it's representing because the CFMEU does not know whether or not the nomination of the - by the 330 is valid or not. The CFMEU might proceed on the basis that those 330 did validly nominate the six individual bargaining representatives. But given Mr Hardy's involvement in the process that conclusion may well be incorrect and if you make an order - - -
PN1270
THE DEPUTY PRESIDENT: They don't appear troubled by that.
PN1271
MR O'GRADY: Well, they may not appear troubled by it but in my respectful submission part of the - well, the scheme of the Act puts in place - is that there needs to be certainty and specificity flowing from both the group set out in the application and the group that are described in your order.
PN1272
And at the moment because of the conduct, this is a problem if you like of their own making, and so I don't have with the greatest respect any real sympathy for them but because of their conduct nobody knows and when they've been invited to explain what they're doing and why they're doing it they've decided not to. And in those circumstances it would not, in my respectful submission, be inappropriate for the application to be dismissed and for them to be required to put in place steps that remove this issue.
PN1273
And that's the submission that we put in our outline when we put in our material that given that the mess that's been created by the CFMEU in this regard they really should have to be required to clean it up before they're given the privilege of going to their members and asking their members whether or not they wish to participate in protected action.
PN1274
We put an alternative submission in respect of this amendment and that appears at paragraph 27 and following. That submission is based on the phrase taken to include only employees as appears in section 437. And you'll see in paragraph 30 what we submit is that that phrase is not just words of limitation but, in effect, it has two components. There's a deeming effect flowing from the words, "Taken to include" and the only if you like delineates the extent of that deeming.
PN1275
And we say that in those circumstances the effect of the provision is that the words taken to include only deem all employees to be part of the group of employees to be balloted if they satisfy the requirements of both 4375(a) and either 4375(b)(i) or 4375(b)(ii).
PN1276
We do note, deputy President, that the construction we put on that phrase is not consistent with the way in which that phrase was read when it was used in section 89A of the Workplace Relations Act.
PN1277
THE DEPUTY PRESIDENT: Yes.
PN1278
MR O'GRADY: You will recall that that, of course, dealt with permitted matters. There that phrase was used in the opening part of section 89A and it was viewed by the High Court in Pacific Coal and elsewhere as being a restriction on the matters that could be arbitrated and the like by the Commission.
PN1279
In my submission the structure of section 4375 is different from the structure of section 89A and that is a basis for adopting a different meaning of the phrase. More significantly, we rely upon the explanatory memoranda that accompanies section 4375 to justify the construction that we put forward. And you'll see we've spelt that out in section - in paragraph 32 - and it would appear clear that these were intended or these amendments were intended to act as a deeming provision in respect of individual bargaining representatives and that's why, notwithstanding, Pacific Coal and section 89A we nonetheless put the submission. But we do make the point that we will be asking you to depart from the way in which the phrase had been read under those other provisions.
PN1280
We note at paragraph 36 that the construction we put forward does provide for - or does give effect to the object of the division - in that it does render the process of balloting more democratic and then that which would flow from allowing the CFMEU to define the group in the very artificial way that is set out in their alternative description of the group as it appears in paragraph 13 of the CFMEU submissions.
PN1281
I make the submission at paragraphs 39 to 42 that, in my submission, the matter of discretion in the amendment shouldn't be allowed and I have already explained why I say that's the case and it's really for those reasons that we say that the application should not be granted because of defects associated with the way in which the group is specified and that is our initial response to the application. The next submission, deputy President, concerns the issue of generally trying - - -
PN1282
THE DEPUTY PRESIDENT: But the issue of disenfranchising - what's the problem there?
PN1283
MR O'GRADY: Well, at the moment there are some 330 members of the CFMEU who, on one view of the evidence are represented by the CFMEU because they have not validly appointed one of the six nominated bargaining representatives. If you were to grant the application in the terms sought by the CFMEU either in its original application order and its amended proposal those individuals who - whilst they under the scheme of the Act should be entitled to be balloted and express their view about the industrial action will be deprived of that opportunity. That's the basis upon which that's put.
PN1284
And once again for the purposes of this submission I'm happy to accept that Mr Bakri might be right when he says that it's open for the CFMEU to clearly and transparently describe part of the workforce where it wants to have the ballot conducted but it hasn't done that here. And because we don't know what the effect of the conduct that's been engaged in by the CFMEU is in respect of these six nominated bargaining representatives there is, in my submission, a fatal flaw with the application.
PN1285
The next submission concerns the issue of generally trying to reach agreement and clearly there is an overlap between the material that we rely upon in this issue and the concerns expressed regarding the nomination of the six bargaining representatives because whilst we do rely upon the CFMEU's conduct in bargaining more generally as going to its genuineness we say that at this point in time it is clear that it is not acting genuinely given its involvement in respect of the appointment of the six. And so whatever might be said about the "has-been" requirement- - -
PN1286
THE DEPUTY PRESIDENT: Yes.
PN1287
MR O'GRADY: - - -when you come to consider the "is" requirement the fact that the current position of the CFMEU is infected by its involvement with the appointment of the six means that it cannot be said to be genuinely trying to reach agreement.
PN1288
In paragraphs 46 we deal with the JJ Richards decision. You will have seen from the outline that we filed earlier we say that JJ Richards was concerned with a specific issue. It doesn't override the approach of the Full Bench in Tullamarine and of course to the extent that there is an inconsistency it's been overtaken by the observations by the Full Bench in Esso.
PN1289
We do note that the tenor of the submissions put forward by the CFMEU in their reliance on JJ Richards runs directly counter to the approach that the Full Bench in Esso advises is the one to be taken. What they've done, in effect, is taken a case that turns on its own particular facts and turned it into a decision rule and says that that's all you've got to look at.
PN1290
Now that's what the Full Bench says you don't do and that's set out in the passages we've set out in paragraph 50 of the submissions. It's very clear, in my submission, from what the Full Bench says in Esso both in the passages set out in the final submissions and in the passages set out in the outline that the Full Bench is urging the Commission to look at the particular factual circumstances of the case before it. And as I have already indicated, deputy President, we say here you have this extraordinary appointment of these six bargaining representatives which is a matter going to genuineness.
PN1291
If I can then go to paragraph 53 where we refer the Full Bench to the words in the section and we say that an ordinary natural meaning supports our construction. And at paragraph 54 we go to the history. And you will see that when the analogue provisions were first put into the Industrial Relations Act 1988 there was an obligation that the person engaging in industrial action tried to reach agreement.
PN1292
There was no requirement of genuineness. And one might ask, deputy President, that if genuineness is simply to mean, in effect, you really tried why do you need it at all? You're either trying to reach an agreement or you're not. You're either fair dinkum in the sense of you really want an agreement or you don't.
PN1293
In my submission the word "genuineness" should be seen as importing a broader suite of requirements. And you'll see that the word "genuine" or the requirement of "genuineness" was introduced by the Workplace Relations Act and that's dealt with in paragraphs 56 and 57 and we have set out, if you like through a tracking mechanism the way in which the relevant provision was changed. And you'll note in paragraph 58 parliament explained what this amendment was designed to achieve in that the relevant part of the EM says this section makes genuine attempts to reach agreement a prerequisite for industrial action or a lockout to be protected.
PN1294
So, firstly, there is the use of the word "attempts" which in my submission is a broader notion than simply trying. The focus is on what you're doing - your conduct more generally - and that's reinforced by the last sentence in the paragraph where there's reference to where other reasonable attempts to reach agreement have not succeeded. So the focus, it would appear, is one has regard to whether there have been genuine or reasonable attempts to reach agreement which as we seek to explain in paragraph 59 directs the Commission's attention to the general conduct of the person applying for a protected action ballot order.
PN1295
And whilst there have been some changes that change, in effect, has been carried through to the current provision in our submission and in those circumstances, in my submission, you can - the proper construction of the current provision is informed by the matters that I have taken you to and we have set out the authorities in respect of that in paragraphs 60 through to 63. We make the submission in paragraph 64 that there is a need for the word "genuinely" to have work to do and, in my submission, that needs to take into account all of the circumstances including what we say are the extraordinary circumstances of 330 individuals en masse appointing six individual bargaining representatives using forms substantively the same as we use some five months earlier to appoint to a lead negotiator for the CFMEU as an individual bargaining representative.
PN1296
And in paragraph 65 to 67 we refer the Commission to the evidence we rely upon in this regard. We note that some insight into what's going on appears from the email that Mr Hardy sent out to the CFMEU membership, including a number or at least some of the individual bargaining representatives and we know that not because the CFMEU have told us or volunteered this information but we found Mr Hardy's email through the subpoena to produce documents of one of these individual bargaining representatives. And in that Mr Hardy speaks in terms of boxing smart as part of the negotiations.
PN1297
Now, once again, it may be that Mr Hardy has an explanation for these things. It may be that the six nominated bargaining representatives have an explanation for these things. But they've declined to inform the Commission as to what explanation there is. And we make the point that the language of "boxing smart" really is analogous with there being game playing going on by the CFMEU in respect of this appointment and that, in my submission, is antithetical to the notion of genuinely trying to reach agreement.
PN1298
We then go on, in paragraph 70, and the subparagraphs thereto to in effect detail the history which we put in there primarily as part of the context to show that this is not something that needs to be viewed in isolation. There have been games played by the CFMEU in respect of these negotiations really from the outset from when they refused to attend bargaining meetings in mid 2015 to when Mr Hardy and Mr Walsh were appointed as individual bargaining representatives in their own right in what would appear to be an attempt to frustrate bargaining at that point in time to the way in which they have responded to the various overtures put on by the company in respect of - - -
PN1299
THE DEPUTY PRESIDENT: But the earlier period - the first period until 16 October can that really fall within the behaviour that's relevant?
PN1300
MR O'GRADY: We say primarily by way of context. And also in this regard and perhaps most importantly in this regard we do submit that in assessing what's happened with respect to the six nominated bargaining representatives you can have regard to the appointment of Mr Hardy and Mr Walsh as individual bargaining representatives in August 2015 by some 60 employees, 58 of whom have now appointed the six individual bargaining representatives, in circumstances where Mr Hardy and Mr Walsh were on holidays in the Northern Territory at that time.
PN1301
So, in asking yourself what's going on, the fact that this ploy was engaged in, in August 2015, i.e. appoint Mr Hardy and Mr Walsh as individual bargaining representatives because they're not here and that can slow things down, using the same form. And then some six months later Mr Hardy forwards to individuals a similar form and is apparently involved in the nomination of bargaining representatives by 330 employees is a matter you can take into account.
PN1302
We note, Deputy President, in the subsequent paragraphs what's occurred, in respect of bargaining, from the time that the CFMEU did agree to participate in bargaining, from 16 October. I've set out that evidence and I won't take up time going through it, unless you wish me to, because it is there primarily by way of context.
PN1303
THE DEPUTY PRESIDENT: The behaviour since 16 October addressed the claims involving permitted or non-permitted matters.
PN1304
MR O'GRADY: Yes.
PN1305
THE DEPUTY PRESIDENT: Where do you sit with that now?
PN1306
MR O'GRADY: Well, where we sit with that is where I think Mr Clinch left that, when he was in the witness box, which is he is not satisfied that there are not still non-pertaining matters being sought by the CFMEU. The correspondence, in respect of that, would appear to be the letter from the CFMEU asking my client to inform them if there were any other outstanding issues and an email from my client, in response, saying, "We want to consider the position." That was sent shortly before this application was made by the CFMEU.
PN1307
So we accept that there have been a number of matters that have been abandoned and, relevantly, that's exhibit GH136 is the email from my client saying:
PN1308
We're considering your correspondence and will respond in due course.
PN1309
We accept that in respect of that issue there were a number of matters that were maintained by the CFMEU for many months, notwithstanding the fact that my client wrote to the CFMEU and said these matters don't pertain. We accept that very recently a number of those matters have dropped off but we say that there may be other matters that we need to engage with on that basis. We - sorry.
PN1310
THE DEPUTY PRESIDENT: So the whole question about "has been", and I don't think which outweighs the other, which is more important than the other, "is" or "has been". So they're the non-permitted claims and then we had the other matter that you raised, the claim to have the agreement cover related entities, which has also fallen away.
PN1311
MR O'GRADY: Yes.
PN1312
THE DEPUTY PRESIDENT: If you have a long period of bargaining, as we do here, or a long period of negotiations, how long does something stay on your records, so to speak, for the purposes of generally trying to reach - it's really a question for both parties because the section sort of invites it, saying, "You've got "has been", when do things drop off?"
PN1313
MR O'GRADY: In my submission, for the first submission I put is that there are obviously cumulative requirements. So it's not good enough that you get up on one, you've got to get up on both.
PN1314
The second submission I'd put is that from Esso it would appear that the approach to be adopted is to have regard to the entirety of the circumstances of the case. Now, that's not a particularly helpful suggestion perhaps but, in my submission, that's what the Full Bench was urging.
PN1315
THE DEPUTY PRESIDENT: So in Esso where it was concerned with predominantly permitted and non-permitted matters, the fact that that claim was subsequently dropped or amended or varied meant that - - -
PN1316
MR O'GRADY: It did, but in circumstances where the matter hadn't been raised by the company until late in the piece. So that's why I do suggest that you have to have - - -
PN1317
THE DEPUTY PRESIDENT: Context.
PN1318
MR O'GRADY: - - - the totality. You might recall it wasn't raised, it was sort of thought of late in the piece, with the greatest respect to those or argued the matter. It was then dropped off by the union advocate, in effect, in the running and in those circumstances, as I read the Full Bench decision, it wasn't seen as precluding a finding that, at that point in time, there was, genuinely, trying to reach agreement.
PN1319
THE DEPUTY PRESIDENT: That was the pillar upon which the respondent in that case was running its opposition to the application.
PN1320
MR O'GRADY: Yes. And there was another issue in Esso, which I'll come to in a moment. But the reason why we've gone to such length in the material we've filed with the Commission, and also in the submissions, to go to these matters that are a matter of history is to provide you with the context that we say there the "has been" and "is" have to be assessed by reference to.
PN1321
So we would accept that if there was just one instance of what might be said to be a sharp conduct many months ago, but from that point in time the person seeking the PABO had acted with transparency, in an open and upfront way, that requirement may well be satisfied. But what we say is that if you go from the very beginning, even before the CFMEU agreed to talk to us, there have been what can only be described as tactical decisions made by it as part of bargaining that we say are not consistent with genuineness as we say that obligation exists.
PN1322
The other point I'd make, in respect of Esso, is there was an argument run in the appeal of Esso that there was a lack of genuineness associated with the behaviour of the union in that case, in bargaining. That was an argument that was not run at first instance and it was rejected by the Full Bench, primarily on that basis, but the Full Bench also went on to note that the fact that there has been a failure to comply with a particular good faith bargaining obligation does not necessarily mean that you're not genuinely trying to reach an agreement.
PN1323
Now, we don't disagree with that. It was a comment that was made after the Full Bench had rejected the ground of appeal in any event because it was inappropriate for it to be raised for the first time on appeal. That, as I understand it, is the observation that my learned friend relies upon. We don't rely upon a particular failure by the CFEMU to comply with a particular good faith bargaining obligation, we point to the conduct as a whole, which, in my submission, is consistent with the approach that has been urged by the Full Bench in Esso.
PN1324
Can I then - that takes me to paragraph 107 of the written submissions. I apologise for the length of the submissions, Deputy President.
PN1325
THE DEPUTY PRESIDENT: Okay, have you come to it or might you also - so the bargaining summit, or the facilitated bargaining summit?
PN1326
MR O'GRADY: Yes.
PN1327
THE DEPUTY PRESIDENT: You rely on that?
PN1328
MR O'GRADY: We rely on that, once again, primarily by way of context. We don't say, Deputy President, that the fact there was a refusal to attend or a refusal to attend a bargaining summit would necessarily mean that somebody is not genuinely trying to reach an agreement. But where, as here, you've had ongoing bargaining, there's been an impasse reached, you have the company offering to engage former members of this tribunal, or its predecessors, to help get over the impasse, and you have this unthinking refusal, on the part of the CFMEU, to engage in that process - you'll see in the exhibits, the first response that was provided by the CFMEU really had a number of limbs, (a) we don't want to have it in Melbourne, we want to have in the valley. (b) we don't trust the independence of former Commissioner Blair and, (c) bargaining is not rocket science.
PN1329
Now, in those circumstances my client said, "Well, we will provide for facilitated bargaining in the valley. We will replace former Commissioner Blair with former Senior Deputy President Lacy and we think we would be assisted by having a facilitator there." Once again you have this refusal to engage. Now, on its own, Deputy President, it probably would not establish that there was not genuinely trying to reach an agreement but when viewed in what had happened beforehand, in my submission, it's a matter you can take into account. All of it is the prism through which you have to look, in my respectful submission, you have to view the conduct of the CFMEU in being involved with the appointment of the six nominated bargaining representatives.
PN1330
THE DEPUTY PRESIDENT: Your primary position with that context, you're emphasising the appointment of the six bargaining reps?
PN1331
MR O'GRADY: Yes. Well, that's the "is". That's the thing I can say is existing at this point. That is the "is". The other things are things that have happened in the past and obviously the two are related, in that one reinforces the other, in my respectful submission.
PN1332
THE DEPUTY PRESIDENT: Okay.
PN1333
MR O'GRADY: I'm reminded that, of course, the six is also part of the past as well, because the six has been a factor in bargaining since March. So that is part of the "has been" but also is part of the present. We do set this out in a reasonably succinct way in one of the paragraphs in the written submission.
PN1334
Before perhaps moving on to the extension issue can I go, briefly, to the Godfrey Hirst decision?
PN1335
THE DEPUTY PRESIDENT: Yes.
PN1336
MR O'GRADY: You'll see that we deal with this at paragraphs 104 through to 106 of the final submission. If you have regard to Godfrey Hirst, which is in the folder of authorities that we've handed up, behind tab 35. So this matter was before Gooley DP, there was an adjournment application and then, at paragraph 32 and following, the Deputy President deals with the evidence from the TCFUA and its noted, at paragraphs 33 and 34, she gave evidence as to what had taken place. Now, that's in contra distinction to what's happened here, because no such evidence has been provided to you.
PN1337
Mr Bakri says she was cross-examined about it, well, that may be the case, but the bottom line is there was evidence before the Commission as to what had taken place and that was clearly something that the Deputy President had regard to. For the reasons that I've already put, on the proper application of the rule in Browne v Dunn, in my submission, if the CFMEU wanted to put material of this type before the Commission it should have done so.
PN1338
So the Deputy President had, before her, the relevant circumstances and then she dealt with the submissions of Godfrey Hirst, at paragraph 45. Sorry, before going to that, it would also appear that unlike this case, we're not talking about hundreds of employees who had, for many months, been represented by the TCFUA on mass electing to be represented by six individuals. Rather, it seems to be a case where we're dealing with individuals who have sought to represent themselves. This is a case that was decided prior to the amendments made to section 437(5) that enabled individuals representing themselves to vote in the ballot. So there's those distinguishing factors.
PN1339
At paragraphs 44 and following, the matters being raised by Godfrey Hirst are set out and when one has regard to those matters it would appear to be, on any view of it, pretty innocuous what was being alleged by Godfrey Hirst, namely, that there had been some involvement by the TCFUA in which the TCFUA had provided advice and there had been some meetings. That was responded to, by the Deputy President, in the terms set out in paragraph 45.
PN1340
Now, it's a long way away from this case, with respect, where you do appear to have some tactically engaged in and you have no explanation from the CFMEU or from the six or from the people who appointed the six, as to what was being attempted to be achieved.
PN1341
Can I then turn to the issue regarding the extension, and we deal with that at paragraph 105 and following, but can I take you, first, to what we say, at paragraph 131, because it appears that the CFMEU is proceeding on the basis that it's incumbent upon my client to establish that there are exceptional circumstances that warrant a seven working day notice period. In my submission that involves a misreading of the section. The CFMEU have accepted that more than three working days are appropriate. They have conceded that there are exceptional circumstances. The only issue before the Commission, in my submission, is what is the appropriate period of notice, in the light of that concession and that's the point we seek to make in paragraph 131 through to 133.
PN1342
Can I then go back to paragraph 108 where perhaps we make the same point in paragraph 108 and 109 and at 112 we set out the evidence that we rely upon and you will see, in the schedules where we refer to those matters. Now, in my submission, this is a question that, in the circumstances of this case, does need to be assessed by reference to worst case scenarios. I say that for this reason, Deputy President, the uncontested evidence is that these machines cannot be left in an unsafe state. Mr Hardy accepted that when he was in the box. The evidence is that unless they are less than 100 degrees Celsius, internally and externally, then they're not in a safe state. That's what the manual says is involved in the shut down.
PN1343
In respect of "safe state" we say that it's not a question of whether the machine is going to, in effect, blow up but whether or not damage might accrue. Because my client should not, with the greatest of respect, be put to the expense of repairing very, very expensive pieces of machinery, in excess of $20 million was what Mr Hardy said they were worth, because it cannot put them into a safe, inert state prior to the unit controllers and the assistant unit controllers abandoning the plant. When the notice period that you fix, as a result of this application, reaches its deadline, the evidence is that the plant will be abandoned by the unit controllers and the assistant unit controllers.
PN1344
So, in my submission, that notice period needs to take into account the contingency that things might go wrong as a result of the shutdown process, which will inevitably extend that process or the time taken to complete it, and also that for a number of reasons, including concerns over the damage to the plant associated with the shutdown process, a natural cool is preferable to a forced cool.
PN1345
You will recall, Deputy President, there was some time when he was in the witness box that I spent with Mr Hardy regarding the September 2015 shutdown, that was a shutdown that was commenced as a forced cool. That shutdown took 105 hours to complete. The reason why it took 105 hours to complete was that notwithstanding the intention to complete it as a forced cool, valves did not operate the way they should and errors of judgement were made by those involved in the process, including speeding up what was taking place, that led to other flow-on decisions. You'll recall GH137, which is the email of Mr van der Velden, where he describes what went wrong. You'll also recall Mr Hardy's evidence that sometimes valves don't operate the way they should, sometimes pipes do leak and sometimes people make errors in judgement.
PN1346
Now, that's just got to happen once and my client would be confronted with the nightmare scenario of the unit controllers and the assistant unit controllers walking off the job while this piece of plant is operating, at high revolutions and at extreme temperatures, with the knowledge that unless it is brought under control disintegration damage, I think, was the words used by Mr Hardy in describing what can happen, will occur to a piece of plant that's worth tens of millions of dollars.
PN1347
It's not clear on the evidence, Deputy President, that even if you give us seven working days we can invariably bring this plant to a safe state, but that's the maximum that the Act allows in those circumstances, in my respectful submissions. In the circumstances of this case, where you're dealing with machinery of this type, it is very clear that - there is a very clear basis for extending the notice period to the seven day.
PN1348
I've set out the evidence going to that and you'll see, from what we've said in the submissions, that we rely on, if you like, a multifaceted approach to this, in that we say, firstly, it's not a case of whether it is possible, depending on the circumstances, to put the plant into a safe state within four working days because, on the evidence, that does not invariably happen. The question is, whether you can guarantee that that will occur, and the exhibit MJ3 and what occurred on 15 September, shows you can't guarantee that.
PN1349
We also submit that the reasons why you can't guarantee that involve a consideration of, (a) the fact that there are things that can go wrong with the plant, and Mr Hardy conceded that. Indeed, he was quite free in his criticism of the state of some of the plant at my client, which, in my submission is a reason why the Commission needs to be especially cautious in providing a confined timeframe for the plant being put in this sort of state. I forget the transcript references, but he made some flippant comment about valves always failing or they failed too often or something along those lines.
PN1350
The second point we rely upon, of course, is the human error factor. The third point we rely upon is that, from the evidence of Mr James and Mr Schumacher, it is clear that every time these pieces of plant are cooled down you cause damage. If you cool them down, through forced cool, you cause more damage than you do if you cool them down through natural cool and that there is a multiplier effect associated with repeated cyclings of cool down.
PN1351
Finally, Deputy President, we rely upon the fact that, as Mr Hardy acknowledged in the witness box, the ballot questions are designed to give the unions great flexibility, in respect of the type of action it can take, so my client has to be able to safely put the plant into an inert state, whether we're talking about one stoppage for one hour on one unit at one extreme, a stoppage of all four units for six months as another extreme, a stoppage of all units on a weekly basis at a third extreme and, of course, there are multiple varieties and permutations that have to be dealt with.
PN1352
The questioning of Mr Hardy, regarding valves, I'm reminded, is at paragraphs 366 through to 369. At various points - I said to Mr Hardy, at 366:
PN1353
This is an example of valves not working the way they're supposed to, isn't it, Mr Hardy?‑‑‑Yes, which is - that's the greatest safety concern. They are a primary safety device on the turbines and the fact that they're not operating correctly at Loy Yang is of paramount concern.
PN1354
Then at 369 he said:
PN1355
Well, do you accept that when you're dealing with equipment of this nature, given the extremes at which they operate temperature wise and pressure wise, there's always a potential for something to go wrong?
PN1356
He said:
PN1357
Things always go wrong.
PN1358
But then he said:
PN1359
Yes, well not always but can go wrong.
PN1360
Now, I think there was also a passage where he said that he made the comment I referred to earlier regarding - - -
PN1361
THE DEPUTY PRESIDENT: Where's that?
PN1362
MR O'GRADY: My learned junior will find it. But the transcript will speak for itself. The point is, that there is a potential and that was acknowledged by Mr Hardy and that's the core issue, with respect.
PN1363
But, as I was saying a moment ago, the variety of action that the CFMEU has sought to have conferred upon it, through the ballot process, clearly impacts upon the permutations and the risks that need to be accommodated by any notice periods that you fix. We sketch out those matters, in more detail, in the submissions, from paragraph 115 through to paragraph 125.
PN1364
In respect of the failure to call the chief operating officer or the general manager of AGL Energy, you have before you, Deputy President, the evidence of the group engineer, who explained how he would have responded to some of the types of actions that are contemplated by the ballot questions. He frankly admitted that me might be overruled but he also told you what he would be saying. And, clearly, these matters will need to be assessed in the light of any particular action that is notified - will need to be assessed, depending on which particular action is being notified at any particular time, because there may well be different concerns that arise if my client's confronted with the 20th shut down for an hour on a particular piece of plant, as opposed to the first. But, in my submission, that flows from the breadth of the way in which the CFMEU have sought to describe the action. If that means that a longer notice period is appropriate then so be it.
PN1365
Mr Bakri put a submission to you regarding the proposition that, "Well, if there is any damage caused by the shutdown that that's, in effect, offset by the fact you're not wearing the machine out while you're using it." You might recall Mr Schumacher's evidence that, "Well, that's just like buying a car and not driving it." The point, of course, is that the notice period should not be fixed by reference to the fact that my client won't use its plant. It's irrelevant, with the greatest of respect, that while my client is being prevented from using its plant it's not being engaged in normal wear and tear. The issue is whether there is a greater likelihood of damage associated with forced cools than there are natural cools, such that my client might decide it's not appropriate, in that particular instance, to use the forced cool procedure. The evidence on that, from Mr Schumacher and from Mr James is, in my submission, conclusive.
PN1366
The other point I'd make, in respect of that, is that it is wrong, in my submission, to suggest that there was no evidence regarding the damage that is occasioned by shutdowns. Because what Mr Schumacher explained, both in cross-examination and in re-examination, was that these plants are designed to have a cycle of only so many starts. You only get so many lives when it comes to these pieces of plant, and that's exhibit R3, and you'll see that there is a design life of starts, hot starts, warm starts, cold starts, and when you have regard to the other bar graphs on that exhibit you'll see that this plant is coming to the end of its life, as far as the starts that it can be exposed to.
PN1367
Mr Schumacher's evidence, in my respectful submission, was really quite compelling. That it's not just a question of factoring in what is the, if you like, added impact on the life of the plant associated by the cooling process and the shutdown, the nature of a shutdown is it damages the plant and you can only do it so many times. That's the exhibit I was referring to, Deputy President.
PN1368
THE DEPUTY PRESIDENT: Yes, of course.
PN1369
MR O'GRADY: The other point, of course, is that here we are concerned with what is a novel situation of the potential for repeated shutdowns, in a very short period of time, which is radically different from what occurs by way of the normal shutdown process where, as you would have seen from exhibit R3, we're talking about, on average, a unit being shutdown once a year, for major maintenance.
PN1370
So to suggest that there is no damage associated with the shutdown, in my submission, is just not - or only negligible damage that can be offset by the save on wear and tear, in my submission, is just not consistent with the evidence.
PN1371
Mr Bakri has relied, in respect of this issue, on the CEPU v Australia Post decision. That's dealt with at paragraph 126 of the final submissions. The issue that was being confronted - sorry, 126 and also 137 and following. The issue, in that case, was that a longer notice period was being asked for because the bans that were being imposed by the CEPU had the potential to impact upon postal ballots in the 2007 Federal Election.
PN1372
So that was the basis upon which it was being said, by Australia Post, that there were exceptional circumstances warranting a longer notice period. It's in that context that, understandably, the Vice President said:
PN1373
(a) You're speculating about the impact of this industrial action on the election and I shouldn't fix the notice period by reference to speculation, and
PN1374
(b) if that does eventuate as a possibility you can bring a 424 application.
PN1375
It's a radically different situation, in my submission, Deputy President, to the one that is confronting you in this case. Because here there is no speculation about the impact of the industrial action on some third person or persons being relied upon by my client to justify the extension. We're saying, "This action puts at risk our plant and that is the reason seven days is appropriate", for the reasons I've already sought to explain.
PN1376
Secondly, it's not necessarily the case that even if my client's plant was put at risk that it would have available to it the option of bringing a 424 application. It's unlike the matter that was before the Vice President where he was considering the impact on a Federal Election. So, in my submissions, for the reasons that we've said in writing, the CEPU v Australia Post case does not assist the Commission in this case.
PN1377
The other point that, as I understand it, my learned friend relies upon the Australia Post case for is the notion that there needs to be a balancing of the impact on the efficacy of the industrial action in deciding whether or not a particular extension is appropriate. Once again, Deputy President, in my submission, you need to have regard to the circumstances in that case and contrast them with here.
PN1378
The evidence is that when these units are shut down my client will be exposed to significant economic loss for each day they are shut down. That's in addition to the costs associated with the work required to shut them down and start them up again. The capacity of the CFMEU to impose that pressure on my client is not going to be removed by a seven working day notice period. They will retain that capacity even if they have to give a seven days' notice.
PN1379
On the other hand, in my submission, my client should not have, in addition to that form of pressure, be put under the risk that his plant will be damaged, either through it having to be abandoned before it has been brought into a safe state or because it is required to subject that plant to repeated forced cools when it would otherwise elect to use a natural cool process to take into account all the factors that Mr Schumacher described.
PN1380
Deputy President, paragraph 140 and 142, we do rely on the principle of comity. We do note that in the matter before Bissett C that there was opposition to the extension, yet notwithstanding that opposition she was satisfied that there were exceptional circumstances and those circumstances are relevantly the same as here.
PN1381
Further, we note that in the Energy Australia Yallourn case Lewin C, concerning a different piece of plant, found himself bound, as a matter of comity, to follow what Bissett C had said and apply a seven working day extension in that case.
PN1382
Deputy President, just bear with me. Just a couple of additional points, Deputy President, to the extent that the union might say, "Well, you should have regard to the Australia Post decision because under section 423 if there's a significant economic harm to the employer and employees there's a basis for suspending the action." That, of course, is a two stage test, it's not just the employer that needs to be harmed, employees also need to be harmed. It's a difficult test to satisfy and, as I understand it, that's made clear in the decision of Kaufman SDP in FWA v Schweppes.
PN1383
In paragraph 52 of the submission handed up today, by the CFMEU, it said that we failed to adduce any actual evidence on the actual qualitative effects of a shutdown. You have the evidence of Mr Schumacher regarding the studies, the reality is that these shutdowns occur very rarely. There is evidence that the fact of the shutdown itself is factored in as a design parameter in that you're only allowed so many shutdowns per unit. In my submission, that is a reflection, on behalf of the manufacturer, of the stressors occasioned by that process to the plant. And at paragraph 800 Mr Schumacher made it very clear that after having looked at the literature he was convinced of the damage occasioned by that process.
PN1384
There was also reference to Mr Hardy's, in my respectful submission, unhelpful evidence about some discussion he'd had with some unidentified person and what he had been told in those circumstances. Well, clearly, that evidence is hearsay. We're left in the invidious position of not being able to challenge that evidence. It's not something that Mr Hardy put into either of his witness statements for us to put in a prepared response to and, in any event, in my submissions, it was countered by what Mr Schumacher said, in respect of it.
PN1385
In paragraph 55 Mr Bakri refers to the weight of history. Well, of course, there's never been, historically, an abandonment of this plant in the way that is contemplated by this action. So the fact that annually these machines are subject to maintenance and shutdowns occur, that are often initiated as a forced cool shutdown, in my submission, doesn't assist you in determining what is the appropriate notice period.
PN1386
Deputy President, I think the other matters that are raised by Mr Bakri have been addressed in the written submissions that we've filed and I'd rely upon them and the schedules thereto. I'm informed that the reference to the Schweppes case is [2011] FWA 9329. It was Schweppes v United Voice, regarding section 423. If it pleases the Commission.
PN1387
THE DEPUTY PRESIDENT: Thanks Mr O'Grady. Yes, Mr Bakri?
PN1388
MR BAKRI: Deputy President, I've got just a couple of matters in reply, I won't be too long. If I could start by addressing the comment or the question as to whether you're bound by Bissett C's decision. I understand that the way that the submission was put, by my learned friend, was that Lewin C found that he was bound by Bissett C's decision. In my submission, you're not bound by Bissett C's decision, you've got a obligation or a duty to rule on this matter, on the evidence before you. It is correct, on the fact of the Bissett C decision that the application for an extension was contested but it's also plain that there was no evidence that was put forward by the unions. Now you've got the benefit of Mr Hardy's evidence and we say that that makes it a very, very different evidentiary situation than the one that confronted Bissett C.
PN1389
It was submitted that once you are satisfied that there are exceptional circumstances which justify an extension of longer than the minimum notice period, or the default notice period, that that's enough, you then have a discretion to extend up to seven days and you don't need to be satisfied that the seven days is necessary or that there are exceptional circumstances to justify that. We would oppose that submission and say it should be rejected. It's playing n the words of the Act and in the decision of Lawler VP, in Australia Post, that there needs to be a link between the exceptional circumstances and those circumstances justifying the extension sought. So just because the union has made a submission that a four working day period is not opposed doesn't mean that you then automatically can get to the seven days.
PN1390
Now, Mr O'Grady put submissions to you describing what could be summarised as nightmare scenarios, of things going wrong, and really seeks to submit to you, in effect, that right here right now the Commission needs to determine - come up with an arrangement that would safeguard AGL against any such nightmare scenario. It's plainly not the case. If things went wrong, there would be an arsenal of options that would be available to AGL.
PN1391
We had some limited submission on the various suspension termination provisions. There's, of course, the possibility that if things weren't going to plan that the union withdraw its action. To assume that the plant will be left and there'd be damage, there's no basis for such an assumption. Aside from that, there'd obviously be the potential for an injunction in court or a 418. There's a variety of things. I don't think I'm revealing any state secrets in contending the obvious, that there are options that could be exercised.
PN1392
What all that mans is that it's not - you don't need to think about every possibility, no matter how remote, you need to look at what the likelihood of the shutdown process is and how it's run generally in the past, and that's enough. If something happens out of the ordinary they can ask the union to withdraw the action or stay on or delay it, perhaps, and then exercise any legal right they have.
PN1393
Now, addressing the "had been" requirement, if we can call it that, in the genuinely trying to reach agreement test. We suggest, Deputy President, that you be guided by the Coles decision and we contend that it's enough - under that decision it's enough if the union has been trying to reach agreement since after the time the application was filed.
PN1394
In that case - - -
PN1395
THE DEPUTY PRESIDENT: Since after the - so in this case
- - -
PN1396
MR BAKRI: Let me put it a different way. If you came to the opinion that prior - at some stage, historically, the union was not genuinely trying to each agreement, for whatever reason, if we have been, since the application was filed, so even between that time and the time of the determination, that would be sufficient under the test that's posited by the Full Bench in Coles.
PN1397
The reason why I say that is because in that case, the facts of that case were that between the application being filed and the determination there was an event that occurred and I believe it was a log of claims being served, and the argument put forward was, "Well, until that act occurred the union hadn't been genuinely trying to reach agreement." The Full Bench found, "Well, at least from that time they have been, so therefore the test is met."
PN1398
So here, even if historically there were some issues about non-permitted content, which we don't concede, we say those things are permitted and that hasn't been agitated in this application, we've got some very good answers as to why those clauses were permitted but we've done all we can. They're not pursued, that was made very clear to the employer. The union then wrote to the employer and said, "If you've got any further concerns that we're seeking unpermitted content tell us and we'll liaise with you about that." None have been raised. So we say that should put the matter to bed once and for all, as per the Full Bench's decision in Esso, we have a reasonable belief. I can't see anything else that the union could have done to deal with the historical issues or allegations that there was non-permitted content.
PN1399
Now, Mr O'Grady's submissions really revealed, I think, that what is really being agitated is our good faith bargaining arguments. At one point there was even a slip where Mr O'Grady referred to, under questioning from you, Deputy President, as to how this would mean that the union wasn't genuinely trying to reach agreement and he said, "Well, they're acting in good faith." That is what this is all about. It's a good faith bargaining argument that's been dressed up as a genuinely trying to reach agreement argument and must be dismissed.
PN1400
It was contended that the evidence of Mr Hardy, about his intent, object or purpose is just an opinion, and that doesn't really assist and that's why he was not cross-examined on that, I think it was put. I refer to the decision of JJ Richards, at 63, which really focuses on the importance of that evidence of intent, object or purpose. So it is key evidence, it can't be cast to one side as mere opinion evidence.
PN1401
Finally, Mr O'Grady started off by making some submissions about whether it was open - what's to flow from the fact that Mr Hardy was not cross-examined on his evidence that he denied any improper involvement in the appointment of the bargaining representatives - - -
PN1402
MR O'GRADY: I didn't say that.
PN1403
MR BAKRI: I might have misquoted that. I withdraw that. There was a complaint about what I said about the failure to cross-examine, we'll say that. I'll withdraw it, Chris. What we say about that is, in any event, wherever you see that washing up, the evidence from Clinch is simply insufficient to establish either that (a) the independent bargaining representatives are not free from the union's control, or (b) that those independent bargaining representatives are not free from improper influence. A very, very, very high bar and the evidence falls well short of that, on any view.
PN1404
Unless there's something I can assist further with, Deputy President, that's the submissions in reply.
PN1405
THE DEPUTY PRESIDENT: Thank you, Mr Bakri. Thank you, I will reserve and I hope you all enjoy your long weekends.
ADJOURNED INDEFINITELY [5.14 PM]
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