Queensland Nurses' Union of Employees v TriCare Limited
[2010] FWA 7416
•23 SEPTEMBER 2010
[2010] FWA 7416 |
|
DECISION |
Fair Work Act 2009
s.229—Bargaining order
Queensland Nurses’ Union of Employees
v
TriCare Limited
(B2010/3408)
COMMISSIONER SIMPSON | BRISBANE, 23 SEPTEMBER 2010 |
Application for a bargaining order – good faith bargaining requirements – application dismissed
[1] On Tuesday 14 September 2010 an application by the Queensland Nurses Union of Employees (“QNU”) was made seeking an order under s.229 of the Fair Work Act 2009 (“the Act”). The application was against Tricare Limited. (“The Respondent”) The application was listed for Hearing on Tuesday 21 September 2010.
Correspondence was subsequently received from Blake Dawson Solicitors on Thursday 16 September 2010 acting for the Respondent requesting that the matter be listed for Directions in the first instance. Correspondence was received from the QNU on the morning of Friday 17 September 2010 objecting to the matter being set down for directions only on the basis that a ballot of the “Agreement” is imminent.
[2] The matter was listed for a Preliminary Hearing on the afternoon of Friday 17 September 2010 and at that hearing the QNU advised that it did not intend to call witness evidence and would rely on submissions at the Hearing. The Respondent advised that it would call one witness and on that basis I decided that the Hearing would proceed on Tuesday 21 September 2010.
[3] The QNU sought to amend its application in terms of the orders sought at the preliminary hearing. The Respondent did not object to the amendment of this application. The application was granted. At the Hearing on Tuesday 21 September 2010 the QNU was represented by Industrial Officer Ms Semple and the Respondent was represented by Mr Murdoch Senior Counsel.
[4] During the course of the Hearing the Respondent raised concerns in regard to certain of the five separate draft orders sought by the QNU as amended at the preliminary hearing in terms of their relevance to the application.
[5] The QNU was given an opportunity to consider the Respondent’s submissions in regard to the draft orders sought, and following an adjournment, proposed further amendments to the orders sought. The final version of the draft orders sought by the QNU were in the form of the following three orders;
I. Tricare cease to conduct its agreement ballot scheduled to commence in the week beginning Monday 20 September 2010.
II. That Tricare representatives, including a board member, attend a meeting or meetings of the bargaining committee, chaired by an independent person, to try and reach an agreement on wages and conditions which would be acceptable to employees.
III. That Tricare give genuine consideration to the unions proposals and give reasons for its responses.
BACKGROUND
[6] The QNU application states that negotiations for an enterprise agreement to replace the Tricare Workplace Agreement 4 2006-2009 began around April 2009. The current Agreement had a nominal expiry date of 20 September 2009. Mr Christopher O’Brien, the General Manager – Employee Relations of Tricare Limited was the only witness called to give evidence in the hearing and did so on behalf of the Respondent.
[7] Mr O’Brien’s witness statement included 127 paragraphs and 56 attachments and provided a record of the history of negotiations including copies of the minutes of each JCT meeting, correspondence between the bargaining representatives, updates to staff on the progress of negotiations and other material relevant to the negotiations.
[8] It was his evidence that on or about 14 July 2009 the Respondent provided employees with a Notice of Employee Representational Rights in relation to bargaining for a new enterprise agreement (EA 5) to replace EA4.
[9] The QNU, The Australian Workers’ Union of Employees, Queensland (“AWU”) and the Liquor Hospitality and Miscellaneous Union (“LHMU”) are bargaining representatives of Tricare’s employees in the negotiations for EA5.
[10] It was the uncontested evidence of Mr O’Brien that Tricare facilitated, attended and participated in 14 meetings with the QNU, AWU and LHMU between 11 March 2009 and 21 July 2010 and 10 of these meetings were Joint Consultative Committee Team (JCT) meetings held specifically to discuss and negotiate the terms of the EA5 1 JCT meetings for EA5 were held on:
11 March 2009, 23 April 2009,
4 June 2009 27 July 2009,
20 August 2009, 16 September 2009,
24 March 2010, 21 April 2010,
28 June 2010 and 21 July 2010.
[11] The JCT is made up of staff representatives from each of the 16 Tricare facilities, representatives of the three unions and Tricare Management.
[12] In November 2009 a ballot of the staff conducted by the Australian Electoral Commission for a proposed EA 5 agreement was rejected by a margin of 247 in favour and 341 against approving the proposed agreement, which is a 57% no vote.
[13] At the first meeting of the JCT following the unsuccessful ballot on 24 March 2010 participants were asked why the agreement was voted down and it is common ground between the parties 2 that the consensus at the JCT was that the wage offer was too low.
[14] The wage offer that was rejected was for a three year agreement with a 2% wage increase on commencement of the agreement, and increases equivalent to the Commonwealth Other Purpose Outlay (COPO) adjustments (with a minimum of 1.5%) in July 2010 and July 2011.
[15] During the course of the JCT meeting on 24 March 2010 the Respondent made a new wage offer to replace the offer that had been rejected which was a 3% increase to apply from 1 July 2010, with COPO payment increases from 1 July 2011 and 1 July 2012. The Respondent indicated issues outside of wages would have to be renegotiated in relation to an amended ‘package offer’. 3
[16] A further meeting of the JCT was held on 28 June 2010. Tricare took a decision to appoint a consultant, Mr Steven Nance, as a bargaining representative on their behalf. Tricare tabled a new offer at this meeting to replace all previous offers which was presented as a ‘package offer’. 4
[17] This offer improved the previous offer for Personal Care Attendants, Environmental Services Attendants and Food Services Attendants in the first year however did not increase the wage offer for higher paid employees. It is apparent from the minutes of that meeting that the unions remained unhappy with the new offer.
[18] A further JCT meeting was conducted on 21 July 2010. At this meeting the unions and JCT representatives responded at some length to the new offer put by the Respondent at the meeting of 28 June which in the main sought further improvements to the offer. Part way through the meeting an adjournment break was held and Mr O’Brien took the opportunity to contact Mr Michael O’Connor a member of the Tricare Board to advise him of the state of negotiations.
[19] It was Mr O’Brien’s evidence that he was instructed to return to the meeting and advise the JCT that the most recent ‘package offer’ would be converted into a draft EA5 for the purpose of a vote. 5 The minutes of the 21 July 2010 meeting then record that when the meeting reconvened the QNU advised the meeting that it intended to lodge an application with Fair Work Australia. Mr Nance then informed the meeting that a final draft would be available in the next week, and Mr O’Brien advised a ballot would be arranged in the near future.
[20] On or around the 28 July 2010 the Respondent issued an EB5 Update to employees notifying that Tricare had decided to take the draft EA5 to a vote the week commencing 30 August 2010. The Respondent issued a further EA5 Update to staff advising of the possible rescheduling of the proposed ballot as a dispute was before FWA 6 and a further EA5 Update dated 16 August 2010 was distributed to staff in the following terms.
Further to newsletter issue 8, Fair Work Australia had considered the QNU’s application to deal with a bargaining dispute.
Fair Work Australia offered its assistance with a further JCT meeting. Tricare declined the invitation given the length of time the parties have been bargaining negotiating and the significant concessions already made by Tricare.
Tricare will circulate a proposed agreement and advise staff in due course of a revised ballot date. 7
[21] The QNU made the application for Fair Work Australia to deal with a bargaining dispute on 28 July 2010. I conducted a conciliation conference in accordance with s.240 of “the Act”on 13 August 2010 which was not successful in resolving differences between the parties.
[22] This application was filed on 14 September 2010 for approximately one month after the s.240 dispute conference. On or about 15 September 2010 Mr O’Brien on behalf of Tricare sent an email to JCT facility representatives notifying that Tricare intended to put the proposed EA5 to a ballot and requesting that they place a copy of the proposed EA5 in the lunch rooms of each facility. 8 Mr O’Brien also sent an email to the Unions advising them of Tricare’s intention to put the proposed EA5 to ballot.
In the course of the Hearing Tricare tendered a copy of correspondence between the Australian Electoral Commission (“AEC”) and itself to demonstrate that it was in the process of arranging for the AEC to conduct a ballot on its behalf. The dates Tricare have requested from the AEC for the conduct of the ballot include 28 September 2010 for the posting of ballot material, 30 September 2010 for opening of the postal ballot and 12 October 2010 for closing of the postal vote. 9
CONSIDERATION
[23] The QNU case was that Tricare have not met, or are not meeting, the good faith bargaining requirements described in s.228(1). In such a matter it is a precondition as set out in s.230(3)(a) that Fair Work Australia must be satisfied those circumstances exist before making any orders under s.229. The QNU did not press any case with regard to s. 230(3)(ii).
[24] There is no issue raised by the Respondent to dispute that the QNU met the requirement of giving a written notice setting out their concerns and that the Respondent was given a reasonable time to respond as required by s.229(4). The QNU advised the Respondent of its concerns in a letter dated on 23 August 2010 and Tricare responded in a letter dated 27 August 2010.
[25] The current Tricare Agreement expired on 20 September 2009 so no issue arises with regard to s.229(3).
[26] Mr O’Brien gave evidence that they initiated bargaining on or about 14 July 2009 by providing employees with a Notice of Employee Representational Rights in relation to bargaining for a new enterprise agreement (EA 5) to replace EA4 so the requirements of s. 230(2) have been satisfied.
[27] The QNU alleged the following reasons as to why Tricare was in breach of the following four requirements of the good faith bargaining under s.228(1).
(a) attending, and participating in, meetings at reasonable times,
[28] The claim was made that the decision of Tricare not to accept the offer from Fair Work Australia to assist with a further conciliation meeting following a dispute conference under s.240 was a breach of s. 228(1)(a) in that it was a failure to attend and participate in, meetings at reasonable times.
[29] As I set out above the QNU made an application to deal with a bargaining dispute on 28 July 2010. I conducted a conciliation conference in accordance with s.240 of the Fair Work Act 2009 on 13 August 2010 and at the conclusion of the conference I extended an offer to the parties that I was prepared to assist in further conciliation talks between the parties if they both agreed for me to do so. A proposed date for such a meeting was discussed. The Unions were in agreement with further conciliation involving Fair Work Australia, however the Respondent decided to decline the offer and sent correspondence to Fair Work Australia advising of its decision in this regard.
[30] There are clearly bargaining issues in dispute between the parties which motivated the QNU to make the application in accordance with s.240 to seek assistance to resolve those issues. It was the Respondent’s submission that attending and participating in a conciliation conference is not relevant for the purposes of establishing a breach of s.228(1)(a). I agree with that submission. I accept that Tricare’s decision to decline an offer for further conciliation under s.240 does not constitute a failure to attend and participate in meetings at reasonable times as contemplated by s. 228(1)(a).
[31] The evidence of Mr O’Brien contained in his witness statements also supports a conclusion that the Respondent has gone to considerable lengths to support communication with employees. These measures have including an anonymous Staff Information Line, the issuing of 19 ‘EB5 Update’ Newsletters, the preparation and circulation of agendas to the unions and facility representatives for JCT meetings and the conduct of four separate ‘Road Shows’ at each Tricare facility for the purpose of answering questions and obtaining feedback during negotiations.
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
[32] The QNU sent correspondence to the Respondent dated 30 March 2010 which requested the latest consolidated financial accounts for the business (and all related entities) and a range of other information about the financial affairs of the business on the basis that Tricare was asserting it could not make a higher offer based on its financial situation. 10 Tricare responded to correspondence on 16 April 201011 rejecting the assertion of the QNU that Tricare’s wage offer was limited due to its financial situation and declining to provide the information on that basis.
[33] In Tricare’s response it also said that it was not required to disclose that information as it was not relevant information for the purposes of s.228(1)(b). On the basis of the oral evidence of Mr O’Brien and copies of minutes tendered in evidence I am satisfied that the Respondent did not assert an incapacity to pay during negotiations and that it has not breeched s.228(1)(b) in not disclosing that information.
[34] The QNU also said that it requested information on the competencies and duties required at various levels in the Respondent’s offer compared to the award/s which was not responded to appropriately by Tricare. Mr O’Brien gave evidence that there was discussion from both sides around the competency structure and that Mr O’Brien presented a competency structure at a JCT meeting which reflected discussions that had occurred the previous year.
[35] Further Mr O’Brien gave evidence that questions were asked at the JCT about the competency structure presented and Mr O’Brien dealt with those himself as he had been intimately involved in that. 12 Mr O’Brien explained at some length that the competency structure reflects discussions between the parties in 2009 and the outcomes from a working party which was a sub-group of the JCT and included QNU representation through Organiser Ann Stevens. Mr O’Brien said this work is now incorporated into the document which Tricare wish to take to ballot.13
[36] The QNU also said that at the meeting of 28 June 2010 it had requested the staffing profile of Tricare showing the number of employees at each level. This information was subsequently provided by Tricare to the QNU after a period of delay.
[37] In any event the QNU did not seek an order as part of this application to address alleged failures to disclose relevant information in a timely manner.
c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
[38] The QNU sought to draw a parallel between this case and the Decision in National Union of Workers v Defries Industries Pty Ltd[2009] FWA 88 at paragraph 66 14 where the decision says;
Section 228(1)(c) relates to responding to proposals made by the bargaining representative in a timely manner. The company, in this matter, never responded to the union’s log of claims or to their draft agreement in any direct way. The employer’s evidence was that some of the matters raised in the log were contained in the employer’s draft. There was however no response as such to the union’s proposals.
In that case the employer met the union briefly twice before attempting to proceed to a vote when the employer was on notice that the union wished to bargain. It is not appropriate to compare that situation to these circumstances where all parties have participated from the commencement of discussions and held numerous and lengthy meetings stretching over an 18 month period. I believe Tricare has responded sufficiently to claims made over the course of negotiations from the records I have been shown in Mr O’Brien’s affidavit.
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
[39] The QNU in submissions referred to the decisions in Total Marine Services Pty Ltd v Maritime Union of Australia and LHMU v Hall & Prior Aged Care Association[2009] FWA 290 15where consideration was given to circumstances where a party during negotiations is not genuinely trying to reach an agreement. The QNU sought to draw a link between Tricare’s decision not to include as part of a repackaged proposal put to a JCT meeting in March 2010 a number of conditions that were part of the proposal voted down in November 2009.
[40] I see no link between the decision taken by the Respondent to repackage the offer voted down in November 2009 and the types of circumstances contemplated in the Decisions referred to above where a party may not genuinely be trying to reach an agreement. An objective assessment of the behaviour of Tricare overall does not point to a negotiating party that does not want to reach an agreement. This is Tricare’s fifth round of enterprise bargaining with its workforce and it was Tricare that initiated bargaining in July 2009.
[41] The extensive material provided with Mr O’Brien’s witness statement supports the conclusion that the Respondent is committing considerable time and resources to the bargaining process. Quite apart from any views parties may have about Tricare’s bargaining position on particular issues in dispute, it is clear that Tricare is serious about bargaining. The evidence in my view is indicative of an employer who is genuinely trying to reach an agreement. I do not accept the submission from the QNU that Tricare is not.
[42] Having said that, it may still be possible to have a set of circumstances where a bargaining representative is genuinely trying to reach an agreement in a general sense, but at the same time is also technically failing to meet one or more of the good faith bargaining requirements set out in s. 228(1).
[43] The QNU claimed that Tricare had not given reasons for its rejection of the unions’ claims regarding a number of issues. For example, on the joint unions’ position that the offer in its current form provides for lower wages in a number of classifications than the minimum wages under the relevant awards.
[44] The QNU complained that Tricare has not responded to the concerns of the unions’ that the offer as it stands if accepted will not satisfy the better off overall test. The unions’ raised this concern during negotiations at JCT meetings in 2010 that the terms of the offer may not pass the better off overall test which is a requirement for Fair Work Australia to be satisfied of in accordance with s.186(2) as part of the approval process for enterprise agreements.
[45] Mr O’Brien gave evidence during the hearing that Tricare did respond to this claim during the course of JCT meetings by stating that given the proposed wage increases are greater than the base rates under the relevant awards any penalties or allowances that may be greater under the modern award would be absorbed within the higher wage increases. 16 Tricare has also stated that raising a “concern” is of itself not making a “proposal”.
[46] Tricare maintains that it has negotiated in good faith 17 however the position of the three unions’ in terms of what would be acceptable has remained largely unchanged throughout 201018 despite movement in Tricare’s bargaining position. Further that since July 2010 no alternatives to the proposed offer of Tricare have been put forward by the unions.
[47] Mr O’Brien claimed that the inflexibility of the Unions’ is in contrast to the concessions made by Tricare and that the key features of the proposed EA5 that Tricare now wishes to take to ballot are an increase over both of Tricare’s earlier proposals in 2010 and the proposal voted down in November 2009. 19 It appears to me that the document that the Respondent now intends to put to a ballot of staff does contain a number of improvements on conditions when compared to earlier offers particularly for low paid staff but also more generally in certain areas.
[48] Despite this it would appear from the evidence and submissions that the parties do not appear to have moved closer to agreement and this is supported by the minutes of the last JCT meeting on 21 July 2010. Tricare described the situation as an ‘impasse’. In CFMEU v Tahmoor Coal Pty Ltd[2010] FWA 942 20it was held not to be breach of the good faith bargaining requirements for an employer to proceed to a ballot without agreement from the other bargaining representatives where an impasse has been reached. In my view in the circumstances of this case it is not a breach of good faith bargaining requirements for the employer to seek to proceed to ballot without the agreement of the Unions and the JCT.
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
[49] The QNU alleged that Tricare had acted capriciously by removing proposed terms from the EA5 offer which was voted down in November 2009 from the new offer made at the JCT meeting in March 2010. In submissions the QNU described this as an attempt to punish employees for not voting in favour of the November 2009 proposal. The QNU was concerned that the new proposal with a higher wage offer but with certain other conditions removed may be less than the previous rejected offer. Parts of the offer withdrawn from the November 2009 offer included improvements to long service leave arrangements and the career path for Enrolled Nurses.
[50] I believe in the context of this submission s.228(1)(e) is not relevant. Section 228(1)(e) needs to be read as a whole. It does not refer to ‘refraining from capricious or unfair conduct’; it refers to refraining from such conduct that undermines freedom of association or collective bargaining. Reference to the explanatory memorandum is of assistance. It says the following;
951. The good faith bargaining requirements are generally self-explanatory. The last requirement, ‘refraining from capricious or unfair conduct…’ is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair conduct if an employer:
• fails to recognise a bargaining representative;
• does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees;
• dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining; or
• prevents an employee from appointing his or her own representative.
[51] The examples cited in the Explanatory Memorandum assist in understanding the nature of the type of conduct s.228(1)(e) is intended to prevent. It is not intended to address any ‘capricious’ conduct but more specifically such conduct that undermines freedom of association or collective bargaining. Even if the repackaging of Tricare’s offer between November 2009 and March 2010 by withdrawing certain parts of the offer and improving others could be described as ‘capricious’ which is doubtful, I do not believe it is conduct intended to be caught by s.228(1)(e).
[52] The QNU complained that the Unions and the JCT had not been consulted about the final draft or provided with a final draft of the proposed EA5 that is now being distributed to staff in preparation for a ballot and that the QNU had at the time of the hearing still not sited a copy of the final document. The decision of the employer to move forward to a ballot was taken ‘unilaterally’ and its decision to do so without consulting or providing a copy of the final version before distribution was in breach of s.228(1)(b) and s.228(1)(e).
[53] Mr O’Brien’s response to this allegation was that at the last JCT meeting the parties were clearly informed that Tricare’s most recent ‘package offer’ would be converted into a draft EA5 for the purpose of a vote. 21 When asked during oral evidence if any request at any stage at the meeting or after the meeting has been made for others to participate in the drafting exercise, he answered no. In these circumstances I don’t believe Tricare acted unreasonably by proceeding to finalise the draft document. It was also Mr O’Brien’s evidence that copies of the final draft of the proposed EA5 had been sent to all JCT members including all unions.
[54] The QNU made reference to the decision in Australasian Meat Industry Employees Union v T & R (Murray Bridge) Pty Ltd[2010] FWA 130 22where the employer was found not to have properly responded to claims and its insistence to only do so at the final stages of negotiations, and to conclude negotiations without reference to the union which subsequently led to bargaining orders being made. The QNU argued that situation was similar to this case.
[55] I believe the circumstances in Murray Bridge can be distinguished from this matter as in Murray Bridge the union appeared to be being marginalised from the Joint Consultative Committee in the workplace by the employer which is not the case here. The employer only turned its mind to the issues that the union was raising in its log of claims near the end of negotiations. In this case the unions have been central participants from the beginning of negotiations, the employer has assisted in facilitating union participation, and the competing claims of the parties appear to have been the subject of discussion at JCT meetings throughout negotiations.
[56] The QNU also tried to draw a comparison between the circumstances in Finance Sector Union of Australia v Commonwealth Bank of Australia [2010) FWA 2690 23and the decision of Tricare to provide last minute enhancements to the final draft EA5 to go to ballot such as increased backpay without consulting the unions. I see the circumstances as quite different. In the FSU case the bank had a long standing culture of unilaterally determining wage increases without reference to bargaining.
[57] During the course of bargaining with the FSU the bank decided on two occasions to grant a wage increase to its employee’s independent of its negotiations with its employees occurring at the same time and which were communicated by way of a letter from the CEO to staff. Tricare has not sought during negotiations to by-pass the JCT. To the contrary Tricare was quite clear at the last JCT meeting in July 2010 of its intention to go to ballot. I do not see the inclusion of an additional beneficial condition within a broader proposal to go to ballot, for example more generous backpay, as a failure to meet good faith bargaining requirements.
CONCLUSION
[58] Section 228 of the Act reads as follows:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”
[59] I have had regard to all of the submissions and evidence presented and on the basis of that and the views I have expressed earlier I find that the actions taken by Tricare during negotiations as put before me in this matter do not constitute a failure to meet the good faith bargaining requirements set out in s.228(1). Therefore I have no capacity to make bargaining orders.
[60] It was put by Mr Murdoch in submissions that s.255(1)(c) would have precluded the first order sought by the QNU from being granted in any event.
Section 255(1)(c) states;
255 Part does not empower FWA to make certain orders
(1) This Part does not empower FWA to make an order that requires, or has the effect of requiring:
(a) ..........................
(b) ..........................
(c) an employee to approve, or not approve, a proposed enterprise agreement.
The QNU draft order sought was in the following terms;
1. Tricare cease to conduct its agreement ballot scheduled to commence in the week beginning Monday 20 September 2010.
[61] As I have decided there has been no failure to meet the good faith bargaining requirements I do not need to address this question. However I have noted that the nominal expiry date of the current agreement was over 12 months ago and the offer now proposed to be put to staff by Tricare is different and in a number of respects more generous then the offer rejected in November 2009. I see good reasons for there being no further delay in employees having an opportunity to participate in a ballot on the new proposal. I dismiss the application.
COMMISSIONER
Appearances:
Ms R Semple of Queensland Nurses Union of Employees - Applicant
Mr J Murdoch of Senior Counsel for the Respondent
Hearing details:
2010
Brisbane
September 21
1 Exhibit 1 Witness Statement of Mr Christopher O’Brien Para 12 - 14
2 QNU application ground 2 and Exhibit 1 Witness Statement of Mr Christopher O’Brien Par 34
3 Exhibit 1 Witness Statement of Mr Christopher O’Brien Para 36
4 Exhibit 1 Witness Statement of Mr Christopher O’Brien attachment 14 page 199
5 Transcript PN315-319
6 Exhibit 1 Witness Statement of Mr Christopher O’Brien CO-40
7 Exhibit 1 Witness Statement of Mr Christopher O’Brien CO-40
8 Exhibit 1 Witness Statement of Mr Christopher O’Brien CO-49
9 Exhibit 2 emails between the AEC and the Respondent
10 Exhibit 1 Witness Statement of Mr Christopher O’Brien CO-11 attachment 4
11 Exhibit 1 Witness Statement of Mr Christopher O’Brien CO-11 attachment 5
12 Transcript PN337 - 341
13 Transcript PN369-375
14 National Union of Workers v Defries Industries Pty Ltd [2009] FWA 88 PR988517 Para 66
15 Total Marine Services Pty Ltd v The Maritime Union of Australia [2009] FWA 290 PR989245
16 Transcript PN342-351
17 Exhibit 1 Witness Statement of Mr Christopher O’Brien Para 98
18 Exhibit 1 Witness Statement of Mr Christopher O’Brien Para 94
19 Exhibit 1 Witness Statement of Mr Christopher O’Brien Para 126 - 127
20 CFMEU v Tahmoor Coal Pty Ltd [2010] FWA 942 PR 993501
21 Exhibit 1 Witness Statement of Mr Christopher O’Brien Para 102
22 The Australasian Meat Industry Employees Union v T & R (Murray Bridge) Pty ltd[2010] FWA 1320 PR 993940
23 Finance Sector Union of Australia v Commonwealth Bank of Australia [2010) FWA 2690 PR 995754
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