The attached document replaces the document previously issued with the above code on 4 September 2017.

The paragraph numbering in the decision has been amended and references to Mr T. Begbie have been replaced with Mr S. Meehan.

[2017] FWCFB 4577

Fair Work Act 2009

s.266 - Industrial action related workplace determination

Commonwealth of Australia represented by the Department of Immigration and Border Protection

Objections to aspects of the CPSU witness statement of Mr Rupert Evans on the grounds of relevance and that those aspects are protected by Parliamentary privilege - part of the material to be admitted with the remainder not admitted on the basis that it is not relevant

[1] On 11 August 2017 the Full Bench handed down a decision[1] which dealt with the issue of whether aspects of the submissions and evidentiary material filed in this matter by the Commonwealth of Australia represented by the Department of Immigration and Border Protection (DIBP) and the Community and Public Sector Union (CPSU) were protected by Parliamentary privilege under the Parliamentary Privileges Act 1987 (Cth) (the PP Act) and whether the material could be received by the Fair Work Commission (the Commission).

[2] Specifically, the Full Bench determined that all of the disputed material came within the definition of 'proceedings in Parliament' as set out in s.16(2) of the PP Act and that the Budget documents which DIBP sought to tender were protected by Parliamentary privilege and therefore incapable of being received by the Commission. As to the other material which was disputed on the grounds of Parliamentary privilege, the Full Bench indicated in its decision that the material would be caught by Parliamentary privilege if any party sought to rely on that material in a way that entailed the tender or receipt by the Commission or a party to these proceeding questioning, making of submissions or commenting on those documents for any of the purposes set out in 16(3) of the PP Act. The parties were encouraged to confer in advance of a conference being convened by Deputy President Kovacic with a view to coming to an agreed position on any material which was disputed on the grounds of Parliamentary privilege or at least minimising the issues which remained in dispute in respect of that issue.

[3] In subsequent developments, the parties conferred and the Commission convened conferences on 21 August and 1 September 2017 and also listed the matter for mention and directions on 31 August 2017. As a result of those discussions and conferences the parties were able to reach agreement on all but one of the disputed issues. That issue concerned DIBP's objection to paragraphs 186-193 of Mr Rupert Evans' witness statement on behalf of the CPSU. The objection was referred to in the Full Bench's 11 August decision as follows:

"[58] DIBP objected to paragraphs 186-193 of Mr Evans' witness statement which in broad terms deal with the Senate Education and Employment References Committee enquiry into Commonwealth public sector bargaining. We note that the disputed paragraphs relate to events which occurred after the termination of protected industrial action. We therefore question the relevance of the paragraphs, particularly as they do not appear to go to any of the factors which the Commission must take into account in deciding the terms of a workplace determination as set out in s.275 of the Fair Work Act 2009. Accordingly, we would first need to be convinced of the relevance of the material before agreeing to admit it. Despite our doubts concerning the material's relevance, it nevertheless remains open to the CPSU to press the disputed paragraphs. In that we regard we note that the CPSU in its submissions did not contend that the disputed paragraphs fell outside the definition of 'proceedings in Parliament' in s.16(2) of the PP Act but rather submitted that the material could be tendered and received because it was not caught by s.16(3) of the PP Act. In our view, the disputed material clearly falls within the definition of 'proceedings in Parliament' as, drawing on the language of s.16(2) of the PP Act, the paragraphs refer to "acts done in the course of, or for the purposes of or incidental to, the transacting of the business ... of a committee". Should the CPSU wish to press the paragraphs, it would therefore need to satisfy the Commission that the paragraphs were relevant and were not relied on for any of the purposes set out in s.16(3) of the PP Act."[2]

[4] That issue was heard on 1 September 2017 by Deputy President Kovacic with other members of the Full Bench having regard to the transcript of the hearing and the parties' written submissions and oral submissions made in the context of the Full Bench hearing on 21 July 2017 regarding the issue of Parliamentary privilege.

[5] At the hearing, Mr Paul O'Grady QC and Mr Simon Meehan of Counsel appeared for DIBP, Mr Tony Slevin of Counsel appeared for the CPSU, Mr Michael Bakhaazi appeared for the Australian Institute of Marine and Power Engineers (AIMPE), a bargaining representative for the proposed DIBP agreement (the proposed Agreement), and Ms Elizabeth Ryan, an employee bargaining representative for the proposed Agreement, appeared on her own behalf. AIMPE and Ms Ryan made no substantive submissions regarding the remaining disputed issue.

[6] For the reasons set out below we will admit paragraph 193 of Mr Evans' witness statement but will not admit paragraphs 186-192 on the basis that they are not relevant.

[7] The disputed paragraphs read as follows:

186. On 13 October 2016 the Senate referred an inquiry to the Education and Employment References Committee into the impact of the Government's Workplace Bargaining Policy and approach to Commonwealth public sector bargaining.

187. The CPSU made a submission to that enquiry on 28 October 2016.

Now produced and shown to me and marked "RE-23" is a true and correct copy of the CPSU's submission to the Senate Education and Employment References Committee's enquiry into the impact of the Government's Workplace Bargaining Policy an approach to Commonwealth public sector bargaining.

188. The CPSU also made a submission specific to the DIBP, with input from our rank-and-file leaders.

Now produced and shown to me and marked "RE-24" is a true and correct copy of the CPSU DIBP team's submission to the Senate Education and Employment References Committee's enquiry into the impact of the Government's Workplace Bargaining Policy an approach to Commonwealth public sector bargaining.

189. In addition to the submission made by the CPSU, a number of CPSU members made individual submissions.

190. I appeared before the Senate Education and Employment References Committee with Susan Jones, Ric Selim and Mike Suijdendorp, to provide evidence.

Now produced and shown to me and marked "RE-25" is a true and correct copy of the Committee Hansard from 15 November 2016.

191. The Senate Committee published its report, titled "Siege of Attrition: the Government's Bargaining Policy" in November 2016.

Now produced and shown to me and marked "RE-26" is a true and correct copy of report of the Senate Education and Employment References Committee titled "Siege of Attrition: the Government's Bargaining Policy".

192. The Government, through the APSC, responded to the Senate Committee's report in February 2017.

Now produced and shown to me and marked "RE-27" is a true and correct copy of the Government's response to the report: "Siege of Attrition: the Government's Bargaining Policy".

193. Over this period the CPSU has continued to engage with APS agencies seeking to resolve bargaining. This has resulted in significant improvement in various APS agencies' position on bargaining, in particular with the reinstatement of existing rights and conditions previously proposed for reduction or removal. A number of these agreements have been approved as complying with government bargaining policy."

[8] In its written submissions of 20 July 2017 DIBP submitted that the disputed paragraphs did substantially more than establish that there was an enquiry as they described the nature of the enquiry, the course of its work, witnesses who appeared and the title of its report. DIBP further submitted that if no inference was to be drawn from the fact and timing of the Senate enquiry it was simply irrelevant and should not be pressed. DIBP contended on the other hand that if the CPSU's participation in bargaining at the same time as the Senate Enquiry was considered to be relevant, it must be because at least some form of inference could be drawn from the content and timing of those events which was a purpose prohibited by s.16(3) of the PP Act. DIBP further stated that there was no Parliamentary privilege difficulty with Mr Evans simply stating, without reference to the events of the Senate Committee, that the CPSU continued to bargain over the period date X to date Y. To that end, DIBP indicated that if the heading 'Senate Enquiry' and paragraphs 186-192 were withdrawn by the CPSU that it would not object to the evidence being given as if the words "Over this period ..." in paragraph 193 were replaced with "In the period 13 October 2016 to February 2017..."

[9] DIBP reiterated those submissions at the hearing of 21 July 2017[3].

[10] At the hearing on 1 September 2017 DIBP relied on the above earlier submissions. On the issue of relevance, DIBP submitted that the disputed material could not go to the issue of bargaining as bargaining had terminated upon the issue of the decision terminating the protected industrial action. DIBP further submitted that in its substantive submissions in this matter it made no criticism of the conduct of the CPSU through the period October 2016 to February 2017 and that as such the disputed material was of no relevance whatsoever[4].

[11] In its written submissions of 17 July 2017 the CPSU characterised the disputed paragraphs of Mr Evans' witness statement as describing the chronology of events associated with bargaining and stated that it would not seek to rely upon Annexures RE-23 to RE-27 which were referred to in the disputed paragraphs. The CPSU submitted that the evidence in the disputed paragraphs could be tendered and received because it was not caught by s.16(3) of the PP Act as the purpose of the paragraphs, as evidenced by paragraph 193, was to establish that there was a Senate enquiry and that during the period of that enquiry the CPSU continued to bargain. Further, the disputed paragraphs did not seek conclusions or the drawing of inferences about anything forming part of the Senate Committee proceedings.

[12] At the hearing of 21 July 2017 the CPSU reiterated that the disputed paragraphs merely set out a chronology of what occurred in relation to the Senate enquiry and relied on the decision in Amann Aviation v Commonwealth[5] in support of its contention that the disputed paragraphs should be admitted.

[13] At the hearing on 1 September 2017 the CPSU also relied on its earlier submissions regarding the disputed material. As to the relevance of the disputed material, the CPSU referred to s.275 of the Act which sets out the factors the Commission must take into account in deciding terms of a workplace determination. In particular, the CPSU highlighted s.275(f) which requires the Commission to have regard to "the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement". Specifically, the CPSU submitted that s.275(f) of the Act should be read in a broad sense such that bargaining for the agreement continued beyond the termination of the industrial action. To that end, the CPSU contended that in his statement Mr Evans set out the chronology of bargaining and at paragraphs 186 to 192 was giving evidence of the fact that there was a Senate enquiry that commenced whilst the bargaining was still occurring. On this latter aspect, the CPSU contended that bargaining continued after the industrial action was terminated in the form of proceedings before the Commission with those proceedings dealt with at paragraphs 181 to 185 of Mr Evans' witness statement. The CPSU further submitted that at the same time as those negotiations were occurring the Senate enquiry was occurring and that it was therefore relevant to the chronology of the conduct of bargaining and the conduct of the CPSU during the bargaining.

[14] In support of that contention, the CPSU also submitted that the conduct of DIBP was relevant as well, highlighting that over the period 25-31 November 2016 DIBP put a further agreement out to vote which meant that it continued to be involved in bargaining beyond 4 November 2016 when the President constituted this Full Bench. In response to a question from the Commission which suggested that bargaining had not continued beyond 4 November 2016, the CPSU contended that bargaining was a term that encompassed more than simply negotiations and did not end at that point. The CPSU also contended there were still activity by the parties after 4 November 2016 which constituted bargaining, that being from DIBP's point of view an agreement being put to a vote of employees and from the CPSU's perspective its participation in the Senate enquiry.

[15] Beyond that, the CPSU did not press the name of the Senate Committee's final report cited at paragraph 191 of Mr Evans' witness statement and more broadly reiterated that while the disputed material did relate to Parliamentary proceedings and was therefore caught by s.16(2) of the PP Act it was not lead for a purpose contemplated in s.16(3) of the PP Act[6].

[16] As noted in our decision of 11 August 2017 for the disputed material to be admitted the CPSU needs to satisfy the Commission that the disputed material is relevant and that it is not relied on for any of the purposes set out in s.16(3) of the PP Act.

[17] We deal firstly with the issue of relevance. In short, the CPSU submitted that the disputed material was relevant as it went to the matter set out at s.275(f) of the Act. DIBP on the other hand submitted that the material was not relevant in circumstances where it had made no criticism of the conduct of the CPSU over the period October 2016 to February 2017 and bargaining had terminated with the termination of the protected industrial action.

[18] Section 266 of the Act which sets out when the Commission must make an industrial action related workplace determination provides that:

"266 When the FWC must make an industrial action related workplace determination Industrial action related workplace determination

(a) a termination of industrial action instrument has been made in relation to a proposed enterprise agreement; and

(b) the post-industrial action negotiating period ends; and

(c) the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement;

the FWC must make a determination (an industrial action related workplace determination) as quickly as possible after the end of that period.

Note: The FWC must be constituted by a Full Bench to make an industrial action related workplace determination (see subsection 616(4)).

(2) A termination of industrial action instrument in relation to a proposed enterprise agreement is:

(a) an order under section 423 or 424 terminating protected industrial action for the agreement; or

(b) a declaration under section 431 terminating protected industrial action for the agreement.

(3) The post-industrial action negotiating period is the period that:

(a) starts on the day on which the termination of industrial action instrument is made; and

(ii) if the FWC extends that period under subsection (4) - 42 days after that day.

(4) The FWC must extend the period referred to in subparagraph (3)(b)(i) if:

(a) all of the bargaining representatives for the agreement jointly apply to the FWC for the extension within 21 days after the termination of industrial action instrument was made; and

(b) those bargaining representatives have not settled all of the matters that were at issue during bargaining for the agreement." (Underlining added)

[19] Sections 266(2)(c) and 266(4)(b) of the Act use the phrase "during bargaining for the agreement" either in the context of following the post-industrial action negotiating period or as one of the requirements for an extension of the post-industrial action negotiating period. When read in the entirety of s.266 of the Act, the phrase "during bargaining for the agreement" suggests that bargaining for an agreement concludes at the expiry of the post-industrial action negotiating period. In other words, the post-industrial action period provides an opportunity for bargaining representatives for a proposed agreement to reach agreement on some or all of the matters that were not settled at the time protected industrial action was terminated. While this would not preclude the parties continuing to have discussions regarding issues which were not settled at the expiry of the post-industrial action negotiating period, there was no evidence put before the Full Bench that such discussions had occurred in this case. This supports a finding that conduct following the conclusion of the post-industrial action negotiating period is not a relevant consideration in this case.

[20] Beyond that, we do not accept the CPSU's contention that its involvement in the Senate enquiry could be construed as an activity related to bargaining for an agreement with DIBP. The fact that the CPSU made a submission to the Senate enquiry regarding the DIBP does not in our view make the Senate enquiry and the CPSU's participation in the enquiry a relevant consideration in the context of s.275 of the Act.

[21] With particular regard to s.275(f) of the Act, we observe that paragraph 193 of the disputed material is the only element of the material which goes to the bargaining related conduct of the CPSU while the Senate enquiry was on foot, albeit that it refers to the CPSU's bargaining conduct in the broader Australian Public Service. While the paragraph traverses conduct after the end of the post-industrial action negotiating period it may nevertheless be of some relevance in the context of s.275 of the Act given the extended period involved in this matter progressing to hearing. It is for that reason that we are prepared to admit the paragraph.

[22] It of course remains open to the parties to make submissions as to what, if any, weight might be given to the conduct referred to in paragraph 193 of Mr Evans' witness statement.

[23] Taken together, the above analysis supports a finding that paragraphs 186 to 192 of Mr Evans' witness statement are not relevant and therefore should not be admitted.

[24] Given our view that paragraphs 186-192 are not relevant, we do not need to consider whether they are protected by Parliamentary privilege.

For all the above reasons, we will admit paragraph 193 of Mr Evans' witness statement but will not admit paragraphs 186-192 on the basis that they are not relevant.

Mr P. O'Grady QC with Mr S. Meehan of Counsel for the Commonwealth of Australia represented by the Department of Immigration and Border Protection.

Mr A. Slevin of Counsel for the Community and Public Sector Union.

Mr M. Bakhaazi for the Australian Institute of Marine and Power Engineers.

[1] [2017] FWCFB 4200

[5] [1988] FCA 24; (1988) 19 FCR 223

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