C2001/3199, Transcript of Proceedings [2001] AIRCTrans 3503 (12 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2001/3199

NATIONAL TERTIARY EDUCATION INDUSTRY
UNION

and

UNIVERSITY OF ADELAIDE

Application under section 170LW of the
Act for settlement of dispute re Fixed Term
Employment, Grievance Dispute Procedures
and Academic Freedom

SYDNEY

12.59 PM, WEDNESDAY, 12 SEPTEMBER 2001

Continued from 7.9.01

PN143

THE SENIOR DEPUTY PRESIDENT: Good afternoon, gentlemen. I understand that there is an alteration to appearances in this matter.

PN144

MR S. HOWELLS: Yes, Mr Senior Deputy President. Steven Howells, I am in Melbourne. I seek leave to appear as counsel on behalf of the NTEU, and I seek leave to appear with my learned friend, MS HUBBLE, who is also a member of the Victorian Bar.

PN145

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Howells. I take the view that specific leave is no longer required, because leave has been granted in other - you know - earlier in this proceeding, to other advocates.

PN146

MR HOWELLS: I am grateful for that, your Honour. I had made that assumption, but made the application in any case.

PN147

THE SENIOR DEPUTY PRESIDENT: It might be a wise approach in some quarters, Mr Howells.

PN148

MR HOWELLS: Yes. Mr Senior Deputy President, the - we have sought to call the matter on again, and we are most grateful to the Commission for allowing us to do it, and to do it by way of telephone directions at such short notice. I telephoned my learned friend, Mr Short, yesterday, and indicated to him the nature of the application that we seek to make. And the reason for seeking to call the matter on by way of directions, is to do no more than enable the Commission to decide whether it ought to consider our application before the commencement of hearings tomorrow, and we hope that we have not given any offence to the Commission in seeking to do it this way. But the purpose was to ensure that everybody knew well before the commencement of hearings, what it is that we seek to raise.

PN149

The Commission will recall that late last week, an application for an adjournment was made, and Mr Senior Deputy President, that application was made by my instructor, Mr Wetherill, and the principal basis for the application at that stage was that my availability was in doubt, and I didn't appear on that occasion, and wouldn't have appeared to make an application of that kind for all the obvious reasons. And we don't seek to traverse that at all. I hasten to add I had already been briefed in the matter, and remain so, and that was a difficulty, but of course there are other counsel, including my learned friend, Ms Hubble, who is available to appear tomorrow.

PN150

But the problem that has now arisen, is a somewhat different one, your Honour. It is this. As the Commission will be aware, the application that is presently before the Commission, concerns the operation of - or involves the operation of the disputes procedure, bringing a matter before - under an agreement - bringing the matter before the Commission. And an element of the matter that comes before the Commission is a disagreement between the University and Professor Moles, about his position, and the continuation of his position in the law school in the university. Now, a number of issues arise there, and they do include issues about whether or not the award and the agreement have been properly applied. They also include what the nature and terms of Professor Moles' appointment might be, and whether or not the university has any obligation in relation to that.

PN151

They are also concerned whether he had been fairly and properly treated and whether or not there ought to be some remedial action taken to remedy the grievances that he has. Now, that also of course raises matters about the operation of the agreement and about relations between the union and members on the one hand, and this particular university and universities more generally, on the other. But the - I suppose one of the concerns there is whether or not there may be issues that may be able to be sectored out one from the other, as between for example, more general dispute issues and the individual issues concerning Professor Moles.

PN152

That to some extent has become a little clearer because we have now received an outline from the university which makes clear that the university is intending - and it is an outline that we received during last week. I didn't get the opportunity to have a look at it until yesterday, but it does raise some jurisdictional matters, either directly, or depending on - and I don't wish to foreclose on any - or attempt to foreclose - or purport to foreclose on anything that Mr Short may say, but it does it seems to me, on my reading of it, raise - potentially raise some jurisdictional matters. And I think the - from a reading of the transcript of the earlier matter, it was apparent that your Honour raised the question as to whether or not any jurisdictional points would be taken, and suffice it to say I suppose, that in a matter raised in the way that this matter has raised, it is not surprising that jurisdictional questions may rear their heads.

PN153

In the circumstances, the union has decided that in order to deal with - to seek to deal expeditiously with what it contends is Professor Moles' entitlement, that an application should be made to the Federal Court, including an application for interim relief, because on one view of it, it might be expected that the university would be saying, well, his appointment comes to an end relatively shortly, and that gives rise of course to the question of whether or not there should be some interim relief sought, and whether that relief ought to be granted.

PN154

The application that is proposed to be made, and it is being prepared at the moment and will be issued very shortly, is an application seeking relief in relation to what are said to be breaches of the award and the agreement, and also relief relating - this relief will be sought in the accrued jurisdiction of the court, relief directed to the contract that he has, and whether or not the contract that he has with the university has been properly honoured. For example, it will be contended that he was given - that a promise was made of an appointment for a particular number of years and that there would be certain circumstances in which that appointment would be continued, but that it was implicit in that promise that the appointment would not be impeded in an inappropriate or improper way.

PN155

What will be contended is that there was a very substantial impediment of an improper kind put in his way throughout the course of his employment and appointment with the university, and consequential relief will be sought, if the Commission pleases. Now, in those circumstances what is submitted is that the Commission ought to adjourn this matter, and adjourn it simply because I suppose the intention is to report back to the Commission about the progress in the Federal Court. And then of course even if relief is granted in the Federal Court, there would be a question about outstanding issues, particularly issues of a more general industrial nature, your Honour, which might still need to be dealt with - indeed on my instructions, which would still need to be dealt with in the Commission, but that the first port of call is to try and sort out the position with Professor Moles and his contract, and the continuation of his appointment or otherwise.

PN156

For that reason, it is my respectful submission, Senior Deputy President, that the Commission ought to stay its hand in conducting the hearings tomorrow and the following day, until we have an opportunity to pursue the matter in the Federal Court. Now, I suppose on one view, well, people might say, well, you know, all you have to do is withdraw your application and if you want to renew it, you can renew it later on. Well, the difficulty with that thing, Deputy President, is really that that is not - that is a lot of toeing and froing, and the most efficient course in my submission, would be to simply adjourn the matter sine die, so that it can be re-examined in the appropriate time, by the Commission.

PN157

One of the - I suppose - a strong concern, actuating out of the application that is proposed to be made in the Court, is that the sorts of jurisdictional arguments that we envisage will be raised, may obviously be able to be raised in relation to the more general industrial matters, but those matters will - those jurisdictional impediments won't be there in the same form in the Federal Court. There will obviously be other arguments, and there will be no doubt, opposition, but it might be a more effective way of dealing with it, particularly given that if jurisdictional matters are to be raised starting tomorrow, there is the potential for those matters to take up a goodly part of the time tomorrow and the next day, and then for the matter to have to go off in any event until your Honour has further time.

PN158

And just reading the material, it seems to me unlikely that the matter could conclude in two days. The two days - we have received a folder of material - a lever arch folder of material from solicitors, Minter Ellison, containing several statements. The cross-examination of those people will take considerable time, that is even assuming that we get through the evidence of Professor Moles and the other witnesses that he proposes to call. I guess that ought to be another factor, because in the meantime, if the matter doesn't conclude in two days, and then we go off to the Federal Court in any event, we will have a sort of a - you know, we will have two lots of proceedings, one in the Commission, one in the Federal Court, and in my respectful submission that might not be the best way of dealing with it.

PN159

The third matter that we raise for your consideration, sir, is this. I have had a telephone conversation with two persons interested in the affairs of the university in South Australia, one of them an eminent QC in South Australia, who has indicated his intention to seek to pursue discussions with senior officers of the university, and he is hopeful that he may be able to regress resolution. I have indicated to him that we would be making the application for the adjournment today, and that if his efforts were able to be pursued as soon as possible, then that would be greatly appreciated. I am not able to say any more than that, because I simply don't know any more about that, than what it is that he has indicated to me, and what others have indicated about - - -

PN160

THE SENIOR DEPUTY PRESIDENT: Well, I can hardly take it into account.

PN161

MR HOWELLS: Well, I suppose - well - - -

PN162

THE SENIOR DEPUTY PRESIDENT: It is so ethereal.

PN163

MR HOWELLS: Well, your Honour, the person concerned is a Mr Borrick QC, who is in Adelaide, and he says that he is proposing to have conversations with the Vice Chancellor, and the Vice Chancellor's office. That he has Professor Moles' encouragement in that, and that he himself is involved in projects which Professor Moles has been involved in and has an interest in seeing those continued.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes, his name is mentioned in the material before the Commission.

PN165

MR HOWELLS: Yes. I simply add it, Mr Senior Deputy President, because it is yet another matter that may have the prospect of helping to resolve things, and I would urge your Honour not to turn your face from it. It is simply a matter that indicates that people are willing to have discussions, and that they ought not to be foreclosed on. That is the application we make, and that is the basis of it. And for those reasons, an adjournment is urged, if your Honour pleases.

PN166

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Howells. Mr Short.

PN167

MR SHORT: The application is opposed. Just to recap how we came to where we are, Senior Deputy President. When this matter first came before the Commission on 26 July, Ms Herrington for the NTEU made it clear, and I am referring to paragraph number 44 of the transcript, that the union at that stage was very much in two minds about where it would take the matter. And she said that it was possible the NTEU - well, she said that the NTEU would make a fairly quick decision about where in fact it wished to continue with this matter. And from there, there was a report back on 6 August and it would seem that the union had made up its mind about how it wished to proceed.

PN168

And at paragraph 119 the union advised the Commission that it had considered its position on this matter, and decided the preferred course of action was to set the matter down for arbitration in the Commission. So it made that considered decision, and there was reference also, if you will recall, to Dr Moles' contract being due to terminate on 17 November, and the desirability of resolving the matters prior to that date. Following that, there was discussion about suitable directions, and a hearing date that would suit the convenience of the parties. The parties were directed to file all their witness statements, and their outline of submissions, and as I understood it, the NTEU has filed all the witness statements it proposes to rely upon, being solely that of Dr Moles.

PN169

I note with some concern, that Mr Howells referred in his submissions today, to their being other witnesses proposed to be called by the NTEU. I can't see how - that is the first I have heard of that - and I don't see how that can fit with the directions which were made. One qualification to that, is - that I should out of fairness raise - is that the NTEU when serving its witness statements, advised that it reserved the right to call Professor Dettmold if the university didn't call him. The university subsequently advised that it had no objection to Professor Dettmold being called by the union. The NTEU advised it would file his witness statement by Monday of this week. Since that time, Ms Herrington has advised me that there were no further witness statements coming from the NTEU. So if there is something further, I certainly don't know about it. It hasn't made its way here, and it is contrary to what I have been told.

PN170

Now, last week of course the NTEU unsuccessfully sought an adjournment. That was not advanced for any of the reasons advanced today, but it now seeks another adjournment. It is not suggesting that there won't be Commission proceedings. It is not suggesting that it is abandoning anything, it is saying rather, that it wants to issue some new proceedings, see what happens, and then come back to the Commission to have a hearing. We see absolutely no merit in that at all. The first we heard of that course, was yesterday. We weren't required to express any view on it, we make it clear now that that is not an attractive position.

PN171

In summary: one, the union made a clear decision to proceed in the Commission, and the parties and the Commission have acted on that, and the university has made arrangements accordingly, and put a good deal of time and effort into this, and of course people have made their arrangements to comply with the hearing timetable. Secondly, Dr Moles' contract expires 17 November. It is desirable that these proceedings be resolved before that time. That is a matter that was canvassed on the last occasion. It remains the case. Thirdly, the industrial issues remain outstanding. It is clear from the statements which are before the - which have been filed in the matter - that significant tensions exist regarding Dr Moles' involvement in the law school, and those tensions will not be resolved by an adjournment.

PN172

It is in the interests of the university and the law school to resolve the matter expeditiously. It may well be - and I think it quite sound - to think that this matter will not finish on 13 and 14 September, but there is a clear need to use the time as expeditiously as practicable. For those reasons, the adjournment ought be refused, and the matter will proceed.

PN173

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Short.

PN174

MR HOWELLS: Your Honour, I wonder if I might be heard in reply.

PN175

THE SENIOR DEPUTY PRESIDENT: Oh, well, yes. You are the moving party. I will hear you. In fact, I had a question - well, more a statement to make before you do reply. If you are successful, it must be understood that the Commission and I say for more abundant caution as currently constituted, but I don't think it is necessary. I think the Commission may well be quite unable to deal with the matter before 17 November, at least a completion. And if an adjournment is given, on the basis of what has been put today, against the objections of Mr Short, which I haven't considered as yet, that must be understood.

PN176

MR SHORT: And sorry, there is one matter, Senior Deputy President, if I may, that I omitted to mention. In relation to these Federal Court proceedings, my experience of the Federal Court in relation to trials, is that it is a much slower process than the Commission. These proceedings haven't yet been issued, much less being finalised. I can't conceive a Federal Court proceedings being resolved before the Commission could resolve them, and we may be looking at a year or so, who knows, before there is any final resolution, of these yet to be issued Federal Court proceedings.

PN177

THE SENIOR DEPUTY PRESIDENT: Yes.

PN178

MR SHORT: Again, that is a matter that has no attraction at all.

PN179

THE SENIOR DEPUTY PRESIDENT: Very well. What do you say, Mr Howells?

PN180

MR HOWELLS: Your Honour, we are mindful of what your Honour has just said about the Commission's availability as presently constituted, and we have to bear the responsibility for that, and I certainly made that clear to the NTEU when I spoke with them about this matter yesterday, that that would be a matter to be taken into account. I guess in a way, that might occur any way even if the Commission as presently constituted, were to proceed with the matter, in the sense that your availability, sir, and the length of the volume of material, and the length of time that might be taken with cross-examination and jurisdictional arguments, might put us in difficulty with that in any event.

PN181

And that would be - if it were to occur in that way, it would probably be something that would prompt an application to the Federal Court anyway. So far as the way the Federal Court handles it is concerned, can I say this. The Commission has much broader scope in its capacity to deal with industrial disputes than does the Federal Court. There can be no doubt about that, and it has a whole range of ways of dealing with the various collateral concerns, that the court can't deal with. What the court can deal with it of course, is concerns about breaches of award and agreement, and also the contractual questions. I beg to differ, and I would urge your Honour not to be persuaded by what my learned friend says about the court not being able to deal with matters in under a year. I think that is simply not the reality. The reality is that applications for interim relief are dealt with by the court on an expeditious basis all the time, and only the last few months I was in Adelaide dealing with a matter before the Federal Court, where not only was an interim application dealt with in the matter of two or three days, but a final hearing in a matter was ordered to be conducted expeditiously, and it happened also within a matter of a month.

PN182

THE SENIOR DEPUTY PRESIDENT: Well, Justice North seems to show how it can be done, I will admit that.

PN183

MR HOWELLS: Yes. There might be varying views about the wisdom of that, your Honour. But yes, I suppose that is right. And even just down here in ordinary old local issue land where I am, it sometimes can be done too.

PN184

THE SENIOR DEPUTY PRESIDENT: I am aware of that, Mr Howells.

PN185

MR HOWELLS: I am sorry, your Honour?

PN186

THE SENIOR DEPUTY PRESIDENT: I am aware of that.

PN187

MR HOWELLS: Yes. And it - I think the other thing - could I add, your Honour, is that - so far as other witnesses are concerned, certainly it is our intention to call Professor Dettmold. I have now spoken with him myself, and Ms Hubble will also be speaking with him, and there is the possibility of an application being made to call another witness. Now, the difficulty with that of course, is that we need - no doubt because of the directions that you have given - we would have to seek leave to do that, and it may be refused. But natural justice of course, which the Commission dispenses sometimes with the liberality that alarms others, but because of the nature of the Tribunal, it does dispense and does properly dispense, would at least enable us to make an application for leave to be considered by you, sir, as to whether we could call another witness.

PN188

But I guess what I am saying, is that even with that, there are a large number of witnesses proposed to be called by the university. Can I say also, that so far as Ms Harrington's instructions to the Commission - sorry, submissions to the Commission are concerned in July and August, no doubt about that. I have only been briefed in the matter relatively recently, and I took a different view, and the advice I gave followed - was followed by a decision by the NTEU to pursue the Federal Court avenue, because on one view of it, your Honour, an application - a successful application in respect of one matter in the court, might be dispositive [sic] of the whole matter. It might also prompt negotiations which would resolve the whole of the dispute. I don't say that it will, but it has that potential and that is one of the ways in which the matter can be pursued, particularly given that despite the earlier possibility that the university wouldn't raise jurisdictional matters, it is now clear from paragraphs 30 and 34 of its outline, that it intends to do that. And that will have the propensity to forestall the Commission proceedings. Those are the matters in reply, your Honour.

PN189

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Howells. On balance, I am moved to grant the application not an adjournment sine die, but an adjournment to a further report back, when I would expect to be informed of the detail of the application that has been made to the Federal Court, with an outline of expected time-lines that are involved in it. I have come to that conclusion as I say, on balance. There are a number of issues that have been put forward by both sides, which go in support of their position, but I am quite conscious of the fact that for some form of resolution to be arrived at by 17 November, the chances are that the Federal Court is better armed than the Commission to deal with that situation. That is just one of the considerations, it is by no means an overweening one. Therefore I will vacate the hearing dates set down for tomorrow and Friday, and will appoint Friday, 28 September for a report back by telephone at 10 am, eastern standard time.

PN190

MR SHORT: Senior Deputy President, I wonder if I could invite that we do it earlier. For my part, having been involved throughout, I will be heading overseas that week-end.

PN191

THE SENIOR DEPUTY PRESIDENT: You mean a different day though, don't you, Mr Short?

PN192

MR SHORT: Yes, yes. I will be heading overseas that week-end, until returning to Australia - - -

PN193

THE SENIOR DEPUTY PRESIDENT: What about the 26th?

PN194

MR SHORT: - - - on 15 October, and I have a grave concern if it turns out that this matter is to proceed in the Commission, as to what that is going to do in relation to the time frame.

PN195

THE SENIOR DEPUTY PRESIDENT: Yes.

PN196

MR SHORT: You will see we have I think, some 10 or 11 witnesses that we will have to re-arrange.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes. No, no, no. You need - pursue me no more - I will adjust that to 26 September? Does that give you enough time to get your documents filed in the court, Mr Howells?

PN198

MR HOWELLS: Oh, indeed. Your Honour, I am rather hopeful that we will have them done in the next few days, and I was going to suggest that obviously they will be served on the university, and certainly on the assumption that Mr Short accepts service on behalf of the university, they will obviously not be served on him - but on his firm. But I was going to suggest that we might write to your office indicating when that is done, so that you have got forewarning of it before the 26th.

PN199

THE SENIOR DEPUTY PRESIDENT: Oh, yes. That would be a desirable course. Well, Mr Short, is the 26th all right for you?

PN200

MR SHORT: Yes.

PN201

THE SENIOR DEPUTY PRESIDENT: At - let me think - well, is 9.15 eastern standard time too early, Mr Short?

PN202

MR SHORT: 8.45 our time?

PN203

THE SENIOR DEPUTY PRESIDENT: Yes.

PN204

MR SHORT: No.

PN205

THE SENIOR DEPUTY PRESIDENT: All right, then. I will adjourn the - - -

PN206

MR SHORT: Just before - Senior Deputy President - - -

PN207

THE SENIOR DEPUTY PRESIDENT: Yes.

PN208

MR SHORT: - - - if we could, there has been matters raised about further witness statements.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes, there has. We should sort that out now.

PN210

MR SHORT: Which again, is the first that we have heard of that. And we are not told why it is that the previous directions and advice is wrong, or haven't been complied with, we are just told that there is more to come, but we don't know what it is, or when we will get it. That I regard, is entirely unsatisfactory.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say to that, Mr Howells?

PN212

MR HOWELLS: Your Honour, we can indicate well before the 26 September - we could probably indicate I think by 20 September, who it is that might be the further - who it is would be the further witnesses in respect we would seek leave to have them called.

PN213

MR SHORT: Well, I am not worried about the names, Senior Deputy President. I want the witness statements.

PN214

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN215

MR SHORT: Which I am meant to have had some time ago.

PN216

THE SENIOR DEPUTY PRESIDENT: That is right. That would be my request too, Mr Howells.

PN217

MR HOWELLS: All right. Well, what we will do is provide an outline of their evidence.

PN218

MR SHORT: Well, it is the witness statement.

PN219

MR HOWELLS: Yes. I don't think we can undertake to do that, Senior Deputy President. I can indicate that we will provide a detailed outline of who it is that we will seek leave to call. We may not get leave, and asking somebody to go on - - -

PN220

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I will accept that. If it is a detailed outline for the basis of seeking leave, that is the principle statement that I make, knowing that if leave is granted, full statements will be supplied within a reasonable time.

PN221

MR HOWELLS: Yes, within a very short time, sir.

PN222

THE SENIOR DEPUTY PRESIDENT: Then I would expect those detailed outlines to be available to Mr Short in good time for him to be able to deal with them on 26th.

PN223

MR HOWELLS: Very good.

PN224

THE SENIOR DEPUTY PRESIDENT: That completes everything, does it not?

PN225

MR HOWELLS: Yes, sir. And we are much obliged to the Commission.

PN226

THE SENIOR DEPUTY PRESIDENT: Nothing else, Mr Short?

PN227

MR SHORT: No.

PN228

THE SENIOR DEPUTY PRESIDENT: Very well, I adjourn these proceedings until Wednesday, 26 September at 9.15 am eastern standard time, for the purpose of a report back along the lines that have been discussed, and on the transcript today. Thank you all for your assistance. I adjourn accordingly.

ADJOURNED UNTIL WEDNESDAY, 26 SEPTEMBER 2001 [1.30pm]