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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DUNCAN
C No 24148 of 2000
APPLICATION FOR CERTIFICATION OF AGREEMENT
APPLICATION UNDER SECTION 170LJ OF THE ACT
BY THE SOUTHERN CROSS UNIVERSITY AND
CPSU FOR CERTIFICATION OF THE SOUTHERN
CROSS UNIVERSITY ENTERPRISE BARGAINING
AGREEMENT 2000 - FOR CERTIFICATION
SYDNEY
2.14 PM, TUESDAY, 20 MARCH 2001
Hearing Continuing
PN1
THE SENIOR DEPUTY PRESIDENT: There doesn't appear to be any change in appearances.
PN2
MS DUFFY: I should probably indicate, your Honour, that I will appear on my own today because Mr Dolahenty has become a witness.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, of course.
PN4
MR BROWN: I should also indicate that Ms Raper will be here shortly, she is on another matter.
PN5
THE SENIOR DEPUTY PRESIDENT: I presume we are still are at the point of taking evidence and just trying to keep it in order, did you intend to call any other evidence in chief, Mr Turner?
PN6
MR TURNER: No your Honour.
PN7
THE SENIOR DEPUTY PRESIDENT: You don't, Mr Turner.
PN8
MR BROWN: We'll be calling no evidence, your Honour.
PN9
THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Duffy.
PN10
MS DUFFY: Your Honour, just a couple of preliminary matters. You would be aware that there was a notice to produce issued in this matter. I have provided a couple of documents to Mr Brown pursuant to that notice. I am happy to provide those to you. I don't think anything turns on it and subject to what Mr Brown may have to say, I think it's probably really a moot point at this stage, but we have complied with that notice.
PN11
THE SENIOR DEPUTY PRESIDENT: Yes, you have.
PN12
MR BROWN: I should call on it, I call on the notice to produce.
PN13
THE SENIOR DEPUTY PRESIDENT: Yes, very well. I note that produced to the Commission in accordance with the notice to produce is an e-mail of the 18 December 2000 from Mr Dolahenty to Mr McAlpine and an e-mail from Mr McAlpine of 22 December to R. Graham.
PN14
Ms DUFFY: Actually it's come from Mr Gannon, really, your Honour, it is just I think the e-mail process is a bit indirect. It is actually from Mr Gannon to Mr McAlpine and Mr Murphy at the NTEU national office. It is just the way its been printed off, I think.
PN15
THE SENIOR DEPUTY PRESIDENT: I see. Very well, there are two documents produced and that is noted. Ms Duffy?
PN16
Ms DUFFY: Your Honour, we propose to call our witnesses immediately, I don't think I probably need to do any more by way of opening.
PN17
THE SENIOR DEPUTY PRESIDENT: Well, there was a reasonable opening, I suggest, on the other occasion from both of you.
PN18
Ms DUFFY: That's right, your Honour, I didn't propose to go through any of those matters again. I should just indicate that we have had some discussions and certainly it was the parties' view that was really a two stage process, I think, in terms of firstly addressing the issues as to whether there had been an agreement made between the parties or more specifically the NTEU and then secondly, if so, whether that agreement met the requirements of section 170LT in that it had been genuinely approved by a valid majority. Mr Dolahenty's evidence does not go to that second issue at all but Mr Gannon's does and that there are some statements in his evidence that go to that second issue, so it's really just to draw your attention to that, your Honour, and I've also raised that with Mr Brown this morning. I propose to just lead all of our evidence now.
PN19
THE SENIOR DEPUTY PRESIDENT: Yes, that's right, but is the evidence you are going to bring the evidence in relation to both issues?
PN20
Ms DUFFY: Yes, your Honour.
PN21
THE SENIOR DEPUTY PRESIDENT: Very well.
PN22
Ms DUFFY: That's really what I'm trying to explain.
PN23
THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Duffy, go ahead.
PN24
PN25
MS DUFFY: Your Honour, you should have a copy of the witness statement.
PN26
THE SENIOR DEPUTY PRESIDENT: I have a copy of the witness statement.
PN27
MS DUFFY: I might just ask that the witness be given a copy of that.
PN28
Mr Dolahenty, if you could just repeat your name and address for the record please?---My name is Mark Andrew Thomas Patrick Dolahenty and I'm employed at 608 Harris Street, Ultimo.
PN29
In the statement that you have before you, is that your statement that has been prepared for today's proceedings?---That's correct.
PN30
Your Honour, I think Mr Brown - - -
PN31
MR BROWN: Your Honour, before my friend seeks to tender that, could I make two short objections which I believe can be adequately dealt with by some further questions in this gentleman's evidence-in-chief. Should we have this discussion in the presence of the witness, your Honour? It won't take long.
PN32
THE SENIOR DEPUTY PRESIDENT: Well, it might be simpler, Mr Dolahenty, if you would leave temporarily.
THE WITNESS WITHDREW [10.15 am]
PN33
Mr BROWN: If I could take you to paragraph 3 of the witness statement of Mark Dolahenty, which currently reads:
PN34
Management were always aware that any agreement would require the final approval from the NTEU office.
PN35
We would object to that completely. That question can obviously be rephrased in a different way and in relation to the second sentence I remember making this clear on a number of occasions during the course of the bargaining but I think the witness should be required to actually say what exactly was said.
PN36
THE SENIOR DEPUTY PRESIDENT: Well, as to the first, of course, you are quite right, but as to the second that can easily be cleared up in examination, either in chief or in cross examination.
PN37
Mr BROWN: Thank you. Then the second objection goes to paragraph 4, the third sentence, which reads:
PN38
I recall that Chris Game made reference to the NTEU national office, approval being required several times in the course of the meeting and answering questions.
PN39
Well, again, I think that that is a matter which should be dealt with in the witness's evidence in chief. We would object to it being read in its current form.
PN40
THE SENIOR DEPUTY PRESIDENT: Yes, well, I note the earlier objection. The witness was present at the meeting, I think he says that in the beginning of question 4.
PN41
MR BROWN: Yes, he was present at the meeting and he says, "I recall that Chris Game made reference" - I think in the circumstances and given that Ms Game is not to be called by the union that the witness should be required to indicate precisely what was said.
PN42
THE SENIOR DEPUTY PRESIDENT: Yes, I have no objection to that in cross-examination, by all means.
PN43
MR BROWN: They're the only objections.
PN44
THE SENIOR DEPUTY PRESIDENT: Very well. You do tender the document Ms Duffy, So I'll mark this statement of Mr Mark Dolahenty, appeared for these proceedings, exhibit NTEU1.
PN45
THE SENIOR DEPUTY PRESIDENT: Please ask Mr Dolahenty to come back.
<MARK ANDREW THOMAS PATRICK DOLAHENTY, recalled [10.17am]
PN46
MS DUFFY: I take you to paragraph 3 of your statement. Towards the end of that statement you give some observations about what you believed management might have thought about whether the agreement would require final approval from NTEU national office. Could you give some indication to the Commission of how you became aware of that, how you made that clear to the university?---After I took over as the industrial officer with responsibility for Southern Cross, I attended perhaps 15 or 20 bargaining sessions and I recall on perhaps at least half a dozen or more occasions indicating to management that what we were doing would require the final imprimatur of the national office.
PN47
Who did you say that to?---I would have said it to Professor Klich, Mr Marshall, the Executive Director of Administration at the university who was on the bargaining team for most of the time, but later withdrew from it, Professor Delves who was also on the management side of the bargaining team and later withdrew, and it was said generally in bargaining meetings to the entire management team.
PN48
If you could go to the end of paragraph 4 of your statement in relation to the meeting on 23 November. At the end of that paragraph you state that you recall that Chris Game made reference to NTEU national office approval being required in the course of answering questions during that meeting. Can you recall more precisely exactly what was said by Ms Game?---There were a couple of clauses in the proposed document, in particular a couple of our members from the faculty of the school of law asked questions of Ms Game and I distinctly recall her saying, yes, that matter will be checked with the NTEU national office.
PN49
Can you remember what those matters were about?---I think one of them may well have related to redundancy provisions, I can't recall beyond that, but I distinctly remember her saying, we'll check that with the NTEU national office, of course.
PN50
Go to paragraph 6 of your statement, where you refer to the e-mail attached and marked A?---That's right.
PN51
Could I get you to go right to the end of that e-mail. The very last sentence there, where you say "it may be possible that we could come to some arrangement on an exchange of letters", what did you mean by that?---I was specifically referring there to a matter that had been before the Federal Court after the university had stopped staff members being able to make payments of their union dues through the payroll system. There was a case in the Federal Court in which the NTEU sought relief from that and we made an out of court settlement that was going to involve any new agreement having a clause in it that allowed for payroll deductions of union dues and also for some facilities for the union. In the course of discussions, we had missed those things going into what was proposed to be an agreement and I made reference on a couple of occasions to Professor Klich that maybe we can fix this up on an exchange of letters on those matters, and also one of the other things we missed was a gender equity clause, it was proposed that that might be able to be addressed on an exchange of letters as well.
PN52
Was there any suggestion that any of the other matters that are detailed in your e-mail would be addressed in that manner?---Not on my part.
PN53
I have nothing further.
PN54
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Brown? I take it you've got nothing, Mr Turner?
PN55
PN56
MR BROWN: If the witness can be shown this document?
PN57
Do you recognise that document?---Yes, I think I'm the author of it.
PN58
That being an e-mail to Professor Klich, dated 14 November 2000, from you?---That's correct, yes.
PN59
I seek to tender that document.
PN60
THE SENIOR DEPUTY PRESIDENT: Any objection, Ms Duffy?
PN61
MS DUFFY: I haven't really had a chance to go through it, your Honour, but I don't think so given that the witness has recognised it.
PN62
THE SENIOR DEPUTY PRESIDENT: Yes, exactly. I mark the document headed Lisa Roberts 15/11/2000 9.39am, exhibit SCU3.
PN63
MR BROWN: Have you had an opportunity to refresh your memory with the document?---Yes, I have.
PN64
You described yourself a moment ago as the Industrial Officer for the Southern Cross University, did you not?---Yes, NTEU Industrial Officer with responsibility for Southern Cross University amongst others.
PN65
Thank you. When I say point, I'm working out how far down the page. At about point 3 on this exhibit Where it says, "I agree"?---Yes.
PN66
Could you explain who the "I" is there?---That's me as an individual.
PN67
As an individual? In what capacity as an individual?---In the capacity of the New South Wales Division Industrial Officer with responsibility for Southern Cross.
PN68
Do I assume for that with the authority to bind the union?---Absolutely not. The only people who can bind the union in enterprise bargaining negotiations are the national council of the union, which meets once a year and sets the policy, or the general secretary or his or her nominee who signs the documents.
PN69
I put it to you that in this correspondence that the word "I" and "the union" really mean the same thing?---That's not correct.
PN70
If I could take you to the last paragraph which reads:
PN71
I am hopeful that we can reach agreement on all the outstanding matters tomorrow.
PN72
?---Yes.
PN73
Do I take it that they were all the matters that related to the proposed certified agreement?---Yes. We were hopeful as we were at every occasion to be able to satisfy what needed to be resolved between us.
PN74
That is all the outstanding matters?---Yes.
PN75
Of course, you are of the view that all of the outstanding matters would in fact be resolved at a meeting the next day, is that correct?---We were hopeful of it, yes.
PN76
Subject to no further caveats?---Always subject to the caveat that any proposed agreement needed to be ratified by the union's national office.
PN77
Yes and I heard you before on that, but you would agree with me that there's nothing in this particular correspondence that makes that caveat clear, does it?---Nothing in this particular e-mail; however, operating within a context as we were, I needed to check things with the NTEU National Office and Professor Klich needed to check things with the Vice Chancellor, they were understood.
PN78
But you agree with me there's nothing in this document?---Nothing specific, no.
PN79
The statement of Professor Klich, if a copy of that can be made available to the witness and in particular annexure C to that affidavit?
PN80
Do you have a copy of that statement?---I'm just finding annexure C. I have annexure C.
PN81
If I could take you to the first page of it?---Yes.
PN82
It purports to be the minutes of a meeting of the joint unions and management, EB meeting on 15 November. Is that correct?---That's what it says at the top of the document, yes.
PN83
It reports that you were present?---Yes.
PN84
Dr Paul Gannon was present?---That's correct.
PN85
That is the meeting which is referred to in the last sentence of your e-mail correspondence of 14 November 2000, is it not?---Yes.
PN86
This was the meeting where we'll reach agreement on all of the outstanding matters tomorrow?---Mm. May I just make one thing perfectly clear? Although this document says it's the minutes, at none of these meetings were the minutes of the previous meeting ratified. The documents simply appeared from management and called itself the minutes of the previous meeting but they were never ratified at subsequent meetings.
PN87
It's true, isn't it, that you were provided with a copy of these minutes?---That's correct.
PN88
It's true, isn't it, that you've never cavilled with the contents of these minutes?---No, that's not necessarily correct.
PN89
Well, can you help me out as to what part of these minutes are incorrect?---This particular document here?
PN90
Well, I might break the question up. Who have you raised the issue of any inaccuracies in these minutes, with, with the University?---With - after the meeting of the 15th?
PN91
Correct?---No one that I can recall but again I make the statement that they were never officially ratified. We were in a very dynamic phase of trying to make an enterprise agreement between the two unions and the university and those particular matters often got caught up in the hope of making a rapid agreement.
PN92
So you've never raised with anyone from the university or anyone representing the university the accuracy or otherwise of these minutes?---No.
PN93
Thank you. Can I take you to - it's probably best if I use the number which is in the bottom right hand corner of the statement, I think it's got 25 there and I'm reading from point 9 on the page?---Yes.
PN94
We are agreed:
PN95
It was agreed by all present that the agreement was now finalised and that the procedures discussed and agreed earlier would now be implemented to ensure the new proposed agreement would be put to ballot and that hopefully benefits would flow through to staff by Christmas.
PN96
You've read that?---Yes.
PN97
Was that your understanding of what was said at the meeting?---Subject to the requirement to pass it through the union's national office, yes.
PN98
Now could you point to any part of the minutes which expresses that caveat?---There's nothing in the minutes, that was the subject of the motion at the combined union meetings several days later.
PN99
No, it's a different question. The minutes of this meeting says:
PN100
It was agreed by all present that the agreement was now finalised and that the procedures discussed and agreed earlier would now be implemented to ensure that the new proposed agreement would be put to the ballot and that hopefully benefits would flow through to staff by Christmas.
PN101
?---Yes.
PN102
That was said. You've answered that, "Yes"?---No, that's not what I said. I said, yes, that's what's written there, yes.
PN103
But you don't take issue with it?---I don't take issue with the fact that it's written there, I take issue with the fact that that implies that the NTEU national office didn't have the final word on the acceptability or otherwise of the agreement.
PN104
Putting aside implications for one moment?---Yes.
PN105
Do you say that someone at that meeting said words to that affect and that they're not in these minutes?---Yes.
PN106
It would have been myself or Doctor Gannon or Ms Game.
PN107
Let's just take yourself for one moment. You would tell this court that you said what?---I would tell this court that I made it perfectly clear that subject to the National Office ratifying the agreement, we had an agreement.
PN108
You would agree that that is a fairly important point isn't it?---Absolutely.
PN109
It's a critical caveat?---Absolutely, yes.
PN110
It's not in the minutes?---No,but then neither in the minutes does it say that Professor Klich had to go back in and get the imprimatur from the Vice Chancellor.
PN111
We'll just deal with one question at a time. It's not in the minutes?---That's right.
PN112
You never took issue with the fact that it was not in the minutes?---That's correct.
PN113
Where it refers to procedures discussed earlier and agreed, would you agree with me that they were the procedures as to how the ballot would be conducted?---Part of them were, the agreement as to when the ballot would go ahead, how we might ensure that people got the pay rises flowing from it, those things that were necessary to get final agreement going to the national office getting the ballot out as quickly as possible, timing of meetings.
PN114
You would agree with me and if you agreed at point 8 on page 24 and the first half of page 25 - I might give you an opportunity to look at those first of all?---Yes.
PN115
You would agree with me that they were quite prescriptive, weren't they?---They are detailed certainly.
PN116
Quite definite?---Detailed yes.
PN117
I'll move on from that document. Could I take you to another annexure to Professor Klich's affidavit, if I could take you to annexure D?---Yes.
PN118
I assume that in your capacity as the industrial officer for the union, responsible for the Southern Cross University that Mr
PN119
Gannon would on send to you any important messages to staff in relation to this important issue of the certified agreement?---On most occasions yes.
PN120
If I can take you to annexure D to Professor Klich's affidavit. Have you seen that document before?---Yes I believe I have.
PN121
Do you recall when you would have first seen that document?---No, I can't. I imagine though it would have been either that day, no, it's at twenty to five, I imagine it probably would have been the next day.
PN122
You would agree with me that it was effectively co-signed to the effect that one can do that with electronic commerce by the
PN123
Pro-Vice Chancellor, Paul Gannon, President of the NTEU, Alison Watson Chair of the CPSU, Robyn Anderson NTEU, Marnya Flanagan, CPSU, and Phyllis Waters, the Director of Human Resources?---Yes, they are the six people whose names of the people that appear there.
PN124
You would agree with me that that is quite an emphatic statement that a new proposed enterprise agreement has been finalised today?---That's what it says.
PN125
You would agree with me that there is absolutely no caveat at all in that announcement?---No, that's right.
PN126
No mention of head office approval?---No.
PN127
No mention of the national office?---I believe I can read it as well as you and they are not mentioned there.
PN128
I think there is no mention, thank you. If I can take you to annexure E to Professor Klich's affidavit, I think your evidence was that you were generally provided with relevant information?---Generally yes.
PN129
Is that another e-mail that you would have received on or about 17 November directly or indirectly?---I doubt I would have received it on the 17th since that's nearly twenty five to six on a Friday afternoon. I can't say specifically that I have ever seen this e-mail.
PN130
Not at all?---I can't recall seeing it.
PN131
Do I understand that on 23 November 2000 you attended what's been referred to as a mass meeting at Lismore campus?---Without the benefit of my diary I can't be certain of the date but if I could look at my diary I could confirm that or otherwise.
PN132
Maybe I could make it easier for you and take you to your statement where you say at paragraph 4, "I attended the meeting of staff held 23 November at the Lismore campus of SCU"?---Yes, I agree.
PN133
Can you explain to the Commission who attended that meeting from your knowledge?---From my knowledge on the platform were Professor Klich, Mrs Waters, myself, Ms Game, Ms Watson I believe, Mr Turner and there were perhaps 90 or 100 staff.
PN134
In what capacity did you attend?---As the Industrial Officer with responsibility for Southern Cross.
PN135
Can I take you to paragraph 15 of the Professor's statement which reads, "On 23 November 2000 I attended the meeting at Lismore". You would agree with me it is the same meeting?---Yes.
PN136
"This meeting was attended by approximately 120 staff, Mr Dolahenty attended on behalf of the NTEU and endorsed the agreement recommending its approval." That is correct?---I don't recall saying I endorsed the agreement but I do recall saying this is something which the negotiating parties had reached.
PN137
Do you recall saying that we had not reached agreement?---No.
PN138
Reading on from paragraph 15, Professor Klich said words to the following effect, "All major issues have been resolved to the satisfaction of all of the negotiating parties, in other words this agreement comes to you with the wholehearted endorsement of all the negotiating partners". Do you recall the Professor saying words to that effect?---No, I don't.
PN139
But you had the opportunity to look at this statement prior to producing your statement which is before the court today?---That's correct.
PN140
So you take issue with that, do you?---No I don't take issue with it, I don't recall Professor Klich saying those words or words to that effect.
PN141
Okay, reading on paragraph 16, Mr Dolahenty answered specific questions from the audience, that's correct?---Yes.
PN142
As did Professor Klich?---Yes.
PN143
The staff information meetings were attended by management and all union representatives, all of whom spoke in favour of the proposed new agreement, is that correct?---Well, it wasn't attended by all union representatives, Doctor Gannon was at a funeral that day.
PN144
That is correct, but all of those present spoke in favour of the proposed new agreement?---All of us answered the questions on the specific points and in most cases as I recall we answered them to the satisfaction of the members.
PN145
I understand that you did not attend the meeting on 27 November in Coffs Harbour?---That's correct.
PN146
Mr Armstrong attended on behalf of the NTEU?---Mr Armstrong is our Workplace Delegate in Coffs Harbour. He would hardly have been representing the NTEU.
PN147
To the best of your knowledge or belief did he speak for and on behalf of the NTEU?---I have absolutely no knowledge of whether he spoke or not.
PN148
Are you aware of any issues arising out of Mr Armstrong's attendance at that meeting which would raise any concerns as to the consent or otherwise to that agreement?---I received no report from that meeting.
PN149
Thank you. If I can take you to annexure A of your own statement, just help me out, what is your understanding of the national office of the union?---The national office of the union are the three major officials and the industrial staff and the ancillary staff in Clarendon Street, South Melbourne.
PN150
Do they meet as some form of board or a group of directors or is some sort of structure?---No, it's a union. There are three elected officials, a group of appointed staff who all operate in accordance with the policy of the union whose supreme policy making body is the national council which meets once a year.
PN151
Annexure A to your statement dated 29 November 2000 is quite prescriptive, is it not?---I'm not sure I understand what you mean.
PN152
It goes into some detail?---It certainly does.
PN153
When did you come to the conclusions which are contained in this particular letter?---After my discussions with Mr Ted Murphy the union's assistant national secretary.
PN154
Until you had this conversation with Mr Murphy, as far as you were concerned and again, your earlier evidence is subject to head office approval, you had no concerns with the agreement?---That's right.
PN155
It must have been a very long conversation, was it?---It was. It went for, as I recall, about an hour or an hour and a half.
PN156
Obviously no notes were taken of the meeting?---No. I scribbled some things on the proposed agreement but reduced them to this form here.
PN157
And Mr Murphy has never corresponded with you on this issue, has he?---It's not our usual practice. Normally it happens over telephone calls.
PN158
All of the matters contained in annexure A are matters that are raised out of your conversation with Mr Murphy?---That is correct.
PN159
They came as a bit of a shock to you, didn't they?---A shock, no. We are used in the NTEU to Mr Murphy raising items about matters that may or may not adequately reflect the union's national policy.
PN160
Shocked as to their content or shocked as to their suddenness or lateness?---No. It was quite a normal way for the union to go about its business.
PN161
Can you help me out on why you used the word "shocked"?---When did I say shocked?
PN162
A moment ago. No, I think actually - we don't have the benefit of transcript and I'll certainly be corrected if I'm wrong. I think in your answer you said. I apologise, I do retract that, I used the word shocked, we don't have the benefit of transcript so I can't have the word back. I think I asked you, were you shocked and you said yes?---I don't think I said that.
PN163
I'll put it differently to you. Were you shocked when you had the conversation with Mr Murphy?---No.
PN164
You have just been negotiating an agreement for how long?---Myself, 12 months. The union, over two years.
PN165
Public documents had gone out showing support for the agreement?---Public documents had gone out indicating that we had reached what we hoped would be a final stage.
PN166
No, I think you will find that public documents had gone out to say that you had reached agreement?---Not documents of which I was the author.
PN167
No, but documents on behalf of the union?---No. Documents had gone out signed by Dr Gannon.
PN168
Let's have another look at annexure D to Professor Klich's statement. You have acquainted yourself with that document?---Just trying to find it; you're referring to that e-mail, yes?
PN169
Yes. How would you characterise that then?---It is a document signed by six people saying that the content had been finalised today.
PN170
It is a public document saying effectively that agreement had been reached?---It's a document that went to all members of the university staff.
PN171
I'll put it again to you. It is a document amongst others sent on behalf of the union?---Sent on behalf of the branch of the union, yes.
PN172
Indicating that agreement had been reached?---From the branch's point of view, yes.
PN173
From the branch's point of view. You had a telephone call I assume with Mr Murphy?---That is correct.
PN174
On either 28 or 29 - when do you say you had the call again?---It was on the 27th.
PN175
And you tell this Commission that you were not shocked?---No, I wasn't shocked.
PN176
Just another day in the office?---Just another day in the office.
PN177
What did you mean by use of the words "easy to rectify" at the time that you wrote it?---That we thought that some of them were things that had simply been missed out in the drafting. The lengthy process of the negotiation of the document had involved in its very beginning a number of working parties who reached agreement on a number of things and, as we got towards the end, some of the transfer of those agreements into the document appeared to have been missed out.
PN178
The letter makes no reference to calling off the ballot, does it?---The letter that you're referring to?
PN179
I will rephrase that, the e-mail of 29 November, annexure A to your statement, makes no reference to calling off the ballot, does it?---No, because I had made that clear to Mrs Waters in our phone call. That was in fact I think the second thing I said.
PN180
You would agree with me it makes no reference to calling off the ballot?---No because I made that very clear to Mrs Waters over the telephone.
PN181
The answer is no. How did you alert members of the university to your concerns as expressed in annexure A of your statement?---I spoke to Dr Gannon at 6.30 that evening and he would have passed that down through the membership.
PN182
You assume that he passed it down through the membership but you can't say that - - -?---I can't say it for certain, no.
PN183
Thank you. Taking you to the conversation with Ms Waters; first of all I put it to you that that conversation occurred on 28 November not 27 November?---No, my recollection was it occurred the afternoon before I rang Dr Gannon.
PN184
I put it to you that in the context of that conversation, you said words to the effect that you had a problem with the national office?---I don't recall saying that.
PN185
If I could take you to some correspondence between Mr Murphy and Mr Marshall over 19 December, you'll find it is annexure Q to the statement of Professor Klich, the second last one?---Yes, I have it.
PN186
You have read it?---Yes.
PN187
You would have been aware of the existence of that correspondence in or around 19 December 2000?---Yes.
PN188
I put it to you that that was the first occasion on which the union indicated to my client that it did not consent to the agreement?---That's not true. I had said that in a conversation with Ms Waters.
PN189
And which conversation was this?---That is the conversation on the 27th.
PN190
Let us get back to that conversation. You say you said to her- - -?---I said to her words to the effect of, the national office doesn't consent to the agreement and we need to stop the ballot.
PN191
MR BROWN: I'll just get this right. You had a conversation with Ms Waters, you say on the 27th?---That's right.
PN192
Then am I right in understanding that Mr Gannon subsequently sent an e-mail?---I spoke to Dr Gannon that evening, that's the evening of the 27th at his home, and I understand he sent an e-mail to Mrs Waters the next morning.
PN193
I'll take you back to your earlier reply and giving me a bit of allowance for my inability to recall these things accurately, but my friend will correct me. I think I said to you, when I showed you an execute of Professor Klich's affidavit, and I put to you that was the first time which my client was advised by the Union that it did not have an agreement on the agreement, or did not consent to the agreement, and you said no?---No, I spoke to Mrs Waters on the 27th and said to her the national office does not consent to the agreement, we need to stop the ballot.
PN194
The national office, they were your words?---Yes.
PN195
How do you interchange between being the national office at one stage and the Industrial Officer for the Union at Southern Cross University on other occasions?---Quite easily. The national office has the final say on enterprise agreements.
PN196
But you are authorised, and this is an example of it, in this particular case, you are authorised to speak on behalf of the national office?---That is correct.
PN197
How do you float in and out of being authorised and non-authorised?---Depends on what we're discussing. If we're discussing matters that impinge on national policy - - -
PN198
You'd agree with me, it can get quite confusing can't it?---It can get complicated.
PN199
The individual, I assume, who determines which, if I could use the analogy of which hat you're wearing, is Mr Murphy?---No, its usually myself.
PN200
So you decide when you're acting for the national office and you decide when you're in your capacity as the Industrial Officer?---I decide when there are matters of national policy that I don't have authority to negotiate.
PN201
So there are some matters of national policy that you can negotiate and there are some that you can't?---It depends on what the particular policy is. Matters pertaining to final agreement on enterprise agreements have to be ratified by one of the three national officials.
PN202
You're sure in your mind, and you'd tell this Commission, that at all times that you were negotiating with my client on the content of this Certified Agreement, that you were not at any time negotiating on behalf of the national office?---That's correct. I was not negotiating with the final say on the matter, with the final power to say yea or nay on the particulars of any point.
PN203
But you would agree with me that you either have the authority or you haven't, are you saying- sorry, I shouldn't concertina the questions. You would agree with me that you either have the authority or you haven't?---Yes.
PN204
But you'd tell this Commission that somehow you are able to determine when a matter strays into an area where you are the national office?---Yes.
PN205
I have no further questions.
PN206
THE SENIOR DEPUTY PRESIDENT: Do you have any re-examination, Ms Duffy?
PN207
MS DUFFY: Just a couple of matters, your Honour.
PN208
Mr Dolahenty you were taken in some detail through the minutes of the meeting on 15 November and through your statement. Can you explain to the Commission from your point of view, what processes were to follow from that meeting in terms of what the NTEU or you as the local individual official needed to do after that 15 November meeting?---That the agreement needed to be ratified by our national office so that it could then proceed to endorsement by the members.
PN209
There was a meeting held for that latter purpose?---That's correct.
PN210
Do you still have those minutes in front of you?---Yes.
PN211
You were asked the question about whether it was explicit in those minutes that national office approval had to be sought?---Yes.
PN212
Could I get you to look at about the middle of the page marked 23, about the middle of that page?---Yes.
PN213
Where is says the NTEU were adamant that they could not sign off?---That's right.
PN214
On an agreement that mentioned an AWA. Firstly, do you agree that, that was an accurate reflection of what had occurred at the meeting?---Absolutely. I recall specifically saying to Professor Klich, this is something that was determined by the Unions National Council and can only be changed by the National Council.
PN215
In the context of that meeting, what would you as the negotiating official do about that particular issue?---Reiterated that it was not something that we could accommodate the university on.
PN216
Can I get you just to look once again at your actual own statement, at paragraph 3?---Yes.
PN217
In the second sentence there you say:
PN218
Although in principle agreement at local level was reached, the agreement was not finalised at that stage.
PN219
PN220
Can you just explain or expand a little by what you mean by in principle agreement at local level?---That there were matters that we'd reached in principle for the whole agreement that I was prepared to take to our national office and seek their agreement.
PN221
Nothing further.
PN222
THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Dolahenty, that's all. Yes, Ms Duffy.
PN223
MS DUFFY: Your Honour, I call Mr Gannon.
PN224
PN225
MS DUFFY: Your Honour, we seem to have apparently a minor objection to something in the statement, I'm not sure if Mr Brown is happy to deal with that in the presence of the witness.
PN226
MR BROWN: I'm happy to deal with that in the presence of the witness. Do you have a copy of the statement, your Honour?
PN227
THE SENIOR DEPUTY PRESIDENT: Yes, I do.
PN228
MR BROWN: It's just that I think that the second sentence of paragraph 9 should be a matter dealt with in evidence-in-chief. The second sentence of paragraph 9 of Dr Paul Gannon's.
PN229
THE SENIOR DEPUTY PRESIDENT: A copy of that e-mail is attached here too, and marked E.
PN230
MR BROWN: My apologies. It is the third sentence.
PN231
THE SENIOR DEPUTY PRESIDENT: Yes, I was thinking the second is particularly inoffensive.
PN232
MR BROWN: Yes, I would agree with you.
PN233
THE SENIOR DEPUTY PRESIDENT: Staff amd TEU members who had already voted.
PN234
MR BROWN: It is quite obvious that the witness can be asked to put that in a more admissible fashion.
PN235
THE SENIOR DEPUTY PRESIDENT: Yes. That does need attention.
PN236
MR BROWN: That's the only objection.
PN237
THE SENIOR DEPUTY PRESIDENT: Very well. You are tendering the document, Ms Duffy?
PN238
MS DUFFY: Yes, your Honour.
PN239
THE SENIOR DEPUTY PRESIDENT: I'll wait to mark it until you have had Dr Gannon identify it, the formal matters.
PN240
MS DUFFY: Certainly, your Honour.
PN241
Dr Gannon, could you just repeat for the records your full name and address?---Paul Michael Gannon, 110 Piccadilly Hill Road, Coopershoot, New South Wales.
PN242
Do you have a copy of your statement in front of you?---I do.
PN243
Is that the statement that you prepared for today's proceedings?---It is.
PN244
That you confirm that its contents including all the attachments are correct?---I can.
PN245
Can that be marked formally, your Honour.
PN246
THE SENIOR DEPUTY PRESIDENT: I'll mark that document that has just been described exhibit NTEU2.
PN247
MS DUFFY: Dr Gannon, can you just expand a little on your NTEU role that is described in paragraph 1. I wonder if you could explain to the Commission just in a little more detail what your role is in the enterprise bargaining negotiations?---These negotiations have been going on for over two years. The first year I was a team member of the NTEU and for the second year I have been the lead negotiator.
PN248
If I could get you to look at paragraph 9. You have heard Mr Brown's objection to that. Where you make that statement at the end of that paragraph, can you explain why you were of that belief. What direct knowledge did you have?---I discussed the process with anywhere from a dozen to a dozen and a half staff members of the university and members of the union. They directly told me so, that they voted in the belief that we were a party to the agreement. Not only did they directly say that to me, they also related to me other people who had related the same to them.
PN249
Do you recall roughly when those conversations would have taken place?---Most of them would have taken place while the ballot was ongoing because what was starting to happen during the ballot process was a lot of people were approaching me and saying, I hear there is a problem with the process, and I verbally related to them the problems. I would say they started early during the ballot process and went on till after the announcement by myself and the university management that there were problems in relation to the ballot.
PN250
At paragraph 8 of this statement in about the middle I think, it's the fifth line, you say there was an expectation on the part of members that changes would be made to the agreement before it was voted on. Can you explain in a little more detail what you mean by that, where that expectation arose from?---Once the voting process started, there were a number of people both on e-mail and approaching me directly who were very uncomfortable about having to vote for something that was electronic and they were saying, well, this may be what we are voting on today but it can be changed electronically and be different tomorrow. To some extent that also related to the fact that the ballot, when members at the branch voted to actually support the draft, they did so with provisos. The actual motion that was put talked about changes being made before the draft could be put to vote and they were expecting to see those changes. They never occurred. The motion taken on 27 November talked about gender equity clause and there needed to be adjustments and changes made and it talked about other minor changes and they weren't seeing these in the draft that was put up on the web.
PN251
That's the motion referred to at paragraph 4 of your statement?---That's correct, yes, the bottom of the first page.
PN252
Nothing further, your Honour.
PN253
THE SENIOR DEPUTY PRESIDENT: Very well. Mr Brown?
CROSS-EXAMINATION BY MR BROWN [11.06am]
PN254
MR BROWN: You've outlined to the Commission your understanding of the capacity that you negotiated in, could you please explain to the Commission your understanding of the role Mr Dolahenty played?---Mr Dolahenty's role was a member of the team. Our NTEU team was made of three people from the branch and our industrial officer and he was always a member of the negotiating team. Well, he wasn't always, up until the time that he took on the role of our industrial officer, because the process has been ongoing for more than two years, probably for the first half there was a different industrial officer.
PN255
To the best of your knowledge, did he represent the interests of the national office?---No. To the best of my knowledge, we were negotiating as an NTEU unit. Now, NTEU is a national union. We have an obligation nationally and it's an obligation that's undertaken at an annual conference in a very democratic way in terms of certain directions and trends that we take and we've negotiated on that basis. Our negotiation at the enterprise was with those national matters in mind, those nationally agreed matters if you like.
PN256
So this unit - it was your word, wasn't it?---The unit?
PN257
This unit that you're talking about, this is a negotiating unit?---Negotiating team, yes.
PN258
Negotiating team. To the best of your knowledge and belief, does the negotiating team reflect the views of the national office?---Does the negotiating team reflect the views of the national office - well, as I said to you, it reflects the views of the national union that were taken democratically and are taken annually, democratically. There are certain views that we've agreed upon collectively and those views were certainly prominent in our negotiations.
PN259
Those reflected views, correct me if I'm wrong, are communicated through Mr Dolahenty?---And they - - - ?
PN260
Are communicated to you through Mr Dolahenty?---No, that's not correct.
PN261
How is that incorrect?---Well, those views, as I said to you, the views of the national union are those developed in an annual conference every year and updated continually. Our university has two delegates to go to that conference every year and they represent our branch at that conference.
PN262
How do these views permeate from the national office down to the bargaining unit, in your experience?---When we began negotiations, well over two years now, we began a process within our university of assigning representatives to the organisational groups in the university, predominantly schools but also other sections of the university. Those people came along to a series of workshops where they were made aware of the national council resolutions and they were also asked to contribute from a branch context the sort of issues and problems that were important to be discussed during the negotiations of the enterprise bargaining agreement.
PN263
So you would say that as a member of the negotiating team, you personally had quite a thorough knowledge of the views of the national office?---Now, you're misinterpreting it. My response has always been in terms of the national council of the union, not the national office. The national office is just as bound by the national council as all of their members of the council.
PN264
Let me get this right. There is you and there is the bargaining unit, then there is the national office and the national council. Is that correct? That is the hierarchy?---No, I don't see it as a hierarchy like that at all. All members of the union are bound by the motions supported at national council.
PN265
If we were to use, probably the wrong word, if an edict was determined by the national council, it would be communicated to the national office and it would be through the same processes that you have just indicated, communicating through to the bargain unit?---As I said earlier, it is a democratic process. The branch actually has national councillors represented at the council and those views of the branch are taken to the council and the outcomes of council meetings are brought back to the branch.
PN266
Again, you would say that as a member of the bargaining unit, you have a thorough knowledge of the views of the national office?---The national council.
PN267
Sorry, the national council and you assume, of course, that the national council would have communicated or shared, to want a use a less laden word, those views with the national office?---They are not views. They are endorsed motions of the council. We are not talking about views here. We are talking about motions taken at council that have to be supported by members.
PN268
I understand. What is your definition of a national officer, then?---My definition of the national office. Well, a national office consists of a president, secretary and the deputy president and their related agencies. Their educational facilitators as well.
PN269
On industrial matters, again in your capacity as part of the bargaining unit, the unit that was bargaining, who would you deal with at the national office?---Who would I deal with? In what respect would I deal with them?
PN270
If you, as a member, need guidance. If you had an issue with Mr Dolahenty?---I have never had an issue with Mr Dolahenty so I have never had to deal with that. Where we have issues we deal with them between ourselves.
PN271
Okay, because you assumed that Mr Dolahenty represented the views of both the national council and the national office. That's correct, isn't it?---No, I said, I assumed that Mr Dolahenty was a member of the team, the bargaining team. All of us, as members of the union, are representing the resolutions of the national council.
PN272
Could Mr Dolahenty take a view that was different to the views of the national council or the national office?---It depends on the matter at hand. If the matter was a matter that had been resolved at national council and had been supported by the national council. Views in any democratic context, can differ but in terms of endorsing or following a recommendation that was endorsed by national council, then there is no dispute.
PN273
You have said that there is no hierarchy, that's correct?---We're a union. We are a democratic organisation.
PN274
Could the witness be shown the statement of Professor Klich which is an exhibit in these proceedings?
PN275
Do you have a copy?---I assume it is a copy.
PN276
Can I ask you to go to annexure C which is at page 20. The numbers are down the bottom. They are handwritten?---Attachment 5, 20 at page 20. Yes, annexure C and it flips over. Attachment 5 is the first page.
PN277
Can you just have a look through that? It has got quite a few pages. If you could just familiarise yourself with it. Let me know when you are ready?---It has got quite a number of pages, yes.
PN278
I will put it differently to you. It is a document you have seen before. Assuming it is a true and correct document?---The which?
PN279
It is a document that you have seen before?---No, it is not the document that I've seen before.
PN280
You have never seen annexure C before, ever?---No.
PN281
You can confirm that you were at the meeting - - -?---I was at that meeting.
PN282
It kind of works better if I finish the question. I assume that you were at that meeting on 15 November 2000?---I was.
PN283
Accepting that you say that you haven't seen these minutes before?---Well, I find it hard to see them as minutes because if that was the last meeting that we had before the vote was taken on 27 November, then how could we as a group sit down and confirm the minutes when we never had a meeting to confirm them? So then, I don't see those as confirmed minutes of that meeting.
PN284
I didn't ask that question but thanks for that. Would it surprise you that Mr Dolahenty has seen these minutes?---Well, nothing would surprise me. All I am telling you is that I haven't seen them.
PN285
It wouldn't surprise you if Mr Dolahenty got a copy of these minutes?---Why should it surprise me?
PN286
In terms of the content of the minutes and, again, not asking you to confirm that they are the minutes. Can I take you to page 25 of the statement which is the last page of annexure C. Down the bottom of the page. Reading from - I'm sorry.
PN287
I don't have a copy of this, your Honour. It has just been handed to me. Can I just show you an email.
PN288
Have you seen that document before?---No.
PN289
You would agree with me that you would indicate, accepting that you say you haven't seen it before but it purports to be an email to you?---Yes.
PN290
It purports to attach the minutes of 15 November 2000?---Yes.
PN291
You say you have never seen it?---No.
PN292
Thank you?---I could give you a reason probably why I have never seen it.
PN293
I may even ask you that question. Can I take you to page 25?---That's where we have been, yes.
PN294
25 of annexure C where it states:
PN295
It was agreed by all present that the agreement was now finalised and that the procedures discussed and agreed earlier would now be implemented to ensure that the new proposed agreement would be put to the ballot and that hopefully, benefits would flow through to staff by Christmas.
PN296
You attended the meeting?---Yes.
PN297
You obviously would recall what was said at that meeting?---Yes.
PN298
Is that paragraph that I have read, consistent with your recollection of what took place at the meeting?---No.
PN299
In what way is it inconsistent?---I think it was agreed by all present that, in principle, the agreement was now finalised.
PN300
In principle?---Yes.
PN301
How is that any different from what the words say there?---Well, we've been negotiating for, as I said, well now it's over two years, about two years, three or four months and we've been negotiating with a team who are experienced in terms of making enterprise bargaining agreements with the NTEU, there must have been at least two or three prior to this one that the management team, who are still present, have been involved in and in all those instances all those agreements required final ratification by legal advice from NTEU head office in Melbourne. During the two years of the process of trying to get an agreement there were plenty of jibes from the management side of the negotiating table about, "and in any rate you guys still have to get final okay by daddy down in Melbourne", and so on. So it would seem to me that if we get an in principle agreement it was very clear, at least in my head, and it had been clear from the behaviour of the management team, that they were very well aware that an in principle agreement needed final ratification from head office. And, in fact, the rules of our union require the union general secretary to sign the agreement and that has been the case in past enterprise bargaining agreements that we have struck with Southern Cross University. And the same management team that sits before us now were also the management team who were involved in that process. So quite clearly they understood the processes of our union. So when I say it was agreed in principle then it seems to me that it was very clear, or it should have been very clear, that an in principle agreement required ratification and signing by the general secretary of our union.
PN302
So you would say, would you not, that these minutes are deficient in that they don't say, "in principle"?---Well, I haven't read - - -
PN303
Well, I'll just run through them one at a time, they are deficient in that regard?---Well, as you say, there are quite a number of pages here, it would take me quite an amount of time and a recollection, trying to recollect back to there, to see whether or not the minutes were my recollection of events. I find it very strange for these to be offered as the minutes of the meeting because I'm not sure whether there was any ratification at subsequent meetings of these minutes. I mean sending out, on email, the minutes doesn't mean they are the ratified and agreed minutes of the meeting.
PN304
I put to you that by email dated 24 November 2000, Professor Klich sent you the minutes of this particular meeting, which is annexure C to the Professor's statement?---Yes, you put it to me.
PN305
I want to take you back again to page 25 and I want to concentrate on just the last paragraph there?---Page what was that?
PN306
Page 25 to annexure C to the affidavit, the minutes of the meeting, that you don't accept are the minutes. Concentrating on the penultimate paragraph, "It was agreed by all present", and from my understanding of your answers you would say that that particular paragraph is not consistent with your recollections because it doesn't make reference to (1) the fact that you say the words, "in principle" were used, is that correct?---Yes.
PN307
(2) that it was subject to legal imprimatur or legal advice, correct? You'll have to - the transcript doesn't recognise gestures?---I don't recall detailed discussion about imprimatur by legal advice.
PN308
But you said only a moment ago that it was always subject to legal - - -?---Yes.
PN309
What did you mean by that?---It was always subject to review by the appropriate legal persons at our Melbourne office.
PN310
So you would agree with the proposition that that paragraph is deficient in that it makes no reference to that? You either agree or you disagree?---I say that, if that paragraph is saying, it was agreed by all present that the agreement was now finalised, what I am saying was it was agreed by - my view was it was agreed by all present that in principle the agreement was now finalised. That's the way I recollect the meeting.
PN311
We have established that. Now moving on to a second point. You made reference to legal looking at it and you would - the proposition I am putting to you is that you would say that that paragraph is incorrect because it makes no reference to that legal checking?---Well, if the minutes are meant to be a full discussion of what happened at the meeting, I don't recollect a full discussion of a requirement to have legal imprimatur.
PN312
So, I'll put the proposition one more time to you, so you would agree that the minutes are deficient, or this particular part of the minutes is deficient in that it makes no - - - ?---Yes.
PN313
The third one, and I think the word you used was ratification, is that it makes no reference to the ratification by the union or the signing off by the union as you state is required by the rules of the union?---I don't recollect that the meeting actually explicitly talked about that - that particular meeting explicitly talked about that.
PN314
Let's just do it from a point of view of time. So at 15 November 2000. you had three problems with the proposition that an agreement had been reached. (1) it was always in principle, (2) it was subject to legal and (3) that it needed the sign-off of the union, correct?---Could you make the statement again please?
PN315
As at the closure of the meeting that you attended you would say that there were three things in your mind which were inconsistent with the notion that an agreement had been reached. The first one was that in your view it was always in principle. Correct?---Yes.
PN316
The second one, you were always of the belief that it had to be checked by legal?---Absolutely.
PN317
Good. The third one was that nothing moves in this union without the signature of the general secretary or signed off by the union?---No, no, nothing moves, is a general statement. What I said was it has always been the practice and is a rule of the union that the general secretary signs the agreement.
PN318
But you would agree with me, three very important things?---Yes.
PN319
So you would agree with me that there were, in your mind, as at 15th, three very significant issues in relation to the agreement, that being the three that I've just raised?---At least.
PN320
I'll show you a document. Have you had the opportunity to read the document?---Yes.
PN321
Do you recognise it?---Yes
PN322
I seek to tender this document which is an email chain which, on my instructions, was a draft communication to employees with the proposed title of, Enterprise Bargaining Finally Reached, sent by Professor Klich and responded to by Mr Gannon on 15 November 2000. I seek to tender that.
PN323
THE SENIOR DEPUTY PRESIDENT: Any objection, Ms Duffy?
PN324
MS DUFFY: No, your Honour.
PN325
THE SENIOR DEPUTY PRESIDENT: I mark the document headed, Paul Gannon 15/11/2000, 4.06pm plus 1000, exhibit SCU4.
EXHIBIT #SCU4 DOCUMENT HEADED PAUL GANNON 15/11/2000 4.06PM PLUS 1000
PN326
MR BROWN: Did you receive this document before or after the meeting of 15 November?---I can't recollect when I opened the document.
PN327
Would you agree with the proposition that it was an email sent to you by Professor Klich after the meeting of 15 November which we've just been discussing and called annexure C?---Yes.
PN328
It's in the form of a proposed message, or an email message to staff, is it not?---Yes.
PN329
It says, "We are thrilled to announce" - first of all who did you understand to be the, we, there?---I understood that to mean all the members of the enterprise bargaining teams. That's the NTEU team, the CPSU and management.
PN330
Indeed. Because it's got your name down the bottom as one of the proposed senders?---Yes.
PN331
Reading on:
PN332
On the content of a new proposed enterprise agreement ...(reads)... on the web on Monday morning.
PN333
So it makes specific reference to the agreement being made available by electronic means, does it not?---Yes.
PN334
It then makes reference to a full meeting of staff to occur on 23 November. Now that was sent to you, wasn't it, for your input?---It was sent to me to respond whether that was a sufficient message to send to staff and I responded, great stuff, 2BYS.
PN335
Great stuff? No caveats?---No.
PN336
You agreed with the contents of it?---Yes.
PN337
Now I will put this question to you. You said a moment ago that you had three major concerns with respect to the proposition that an agreement had been reached. Now why didn't you write back to 2BYS and say, 2BYS, I have three major concerns?---What was being put to the staff was the fact that the bargaining teams at our branch had come to an agreement on a draft and that draft was now being put to the members of the branch - all the staff at the branch - and that there would be a meeting to discuss how members and the rest of the staff at the university reacted to that draft that's all. That's all that message says and that's all it was meant to say.
PN338
You would agree with me it says in paragraph 2:
PN339
Agreement between the negotiating members was reached on all matters.
PN340
It's fairly emphatic isn't it?---Yes.
PN341
Agreement has been reached on all matters?---Agreement in terms of what constituted the enterprise bargaining agreement.
PN342
So in your view we did have agreement on what constituted the enterprise bargaining agreement?---As I said to you as far as I was concerned and I'm sure all the negotiating team members of the NTEU - from the NTEU point of view and my assumption and given that there had been plenty of actions taken in the past by management was that they understood that there would be a ratification by the Melbourne office of the NTEU and they also understood because the management team were the same team that was involved in past enterprise bargaining agreements realised that the general secretary of our union had to sign that agreement. Okay? So I didn't see any need to put any of that out there. What we were talking about was the branch team had come to an agreement. Now we want to know what did the general staff and our members think about that agreement, but that doesn't mean that at all time that after that was done the head office of the NTEU still needed to make a response.
PN343
You didn't think it either necessary or prudent to raise any of these issues at this time?---Our members have been involved as I said to you, probably over the last half a dozen years in two prior enterprise bargaining agreements and in those case that same process had been followed.
PN344
Again not necessary or prudent to raise them?---No.
PN345
So you were quite happy for an announcement to go out under your name amongst others saying:
PN346
That agreement between the negotiating members was reached on all matters and that you were thrilled to announce that the content of the new proposed enterprise agreement has been finalised today.
PN347
?---It's a draft agreement and that's what it says. It doesn't say that this is the final agreement take a look at it and you like it or lump it. It says that it's a draft here and now it says all the staff let's make some input, what do you like what don't you like. We will have a meeting to talk about it further. It doesn't even talk about when we will have a general union meeting to finally vote on these matters. This is a build up and a process. You're acting as if this is email says, here are, this is all signed sealed and delivered. There is a process trying to democratically involve the staff who are going to be signatories of this agreement. It is saying that the negotiation team are happy with the outcome at this stage. You tell us when or what in this agreement isn't satisfactory and we are setting up a process for them to do that.
PN348
You would agree with me that none of that is contained in this announcement, is it?---Yes, that's what it says it describes a process. It says that the negotiation teams are happy with the draft that we have come up with. We now want you - we are going to have actually a meeting there is going to be a draft of it on the web have a read of it and the following Thursday come along to an open meeting and we can discuss what you now think of this draft.
PN349
Are you suggesting to this Commission that there was this and I think you described it as a two year process where the negotiating unit negotiates with the employer reaches final agreement on a proposed enterprise agreement on all matters and then remits the same document to its members for there input again. Is that what you are suggesting?---I'm suggesting as I have all along that we are a democratically based union and the whole process where we have a negotiation - negotiating team trying to resolve a draft of a proposal always required taking that draft to our members and letting them at that point make some input as to whether or not the agreement that their team had drafted out was satisfactory or not. We are not a team telling our members whether it is satisfactory or not we relied on our members telling us whether they saw it as satisfactory.
PN350
I'm suggesting to you that it was the complete reverse in that the unit sought the views of its members and then with the full authority of the union negotiated the agreement which is the subject of this message to staff?---Well, I don't care what you are telling me we had a process all along were we would continually had general meetings throughout the whole two year period saying this is where we are at this is the hold up what do you guys think tell us give us a direction. We were a negotiating team that was driven by our members we weren't a negotiation team driving our members. That email there to me always described the last or the last but one stage of a process that was democratic and it was always clearly on the table for all our members and also the university management team.
PN351
This democatric event occurred at the Lismore campus on 23 November did it not?---No.
PN352
You've just told this Commission that in your mind agreement is reached and that somehow the agreement is then put again to the members for their input when did that input occur?---Now, you said - you didn't say input you said when did that democratic event occur. Now, we had - the culmination of a democratic process is people vote they voted on Monday, 27, not Thursday, 23, now which are you referring to because you are very unclear?
PN353
There was a meeting on 23 November in Lismore?---I hear there was, yes.
PN354
You hear there was?---Yes.
PN355
You would no doubt know that as a result of that meeting it was recommended by the union that the agreement be approved?---After the fact I did because I wasn't at that meeting.
PN356
What I'm unclear about is where is this extra layer of consultation that occurs after this message goes out in your mind?---Members have time to ask amoungst themselves and ask the negotiating team members to clarify and ask management to clarify any misconceptions they may have about the draft and it was supposed to be at that 23 November meeting where members could actually ask in an open forum any of the members of the negotiating team further clarification on the draft. There wasn't any vote taken there I didn't and I don't think anyone could ever see that that was the culmination of a democratic process, but it was part of the process. It is a process to make them well aware and to make us aware if there were problems from the members point of view with the draft.
PN357
Let me take you to annexure D of the Professor's affidavit or statement. You agree that that was sent to all staff?---Which was? There's only one page.
PN358
Annexure D there's just one page. You understand that that went to all staff and it carried your name?---Yes.
PN359
On or about 28 November you had a conversation with Mr Dolahenty did you not?---On or about 28th I don't think I spoke to Mark on the 28th.
PN360
You had a conversation with Mr Dolahenty in relation to - on or around that time plus or minus a day. You had a conversation with him with respect to the views of the national office on the agreement is that correct?---That's correct.
PN361
What did he tell you?---Mark told me that the national office had problems with signing off on the agreement and that the vote couldn't go ahead. That he had already told the director of human resources that the vote could not go ahead because national office where not going to sign it off as per the resolution taken earlier that day by a joint meeting of NTEU and CPSU members at the branch.
PN362
It must have come as a bit of a disappointed to you, didn't it?---Came as a disappointment?
PN363
Yes?---I saw it as a frustration, one of many frustrations in more than two years of trying to negotiate an agreement.
PN364
It came as a surprise, didn't it?---Yes.
PN365
You felt you had let down some of your fellow union members and staff members, didn't you?---I felt that I had let them down?
PN366
Yes?---I don't think that - I thought that I had let them down in the respect that probably the whole process. We had been negotiating for over two years, as I said, and it seemed always crazy to me that in the face of less than a month we had gone from a point that we had gotten to in two years to finalise the agreement and to me it was all crazy and helter skelter and it seemed to me that there were a lot of important matters to be dealt with and we needed to take some space and stand aside from it to try and understand what we were covering in that short period of time. At the back of my mind was the sense that, well, at least there will be people in the process as far as NTEU are concerned, who will be able to, if you like, stand back from the heat of the emotional involvement over those several weeks to actually look at anything we came up with and see the falsity, which in fact, they did. Now, my disappointment was one in which we had taken a process to our members and we said we were happy with it at a branch level. Our members were happy to support us but they supported us in a motion that said words to the effect, something like, subject to ratification and signing by our head office, and the joint meeting of not only NTEU but CPSU members ratified that motion. All of it - took it. So, while we had a spirit of we have got to this point and hopefully it will be all over soon, there certainly was disappointment within several hours of that motion being taken, being told that at least from an NTEU point of view, our head office would not sign off on it.
PN367
When you say, gotten to that point, you mean, reached agreement on the content of the agreement?---We had a draft that, as that resolution said, we supported and we supported with the proviso that we would get endorsement by head office.
PN368
Could you go to annexure E of your statement?---Pardon?
PN369
Could you please go to annexure E to your statement? Have you got that?---Yes.
PN370
Can I take you to the second last paragraph, which reads:
PN371
While there will be many interpretations as to why we have come to this position, my perception is that we moved with too much haste in the final weeks.
PN372
Who is the, we, there that you are referring to?---I mean the whole negotiation team, management and both unions teams.
PN373
"In the final weeks and brought the union vote on too early." Which union vote are you talking about here?---The vote on 27 November.
PN374
The vote on 27 November? That was the vote - which vote was that to?---That was the motion that I referred to just earlier.
PN375
I am putting the proposition to you that when you wrote that email, you were of the view that you had an agreement with the university?---We had a draft agreement. No-one is ever denying that.
PN376
You don't deny that. You, the bargaining unit had an agreement with the university?---Sure, but that's only part of the process. As I said to you earlier, the process and it was always clear, not only to us and NTEU but management as well and it has been clear from past precedents over and over that when NTEU will sign an EV agreement it will be done by ratification and signing by the general secretary of the union. That's always been taken and understood as part of the process.
PN377
It's quite apparent that you were clear on the process but what I am suggesting to you is that when you wrote off to Professor Klich and said, great stuff, on the announcement and when the announcement went out - that that process that you believe was so important was singularly lacking?---Which process?
PN378
The process of it being in principle. The process of it having legal check-off. The process of it having being to be signed off by the head of the union?---What Professor Klich's email said was that a negotiating team had come to an agreement on a draft agreement. What they now want is union members and the staff to read that draft, discuss it amongst themselves, come to a public meeting, ask clarifying questions, suggest changes if necessary and then we will take that to a vote at the union. That's what it said and that's what happened.
PN379
When you wrote, annexure E, I assume sometime around 8 December 2000, in your view you had an agreement with the university. Did you not?---Who had an agreement?
PN380
You. In your view?---Me? I don't have an agreement with anybody. I never had an understanding that I would sign an agreement.
PN381
I put it differently to you. The bargaining unit, as you describe it or the unit that you described - it had agreement with the university?---The bargaining unit, our three people, agreed in principle as I suggested earlier to a draft of an agreement. We also agreed on a process to be followed to finalise it. It was quite clear that it wasn't a final agreement.
PN382
I put it to you that you were greatly disappointed that at the last minute, the national office said that you didn't?---Absolutely.
PN383
When you say, as lead negotiator for an EV team, I accept full responsibility for what has happened, fire away. What did you mean by that?---What was happening in that context was there was a lot of confusion, lack of information about what was going on in the context and there are a lot of people on both unions - remember here we have got three main players here. There were two unions and there was the management team and each of them were prepared to throw around a lot of blame and as far as I was concerned, it was inappropriate to do that. We had - we were trying to stitch up a deal. It had taken us a long, torturous journey to get there and as far as I was concerned, the people to throw around and start blaming hither and dither, all and other people for the outcome where we had taken a vote and yet head office had still held it, was unproductive. Therefore, as the president of the branch I simply said, if you want a lightning pole, take it out on me because it's a waste of time laying blame elsewhere. We should be trying to get a deal here, not blaming others. That's why I said, I accept full responsibility, fire away. What we should be trying to do and putting our energy into is to try and get a deal here, not blaming people and getting caught in an Irish squabble.
PN384
If I put the proposition to you that there were three layers of extra things that had to be done before one would have an agreement on your evidence, why would you be disappointed anyway? It was always, on your own evidence, it was always subject to all these other things. One of them just occurred. Why would you be disappointed?---Because I was disappointed. We weren't there. The end hadn't come. Wouldn't you be disappointed after more than two years?
PN385
I will ask the questions for the moment, but what I am suggesting to you is that the reason why you were disappointed was that you, in your own mind, had reached agreement with the employer and that as a result of the national office of the NTEU, you were now told that there would be no agreement?---I was disappointed because we had, it must have been at times up to a dozen people including management and another union in a team. Hopefully all our heads together could have resolved all the problems, could have dealt with all the detail. I was disappointed that we didn't because what out head office came out with were valid and genuine responses about what we left out from the whole agreement. There were things there that were left out that really shouldn't have been left out. Everybody, it seemed, when we had a subsequent meeting on 6 December - all sides came out and said, we should have fixed that, we should have changed that. There were a whole lot of problems with it. It seemed amazing and disappointing to me that we had 12 people from the university, people who should have known better and should have been able to pull out the detail and the faults in it and it took our national office to bring out the faults. I was certainly disappointed that we as a team, both unions and the university management, hadn't been able to come up with a document that was tighter than that. I was disappointed, certainly.
PN386
At that time, around 27 or 28 November, that was the first time that the national office had anything to do with the actual document, to your knowledge?---As I said to you earlier, it depends on what you're calling national office, but certainly the national council of the union had a lot of input into structuring what we saw as important factors of any enterprise agreement. The office was consulted continually over those two years, in terms of whether or not what we had worked out was a reasonable reflection of those resolutions taken by national council.
PN387
Are you aware of a notice to produce that was served in this matter?---Yes.
PN388
You received a copy of it?---Yes.
PN389
Would it surprise you that the only - - -
PN390
MS DUFFY: Could I just ask, your Honour, I mean I'm somewhat surprised at the witness being questioned on the notice to produce.
PN391
THE SENIOR DEPUTY PRESIDENT: Was it addressed to him?
PN392
MS DUFFY: No. I thought there was no issue with it and we had dealt with that this morning.
PN393
MR BROWN: No, there is no issue as to - my question - if I could just get my question out?
PN394
THE SENIOR DEPUTY PRESIDENT: Yes, get your question out.
PN395
MR BROWN: Okay.
PN396
Would it surprise you that the only documentation which has been produced today, in relation to essentially this matter and the enterprise agreement, are two documents. One of which was from Mark Dolahenty to Mr McAlpine swapping phone numbers and the other was the on sending of a message from the Vice Chancellor, to Mr Murphy from Paul Gannon. Would that surprise you?---The only documentation that was - can you repeat what you just said?
PN397
Would it surprise you that the only documentation that the national office has produced today, in response to the notice to produce, are those two emails?---The notice to produce, as far as I understood, was to produce communication between, well, we assume the NTEU negotiating team members and the national office between I think it was something like 15 November and 19 December. I emailed those other two NTEU negotiating team members to ask if they had any relevant documents. One said, "No", another said, "Well, I'm not sure. Here's a whole lot of emails that was sent that I've kept in my address book under that heading", you know, "You figure it out", and the only documentation that I could find in my emails and diary was documentation of a phone call made to me and a tele-conference that we had with Mark and Ted Murphy and Ken McAlpine and then a subsequent listing of emails, that I had sent to them after that phone conversation. It seems to me that my witness statement pretty much covers that document that I sent to them.
PN398
So when do you say the national office received a copy of the agreement which is referred to in annexure D to Professor Klich's statement?---Is this my annexure D, is it?
PN399
THE SENIOR DEPUTY PRESIDENT: No, Professor Klich's.
PN400
MR BROWN: Professor Klich's annexure D. I might be wrong in annexure D - - -So, D is an email?
PN401
My apologies, yes, D, is an email. It refers to a new proposed enterprise agreement. To the best of your knowledge, when was the new proposed enterprise agreement which is referred to in that document sent off to what you understand to be the national office?---I've got no idea.
PN402
Would it be correct to assume that the views of the national office were conveyed by Mr Murphy?---The views of the national office, to what?
PN403
In relation to the new proposed agreement?---No. To me, you're saying, the views of the national office to me were conveyed by Mr Murphy, is that what you're saying?
PN404
I'll put the question differently to you. How was it communicated to you that all of a sudden the national office had some quite extensive comments to make about the agreement?---A phone call from Mark Dolahenty to my home about 6.00 or 7.00 in the evening of 27 November.
PN405
You sent an email, correct me if I'm wrong, as annexure B to your statement, as an excerpt of an email to Phylis Waters? If I could take you to annexure B?---That's mine?
PN406
Of yours, yes?---Yes.
PN407
The Mark there is Mark?---Dolahenty.
PN408
And that refers - you say:
PN409
It's useless to send out the papers and to resolution the course of the clause 10 matters. We are attempting to find a way to resolve the problems.
PN410
Just on that point, at that stage how did you intend to resolve the problems?---When Mark phoned me on the Monday evening he alerted me, generally speaking, to some of the problems that were outstanding and I said, "Well, aside from alerting Phylis what are we doing about this?", and he said, "Well, I'm trying to get a meeting together and we're trying to contact 2BYS", but I think 2BYS wasn't on campus at that stage. As far as I was concerned what we were doing in the subsequent days after the 27th for the rest of that week, we were trying to get the management team and CPSU and our team together to try and resolve these things. It seems that people were off campus. I think there was an attempt to try and get a tele-conferencing going - it fell apart. I think, again, because the management team couldn't get it together and we constantly were trying to deal with getting together and resolving these matters, because I thought we could resolve them. We tried as much as we could to get management together. They were putting it off and they couldn't meet eventually until the 6th which was the following - Monday was, 27th, so it was the middle of the next week before we actually got a meeting with the CPSU team members, management team and ourselves.
PN411
Now at this particular point in time, you or your union had not indicated to the university that it did not have agreement on the contents of a certified agreement?---Of course we did. Mark had phoned me the day before and said, "We can't sign off on this".
PN412
My question is, if I can interrupt, my question is, the union had not informed the university that it did not have an agreement on an agreement?---The university hadn't - the union had - could you say that again, please?
PN413
The proposition I'm putting to you is that no one has ever - the proposition I'm putting to you and I'll put it to you now rather than later is that, the first time my client, on my instructions, is ever advised formally that the union does not have agreement on an agreement, was the letter to Malcolm Marshall from Ted Murphy dated 19 December 2000?---No.
PN414
No? Well, can you help me out?---Well, we had a meeting of the combined unions on the Monday, 27, about noon. We took the - a motion was taken at that meeting that said, and I'll quote it, because it's at the bottom of the first page of my witness statement:
PN415
Members of CPSU and NTEU agree, in principle, to endorse the proposed enterprise agreement subject to minor changes and ratification by CPSU and NTEU head offices and further subject to an exchange of letters regarding a binding gender equity clause which is absent from the current draft agreement.
PN416
Now that, as far as all of those people at that meeting was concerned, was a motion that said, we have an in principle agreement but it's subject to endorsement by our head offices. Now, that endorsement never came so how could we ever have an agreement.
PN417
Well, then I would ask this question to you. Can you go back to annexure B to your statement? If all of that were true, then how do you explain the next words, "Until that occurs NTEU cannot recommend an affirmative vote. It's a difference isn't it"?---A difference in what.
PN418
This would assume that you are contemplating a vote taking place?---No, not contemplating. Human Resources at the University had sent the vote out and where twice Mark had said the day before, don't send the vote out because we can't endorse it from a union perspective. So I that morning emailed Mark and said, what's happening. Mark said, "We are still trying to get a meeting together to try and resolve these things but I think it would prudent to send Phyllis a message endorsing what I told her yesterday" and that's what I did.
PN419
But you would agree with me that there is a significant difference between words to the effect of "I'm sorry, we do not have an agreement and we never did have an agreement" and words to the effect of "We are going to recommend to our members that they vote no." You would agree with me that they are different?---No I'm not saying we are recommending I said "We cannot recommend an affirmative vote".
PN420
But doesn't that sentence assume that there is some agreement that we voted on?---No that's your assumption not mine. It's very clear what happened as far as I am concerned. We had a vote and there was an endorsement of the fact that in principle the branch members of both unions, endorsed in principle the draft subject to ratification of both head offices. If that ratification doesn't come for the life of me I don't understand why the university instigated a vote. What I was saying was stop this vote it's ridiculous. If there are problems let's get together and try to resolve them.
PN421
No, you didn't say "Stop this vote", you said, in this correspondence,
PN422
Until this occurs the NTEU cannot recommend an affirmative vote.
PN423
?---What I said, and you are only looking at one sentence, read the whole message. "It is useless to send out the papers until resolution occurs regarding the clause 10 matters". Now that is the key sentence. In other words, there is no point in sending out a vote as was the resolution taken at the meeting the day before, the resolution said, this is an endorsement by the members here subject to ratification by head office, so for the life of me I could not understand why a vote had been started because that very morning my members were receiving votes in their mail trays and yet we told Human Resources - Mark had told them the night before or the afternoon before that you are not going to get endorsement by head office, so therefore we don't have an agreement.
PN424
No, I put it to you that those words were never said?---You might put it to me I'm telling you what Mark told me and I'm telling you - well, you see very clearly what I sent to the head of Human Resources. It is useless to send out the papers until resolution occurs regarding clause 10 matters. I am reinforcing Mark's message to you regarding ballot papers and I never got any reply to that email.
PN425
Can I take you to annexure E of your statement, at about point 4 on that page, roughly half way, you state,
PN426
The NTEU branch EB team moved to immediately request that management cease sending out the ballot papers (this was done the day after the union meeting vote).
PN427
We agree that the union met on the 27th, didn't they?---Yes.
PN428
Would you agree with me that this suggests that the communication you referred to earlier as being on the 27th was in fact on the 28th?---No, I don't see that it says that. Mark on his own volition had responded and not as a member of the team but he was conveying a message from Head Office to the Executive Director of Human Resources that Melbourne Office wouldn't sign the agreement and then I as the lead negotiator in the NTEU branch EB team immediately requested management cease sending out the ballot. You just looked at the email that said that.
PN429
Reading on,
PN430
Unfortunately it seems that the ballot papers had been sent. We have tried up until now to see if we could negotiate acceptance of changes required. It would seem at this stage that a quick resolution was not forthcoming.
PN431
Just running off that, would you agree with me that faced with a situation where on my client's instruction, an agreement was reached, and that there were other items, - they're my instructions you don't have to cavil with it. In excepting for one moment that there may have been some additional items that arose, that that could have easily been accommodated by an exchange of letters, couldn't it. That's one solution?---There were many possible solutions what we were trying to do was to get everyone together to try and nut one out and it seemed to me that we were ready right on that very day to meet and talk and it took another from Tuesday 28 November until Wednesday 6 December for the management team to get it together to be able to come to a meeting. We were ready and we were ready every day to try and negotiate it. We weren't tardy in this. The management team were the ones that took their time to get to a meeting and all of this time, it was very conscious the vote was still being undertaken by management. Yes we had what my hope was an agreement after two long and tortuous years and we were trying to stitch that up so that we could finalise that agreement. It seemed to me that management weren't too happy to come together and meet and they were very cynical about it towards the end, because in spite of us trying to get together and talk they all went quiet again and then we didn't hear anything from them until the following Monday that said, "Look, we're happy to let this bloke keep going to see what happens".
PN432
You have agreed with me that there are a number of possibilities?---I've agreed with you?
PN433
A number of possibilities of dealing with the problem?---No, what had to be done to deal with the problem was to, first and foremost, get everybody together to see what they were prepared to come up with. And that's what I said, there was one outcome at least for the nearly 10 day period that we tried to get everyone together. And it wasn't until that meeting happened that it became fairly apparent that there was one possible outcome and that was that management didn't want to talk anymore.
PN434
There were a number of outcomes and one of the outcomes would be to write or communicate emphatically to the University that you did not have agreement. Is that one possibility?---No, in my mind that wasn't a possibility because what I saw as important was we had gotten to the point where we had, in principle, an agreement. It was so close and it had taken so long to get there. It was important to try and talk it right down to the end, to try and get people together, not push people apart. To say that was a finality.
PN435
You wanted to keep all those options open until the very last minute, didn't you?---I wanted to try and see if we could get a final agreement.
PN436
The union never told my client that it did not have an agreement?---I've just said to you that we did. You know, I've just said to you that there's no obligation on us to do other than what we said. We gave the director of human resources an explicit motion that was carried at a meeting that says, "We agree in principle to endorse the proposed agreement subject to minor changes and ratification by the head offices" and, I might add, "further subject to an exchange of letters regarding a binding gender equity clause which is absent from the current draft agreement". And that never came up either. So there was a necessity to get everyone together and talk and people weren't coming together to talk and it took until Wednesday 6 December to get everyone to even talk about that matter.
PN437
MR BROWN: Another document thanks. Sorry, I've just been told that it's attachment A. Sorry, there's no need for you to recognise that particular letter, because it's attachment A to your statement. My apologies. You said earlier, I think your evidence was, that there were concerns by some members with respect to the fact that the agreement, or what purported to be the agreement, was sent out electronically, is that correct?---Mm.
PN438
If I could just take you to the bottom of that page. It says, "Staff who are having difficulty accessing the web site should contact Maree Savins on extension 3195 to arrange delivery of an email or a hard copy"?---Yes.
PN439
That's what it says, yes, and you would agree with me that employees had ample opportunity to obtain a hard copy?---I wouldn't think so. I mean, if someone - if employees have difficulty accessing the web site, if they're going to have difficulty accessing the web site, they're also going to have difficulty getting this email which was the only communication sent to them. So it seems to be nonsense to rely on total communication by electronic media and expect that everyone get it even in your email you're suggesting that some people probably won't get it so then you'd better come and ask me for a hard copy. There were a number of people that talked about their perception and there are emails that were sent to me as evidence that they weren't getting a hard copy and they didn't know how to get one.
PN440
I put to you that that's not quite the case, is it?---You're trying to tell me that what I'm telling you is wrong?
PN441
Can you take me to the document? I think you said then that they sent emails to you. Are they attached to your statement?---Yes, they are.
PN442
Can you take me to it?---The first one here, I've got in attachment C, "Notice of Ballot etc received in today's mail refers to the proposed agreement being available on the web. I would like to be assured, given the transient nature of electronic information, that paper copies are lodged in various places. Have the executives of both unions ensured that what we may vote on on any given day is the same as for any other day and the same as what is lodged with the Industrial Commission. And I can't believe that a vote on just something on a web site would be valid anyway. There is no statement that what is on the web site is identical to the document printed on the site last week and I note a message from Chris Game advising minor changes. I seem to recall some years ago when I was eagle eyeing a near final printed version of an agreement that there seemed to be a catchy little clause which was new to the negotiating union members." Then D, "The December 13 - - -
PN443
I'll just stop you there. We'll get to the D in a minute. That same person, you would have to assume, would have received annexure A but the day before, would they have not?---I can't assume anything, I don't know.
PN444
Okay, well?---That's your assumption.
PN445
Okay. They get an email the day before that says, "Staff who have difficulty accessing the web site should contact Maree Savins on extension 3195 to arrange delivery of an email or a hard copy". You would have to assume, would you not, that that person did have access to a hard copy if they required it?---That's your assumption. Email's go flying out, disappear, hard disc crashes, all sorts of things happen with the electronic media so I wouldn't be too sure of the electronic media if I were you.
PN446
Can we go back to the minutes, annexure C to the affidavit of Professor Klich, which is page 25 of his statement. I'll take you to the top of the page where it reads, "Final Version of Agreement to be completed by Friday 17 November or Monday 20 November 2000"?---Sorry, I can't find it. Where are you?
PN447
Right at the top?---This is?
PN448
Annexure C?---Annexure C, the first page?
PN449
No, go to - it's towards the back, it's the last page actually?---25.
PN450
That's correct. Can you go to the top?---Mm.
PN451
"Final Version of Agreement to be completed by Friday 17 November or Monday 20 November 2000. Agreement to be placed on the web site for staff access. Hard copies will be available on request by the Human Resources Directorate". Now, firstly, do you recall that matter being discussed at that meeting which you attended?---Mm.
PN452
Would you agree that that's an accurate recording of what was discussed?---Well, you can interpret that, you know, minutes are minutes and not clear. It says, "Final Version of Agreement" now I don't know who we're referring to here, what the idea was- - -
PN453
No, my question is, is that an accurate summation of the discussion?---What I'm saying to you is I don't know which, what you're referring to, I don't know what "final version of agreement" is meant to be.
PN454
We'll do it differently. Obviously there was some discussion at this meeting as to the mechanics of the ballot. Correct?---Yes.
PN455
In the context of that there was discussion in relation to it being placed on the web?---No, there was not. What you are referring to here in the minutes, and that's why I asked you the clarifying question. What you are referring to was that there was meant to be a process and we talked about it earlier, it was supposed to be a democratic process where the in principle draft agreement that the negotiating teams had agreed to would be put on the web and that all staff would regard that, discuss it amongst themselves, then come to a meeting on Thursday 23 November and talk about their reactions to that. Now that it what is being referred to, I assume, at that point. There was no discussion in there about how the final to be voted on agreement would be presented to staff and that email that I've just taken you through is a reaction by a staff member who does not want to vote for something that is on the web, they want a hard copy version, and when the voting papers were sent out to everybody there was no hard copy version included in the materials sent with them to vote on and that person objected to it. So we're talking about two different things there.
PN456
Could we go to page 24, the page before. There's reference there to a procedure?---Whereabouts on page 24?
PN457
It starts at the bottom. It then goes on, you obviously have some very firm views?---Hold on a minute. On the bottom of page 24, whereabouts and what's it saying about the procedure that, "Providing the final agreement was reached the following procedure was agreed to" is that what you're saying.
PN458
"Professor Klich would announce and prepare announcements to all staff to be forwarded to Alison Watson and Dr Gannon". That was done as we spoke about before?---Yes.
PN459
"Robyn Anderson and Phyllis Waters to meet on 16 November 2000 for clarification of any issues in the agreement with regard to salaries"?---Mm.
PN460
The next dot point talks about a "Final version" but you say it wasn't a final version?---It couldn't be.
PN461
It could have been?---It couldn't be the final version because there was meant to be, it says, "a final ..." now this is what I mentioned earlier when I said these minutes were never verified by anyone, and certainly I didn't verify them, wasn't party - but anyway, it says, "Have to be completed by Friday 17 November or Monday 20 November". Now on Thursday 23 November staff were to meet and give their objections or ask for clarifying questions about that draft. Now at that meeting there could have been all sorts of questions, there could have even been issues that were huge and required changes to the draft. So, therefore, this section of those minutes cannot refer to the final agreement that actually went on the web and was supposed to be what staff were voting on.
PN462
Just a final question. Did you advise members not to vote or did you advise them to vote "no" in the ballot process?---I made no advice one way or the other.
PN463
Thank you.
PN464
MR BROWN: If the Commission pleases.
PN465
THE SENIOR DEPUTY PRESIDENT: Very well. Ms Duffy?
PN466
MS DUFFY: I have no re-examination.
PN467
THE SENIOR DEPUTY PRESIDENT: Thank you, Dr Gannon. That concludes your examination.
PN468
MS DUFFY: That actually concludes our evidence, your Honour.
PN469
THE SENIOR DEPUTY PRESIDENT: Yes, your evidence. It will be necessary for me to adjourn at half past 12. I have had to put in another urgent matter which will take me until 2 so that there will be, of necessity, a long lunch. What is our next step?
PN470
MR BROWN: I would be ready to proceed to submissions when you are ready after 2. We would be happy to go to submissions upon your return.
PN471
THE SENIOR DEPUTY PRESIDENT: Yes, in other words, you are half suggesting I adjourn now until 2 o'clock.
PN472
MR BROWN: If that's suitable.
PN473
THE SENIOR DEPUTY PRESIDENT: Yes, it will give everybody an opportunity to prepare and may in fact result in some streamlining of those submissions.
PN474
MS DUFFY: Yes, your Honour, that would be useful. I would be happy to move to closing at that point.
PN475
THE SENIOR DEPUTY PRESIDENT: You have got no problem, Mr Turner?
PN476
MR TURNER: No problem, your Honour.
PN477
THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn until 2pm.
SHORT ADJOURNMENT [12.21pm]
RESUMES [2.07pm]
PN478
THE SENIOR DEPUTY PRESIDENT: Mr Brown?
PN479
MR BROWN: Yes, I think my friend may want to hand up one further document.
PN480
MS DUFFY: Your Honour, I was happy to do it in closing submissions but it is just an extract from our rules. I am to do it.
PN481
THE SENIOR DEPUTY PRESIDENT: Yes, do it now.
PN482
MR BROWN: If we are handing up some documents I will also hand up Macquarie Dictionary definition of the word "agreement" if you don't mind. I think that's all the documents then.
PN483
THE SENIOR DEPUTY PRESIDENT: Well, I will mark them both. They are both extracts. The extract from the rules of the NTEU is marked exhibit NTEU3 I believe, Ms Duffy?
PN484
MS DUFFY: I think that's right.
PN485
THE SENIOR DEPUTY PRESIDENT: The extract from the Macquarie dictionary I marked exhibit SCU5.
PN486
MR BROWN: Your Honour, I have some written submissions which closely follows some earlier written submissions which I have handed up. My friend has had the opportunity of looking at them. If I could hand them up and then address your Honour, if that would suit you?
PN487
THE SENIOR DEPUTY PRESIDENT: Yes. I will mark these. I believe I marked the earlier ones.
PN488
MR BROWN: These are further submissions. They are a slight amendment on the earlier version.
PN489
THE SENIOR DEPUTY PRESIDENT: Yes. I marked the further submissions on behalf of the Southern Cross University in this matter exhibit SCU6.
PN490
MR BROWN: As you are probably aware from the transcript, on the last occasion the parties did have an opportunity to make some limited submissions. In a way we have started at the end of the process but if I could just pick up on some of the comments that were made at that stage.
PN491
As we have stated at the outset of the hearing on 24 January 2001, on 22 December 2000 the university, while its application in the Sydney registry of the AIRC certification of the Southern Cross University enterprise agreement 2000. The documents filed with it was a copy of the agreement. The application, in accordance with rule 48 and the statutory declaration of Professor Klich on behalf of the university, form R28 with respect of the application. The application was made pursuant to section 170 of J of Workplace Relations Act. The applicants of the university, community and public sector unions CPSU, the National Tertiary Education Union, NTEU. However, the NTEU, as you are aware, has not provided a statutory declaration in support of the agreement.
PN492
We say, that on 19 December 2000, the NTEU advised the university they would oppose any attempt to apply its terms. We would say that was the first occasion which my client was advised of the fact that there was not an agreement. The agreement itself identifies the university, the CPSU and the NTEU as the parties bound by the agreement. In terms of the appropriate analysis, we would say that the first question for the Commission to consider, under section 170LT of the Act is whether an agreement has been reached.
PN493
I have tendered to you the Macquarie Dictionary definition of agreement in the absence of any actual definition in the Act that it refers to, "1. The act of coming to mutual arrangement. 2. The arrangement itself. 3. The unanimity of opinion, harmony and feeling." It goes on therefore in benefit.
PN494
We would submit that the university did, in fact, reach agreement. We refer you to exhibit SCU MFI2 which is the statement of Professor Klich in paragraph 8. I have set out there his evidence. Over the page, and this was the subject of cross-examination this morning, which were the minutes taken from the meeting on 15 November which stated:
PN495
It was agreed by all present that the agreement was now finalised and that the procedures discussed and agreed earlier would now be implemented to ensure that the new proposed agreement would be put to the ballot and that hopefully benefits would flow through to staff by Christmas.
PN496
You will be aware of the evidence which was led and emerged in cross-examination this morning as to the attitude of the union official and the gentleman, Professor Gannon, who described himself as part of the negotiating unit.
PN497
It would appear from their evidence that they saw the agreement as something which was subject to a number of other caveats. My friend will make her own submissions on this but it would appear from my consideration of their evidence that they didn't feel that it was an agreement because there were other things that had to be done. We say that those other things that had to be done or could be done need to be seen in the light of the evidence and in particular, annexure D, to the statement of Professor Klich, which is effectively a statement from the negotiating committee or the negotiating unit to the effect that the agreement had been finalised.
PN498
We also say that the evidence has to be looked at in terms of the behaviour of the union subsequent to the meeting of 15 November. We also would submit that at no stage during this process did the union directly or indirectly indicate to our client that there was, in fact, no agreement that would be the subject of a ballot.
PN499
Mr Gannon says that, in his cross-examination, that he had an agreement. He believed that he entered into an agreement but again, he says it was subject to a number of caveats. We say that those caveats were never expressed in the documentation and certainly not brought to the attention of the employers that voted, in our submission.
PN500
Therefore, the university submits that all the parties to the agreement generally reached agreement under section 170LJ at the meeting of the enterprise bargaining committee on 15 November 2000. The university, at that time, entered into an agreement with the unions in complete good faith.
PN501
As a further layer, we say that an agreement existed. We take you to the cross-examination of Mr Dolahenty this morning, particularly the last passage of the cross-examination. It would appear from his own recollections, that there was some form of sliding scale of intervention that he, and he alone could determine as to whether he, when he was taking part in these negotiations, to use the vernacular, had his national office hat on and his member of the negotiating unit, as Mr Gannon described it, hat on.
PN502
We would also say that there seems to be some conflict as to how the two witnesses, on behalf of the union saw how the national office, as it was called, interacted with the bargaining unit. I think Mr Gannon saw it, as he described, there was a much more democratic process and non-hierarchical. In terms of the relevant case law for your analysis, we've set out the cases there which I'll just refer to in their more generic names. The Stork case, the Coles Supermarket case, the WM Loud case, and the Telstra case. We would submit as follows. The obligations of the Commission to certify an agreement which meets the requirements of the Act was noted by Munro James Stork. We note that in this case, it's very similar on the facts to the current circumstances. In Stork's case the CEPU was a party to the agreement and the CEPU sought an adjournment of the matter because of differences that arose out of the wording of part of the agreement, after interposing, the agreement had been reached.
PN503
In this case, Munro J, held at paragraph 11:
PN504
Primarily I am obliged to apply the Act. If I were to adopt the union's desire for deferment and prefer serve the needs of perceived ...(reads)... I can see that I must attempt to resolve the matter by close attention of how the Act should be applied under the circumstances it has arisen.
PN505
Section 170LT says that:
PN506
In relation to applications made to the Commission in accordance with division 2 ...(reads)... certify it and must not certify the agreement unless it is satisfied that the requirements of this section are met.
PN507
In other words, that section creates a mandatory duty on the Commission to certify or not certify according to the terms and conditions set down. Following on in the decision at paragraph 18, his Honour stated:
PN508
In summary it appears to me that the obligation on the Commission is to simply act to certify agreements the parties have reached, once the procedural processes for certification have been satisfied.
PN509
Section 170LT and section 170LU, condition the discretion:
PN510
They steer the way in which I am to be satisfied as to the elements of that conditional discretion.
PN511
Now we say that that is the correct approach to the Commission. We say that a correct application of the evidence would suggest that in the true sense of the word or in the normal sense of the word, my client had an agreement. It would be fair to say from the union witnesses that there may well have been items that the NTEU may wanted to either re-negotiate, or have added or as have part of some sort of a side arrangement which is not an uncommon phenomena.
PN512
But, we say that the evidence indicates that the agreement that was reached, in our view, was never revoked. We note that the Stork case has been considered and followed by another case more recently which is Walkers case, Walkers Pty Limited, 28 April 2000 Bacon C. I have a copy, that wasn't mentioned on the last occasion.
PN513
THE SENIOR DEPUTY PRESIDENT: No, that's right. That's a new reference.
PN514
MR BROWN: If I could just hand a copy of that decision? We say that Walkers case is very similar, if not more similar than Stork to the circumstances of the university. In this case, the AMWU was party to the agreement that after the ballot refused to sign the agreement because it says that the agreement is inconsistent with AMWU policy. Of course, we heard this morning that it was the view or be it the belated view of Mr Murphy of the national office that there were certain parts of, what we say, was the agreement reached on 15 November which were inconsistent with NTEU policy.
PN515
Specifically the agreement provided for a nominal expiry date, different from the national policy of the AMWU. The negotiations of the AMWU were represented by the job delegates. Commissioner Bacon found that this case had striking resemblance to the Stork case. The Commissioner concurred with paragraph 11 of Stork and found that the AMWU did not have to be a party to the agreement and that the agreement would be certified.
PN516
I had the benefit of my friend's submissions at the opening, in terms of some of the cases that the NTEU would rely upon. We would say at the outset, it must be noted that these cases can be distinguished in our view because they involve circumstances where an agreement had not been reached, or had been reached but not approved by the valid majority of employees. Now I fully appreciate that my friend's case in reply is that she is of the view that they did not have an agreement.
PN517
The NTEU have sought reliance on the Coles Supermarket case. We say that this case can be distinguished from the current facts because there is evidence before the Commission that the agreement that we're talking about, in our submission, was generally approved by the valid majority of employees. In the Coles Supermarket case, the Full Bench considered the effect of perceived confusion concerning what was put to the relevant employees, about the effect of the agreement and therefore whether the agreement had in fact been generally approved.
PN518
In the case currently before the Commission, there was in our submission, no confusion as to what agreement was reached on 15 March. Again, that has to be seen in the context of the joint announcement which was annexure D, to the affidavit of Professor Klich. We say that the unions together with management attended mass meetings endorsing the agreement. The university together with the union sent communications to all staff by electronic mail, declaring that an agreement had in fact been reached.
PN519
In the Coles Supermarket case, the agreement was, to use the vernacular soul to the relevant employees on the basis that they would receive significant wage increases, as a result of the implementation of the agreement. This proved not to be true in circumstances. As a consequence the Commission and the Coles Supermarket case found that the requirement under section 170LT(v) and (vii) had not in fact been met.
PN520
My friend brought to your attention two other authorities. Namely, the WM Loud case and the Telstra case, which refer circumstances where the agreement has been or seeks to be varied. In the Loud case two words were inserted into the agreement after it had been validly approved. The Commission found that the word substantially changed the application for certification of the agreement and the agreement could not be approved.
PN521
In the Telstra case, the AMWU was listed as a party to the agreement. However, it was found that the CEPU had incorrectly acted as the AMWs behalf. It was later found that this was not correct. As a result of this misrepresentation of AMWU in fact being a party, it was found that section 170LT(vi) was not in that case it complied with. We say that they're very different facts from what is before you. Now before you, we say, that the evidence indicates that the NTEU did not make a formal objection to the agreement on the fact that we had agreed on the agreement, prior to the closure of the ballot.
PN522
We say that this objection was only found in the form a correspondence from Ted Murphy of the NTEU dated 19 December 2000, which is annexure Q to Professor Klich's affidavit. If it is the case that the NTEU no longer wishes to be party to the agreement and this will mean that strictly speaking, the agreement will be different - a different agreement from that which was voted on, that's accepted.
PN523
In these circumstances, we would submit that the Commission should adopt the approaches of Munro J in Stork and Bacon C in the Walkers case and we note that in Stork at paragraph 21 his Honour finds:
PN524
My practice is to accept that on occasions unions will choose not to be parties to an agreement. ...(reads)... that varies only in the technical detail as to who is bound by it. In the interests of consistency, I will abide by that practice.
PN525
As you know, it's quite clear from the judgment how Munro then approached the task of, affectively filleting that particular union's name from the agreement.We say that the approaches taken by Munro J and Bacon C to amend the agreement should be followed.
PN526
Moving to the next layer of analysis, which is the second question before the Commission, which is whether, once it is established that an agreement in the true sense of the Act has been reached, does it comply with the other requirements of the Act? We submit that requirements of the Act relating to the certification of agreements under section 170LJ have in fact been complied with. They are set out a Part VI(B) of the Act.
PN527
Dealing with each in turn, we set out there in section 170LT(1) and the comment there in relation to, the Commission must certify. The Commission has described this section as creating a mandatory duty on the Commission to certify and not to certify according to the terms and conditions set down by Munro J in the Storks case. The university submits that the agreement before you complies with each of the relevant parts of section 170LT. These are as follows.
PN528
In accordance with section 170LT(2), the university submits that the agreement passes the no disadvantage test and that these matters are set out for your benefit in the statutory declaration. Secondly, the university submits that the agreement complies with section 170LT(5) in that the valid majority of those persons employed at the time whose employment would be subject to the agreement genuinely approve of the agreement.
PN529
Thirdly, in accordance with section 170LT(7), the university submits that the explanation of the terms of the agreements to persons covered by the agreement took place in ways which were appropriate having regard to the person's particular circumstances and needs. We say that we fully comply with section 170LJ(3)(b) in explaining the terms to the agreement and that these are contained in the statutory declaration and affidavit in support.
PN530
In accordance with section 170LT(8), it contains a dispute settlement procedure that is at clause 54. In accordance with section 170LT(10) of the Act, the agreement specifies a nominal expiry date which is no more than three years after the date that the agreement came into operation.
PN531
In terms of any further consideration, we say that there are no reasons under section 170LU for the Commission to refuse to certify the agreement as made. Further, we say that all of the procedure requirements set out at section 170LJ have been complied with. We say the first requirement under section 170LI has been complied with. section 170LJ1 is referred to at paragraph B of my submissions. We say that it was approved by the valid majority of persons employed at the time whose employment was subject to the agreement. We say that the university took reasonable steps to ensure that at least 14 days before any approval is given, all persons had or had ready access to the agreement in writing. We further say that before the approval was given, the terms of the agreement were explained to all persons. They are the submissions on behalf of the university.
PN532
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner?
PN533
MR TURNER: Yes, your Honour. The CPSU just has a few short submissions in relation to this. Whether or not there was an agreement or an in principle agreement reached at the university leading up to the end of November, there is certainly not now an agreement by the NTEU executive and they are not a signatory to this agreement and therefore can be questioned whether or not they were an applicant in these proceedings.
PN534
The CPSU supports the position argued by the NTEU, in that, if the Commission was to now certify the agreement, it would be different to that voted. It would either, one, not have the NTEU as a party and - or, it will not include academic staff as the NTEU is not a party depending upon the amendments the Commission feels it would need to make to certify this agreement because of the NTEU not being a signatory.
PN535
In September 2000, an EVA between the CPSU and the Southern Cross University for general staff only was put to ballot. That ballot was lost. It is clear from our discussions with our members on site that it was lost because it was not a joint NTEU CPSU agreement. It was not a joint academic, general staff agreement. Therefore, if this agreement should be made or was now to be certified by the Commission, it would not be an agreement, I would submit, in the interest or with the support of both academic and general staff on campus, because of the previous ballot.
PN536
The CPSU signed this agreement because we believed it had been agreed to by the negotiating team. It was supported by a ballot at a meeting of our members. In line with those factors occurring, your Honour, the CPSU process is that we agree in principle to an agreement. This is then subject to a ballot of our members and then, in line with the Act, a ballot of all employees. Subject to those positive ballots, the CPSU executive signs off the agreement.
PN537
On 18 December 2000, we received a letter in terms of SCU2 attachment P, which is the letter asking the unions to sign the agreement. In terms of that letter, the CPSU signed the agreement and returned that to the University. However, at that stage, your Honour, we were not informed of the NTEUs position and we were not in fact informed of their full position until quite a short time before these proceedings began. That doesn't reconcile us from the fact that the CPSU is now in the position that we would prefer to have further discussions to try and finalise an agreement between all parties so that there is a continued, harmonious relationship on that campus and we could have a joint agreement. However, Southern Cross University has not agreed to further discussions.
PN538
If the Commission supports the Southern Cross University submissions, the CPSU wishes to remain a signatory because we see that in preference to there being a non-union agreement or an agreement at Southern Cross University with no union as a party. However, I reiterate my opening comments, your Honour. The CPSU supports the NTEU submission the agreement they have made and in that certification process, if it should be altered by the Commission to allow for its certification, if that resulted in the agreement not having the NTEU and CPSU as joint parties and not having the agreement covering both academic and general staff, then we believe the agreement that would be certified would be different to that voted on by staff in the ballot. Therefore, it has not conformed with section 170LT(5) in that, staff voted on a different agreement.
PN539
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Turner. Yes, Ms Duffy?
PN540
MS DUFFY: Your Honour, we too have put probably a lot of the submissions that we would normally put in closing really in opening on the last occasion we were before you. I certainly won't take you through those in detail again but perhaps just highlight the main points and the points that have certainly been assisted by the evidence that has been before you, particularly this morning.
PN541
I should say initially that we agree in fact with the CPSUs position that we are not an applicant to the agreement that is before you today.
PN542
THE SENIOR DEPUTY PRESIDENT: That was something I did mean to ask Mr Brown. The form provides for, in effect, joint or multiple applications. Do you say, I will direct it to you, since you are on the bench, Ms Duffy. Do you say that the NTEU cannot be found to be an applicant because it hasn't signed the notice.
PN543
MS DUFFY: That is probably not strictly correct, your Honour, but we would at least expect to have given our consent for the joint application to be lodged and we certainly didn't do that.
PN544
THE SENIOR DEPUTY PRESIDENT: The application was drawn by the university.
PN545
MS DUFFY: Certainly, we had nothing to do with it, your Honour. I have no knowledge as to how exactly that was lodged and I don't believe I have a copy of it.
PN546
MR BROWN: I can confirm that the university was the applicant in relation to the certification process.
PN547
THE SENIOR DEPUTY PRESIDENT: Can we just find it Mr Brown.
PN548
MR BROWN: Yes, I believe I have it. It's an application made under Division 2 by, and three, I'll call them parties for shorthand, I mentioned, SCU, NTE and CPSU, but it is made by Professor Rickard as the Vice Chancellor. There's no counter signature by either of the other unions for that matter.
PN549
THE SENIOR DEPUTY PRESIDENT: Thank you. The reason I wanted to be sure everybody understood what the factual position is that in cases where there is no appearance by one or other of the parties if the statutory declarations are all completed and the application is signed by both or all parties I would be prepared to go ahead and certify the agreement if it meets the other requirements. So there's some significance to be attached to whether or not the application is strictly a joint one or whether it isn't. This one isn't.
PN550
MS DUFFY: No, that's certainly our view and, if there was any doubt of course, we haven't- - - excuse me your Honour.
PN551
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Turner?
PN552
MR TURNER: Just to clarify, I think you'll find the CPSU did sign the agreement.
PN553
THE SENIOR DEPUTY PRESIDENT: I did. It signed the agreement, yes, I've got no doubt about that but did it sign the application, the form- - -
PN554
MR TURNER: Not the application, no, your Honour.
PN555
THE SENIOR DEPUTY PRESIDENT: That's what I'm concerned with.
PN556
MR TURNER: No, we signed the agreement and we submitted a Form 28, R28.
PN557
THE SENIOR DEPUTY PRESIDENT: A statutory declaration, yes.
PN558
MS DUFFY: Your Honour, I was just going to point out that, in fact, both those things were not done by us. So if there is any doubt about whether we're an - - -
PN559
THE SENIOR DEPUTY PRESIDENT: There is no doubt in my mind that you neither signed the application nor made a statutory declaration.
PN560
MS DUFFY: Nor signed the agreement either, your Honour.
PN561
THE SENIOR DEPUTY PRESIDENT: Nor signed the - three things. The CPSU did sign the agreement and did make the statutory declaration, it did not co-sign the application.
PN562
MS DUFFY: Your Honour, I might, just because I handed it up before, just before the closing arguments began, just go briefly to the extract from our rules that was handed up and, I think, marked NTU3. I don't wish to really make anything much of this other than to draw your attention to rule 22 which deals with the powers of our national executive. That really is the rule that means that our agreements must be approved at that national level. The rule there is 22.1 at (e) that gives the national executive the power to negotiate and enter into industrial agreements. The executive, as you will see at (h), actually has the power to delegate any of its powers other than the power to delegate itself. Obviously the negotiation of agreements is delegated mostly to local officials. The entering into of agreements though, however, is still a power retained by our national executive in that any agreement that is to be signed off on behalf of the NTEU must be approved by our national executive. The actual signing itself is delegated to a national elected official, nearly always the general secretary of the union but, in his absence, either of the other two elected officials, that is the national president or the national assistant secretary can sign agreements.
PN563
The purpose of taking you to that, your Honour, and I will go through the evidence, of course, which we say indicates that there never was an agreement with us but my purpose in taking you to that is clearly, today, there is not an agreement with the NTEU. It has not been approved by our national executive nor has it been signed by a relevant national official.
PN564
Your Honour, our case really is that there was never an agreement with the NTEU. We have had quite detailed evidence about the arrival at what we would say was an in principle agreement at the meeting held on 15 November. Really, what we say is that that agreement can only be characterised as an in principle draft agreement. The agreement itself, the actual document, did not really even exist at that point in time. Following that 15 November meeting there were changes made and it was then posted on the University's web site for consideration by employees. I think, your Honour, that is clear from the message that went out from all the negotiating parties which is annexed to the affidavit of Professor Klich, at annexure D. You will see there that it clearly states that it was hoped that- - -
PN565
THE SENIOR DEPUTY PRESIDENT: Just before you go on, I'd better make sure that I've got that. Yes, I'm glad you referred to it. Annexure D?
PN566
MS DUFFY: That's the email that was sent by the University but on behalf of the negotiating team. And, I think, your Honour, the evidence of Dr Gannon was that he had no issue with the actual wording of that email. He had, in fact, all but approved it but it's really the interpretation that we take issue with.
PN567
The relevant part of the email that I would like to attract your attention to is that it says in the second paragraph that, "agreement between the negotiating members was reached on all matters and it is hoped that the fully drafted and redesigned final form of the proposed enterprise agreement will be available for all staff to consider in electronic format on the web by Monday morning." You see there, your Honour, even the email that has been put out by the University there refers to the agreement needing to be redrafted and put into some sort of final form. Again, in the last paragraph, it refers to it being a draft agreement.
PN568
We say, your Honour, that clearly there was no actual agreement existing at that time. The evidence of Dr Gannon was quite clear as to what would happen from that point on in that the agreement would be taken to meetings of staff that were attended by both union representatives and management representatives by way of explanation in dealing with any issues that may arise out of that draft agreement. Those meetings were held on both campuses of the University, Lismore on 23 November and then at Coffs Harbour on 27.
PN569
In addition to that, your Honour, there was, of course, another process that was perhaps even more important to us as a union considering entering into such an agreement and that was, of course, to take the agreement or the proposed draft agreement to a meeting of union members. And you have heard evidence that that meeting was held, as a joint meeting of the CPSU and the NTEU, on 27 November.I think, your Honour, you're probably very well aware of the terms of the resolution that was passed at that meeting. I think it's - - -
PN570
THE SENIOR DEPUTY PRESIDENT: It's in Dr Gannon's statement of declaration?
PN571
MR BROWN: That's right. That's the version that comes most immediately to hand, your Honour. At paragraph 4, the bottom of the first page, he sets out the text of that resolution. I think a copy of that is also appended to Professor Klich's statement as well. Now, your Honour, clearly that motion that was passed was again conditional and it only dealt, really, with a proposed enterprise agreement. There certainly was, and we don't resolve from the fact that there was agreement in principle expressed at that meeting, but it was subject and I can quote directly from the motion:
PN572
Subject to minor changes and ratification by CPSU and NTEU head offices and further subject to an exchange of letters, regarding a binding gender equity clause, which is absent from the current draft agreement.
PN573
Now, your Honour, at best that can really only be considered conditional approval of a proposed agreement. Dr Gannon's evidence is that none of those pre-conditions were met. If we separate it, perhaps into three sets of the changes, the ratification by the union head offices and the exchange of letters in relation to the gender equity clause. None of those conditions were met. So, your Honour, we say again, there simply was no agreement at that point in time either.
PN574
So I think the university has made something of suggesting that we did not inform them that there was no agreement. We say that that is not true and I'll go to that evidence in due course. But what we say is in fact there simply never was an agreement. It was only ever conditional and the university should not have ever assumed that there was one. In cross-examination, Professor Klich was asked if he had ever sought confirmation that there had been ratification by either of the union head offices and I believe the answer was no. I don't have the exact extract of the transcript there.
PN575
But it's clear that such ratification was certainly never forthcoming from the NTEU. Your Honour, what we say has happened is that really the university issued the ballot prematurely. Obviously in the mistake in belief that there was in fact an agreement on the afternoon of 27 November, when clearly the evidence that there simply was not an agreement. There seems to be some confusion and we certainly don't agree that there is in fact any confusion about when the conversation between Mr Dolahenty and Mrs Waters took place.
PN576
We say that the evidence from Mr Dolahenty is clear. He telephoned Mrs Waters, mid afternoon on 27 November and informed her that national office approval from the NTEU was not forthcoming and that the ballot would have to be stopped. Your Honour, that has been confirmed by Dr Gannon's evidence. Certainly in that he has given evidence of a phone call between himself and Mr Dolahenty later that evening, in which Mr Dolahenty confirmed that he had that phone call with Mrs Waters earlier in the afternoon.
PN577
Now, it's certainly, in our view at least, curious that the university has not called Mrs Waters in this case to give evidence as to when that phone call took place. So we say that the only evidence that you have before you is the evidence of the NTEU officials which clearly indicates that that took place on the afternoon of 27 November and that, in fact, the ballot could have been stopped if the university had been minded to do so.
PN578
Now, regardless of when that conversation took place, your Honour, there's also the email confirming that conversation that was sent by Dr Gannon to Mrs Waters, certainly some time round the middle of the following day, that is 28 November and that's attached to Dr Gannon's statement and marked with the letter, "B".
PN579
Now, your Honour, as far as what the relevant definition of what an agreement is and when an agreement is reached, we say that clearly an agreement that comes to the Commission to be certified must be in a form that can actually be certified. It must be a written agreement between the relevant parties and it must be signed by those parties. We say, clearly you don't have that before you today in relation to the NTEU and that the university can't rely on an agreement to enter into an agreement, or a draft proposed agreement which may or may not have been reached on on 15 November.
PN580
Your Honour, if I could turn to what we say is the next major point. Even if it were established that there was a valid agreement before you today that could be certified, we say that it can't be certified because it doesn't meet the requirements of section 170LT(v), in that the version of the agreement before you has not been genuinely approved by a valid majority.
PN581
I think, your Honour, once again you're familiar with our arguments as to why that is the case. It is simply because it purports to include the NTEU as a party and that is the version of the agreement that was voted on and we say that the NTEU is clearly not a party to the agreement and therefore, the agreement cannot have been genuinely approved by a valid majority. Dr Gannon also gave further evidence, your Honour, as to there being some confusion about the voting process and what version of the agreement was actually being voted on and I would just refer you to attachments C and D to his statement which we say constitutes that evidence.
PN582
Your Honour, we say that the only course of action open to you today is to refuse to certify the agreement. I have taken you in some detail to the case law which has been dealt with again by Mr Brown today. I don't wish to go to that in great detail again, other than to indicate that we rely on the submissions that we put on the last occasion, in relation to the various cases that dealt with similar issues. Particularly, those submissions are at paragraphs 59 to 62 of the transcript and then at paragraphs 87 to 115.
PN583
We say, your Honour, that nothing in the case that was referred to today that is the Walkers Pty Limited case, changes what we put to you on the last occasion. We say that clearly both on the facts and on the approach taken by the relevant Commission members, the decisions in both the Stork matter and the Walkers matter can be distinguished. The main difference on the facts, your Honour, is that in those cases there was an agreement before the Commission that purported to bind the relevant party and I think there was no issue in either case, that there had been an agreement.
PN584
What had happened was that for - well, for different reasons in both cases, one of the union parties sought to withdraw from that agreement after it had been voted on by a valid majority and lodged with the Commission. Now, your Honour, we say that the circumstances before you today are clearly different to that, in that there was not an agreement with the NTEU before it went to the ballot and there certainly is not an agreement with the NTEU that has been lodged with the Commission.Your Honour, on the last occasion I also took you to the decisions of Commissioner Smith, in the Telstra matter and also the Full Bench of the Commission in the matter of Scott Jory and we say that, even if you are not dissuaded by our argument that the Stork case and the Walkers case can be distinguished on the facts, there is clearly another approach that is open to you and has been taken by other members of the Commission in the circumstances.
PN585
If I could perhaps just refer to the main part of the decision that I'm relying on, the decision of Commissioner Smith and I don't know if you still have that before you, your Honour. I seem to have lost it but it is - it's paragraph 26 of that decision, where Commissioner Smith says that, clearly if there has been - if the agreement has been voted on under a misapprehension, it cannot be certified on that basis. In this case, in the Telstra case that is, he indicated that members of the AMWU actually voted on the agreement believing that that organisation was a party to the agreement.
PN586
In that case, there cannot be compliance with section 170 - he refers to LT(vi) but I think I've clarified that that probably should be LT(v) on the last occasion.
PN587
THE SENIOR DEPUTY PRESIDENT: Yes.
PN588
MS DUFFY: Now, your Honour, we say that really that is certainly the closest analogy to what has happened in this case before you today. Your Honour, once again we say that really the only way that the agreement could be validly certified is if another ballot was ordered. Again I referred you to the decision of the Full Bench in the Coles Supermarket case, in which that course of action was taken.
PN589
I also note, your Honour, that even if you were to prefer the approach of Munro J in the Stork case, at paragraph 18 which I think Mr Brown read out to you, he actually indicates that the discretion or any discretionary power in certifying an agreement is actually subject to sections 170LT and LU. We say in this case that clearly there are compelling reasons under section 170LT(v) which would suggest that you should not certify the agreement.
PN590
Those are our submissions, your Honour.
PN591
THE SENIOR DEPUTY PRESIDENT: All right. Thank you, Ms Duffy. Mr Brown?
PN592
MR BROWN: We're aiming for 3 o'clock, I'll be very short. We would further submit that much of this depends upon the definition of the word, "an agreement" or "the agreement" in terms of section 170LI and section 170LJ. We've heard today both in evidence and in my friend's submissions to different variations of that theme. In principle agreements, draft agreements, agreements subject to conditional approval, ratified agreements and dare I say it, the top of the list would be an agreement ratified in accordance with the memorandum and articles or the rules of the NTEU.
PN593
We would say that somewhere in that spectrum there lies the definition under the Act. We would say that the evidence points to the fact that our client did have reason to believe that after entering into negotiations in good faith, he did have an agreement. We would say in closing that the union at no stage on the evidence chose to disallow us of that view, that the ballot process then took place and that my client should be now allowed to take the benefit of a properly reached agreement and properly constituted ballot process taking place and that the agreement certified. If the Commission pleases.
PN594
THE SENIOR DEPUTY PRESIDENT: Mr Brown, why do you say the impact of the combined force of section 170LI(i), which is dealing with division 2 agreements which this one is, is it not?
PN595
MR BROWN: Correct.
PN596
THE SENIOR DEPUTY PRESIDENT: For an application to be made to the Commission under this division, there must be an agreement in writing. Where is the agreement between the NTEU and the SCU in writing?
PN597
MR BROWN: We would say that was in the form of the document which was put forward to the ballot. It depends upon how you read it. There must be an agreement in writing?
PN598
THE SENIOR DEPUTY PRESIDENT: Yes. Now, I should be perhaps a little clearer. Rule 48(i) of the Commission's readings requires that the application be accompanied by the agreement signed by the parties.
PN599
MR BROWN: The agreement? Well, clearly we don't an agreement signed by the parties because one union has chosen not to. Am I to assume that your interpretation of the words in 170LI(i): There must be an agreement, in writing. We would submit that the agreement that the Act is referring to there is the actual agreement that we say was communicated to staff, is the agreement that we're voting on.
PN600
THE SENIOR DEPUTY PRESIDENT: Which you say was in writing?
PN601
MR BROWN: Which we say was in writing.
PN602
THE SENIOR DEPUTY PRESIDENT: Yes. But you don't think - I'll put it another way. You would resist an interpretation of 170LI(i) that the agreement in writing needed to be signed by all the parties?
PN603
MR BROWN: Yes.
PN604
THE SENIOR DEPUTY PRESIDENT: Very well.
PN605
MR BROWN: If the Commission pleases.
PN606
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN607
MR BROWN: Thank you.
PN608
THE SENIOR DEPUTY PRESIDENT: I reserve the decision. I adjourn the Commission.
ADJOURNED INDEFINITELY [3.02pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
MARK ANDREW THOMAS PATRICK DOLAHENTY, AFFIRMED PN25
EXAMINATION-IN-CHIEF BY MS DUFFY PN25
THE WITNESS WITHDREW
EXHIBIT #NTEU1 STATEMENT OF MR M.A.T.P. DOLAHENTY PN45
<MARK ANDREW THOMAS PATRICK DOLAHENTY, recalled
EXAMINATION-IN-CHIEF BY MS DUFFY PN46
CROSS-EXAMINATION BY MR BROWN PN56
EXHIBIT #SCU3 E-MAIL TO PROFESSOR KLICH DATED 14/11/00 PN63
PAUL MICHAEL GANNON, AFFIRMED PN225
EXAMINATION-IN-CHIEF BY MS DUFFY PN225
EXHIBIT #NTEU2 DR GANNON'S STATEMENT PN247
EXHIBIT #SCU4 DOCUMENT HEADED PAUL GANNON 15/11/2000 4.06PM PLUS 1000 PN326
WITNESS WITHDREW PN468
EXHIBIT #NTEU3 EXTRACT FROM THE RULES OF THE NTEU PN484
EXHIBIT #SCU5 EXTRACT FROM MACQUARIE DICTIONARY PN486
EXHIBIT #SCU6 FURTHER SUBMISSIONS OF SCU PN490
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