C2002/841, Transcript of Proceedings [2002] AIRCTrans 1314 (18 April 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2002/841
C2002/842

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

and

UNIVERSITY OF WOLLONGONG

Notification pursuant to section 99 of the Act
of a dispute concerning type of employment,
classifications, redundancy payments, notice
of termination dispute settling procedures
and incidental matters in relation to the
employment of Dr Grant Rodwell

Application under section 170LW of the Act
for settlement of dispute concerning type
of employment, classifications, redundancy
payments, notice of termination dispute
settling procedures and incidental matters
in relation to the employment of Dr Grant Rodwell

SYDNEY

10.10 AM, THURSDAY, 4 APRIL 2002

Continued from 18.2.02

Hearing continuing

PN419

THE COMMISSIONER: I notice some changes in appearances, although appearances have altered a little on each of the occasions previously. I will take appearances again.

PN420

MS MULLINS: I appear on behalf of the National Tertiary Education Industry Union. Appearing with me is Michelle Rangott, who has appeared previously. Also present in the Court is Dr Rodwell himself.

PN421

THE COMMISSIONER: Thank you, Ms Mullins.

PN422

MS RONALDS: I appear for the University of Wollongong, instructed by Mr David from Hanson's, solicitors.

PN423

THE COMMISSIONER: Thank you, Ms Ronalds.

PN424

MR TILBROOK: In matter C Number 2002/841, I appear for the Australian Higher Education Industrial Association. I am an officer of the Association.

PN425

THE COMMISSIONER: Thank you, Mr Tilbrook. These matters commenced on 31 January 2002, and continued for report back and mention on 18 February. At the conclusion of the latter hearing, the Commission issued a decision and directions in print number 914507, subsequently amended as to return dates for the filing of submissions and documents in regard to jurisdictional objections and merit issues of the substantive applications. The filing dates were subsequently amended by an amended notice of listing to more closely align to the hearing date today.

PN426

All parties have complied with those directions. There is one exception which the parties may be able to correct for me now, and that relates to the parties' agreement to prepared an agreed statement of facts. Could I ask the question? Has it been prepared and if it has, may I be provided with a copy of it? Is there an agreed statement of facts?

PN427

MS MULLINS: Commissioner, there is no agreed statement of facts. There was an attempt between the parties to resolve an agreed statement of facts, but the matters that could be agreed essentially went no further than what is already on record and the decision of Branson J, so on that basis, it didn't particularly assist the Commission or extend the matter so there was no additional agreed statement of facts.

PN428

THE COMMISSIONER: All right. Thank you, Ms Mullins, for that explanation. Today's proceedings are for the expansion of and clarification of the parties' respective jurisdictional positions. To the extent possible, I ask that reference to the merit issues be confined to those issues that directly impinge upon the Commission's discretion and jurisdiction to deal with the order sought by the NTEIU. I note that those orders were restated in annexure 1 to the NTEIUs submissions. Although those documents, in themselves, were undated, they were attached to a covering letter to the Commission dated 6 March.

PN429

Now, as to the course of the proceedings, I am open to your suggestions. It is a jurisdictional hearing, and in the normal course of events, it would be for those who raise the jurisdictional objections to make good their case at first instance. If there's no objection to that, then Ms Ronalds, as you represent the former employer, you may care to go first.

PN430

MS RONALDS: Commissioner, you should have, and I hope have received a folder with the submissions.

PN431

THE COMMISSIONER: Yes, I have your complete folder with several attachments marked A to H.

PN432

MS RONALDS: They are the just the main - - -

PN433

THE COMMISSIONER: This was received in the registry on 20 March.

PN434

MS RONALDS: They were the submissions, obviously, filed to comply with your directions, and following the provision of those submissions, the NTEIU, if I may call them that informally, filed some submissions in reply which, essentially, recast their argument and, perhaps, refine it. I thought the most convenient approach, subject to any questions that you, Commissioner, might have is rather than - certainly, I don't intend to read the submissions and rather - - -

PN435

THE COMMISSIONER: There's no need to do that - - -

PN436

MS RONALDS: No.

PN437

THE COMMISSIONER: - - - but you may wish to take me to particular points.

PN438

MS RONALDS: Yes.

PN439

THE COMMISSIONER: As I said, the purpose of this hearing is really for amplification and/or clarification of the submissions that are already before me.

PN440

MS RONALDS: My approach is, if this is a convenient one for you, Commissioner, is to, in essence, reply to the NTEIU submissions in reply. That is, rather than - as I say, theirs is really a recasting of their original submission and an attempt to, perhaps, refine some of their propositions. I don't intend to repeat the major matters upon which the University relies in its claim for want of jurisdiction but I will, in fact, if it is convenient, take you through the submissions in reply and, in essence, reply to those. This will involve some recourse to authorities and I understand that my friend has a bundle of those for you.

PN441

Unfortunately, I worked off the book version so there may be just a few moments where we have to adjust to finding the right page in it.

PN442

THE COMMISSIONER: Well, do you have copies of the authorities that you are going to refer to?

PN443

MS RONALDS: I do. No, I had assumed my friend would have done that because they were her authorities. I'm working through her submission.

PN444

THE COMMISSIONER: You have just used different reference points.

PN445

MS RONALDS: I have taken it from the CLRs instead of the published ones.

PN446

THE COMMISSIONER: The hard copy rather than the fresh air.

PN447

MS RONALDS: Yes, and she has taken it off the net I think is, perhaps, the difference so I hope that that won't cause us too much delay. I don't intend to spend a lot of time on the authorities but, perhaps, if - - -

PN448

MS MULLINS: Apologies, Commissioner, that they are off the web but with the nature of union resources, they appear in the order that they are in the submission and reply.

PN449

THE COMMISSIONER: Thank you. These are all authorities, are they?

PN450

MS MULLINS: Yes, thank you, Commissioner.

PN451

THE COMMISSIONER: There's no other extracts or summaries or anything like that? They are all just straight authorities?

PN452

MS MULLINS: Straight authorities.

PN453

THE COMMISSIONER: Well, they will be appropriately referred to as the parties refer in their submissions.

PN454

MS RONALDS: The other document that appeared to be relevant, but when I went through the tenders, does not appear to have been tendered last time or at least in its full form is the current University of Wollongong enterprise agreement. If I could just hand up a copy of that?

PN455

THE COMMISSIONER: Is that the Academic Staff Enterprise Agreement?

PN456

MS RONALDS: Yes.

PN457

THE COMMISSIONER: Print T3253?

PN458

MS RONALDS: Yes.

PN459

THE COMMISSIONER: I have a copy of it.

PN460

MS RONALDS: You have a copy of that. It is just that I will be referring to that.

PN461

THE COMMISSIONER: I think it has been forearmed or forewarned. I think the document was referred to on the very first day and, indeed, on the second day. As a matter of abundant caution I've printed a full copy of it for these proceedings.

PN462

MS RONALDS: Thank you. I just had one copy for you because I wasn't sure that you necessarily would have done so. The University's central proposition is that whichever way one reviews the draft orders, and as you have correctly pointed out there in annexure 1, at page 14 of the NTEIUs submissions, and perhaps I could just take you to those for convenience? Do you have that?

PN463

THE COMMISSIONER: I have.

PN464

MS RONALDS: In essence, I guess, the debate between the parties relates to first, draft order A1(i) which is that the Commission orders that the University of Wollongong treat Dr Rodwell as a continuing full-time employee of the University employed in the classification of lecturer, level B, step 6 and that the order in (4) shall remain in force for a period of 2 years. Now, the impact of number 4 on number 1 has never been entirely clear. To be a continuing full-time appointment, it appears, by the impact of 4, that it is intended it will be a continuing full-time appointment for 2 years only.

PN465

That is to put it, therefore, in a different category from some other continuing full-time appointments and the impact is not, at least on my reading of the submissions by the NTEIU, traversed anywhere. I'm not able to really properly respond because I'm a bit unsure of the impact that it is intended for will have but, perhaps, that may be a matter I can address in reply. The University contends that the essential difficulty that arises in relation to draft order A1(i) is that it revolves, in a sense, around the verb "treat', that is, that the University treat Dr Rodwell as a continuing full-time employee.

PN466

The impact of her Honour, Branson Js decision, and I think you have that, Commissioner, and it is a matter that we have traversed last time we were here and I put it in full in my submissions and I won't take you back to it, but in essence, there is - on her Honour's decision, there is no contract in existence. There was a 1 year contract, a 12 month contract. Through effluxion of time, it expired on 31 January 2002 and no longer exists. Now, for this Commission to make an order that Dr Rodwell be treated as a continuing full-time employee is to require this Commission to create a contract of employment where none exists.

PN467

That, essentially, involves a task which, the University says, this Commission, while it has many powers, it does not have the power to do that. If I could, perhaps, just take you through what that process would involve in very brief terms. Essentially, none of the authorities upon which my friend relies, not one of the them, supports the contention that that is the power of the Commission. Not one of them takes you to any decision made by this Commission where that task is performed by one of your brothers, or has been performed by one of your brothers and sisters.

PN468

It is my submission that the reason for that is abundantly clear. It is a power that you don't have to exercise. The authorities upon which the NTEIU rely essentially are, not all, but essentially are about varying existing rights or existing terms and conditions of employment. So when you look at things like what was the amount of redundancy payment made, then that is about a person who received a redundancy payment and it is looking at the quantum. Similarly, job reclassification decisions, and I will return to those, are also not of assistance to you on the path you are being asked to travel by the NTEIU because they look at jobs that already exist.

PN469

They have a person working in the job. Therefore, there is an existing and ongoing employment relationship between an employer and an employee, and it is about their existing terms and conditions of employment and seeking a variation of those. If that was what was occurring, then I wouldn't be here at the moment making the fundamental jurisdictional point. What is being sought from you is that you create a whole new contract. It is not possible to vary the terms of the former contract because to do so would be to fly in the face of her Honour's very specific findings about the contract. Again, I have referred to those in my submissions, and I won't waste your time taking you to them.

PN470

So it is not about varying the terms and conditions of an existing contract or, indeed, looking at whether there was, for example, a termination that was harsh or unjust because there was no termination. Her Honour found that there was a contract that was terminated through the effluxion of time. What you are being asked to do is create a very different creature from those which the authorities being referred to do or even hint at as an available power. If you are to do that, then you will have to turn your mind to what sort of contract you will be creating.

PN471

Then, when one views the task being put before you by draft order A1(i), one can see the very difficulty and the reason why it is such an impossible task for you to undertake because the simple verb "treat" in the draft order masks the real task that you have to undertake. If you are to order the University to treat Dr Rodwell as a continuing full-time employee, just take that part of it at the moment, then you will have to make a finding - and if I could, perhaps, just conveniently ask you to turn to the enterprise agreement if you have that to hand, Commissioner?

PN472

First of all, under 19(1), there's a provision about the University engaging a person as a staff member. Now, that is, in essence, what you would be doing because Dr Rodwell is not a staff member so he must be engaged as a staff member. He can't be treated in the normal sense of the word because he isn't an employee. So first, he must be engaged and then there must be terms that correspond with one or other of the types of employment and what is being sought, as I understand it, is clause 19(4) continuing employment.

PN473

You would have to form a view that that was the appropriate term of the contract which you are asked to identify. Then, in 19(6) is fixed term employment. Again, you would be asked to decide that there was a categorisation of 19(6) that did or didn't apply. Then you would be asked to engage in some process in relation to clause 20 about what were the terms of the engagement. Again, you would have to exercise a discretion in relation to that matter. If one then goes back a step, one would then have to look at the nomenclature of the job being sought.

PN474

Now, the draft order says that Dr Rodwell should be classified as lecturer, level B. You will see, if you look at page 11, clause 15(1), there's levels A to E.

PN475

THE COMMISSIONER: I'm sorry, what was that reference?

PN476

MS RONALDS: Page 11. Sorry, assuming you have got the same page as me, possibly you don't. Clause 15(1) of the enterprise agreement refers to schedule 4(1) and then I will take you to schedule 4(1). I'm not sure whether you have the same print as me so I'm not sure if my page numbers are relevant.

PN477

THE COMMISSIONER: Well, I have to say mine does not have page numbers so paragraph numbers will do fine.

PN478

MS RONALDS: You will see 15(1) - - -

PN479

THE COMMISSIONER: Yes.

PN480

MS RONALDS: - - - and if I could ask you to turn to schedule 4(1) where the position classification standards are - - -

PN481

THE COMMISSIONER: Just a moment, Ms Ronalds. Now, we might have a problem.

PN482

MS RONALDS: It is page 69 of mine but would it be more convenient if I passed up the one I have that has the same page numbers?

PN483

THE COMMISSIONER: That is okay. I've got it now. Yes, I have schedule 1.

PN484

MS RONALDS: Schedule 4, sorry? It is 4(1) sorry. It just several pages on. The first few schedules are quite short. It is headed: Schedule 4, Position Classification Standards. It is only a matter of some four pages on from schedule 1.

PN485

THE COMMISSIONER: Okay, schedule 4.

PN486

MS RONALDS: Thank you, I'm sorry. You will see that level B, which is at the top of the page, has a general standard for a level B academic and then, "Specific duties may include." Now, while creating the contract of employment you will be required to specify which duties Dr Rodwell is to perform for the university because not all level Bs perform all duties, as is indicated by the "may include". If you look down the list you will see that they are a variable range of activities. While creating the contract of employment you will be required to specify the specific duties. You are asked also to nominate the step. Now, in schedule 1 are the steps under each of the levels of the academic appointments. Step 6 is the top of the range for level B in schedule 1.

PN487

Now, level B step 6 happens to be the level which Dr Rodwell was appointed last time for his 1-year contract but you would not know whether that was in fact a fair or appropriate appointment and just because it occurred last time does not mean necessarily that it is the appropriate outcome. In fact he might be being asked to create a harsh and unjust outcome by that very step. You don't know and you wouldn't be able to know. It may be he should be a professor at level E or it may be he should be an A. You would be asked to exercise a discretion that, in my respectful submission, simply is beyond the capacity of the powers that you have to create.

PN488

Similarly you would be required to - and there's a number of other provisions in the enterprise agreement that you would have to exercise your discretion while creating this contract of employment, who would be the supervisor, etcetera. Not only would you be required to create a contract of employment, you would be required to create the position itself. It is common ground and has been referred to by Ms Mullins earlier on the previous appearances that the position, a position, was advertised for which Dr Rodwell applied and which he didn't obtain. So that there is no position itself for you to order the university to treat him and that would require a whole process that you would understand about creating a position, finding the funding, finding the students. Obviously it is a university, its primary role is the education of students, it must have a work load, an individual academic must have a work load, positions are not created at will.

PN489

I am sure you will appreciate in times of economic restraint all faculties have to operate within budgets as does the university. You would be asked - you are being asked to say that the university create a new position somewhere and positions come within faculties, they arise from within faculties. They are subject obviously to an approval process and internal mechanisms. You would be asked to take over the role of the university in creating such a position, determining there would be students and determining what those students would be taught. You would be asked to be putting yourself in the shoes of advertising a position, interviewing, merit selection and determining that Dr Rodwell was the appropriate person.

PN490

That is the whole process which goes behind what is being asked and that is because there is no longer a contract in existence and there is no employment relationship and therefore there is no capacity for you to treat, as is being requested, or order the university to treat Dr Rodwell as an existing employee and therefore just varying the terms and conditions of his employment. The same difficulty arises when one looks at draft order B(1) which seeks that he be given a payment which is in essence an ex gratia payment as it is a payment that he currently has no legal entitlement to.

PN491

Those who would qualify for that sort of payment are those who come within a different classification of employment. Again that is a matter that I have traversed in my written submissions and I won't go to at any length but you would be required in essence to put him in a position that he never occupied and then to give him a payment as sought that again goes to a position that her Honour has found he never held at any time with the University of Wollongong. That is the difficulty about trying to in essence ignore or treat as if not made, the actual orders and findings of her Honour. One can only proceed on the basis that those orders are final, binding and determinative upon the parties, they being the principal parties, with no disrespect to my friend, but the principal parties before you in relation to this matter. That is why you will see that I included the actual application before the Federal Court as tab A to my submissions, do you have that, Commissioner?

PN492

THE COMMISSIONER: Yes, I have.

PN493

MS RONALDS: You will see that the orders sought include importantly 3.1 that a declaration that Dr Rodwell has been employed by the respondent under continuing employment and in order that the respondent give full effect to the employment of the second applicant, that is Dr - as continuing employment under the agreement. That is exactly the same, slightly different words but exactly the same order as draft order A that is being sought from you today and that is exactly the order which her Honour very specifically declined to make.

PN494

It is not a different order. It does not have any different impact. The wording may be slightly different but the crucial wording "continuing employee", "employment", is used - that relates back to the classification in clause 19 of the enterprise agreement and that was sought before the Federal Court, that was what her Honour specifically - they are the orders her Honour specifically declined to make in the Federal Court and that is the same order being sought from you, the same impact, the same words, the same person. They are matters that I have dealt with at some length in my submission.

PN495

That essentially addresses the first two pages of the submissions in reply. If I could then take you to paragraph headed 4, whether the Commission is prevented from making any orders, that is paragraph 3 of the submissions in reply from the NTEIU. Obviously the primary submission of the university is that there is in fact no power for you to engage in the processes. Firstly, her Honour has specifically addressed the matter, made a determinative ruling on it and you must - you are bound by that ruling and cannot re-traverse and despite whichever way it is dressed up, the orders when one compares with what was sought in the application to the Federal Court by the NTEIU and the draft orders sought, the primary draft order A(1) are demonstratively the same, mirror the same and would have the same result of creating an employment relationship that was specifically rejected by her Honour.

PN496

The university says that there is no industrial dispute as defined in the Act. Again that is a matter that I explore at some length in the submissions and if I could just briefly take you to the propositions asserted by my friend to support her contention that the orders can be made and essentially in reply it is my submission that none of the authorities upon which she relies in fact support the contention for which she advances them. You will see down the bottom of page 3 of the submissions in reply, paragraph 4.7 there is a reference to Cram, that is in re Cram ex parte New South Wales - I am sure, Commissioner, you are well familiar with it and I don't intend to spend a lot of time on these authorities but just to take you to the essential proposition of each of them and to demonstrate that it does in fact either not support what it is said to be, or even if it does it is not a relevant matter, not an issue that assists you at all in the matters that are for you to determine today.

PN497

Now, 4.7 starts with the proposition that the Commission has held that there is an industrial dispute even when there was not a current employment relationship. Now, of course, the debate about the current employment relationship in relation to these proceedings is that there was one and it no longer exists for the fact that it has been completed. Therefore to support the contention even by analogy one would be seeking some sort of proposition where some - the High Court or whoever has considered it and none of these matters in fact are looking at that. In re Cram you will see that the proposition - there was a major and a minor proposition. The dispute was about - I will just give you the CLR reference if that is appropriate. I won't take up too much time, I will just read the relevant paragraph. Re Cram is reported at [1987] HCA 28; 163 CLR 117 and at page 135 the Court was together - talks about - addresses what it is about.

PN498

It was in fact, while suggested by my friend that it was a dispute about prospective employment, was an industrial matter, in fact it was cast in a very different way than that. At 135 at about point 7 on the page with paragraph starting:

PN499

A dispute about the level of manning is a good example. It has -

PN500

and that is what the dispute was about. The dispute was about manning and recruitment, in particular a dispute about mode of recruitment, reading from the headnote, and that was found to be an industrial matter. The reason it was found to be an industrial matter by the High Court was that it had a direct impact on the work to be done by employees, affects the volume of work to be performed by each employee, the conditions in which he employs his work, so also with the mode of recruitment. That was the bigger issue, was a matter about the mode of recruitment:

PN501

The competence and reliability of the workforce has a direct impact on the conditions of work. Notably as they relate to occupational health and observance of safety standards, employees as well as management have a legitimate interest in both these matters.

PN502

Now, none of those are issues that assist you, in my respectful submission, in looking at how one goes about the process for an individual former employee to create a contract of employment. They are quite different issues about the way management was approaching an increase in its workforce, how it would devise the process of recruiting. Similarly in Ranger which is again at 160 CLR but at 656 and again reading from the headnote conveniently:

PN503

The union notified the Commission of a dispute between it and a company which was alleged to have arisen from the company's action of purporting to summarily dismiss seven of its employees.

PN504

That was the dispute in Ranger. That was a very different proposition, of course, because section 4(1) has a specific power in relation to dismissal. So again it is not a proposition or not an authority that will assist you in the matters to which you have to turn your mind in this application or notification because it was about a specific provision and it was about summary dismissal. The consideration by the High Court in the provision there is a very different matter and, as I say, there's nothing on my reading of Ranger that would assist you in addressing the issues that you have to address in relation to this application.

PN505

It involved matters of employees and employers and the right to dismiss. So it was addressing a very specific statutory provision and it is simply not a relevant principle. Similarly at the top of page 4 of the submission is reference to the Australian Federation of Air Pilots v Eastern Airlines where my friend describes or summarises conveniently the case where a group of employees of one employer made a demand concerning the mode of recruitment for another workplace. Now, what of course is interesting about AFAP v Eastern Airlines is that the two employers were Eastern Airlines Australia Proprietary Limited and Australian Airlines Limited. They were interconnected - one was a subsidiary of the other so they were not two separate employers. They in fact had a direct relationship and I'm sure we are all familiar with Eastern and what happened.

PN506

In this instance the dispute was about the nature of the relationship between Eastern Airlines and Australian Airlines, that was the nature of the dispute. Then the nature of the claim made by employees of Eastern Airlines who wished to obtain a benefit available only to the pilots of Australian Airlines and then the scope of the definition of industrial dispute in 4(1) is conveniently described and this is - I'm sorry, I was remiss, it is (1992) 47 IR 216 and conveniently at 219 at about point 6 on the page is a paragraph which reads:

PN507

The demands which are being made in this matter are essentially being made by a group of employees employed ...(reads)... not only on their own employer but another employer.

PN508

Of course, what was crucial was what was the relationship between the two companies themselves. That was determinative of the issue, not any other matter. Again, in my respectful submission, not a matter that assists you in any of the issues that you need to determine in this matter. Similarly the Australian Airlines and Moore decision is not a matter because it was looking at recruitment potential, etcetera. The authorities refer to, in paragraph 4.8 by my friend and I won't go through each of those in detail, but I note that they are in fact, and I referred to this earlier, they are cases which refer to amending classification of existing employees and you will see that is the heading.

PN509

Now, that exactly falls into the earlier category that I described, that is there is an existing employment relationship and what the Commission clearly has power to do and there would be little dispute about this, is looking at the terms and conditions of employment for existing employees. Similarly the letter of employment and similarly overtime payments is for existing employees and redundancy is for existing employees within the matter. So in my respectful submission, nothing in 4.8 assists the NTEIU in its assertion and indeed none of the authorities relied on support the proposition that the Commission has the power to make the orders sought in relation to Dr Rodwell.

PN510

As I indicated at the opening at the beginning of my submissions, that is because there is no relevant authority which identifies this as a power because, with respect, there is no such power. The second issue dealt with in reply is the issue of industrial dispute and whether the existing log of claims in fact provides any assistance. It is my submission that the existing log of claims does not do so and I have traversed this with the numbers and the material, etcetera, because it does not address the very fundamental issue you are being asked to address which is not about the classification of an existing employee, how to convert and existing employee, any of those matters, that is not what you are being asked to do.

PN511

That is why it is important always to go back to focus on what is the primary order sought which is the creation of an employment contract. There's nothing in the previous log of claims which seeks to give the union or the Commission the capacity to unilaterally create a contract of employment and how the terms and conditions, the ones that I have already taken you to and I don't intend to repeat myself, how that would assist - there is nothing in the log of claims which provides any of those maters.

PN512

In fact paragraph 5.4 NTEIU concedes that crucial matter, that is that the new dispute must fall within the log of claims. Setting aside that there is no dispute as such, there is nothing on the reading of the existing log of claims or the dispute finding that suggests that what is being endeavoured to be achieved in this process could in fact assist it. Now, again there are some authorities referred to and I will just briefly take you to each because, in my respectful submission, they do not assist my friend at all in the matter which she endeavours - upon which she seeks to rely. In Blakely, again conveniently reading from the headnote, it says that the new dispute is considered and addressed as a part settlement and that the High Court accepted this practice, etcetera. What Blakely was actually about - this is [1950] HCA 40; (1950) 82 CLR 54.

PN513

THE COMMISSIONER: Just a moment, I will see if - I am going through the package of authorities as supplied by Ms Mullins.

PN514

MS RONALDS: I assume there's an index at the front and perhaps that would help.

PN515

THE COMMISSIONER: Is it in there, Ms Mullins? I think you indicated to me that these were in the order that are referred to in your submissions in reply.

PN516

MS MULLINS: Yes, that is right.

PN517

MS RONALDS: In paragraph 5.4 of the submissions.

PN518

THE COMMISSIONER: I don't appear to have Blakely's case but I can - - -

PN519

MS RONALDS: I will arrange to have it sent down this afternoon, Commissioner, if that would assist and I will send you the version from the CLR.

PN520

MS MULLINS: Apologies, Commissioner, it does seem to be one that wasn't copied.

PN521

THE COMMISSIONER: That is okay, I can get reference to it. If you can just deal with your submissions and I will have access to it away from here, Ms Ronalds.

PN522

MS RONALDS: It was a small point that I wanted to make. The reference relied on is page 69 of the CLR where what is addressed in 69 is what is a genuine dispute and whether a dispute is genuine. That is the matter that was the crucial issue to be considered in Blakely and is not again a matter that is before you. It goes back a long way to - well, not only in time, it is a 1950 case, but also it goes back to what is the creation of a dispute and that is not an issue that is before you and it is certainly not - in my respectful submission, it does not stand for the principle that it is asserted to stand for in paragraph 5.4 of my friend's submissions. Page 69 in particular is of no assistance to you.

PN523

The next authority referred to and I'm not sure if it is in your bundle but is Queensland v Riordan. Now, again with respect to my friend, this does not support the proposition for which it is contended and indeed this matter has nothing to do with the principle it is quoted to support. This is in 74 IR 37. It is a decision by the High Court and their Honours have various decisions, all of whom refer to Kerby J and his decision which sets out what the matter was about. At page 57 of the IRs where it is the commencement of Kerby Js decision where he says:

PN524

The present proceedings involve -

PN525

this is the last three lines above the footnote -

PN526

The present proceedings involve a further explanation of the notion of industrial dispute and the requirement that the dispute must be a "real" and "genuine" one.

PN527

That is what this looks at. He then goes on on page 59 in the top paragraph and I won't trouble you by reading it but he goes into what are the notions of determining whether there is a real and genuine dispute. That is what was addressed by the High Court in Riordan, not, I would respectfully suggest, the proposition for which it is relied on.

PN528

Similarly and importantly in 5.5 my friend relies on Printed and Kindred Industries Union ex parte Vista Paper Products and asserts that the High Court held that a log of claims provided the interstate and industrial dispute status to cover a dispute which then emerged at one Vista mill in New South Wales regarding the dismissal of employees refusing to assign changes to their rostered hours. With the greatest respect to my friend, that is not an accurate summary of the facts at all. When one turns to the - again it is an ALR citation for High Court decision at 113 ALR reading from the headnote conveniently at 421:

PN529

The union served a new log of claims on employers in the industry including the applicant.

PN530

So that it was a much broader log of claims, not located to one employer at all. Then their Honours or the majority of the Court then went on to look at what was essentially the onus of proof on the applicant to make a case that there was no jurisdiction relating to dismissals and again there is a specifically statutory power in relation to dismissals, not in issue in these proceedings. That involved, quoting again conveniently from the headnote:

PN531

On the contrary, the industrial situation in which the dismissals occurred involved negotiations in two States with respect to the implementation of the Commission's wage fixing principles in the relevant award tendered overwhelmingly.

PN532

So it wasn't about the matter which it is asserted about at all, it was about a much broader matter than that and again, in my respectful submission, does not support the proposition for which it is advanced. In fact it demonstrates the very need for the existence of an interstate dispute and the factors that I addressed in my written submissions. My friend then subsequently relies on a number of decisions relating under the HECE award, the High Education Contract of Employment Award, in particular three of those and I will just refer to them.

PN533

Mr Tilbrook intends to refer to them in some length and rather than both of us say the same thing I will embrace his submissions in relation to these authorities. Simply I will say in summary that none of them address the matter before you. They are not about an industrial dispute. It is clear on the reading of each of them that it is about an interpretation of the award. They are matters that arise in relation to the interpretation of the award as such and the use of the dispute mechanism. They are not matters which rely on the definition of industrial dispute to bring the matter before you and to provide the necessary constitutional validity upon which you should operate.

PN534

I sought to cover all other matters, I hope not too long, in my written submission about the lack of powers that the Commission has as being exercised by you, with no disrespect to the limitation of your powers. I don't intend to rehearse those. Is there any matter with which I could assist you?

PN535

THE COMMISSIONER: No, I have nothing.

PN536

MS RONALDS: Any specific issue that was opaque in my submissions that I could - - -

PN537

THE COMMISSIONER: No.

PN538

MS RONALDS: Those are my submissions.

PN539

THE COMMISSIONER: Mr Tilbrook?

PN540

MR TILBROOK: Thank you, Commissioner. Commissioner, I yesterday notified the Commission and the other parties to the proceedings of a number of incorrect citations in the - - -

PN541

THE COMMISSIONER: I received that this morning.

PN542

MR TILBROOK: Your Honour, I again apologise for any inconvenience that may have been caused by the incorrect citations and as I indicated in my communication to you and to the parties yesterday, I seek leave to amend the outline of submissions filed by the Association in accordance with the list of errata set out in yesterday's communication. If the Commission pleases.

PN543

THE COMMISSIONER: That is fine, Mr Tilbrook, I have corrected my copy of your submission.

PN544

MR TILBROOK: Would it be convenient for the Commission for me to tender that correspondence?

PN545

THE COMMISSIONER: The correcting correspondence?

PN546

MR TILBROOK: Yes, your Honour.

PN547

THE COMMISSIONER: No, there is no need.

PN548

MR TILBROOK: Thank you, your Honour.

PN549

THE COMMISSIONER: I note receipt of it and I have corrected your submission.

PN550

MR TILBROOK: Thank you, Commissioner. If the Commission pleases, in these proceedings the Association relies on the outline of submissions which were filed in these proceedings on 20 March 2002, as today amended, and in the interests of convenience and expedition I ask the Commission to permit me just to read those on to the record in the formal sense.

PN551

THE COMMISSIONER: Very well.

PN552

MR TILBROOK: Having heard the submissions made by counsel on behalf of the university, the Association supports and adopts those submissions to the extent that they relate to the matters dealt with in the Association's outline of submissions. There are, however, several matters dealt with in our outline of submissions and responded to by the union on which I propose to briefly address the Commission. Perhaps I might commence by recalling for the Commission the opening comments that Ms Ronalds made in her submissions and those comments were to the effect that the draft order, particularly draft order A, asks the Commission to exercise a power which the Commission does not have. That power is to bring into existence a new contract of employment where none at present exists.

PN553

We refer to this in our submissions at page 3 and as I have indicated we adopt the submissions of my learned friend on that point. By way of elaboration we say that even if the Commission did have the powers I have described, in these proceedings - that is proceedings matter 2002/841 - the Commission is being asked to exercise it in settlement or at least in part settlement of an industrial dispute found to exist in matter C number 3199 of 1999. Now, I reiterate what we say, Commissioner, at page 3 of our submissions in the paragraph on that page that is numbered 2 and that is that no such claim is made in the log of claims upon which the finding of dispute in matter C number 3199 of 1999 is based and I just draw the Commission's attention that the log of claims is already before the Commission as exhibit N4.

PN554

I might now turn to what we say in the paragraph numbered 2 on page 12 of our submissions and that is that there is no evidence which would establish a basis to look behind the apparent intrastate nature of the dispute in C number 2002/841 to establish that the alleged dispute is an interstate dispute or likely to become one and in this regard we pointed the Commission to the decision of the High Court in R.V. Turbit ex parte BLF. Now, in paragraph 5.3 to 5.6 of the submissions in reply the NTEIU seeks to answer the Association's submission by contending in effect that a wider and interstate dispute has existed and still persists in relation to the same issues.

PN555

In support of this contention it refers firstly to the finding of dispute by Commissioner Smith in C number 3199 of 1999 and secondly to four decisions of the Commission relating to the making and subsequent minor variation of the Higher Education Contract of Employment Award. It also refers to three other decisions of the Commission said to relate to similar disputes about reversion from fixed term employment or the making of severance payments and those latter matters are the matters referred to at 5.6.2 of the union's reply.

PN556

Now, Commissioner, I have already made some observations about the nature of what is asked of the Commission and I have also made some observations about what is asked of the Commission being outside of the ambit of the dispute found by Commissioner Smith and I renew those observations. I also say that in relation to the general contentions by the NTEIU we submit that firstly there is no real connection in any event whatsoever between the decisions relating to the making and variation of the HECE award and the finding of the dispute in matter C 3199 of 1999 by Commissioner Smith. As the union's submissions in reply acknowledge, the Commission's initial decision in relation to the award was published in print P4083 on August 18 1997 and together with the decisions reported in prints S1368, Q0702 and Q0703 and they, if the Commission please, are the prints referred to at 5.6.1 of the union's submission in reply.

PN557

The union's submission is that - I'm sorry, perhaps I might repeat what I said in relation to that, Commissioner. The union's submission in reply acknowledges the Commission's initial decision in relation to the award published as print 4083 on 18 August 1997 and together with the decision recorded in the three prints at 5.6.1 settle the dispute notified to the Commission in case numbers 34925 and 34931 of 1995.

PN558

Now, Commissioner Smith's decision in C3199 of 1999 was made on 27 April 1999, and its effect was to bring into existence a new dispute. Furthermore, Commissioner, turning to the three decisions referred to in paragraph 5.6.2 of the union's submissions in reply, I might first deal with that, published in print S0096. If the Commission would turn to that print, you will see that - - -

PN559

THE COMMISSIONER: I'm sorry, which print is that?

PN560

MR TILBROOK: S0096.

PN561

THE COMMISSIONER: Where is that referred to in the union's - - -

PN562

MR TILBROOK: At 5.6.2.

PN563

THE COMMISSIONER: Yes, I have it.

PN564

MR TILBROOK: The Commissioner will see that the decision made by Commissioner Smith on that occasion was not made pursuant to the powers that at present are exercised by the Commission, but was rather made pursuant to the powers of private arbitration conferred on the Commission by the University of Melbourne, I'm sorry, by the Victorian College of the Arts and the National and Tertiary Education Industry Union as a pre-requisite to the certification of the Victorian College of the Arts Enterprise Bargaining Agreement (1997). As an exercise of private arbitral power - - -

PN565

THE COMMISSIONER: Was that a matter dealt with under section 170LW - - -

PN566

MR TILBROOK: That is correct, Commissioner.

PN567

THE COMMISSIONER: - - - or section 99. Yes, I note the head note of the print. It says, "section 170LW application."

PN568

MR TILBROOK: As such, is the exercise of quite a different power to that presently in exercise before the Commission and not only that, in any event, the dispute in essence, by virtue of the power conferred by section 170LW, is a dispute over the application of some provision of the certified agreement and not a dispute relevant to the exercise of the Commission's arbitral powers under part 6 of the Act. The remaining decisions referred to in paragraph 5.6.2. are, in our submission, in fact, disputes about the proper application of the Higher Education Contract of Employment Award.

PN569

Indeed, the decision recorded in print S0418, if I might take the Commission briefly to that print, and to the paragraph numbered 5, records that the NTEIU had notified the Commission of an issue under the Award which has invoked the operation of the dispute settling procedure contained in clause 5 of the Award. Again, the decision in print S2454, referred to in paragraph 5.6.2, it records in paragraph 4 that:

PN570

In the proceedings, the NTEIU relied on the decision of the Full Bench when making the HECE Award.

PN571

That is the decision in print 4083. To argue that concurrent contracts of employment could not exist was a result of the making of the Award. That is to say the dispute was, again, a dispute concerning the proper application of the award and not a dispute concerning the matters at present before the Commission by virtue of the nature of the draft orders which are sought. Now, in our submission, these two latter decisions don't point to the existence of a persisting and wider dispute, as contended by the union. Rather, they point to the successful resolution of individual problems concerning the proper application of an award of the Commission made in settlement of another dispute.

PN572

Now, having regard to these considerations, Commissioner, it would be our submission that the contentions set out in paragraph 5.3 and 5.6.3 of the NTEIU submissions in reply don't effectively answer the submissions outlined in paragraph 2 on page 2 of the Association's outline of submissions. On page 4 of the Association's outline of submissions, the Association deals with paragraph 2.19 and 2.20 of the union's submissions and, in particular, the contention that the dispute is an industrial dispute not an individual dispute, and the assertion that it is a dispute of direct industrial interest to the remaining employees of the University of Wollongong.

PN573

In this regard, the Association's submission was that there was no evidence to sustain the contention, and neither is there evidence to sustain the assertion. In its submissions in reply, at paragraph 7, the union contends that the dispute is part of the wider industrial dispute which was contended for in paragraph 5.6.1. and 5.6.2 that I referred to earlier. The considerations that I've earlier outlined to the Commission in relation to those two paragraphs, of course, are relevant to the union's contention that our earlier submission, that those contentions don't effectively answer the matter raised by the Association in its outline of submissions, and we repeat that.

PN574

If the Commission pleases, the remaining matter on which I wish to address relates to that part of the Association's submissions relating to the exceptional matters contention by the union. Those submissions of the Association appear at item F on page 6 of our outline of submissions. In its submissions in response, at paragraph 9.1, the union asserts that the respondents have acknowledged that there have been genuine attempts to resolve the dispute. The Association has made no such acknowledgment in its submissions. Neither do those submissions contain any necessary implication of such an acknowledgment.

PN575

The Association, furthermore, notes that there's been no reply by the union to the submissions in relation to public interest set out in paragraph 2 on page 8 of our outline of submissions. If the Commission pleases, that concludes the matters that I wish to address, and if the Commission pleases, I rest my submissions at that point.

PN576

THE COMMISSIONER: Ms Mullins, I presume you are probably going to take some time to deal with your responses to jurisdictional objections raised this morning and to the other jurisdictional issues that arise throughout your submissions. Prior to doing that, I will adjourn for 15 minutes.

SHORT ADJOURNMENT [11.20am]

RESUMED [11.52am]

PN577

MS MULLINS: Commissioner, what I propose to do is to - given that the submissions of all of the parties are quite detailed on the matter and have brought your attention to various cases that have canvassed quite well all the arguments before the Commission, all that I am proposing to do is to work through some of the authorities that the NTEIU have provided, which is the bundle today. I will then go back to some of the points that have been made by my friends in asserting that there is no jurisdiction for the Commission, and then respond to some of the authorities that they have provided to the Commission.

PN578

So for the sake of convenience, I propose to just work through in order that they appear in the bundle. The first one is R v Bain. You will see, Commissioner, that while that related to the Conciliation and Arbitration Act, it dealt with a not dissimilar definition of industrial dispute to what is being dealt with today. On page 2, in paragraph 6, it notes that:

PN579

A dispute extending beyond one State may be settled by dealing with it by arbitration on a State or regional basis. Equally, such a dispute may be dealt with by conciliation on a State or regional or other fragmented basis.

PN580

We would assert that that is a similar situation here, that it is part-settlement of an interstate dispute. In paragraph 7:

PN581

The onus is on the prosecutor to prove clearly the absence of jurisdiction in the Commission -

PN582

and we would be relying on the onus resting on the University and on the AHEIA to establish that absence of jurisdiction. In paragraph 11 of that decision:

PN583

An Award is authorised if it relates to the matters in dispute, or is reasonably incidental to them or calculated to settle the dispute.

PN584

Commissioner, that is asserting that the examination of the log of claims should not be examined rigidly or legalistically, but that it is a matter that relates to settling that dispute if it is reasonably incidental to them, calculated to settle it. It goes on in paragraph 12 to state that:

PN585

An industrial dispute may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission.

PN586

It would be out submission that, certainly, the broad issue of rights of fixed term staff, severance pay and/or redundancy pay, and who should be defined or classified as fixed term or continuing, that those disputes have had an ongoing basis in the Commission and the dispute today may have enlarged, in fact, the original dispute log that was served on all the parties so to that extent, we rely on that decision. Looking at the next decision, Finance Sector Union v the Insurance Industry Award. In this decision, it resulted in a redundancy award and, in fact, that redundancy award was backdated because it was done specifically for the purpose that it would then apply to 136 employees who were no longer employed.

PN587

It was backdated from 18 May, which is the date of decision, to 15 March which, in fact, was a backdating even before the award variation application was made. You will see in paragraph 1 of the decision, the application was actually made on 6 April and yet, if you look at paragraph 32 onwards, which addresses the question of the operative date of the award, taking into account that the company was put into provisional liquidation, it goes on to acknowledge that:

PN588

There are a number of employees who would be denied the benefit of the notice in severance pay if such operative date was not awarded. These were employees who have been retrenched since that date -

PN589

being 15 March -

PN590

and before the determination of the present application. There are approximately 136 employees in this category, of whom some 76 have 4 or more years of service with HIH.

PN591

So in this particular case, the Commission was of a mind to grant an award about redundancy and to do so for at least 136 people who were no longer in an employment relationship at that time. In order to achieve that end, it was prepared to not only go back to the date of the union's application, but to go back a further 2 weeks to bring it to the date of liquidation. Looking at the decision of Cram, which my friend has referred to, that case, you will see at paragraph 18, is looking at the question of industrial matters, as defined in section 4 of both the Acts.

PN592

In paragraph 19, it clarifies that it is a dispute about the manning or staffing and mode of recruitment of labour. The question is, does that affect the relations of employers and employees? It then goes over a series of cases that relate to that, and at paragraph 26, it asks the question, why then is not the proposed employment of non-union labour or the refusal to abide by a system of recruitment which gives preference to union labour a matter directly affecting the relations of employer and employee? On the next page, it refers to the Queens against Gaudron, and the Court held that:

PN593

A dispute about preference in employment for a particular class of members of a union was a dispute as to an industrial matter.

PN594

They state, at the end of that paragraph:

PN595

It is simply not to the point that the industrial matter related to prospective employment.

PN596

We would submit that in this particular matter, we are potentially talking about the prospective employment of Dr Rodwell. As in this case, the fact that it is prospective simply isn't an issue in terms of resolving that it can be an industrial matter. In this case, it was held that refusal to employ 8 persons in compliance with the union's demand was an industrial matter. In Ranger Uranium, that case was a dispute about dismissal and about reinstatement. In paragraph 6, it clarifies that at issue is whether it is an industrial dispute.

PN597

At the top of page 3, which is part of paragraph 10:

PN598

It must be accepted that many such reinstatement disputes are agitated, not merely by or on behalf of the former employee, but by or on behalf of the remaining employees who have a direct industrial interest in the security of their own employment, and in the attitude and practice adopted by the employer to the termination of employment. These matters have a direct, and not merely consequential impact on the employer/employee relationship.

PN599

It would be our submission that that is the case regarding this dispute, that the question of type of employment for Dr Rodwell and whether or not orders should be granted in his particular case, that that is a direct industrial interest to ETU members generally. It relates to security of employment and it relates to the practice of the employer regarding the circumstances when employment can cease. At paragraph 18, it looks at the questions of arbitral versus judicial and that as in many cases the distinction:

PN600

The creation of legal rights and obligations is a function which may be performed under the exercise of arbitral power. This is so even if the function is performed in settlement of a dispute relating to past transactions.

PN601

And in paragraph 20:

PN602

It is a claim for the creation of an obligation on the part of an employer to reinstate the dismissed employee, or employees, the creation of new rights and obligations is a function which is properly performed in the exercise of arbitral power.

PN603

And they found in this case that it was capable of resolving the dispute by exercise of arbitral power and we submit that that case is relevant to the question of whether the matter today is an industrial matter relating to the impact on employer/employee relationship and that it is an arbitral matter, not a judicial matter today. In the Australian Federation of Air Pilots v Eastern Australian Airlines, that case looked at the question - - -

PN604

THE COMMISSIONER: Is this the matter that you have - the next dot list - Australian Airlines v The Honourable Francis Moore and Others?

PN605

MS MULLINS: You may have taken out your copy, Commissioner, because it was referred to by my friend. The Print number at the top is K1717.

PN606

THE COMMISSIONER: Yes, I have it now.

PN607

MS MULLINS: At page 6 at the bottom of the decision, the Commissioner concludes that:

PN608

An industrial dispute can be found to exist between a group of pilots in a legally separate subsidiary company and the parent company.

PN609

THE COMMISSIONER: Sorry, where is this, at the bottom of page 6?

PN610

MS MULLINS: At the bottom of page 6. It is at the tail end of what is numbered "1", and it starts with:

PN611

I see no essential difference.

PN612

THE COMMISSIONER: Yes, so where are you quoting from?

PN613

MS MULLINS: The last paragraph:

PN614

I conclude that the view expressed by Stephen J in the Ansett matter...

PN615

Which I quoted as applicable here:

PN616

...and that an industrial dispute can be found to exist between a group of pilots and a legally separate subsidiary company and the parent company against both of whom they have made a career progression claim.

PN617

THE COMMISSIONER: With respect, what has that got to do with the present case?

PN618

MS MULLINS: Sorry?

PN619

THE COMMISSIONER: What has that got to do with the present case?

PN620

MS MULLINS: It was found to be an industrial dispute, even though the claim related to not the employees employer, but to another employer. So even when there wasn't an employment relationship, it was still seen to pertain to relations between employees and employers.

PN621

THE COMMISSIONER: But I think there was an employment relationship, that is the very point of the Eastern Airlines case.

PN622

MS MULLINS: There was an employment relationship - - -

PN623

THE COMMISSIONER: The employees were the employees of a subsidiary of the parent.

PN624

MS MULLINS: Yes, that is correct.

PN625

THE COMMISSIONER: And it was the employees of the subsidiary who were wishing to apply a universal seniority clause for their engagement, or their transfer to the parent company.

PN626

MS MULLINS: That is right. So while they had an employment relationship with one employer, they didn't have the employment relationship with the parent company and, yet, it was a finding that that was an industrial dispute.

PN627

THE COMMISSIONER: I still don't quite see how that relates to Dr Rodwell's circumstances.

PN628

MS MULLINS: Only to the extent that a submission has been made that there is no employment relationship existing between Dr Rodwell and the University of Wollongong, his employment having ceased on 31 January. The argument, as I understand it, is that because of that there is no basis for claiming there is an industrial dispute in terms of section 4 of the Act. This case has at least held that in a not directly related, but that where - even where there is no employment relationship, it is possible to hold that something is then an industrial dispute.

PN629

THE COMMISSIONER: But there was an employment relationship between the subsidiary employer and the employees of that subsidiary employer, so there was an ongoing and continuing relationship.

PN630

MS MULLINS: Between two of the parties, but not between the employee of one employer and the claim that was made on somebody that didn't employ them, but I take the point.

PN631

THE COMMISSIONER: Which was their parent company.

PN632

MS MULLINS: Looking at the next one, Australian Airlines Limited and Moore and Others, this was another recruitment dispute and it was held that the recruitment of pilots by another parent company was an industrial dispute, that there was no need for an existing contract of employment, and at pages 7 to 9 - unfortunately, this one does not have paragraph numbers - but on page 7 of that copy - and it is about the middle of the page, the fifth paragraph down - it starts with:

PN633

Authorities of the High Court show that there need not be an existing contractual relationship between an employer and an employee in order to create an industrial dispute.

PN634

It then goes on to refer to R v Dunlop and to the Ansett case, that:

PN635

An industrial dispute may be raised by an organisation of employees with employers employing none of its members.

PN636

It then refers to the Cram - re Cram case - and at the bottom:

PN637

The latter case involved a question relating to a demand for reinstatement of employees.

PN638

And it is relevant to the present case insofar as:

PN639

A dispute could involve a person who is not an employee of the employer concerned.

PN640

At page 9, quoting again from another case it starts with:

PN641

This passage must be read in light of the High Court authorities, dealing with preference claims and reinstatement which support the view ...(reads)... could not be created by persons seeking to become employees of an employer.

PN642

And we would submit that that is directly relevant to Dr Rodwell. The next one is Actu Corporation Limited v Media Entertainment and Arts Alliance. This is a case relating to an alleged incorrect classification of staff and on page 4 the Commission held in the middle:

PN643

We are satisfied that determining the correct classification of employee is consistent with the decisions referred to, not an exercise of judicial power of the Commonwealth.

PN644

And they concluded that:

PN645

There was jurisdiction of the Commission to determine the appropriate classifications.

PN646

So in that case even though it was certainly a matter that could be taken as an award interpretation, or potentially an award breach matter, it was also found to fall within the jurisdiction of the Commission as a dispute about classification. The next case is the Australian Workers Union v Kinetic Energy, that is a classification dispute again that relates to seven employees and the Commission in that case held that it was an arbitral power being relied upon, not judicial. They held that it fell within section 89A, classification of employment, and that it was an industrial matter, not individual grievances.

PN647

At page 5 of the decision, the union is seeking an outcome for seven employees and it is doing so on the basis of fairness and justice - that is about the fourth and the fifth paragraph down the page. On page 6, just above the heading:

PN648

Does the provisions of section 89A prevent?

PN649

The Commission concludes:

PN650

I am satisfied that the making of the order sought by the applicant is within the arbitral power of this Commission.

PN651

And about five paragraphs from the bottom of the page:

PN652

The proposed award provides for certain named employees to be classified and treated for all purposes in a certain way.

PN653

The Commission then goes on to look at whether it is a - - -

PN654

THE COMMISSIONER: So this is a classification dispute of existing employees.

PN655

MS MULLINS: Of existing employees, that is right. So this case is really going to the question of "arbitral" and "judicial" and whether or not something that can look like an individual matter can in fact be an industrial matter. On page 7:

PN656

I accept that the union and its members generally have an interest in those issues. I consider therefore that the issue before me is not a group of individual grievances.

PN657

The next case is Transport Workers Union v Mayne Nickless Ltd, which was before the Federal Court of Australia and the union is referring to that case on the basis that it showed that when a union - in this case the union had made claims for casual employees to be paid overtime in certain circumstances and the Court held that it was an arbitral matter, not judicial, and that the question was about industrial fairness. So despite the fact that clearly the employees did not have overtime pay as an existing right, the action of the Commission was about creating a new right on the basis of industrial fairness.

PN658

Once again, despite the fact that the casual employees accepted employment in certain circumstances which did not involve payment of overtime, it was open to the union to apply to the Commission for the creation of a new right and the Commission assessed it on the basis of industrial fairness and created a new award. The next one is Australian Municipal, Administrative, Clerical and Services Union v Culbertshire Shire Council. The Commissioner addressed the question of whether a particular library manager was in fact redundant or not and went on to hold that her position was redundant and that she should be entitled to redundancy pay and that was all resolved under a section 99 dispute.

PN659

Looking at the Riordan case - Attorney-General for the State of Queensland v Riordan and Others, looking at page 37 of that bundle and looking at the top paragraph, the last sentence:

PN660

It was open to that body to conclude that behind the remaining claims -

PN661

which were in a log of claims -

PN662

with all their exaggerations and in some cases novelties, lay a real industrial dispute which would be refined by the processes usual ...(reads)... upon such claims genuinely advanced.

PN663

Following on in the next paragraph, the third sentence:

PN664

Because no one expects that the claims as stated will be met immediately and in full ...(reads)... to a real industrial dispute.

PN665

And we are relying on this to support our contention that the log of claims is the frame work upon which this particular matter before the Commission would be part settlement. In the submission by the union, we have outlined why we assert that there is a genuine industrial dispute in this area and that it has been actively pursued by the union through various award matters and through a number of cases, so it is a very real industrial dispute about the nature of employment affects term staff, what conditions they should be awarded, and circumstances when they should have the entitlements of continuing staff.

PN666

The next one is the Vista Paper, which has been referred to before. In this case it was held that there was an interstate industrial dispute, even though it related to one particular mill, which was obviously in one State, and that was on the basis of a log of claims, and then the dispute was pursued on the basis of seeking reinstatement for some employees who had been dismissed on 4 March. In paragraph 41, the Commission acknowledged that - I beg your pardon, High Court - that:

PN667

There should be no prior right of - - -

PN668

THE COMMISSIONER: 41, I don't have that here.

PN669

MS MULLINS: Paragraph 41. You may have a - the Vista Paper.

PN670

THE COMMISSIONER: Yes, it has only got 24 paragraphs.

PN671

MS MULLINS: So you might have the Court version and I've got the Internet version.

PN672

THE COMMISSIONER: I could. It is a list of decisions.

PN673

MS MULLINS: Okay, well, I'm talking about the re-printing ex parte Vista Paper, (1993).

PN674

MS RONALDS: Page 9, the Commissioner has paragraph 41, and I think there is several Judgments.

PN675

THE COMMISSIONER: Yes, I'm aware of that. The one that I have before me only has 24 paragraphs.

PN676

MS RONALDS: If you flip back to page 9, you will find that there is a "41" on the - - -

PN677

THE COMMISSIONER: Yes, it is part of a Judgment of some of the Judges only.

PN678

MS RONALD: Yes.

PN679

THE COMMISSIONER: Paragraph 41 on page 9. Yes, what does it stand for?

PN680

MS MULLINS: The Court - - -

PN681

THE COMMISSIONER: What does that stand for?

PN682

MS MULLINS: The Court was acknowledging that there was no prior right of reinstatement and no assertion of a prior right, so the similarity to this case is that the Federal Court has determined there is no prior right to conversion, there is no prior right to treat Dr Rodwell as a continuing employee - the Federal Court has determined that he is a fixed term employee and what we are seeking is the Commission to create a new right. The next is a Higher Education on continuing contract of employment interim award decision, Print S1368, and we are only relying on this, Commissioner, to support the union's contention that the question of rights for fixed term employees, what access to redundancy pay, or severance pay and possible conversion, that those are ongoing industrial dispute of an interstate nature.

PN683

THE COMMISSIONER: And whereabouts in this decision is the propositions that you are advancing now?

PN684

MS MULLINS: Say, for example, at page 5, paragraph 17. It is canvassing the evidence that has been before the Commission:

PN685

Some universities, particularly the University of Sydney would adopt four fixed term employees ...(reads)... to a number of respondent employers.

PN686

So in terms of evidence that was before the Commission. There was certainly a canvassing of the issue of possible access to redundancy pay for fixed term employees and having comparable conditions for fixed term employees as for continuing employees. Looking at the Victorian College of the Arts, it is a section 170LW dispute and the parties were pursuing it through the dispute settling course - that is outlined in paragraph 2 and paragraph 3 - but the dispute actually - this is on the issue of how broad a section 170LW dispute may or may not be - this case reveals that this section 170LW dispute related in fact not to anything in the enterprise agreement, but to a policy - and you will see in paragraph 10 it relates to conversion to continuing appointment, which was a policy. The outcome that emerged in paragraph 19 as the Commission found that the policy didn't apply to Mr Jenkins, however, in paragraph 20:

PN687

On the submission of the College, it appears that Mr Jenkins was redundant. Mr Jenkins is in fact a fixed term employee. In other words, it was its view that it did not want to use Mr Jenkins' skills in the course it had structured.

PN688

21, it goes on to make reference to the Higher Education Contract of Employment Award:

PN689

It is important to re-state that HECE does not require any university to convert an existing fixed term and contract employee to full-time or part-time employment -

PN690

sorry -

PN691

part-time employee. Although there was a great deal of force in the evidence of Mr Jenkins that he fully expected to be converted, the expectation of Mr Jenkins was not unreasonable.

PN692

And 22 - - -

PN693

THE COMMISSIONER: Well, none of that of course is relevant in this case.

PN694

MS MULLINS: Evidence has not been brought about - - -

PN695

THE COMMISSIONER: There is no evidence before me of Mr Rodwell's - or Dr Rodwell's expectations.

PN696

MS MULLINS: No, there is no evidence before the Commission on that. However, in paragraph 22, the Commission states:

PN697

I believe that consideration should now be given as to whether or not an amount should be paid to compensate Mr Jenkins for his redundancy, in circumstances where he expected his employment to continue ...(reads)... that written submissions be lodged.

PN698

So in that case it was not a jurisdictional barrier to the Commission in a section 170LW dispute to look at a policy, as opposed to something that was in the enterprise agreement, and in fact to seek submissions on whether or not some compensation should be paid in addition to what already had been paid, which was quite a broad approach to the section 170LW dispute. The next case is a section 99 dispute, NTEIU v University of Melbourne, and the dispute related to the classification and type of employment for Dr Mulder. The Commission at paragraph 16 acknowledged that there was an element of unfairness and that the University had determined not to offer Dr Mulder a full-time continuing contract and had not given consideration to mitigating the effects of a 50 per cent reduction in salary. In paragraph 18, once again:

PN699

Elements of unfairness in the treatment of Dr Mulder.

PN700

Once again at 20 confirming that:

PN701

The HECE award did not result in automatic conversion of employees.

PN702

And as a result at 24:

PN703

I reject the application for Dr Mulder to be converted from part-time to full-time.

PN704

However, that Commission was willing to make a public recommendation that Dr Mulder had been treated unfairly and a strong recommendation that the University adjust Dr Mulder's fraction for first semester this year to full-time. In addition, the Commission on 29, recommended that:

PN705

The university discuss ways of attempting to mitigate the effects of the 50 per cent salary loss by examining the use of casual employees and allocation of work.

PN706

So in that case it was not a jurisdictional barrier to the Commission under a section 99 dispute, the fact that it related to one employee, or that it related to the question of whether further work should be provided to somebody employed on fixed term employment.

PN707

THE COMMISSIONER: Yes, but that is a different set of circumstances to what I'm faced with, where there is in fact a very positive jurisdictional objection.

PN708

MS MULLINS: Yes, but the Commission needs of its own mind to determine that it has jurisdiction. In this case, it is an example of where the Commission was of a mind that it had jurisdiction, despite the fact that it is an individual, and that it made a strong recommendation in that case and we give it no more weight than that. The next case, NTEIU v University of Melbourne, once again, classification of the type of employment of one individual. At that stage, it was under a particular dispute settling clause within the Higher Education Contract Employment Award.

PN709

However, we submit that this is evidence of the willingness of the Commission to look at individual matters and that it was possible for the Commission to create a dispute settling clause in the HECE award to consider these same sorts of disputes about types of employment, and that it is a further evidence of the fact that there is and are ongoing industrial disputes nationally about these very matters in the cases that we have brought forward in this bundle of documents. Just to complete the examination of some of the cases, exhibit M5 - - -

PN710

THE COMMISSIONER: M5?

PN711

MS MULLINS: M, for Mary, 5. This was the extract from the Metals Award. We previously brought this to the attention of the Commission regarding the fact that the Commission was willing to create an award which had the effect - in 4.2.3B(i) had the effect of enabling a casual employee to have the right to elect to be converted to full-time or part-time employment. Looking at the actual wording in that clause it refers to:

PN712

A casual employee who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of six months shall thereafter have the right to elect to have his or her contract of employment converted.

PN713

Now, it would be possible under that clause, I would submit, that at a particular time somebody who is on that day not employed as a casual employee but who met the definition of a sequence of periods of employment during a period of six months could, in fact, be seeking conversion under that clause.

PN714

THE COMMISSIONER: Well, with very great respect so what? None of that applies to Dr Rodwell.

PN715

MS MULLINS: Well, the Commission was willing to - felt that it had jurisdiction to create a provision which could have an impact on somebody who at the time was not in an employment relationship. The Commission in this decision was also willing to say - - -

PN716

THE COMMISSIONER: Well, I don't know that it goes that far. I was on the Full Bench that created it. I don't know that it goes that far as to create a right for an employee who is not an employee at a given point in time.

PN717

MS MULLINS: Well, the wording of - I appreciate you were the one that heard it I am just going on the basis of the - - -

PN718

THE COMMISSIONER: Yes.

PN719

MS MULLINS: - - - wording and 4.2.3B but certainly the Commission were willing to say that it was possible to have a conversion policy - sorry a conversion provision.

PN720

THE COMMISSIONER: Yes, certainly possible to have a conversion provision in the conversion policy. That is quite definite. It created a right of conversion.

PN721

MS MULLINS: A right, yes.

PN722

THE COMMISSIONER: To a certain category of employee.

PN723

MS MULLINS: Yes. Just finally there was a - as part of the history of the HECE Award there was a document print number Q0702 which copies were provided, I believe, on 31 January.

PN724

THE COMMISSIONER: Yes, I have it in front of me.

PN725

MS MULLINS: This is, essentially, the decision that addressed whether the Commission had the jurisdiction to create what ended up being the Higher Education Contract of Employment Award and held that it did and you can see the references throughout that case but looking at - relying on this for the history of the union trying to address the log of claims regarding rights of fixed term employees and regarding severance and regarding what rights fixed term employees should have at page 21 in the middle of the page there is a sentence that starts:

PN726

We see merit and equity...

PN727

On page 21.

PN728

THE COMMISSIONER: Is it in the quote?

PN729

MS MULLINS: Is yours - - -

PN730

THE COMMISSIONER: Under the heading: Introducing the Chapter on Education. I am on page 21 of print Q0702.

PN731

MS MULLINS: Is yours - sorry, I am working off the internet copy which I am not sure whether you have - - -

PN732

THE COMMISSIONER: No, I actually have the hard copy from the - - -

PN733

MS MULLINS: Apologies because the copy - - -

PN734

THE COMMISSIONER: - - - Commission.

PN735

MS MULLINS: - - - provided was originally the internet one.

PN736

THE COMMISSIONER: All right, lead me - - -

PN737

MS MULLINS: It is in section 3 - - -

PN738

THE COMMISSIONER: The decision is broken up with some numerical sections.

PN739

MS MULLINS: So in section 3: 3.1 General Approach to Determination.

PN740

THE COMMISSIONER: Yes, I have - - -

PN741

MS MULLINS: One page on from that.

PN742

THE COMMISSIONER: I have that.

PN743

MS MULLINS: I am hoping that if you work down there will be a paragraph that starts:

PN744

We see merit and equity in higher education institutions...

PN745

THE COMMISSIONER: Yes, I have that.

PN746

MS MULLINS: Apologies about the different versions.

PN747

THE COMMISSIONER: That is okay. We expected there might have been a few hiccups today. I have it.

PN748

MS MULLINS:

PN749

We see merit and equity in higher education institutions extending the benefit of a number of non-award conditions available to continuing employees to fixed terms employees as defined in our order. We particularly have in mind conditions such as training, study leave, superannuation, redeployment in the event of potential redundancy, personal leave and promotion opportunities.

PN750

So I am simply relying on that as part of the history of the union attempting to pursue its log of claims regarding rights of fixed term employees and to be treated in some situations with the same rights as continuing employees. The Commission goes on just - in about six later paragraphs:

PN751

Thus we have in mind that severance payments should be provided as an entitlement for a class of fixed term employees.

PN752

So the Commission on that case is willing to consider severance payment for fixed term employees. In my version about 12 lines above the heading, heading 4: The Content of the Award Determined, the Commissions acknowledges that:

PN753

Universities are large scale employing institutions. The evidence demonstrated a consistent absence of reasonable deployment measures.

PN754

So in terms of the history of the union pursuing the industrial matters the various HECE award decisions certainly reveal that questions of severance pay for fixed term and what their rights or entitlements should be have been actively pursued by the union not only through the log of claims but actively pursued within the Commission and with employers. Just finally looking at the submissions that were made on behalf of my friends that have not already been addressed through those cases it was raised about the nature of the actual draft order that was sought which is annexed to the latest NTEIU submission.

PN755

Reference was made to draft order A paragraph 4 and what was meant by the order remaining in force for a period of two years. That matter was discussed on 31 January when the original order included the same wording and the union had included that wording in the event that the Commission felt that an exceptional matter order was the only basis upon which jurisdiction would be granted. An exceptional matters order can only be in force for a period of two years.

PN756

So in the event that section 99 or section 170LW are determined as providing the jurisdictional base then the union would be seeking an order that did not have paragraph 4 in it. It would only be on the basis if an exceptional matters order had to be relied upon. The question was raised about - that the NTEIU is effectively seeking the same remedy as it sought from the Federal Court and the union's submission is that it is exactly because of the Court - Federal Court decision which held that there was no right in the enterprise agreement for conversion, it is exactly because of that decision that we are seeking a new right.

PN757

So the application before the Federal Court was an application based on whether the Federal Court agreed that there was an existing right. What we are seeking today is the creation a new right. Looking at the draft order B, the Federal Court decision is completely silent on the question of redundancy or severance pay. The issue of redundancy and severance pay the union submits falls squarely within the allowable matters within section 89A(2) and are wholly appropriate on the basis of industrial justice and merit for the Commission to award on this particular dispute.

PN758

Looking at the question of industrial dispute and section 4 from the Industrial Relations Act the union's submission makes reference to some cases in this area so I won't repeat them but looking at the actual provision itself industrial dispute means under section 4:

PN759

An industrial dispute means an industrial dispute including a threat and impending or probably industrial dispute extending beyond the limits of any one state and that is about matters pertaining to the relationship between employees and employers or a situation that is likely to give rise to an industrial dispute.

PN760

I have already made lengthy submissions on that issue. The only point I wish to add is the definition of employee which is relevant to the definition of industrial dispute because it makes reference to relationship between employers and employees:

PN761

Employee includes any person whose usual occupation is that of employee.

PN762

So it would be the union's submission that the definition of employee would cover Dr Rodwell because his usual occupation is certainly that of employee:

PN763

Employee is not defined tightly as being somebody who has a current contract of employment - - -

PN764

THE COMMISSIONER: I have no knowledge that Dr Rodwell's usual occupation is that of an employee. He may very well be a contract for all I know.

PN765

MS MULLINS: You have evidence that up to 31 January he was an employee.

PN766

THE COMMISSIONER: For one year.

PN767

MS MULLINS: For one year.

PN768

THE COMMISSIONER: But he might have a life long history of being engaged or employed in some other form, for all I know.

PN769

MS MULLINS: Well, there is no evidence before the Commission to indicate otherwise as well that he is not usually in the employment as an employee. Just looking at the log of claims which is M4, exhibit M4, M for Mary. So paragraph 6 of the submission in reply addresses the question about the log of claims. Just looking at the relevant provisions that we rely upon and remembering that log of claims are not to be tried in a legalistic sense but the remedy is to address the subject matter that has been raised in the log. 2.2:

PN770

All appointments to be on a permanent basis except where agreed to by the union.

PN771

Unlike the case that my friend has attached as annexure F to her - the University of Wollongong submission which is the University of Newcastle case that case looked at the same log, 2.2. In this case it is directly relevant to Dr Rodwell. The exact dispute that is before the Commission is whether Dr Rodwell should be treated as being employed on a continuing or permanent basis. That claim is that all appointments will be on a permanent basis. In 2.4, that is - the log is that:

PN772

All limited term employees shall have the same terms, rights and conditions of employment as permanent employees.

PN773

We rely on that log as supporting the draft order B which is - would have the effect of giving to Dr Rodwell the same rights and conditions as permanent employees namely redundancy pay. The 57 weeks sought on behalf of Dr Rodwell in draft order B is the same calculation whether you use the enterprise agreement or whether you use the relevant award that is referred to. 2.5:

PN774

The employer shall advise the union of proposed limited term positions.

PN775

2.9:

PN776

Limited term appointments for reasons other than replacement employees shall be for such term as agreed by the union.

PN777

2.10, we say is particular relevant that:

PN778

If a limited term position created for a reason other than to fulfil -

PN779

sorry -

PN780

other than to fill the absence of an employee is to be renewed beyond two years it must be offered as a permanent position and the incumbent must immediately become permanent in that position.

PN781

There is evidence in the Federal Court decision that Dr Rodwell filled the position of what is in shorthand referred to as an HSIE lecturer. The university then advertised an HSIE lecturer as a continuing position which Dr Rodwell did not get and the union's submission would be that it is within the ambit of 2.10 of the log that Dr Rodwell should have - given that the position is now continuing should be immediately converted to a permanent in that position.

PN782

The question has been raised about public interest and the union would submit that an examination of the HECE cases, Higher Education of Contract of Employment Award cases, reveals that there has been a very real concern by the Commission about the excessive use of fixed term contracts and also about what rights fixed term employees should have. The public interest we say is - in addition, is related to the particular dispute where an employee is appointed in a way that is not in keeping with provisions of a binding enterprise agreement.

PN783

Whether that employee should miss out on entitlements other employees get as a result of that breach and the submission the union has made has outlined that unlike all other fixed term employees who are employed supposedly to deal with a specific task or project, they all will get severance pay, Dr Rodwell has not and will not get severance pay because he does not meet - as a result of the manner of his appointment being in breach of the agreement, because of that breach he is not employed in a way that would entitle him to severance pay.

PN784

We would submit that unlike his colleagues he would either get severance pay or continuing colleagues who would get redundancy pay we would say that that is a direct public interest issues of industrial fairness and that the university should not benefit from its breach of the enterprise agreement. It had an obligation under the Workplace Relations Act to abide by that enterprise agreement and Dr Rodwell has - will be suffering as a result of that breach.

PN785

THE COMMISSIONER: But has, in fact, the university benefited from its breach? Has it not been dealt with by the Court because of its breach?

PN786

MS MULLINS: Well, it - - -

PN787

THE COMMISSIONER: It has hardly benefited.

PN788

MS MULLINS: Well, in terms of its relationship with Dr Rodwell it has - at the very least it has avoided the obligation to pay four weeks severance pay to Dr Rodwell which all other employees who are employed in a category that this university said it was employing Dr Rodwell, namely fixed term for a specific task or project, all other employees would get between four and eight weeks severance pay. So we would say that there is that element - - -

PN789

THE COMMISSIONER: But the union does not seek that. The union seeks 57 and 58 weeks of severance pay.

PN790

MS MULLINS: On the basis that unlike people who are correctly employed in fixed term employment he was not employed in a category that met any of the provisions of 19.6 and the question arises about - on an industrial fairness basis what sort of severance payment is appropriate in that situation. We would certainly say that in accordance with our log that he - - -

PN791

THE COMMISSIONER: So does that stand for the proposition that fairness can be rewarded or unfairness can be rewarded by a larger than otherwise redundancy payment.

PN792

MS MULLINS: We are saying that it is within the Commission's role to consider industrial merit arguments and that in a situation where somebody is employed outside the terms of what they should have, that it is open to the Commission to grant appropriate compensation. In the say way that in one of the cases referred to, the Commission was willing to consider and to receive submissions on whether further compensation was appropriate, or in the same way for the Library Manager. In that case the Commission was willing to - despite the employer saying there was no redundancy, the Commission was willing to intervene on a fairness basis and say: hang on a minute, there is a redundancy and you are entitled to redundancy pay.

PN793

THE COMMISSIONER: Is it the position, Ms Mullins, that Dr Rodwell is in no worse position than what he expected to be in when he entered into his contract of employment?

PN794

MS MULLINS: He expected when he entered this contract of employment for the wording in that letter of offer which said:

PN795

You are employed in accordance with the University of Wollongong Enterprise Agreement.

PN796

He expected that as part of his employment and that didn't happen.

PN797

THE COMMISSIONER: It has been a breach of the agreement. The breach has been dealt with. The outcome of the expiry of the contract grants no greater or lesser entitlement to Dr Rodwell than his expectation at the point of entry of that contract.

PN798

MS MULLINS: Well, certainly his expectation at the very least would have been that if it was truly a specific task or project fixed term employment he would be entitled to 4 weeks' severance pay and he has not - - -

PN799

THE COMMISSIONER: I think that is a proposition, a very strong proposition, advanced by you. I don't know that I actually have any evidence of what Dr Rodwell's expectations were, I think these were submissions from the bar table, not based on real evidence.

PN800

MS MULLINS: In the background documents is a copy of his letter of offer.

PN801

THE COMMISSIONER: I think it is one of the exhibits too.

PN802

MS MULLINS: Which is M6. In that M6 you will see in the third paragraph as part of the letter of offer:

PN803

Your conditions of employment will be in accordance with University of Wollongong Academic Staff Enterprise Agreement.

PN804

THE COMMISSIONER: The next statement speaks for itself:

PN805

We strongly recommend that you make yourself familiar with this document, in particular...

PN806

and certain clauses are drawn to his attention.

PN807

MS MULLINS: Yes and as a result of that there is correspondence included in the exhibits. For example, M7 makes it clear that Dr Rodwell and the evidence in the Federal Court case make it clear that Dr Rodwell did raise from May onwards, May 2001 onwards, did raise the question of the nature of his employment and whether it was truly allowed within the contract.

PN808

THE COMMISSIONER: I accept that.

PN809

MS MULLINS: So he certainly raised it as soon as he could. He was relying upon their commitment and we would assert that M6 would be sufficient evidence of it, a statement:

PN810

Your conditions of employment will be in accordance with the Enterprise Agreement.

PN811

Now, in that enterprise agreement it provides for contract severance pay in clause 58. So the correspondence reveals that the university advised Dr Rodwell that he was employed on fixed term because it was a specific task or project. Clause 58 makes it clear that:

PN812

A fixed term staff employee whose contract is not renewed where the employee seeks to continue the employment shall be entitled to severance payment in accordance with 57.5 in the following circumstances.

PN813

This is where he trips up. 58.1.2:

PN814

The staff member is employed on a fixed term contract to do work required for the circumstances described in sub-clauses 19.6.1 or 19.6.2.

PN815

19.6.1 is the specific task or project. So certainly based on that provision in this letter of offer and in 6 and based on the provisions of the enterprise agreement, at the very least he would have been entitled to and expecting 4 weeks' severance pay. The Federal Court in fact criticised the university for lack of systems to ensure that the letter of offer was clear about the nature of his employment. If they had been clear about the nature of his employment and alleged reasons for its fixed term nature, then he certainly would have had an easier way to challenge immediately their allegation that he met the definition of fixed term employment.

PN816

THE COMMISSIONER: As well as the severance and redundancy pay being interpreted as compensation for Dr Rodwell - I use the word "compensation", a very loose form - is it also intended as a punitive remedy against the employer?

PN817

MS MULLINS: No. No. I mean, the question of pursuing what to do about a breach of an existing right, the union has done that in the Federal Court but in the backdrop to what the Commission can consider, the union would submit that the Commission can take into account as part of that backdrop what the obligations were, whether or not in the Commission's mind the employee has been treated fairly and in addressing that can resolve that it finds it appropriate to make an order and we would submit that similar to the examination of the woman who was supposedly not redundant and the Commission said she was on the grounds of fairness, or for the recommendation that somebody who ended up being a part-time employee for a session should be full-time employment and then should have access to casual employment. So we would submit it is on the basis - not a punishment but of industrial merits.

PN818

The union's submission would go beyond the 4 weeks which would be the amount that he would have received as severance payment as a specific task or project. It is our submission that it is appropriate in the circumstances to award more than that. We have sought an amount that equates to redundancy payment but we think in the circumstances that just as the Commission in one of the cases I have referred you to indicated that the parties should make submissions on whether to grant more than 8 weeks' severance pay, we think it is appropriate and we would urge the Commission, if it is of a mind to look at severance payment as being the way forward, to grant more than the 4 weeks which would be the minimum.

PN819

We would be seeking in this situation that it is appropriate to grant something more towards the 57 weeks that the union is seeking. The university in its submission has made reference to a number of authorities. Annexure C to the submission re Brack and Others, as I understand it they rely on this case for the proposition that a Federal Court interpretation of an existing award provision is binding on the Commission and we accept that proposition. However, the union is not seeking an existing award or enterprise agreement provision. We are seeking the creation of a new right and to that extent we would say that the case has no relevance.

PN820

In annexure D at page - one of the issues this case looks at as to the question of a section 170LW dispute and what falls within the ambit of that and at page 14 the decision makes positive reference to the Full Bench reasoning in Cooperative Bulk Handling case and including reference to Dr Jessop's analogy from: The Law of the Irish Jurist:

PN821

It would seem that an agreement should contain some general duty applicable to the cow before an issue about calves or farm produce could be said to be a dispute over the application of the agreement.

PN822

In this case it looked at the particular clause that related to job sharing, a clause that looked at an agreement to introduce it in principle and the evidence revealed that the parties had introduced job sharing. The dispute related specifically to whether or not job sharing should be extended and to the retail sector. So it would be the union's submission that this case supports not a completely black and white view about a section 170LW dispute, that we would submit, to use the Irish Jurist, that we have raised the issue of there being a cow and therefore that entitles us to talk about the calves or the farm produce.

PN823

Looking at annexure E at page 11 at the bottom of the page the Commission - in this case it was a termination of employment case. However, at the bottom of page 11 the Commission acknowledges:

PN824

It is possible that the one act of a party may give rise to separable causes of action and the recovery of a judgment in one action does not necessarily act as a bar to the recovery of a judgment in the other. For example, an action for personal injury is not barred by a judgment for the recovery of damage to property arising from the same negligent act.

PN825

Now, we would say that the fact that the union has taken action in the Federal Court which was about interpreting an existing right does not bar the Commission from determining whether to create a new right even though a lot of the factual matters are exactly the same. Finally, Commissioner, just looking at the University of Newcastle case which is annexure F, we would say that this case can be distinguished. This case related to something which the Commission held was purporting to establish existing rights and therefore was judicial. In this case it was seeking to resolve whether or not Dr Blackmore had a subsisting academic position and to that extent it was seeking to establish existing rights.

PN826

In this case we are seeking new rights not existing rights. Also unlike the University of Newcastle case we say that the draft order does come within the log of claims and is directly on point and that Dr Rodwell heads, unlike in this decision - that Dr Rodwell had raised the dispute while he was an employee and there's evidence in the Federal Court matter about it being raised as early as May 2001.

PN827

THE COMMISSIONER: Why wasn't it - it wasn't resolved at that time. Why did it take until I think 29 January for the matter to be notified by the union?

PN828

MS MULLINS: I believe the correspondence which is attached as exhibits or additional documents attached to the NTEIU submission, they reveal that the union was in extensive discussions with the university attempting to resolve the matter.

PN829

THE COMMISSIONER: Yes, I have a recollection of that. None of that would have, of course, precluded the union from notifying at an earlier point in time with a view either to use as a bargaining tool in its negotiations with the university or in fact to get the matter dealt with whilst Dr Rodwell was still an employee.

PN830

MS MULLINS: There is an obligation in the enterprise agreement to pursue the matter as an internal dispute first which was certainly - - -

PN831

THE COMMISSIONER: From May to January?

PN832

MS MULLINS: Well, if you examine the correspondence, Commissioner, you would see that initially a lot of it related to questioning the university's decision that it was allowable fixed term employment seeking details about on what basis do you say it is a specific task or project. The university then changes its mind about or provides alternative arguments about: well, maybe it is not a specific task or project, maybe it is a replacement employee. The union then says: okay, well, if it is a replacement employee please provide details about who he was replacing. Then there is an argument about, well, will that breach privacy legislation. So there are active attempts to try and resolve was it in fact a genuine fixed term employment or not and then - - -

PN833

THE COMMISSIONER: If I could correct my earlier comment. The matters were, from memory, brought before Senior Deputy President Duncan in December and then those matters were withdrawn pending the Federal Court action.

PN834

MS MULLINS: That is correct and that the timing of the Federal Court action also followed clarity that Dr Rodwell's position was being advertised, that the work was not going to cease because if the work had ceased there would then not be obviously an ability to raise a concern. When the university advertised something they called an HSIE lecturer again, the union actively sought to resolve it and then when Dr Rodwell was not successful in that we sought freezing actions in the Commission. When that didn't resolve it we withdrew the Commission action and immediately took urgent Federal Court action. May it please the Commission.

PN835

THE COMMISSIONER: Thank you. I expect your replies may take a little time?

PN836

MS RONALDS: 2 minutes.

PN837

THE COMMISSIONER: 2 minutes, and you, Mr Tilbrook?

PN838

MR TILBROOK: Probably slightly less.

PN839

THE COMMISSIONER: If the parties adhere to that timetable I will be truly amazed. However, that, of course, will avoid the issue of having to return after lunch and I am happy to continue now to conclusion.

PN840

MS RONALDS: If that is convenient. I will be very short. To just clarify one issue. It was just put to you that Dr Rodwell's position was advertised. That in fact is an entirely inaccurate statement. A job in the Faculty of Education at the University of Wollongong was advertised which Dr Rodwell could apply for, he did apply for, he underwent a merit selection and was not chosen for that position. It was not and is entirely inaccurate to describe it as his position. If I could just return very briefly to my friend's submissions. She has conceded while discussing Cram a very vital part of this case and indeed where I opened which is that she has conceded that Dr Rodwell is a prospective employee and she equates his position with that as she was discussing in Cram.

PN841

It is my submission, and I won't go back to where I started this morning, but that concession demonstrates the fatal flaw in these proceedings, both in the application and the notification, that is it requires you, as I have indicated, to create a contract of employment and a position for him to occupy. Similarly the reference to various decisions using a grievance mechanism under existing enterprise agreements, of course, are not relevant to any of your considerations because he is not under any enterprise agreement and therefore the grievance mechanisms being used in some of the heavy cases referred to by my friend is irrelevant.

PN842

Similarly an attempt by my friend to suggest that this is somehow analogist to conversion and her written submissions and her oral submissions allied a very important distinction and seek in essence to suggest a proposition that is untenable in this position, which is that there is no issue about conversion of any appointment to any other appointment. It is the same as the cases she seeks to rely on in relation to classification and reclassification. Conversion applies to existing employees and their category of employment and that is simply not relevant to this matter.

PN843

The concern about severance payments, redundancy payments, etcetera, in the log of claims is, of course, addressed in the enterprise agreement. I won't trouble you with it now but the reference is clause 57 about the payments that could be paid in certain circumstances. As you, Commissioner, have noted that the alternate order B seeks payment far in excess of any of that, it is difficult to construe it as anything other than a punishment. If matters had been different then there would have been a small limited right for Dr Rodwell, certainly not a year's payment - sorry, what is sought is in fact higher than a year's payment, that is longer than he actually was employed at the university is what order B would result in an ex gratia payment and it must be classified as ex gratia because there is no legitimate legal right to make the claim.

PN844

So those issues in the claim have been adequately addressed and there is provision for them in the existing enterprise agreement. Unless there is any other matter, I don't want to repeat where we have been. Of course, there was a penalty imposed by the Federal Court on the university for the breach, so that they have been penalised, that amount having been paid, of course, to the union, that has occurred. So there has been, apart from the finding of the Court itself which is a punishment in itself, there has also been a fiscal penalty imposed which has been met. Is there any matter that I could assist you with?

PN845

THE COMMISSIONER: Nothing further, thank you, Ms Ronalds. Mr Tilbrook?

PN846

MR TILBROOK: Thank you, Commissioner. Commissioner, in the course of her reply my friend referred to the Association's submissions in relation to public interest. Those submissions, of course, appear at page 8 in paragraph number 2 and they relate both to the aspect of public interest when the Commission is exercising its jurisdiction under section 99 and also when it is exercising that different jurisdiction or different aspect of its jurisdiction but nevertheless an aspect that arises out of section 99 and that is the jurisdiction in relation to section 89A(7) together with section 120A. Now, the Association's submissions, of course, was that there is no evidence as to the public interest and in my friend's reply assertions are made but again there is no evidence which would assist the Commission in relation to the exercise under section 99.

PN847

More relevantly, the somewhat different exercise required under section 120A of the Act and the nature of the evidence there, in our submission, is quite particular and is to be found as we say in the decision of the Full Bench in Australian Nursing Federation v Minister for Health of Western Australia and in particular the requirement that there must be great weight attached to the facts of a relatively high degree of public interest and indeed public involvement in the outcome. Now, we say clearly on that particular and much more specific and higher test, no evidence is advanced. On that note, Commissioner, I will rest. If the Commission pleases.

PN848

THE COMMISSIONER: Thank you, Mr Tilbrook. Thank you all for your thoughtful submissions both written and oral. It makes my task both easier and more difficult that your submissions have been so thorough. I have to say it is a refreshing change for a member of the Commission who has just spent the last couple of years dealing with building and construction industry disputes. I will reserve my decision. The parties will be advised when that decision is available.

ADJOURNED INDEFINITELY [1.15pm]