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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LAWSON
C2002/841
C2002/842
NATIONAL TERTIARY EDUCATION INDUSTRY UNION
and
UNIVERSITY OF WOLLONGONG
Applications under sections 99 and 170LW of the
Act re type of employment classification,
redundancy payment, notice of termination, dispute
settling procedures and incidental matters in relation to
the employment of Dr Grant Rodwell (Faculty of Education)
SYDNEY
2.40 PM, THURSDAY, 31 JANUARY 2002
PN1
THE COMMISSIONER: Appearances please?
PN2
MS T. MULLINS: May it please the Commission, I appear for the National Tertiary Education Industry Union. Appearing with me is MICHELLE RANGOTT from the same union.
PN3
THE COMMISSIONER: Thanks, Ms Mullins.
PN4
MR R. WILLIAMS: May it please the Commission, I'm from the Australian Higher Education Industrial Association and with me I have MS BURGESS who is the Employee Relations Manager at the University of Wollongong.
PN5
MR. P. TILBROOK: May it please the Commission I'm an officer of the Australian Higher Education Industrial Association and I appear in proceedings C2002/841 being section 99 notification and the basis of the appeal if the Commission pleases is that in the notification initiating these proceedings the Commission is asked to deal with the matter before it on the basis of an earlier finding of dispute in matter C No 31999 of 1999 and the Association if the Commission pleases was a party in respect to that finding.
PN6
THE COMMISSIONER: As a named respondent to that original dispute is it?
PN7
MR TILBROOK: That is correct, Commissioner.
PN8
MS MULLINS: Commissioner, on that point - - -
PN9
THE COMMISSIONER: Just a moment, Ms Mullins. Well, just before you do, what is the purpose of your appearance, Mr Tilbrook? This is a dispute between the union and the university as an employer.
PN10
MR TILBROOK: The purpose of the appearance if the Commission pleases is that there are two notifications before the Commission today. One is a notification under section 99 and the other is a notification under section 170LW. There are two considerations if the Commission pleases. The first one is that the powers to be exercised by the Commission in the association's view under section 99 are quite different to the powers to be exercised under section 170LW and the second consideration is that the university which is a member of the association has brought to the association's attention a letter written to the university's vice-chancellor today and received at about 10.30 this morning in which the union indicates that amongst other things it will seek orders based on section 89A(4) and 120A of the Act relating to exceptional matters.
PN11
THE COMMISSIONER: Well, it has not told me that but that might well be the case.
PN12
MR TILBROOK: That is the case. I appreciate what the Commission is saying and that if the Commission pleases is the only consideration.
PN13
THE COMMISSIONER: Yes, all right. You have some concerns about Mr Tilbrook's appearance, Ms Mullins?
PN14
MS MULLINS: Thank you, Commissioner. The concern is essentially that we now have two representatives of the AHEIA. The university already has - - -
PN15
THE COMMISSIONER: Well, sorry you have two different representatives from the union here too.
PN16
MS MULLINS: Yes.
PN17
THE COMMISSIONER: What I notice particularly so is that the employee concerned, member of yours, is he here?
PN18
MS MULLINS: He is not here.
PN19
THE COMMISSIONER: And one wonders why he is not here. One would have thought we are all here to do something in his interests. Has he not bothered to show today?
PN20
MS MULLINS: Your Honour, we have been briefed by the member and he was unable to attend today. He is required to finish up his last day of duties at the university and there's quite a number of matters that he is responsible for but I was going to say that while the union does have concerns about the issue of AHEIA appearing in its own right we didn't' want to press the matter because of the brevity of time so we apologise for taking up the time in saying that, Commissioner.
PN21
THE COMMISSIONER: Yes, okay. Thank you for that, Ms Mullins. I still don't know that your appearance is necessary to the outcome of these proceedings, Mr Tilbrook. The first ground that you mentioned to me with respect is just stating the bleeding obvious. The second matter might very well be relevant as to some correspondence that transpired between the union and the vice-chancellor today, none of which I'm aware of and in that respect if you have some sort of different representative role on behalf of the vice-chancellor that seems to be very strange as well.
PN22
MR TILBROOK: My role is not representing the vice-chancellor at all.
PN23
THE COMMISSIONER: Right. Well, why did you even bother to mention the letter in the context of your appearing?
PN24
MR TILBROOK: Well, Commissioner, the provisions of section 120A and section 89A are of interest to us in as much as we would wish to ensure that the pre-conditions - - -
PN25
THE COMMISSIONER: It is of interest to you as a named respondent of the award. Is that the point you are trying to make?
PN26
MR TILBROOK: As a party to the - well, yes, that is correct.
PN27
THE COMMISSIONER: As a party to the relevant award. Is it the underpinning award to the certified agreement?
PN28
MR TILBROOK: It is the underpinning award to the certified agreement that principally interests us, yes.
PN29
THE COMMISSIONER: Right, thank you, Mr Tilbrook. The two matters before the Commission are firstly a section 99 dispute notification and secondly a section 170LW, an application for Commission assistance in the settlement of a dispute. Both applications were filed by the NTEIU yesterday, 30 January 2002. They notify the Registrar of an alleged industrial dispute between the union and the University of Wollongong concerning the type of employment, classifications, redundancy payments, notice of termination, dispute-settling procedures and incidental matters in relation to the employment of a Dr G. Rodwell.
PN30
I note for the record that Dr Rodwell is not present today. The notifier informed the Registrar that although industrial action was not being taken the union sought an urgent hearing in view of the pending termination of Dr Rodwell's contract of employment as of today, 31 January 2002. In the current notifications the union has referred to a relationship between these two matters and two earlier notifications, they being matters C2001/6354 and 6355 listed before Senior Deputy President Duncan in December 2001 but subsequently withdrawn on 21 December 2001 because of then pending Federal Court proceedings.
PN31
For the benefit of the parties' submissions I've obtained those withdrawn files and as a consequence I have access to their content to the extent that some of the relevant documents are held on those files. I've also been provided with a copy of Branson Js decision and orders in relation to the Federal Court matters determined on 29 January 2001. Well, Ms Mullins, both of the matters are filed by your organisation. They refer to a dispute between your organisation and the University of Wollongong as the employer and they relate to a particular person and they seek to deal with a whole range of issues concerning an employment contract of Dr Rodwell.
PN32
I'm told by Mr Tilbrook in his introductory remarks that perhaps there is some other exchange of correspondence or some correspondence at least between the union and the AHEIA of which I'm not aware of at this time but could I hear from you at first instance as to what this is all about? The matter has been brought on at short notice at your request. I'm particularly interested to know what it is that the union is seeking by way of Commission assistance and/or remedy.
PN33
MS MULLINS: Thank you, Commissioner. To assist with the brevity of that I have prepared a submission and attached to it is the orders that we are seeking. A copy of those orders were provided to representatives of the university just prior to this hearing to give them time to look at them. We had tried to arrange a meeting with them at 1.30 to enable discussion around those draft orders and also to explore whether settlement would be possible.
PN34
THE COMMISSIONER: Have you had that opportunity? Do you wish to take that opportunity?
PN35
MS MULLINS: We have attempted, without success, Commissioner, to settle the matter.
PN36
THE COMMISSIONER: Immediately before these proceedings commenced?
PN37
MS MULLINS: Immediately before.
PN38
THE COMMISSIONER: I see.
PN39
PN40
MS MULLINS: Just working through that submission, which does address the issues that have been raised, the NTEIU is seeking the assistance of the Commission in resolving an industrial dispute. We are seeking arbitration on this matter today as it relates to a dispute about Dr Grant Rodwell, whose employment will otherwise terminate at the end of today, being 31 January. The dispute has been brought on as an urgent matter for hearing today as it relates to the decision of the Federal Court on 29 January 2002 that the university of Wollongong had breached the provisions of clause 19.6 of the University of Wollongong Academic Staff Enterprise Agreement. Your Honour mentioned that you have a copy of the decision. I just want to check my colleague has a copy of that decision. I make reference to the University of Wollongong Academic Staff Enterprise Agreement which I have a copy of - - -
PN41
THE COMMISSIONER: I have a copy of the agreement. That is Print No T3253?
PN42
MS MULLINS: That is correct. I presume I do not need to mark that document?
PN43
THE COMMISSIONER: No, not at all. Perhaps the Federal Court of Australia document to which you might refer.
PN44
MS MULLINS: So the Federal Court - - -
PN45
THE COMMISSIONER: I will just simply to it as the Federal Court decision of Branson J dated 29 January 2002 in the matter N 1631 of 2201.
PN46
MS MULLINS: Thank you, Commissioner. The Federal Court found that the university had no right to employ Dr Rodwell on 12 months fixed employment and had breach clause 19.6 of the enterprise agreement. Clause 19.6 of the enterprise agreement restricts the ability of the university to employ academic staff on fixed term employment to six tightly defined situations. Dr Rodwell's employment for 12 months fixed term did not meet any of these situations. I will not take you through that clause, Commissioner, because the Federal Court has determined that Dr Rodwell's employment was outside those categories. However, it is an unusual clause in that it expressly limits when somebody can be on fixed term employment and that is made clear by 19.1:
PN47
The University shall engage a person as a staff member on terms that correspond with one or other of the types of employment prescribed in this clause and in accordance with this agreement.
PN48
It goes on to outline, in clause 19, continuing employment with a definition casual employment fixed term employment and under clause 19.6:
PN49
The use of fixed term employment -
PN50
this is the third paragraph just about 19.6.1 -
PN51
The use of fixed term employment shall be limited to the employment of a staff member engaged on work activity that comes within the description of one or more of the following circumstances.
PN52
Finally, in 19.7, there is the option of casual employment:
PN53
Casual employment shall mean a person engaged by the hour and paid on an hourly basis as set out in schedule 2.
PN54
So unlike many agreements, this does quite severely limit the University of Wollongong's ability to employ somebody on fixed term employment. It has a tight definition of casual employment. The alternative being continued employment.
PN55
On the afternoon following the Federal Court decision the NTEIU contacted the university to propose that they provide Dr Rodwell with continuing employment or provide Dr Rodwell with retrenchment pay. The university has not accepted that proposal and has not proposed any other alternative and I have a copy of the letter that has been referred to by my friend, correspondence between the NTEU and the Vice Chancellor of the university.
EXHIBIT #M2 DOCUMENT ON NTEU LETTERHEAD PAPER DATED 31 JANUARY ADDRESSED TO VICE CHANCELLOR UNIVERSITY OF WOLLONGONG
PN56
MS MULLINS: Commissioner, this letter outlines to - the intent was to outline to the university the matters that would be raised in the Commission today and that it relates to the proven breach of the certified agreement and that we were putting the university on notice that it relates to 17LW or 99 and in this letter we raise the issue of whether or not, if it is necessary, to look at the exception matters in section 89A(7) and section 120. It outlines the sort of orders that we would be seeking and that we are keen to resolve this matter and proposes a meeting at 1.30 today.
PN57
That meeting commenced later than 1.30 but the end resolve, unfortunately, is that the parties have not been able to resolve the matter and we believe that there is no prospect of the parties resolving the matter. The university intends for Dr Rodwell to cease employment at the end of today, 31 January, and the NTEU is therefore seeking urgent orders today. Looking at the question of jurisdiction, the NTEU has notified this dispute as a section 99 dispute or alternatively as a section 170LW dispute. The section 170LW dispute relates to an interpretation, an application of clauses 19.1, 19.4 and 19.6 of the agreement.
PN58
THE COMMISSIONER: Well, you are in the wrong place if you are seeking an interpretation of the agreement. I am not here to interpret the agreement for you.
PN59
MS MULLINS: I beg your pardon, application or operation, I apologise about that. Having raised the 170LW dispute, we are prepared to address that particular jurisdiction further but it is our view that section 99 provides sufficient jurisdiction to cover this matter. Alternatively, we rely on the jurisdiction provided by the exceptional matters provision, section 89A(7) and section 120A of the Workplace Relations Act. Further, alternatively, we seek such orders as the Commission considers fair and necessary and that is section 120.
PN60
Looking at section 99 jurisdiction, the University of Wollongong is subject to an industrial dispute finding and a decision of Commissioner Smith dated 27 April 1999. The dispute finding related to a log of claims dated 3 March 1999 which provides sufficient coverage for this industrial dispute and I have a copy of that dispute finding and the log of claims that it related to. At the same time, if it is convenient, that is the - the second bigger document is the log of claims. I apologise, but I may have given you three copies of the bigger document.
PN61
PN62
THE COMMISSIONER: Ms Mullins, you handed up a copy of Print Q0702 which is a Full Bench decision.
PN63
MS MULLINS: Apologies, your Honour. It appears to have got trapped in the other one. We do have the correct documents.
PN64
MR WILLIAMS: Commissioner, I am sorry to interject.
PN65
THE COMMISSIONER: Yes, Mr Williams.
PN66
MR WILLIAMS: Could you please tell me what exhibit M3 was if this has been marked M4.
PN67
PN68
MS MULLINS: Commissioner, I do not believe that this will be in dispute but for the sake of form, M3 outlines that there is an industrial dispute and you will note that on the second page, just above 3, above four universities up there is the University of Wollongong has been found to be a party to that - - -
PN69
THE COMMISSIONER: Also noted the AHEIA is there.
PN70
MS MULLINS: It makes reference, in 3, to a letter of demand dated 3 March 1999 and that letter of demand, which I also do not believe will be in dispute, is exhibit M4. Turning to that, for the purposes of jurisdiction, that log of claims, we are relying on clauses 1.5, which says the contracts of employment shall incorporate the terms of awards. 2.2, which says - - -
PN71
THE COMMISSIONER: I am sorry, what was this? You are relying upon the incorporation of the contract clause, clause 1.5?
PN72
MS MULLINS: Which incorporates awards. The relevance of that is there is a Higher Education Contract of Employment Award, which I will come to shortly. That award mirrored virtually exactly the limits in clause 19.6 about who can be employed under fixed term contract. The effect of 1.5 will therefore be to incorporate those restrictions on fixed term employment into every employ's contract of employment as a claim. We are also relying, from the log of claims on 2.2 which states that all appointments will be on a permanent basis, except where agreed to by the union. We are relying on clause 2.4 - - -
PN73
THE COMMISSIONER: I would doubt that would pass the award simplification test, Ms Mullins. Be that as it may, it constitutes part of an existing log, a record of log.
PN74
MS MULLINS: 2.4, that all casual or limited terms employees shall have the same rights, terms and conditions as permanent employees. 2.5, a limited term or casual appointment shall be made only in circumstances agreed by the union. 2.9, limited term appointments for reason other than the replacement of employees shall be for such a term as agreed by the union. The purpose of relying on those is not for the purposes of address section 89A and the restrictions that are outlined there but for the purposes of meeting the first hurdle which is - there is actually an industrial dispute and an industrial dispute finding and the breadth of the log covers the matters that are in contention between the parties.
PN75
The matters being pursued by the NTEU are allowable award matters as they are covered by section 89A(2)(m), which relates to redundancy pay; (n), which relates to notice of termination; (r), which relates to types of employment and also by section 89A(6), incidental matters. We rely on the decision of the Full Bench of the Commission which resulted in higher eduction contract of employment award, and that is Print Q0702. I have a copy of that decision. It is the copy of the decision itself, Q0702, that related to - - -
PN76
THE COMMISSIONER: Dated 11 May '98?
PN77
MS MULLINS: That's correct.
PN78
THE COMMISSIONER: Yes, I have that.
PN79
MS MULLINS: That is quite a lengthy 61 page document.
PN80
THE COMMISSIONER: This one is certainly not 61 pages.
PN81
MS MULLINS: Sir, you may have the award itself, Commissioner.
PN82
THE COMMISSIONER: I have the award itself so if you are going to rely on the decision, you had better hand me up the decision. I note that Ms Mullins is now referring to Print Q0702.
PN83
MS MULLINS: Commissioner, that decision addressed the question of whether or not the matters that were ultimately forming part of the Higher Education Contract of Employment Award, of which you have made reference, whether or not those matters were allowable award matters to meet the requirements of section 89A and the Higher Education Contract of Employment Award deals with definitions of different types of employees and it is in virtually exactly the same words as clause 19.6, from this relevant enterprise agreement.
PN84
I make reference to that case as supporting the contention that the orders which we are seeking, which relate to types of employment, notice of termination and redundancy of severance pay, that decision supports those matters as being within the scope of section 89A and that is dealt with quite extensively in the decision itself. If I could just make reference to some of the provisions that are in the Higher Education Contract of Employment Award - I will just check that my friends have copies.
PN85
So these matters, Commissioner were found to pass section 89A and that includes matters to go into a contract of employment, in clause 2. It includes definitions in clause 2.1 through to 2.3 - sorry, 2.4, includes definition of full time employment, part-time employment, fixed term employment and also casual employment and you will note the virtual word for word similarity to clause 19.6 of the Enterprise Agreement. It includes, for example, a requirement to employ employees only in accordance with the categories of employment that are outlined in this award - and that is the first paragraph in clause 2 of that award. It includes the requirement to - it imposes restrictions on when fixed term employment can be used by the employers and that is in the fourth paragraph of 2.3. It includes definitions of different types of employees in order to define their type of employment. It outlines, in clause 4: notice and severance pay. So we rely on the decision that created that award as supporting the contention of this matter before the Commission today comes within section 89A as an allowable award matter.
PN86
THE COMMISSIONER: There seems somewhat of a contradiction in the general concept of severance pay and fixed term contract, particularly fixed term contract for 12 months.
PN87
MS MULLINS: That resulted from extensive evidence about the particular industry - - -
PN88
THE COMMISSIONER: Yes.
PN89
MS MULLINS: - - - and it was in response to the union attempt to limit when fixed term employment could occur and the financial benefits that employers could get.
PN90
THE COMMISSIONER: I'm briefly aware of some of the history but I have no detail on which I - - -
PN91
MS MULLINS: Looking at 235 in the submission, section 114 empowers the Commission to make an award or order in settlement of an industrial dispute even where an award or order already exists. For example, the Higher Education Contract of Employment Award. In this case, while there are certain awards which apply to Dr Rodwell and the University, none of those awards provide for what to do in a situation where the University employs someone on a fixed term employment in breach of that award or in breach of an enterprise agreement. The NTEIU is seeking the creation of a new right, having taken into account the provisions of the enterprise agreement and relevant awards and Federal Court decision. The dispute has occurred because the enterprise agreement and the awards do not provide any right relating to the situation where the University of Wollongong, in breach of the enterprise agreement, employ someone on flex term employment.
PN92
The Federal Court has determined that the enterprise agreement is silent on this issue and there is no provision in any current award which addresses this issue. The issue of converting an employee for one type of employment to another ought to create a definition for a type of employment which has that effect was found to be within the jurisdiction of the Commission and the recent Metals Award decision. That award has included a provision that converts a casual employee to a continuing employee under certain circumstances and I have extracts of that relevant award, Commissioner.
PN93
THE COMMISSIONER: Again, I have some knowledge of that. I was on the Full Bench.
PN94
MS MULLINS: Yes, more knowledge than you would seek to have.
PN95
THE COMMISSIONER: It is not something that I study every day but I have some knowledge of it. Are these extracts of the Metals Engineering and Associated Industries, Ms Mullins, are they?
PN96
MS MULLINS: That is correct.
PN97
PN98
MS MULLINS: I just draw your attention, Commissioner, to clause 4.2.3(d)(vi), and the fax number page at the top right corner is page 5 and in that clause you will see that it outlines the prospects based on certain situations that a casual employee has elected to have his or her contract of employment converted to full time or part-time employment in accordance with 4.2.3(b)(iv). So 4.2.3 of that award outlines a conversion process and the ability to apply for it. That award was clearly found to be within the scope of the allowable award matters.
PN99
THE COMMISSIONER: Which was the reference you were relying on? 4.2. - - -
PN100
MS MULLINS: 3(b) - - -
PN101
THE COMMISSIONER: b - v?
PN102
MS MULLINS: - - - (iv) and (vi) and, I beg your pardon, also (b)(i). So it is 4.2.3(b)(i), (b)(iv) and (b)(vi) and while the orders that we are seeking are not of exactly the same order, we rely on this award as being precedent for the fact that a clause which provides for conversion from one type of employment to another comes within the scope of the allowable award matters. Returning to 2.3.8 of the submission:
PN103
This matter is an industrial dispute and is not in the nature of an individual matter. While Dr Rodwell is the current example of the dispute, the issue of what to do, whether the University breaches the enterprise agreement and employs someone on flex term employment there is a much broader dispute that affects current and future employment at the University of Wollongong. The NTEIU is not seeking a supplement to a penalty action or punishment for the university. We are seeking the creation of a new right which determines a fair and just type of employment and conditions for Dr Rodwell.
PN104
Looking at the issue of exceptional matters, if the Commission determines that the orders sought are not within the allowable award matters in section 89A then we rely on the jurisdiction provided by sections 89A(7) and 120A of the Workplace Relations Act. We submit that the circumstances meet the requirements for such an exceptional matter order. The first requirement outlined in 89A(7) is that genuine attempts have been made to reach agreement. Dr Rodwell and the NTEIU have sought to resolve this matter with the University since August 2001 without any success.
PN105
The University denied that it employed Dr Rodwell in breach of the enterprise agreement provisions and I have a copy of the correspondence. The first document relates to Dr Rodwell's actual contract of employment or letter of offer.
PN106
THE COMMISSIONER: The single page document under the letterhead of the University of Wollongong, addressed to Dr Rodwell dated 19 December 2000, I will mark as exhibit M6 in these proceedings.
EXHIBIT #M6 SINGLE PAGE DOCUMENT LETTERHEAD OF UNIVERSITY OF WOLLONGONG ADDRESSED TO DR RODWELL dated 19/12/2000
PN107
MS MULLINS: Just briefly, looking at that document, you will note that it outlines for a period of employment, 12 months from your entry on duty that the purpose of this appointment, in the first paragraph - the purpose of this appointment is to teach core subjects within the undergraduate, post graduate programs, but then, in the third paragraph, the letter of offer includes the commitment:
PN108
Your conditions of employment will be in accordance with the University of Wollongong Academic Staff Enterprise Agreement 2000 to 2003.
PN109
THE COMMISSIONER: Dr Rodwell's attention was not drawn to clause 19?
PN110
MS MULLINS: Not specifically to 19.6 but we are relying on that commitment made by the university to act in accordance with it. Looking at the correspondence that then ensued in the matter.
EXHIBIT #M7 SINGLE PAGE COPY OF UNIVERSITY OF WOLLONGONG MEMORANDUM TO DR RODWELL FROM PROFESSOR BARRY HARPER, DEAN, DATED 14/08/2001
PN111
MS MULLINS: This is an example of the correspondence that refers to Dr Rodwell raising - making reference to the provisions in the enterprise agreement and it includes an excerpt of advice from the Deputy Director of Personnel referring to clause 19.6.1 and that it is a statement that is not inconsistent with the letter of offer and that he expressly accepted a 12 month period of employment. The next letter is from the NTEU dated 20 September to the university, once again raising objection to the nature of the employment.
EXHIBIT #M8 COPY OF LETTER DATED 20/09/2001 TO MR STEWART, ASSISTANT DIRECTOR OF FINANCE AND PERSONNEL OF THE UNIVERSITY OF WOLLONGONG ON NTEU LETTERHEAD PAPER
PN112
MS MULLINS: Commissioner, that letter outlines the NTEU raising its concern that there was a breach of the enterprise agreement clause 19.6, challenging the contention that Dr Rodwell's contract met the definition of clause 19.6.1 and specifically the concept that teaching core subjects could not be construed as a specific task or project.
PN113
THE COMMISSIONER: Whereabouts is that that you are reading from?
PN114
MS MULLINS: The final paragraph on page 1, we contend it is not permissible under the definition of clause 19.6.1 that the teaching of core subjects can't be construed as a specific task or project which is one of the allowable categories of fixed term employment and it is seeking the, in the final, second to last paragraph on page 2, it is seeking - it is stating Dr Rodwell's position is in fact a continuing position and should be converted on that basis. The next document is the dispute notification on this matter which was a letter dated 23 October 2001.
PN115
MS MULLINS: The only purpose of that letter is to outline that a notice - dispute notice was given. The next letter is from - sorry, Commissioner.
PN116
THE COMMISSIONER: Yes, go ahead, please.
PN117
PN118
THE COMMISSIONER: What is the relevant point in this correspondence?
PN119
MS MULLINS: The third paragraph, this is by Irene Burgess who is the Manager Employee Relations investigating the alleged dispute and despite the previous letter asserting that it was a specific task or project which would then make it an allowable fixed term contract this letter says, in the third paragraph:
PN120
It appears that Dr Rodwell has undertaken work activity replacing continuing employees for a period while they are temporarily seconded away.
PN121
It goes on to say:
PN122
Therefore my assessment of this appointment is that it could be argued that replacement staff members describes the intent of this contract better than as you describe a specific task.
PN123
So that is the second attempt at justification from the employer, that it is a replacement staff member which would be further category of allowable fixed term employment. Ultimately, Commissioner, the matter was not resolved by the parties through the dispute settling process and the union and Dr Rodwell initiated action in the Federal Court and you will be aware, Commissioner, in that decision it was determined that Dr Rodwell's employment did not meet any of the categories of fixed term employment and in that matter before the Federal Court, the university was relying on an argument around the specific task and project aspect of it but there was no finding that he met any of the other allowable categories of fixed term employment.
PN124
THE COMMISSIONER: Was the argument about the replacement employee not run before Branson J?
PN125
MS MULLINS: It was not run. The only justification for the employment was that an argument about the definition of specific task or project and by defining teaching of core subjects, that was sufficient to bring it within the ambit of clause 19.6.1 which is the specific task or project. In terms of where the situation is left with Dr Rodwell's employment at the moment, he has been notified that his employment is to cease on 31 January in a memo originally dated 8 November 2001.
PN126
MS MULLINS: Commissioner, there has been no change to the university's position on this matter since the Federal Court case. Our understanding is they expect Dr Rodwell to cease employment at the end of today. Commissioner, I have made reference to the fact that the NTEU has also contacted the university representatives following the decision of the Federal Court to seek a resolution and that we had offered to meet the university, which had occurred just prior to this hearing but, unfortunately, without success at resolving the matter. So the union contends that there has been a genuine attempt to reach agreement and to resolve this matter all the way from August last year through to in fact just before the hearing today.
PN127
THE COMMISSIONER: Would that contention be followed by another contention of the disputes settling procedure insofar as it relies upon the parties dealing directly with each other has been exhausted?
PN128
MS MULLINS: That is correct, Commissioner. There has been numerous correspondence, several meetings and the parties have remained completely apart without any proposal from the university to settle this other than for Dr Rodwell's employment to cease as outlined in M11. The next requirement in clause 89A(7) is that there is no reasonable prospect of agreement. We contend that there is no reasonable prospect to reach an agreement and that the matter needs to be resolved before the university treats Dr Rodwell's employment as ceasing today.
PN129
The next requirement is that it is appropriate to settle the matter by arbitration. The NTEU submits that the only way that this matter can be resolved, which will meet the objects of the Workplace Relations Act and avoid a harsh or unjust outcome is through arbitration. It then requires that the issues are exceptional. The NTEU contends that the issues are exceptional for the following reasons. Firstly, the university employed Dr Rodwell under a purported fixed term contract which was found to be, by the Federal Court, to be in breach of clause 19.6 of the enterprise agreement.
PN130
Secondly, the Federal Court also raised the issue of the university providing no evidence of any systems or procedures to ensure the enterprise agreement was complied with. Thirdly, the university had no right to employ Dr Rodwell on fixed term employment and should have employed him on continuing employment. Fourth, as a continuing employee, Dr Rodwell would have been entitled to, firstly, ongoing employment with termination of employment only possible for redundancy or following disciplinary action in accordance with Part VI and VII of the enterprise agreement. I just draw your attention to clause 59 of the enterprise agreement, 59.1:
PN131
Other than as provided for in clause 28 -
PN132
which is probationary appointments -
PN133
and clause 26 incremental question all decisions to discipline or terminate the employment of an academic staff member can only be taken by the Vice Chancellor in accordance with Part VI-
PN134
those are the redundancy provisions -
PN135
and Part VII-
PN136
which is the discipline and performance provisions of this agreement.
PN137
THE COMMISSIONER: As a matter of interest, in accordance with either Part VI or VII, what is Dr Rodwell's redundancy entitlement after a 12 month contract?
PN138
MS MULLINS: Well, that is the issue that - I will come to that in much more detail going through those provisions. Essentially, as it stands at the moment, none. As a continuing employee, Dr Rodwell would also be entitled to superannuation employer contributions at 17 per cent rather than the statutory minimum which is 8 per cent and that is outlined in clause 12.1 of that enterprise agreement. The fifth reason, we say, it is an exceptional issue is there is no evidence that there were performance concerns or disciplinary matters against Dr Rodwell.
PN139
Sixth, the letter of appointment for Dr Rodwell stated that and I have included an extract from that letter:
PN140
Your conditions of employment will be in accordance with the University of Wollongong Academic Staff Enterprise Agreement 2000 to 2003.
PN141
A copy of that letter is M6, however, the university did not employ him in accordance with that agreement. Seven, the outcome of the university's breach of the enterprise agreement is that Dr Rodwell will suffer undue hardship as a result of termination of employment from 31 January. Eight, the only reason that Dr Rodwell - - -
PN142
THE COMMISSIONER: What support do you have for that proposition, given, at the outset of offer and acceptance of a contract of employment, Dr Rodwell knew in January last year that his services would be terminated due to the expiry of the contract in 12 months. How can you assert that he will suffer undue hardship? What is the corroborative material for that contention?
PN143
MS MULLINS: Commissioner, it is true to say he was fully aware that the letter referred to 12 months employment and that is up front but the letter of offer also indicated that he would have the - the conditions that were outlined in the enterprise agreement. It is the university that has chosen to employ him in a non allowable fixed term contract. One of the direct consequences of that is that he has missed out on about 9 per cent employer contribution to superannuation, that is one hardship. The other result is he expected his employment to be in accordance with that agreement. If it had been, he would have had ongoing employment, subject potentially to a probationary period. Instead he faces a situation where the university advertises the position he was in on fixed term employment, so therefore there was clearly an ongoing need for it, and has not put him in that position so he misses out on employment as - - -
PN144
THE COMMISSIONER: He was always going to miss out on employment. From the outset of the contract, he was always going to terminate in January until this dispute arose, I think from August onwards.
PN145
MS MULLINS: The only reason he misses out on employment is that the university breached the enterprise agreement. The university is bound by the enterprise agreement.
PN146
THE COMMISSIONER: I am asking you to substantiate the contention of Dr Rodwell's expected undue hardship. The two do not follow with what is, in all other perceptions, a closed period of employment.
PN147
MS MULLINS: I have no evidence to refute his knowledge that in the letter, that they were offering him a 12 month period of contract but they also offered he was to get the benefits of the enterprise agreement, which he did not. It is not a situation of me being able to have evidence of, you know, his mortgage would fall over, that sort of thing. I mean, obviously there will be a financial - - -
PN148
THE COMMISSIONER: So it is really the loss of the enterprise agreement entitlements due to him - - -
PN149
MS MULLINS: Yes.
PN150
THE COMMISSIONER: - - - had his employment been, for want of a better, word, legitimate.
PN151
MS MULLINS: That is correct. So the only reason that Dr Rodwell's employment was proposed to cease on 31 January is as a reach of the university breaching the enterprise agreement. The finding of the Federal Court determines that Dr Rodwell was not employed as a fixed term employee under any of the provisions of clause 19.6 yet his employment contract defines him as fixed term employment with final employment dated of 31 January 2002. The effect of this is that Dr Rodwell will not only miss out on fixed contract severance pay as he does not meet the criteria in clauses 58.1.1, 58.1.2 or 58.1.3. I just take you that clause in the enterprise agreement.
PN152
So the stem to clause 58.1 is looking okay, because it talks about fixed term staff member, so you could say that Dr Rodwell fits within that but it goes on to limit it to the following circumstances in 1.1, 1.2, 1.3. 58.1.1 makes a reference to where they are employed on a second or subsequent fixed term contract - - -
PN153
THE COMMISSIONER: That does not apply to Dr Rodwell though, does it?
PN154
MS MULLINS: That is right. So he would not come into 58.1.1. Because of that, he also does not fit 58.1.2 or 58.1.3. He certainly was not employed prior to June 1998, which is a requirement of 58.1.3. So because it has now been found that he does not fit 19.6.1 or 19.6.2 and because he was not employed before 30 June 1998, the unfortunate thing is the way this enterprise agreement reads, he will not get severance payment as a fixed term employee. Whereas, if he had been employed on an allowable fixed term contract, specific task or project, which was the reason given by the employer throughout the process, he would have got severance pay in accordance with this enterprise agreement and that would have been between 4 and 8 weeks pay.
PN155
THE COMMISSIONER: Where is that entitlement?
PN156
MS MULLINS: That is he gets the benefits on retrenchment. It makes reference in 58(1) to a payment in accordance with 57.5 and looking back at 57.5 it outlines up to completion of 2 years which is Dr Rodwell's situation. He would have got 4 weeks' pay. That would only have been if he had been a fixed-term employee and if he had met - - -
PN157
THE COMMISSIONER: So his loss is not between 4 and 8 weeks, his loss is 4 weeks.
PN158
MS MULLINS: Four weeks, I beg your pardon, yes, Commissioner. So if he had been an allowable fixed term employee in 19.6.1 or 19.6.2 then he would have got that severance pay of 4 weeks. The other alternative to look at is the redundancy provisions of the enterprise agreement and those are outlined in clause 57. In 57.2 what would have applied under that clause, Dr Rodwell was over the age of 45 years. On the table that appears at the top of page 47 of the enterprise agreement you will see that there's a 12-month period that the staff member is to have further employment from notification of retrenchment if you are 45 years and over of 12 months.
PN159
Under 57.3 Dr Rodwell would also have got the notice in addition to that in clause 14. That notice is for - in his situation it would have amounted to 2 weeks under clause 14 and that is outlined in 14.4: more than 1 year but not more than 3 years. So we have a situation under the enterprise agreement which we say is one of the reasons that it is an exceptional matter that Dr Rodwell - well apart from the fact that he shouldn't have been employed on fixed-term employment, the only employment that should have occurred back in December 2001 - sorry, December 2000 when he was employed for the fixed term was that he should have been employed on continuing.
PN160
If he had been continuing and if the university deemed that they no longer needed that position he then ultimately would have been entitled to 12 months further employment, to 2 weeks' notice and then to 4 weeks' severance pay but because he has not been employed as continuing as he should have been, he does not fit clause 57. Equally because the university did not employ him in an allowable fixed term contract of 19.6.1 or 19.6.2 he misses out on the provisions in clause 58 and therefore gets no severance pay from that provision. Those same problems which I've gone through in detail for the enterprise agreement, they apply to the obligations in the two awards.
PN161
If you look at clause 4.1.3 of the Higher Education Contract of Employment Award and clause 11 of the Universities Post Compulsory Conditions Award 1995 virtually exactly the same clauses are outlined and he would fall between a crack for those ones as well. He wouldn't meet the fixed-term employment under VECCI in order to get the severance pay and he wouldn't meet the redundancy definition in the conditions award in order to get retrenchment pay. So Dr Rodwell would miss out on contract severance and retrenchment benefits in those awards.
PN162
The university chose to offer the HSIE position on a continuing basis to a person other than Dr Rodwell on December 2001 and the Federal Court goes into the background to this, that Dr Rodwell had originally applied for and been employed in the HSIE lecturer position in the Faculty of Education that was for a 12 month period. The university has then advertised an HSIE lecturer position as a continuing basis and chose not to give that position to Dr Rodwell. That is despite the fact that the NTEIU advised them of a dispute before they had appointed anybody and had sought a deferral of any appointment.
PN163
The Workplace Relations Act objects include a focus on enterprise bargaining and in section 3E include the object of ensuring parties abide by awards and agreements. Section 170M(1) of the Act provides that a certified agreement is binding on an employer. An employer should not be rewarded for breaching an enterprise agreement. Without an award or order of the Commission Dr Rodwell would be harshly affected by the university's breach of the enterprise agreement and the commitment to employ him in accordance with the enterprise agreement.
PN164
In December 1998 the University of Wollongong agreed to a conversion policy with the NTEIU which meant that where a position that was currently fixed term was to become a continuing position and provided the incumbent in the fixed-term position had applied for that position following an advertisement with a competitive selection process that person would be converted to continuing employment with a 12 month probation period. Dr Rodwell in his HSIE position met this criteria but he was not converted to a continuing employee on probation and I have a copy of the probation - - -
PN165
THE COMMISSIONER: So one of the conditions was not met. The conversion policy existed with some conditions.
PN166
MS MULLINS: He met all of the conditions of that conversion policy but he was not - - -
PN167
THE COMMISSIONER: But he was not chosen as a consequence of as you describe it here the competitive selection process.
PN168
MS MULLINS: The conversion policy would happen before any consideration of an outside merit selection process. You wouldn't advertise it. It is an opportunity for internal University of Wollongong fixed-term-contract employees to as a consequence of the VECCI award the university agreed with our union to consider people that were in those fixed-term contracts. For those people that fell outside the allowable award matters that they would have the opportunity to be considered for conversion and as long as they had gone for interview following an ad in order to get into that fixed-term position they would then be converted into continuing.
PN169
THE COMMISSIONER: Was that put to the university along the dispute trail somewhere?
PN170
MS MULLINS: Yes.
PN171
THE COMMISSIONER: That Dr Rodwell should have been converted, to use your term, prior to the position being advertised?
PN172
MS MULLINS: Yes, we sought - and one of the letters from the union you may recall that we referred to him being converted and my understanding is that that was raised with the university that they had a policy about conversion. In the document that has been provided, we don't yet have an exhibit number, but it does talk about it was originally set up and following the VECCI award in June 1998. The policy does refer to '98 or '99, people who - - -
PN173
THE COMMISSIONER: The point I'm trying to make is did the union raise the issue of the conversion of Dr Rodwell prior to the determination and the advertisement of a new ongoing position?
PN174
MS MULLINS: Yes, we have.
PN175
THE COMMISSIONER: And that was rejected as a proposition was it, openly rejected?
PN176
MS MULLINS: The university was asserting that because in their view it was an allowable fixed-term contract, therefore it does not need to be considered for conversion.
PN177
THE COMMISSIONER: Thank you. Now, what is this single-page document you have - - -
PN178
MS MULLINS: That is the conversion policy.
PN179
THE COMMISSIONER: This is the 1998 conversion policy is it?
PN180
PN181
MS MULLINS: The last criteria for 89A(7) is that a harsh or unjust outcome would occur. We submit that a harsh and unjust outcome will definitely occur unless the Commission makes such an order. Dr Rodwell will be left without employment, without any redundancy or severance pay and without 17 per cent employer superannuation contributions. All of this will occur as a result of the university breaching the enterprise agreement. The NTEIU also submits that for the same reasons the making of an exceptional matters order is in the public interest as required by section 120A.
PN182
Essentially we are submitting that public interest is for employers to abide by enterprise agreements and anything which undermines that as an outcome is against the public interest. In addition universities are public, well partly public these days, institutions and it is of particular importance for them to be seen to and actually be abiding by enterprise agreements.
PN183
Lastly the orders sought only relate to a single matter and to a single employer as required by sections 120A(1) and (3). Turning finally to the draft order which is attached as page 7 to the submission, while we are obviously open as always to such orders as the Commission deems just and appropriate we've essentially outlined an order and an alternative order. One is that the University of Wollongong treat Dr Grant Rodwell as a continuing full-time employee in the classification of lecturer and we say that the metals case enables the Commission to do that as a section 99 matter as the VECCI award decision.
PN184
We say that also under 170LW that the Commission is empowered in its application and operation of the types of employment clause in clause 19, that it is empowered to do that and certainly under the exceptional matters that the Commission would be empowered to do that. Number two is that the university shall comply with the provisions of the University of Wollongong Academic Staff Enterprise Agreement regarding any termination of employment or redeployment of Dr Rodwell.
PN185
That is by law anyway, Commissioner, obviously but what we are alerting is that in the event that order number 1 is granted the university of course would be able to use the redundancy provisions if they found that the position was surplus to any reasonable requirement and if redeployment having been investigated was not available to them and we are seeking for the order to come into force today. The alternative order that should the employment of Dr Rodwell terminate on 31 January 2001 in circumstances where the university has not made an offer of continuing employment to Dr Rodwell as a lecturer by 1 February the university shall make a redundancy settlement payment equal to 58 weeks' pay at the rate applicable at 31 January 2002.
PN186
Now, I've gone through outlining why Dr Rodwell fell between the cracks if you like between the contract severance and a redundancy. It is our submission that looking at the just and equitable outcomes the university should have employed Dr Rodwell on continuing employment and the fairest way to remedy it is to remedy him as if he had been originally employed as a continuing employee and to pay him out. The 58 weeks is made up of the 12 weeks' further employment, the notice that is required and the final redundancy severance pay and those were outlined earlier in the submission.
PN187
If it is determined that the exceptional matters jurisdiction is required in order to make these orders there's then the requirement that the orders remain in force for only 2 years and that sentence has been included for that reason. May it please the Commission.
PN188
THE COMMISSIONER: Thank you, Ms Mullins. Mr Williams?
PN189
MR WILLIAMS: Thank you, Commissioner. You will have to excuse me if my submissions are a bit jumbled because to be quite frank we didn't really know what the union were going to be asking for or looking for with these notifications today. At the outset - - -
PN190
THE COMMISSIONER: Well, you had as much notice about them as I did and you are obviously much more familiar with the background to it than I am so I would have thought that you would have been in a position to respond perfectly to what has been put today.
PN191
MR WILLIAMS: I wouldn't say perfectly, Commissioner. As Ms Mullins indicated the correspondence to the vice-chancellor outlined the union's position. The university received that at 11 o'clock this morning. I received that at 1.30 this afternoon, your Honour, when I came up from Melbourne - Commissioner, I beg your pardon, and similarly with the draft order we only received that 15 minutes before we came in. So we really didn't know what the union were going to be seeking today with these applications.
PN192
THE COMMISSIONER: Well, having heard the union's detailed submission now, Mr Williams, you know precisely what it is that the union is seeking on behalf of Dr Rodwell and probably in a more general sense. Do you want to take the opportunity of conferring with your colleagues or alternatively conferring with the union before I hear your formal response to the detailed submissions of the union? In other words I'm giving you an opportunity to confer with a view to try to settle the matter without the necessity for the Commission to make an order.
PN193
Be assured the Commission will exercise whatever powers it deems appropriate to resolve the matter but without having heard you, and I don't say that in any disrespectful way at all, it seems to me that there are a few coat tails being dragged along for people to recognise and do something with if that is a possibility.
PN194
MR WILLIAMS: Perhaps, Commissioner, if I may respectfully suggest that the assistance of the Commission and the use of its conciliation powers might be availed after I've made some brief submissions. In other words if we could perhaps adjourn into conference and take your assistance in that form.
PN195
THE COMMISSIONER: right.
PN196
MR WILLIAMS: But after hearing what I have heard this afternoon I would submit, Commissioner, that essentially what the union is seeking from the Commission is what they sought from the Federal Court and that these issues were decided by the Federal Court in the decision of Branson J handed down on Tuesday and that we would seek to rely upon Branson Js findings in demonstrating that you shouldn't make the order that is being proposed. As far as the submissions go, again essentially the issues that were brought up were dealt with in the Federal Court and I might take you to that decision sooner rather than later, Commissioner.
PN197
THE COMMISSIONER: Why do you say the union is now seeking what it didn't get at the Federal Court?
PN198
MR WILLIAMS: I'm sorry, Commissioner?
PN199
THE COMMISSIONER: What do you say, could you expand upon the proposition that the union is now seeking what it didn't get at the Federal Court?
PN200
MR WILLIAMS: Yes, that is what I'm saying.
PN201
THE COMMISSIONER: Yes, in what general sense? You can certainly take me through it in detail but in the general sense.
PN202
MR WILLIAMS: Well, in a general sense my understanding of the union's submissions are that they are attempting to ask the Commission to convert what was agreed to be a fixed-term contract into the continuing position. In simple terms, Commissioner, I would suggest that that was what they went to the Federal Court to ask as well and the Federal Court clearly rejected that proposition. The Federal Court found that the university had breached two clauses in the agreement and imposed penalties upon the university for that but the Federal Court did not grant any of the relief sought by the union with respect to the nature of the contracted employment.
PN203
I really believe, Commissioner, that the decision of Branson J may be instructive for you if I can walk you just through a couple of points in it. If you have got a copy of that decision there, which I believe you do have and if I could take you to page 10, Commissioner, and Branson Js outline - - -
PN204
THE COMMISSIONER: I trust we are all singing off the same song sheet are we?
PN205
MR WILLIAMS: I hope so. I've got a copy that was actually a faxed copy but it is a 25-page document - I beg your pardon, it is 21, 25 pages on the fax.
PN206
THE COMMISSIONER: Twenty-four, 25 pages, yes.
PN207
MR WILLIAMS: Page 10 starts with 1.1, the imposition of a penalty on my copy.
PN208
THE COMMISSIONER: Page 10? Yes.
PN209
MR WILLIAMS: Does that accord with copy, Commissioner?
PN210
THE COMMISSIONER: Yes, seems to be the same.
PN211
MR WILLIAMS: Okay. At about halfway down the page at page 10 there at paragraph 3 Branson J outlines the nature of the relief that the union was seeking, 3.1 a declaration that the second applicant was and has been employed by the respondent under continuing employment, an order giving full effect to the employment as continuing employment. An injunction restraining the respondent from treating the second applicant's employment as ceasing on 31 January 2001 and as it turned out it didn't become relevant but at 3.4 an injunction to restrain the respondent from taking any further steps to fill the position advertised.
PN212
Over the page there at 11 at the top an order for specific performance of the second applicant's appointment on 31 January 2001 treating his employment as continuing beyond 31 January 2002. So effectively as I understand it the union went to the Federal Court to ask for penalties for breaching the agreement and then asked for declarations that by virtue of the breach of the agreement that somehow the fixed-term contract should be considered as a continuing form of employment.
PN213
Now, Branson J outlines her considerations to that particular part of the union's claim. I should say, Commissioner that - I just did say, that Branson J found that there were two breaches of separate clauses of the agreement. As far as in actual, Dr Rodwell's appointment goes, if I can take you to page 16 of the decision, and paragraph 36 in the first instance, Branson J noticed that the applicants accepted the only offer of employment made to Dr Rodwell by the University was an offer of employment for a fixed term of 12 months and Dr Rodwell accepted that offer of employment.
PN214
I would let you dwell on this if you would prefer, Commissioner, but I would be relying upon paragraphs 37, 38, 39 and 40, in effect, to submit that Branson J found that regardless of there being a breach of the agreement in the manner in which she found, could not change the fundamental and express terms of the contract and it could not provide for that contract to somehow then become continuing. Branson J did not grant that injunction, to have the employment continuing from 31 January 2002 and was patently aware of the fact that this employment was due to end on today, 31 of January. There are a couple of specific comments that I might like to bring to your attention, Commissioner.
PN215
At paragraph 38 - and in essence I would rely upon all of paragraph 38, but in particular I would refer you to the last sentence and that is:
PN216
that nothing in section 178 provides a basis for the applicant's argument that a breach of the certified agreement can alter the express terms of the contract of employment -
PN217
and then, continuing paragraph 39:
PN218
Neither section 178 nor any other provision of the Workplace Relations Act discloses in my view, an intention that a consequence of the type for which the applicants here contend should flow from a breach of the term of an enterprise agreement.
PN219
Branson J found that the agreement - that the contract of employment that was agreed to at the outset was for 12 months and was said to expire on 31 January 2002 and she decided that she would not take any action to alter that.
PN220
THE COMMISSIONER: Did she find it or was the contract as a result of her analysis and findings was a nullity? Did she deal with that at all?
PN221
MR WILLIAMS: Not to my knowledge, Commissioner. I would not like to say that she didn't but - - -
PN222
THE COMMISSIONER: I think by the second proposition - by the second point that you drew my attention to, the fact that she didn't grant the orders of release sought infers a recognition of the existence of the fixed term contract, albeit in breach of the provisions of the agreement.
PN223
MR WILLIAMS: But perhaps the - perhaps paragraph 39 may answer your question there, Commissioner, if you look at the second sentence:
PN224
Were an intention able to be gleaned from the terms of the Workplace Relations Act that the making of contracts in breach of enterprise agreements is prohibited, it would be necessary to consider whether the statute also discloses an intention that such contract should be rendered void and unforceable.
PN225
She goes on to note that the applicants didn't argue in favour of invalidity of his case. The long and short of it, Commissioner, in this decision, and perhaps it is best explained that at paragraph 40 it follows, at the second sentence there, it follows:
PN226
Having regard to the concession appropriately made by the applicants...
PN227
that is that Mr Rodwell entered into an agreement that was offered and accepted a contract of employment for 12 months.
PN228
...that the university did not breach clause 8.14 of the agreement by late in 2001 advertising for a continuing position of lecturer Hissey in the faculty of education.
PN229
and then, significantly, Commissioner, the role and pre-existing works starting or organisation of work arrangements were that Dr Rodwell's contract of employment would terminate on 31 January 2002.
PN230
It is quite clear that Branson J is well aware of the implications of her decision as far as the effect it would have on the continuation of Dr Rodwell's appointment and she decided against making the orders sought for, as I've previously explained. We would be relying very much on that decision, Commissioner, for you to follow when it comes to considering the order that has been put forward by the - or the draft order that has been put forward by the union. Beg your pardon, Commissioner, if you could just bear with me for a brief moment please, I seem to have misplaced. Sorry, Commissioner, it appears - - -
PN231
THE COMMISSIONER: It is okay, Mr Williams.
PN232
MR WILLIAMS: - - - that I've got a document that has literally vanished. Would you mind just excusing me for a moment? With respect to some of the submissions that were made, or were that tendered in writing and elaborated upon by Ms Mullins, we indicated before Senior Deputy President Duncan at the hearing last time before Christmas that we may well have some jurisdictional issues with respect to - - -
PN233
THE COMMISSIONER: Was there a hearing before Senior President Duncan?
PN234
MR WILLIAMS: Yes, there was.
PN235
THE COMMISSIONER: It was my understanding, just from a quick look at the files, that the matters were withdrawn.
PN236
MR WILLIAMS: They were.
PN237
THE COMMISSIONER: They must have done it to a degree and haste - was done by handwritten note on NTEIU the letterhead paper.
PN238
MR WILLIAMS: Yes.
PN239
THE COMMISSIONER: But there had been a hearing, had there?
PN240
MR WILLIAMS: Yes.
PN241
THE COMMISSIONER: Right.
PN242
MR WILLIAMS: Ms Rangott could correct me if I'm wrong here but my understanding is that there was an application in the Federal Court on 18 December. There was a hearing before Senior Deputy President Duncan on 19 December which adjourned into conference, then there was a hearing in the Federal Court on 20 or 21 of December and further hearing in the Federal Court in the second week of January.
PN243
THE COMMISSIONER: The two matters before Senior Deputy President Duncan were withdrawn on 21 December - - -
PN244
MR WILLIAMS: That is right.
PN245
THE COMMISSIONER: - - - on the strength of a handwritten note on NTEIU letterhead paper from Ms Rangott?
PN246
MR WILLIAMS: Yes. That is my recollection as well, Commissioner. My understanding is - - -
PN247
THE COMMISSIONER: I note on the front of the file that the matters were at least listed on 20 December before the Senior Deputy President.
PN248
MR WILLIAMS: I did indicate at that hearing that once we had a better understanding of what it was exactly that the union were after we may well have some issues with the section 99 application and in light of some of the submissions that have been put - - -
PN249
THE COMMISSIONER: Will you challenge the Commission's jurisdictions? If so, you had better detail what that is.
PN250
MR WILLIAMS: I'm at a disadvantage here, Commissioner, with the time again. I'm at a disadvantage that I haven't had the opportunity to take proper instructions from senior personnel at the university. I did speak to the Director of Human Resources this morning. He indicated to me that he wished me to raise jurisdictional issues. He also indicated - - -
PN251
THE COMMISSIONER: Well, you have got to tell me what the jurisdictional objections are otherwise you leave them to my imagination and I don't think you should do that.
PN252
MR WILLIAMS: No, okay Commissioner, I will do that. Would you like me to do that now, Commissioner, or would you like me to continue?
PN253
THE COMMISSIONER: Well, you will have. I've already offered you an opportunity to confer with your colleagues or confer with the union. I think you have clearly indicated to me a preference for Commission assistance by way of conciliation - - -
PN254
MR WILLIAMS: That is right.
PN255
THE COMMISSIONER: - - - but the offer of adjournment and the opportunity to conciliate is still ahead of us.
PN256
MR WILLIAMS: Yes, certainly.
PN257
THE COMMISSIONER: So you can perhaps return issue of jurisdiction once you have had a chance to confer with your colleagues.
PN258
MR WILLIAMS: I suppose at this stage my instructions are, Commissioner, to seek leave to reserve the right to run this - to object to the applications on jurisdictional grounds and also to join in the two matters together as they come from different heads of power as Mr Tilbrook explained when he was making his appearance.
PN259
THE COMMISSIONER: Well, the matters are not joined. They are being dealt with concurrently.
PN260
MR WILLIAMS: Yes, okay.
PN261
THE COMMISSIONER: I wasn't asked to join them - - -
PN262
MR WILLIAMS: No, no.
PN263
THE COMMISSIONER: - - - at the outset. I still don't have an application for the matters to be joined so, so far as I'm concerned the matter is being dealt with concurrently on a common transcript.
PN264
MR WILLIAMS: I appreciate that, Commissioner, thank you, for clarifying that. As far as the exceptional matters go, my understanding and we did not have any forewarning that there might be an application pursuant to section 89A(7) but my understanding of 89A(7) is that the Commission must be satisfied of all the criteria, A through to E, part of that criteria is that there is no reasonable prospect of agreement being reached on the exceptional matter by conciliation or further conciliation by the Commission. Commissioner, we haven't had any conciliation on exceptional matters issues and, again, I would be suggesting that the Commission can't make such an exceptional matters order until we do have at least some sort of conference and you are satisfied that conciliation would not resolve this dispute.
PN265
I reiterate that I would like to come back to the jurisdictional argument if I have to following conference but effectively what we say, Commissioner, is that these matters were put to the Federal Court. These matters came before the Commission on 19 December at the same time that application was made to the Federal Court and a Federal Court hearing was scheduled at around about the same time, within a day or two, one way or the other.
PN266
We say that the union quite clearly had the option of which avenue it wished to pursue, whether it wished to pursue the application through the Commission prior to Christmas or through the Federal Court, knowing that the critical date was going to be 31 January. By virtue of withdrawing those applications on 21 December and pursuing the Federal Court action which resulted in the decision of Branson J on Tuesday of this week we say that the union have clearly attempted to have these matters determined and have orders made in the manner in which they sought and the Federal Court rejected those orders and now they are coming back to the Commission for a second time to essentially ask for something that the Federal Court was not prepared to do.
PN267
I might make some specific comments about the - that perhaps go to the merits of the arguments put forward by Ms Mullins. We challenge that the issues are exceptional. We haven't had any opportunity, or I haven't had any opportunity to take instructions on this particular issue and we haven't had any opportunity to formulate any informed submissions on this issue but I would say at the outset that we would be arguing that the issues aren't exceptional, that these issues relate to the employment and in particular the specific contract of employment to an individual employee and by virtue of that fact alone they wouldn't be considered to be exceptional matters but again I would reserve my right to come back and expand upon those submissions with respect to 89A(7) if required later.
PN268
Now, as far as the claims go that the university didn't employ him in accordance with the agreement, well that is what went to the Federal Court and that is what the decision from the Federal Court has found and as I reiterate that the Federal Court found that the university did breach two clauses of the agreement but by virtue of those breaches it didn't change the fundamental nature of the contract of Dr Rodwell's employment. As far as the outcome of the university's breach resulting in undue hardship to Dr Rodwell I take on board the comments that you made earlier, Commissioner, about the very fact that at the time that the offer was made he knew it was for 12 months and he knew that it would terminate on 31 January 2002 and that Dr Rodwell for whatever reason has not given evidence today and in the absence of him giving evidence with respect to any undue hardship it is alleged that he would suffer I would submit that the Commission can take a negative inference from that based on the Jones v Dunkel principle.
PN269
As far as at 2.4.68 of the union's submissions wherein the union claims that the only reason Dr Rodwell's appointment is proposed to cease on 31 January is as a result of the university's breaching the enterprise agreement, we say that is just factually incorrect because the reason that Dr Rodwell's employment is said to terminate on 31 January is because that was what was offered and agreed to in the first instance prior to the contract of employment being entered into and that is quite clear. I will come to it, Commissioner, when we come to the offer of that appointment.
PN270
At paragraph 10 there of the union's submissions about entitlements to retrenchment, well he would have only been entitled to those additional benefits if he was indeed a continuing employee and again the Federal Court have made a definitive decision on whether Dr Rodwell is a continuing employee or not and the Federal Court has determined that in fact was not. Therefore the only severance benefits in our submission that he would have been entitled to if he was entitled to any would have been those that apply for fixed-term contracts, not for continuing employees and that in light of the Federal Court decision it is quite clear that he would not be entitled to retrenchment benefits that may otherwise apply to continuing employees.
PN271
As far as the claim goes at paragraph 14 that an employer should not be rewarded for breaching an enterprise agreement, well we say quite clearly that the university was far from rewarded for breaching the enterprise agreement. The university imposed penalties and of course the university also is subject to much negative publicity. The university has learnt from the experience in the Federal Court and has taken steps to rectify these administrative oversights. So we deny that the university has been rewarded for breaching the agreement.
PN272
Now, if we look at paragraph 15 of the union's submission where the union talks about a conversion policy, and that is exactly what it is, Commissioner, my understanding and this is the first I know of this policy. So if I get a kick under the table you may excuse me but my understanding is that this policy was created as an interim measure if you like from when the VECCI award that was referred to was made and when the current enterprise agreement was certified.
PN273
So that once the VECCI award came down a number of institutions around Australia took pro-active steps about how they would deal with the implications of that award and I would respectfully suggest that this conversion policy is consistent with that approach. By the time the enterprise agreement came around this conversion policy as I understand it would no longer be applicable.
PN274
THE COMMISSIONER: Is it superseded by the VECCI award and/or the University of Wollongong Agreement that has been referred to?
PN275
MR WILLIAMS: Well, I would submit it is superseded by the University of Wollongong Agreement because now the University of Wollongong Agreement has incorporated all of those VECCI provisions after negotiation and I would further point out it is my understanding that Dr Rodwell's employment commenced after the current certified agreement was in fact certified. I believe it was certified, the agreement was certified in the middle of November 2001 and that it can't have been. 2000.
PN276
THE COMMISSIONER: 7 November 2000.
PN277
MR WILLIAMS: Yes. So his entire employment was dictated by the terms of the enterprise agreement. Now, the enterprise agreement might assist with this conversion process because at clause 25 of the agreement the agreement provides for circumstances such as those that Dr Rodwell found himself in. Now, in accordance with 25(1) Dr Rodwell's fixed-term position was up to 12 months and in accordance with this agreement it was in fact made without advertisement as I understand it. He didn't go through a competitive selection process. He did go through it?
PN278
THE COMMISSIONER: That is not my understanding, Mr Williams. I think he applied.
PN279
MR WILLIAMS: Yes.
PN280
THE COMMISSIONER: I will rely on you to get instructions. My understanding is that he applied but he was not chosen. Whether he was interviewed in the same context as all the other applicants I don't know.
PN281
MR WILLIAMS: I'm sorry, I'm talking about the first appointment, the initial appointment.
PN282
THE COMMISSIONER: The initial appointment?
PN283
MR WILLIAMS: I withdraw that. He did respond to an ad.
PN284
THE COMMISSIONER: That is in respect of his first period.
PN285
MR WILLIAMS: His first, well his only, yes.
PN286
THE COMMISSIONER: His only period of employment, yes. So was he chosen on a competitive selection basis at that time?
PN287
MR WILLIAMS: Could you just repeat that question for me, Commissioner?
PN288
THE COMMISSIONER: Did he go through a competitive selection process at that time?
PN289
MR WILLIAMS: Yes, I've been instructed that he did, Commissioner, but as I understand it what occurred during his contract of employment, and it has been found by the Federal Court of course that the university breached their agreement but at this stage I would say that the university didn't intend to breach the agreement. It was found to have breached the agreement, sure, but it didn't employ Dr Rodwell with the intention of breaching the agreement. At the time Dr Rodwell was employed at the university, had a genuine belief that he was employed under a fixed-term project as an interim measure to determine what the needs for the faculty work were going to be 12 months hence.
PN290
Prior to the expiration of the contract of the employment a new position was advertised, not the same position that Dr Rodwell was in or is in now, a new position was created and advertised in accordance with the needs of the school and that as the agreement provides under those circumstances Dr Rodwell was required to go through a competitive selection process which he did. In saying that I would take you to clause 25(3), Commissioner, wherein no person can be employed in the continuing position without going through a ..... selection process and - - -
PN291
THE COMMISSIONER: Well, that is what has happened to him just recently and he has not been successful.
PN292
MR WILLIAMS: That is right. That is all I will say specifically about the written submissions but I might take you to a couple of the documents that were tendered, Commissioner. As far as M2 goes, that is the correspondence to the vice-chancellor that was received at 11 o'clock this morning, again we see the nature of the entitlement that they are looking for and a clear recognition of the outcome of the Federal Court's decision. We would take issue with the claim that the Federal Court found that Dr Rodwell was illegally appointed.
PN293
We would submit that he was appointed in good faith and was found later on that the manner in which he was appointed was in breach of the EBA but it does not follow that that is an illegal appointment or an invalid appointment.
PN294
THE COMMISSIONER: Well, I think that is further reinforced by some of the references you took me to before in Branson Js decision, that there was no invalidity. She found no invalidity in the contract as a result of what had transpired.
PN295
MR WILLIAMS: We would rely on that, Commissioner. As far as going over the page to conversion to continuing appointment in the Commission's jurisdiction to deal with the application of the agreement including but not limited to subclause 19(6) of the certified agreement, again we say this is what was before Branson J as she rejected this. We say with respect to this document that the union is asking the Commission to provide for an entitlement that the Federal Court has already found that Dr Rodwell does not have.
PN296
I take you now, Commissioner, to exhibit M6 which is the original offer of appointment and I'm stating the obvious here, Commissioner, but just for the record I would point out the first two sentences in that letter of offer and that is that the offer is quite clearly for a fixed-term appointment in the first sentence and that the term would be 12 months from entry of duty and as we now know and as is contemplated by that offer due to commence on 1 February 2000. We say, Commissioner, this is clear and unambiguous. It is quite clear that when Dr Rodwell entered into this contract of employment that he was aware that it was going to be for 12 months.
PN297
It goes back to the claims about suffering hardship that were made earlier along the same lines. Regardless of what has been found as far as the management practices or the administrative practices of the university goes the Federal Court, Branson J, found that these can't alter the express terms of the contract and in our submission they are clear and unambiguous express terms that were offered and duly accepted. Again if I can take you to M7 which is the memo to Dr Rodwell from Professor Harper dated August 14, and this follows as I understand it an initial concern raised about the nature of Dr Rodwell's appointment and this has obviously, Commissioner, got to be taken with the weight of which you want to accord it given that neither of these people can provide evidence in this but Professor Harper claims in the second paragraph there that both the university and Dr Rodwell have explicitly acknowledged that his term of employment is for 12 months.
PN298
In the absence of hearing anything from the contrary from Dr Rodwell we would submit that it is apparent that he would have been aware and accepted and acknowledged the express terms of his contract of employment. As far as - I might take you to exhibit M8, Commissioner, which is the letter to Mr Steward dated 20 September 2001 and at the third paragraph there the letter explains that the NTEU believes that the university has acted in breach of the provisions of clause 19.6 of the University of Wollongong Academic Staff Enterprise Agreement and that was the claim that they ultimately pursued.
PN299
They did claim that there was a breach and they took that to the appropriate jurisdiction and it was found that there was a breach and again at the risk of harping it was found that that breach can't alter the fundamental or express terms of the contract. Now, I understand the significance of the date, Commissioner, and I understand the union's anxiety about seeking an order to take effect from today but we submit that you can't make such an order on the basis of, well in the first instance the findings of Branson J and again I reiterate that we do have some concerns with the union's applications that if necessary I would return to perhaps after we have sought to see if we can resolve the matter into conference, Commissioner. May it please the Commission.
PN300
THE COMMISSIONER: Thank you, Mr Williams. Mr Tilbrook, is there anything further you wish to say?
PN301
MR TILBROOK: Commissioner, as I indicated to you at the outset and perhaps I might put it slightly differently this time, Mr Williams as his appearance indicates is representing the university's interests and my role is to represent the broader interests of an organisation of employers and to do that, particularly in relation to the manner of the exercise of the Commission's jurisdiction in relation to matters pertaining to first of all the concurrent exercise of power and secondly to matters pertaining to the underlying safety net award, now my friend Mr Williams indicated that he will address you on the first of those if necessary and I'm familiar of course with what he will say and at an appropriate point if it is necessary for him to say it if course I will adopt and support that.
PN302
On the issue of the safety net awards the primary relevant consideration that we have is in whether the Commission exercises its powers under section 99 or rather whether it exercises its powers under section 89A(7) and 120A. Given the nature of the exercise of the powers under section 89A(7) and 120 if the Commission was of a mind to proceed down that road we would probably play only a minor role. We would probably only seek to address the Commission on a couple of points, one of which would be whether a matter was exceptional and secondly the Commission's obligation to take into account the public interest and whether indeed these proceedings excite the public interest.
PN303
However if the Commission was minded to proceed under its broader jurisdiction under section 99 we would draw the Commission's attention to the union's submissions today which make it clear that one of the underlying safety net awards, that is the Higher Education Contract of Employment Award, is a relevant consideration and that award applies -because that award applies to Dr Rodwell and also because the terms of that award are repeated, identically, in the certified agreement which was considered by Branson J. Now, if I might briefly refer the Commission to paragraph 2.3.5 - - -
PN304
THE COMMISSIONER: Of the VECCI award?
PN305
MR TILBROOK: No, sorry, of the union's submissions. It is clear, your Honour, that they acknowledge that is the case that this is one of the relevant awards. They go on to say, Commissioner, the award does not provide what to do in a situation where the university employs someone in breach of the award and coincidentally for the certified agreement but we would want to be heard on the relevance of breach of certified agreement as well. Then they go on at 2.3.6 to seek the creation of a new right taking into account the provision of, in particular and then again, in 2.7, they indicate the nature of the new right is to be found in the decision of the Commission in relation to casual employment over Metal Industry Award.
PN306
Now, Commissioner, if that is the type of right that is to be brought into existence under section 99 of the Act, even if it is only to be bought into existence in relation to the University of Wollongong, we would say that the association is entitled to be heard and, indeed, to present evidence in opposition to such a new right being brought into existence by the Commission. We would also say, Commissioner, clearly we have not had an opportunity to consider what might be required in the nature of submissions and evidence to convince the Commission to refrain from creating that right.
PN307
We would say that right should not be bought into existence without the association being fully heard on it, given that the likely impact of it on an award of industry wide application could, and in our submission, would be quite considerable. That, Commissioner, is essentially the interest I am representing today. Now, having said that, of course, it may not be necessary for me to pursue those interests if the suggestions that Mr Williams has made bears some fruit this afternoon. If the Commission pleases.
PN308
THE COMMISSIONER: So you do not oppose the proposition that the parties either be given the opportunity to confer separately or with the Commission in conciliation proceedings?
PN309
MR TILBROOK: I am sorry?
PN310
THE COMMISSIONER: You do not object to that process?
PN311
MR TILBROOK: No, no, indeed I support it, Commissioner. There are several reasons why I support it. The first reason, of course, is the Commission's obligations under section 100 of the Act and the second is, of course, if the Commission were to embark on and exercise its jurisdiction under section 89A and section 120A, the conciliation process is a condition precedent for that and the role of a registered organisation is to assist the Commission in the exercise of its jurisdiction. If the Commission pleases.
PN312
THE COMMISSIONER: Ms Mullins, it seems to me there is a few issues there raised by both Mr Williams and at least one issue raised by Mr Tilbrook that you need to respond to on the public record, if you so chose at this time.
PN313
MS MULLINS: Commissioner, on the first question, which is the proposal of the parties to seek the assistance of the Commission in conciliation, there is the practical issue of Dr Rodwell's employment ceasing at the end of today, presumably at midnight and the union is prepared to stay as long the Commission is open to be available for this matter. It raises, potentially, if the matter were to not be resolved by the end of today about the issue of retrospectivity and subject to undertaking or commitments being made the university will not use this delay as justifying or arguing the Commission does not have power as a result of the matter proceeding after Dr Rodwell has ceased employment, without those undertakings we would be seeking to pursue and order today.
PN314
THE COMMISSIONER: Well, quite frankly, Ms Mullins, I do not see the Commission exercising any power to issue orders today. There are a number of issues that need to be dealt with, some rights are being reserved. I will certainly available to assist the parties with conciliation but I do not see myself being in a position to issue orders without giving proper consideration to everything that has been said today, including a more careful examination of the very extensive documents that you have provided me with given that I have come in to this matter as the fresh player on the field. You all may have an intimate knowledge of the background of this matter. I am hearing it for the first time.
PN315
I do not operate on the basis of making knee-jerk responses and certainly not orders of the Commission in such circumstances and I would need to give further consideration to all of the matters that have been dealt with today. I think the prospect of an order in any form, if it is to be granted, is simply not going to happen today insofar as the condition precedent that you seek that the university will not seek to exercise a jurisdictional objection based on the fact Dr Rodwell is no longer an employee of the university after close of business today or the conclusion of his contract today. That is probably something that you can confer with the university about when we do finally adjourn into private conference.
PN316
MS MULLINS: Commissioner, I appreciate - - -
PN317
THE COMMISSIONER: I may have something to say about that as well but I chose not to say it on public record at this time.
PN318
MS MULLINS: On the question of whether or not the Commission would be of a mind to, at the least, address an interim order, there have been some cases where the Commission made orders in order to maintain a status quo in order to provide the necessary time frame for consideration of the documents and - - -
PN319
THE COMMISSIONER: With respect, the status quo that you might seek, the simple fact is the contract of employment concludes today. I do not think anyone can get away from that fact. It is not - that contract has not been found to be an invalid contract. The contract finishes today. Dr Rodwell is not doubt sort of packing his pencils right now.
PN320
MS MULLINS: I appreciate that is one aspect of the status quo. The second aspect of the status quo is as we are the moment before the Commission, we have a matter which is, within the period of him being an employee and it is that that we would be seeking to preserve the status quo on, namely that, for the purposes of the Commission determining this matter, that it be considered on the basis as if he were still an employee.
PN321
There are separate questions, obviously, about payment or not but we would be concerned if, acting as promptly as we could on the matter, following the Federal Court, that if he was put at a disadvantage - maybe, at this point, there is just one other thing that I wanted to say before - we would certainly be open to some time frame of conciliation and maybe we could flesh out in that environment some of the options.
PN322
The one final thing I wanted to say is that a lot of emphasis has been placed on the decision in the Federal Court as meaning that we are having two bites of the cherry. It is exactly because of the Federal Court decision that we are here today. The Federal Court has made a decision, under their jurisdiction, there jurisdiction is the interpretation of the agreement. They have made an interpretation. It is exactly because of that interpretation that we are seeking a new right. That is where it is a different jurisdiction, it is a different role and wholly appropriate for the Commission.
PN323
THE COMMISSIONER: You are seeking a new right, effectively in the terms of the declaration that you sought from the Federal Court in respect of the nature of the contract that was applicable to Dr Rodwell, that his contract somehow convert from the factual status of being a fixed term contract to one of it being continuing employment contract and it was that declaration that you did not achieve in the Federal Court proceedings.
PN324
MS MULLINS: Because the Court determined that under the existing enterprise agreement that right did not exist and that is - clearly determined that matter. What we are seeking is using the Commission dispute settling or exceptional matters power in this particular circumstance and our situation, is it appropriate, and we say it is. Is it appropriate for the Commission to create a new right? For example, the university relies on the fact Dr Rodwell accepted a letter of offer that clearly said 12 months. That is not in dispute.
PN325
The equivalent would be, for example, that somebody accepted a letter of offer that said you are to have paid parental leave of 2 weeks. That was up-front. There would be nothing to stop the parties, as we have done today, to later come back before the Commission, under section 99 or even an exceptional matters provision, saying to the Commission we think this university should have paid parental leave of 10 weeks and using its discretion it could determine it, it didn't matter then that that individual contract, or even an enterprise agreement provided for less, you would have a - particularly the contract of employment - you would have an obligation to meet the higher provision of that award.
PN326
So we would say that equivalent to that, that it is exactly because the existing provisions do not give that right that we are seeking a new right and it is not an average situation. We say this is very exceptional. It is a situation where the university made a commitment to comply with the enterprise agreement and it is only because of their breach that they have had an employee employed on fix term, but we would certainly be open, Commissioner, to a discussion about what the time frames are for the Commission this evening and what sort of time you would be open to for the parties to explore conciliation.
PN327
THE COMMISSIONER: What do you say to Mr Tilbrook's submission that if the Commission was to consider the establishing of a new right in part settlement of the dispute to which Mr Tilbrook's organisation is a respondent, then, the AHEIA is entitled to be heard and to bring a case in opposition to the creation of that new right?
PN328
MS MULLINS: Our submission would be that the immediate time frame and dilemma, as Dr Rodwell's employment ceasing and the need for a speedy approach to that situation, that there are very particular circumstances in this case which set it apart from something that would have the need for a broad industry-wide input. I would hope that you do not have a string of employers coming before this Commission to say: we reserve the right that if we breach an enterprise agreement, we reserve the right to have a say about limiting what the Commission does in response to that, because they would have to come to say that they intend to do that on a significant basis. We hope that - - -
PN329
THE COMMISSIONER: But how many more Dr Rodwell's might you have in the cupboard waiting to bring further cases in respect of individual employees seeking a new right on behalf of an individual employee?
PN330
MS MULLINS: And each of those disputes, just like the day-to-day business of the Commission, would be determined as the Commission saw just and appropriate. I mean, this is a very particular situation following a Federal Court case which is very rare and at one particular university, or one particular employee, so its ability to spread would only occur if the Commission in a later case were to determine that the circumstances of that case warranted a similar order.
PN331
THE COMMISSIONER: Yes, all right, thank you, Ms Mullins. Given the time, I'm prepared to adjourn the proceedings now into private conference for an indeterminate period. Perhaps we might discuss that off the record, rather than on the record, and unless there is any objection to that I will adjourn the proceedings now into private conference.
PN332
MS MULLINS: Thank you.
PN333
MR WILLIAMS: No objection.
OFF THE RECORD
RESUMED [6.19pm]
PN334
THE COMMISSIONER: I understand that the parties have a statement they wish to place on the public record. Yes, Ms Mullins.
PN335
MS MULLINS: Yes, Commissioner, and open to the parties if I could - - -
PN336
THE COMMISSIONER: You want to go back on the public record?
PN337
MS MULLINS: I beg your pardon, sorry. Yes, please.
PN338
THE COMMISSIONER: Right.
PN339
MS MULLINS: The parties have taken the opportunity during the break to discuss the various matters that were raised in conciliation and we are aware of some of the proposals that - the comments made about the matter, but also some of the proposals related to the options of casual work, redeployment and the possibility of a negotiated settlement, and the parties are seeking an adjournment of this matter to enable further discussions between the parties. We are also proposing that the parties still be at liberty to apply for arbitration on this matter. I understand that ends the statement of the parties.
PN340
THE COMMISSIONER: Thank you, Ms Mullins. Mr Williams.
PN341
MR WILLIAMS: I am sorry, Commissioner, I have been instructed just to add that the university undertake these discussions in good faith, but cannot give commitment at the moment, given that it is a decision for the faculty, in effect, but concur with the comments made.
PN342
THE COMMISSIONER: Well, I don't know what those words mean in the context of your world of higher education, Mr Williams. I hope it is not going to be buried deeply in some sort of Committee system that will forever review and review - - -
PN343
MR WILLIAMS: No, no.
PN344
THE COMMISSIONER: - - - and never deal with the issue and not make a decision.
PN345
MR WILLIAMS: I would hope not too, Commissioner, that is not what I'm alluding to. I'm alluding to the fact that the representatives from the union here cannot make decisions about future employment matters without getting authorisation from those directly concerned. That is all I wish to add. I do wish to add that the university undertakes to engage in these discussions in good faith and on behalf of the parties thank the Commission for its assistance this afternoon. If the Commission pleases.
PN346
THE COMMISSIONER: All right, thank you, Mr Williams. Mr Tilbrook, you were appearing in this matter when it was on the public record. Is there anything you wish to place on the public record at this time?
PN347
MR TILBROOK: Given the role that I indicated to the Commission that was of interest to the association, Commissioner, I don't think it would be appropriate for me to make any observation at all as to what has passed between the university and the union concerning their particular relationship. If the Commission pleases.
PN348
THE COMMISSIONER: All right. Thank you, Mr Tilbrook. Well, let me express some pleasure that the parties at least achieved an outcome today, albeit, that the parties seek some additional time to confer further on some of the matters that were discussed during the conciliation phase of today's proceedings. I urge the parties to certainly confer further and in good faith with a view to finding an amicable and sensible settlement.
PN349
However, in the event that that is not forthcoming from any further discussions that you have, the Commission is available to assist with further conciliation and/or arbitration of issues as they would then need to be defined at any point in time. It would be my intention to stand the matter over generally with liberty to either side to apply for the matter to be bought back on again for public hearing. With those comments I will conclude today's proceedings and adjourn the matter generally.
ADJOURNED ACCORDINGLY [6.23pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #M1 NTEIU SUBMISSIONS PN40
EXHIBIT #M2 DOCUMENT ON NTEU LETTERHEAD PAPER DATED 31 JANUARY ADDRESSED TO VICE CHANCELLOR UNIVERSITY OF WOLLONGONG PN56
EXHIBIT #M3 DISPUTE FINDING BY COMMISSIONER SMITH DATED 27/04/1999. PN62
EXHIBIT #M4 LOG ATTACHED TO COVERING LETTER DATED 03/03/1999 ENTITLED TERMS AND CONDITIONS OF EMPLOYMENT AND ADDRESSED TO EMPLOYER
UNIVERSITY OF TECHNOLOGY SYDNEY PN68
EXHIBIT #M5 PACKAGE OF DOCUMENTS EXTRACTS FROM THE METAL ENGINEERING AND ASSOCIATED INDUSTRIES AWARD (1988) PART I PN98
EXHIBIT #M6 SINGLE PAGE DOCUMENT LETTERHEAD OF UNIVERSITY OF WOLLONGONG ADDRESSED TO DR RODWELL dated 19/12/2000 PN107
EXHIBIT #M7 SINGLE PAGE COPY OF UNIVERSITY OF WOLLONGONG MEMORANDUM TO DR RODWELL FROM PROFESSOR BARRY HARPER, DEAN, DATED 14/08/2001 PN111
EXHIBIT #M8 COPY OF LETTER DATED 20/09/2001 TO MR STEWART, ASSISTANT DIRECTOR OF FINANCE AND PERSONNEL OF THE UNIVERSITY OF WOLLONGONG
ON NTEU LETTERHEAD PAPER PN112
EXHIBIT #M9 DISPUTE NOTIFICATION DATED 23/10/2001 PN115
EXHIBIT #M10 LETTER FROM UNIVERSITY TO UNION DATED 23/10/2001 PN118
EXHIBIT #M11 MEMORANDUM TO DR RODWELL DATED 08/11/2001 PN126
EXHIBIT #M12 1998 CONVERSION POLICY DOCUMENT PN181
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