C2002/3755, Transcript of Proceedings [2002] AIRCTrans 5230 (30 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/3755

UNIVERSITY OF NEW SOUTH WALES (GENERAL
STAFF) ENTERPRISE AGREEMENT 2000

Application under section 170LW of the Act
by the Community and Public Sector Union and
University of New South Wales re University
of New South Wales (General Staff) Enterprise
Agreement 2000

SYDNEY

9.35 AM, WEDNESDAY, 11 DECEMBER 2002

Continued from 21.10.02

Hearing continuing

PN17

THE COMMISSIONER: Could I have the appearances please.

PN18

MR A. HOLLAND: I appear for the Community and Public Sector Union.

PN19

MS J. EDE: I appear for the University of New South Wales with MR M.MILLER, MR D.WARD the manager industrial relations, PROF. T.LOI the director of computing for the school of civil and environmental engineering and PROF. I.GILBERT who is the head of school for the school of civil and environmental engineering.

PN20

THE COMMISSIONER: Thank you.

PN21

MR HOLLAND: Thank you, Commissioner. I start off by, as I indicated in correspondence to the Commission, conceding and at the same time apologising for the union not meeting the agreed time frame for the filing and servicing of the evidence. As I had indicated in my correspondence there had been some unavoidable delays that had led to this. The union's submission today is simply that we would be seeking an amended timetable for the filing and serving of the evidence. I do wish to explain a bit further the background for the cause of the delay. Partly the delay we believe was caused by unfortunately agreeing to a timetable that was in hindsight unrealistic. The union agreed to a timetable to accommodate concerns of the university regarding the availability of at least one of their witnesses who it is our understanding takes leave from the end of this week.

PN22

The university indicated in their correspondence to the Commission on 2 December that one of their four witnesses had already taken leave at that time. The union was unaware of that and it's our submission that even if this timetable had been met that witness would not have been available anyway. It is our submission that the application for the university to have this matter dismissed should not be granted. There is no pattern of disregard in meeting this timetable from the union. As indicated again in the union's letter to the Commission of 2 December, the union had raised this matter with the university on several occasions, raising concerns or at least discussing potential concerns in meeting the timetable.

PN23

It is also our submission that in having this timetable delayed there is no prejudice to the university. The university hasn't put to the union nor has it established any such prejudice in the timetable not being met. The union does wish this matter to be resolved as quickly as possible but as indicated in an email to the university prior to the deadline for the first exchange of evidence, whilst we do wish to move as quickly as possible to resolve it, we don't feel that we are in a position to disadvantage or prejudice our case and our members involved simply to meet the deadline that had been agreed upon.

PN24

Commissioner, we would be seeking, as I indicated at the beginning, an amended timetable to have the CPSU provide the written submissions and witness statements in the first week of January and that we have a turnover then of two weeks for the university to provide their written submissions and witness statements, and then a further two weeks for the CPSU to provide further witness statements in reply. There is no further submission, Commissioner.

PN25

THE COMMISSIONER: Why were you unable to meet the deadline?

PN26

MR HOLLAND: Commissioner, in regards to two of our witnesses, given the time of year, as I indicated in my letter, we see it as a logistical problem. We were simply unable to get two of our witnesses. They were not available at this time of year to bring them in to provide their witness statements.

PN27

THE COMMISSIONER: The union's not running this case for itself. In other words, it's not running a general case and these people might have been seen as the best available witnesses to enhance your case. This is their case. If it wasn't for these two or these three the union wouldn't be worrying about it. I'm not quite really sure why - what's so special about this time of the year exactly?

PN28

MR HOLLAND: Commissioner, we have four witnesses. Two of the witnesses that the substance of this case is about, they have been able to provide witness statements. We have two further witnesses who are not necessarily directly involved in the matter. It is my understanding one of those witnesses who is an academic was unavailable this time of year. I'm not sure of the exact circumstances of his unavailability. Another witness is a senior member of staff who had indicated that at this time of year he had fundamentally work load issues that didn't allow him to accommodate the time frame we had set for him.

PN29

THE COMMISSIONER: I would have thought that at least the two witnesses that are the subject matter of the grievance, that witness statement should have been circulated.

PN30

MR HOLLAND: Commissioner, we do concede yes, that in hindsight, yes, we should have provided those witness statements.

PN31

THE COMMISSIONER: Thank you, Mr Holland. Yes, Ms Ede?

PN32

MS EDE: Thank you. Commissioner, today the university has applied to you to be heard on its submissions as to why this matter should be dismissed. In that regard I would like to take the Commission today to two matters. Firstly, to provide a very brief history of the restructure and the dispute and the CPSUs change of direction in argument in relation to issues in dispute and the delays that has caused in relation to the resolution of the dispute, culminating in the CPSUs recent breach of the consent direction in this matter which has resulted in the arbitration being vacated today. Secondly, the prejudice and detriment the university is suffering in having this matter again delayed by the CPSU and the reasons why this matter should be dismissed and the power of the Commission to exercise its discretion to do so and the relevant case law.

PN33

Commissioner, I will be very brief about the history of the restructure and to aid my brevity I would just like to hand up a chronology of the restructure process carried out by the university and the CPSUs involvement in this. As you are well aware, the school of civil and environmental engineering has undertaken a workplace change process in relation to its computer support group in accordance with clause 9 of the UNSW General Staff Enterprise Agreement 2000.

PN34

The need to restructure the computer support group was discussed with the employees with the CPSU by way of a discussion paper in early March this year, some nine months ago. As a result of the review of the computer support group three positions were identified as necessary, one position as web IT co-ordinator, one position of computer support officer who had primary duties in Linex and one position of computer support officer who had primary duties in Windows. Of the three existing employees within the computer support group none of the employees expressed an interest in the web IT co-ordinator position. I can indicate to the Commission that position has now been filled.

PN35

All three employees did express an interest in the computer support officer positions and after an interview process with a merit based selection criteria Robert Hegedus was selected for the computer support officer Linex position and Jong Peng was selected for the CSO Windows position. The third employee, Vir Sardana, was not selected for a position for which he expressed interest and he was informed of that decision by Profession Ian Gilbert, the head of school, on 24 July 2002.

PN36

Over a nine month period, Commissioner, there have been numerous meetings with the employees and the CPSU about the proposed restructure and we say that the university has complied with every step of the managing change process in the enterprise agreement. A cursory glance at the chronology I have handed up will attest to the fact that the university has consulted extensively with the incumbents and the union on the restructure. Those facts have never been in dispute.

PN37

THE COMMISSIONER: Ms Ede, I will mark that document you just gave me as exhibit UNSW5.

EXHIBIT #UNSW5 CHRONOLOGY OF RESTRUCTURE PROCESS

PN38

MS EDE: Thank you, Commissioner. However, the university has to its detriment been very patient and held off implementing the restructure while further discussions and further meetings were occurring and in circumstances where it was clearly understood by all parties that the matter should be dealt with expeditiously, So after much consultation and indeed two conciliation conferences before you, Commissioner, on 8 November, the CPSU requested the matter to be arbitrated. Now, the reason for requesting the arbitration was, and I quote:

PN39

The matter of the application of clause 9.4.5 be determined by arbitration.

PN40

From that one sentence the University did not have much to go on in terms of defining the limits of the alleged dispute so on 11 November the University wrote to you in relation to that request to have the matter arbitrated by the CPSU and requested that the Commission list it at the earliest possible date, so all parties were on notice that that was the intention. The University notified the Commission in that letter the reasons why it wanted the arbitration to be heard as soon as possible and those reasons included firstly the need for the school to finalise the re-structure to allow its strategic direction for the computer support group to get under way and this is an important issue for the school in terms of student enrolments for 2003.

PN41

Secondly, to ease the financial pressures of having an extra employee, now that the web IT co-ordinator position had been filled the school was carrying the fourth employee Vir Sardana who was found not appointable to a position and an additional cost to the University. Thirdly, to resolve the uncertainty and anxiety that would be suffered by the three current computer support officer employees affected by the restructure and fourthly, the fact that one of the University's key witnesses would be overseas from 15 December this year until the end of the year.

PN42

These reasons still exist for the University and the parties did agree on a timetable for the filing of evidence in relation to the matter. On 15 November I actually spoke to Andrew Holland and advised him that I thought it was a tight timetable especially for the University who had a lot less time, indeed only a week, when the CPSU had two weeks, to comply with filing and serving of statements and I indicated to him the importance of sticking to the timetable in light of the fact that one of our witnesses would depart Australia on 15 December.

PN43

I asked Mr Holland whether he thought he would be able to comply and he advised me that he had discussions with David Ward, the Manager, Industrial Relations in relation to an extension for the CPSU to file and serve their statements on Monday, 25 November rather than Friday 22 November and he would be able to comply with those revised agreed dates. The CPSU agreed to this timetable and indeed wrote to the Commission to confirm that timetable by letter of 15 November.

PN44

So the CPSU informed the University by e-mail on 25 November that it was unable to comply, no reasons were provided, no advice was given about how much time was required for them to comply with the directions. David Ward from the University responded to the CPSU's e-mail on the same day stating that the University wanted the matter heard as quickly as possible and did not wish to have the hearing date changed.

PN45

The CPSU, although it indicated in its e-mail it would, did not notify the Commission or the University in relation to its intention to seek a variation of the hearing date. David Ward also subsequently had a discussion with Andrew Holland about when the University could expect to have the CPSU's evidence in the matter. David Ward was told by Mr Holland that they were having difficulties with at least one witness statement. David Ward suggested that Mr Holland file and serve his other statements and he was told this was not possible.

PN46

This is the CPSU's application. It asks for it to be heard - it asks for it to be listed for arbitration on 8 November, it has done nothing in relation to providing witness statements or submissions so the University can at least understand the CPSU's final argument and prepare its evidence accordingly. The CPSU has breached the Commission's directions in this matter and its delay in having the matter arbitrated is resulting in prejudices that should not be visited upon the University.

PN47

So on 2 December the University found itself in the position where the CPSU had on several occasions changed its mind about what the basis of the dispute was, a week before the hearing had received no evidence from the CPSU about what they were going to argue this time and the University decided that it did not want to be exposed by the CPSU's lack of preparation for this matter and changing idea about what the dispute is about and I can, Commissioner, if you would like me to go into some detail about the moveable feast that has become this dispute.

PN48

However, essentially I can indicate that the position of the CPSU has varied from initially submitting that Vir Sardana should be entitled to claim the web IT co-ordinator position because his current job was substantially similar to the web IT co-ordinator position and that Robert Hegedus and Jong Peng should claim the two CSO positions because their current jobs were substantially similar to the two new CSO positions to submitting along the lines something completely opposite, that Robert Hegedus's current position as alleged IT Manager was substantially different from any of the positions in the re-structured computer support group and that now Vir Sardana's job was substantially similar to one of the CSO positions and that he should be able to claim one of the CSO positions.

PN49

There have also been other issues added along the way in the last five or six months this matter has been in dispute including concerns over workloads and inadequate staffing levels and this changing direction of argument has caused delay after delay as the University has needed to enter into further consultations, meetings, correspondence with the CPSU every time the dispute has changed course.

PN50

We say at the outset the University has always maintained its position that the matter should be heard expeditiously but on each occasion the CPSU moves the goal posts and the University is further delayed and required to respond to the new version of the dispute.

PN51

Now to the submissions on prejudice or detriment suffered by the University. Our submissions are as follows, the University is currently in quite an absurd position where, after implementing a re-structure where three employees were involved, it now has four employees and indeed it only needs and can only afford three employees. The extra employee, Vir Sardana, has been through a merit-based selection process for a position in the new computer support group and he was not selected. The school cannot financially support this current state of affairs.

PN52

In addition the school must commence preparations for the implementation of vital computing related developments. The school is faced with the situation, for example, of having purchased over $100,000 worth of software and hardware and needs to train now the two employees selected for the two computing support officer's positions to be able to properly install and maintain this software and equipment in the school and this training needs to commence now. The course times are limited and places are restricted. The timing reached to complete some of these courses is becoming increasingly limited before the start of session 1 in March 2003.

PN53

Additionally, Commissioner, training is costly. The University simply does not want to be in the position where it invests time and money in investing in training for one of the selected employees for the CSO position, whereas there is a chance the Commission may arbitrate in favour of Vir Sardana obtaining one of those positions. For example, one of the necessary courses for the CSO Linex position for which Robert Hegedus has been selected by the University, is a four module network training course, which I can indicate to the Commission is in the order of $4000.

PN54

The first half of the first module is run in January next year, with the second half run in February. Now, while the school would like to send Robert Hegedus to this course, it is placed in the position where there is the persistent issue of having this dispute unresolved and the potential the Commission may arbitrate in favour of selecting Vir Sardana for that position, thereby wasting time and money if the University invests in training for Robert Hegedus.

PN55

Further, Commissioner, significant retraining needs to be undertaken by both employees for CSO positions and such retraining cannot be properly planned until the University is able to identify the skills of the particular employee who will be placed in that position. This is impossible for the University to achieve until such time as the identity of the employee to fill the CSO position is finally settled.

PN56

One delay causes another, Commissioner, and the University is hindered in organising much needed change and development in the new computer support group. As a working example, Commissioner, I can tell you that the school has recently purchased Windows 2000 software. It currently runs Windows NT4, and the Windows 2000 is essentially an upgraded software program. It has also purchased 28 PCs. That software needs to be installed on the computers now before the session 1 commences in March 2003. The CSO Windows positions needs to implement all this, and that person needs training in that respect.

PN57

The other detriment and prejudice to the University, involves the students of the school, who have provided very critical comments of the school's computing services particularly in relation to delays and unreliability, even to the point where comments have been made that it's quite simply quicker and easier to go and use the library's computer services rather than the ones at the school. This can have significant funding implications for the school due to the poor publicity given by the school's own students, leading to the loss of new potential students. There is also the very real potential that the school would be allocated less funds, due to poor course experience questionnaire results.

PN58

The school submits that it is currently in a lose/lose situation by not having this matter resolved today. I should note, Commissioner, I have Professor Tin Loi here with me today - he is the Director of Computing at the school and he is available to provide oral evidence if the CPSU wishes to dispute the submissions I have just made about detriment the University is suffering by failing to have this matter arbitrated today.

PN59

Finally, Commissioner, I would just like to point out that the Commission does have broad discretionary powers to dismiss matters. Indeed section 111 of the Workplace Relations Act gives very general and broad powers to the Commission in relation to industrial disputes and indeed any other proceedings by virtue of section 111(2). Can I refer in particular to section 111(1)(g) which provides that:

PN60

The Commission can dismiss a matter or part of a matter or refrain from hearing or from determining the industrial ...(reads)... or another industrial dispute.

PN61

Commissioner, we submit that you should exercise your power under section 111 today to dismiss this matter. The University submits that given the facts we have just outlined, the CPSU is engaging in conduct that is hindering the settlement of this dispute. It has breached the directions given to it in relation to the hearing of this matter in full knowledge of the University's need to have this matter determined as early as possible.

PN62

The CPSU agreed to the timetable. It even wrote to the Commission on 15 November setting out a revised timetable to which it agreed to comply. It has not provided sufficient or adequate reasons as to why the timetable was not met. Despite the time that has already passed, which is over a month since 8 November, when it wanted the matter listed for arbitration, they still have failed to provide the University with any evidence whatsoever. They have had ample time to prepare evidence.

PN63

We submit that they CPSU has not shown any regard for the Commission's directions in this matter. It didn't even notify the Commission of its failure to meet the deadline for the filing of its evidence, or even write to the Commission to seek an extension. It did nothing. It was the University on 2 December that notified the Commission of the problems caused by the CPSU's delay.

PN64

Can I also refer you, Commissioner, to section 111(1)(t) of the Act which provides the Commission with the broad power to:

PN65

Generally give all such directions and do all such things as are necessary or expedient for the speedy and just hearing and determination of the industrial dispute.

PN66

We note the word speedy and just hearing. The CPSU has not been speedy. The CPSU has not been just to the University by failing to provide any evidence on its own application.

PN67

Also pursuant to clause 98 of the Act, Commissioner, this provides that:

PN68

The Commission shall perform its functions as quickly as possible.

PN69

May I also refer the Commission to section 110(3) which provides that:

PN70

The Commission may determine the periods that are reasonably necessary for the fair and adequate presentation of cases and ...(reads)... within the respective periods.

PN71

Further, the objects of the Workplace Relations Act under section 3 and I refer specifically to subsection 8, also provide:

PN72

The Commission should be enabled to prevent and settle industrial disputes as far as possible by conciliation and where ...(reads)... by arbitration.

PN73

Finally, Commissioner, there is case law which sets precedent for the Commission to strike out matters for want of prosecution or failure to comply with the directions of the Commission, using the Commission's broad powers under section 111(1).

PN74

May I refer the Commission to the decision of Senior Deputy President Watson on 2 December 1999, and the case is called Corcoran v Mitcham Dental Clinic, print number S1442. I hand up that decision. Commissioner, in that decision - - -

PN75

THE COMMISSIONER: Just hold on a second, Ms Ede. Yes?

PN76

MS EDE: At the top of page 3 of that decision, Commissioner, you will see that Senior Deputy President Watson emphasised that the directions are not lightly given and should be complied with and indeed should be complied with unless there is an extension of the period of compliance granted by the Commission. In this case today, the CPSU have not complied with the directions. It did not notify the Commission of the breach of directions, and it did not seek an extension of time from the Commission.

PN77

May I also refer to the decision of Commissioner Gay on 14 February 2000 in the case of Jaska v North East Trucking Proprietary Limited, print number S3186, and if I could hand up a copy of that decision. At the bottom of page 7 of that decision, Commissioner, Commissioner Gay said:

PN78

It is important for Commission directions to be followed. They are intended to ensure the efficient and timely conduct ...(reads)... directions to be given effect.

PN79

And he says that at the top of page 8. In that case, Commissioner Gay also referred to section 110(2)(c) of the Act which provides:

PN80

The Commission shall act according to equity, good conscience and the substantial merits of the case ...(reads)... to consider the employees circumstance.

PN81

I refer to the bottom of page 9 in that respect.

PN82

THE COMMISSIONER: Sorry?

PN83

MS EDE: Bottom of page 9 paragraph 51.

PN84

THE COMMISSIONER: Yes, I have got it. Yes?

PN85

MS EDE: The final case is the decision of Commission Whelan on 12 April 2000, a case called Re Darryl Porter, print number S4915. I seek to hand up a copy of that decision. At the top of page 7 of that decision, if I can just refer you to that, this is quite important we think:

PN86

The obligation on the Commission is not to ensure that a party takes the opportunity to present it to advance their case but to ensure that they are given a fair opportunity to do so.

PN87

In doing so Commissioner Whelan quoted Deane J in Sullivan v Department of Transport (1978) ALR 323 at 343 who stated:

PN88

It is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case ...(reads)... he is entitled.

PN89

That's at the top of page 7. The university submits that the CPSU has had the opportunity to present its case; it has failed to do so. The university submits that the CPSU should not be given a further opportunity to do so or delay the matter further especially in consideration of the ongoing prejudice and detriment to the School of Civil and Environmental Engineering is suffering through its conduct.

PN90

The university is in the position and has been in dispute with the CPSU about the CSG restructure for almost six months. We submit that it is not fair to the university to keep this matter alive any longer in light of the CPSUs delays and failure to comply with directions. It has had the opportunity to do so.

PN91

In summary the university submits there is no reason why it cannot use its discretion to dismiss the matter today in light of its general powers under section 111(1), the procedures of the Commission under section 110, the objects of the Act under section 3, case law precedent striking out matters where the Commission's directions have not been complied with and the reasons I have presented to you as to the current prejudices and detriments the school is suffering by not having this matter arbitrated as planned today including the financial burden on the school, the inability to implement much needed strategic changes for the computer support group, the inability to commence compulsory and necessary training for employees so that the school will be ready for session 1, not to mention the long term effects for the school such as potential loss of student numbers and loss of funding due to the inability to implement these much needed changes, upgrades and developments. Those are our submissions. Thank you, Commissioner.

PN92

THE COMMISSIONER: Yes, Mr Holland?

PN93

MR HOLLAND: Thank you, Commissioner. I will be brief. The CPSU doesn't disagree with the general principles nor with the assertion that the Commission under the Act has the broad discretion to dismiss the university's application. At the same time the CPSU argues that under that same broad discretion the Commission needs to consider the circumstances involved and in relation to the relevant clauses that Ms Ede has referred to, the circumstances in relation to the applicant in this matter. That is that the merits of the case, the merits of the argument need to be contemplated before any procedural action is taken in regards to this, utilising the broad discretion and dismissing the application.

PN94

Commissioner, I am not in a position today to be able to distinguish our argument in relation to the cases that Ms Ede has referred to, however, I would like to briefly comment on or trace through the history that has been presented because I think it's an integral part to the university's argument. The CPSU believes that the broad discretion commission can be and probably should be utilised if there is a clear pattern of disregard, a clear pattern of delay or deliberate delay without substance to the prosecution of the case. The CPSU argues that this is not the case in this matter. Ms Ede has established a history here to try and paint the CPSU as deliberately delaying the implementation of a restructure and, secondly, deliberately delaying the prosecution in this case.

PN95

The delay in implementation of the restructure as put has simply been on the basis of there being a dispute between the parties in regard, not to the consultative process; Ms Ede referred to the university's full and frank consultation in this matter. The CPSU has not disputed that. The CPSU has disputed, as Ms Ede pointed out, the university's correct or appropriate application of the change in management provisions. The assertion that the CPSU has, I think the quote, has presented a moveable feast in changing its position, has been visited by the parties both in the Commission and prior to the conciliation phase of the dispute.

PN96

The CPSU had believed that that matter had been laid to rest, that the university had accepted the argument that the CPSU put forward in regards to its original application and when we first appeared before you, Commissioner, that matter we believed had been addressed. We don't feel that that is relevant to the question of the whether the Commission should exercise its broad discretion in dismissing an application at this point in time.

PN97

The issue of whether or not you should exercise the broad discretion we believe turns fundamentally on whether there has been prejudice or detriment to the university in this matter being delayed by the CPSU not meeting the timeframe set out. Ms Ede referred to four fundamental points to justify their argument that they have been disadvantaged or there has been prejudice and detriment to the university.

PN98

Firstly, Ms Ede refers to the finalisation of the restructure; the CPSU believes that the restructure in the broad principles of restructure has for many months been able to be finalised. We are dealing with a component of the restructure concerning the finalisation of two computer support officer positions. It is our argument that the fundamental and core duties that pertain to those two positions given that one of the positions is not in dispute and it has been our understanding that the staff member involved has been allowed and enabled to continue on with the work required under that position.

PN99

The second position that is in dispute does currently have Mr Hegners performing the functions, it is our understanding, Commissioner. Ms Ede referred to, in particular, one instance of the upgrading of the windows system to Windows 2000 and attached the question of training to the staff member as a reason why the University has been disadvantaged. Commissioner, this assertion is an assertion that firstly is new to the CPSU and secondly we would dispute the need for Mr Hegedus or Mr Sardana whichever staff member was to be placed in that position needing to be up-skilled or trained in the installation of Windows 2000. This has never been an issue in dispute. The issue in dispute has not been at the skill base nor the experience in either of these staff members in Windows. It has been a question of whether or not there is an appropriate level of skill for Mr Sardana in Linex and Unix platform.

PN100

The assertion Ms Ede has made in regards to the financial pressures, again the CPSU disputes this. We are not aware of there being any issues relating to the loss of funding and complaints from students in relation to this dispute not being finalised. If there were questions of students complaining about the operation of the section prior to this dispute, that has not been discussed between the parties, that has not formed part of the restructure proposal and we don't feel it is relevant in this case. The question of the loss of funding again has taken me by surprise, Commissioner, because that is an issue that again has not been raised by the University.

PN101

We don't see how the delay in finalisation in this dispute could threaten in any way shape or form the funding to the University for this section. The question - issue is raised in regarding to resolve the uncertainty. The CPSU agrees with that. The CPSU believes there is uncertainty here for the University and for the members involved. However, the prejudice and the detriment in resolving that uncertainty without fully allowing the parties to argue the case would fall predominantly on our member, Mr Sardana, by not having the question of whether or not he is the appropriate person for the computer support officer position being tested.

PN102

The uncertainty for the University at this point in time, we believe, is simply a question of if the CPSU is successful and Ms Ede did concede in her submission that there is a chance that the CPSU will be successful in the Commission finding in favour of Mr Sardana, this is correct and we believe there is a strong argument here that Mr Sardana is the appropriate person for this position. However, the uncertainty about whether or not Mr Sardana is going to be successful and be placed in the computer support position is not one that the University can rely upon to argue they're being disadvantaged.

PN103

It is our submission that that uncertainty would not have taken place if in the original restructure proposal Mr Sardana was placed in the position in accordance with the enterprise agreement. Either the CPSU will be successful in the application in which case there has been no, we believe, disadvantage to the University. Mr Sardana is currently on leave, leave which would need to be paid out by the University if Mr Sardana is made redundant. However, Mr Sardana in accordance with the enterprise agreement also has a period of redeployment which the University is obliged to follow through with.

PN104

If the CPSU and Mr Sardana are unsuccessful they do have Mr Hegedus currently in the position whilst Mr Sardana is on leave. We don't feel there is any impediment to Mr Hegedus performing a range of duties that he is currently doing. He is currently fully occupied in performing the duties of the CSO position. The University has raised for the first time today the question of there being a need for immediate training of Mr Hegedus. The University have made an assertion which has not been presented to either of the current occupants of the computer support officer positions. The CPSU would find it a challengeable assertion that in December of the year that they're going to begin training for any staff members.

PN105

However, it is our understanding that there may be need for training in the new year. We're mindful of this. If the University's assertion is that they need to apply for that training, we don't see there being any barrier to applications being made for the training because it is our understanding that the training would be the same training whether it be Mr Hegedus or whether it be Mr Sardana and the University has not presented any evidence contrary to that. It is not, it is simply a false assertion to say that either Mr Hegedus or Mr Sardana would be undertaking training before Christmas. If the CPSU was successful in the application, we would find ourselves with the situation where Mr Sardana would be performing the duties of the computer support officer.

PN106

We would find ourselves in a situation where Mr Sardana would be required to attend training, the same training that Mr Hegedus would be required to attend and we would find ourselves with Mr Hegedus having an option of taking redeployment or taking a redundancy. The University is not disadvantaged if the CPSU is successful in the application and is not prejudiced in this case because it would be required to, at that time, simply act in accordance with the enterprise agreements as it is our assertion they should have acted at the beginning of this restructure.

PN107

Finally, Ms Ede referred to the prejudice that would be encountered with their key witness being overseas. The CPSU is very mindful of that, that is why the CPSU did agree to the original time frame. The University has however referred to another key witness being overseas prior to today's date. My understanding has been that their key witness will be back by the new year. We don't feel there is any prejudice or detriment to the University by having the matter heard in the new year, either in accordance with the suggested amended timetable that I put forward or another agreed timetable.

PN108

Commissioner, ultimately whilst we recognise and as I indicated at the beginning while we concede and at the same time apologise for not meeting the deadline, and whilst we recognise that the Commissioner does have a broad discretion here to either dismiss or not dismiss the application, we feel that the balance here should be a balance of the prejudice and detriment to the University in not having this matter dismissed and/or the prejudice and detriment to the members involved by having the matter dismissed.

PN109

We feel that on balance the prejudice to Mr Sardana which is fundamentally that he would be made redundant, that he would be out of work and he would be out of work without the question which the University has again conceded today that there is a reasonable argument to say that the CPSU would be successful in its application, without the question of the application of the changed management provisions being tested. We don't believe that the history of the restructure is relevant in the Commission determining whether or not it should exercise its broad jurisdiction in this matter because the history of the restructure is a separate and distinct matter.

PN110

The history of the restructure has, yes, been going on since March because as with all restructures which are contentious and as the union has indicated during the conciliation process, this is one of the rare occurrences where we have taken a restructure to the Commission because we believe that the University has not appropriately applied the enterprise agreement. The history of the restructure and the dispute revolving around the restructure are separate and distinct. We don't believe that the question of whether or not the CPSU has changed its routine application is relevant. We do not believe - as we don't believe Commissioner the fact that part of our assertion was in relation to workloads and that contrary to what Ms Ede presented today was a fundamental and original part of our dispute. It has never been a new proposal laid on the table midway through the process.

PN111

Nor do we feel it's relevant, Commissioner, an assertion and a claim that the union has but the university deliberately and knowingly ignored the dispute resolution procedure under the enterprise agreement by interviewing, and this is important, Ms Ede referred to the fact twice that Mr Sardana was unsuccessful in a merit selection. The union at that point of time made it very clear that if it were to proceed with an interview process it would be breaching the dispute resolution processes on the enterprise agreement which clearly indicate that the status quo remain.

PN112

We have had discussions on this Commissioner. The fact that they proceeded with this interview process was clearly that we felt that would be detrimental to our dispute and we believe that has now been brought up and is an attempt by the university to prejudice our argument that Mr Sardana should have been placed in the position. However, we don't believe that that matter is relevant because it is an issue that the union has believed had been dealt with and satisfactorily resolved just as the union believe that the question of our original application had been dealt with and satisfactorily resolved.

PN113

We don't believe that because the dispute concerning the restructure has gone on, we don't believe that there should be - that our powers under the enterprise agreements dispute, what we believe is a breach or misapplication of the enterprise agreement should necessarily have any clearly defined boundaries set by the university. We think the defined boundaries are such that the merits of the argument, develop the merits of the argument be heard and the merits of the argument being resolved and in this case, Commissioner, the merits of the case have not been tested, the merits of the argument have not been resolved and that is, Commissioner, why we believe that you shouldn't use the discretion to dismiss this case and that you should respectfully agree to an amended time line to have this matter resolved as quickly as possible.

PN114

THE COMMISSIONER: Thank you, Mr Holland. I have heard the parties. In respect of what they have put, first of all, it's clear that the prosecutor of the applicant has failed to comply with the directions, directions that were agreed between it and the respondent. Secondly, I am not satisfied that there is an adequate explanation as to why the material wasn't filed in time or even slightly out of time.

PN115

In particular, there is no explanation as to why key material, that is, the evidence of the aggrieved employee or employees was not lodged. It might have been somewhat understanding that other persons couldn't have their witness statements prepared but certainly for those more directly concerned with the dispute or with the disagreement I am unable to see why that wasn't provided. I note on the submissions of the university that the university at the least sought some of the information and, again, that was not forthcoming.

PN116

Thirdly, I am not sure going on the past experience that the timetable suggested by the union would nonetheless be able to be complied with because we are no going into an even more - well, one might think an even more difficult period and some of these ancillary witnesses might be very much unavailable over the next three or so weeks. Secondly, there is nothing to suggest that the university for its part is either happy with or could comply with the revised timetable suggested by the union.

PN117

Fourth, I am satisfied that the university is prejudiced by the failure by the union to prosecute its claim within the agreed timetable. It has been some months now where it has been unable to affects its desired changes. It has engaged a fourth person at some risk because it couldn't do without that key person and I recall in either opening hearing or in the conference the importance of the university decision makers or the decision makers of the school placed on that particular position holder's expertise in promoting the services of the school, etcetera, in the form of web pages and the like.

PN118

Anyway, at that time they hadn't engaged somebody but obviously they have by force of the needs before it engaged somebody at some risk they would think but, nonetheless, had to do so. It seems to me that they now are faced with further risk because they choose an I would have thought its a legitimate management decision in the exercise of its discretion, they now choose to upgrade the skills of one or two persons in the schools in the CSO area and again are unable to determine in fact whether they can train those people because they may very well find that as a result of the Commission's decision they have trained the wrong people.

PN119

Now, I am satisfied as I said that there is prejudice to the university. This matter has been going on for some time and I appreciate most of it has been an attempt by the parties to negotiate an agreed outcome and there were times when such agreement might have been possible. In fact, in part, some of the concerns the union had were satisfied in discussions or greater material being put to it over the past few months but, nonetheless, it has been a matter on foot for almost six months now.

PN120

I note the powers of the Commission, particularly the powers to deal with matters speedily. The provisions of section 110(3) which says the Commission may determine the periods that are reasonably necessary for the fear that adequate presentation of the respective cases of the parties, I would have thought that the parties own decision in that regard could be seen as reasonably necessary and fair.

PN121

That time frame has not been complied with and I take it that the union is not able to proceed with its application today and inevitably if this matter is to be kept on foot it needs to have that previous period for dealing with the matter with proceedings extended in some way. I see no reason to extend the matter. All in all I consider that the applicant has failed to prosecute its claim in the appropriately agreed timetable and because of that I propose to strike out the matter for want of prosecution. On that basis these proceedings are now concluded.

ADJOURNED INDEFINITELY [10.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UNSW5 CHRONOLOGY OF RESTRUCTURE PROCESS PN38