C2002/841, Transcript of Proceedings [2002] AIRCTrans 685 (4 March 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2002/841
C2002/842

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

and

UNIVERSITY OF WOLLONGONG

Notification pursuant to section 99
of the Act re Australian Universities
Academic and Related Staff (Salaries)
Award 1987 re employment of
Dr Grant Rodwell

Application under section 170LW of the
Act for University of Wollongong
(Academic Staff) Enterprise
Agreement 2000-2003 re employment of
Dr Grant Rodwell

SYDNEY

10.16 AM, MONDAY, 18 FEBRUARY, 2002

Continued from 31.1.02

PN350

THE COMMISSIONER: Good morning, I notice a change in the appearances, so I will take appearances again.

PN351

MS T. MULLINS: May it please the Commission, I appear on behalf of the National Tertiary Education Industry Union.

PN352

MR C. RONALDS: May it please the Commission, I appear for the University of Wollongong.

PN353

MS I. BURGESS: May it please the Commission, I appear for the University of Wollongong.

PN354

THE COMMISSIONER: Yes, you're appearing with Ms Ronalds, aren't you?

PN355

MS BURGESS: Yes, Commissioner.

PN356

THE COMMISSIONER: I note the non-appearance of Mr Tilbrook of the AHEIA. I have just received an e-mail from him to advise me that it was his understanding when last week's teleconference was cancelled he received an advice from Telstra which was either an incorrect advice or a misinterpretation on his part. He believed that today's proceedings were going to be done by way of teleconference. Mr Tilbrook apologises to the Commission for his inability to attend in person today. He is unfortunately a victim of Sydney's storms on Saturday night. He has had a busy weekend fixing his house and contents, et cetera.

PN357

I have just spoken with him on receipt of his e-mail and have indicated to him that I will inform him of the outcome of today's proceedings, and in any event in his e-mail, Mr Tilbrook apologises to the parties for his non-appearance. Should the Commission not wish to proceed other than face to fact, the Association reserves it rights in relation to the matters outlined in its submission of 31 January. So having noted that, and Mr Tilbrook's non-appearance, perhaps, Ms Ronalds or Ms Burgess, you might undertake to speak with Mr Tilbrook after these proceedings, as I have undertaken to do with him as well and simply inform him as to where we are up to today.

PN358

The matters before me today were first dealt with on 31 January. The matters in dispute were dealt with both on the record and off the record by way of private discussions between the parties and in an initial conference involving the Commission. At the conclusion of the conference, the proceedings were adjourned generally and for the parties to further negotiate a settlement with recourse to the Commission should be parties seek that assistance. In fact, at the end of the proceedings I would was encouraged by the parties respective statements of intent of their forth coming negotiations.

PN359

Nevertheless, on 13 February 2002, the union faxed to the Commission a request seeking a teleconference of the parties for the purpose of determining directions in relation to a proposed arbitration of the issues. The union further proposed are report-back. Attached to that request were alternative draft orders. In response to that fax and the proposed draft orders, the solicitors for the university notified the Commission on 13 February of their instructions to appear, and by the way, a separate notice of employers appearance has been filed with the Commission.

PN360

The university generally opposed the union's intended directional course of the matters in dispute and asked to be heard on both the proposed directions and the timetable. The Commission listed the matters for teleconference intended to 3 pm on 14 February. By faxed letter to the Commission dated 14 February, the AHEIA notified the Commission if its continuing interest in the proceedings including its opposition to the union's intended directional course and its continuing interest in the process and jurisdiction of the arbitration issues. By separate fax to the Commission dated 14 February, Mr David of Hansons, solicitors for the university, advised of his non-availability for the intended teleconference that day.

PN361

Following a discussion between the Commission as presently constituted and Ms Mullins, the matter was then relisted for report-back and mention today. Given that there has been obviously some activity going on away from the Commission, the purpose of today;s hearing is, as I have just mentioned, for report-back and mention. In that resect, I am not aware whether Mr Tilbrook has been intimately involved in what has transpired away from here, and if not, then as a matter of courtesy to him we should update him as to the outcome of today's proceedings.

PN362

Ms Mullins, you've requested that the matter be relisted, and I've listed it for report-back and mention. Can you bring me up to date with what has occurred and the union;s intentions?

PN363

MS MULLINS: Commissioner, starting with the report-back, on the previous conciliation hearing at the very end the parties reported back to the Commission an agreed statement which was that we were seeking an adjournment to enable the parties to discuss various matters, and in particular options of casual work, redeployment and the possibility of a negotiated settlement.

PN364

Following the hearing, the university indicated that it would need a few days to investigate those options and suggested that we contact the university early the next week following 31 January. There were then discussions between Michelle Rangott, the industrial officer of the NTEIU and Irene Burgess, the manager, Industrial Relations, from the university of Wollongong, and I can confirm that at no stage was any representative of AHEIA involved in directions, at least with the union, about this matter.

PN365

From those discussions, the union indicated it was seeking the options preferably of redeployment, and, in the alternative, we made a without prejudice proposal for settlement, and there was no acceptance of that proposal by the university. Since then there has been no offer at all from the university of an alternative settlement proposal, so the union has put proposals on the table and there's been no alternatives put by the university. As recently as last week there was a discussion where we asked the university if there was any offer of settlement regarding the matter and we were advised by the industrial relations manager that there was no offer, and I was advised by my colleague, Ms Ronalds, this morning. I inquired if there was any update on that from the university that she was aware of and she that she was not aware of any new offer on behalf of the university. So in terms of the report-back, unfortunately, despite the good intentions in the statement, there has been no progress in settling the matter.

PN366

As a result of that, the union feels it has no recourse but to seek arbitration on the matter. We were made aware on 31 January at the conciliation hearing that the university wished to raise, as did the AHEIA, wished to raise the question of possible jurisdictional issues, and it is for that reason that the union is proposing a timetable, we're essentially proposing that we have a timetable that works towards a one-day hearing and that that one-day hearing would deal with both any jurisdictional matters because as yet the union is completely unaware of what the jurisdictional challenges are. There were not details that I can recall, Commissioner, that were outlined at the hearing on 31 January. Both the university and the AHEIA reserved the right to raise jurisdictional matters but- - -

PN367

THE COMMISSIONER: I think Mr Tilbrook went a little bit further than that, and mentioned the sections of the Act, I'll have to check, but I think he referred to a couple of sections of the Act that he would wish to address.

PN368

MS MULLINS: He wished to address the question of section 99 because that was the question of the area that he felt AHEIA had an interest in, but it terms of on what basis section 99 jurisdiction could be challenged, there was no detail given at that hearing.

PN369

So proceeding on the assumption that there will continue to be jurisdictional matters that wish to be raised, but also trying to deal with the fact that we don't want to see a long drawn out process, the union has proposed a timetable that will allow one week for the university to outline jurisdictional matters, that within two weeks the NTU to outline its submissions, witness statements and, if any, additional evidence because it's our understanding that the vast bulk of documents that we introduced, that that is the vast majority of the evidence. Within three weeks of that the university provide an outline of their submissions, witness statements, if any, and any evidence, and that the parties then try and resolve an agreed statement of facts, and we then set a timetable for one day of hearing.

PN370

On the question of AHEIA involvement at the first conciliation on 31 January the union indicated it was not objecting at that stage to Mr Tilbrook's involvement. I don't believe that a formal request for intervention was made on behalf of the AHEIA but the NTEU would have concerns that what is a dispute between the union and the University of Wollongong that we don't believe that there's a need to grant intervention on behalf of AHEIA in the matter.

PN371

THE COMMISSIONER: With respect Mr Tilbrook has mentioned and I think you have conceded in your earlier submissions that this matter should it be arbitrated is intended to confer a new right albeit for one person, so the creation of an order creating a new right in part settlement of an old dispute. That's a matter that concerns all respondents to the award and all respondents to the award would be entitled to participate.

PN372

MS MULLINS: Commissioner, we'd submit that the orders that we're seeking are specific to University of Wollongong. That in terms of the broader interests in the industry we're not seeking a variation to the award in which the AHEIA have an interest. We're seeking a particular ruling related to the University of Wollongong and relating to what potentially may be an exceptional matter on behalf of one individual. I'm concerned that if each time the union comes to the Commission on these sorts of matters if they were to turn into a matter that's bigger than Ben Hur that that doesn't assist the Commission.

PN373

THE COMMISSIONER: In that regard you know each other's form far better than I do.

PN374

MS MULLINS: Hence the concern, Commissioner. So, on this matter we do oppose the intervention of AHEIA but in the event that the Commission, as you seem to be indicating, is of the view that they should be granted formal intervention rights then we still believe that the time line that we're proposing would be sufficient for all parties. The University and AHEIA have been aware of this matter for a reasonable period of time since mid January when we've been seeking the hearing. They've been made aware of the types of orders that we've been seeking and they essentially haven't changed.

PN375

The latest draft orders are in substance the same although a few technical changes and we'd submit that both the University and AHEIA have been aware of the nature of the matter and therefore the jurisdictional matters could be progressed with quite swiftly. I don't believe that the matter is one that requires substantive evidence between the parties. I think that most of the debate will be around the question of jurisdiction and then whether or not in the discretion of the Commission it wishes to make the orders that are being sought for a new right.

PN376

On the basis the orders were drafted and discussions I've had with representatives for the University and AHEIA they are not supportive of the directions that we're seeking. As I understand it they are essentially seeking - they're wishing to pursue jurisdictional challenges. There is a question of what order it progresses upon, whether or not the union is required to present its case first or whether the University and AHEIA have to present the jurisdictional matters first and then there's the question of timing, about whether it's too short a time line. So, unfortunately there's been no ability to reach consensus about any of the matters regarding the directions.

PN377

THE COMMISSIONER: Ms Ronalds?

PN378

MR RONALDS: From the University's point of view the University does wish to pursue the jurisdictional points. It says and if I can outline those. They were outlined last time but perhaps if I could direct very specific comments. In relation to the section 99 alleged dispute there is, the University says, no dispute that meets the characterisation necessary to trigger the mechanism available pursuant to section 99. There are two crucial matters that were determined by Branson J and I understand - I wasn't here last time but I have read the transcript of last time and you, Commissioner, were taken to the decision and I understand you're aware of it, so I won't trouble you with - - -

PN379

THE COMMISSIONER: And I have a copy of it too.

PN380

MR RONALDS: I won't trouble you with it now except to note the particular paragraphs are 37, 38 and 39 on pages 16 and 17 where her Honour made some essential findings which on any reading for this matter to progress to a hearing on the merits would require you to ignore those findings and it is my fundamental submission that you are bound by her Honour's findings and if it would assist you I'll take you through those specifically. But as at today there is no employment relationship between Dr Rodwell and the University of Wollongong, so that the creation of the new right as put forward by my friend requires not only to in essence vary the enterprise agreement but it would require the Commission to create a contract of employment where none exists.

PN381

So that it is a very substantial and significant new right that goes against all the principles of common law in relation to a contract of employment and all the decisions of which I am familiar from this Commission and other Commissions it's simply - it's more than a new right. It would be travelling untrammelled territories and one - the reason they're untrammelled it would be my submission is that that is because there is simply no jurisdiction for you to travel the path which the union seeks you to travel. In relation to what was put on the last occasion about section 89A, there are no exceptional matters.

PN382

These are not allowable matters because there is no employment relationship. So it's a completely different context than that which 89A operates in. One then turns to the second limb of the dispute notification which is section 170LW. That falls into the same fundamental problem that there is no dispute as defined because there is no employment relationship between Dr Rodwell and the University of Wollongong, that having come to an end and her Honour having very clearly found that that was a fixed term contract and which she could make no alterations to and you, Commissioner, must be bound by her finding on that matter. She found that there was nothing in the award that would permit her to turn it into a continuing appointment. Now, the orders sought, they are put in the alternate. If I could refer firstly - if I could call it alternate A is virtually identical which is in essence - - -

PN383

THE COMMISSIONER: I'm sorry, which, the orders that are attached to the union's correspondence to me dated the 13th?

PN384

MR RONALDS: Yes, sorry, Commissioner, the most recent ones. The orders sought although it's unclear in which proceedings these are sought and that would perhaps assist. In essence the first one if I could call it alternate A for convenience, seeks a continuing full time employment, that is, that the position be created because it's not a matter of converting an appointment at this stage. It's a matter of creating an appointment; that you create an appointment which flies absolutely in the face of a fundamental finding of her Honour that that was not an option when there was a contract of employment on foot and in my submission there's simply no basis for this.

PN385

This is an attempt to obtain the orders sought from the Federal Court in virtually identical terms which was not available from that court and as I've indicated earlier it's my primary submission that you must be bound by her Honour's findings in that matter. The alternate, for convenience I'll call it alternate B, is a payment of 58 weeks. That if it would assist you, Commissioner, is based on a redundancy for someone in a continuing appointment. So, again, it would create - require the creation of a capacity to claim an entitlement for a former employee which is based on particular criteria for an existing employee. Again, outside the jurisdiction of the Commission. So they're the two - on either dispute notification the University says there is simply no basis for this Commission to proceed and it would seek that the proceedings be dismissed.

PN386

In terms of the order sought, obviously there are lengthier reasons that I can and when the opportunity avails, will provide you Commissioner, which I hope will assist and clarify my probably opaque discussion with you today, but we would be concerned about the necessity to have a hearing on the merits rolled into a jurisdictional hearing and that evidence on the merits be put on at the same time, as we would see that that is a potentially significant waste of costs to do so, that the issues that arise in relation to the jurisdictional matter arise in relation to her Honour's decision and the orders sought and the enterprise agreement as it operated - as it continues to operate and Ms Mullins last time tendered some documents, the only other thing that I think would be needed would be the actual enterprise agreement, itself, which doesn't seem to have been tendered last time.

PN387

But apart from that, it's a question of law, it's a matter of construction of the statute, it's the constitutional limitations, the interstate industrial dispute requirements, all those matters that must be clarified with precision and it is not, in my submission, just simply possible for the union to come and say, "These are the orders we seek". If one goes back to the dispute notification, they are also similarly based on matters that were put before her Honour and which were dismissed.

PN388

But in particular, alternate A order is virtually identical to the terms and if you - I think it is page 10 of the decision where those orders are set out, you will see that it is in very similar terms, certainly there's a couple of words being altered, but the intention is the same, that there be a continuing appointment, but even at the point at which there was a contract of - - -

PN389

THE COMMISSIONER: This is the terms of the order sought before Branson J?

PN390

MS RONALDS: Yes, Commissioner, by the same party who now seeks them from you, that is the NTEIU. But that was to convert a fixed term contract to a continuing appointment. We are now in the position where there is no fixed term contract, that having expired through the effluxion of time as from 31 January 2002. That was her Honour's finding. That was what's happened, it is now past, so there is no employment relationship. So, as I've indicated it would require you to create an employment relationship where none exists and that simply is beyond, with the greatest respect to you Commissioner, your powers to achieve such a possibility.

PN391

These are not termination proceedings where reinstatement may be an available option, they are brought within a very different context and the power for you to create an employment relationship from sand, as it is, is simply not available to you.

PN392

So they are the jurisdictional matters. They are quite significant jurisdiction matters, as you can see and it is my submission that it would be inappropriate or simply an unnecessary waste of time and resources on the parties to put on any evidence required for the merits of the matter when the jurisdictional matters are so significant. In that, they don't necessarily need to be lengthy in their consideration and I've endeavoured to outline what the position is.

PN393

THE COMMISSIONER: As to a timetable, what are your comments on that?

PN394

MS RONALDS: Well if the timetable was - well in terms of the proposal for witness statements, etcetera, I have think I have made the position clear.

PN395

THE COMMISSIONER: Yes.

PN396

MS RONALDS: I would seek two weeks to put on submissions in relation to the jurisdictional point, obviously some work has occurred in that regard, but in order to achieve the clarity I would hope would assist you, there is in my submission simply no urgency about the matter in that the employment relationship is over and Dr Rodwell has been aware, at least since her Honour's decision that there was a fixed term contract, and that expired. I mean, he'd been aware all the time and that was the evidence obviously, but the contract expired on 31 January 2002. Whatever joyful prospects he may hold out for this Commission, the reality is that he is not currently employed by the University of Wollongong and he's not in any sort of position with the university that is holding on or being held in abeyance until you may address these matters, so that perhaps an earlier January apparition of where's the bush fire might be the question.

PN397

There is no, in my submission, need to accelerate it beyond what would be the usual type of timetable from the Commission. So I would seek two weeks to put on submissions, but perhaps before that, we could be assisted by an outline of submissions from the NTEIU to explain - I appreciate they've provided previously, and Ms Mullins made some lengthy submissions about what their matters are, but in relation to the two orders now sought, as I have indicated it's unclear what powers they rely on in relation to each order, and so I would seek perhaps a week for them to particularise that so that we are not wasting our time responding to matters upon which they no longer seek to rely, now that they've formulated these two alternate orders.

PN398

In my submission, it would be useful if they just provided that in an outline form so that we knew which orders they were seeking from which of the two different proceedings and it may be they relate only to one and not to other and that might save 50 per cent of the jurisdictional argument and if they are both, then what is the legal basis they say, that supports both the alternate orders. I think that would assist the process and then after that, if they have a week to do that, then we have two weeks to put on our submissions, in essence to flesh out the matters I have just flagged before your Commission.

PN399

THE COMMISSIONER: Thank you, Ms Ronalds. I think at this point, it is appropriate that I note for the record the matters raised by the AHEIO in their detailed correspondence and submissions of 31 January 2002, in respect of both jurisdiction and merit issues on the section 99 dispute notification, as it is that matter only in which they retain an interest. Ms Mullins, your responses, particularly in relation to the last matter raised by Ms Ronalds.

PN400

MS MULLINS: Certainly the union could provide an indication of the jurisdictional basis and which orders relate to the section 170LW and the 99, so we would still be seeking - that could be provided within a week. We would then propose the two weeks for the university and AHEIO submissions about jurisdiction, so on that point adopt the proposal from the university.

PN401

The essential question of whether or not to separate substance from jurisdiction, we would still be seeking that the two matters progress together, we believe that they could both be dealt with in a one day hearing, so there would be - - -

PN402

THE COMMISSIONER: Well, with respect, is there any point in dealing with the merit issues other than in the context of whatever impact it may have on the arguments in respect of jurisdiction?

PN403

MS MULLINS: That's essentially my concern, Commissioner, that jurisdiction will be addressed and is this an exceptional matter, which we believe would raise significant issues of fact that would overlap the merit argument. It deals with the - - -

PN404

THE COMMISSIONER: But is there any argument about fact now, hasn't that all been settled and determinations made? One wonders what other facts are applicable in respect of the merit issue.

PN405

MS MULLINS: There are some facts that were not before the Federal Court on matters outside its brief, so as far as - - -

PN406

THE COMMISSIONER: But do they deal with the jurisdiction of the Commission, the Commission's powers to deal with the matters that you're seeking an outcome for?

PN407

MS MULLINS: We'd submit that they are relevant to the question fo an exceptional matter, and the question of - - -

PN408

THE COMMISSIONER: Well, in fairness, whatever they are, they would be disclosed up front, so that the university's aware of what it needs to respond to, whether it is a jurisdictional interest or a merit issue. You probably each have a separate view on those subjects, but in any event, it ought to be disclosed, the whole purpose of directions of course, is that each side is fully aware of the nature of the case to be conducted by the other side.

PN409

MS MULLINS: I concur with that completely, Commissioner, but the essential submission we would make would be that in order to determine the jurisdictional questions, significant aspects of the facts which are largely before the Commission, and were largely before the Federal Court are that significant aspects of them are overlapped and that in order to deal with jurisdiction probably 90 per cent of the relevant merit and factual matters, we'd submit that there would be that overlap and it was on that basis that we would be seeking a combined hearing.

PN410

THE COMMISSIONER: One issue you didn't deal with in response, are you making out a comment on or are you may care to keep your powder dry. Ms Ronalds made a submission that in so far as Branson Js decision concerns the matters before this Commission that I am bound by her decision, what do you say about that?

PN411

MS MULLINS: Commissioner, some of this was addressed in the initial submission for conciliation, but in essence it is exactly because of the Federal Courts decision that we are here before the Commission. It is exactly because of her decision that we have at the time that we came initially before the Commission we had an employee who was in the Never Never land. He was not able to be employed on fixed term employment, should not have been employed on fixed term employment according to the enterprise agreement, but he was. The Federal Court has ruled that he was a fixed term employee despite the fact that there was a breach of the enterprise agreement.

PN412

It's exactly because he falls into that camp that he then has no entitlements to severance payment, let alone redundancy payment and it is because of that exceptional matter that the university had employed him outside what they should have been employing him. They employed him in breach. It is that very exceptional matter and because of the finding of the Federal Court that Dr Rodwell is left without any severance payment whatsoever. If he had been employed in accordance with the enterprise agreement he would have been entitled to redundancy pay which would have been in the order of 58 weeks. Exactly because of their breach - - -

PN413

THE COMMISSIONER: That is an assertion on your part. It was a fixed term contract at the outset which he accepted with no benefit beyond the expiry date. But I appreciate the fact that the unions position is now based upon an interpretation of Branson Js decision. What I really want you to comment on is your view as to whether I am or I am not bound by Branson Js decision.

PN414

MS MULLINS: We say that the Commission is bound by the decision in so far as the matter that the Federal Court determined and that that forms the backdrop as does the enterprise agreement, the award and other relevant matters so that when the Commission comes to determine whether it wishes to create a new right that forms one of the factual backdrops. We say that that decision doesn't prevent the Commission from granting the orders that the union is seeking however. I mean a parallel would be if there was a case taken about a particular individuals rights for paid parental leave under an enterprise agreement and there was a ruling on that. The union may nonetheless come before the Commission at some later date on behalf of that employee or somebody else to create a new right which creates an improved pay parental leave provision.

PN415

We would say that that parallels as equivalent here. But, yes, we did as we are entitled to, seek orders from the Federal Court. But the Commission has its own jurisdiction. Taking into account what the Federal Court found, we say that the Commission has its own jurisdiction to create new rights if you regard them as appropriate upon your discretion and if it meets the jurisdictional requirements. We say that this particular case would meet those. Obviously we need to go into the submissions but we say you have the power to make the orders that we seek.

PN416

THE COMMISSIONER: Thank you, Ms Mullins. I will consider the submissions made by the parties today in respect of all of the matters in dispute of the orders that are being sought of the Commission and of the preliminary views expressed by the university with respect to the jurisdiction of the Commission. It will be my intention to release a brief decision that will deal with probably no more than the directions and any timetable that might follow. But I will in the meantime inform Mr Tilbrook of what has transpired today. You may care to do the same if you would, Ms Ronalds.

PN417

MS RONALDS: We will do the same, Commissioner.

PN418

THE COMMISSIONER: I will release a brief decision as soon as I am able to. These proceedings of course are ongoing and I will merely adjourn them to a time and date to be fixed.

ADJOURNED ACCORDINGLY [10.51am]