C2003/1262, Transcript of Proceedings [2003] AIRCTrans 1505 (24 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2003/1262
C2003/1263

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

and

AUSTRALIAN CATHOLIC UNIVERSITY

Applications under section 170LW of the Act
for settlement of disputes re alleged failure
of the University to correctly apply the
Managing Change and Equal Employment
Opportunity provisions

SYDNEY

12.30 PM, TUESDAY, 8 APRIL 2003

Continued from 25.3.03 in Melbourne

Hearing Continuing

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN35

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please, I will start in Melbourne.

PN36

MR R. THOMAS: I appear on behalf of the NTEU with me is MS G. DAVEY also of the NTEU.

PN37

DR M. NICHOLSON: In Sydney I appear on behalf of the NTEU.

PN38

MR D. MENDELSSOHN: I appear for the CPSU with me is MR M. PERICA who appear on the last occasion at which time the CPSU was granted leave to intervene at least in relation to the general staff agreement matter.

PN39

MR D. WEDGWOOD: I appear for the AHEIA and on behalf of the university. With me is MR F. YOUNG and DR J. BARCLAY from the university.

PN40

THE SENIOR DEPUTY PRESIDENT: Very well, before we get fully established, it is about a year since I made the qualification statement about matters involving this particular university. If any of the parties need to be reminded of what that was I'll do it but otherwise I'll simply proceed. Mr Mendelssohn is aware I think.

PN41

MR MENDELSSOHN: Yes, your Honour.

PN42

MR THOMAS: And we are.

PN43

THE SENIOR DEPUTY PRESIDENT: You are Mr Thomas. Me Wedgwood?

PN44

MR WEDGWOOD: I wasn't present, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: My sister is an employee of the university. I think Dr Barclay and Mr Young are aware of that. Are you going to open Mr Thomas?

PN46

MR THOMAS: Yes, I am your Honour. Before I commence, I notice in the listing that whilst we've had one attempt at this before Commissioner Holmes, it is listed for mention and directions, do you have any picture of how you would like to proceed today given the time and it is listing for mention and directions or do you want go through full submissions?

PN47

THE SENIOR DEPUTY PRESIDENT: No, certainly not the last. It is listed for mention and directions because I was left with the impression on reading the transcript that if proceedings before Commissioner Holmes that there were matters that had to be addressed in short by way of arbitration or threshold matters which are still arbitration as far as I'm concerned. The purpose of this listing is to organise that, to fix a date and to decide whether there should be directions issued for people to put on outlines of submissions and indeed statements of witnesses. Now, it is your application Mr Thomas, do you know what the position is as far as witnesses are concerned?

PN48

MR THOMAS: Yes, certainly when it comes to part of the - I think you can glean from the transcript before Commissioner Holmes that the nub of the matter as it is is that the parties are unable to agree that the matter before them actually constitutes a dispute arising from the application of the agreement. Certainly when it comes to our argument as to what was the intent of the parties when they negotiated the agreement and the context of those negotiations we were intending to bring Dr Nicholson who was the president of our branch at the ACU to provide an explanation to the context of the negotiations and the discussions that took place when it came to the construction of clause 10.1 which is equal employment opportunity and the obligations agreed to by the parties within that specific clause.

PN49

THE SENIOR DEPUTY PRESIDENT: All right that's one person who will give evidence on behalf of the NTEU, is there anybody else?

PN50

MR THOMAS: No, that was all.

PN51

THE SENIOR DEPUTY PRESIDENT: Mr Mendelssohn?

PN52

MR MENDELSSOHN: We won't have any witness evidence your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Wedgwood?

PN54

MR WEDGWOOD: Your Honour, I think it's unlikely that we will want to produce witnesses as such. I suppose I'd make two points. I think your Honour might predict our submission would include the question of whether the intent of the parties is a relevant consideration. So that will be a matter of some debate. Mr Thomas I am aware will raise a precedent case which he argues supports his position and obviously will need to rejoinder to that. I think the fundamental is a determination of the construct of the agreement and whether the matter of dispute is covered by that.

PN55

So it is not I think, at the end of the day a matter of great witnesses rather a matter of interpretation and therefore I think it's unlikely that we've had any witnesses or if in the end we saw them as being necessary I think they would be a very small number and relatively short.

PN56

THE SENIOR DEPUTY PRESIDENT: All right then, we'll move on from that to practicality or desirability of outlines of submissions. What's your view on that Mr Thomas?

PN57

MR THOMAS: I think to start, your Honour, to inform you that we will not be pursuing with the alleged failure to correctly apply the managing change clause. Our case will focus on the alleged failure to correctly apply the equal employment opportunity clause.

PN58

THE SENIOR DEPUTY PRESIDENT: Good, well that's clear. What I really wanted to know was whether or not the parties can have a common view as to whether it's desirable to have written submissions.

PN59

MR THOMAS: I am fairly ambivalent on that. I'm quite happy - I mean written submissions would address the matter as far as we are concerned but if there is a need for discussion or perhaps a possible conciliation, a genuine conciliation between the parties we wouldn't want to forego that opportunity but we are comfortable with written submissions.

PN60

THE SENIOR DEPUTY PRESIDENT: What about you, Mr Mendelssohn?

PN61

MR MENDELSSOHN: We would actually urge, at least outlines of submissions if not for the matter to be prosecuted fully by written submissions because for two reasons. One is that there is in the air some suggestion that at least one of the parties might appeal if the result is adverse to them and I think in that context for everybody to have their cards on the table in advance and have a proper opportunity to respond fully to each other's submissions is appropriate and also because the matter as I think Mr Wedgwood said, it hinges on the correct interpretation of wording in the agreement.

PN62

I might indicate that we will be relying on some common law authorities with regard to the relevant wording in the agreement. For that reason also it is more appropriate for everybody to have a proper opportunity to consider any authorities cited in either direction rather than have to respond to them on the run on the day.

PN63

THE SENIOR DEPUTY PRESIDENT: Very well Mr Mendelssohn, that is perfectly understandable. I would imagine you probably won't disagree too much with that Mr Wedgwood?

PN64

MR WEDGWOOD: No, your Honour. I have to say I agree predominantly with my colleague Mr Mendelssohn on the point and I think the matter is probably best resolved in that way.

PN65

THE SENIOR DEPUTY PRESIDENT: What little I know about it suggests that written submissions, reasonably comprehensive ones, would be a sensible idea for all concerned and we should make arrangements for that. We'll go off record now to work out the time that all that should take and fix a date for hearing and determine the hearing date and the matter of the venue.

OFF THE RECORD

PN66

THE SENIOR DEPUTY PRESIDENT: Having discussed the matter with the parties I issue the following directions for the future conduct of the matter or matters.

PN67

1. The NTEU and CPSU are to file and serve an outline of their submissions and any witness statements not later than the close of business on 17 April 2003.

PN68

2. The ACU through AHEIA is to file and serve an outline of its submissions and any witness statements that it may have not later than the close of business on 9 May.

PN69

3. The NTEU and CPSU are to file and serve a reply not later than the close of business on 16 May.

PN70

4. The hearing will take place in Sydney beginning at 9.30 am on Tuesday, 20 May next.

PN71

I adjourn this matter accordingly.

OFF THE RECORD

PN72

THE SENIOR DEPUTY PRESIDENT: Mr Wedgwood, the matter of the university's undertaking has been raised. It was given off transcript and for the purposes of the record I would appreciate it if you would phrase it for the record.

PN73

MR WEDGWOOD: Yes, your Honour. On behalf of the university I can state that the university undertakes to take no decision in this matter which would preclude the deliberations of the Commission being made in advance of ANY such decision being made by the institution.

PN74

THE SENIOR DEPUTY PRESIDENT: Thank you. That does complete proceedings.

ADJOURNED UNTIL TUESDAY, 20 MAY 2003 [12.55pm]