C2003/1508, Transcript of Proceedings [2003] AIRCTrans 1522 (24 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2003/1508

NATIONAL TERTIARY EDUCATION
INDUSTRY UNION

and

BANKSTOWN STUDENTS ASSOCIATION

Application under section 170LW of the Act
for settlement of dispute re summary dismissal
of an employee

SYDNEY

2.02PM, TUESDAY, 8 APRIL 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have appearances please?

PN2

MS J. WELLS: Good afternoon, your Honour. I appear for the NTEIU. With me is MRS HAZEL CRANNEY.

PN3

MS C. RONALDS: I appear for the Bankstown Students Association instructed by the Association.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. You need leave, don't you?

PN5

MS RONALDS: I do need leave. I was about to say could I have leave.

PN6

THE SENIOR DEPUTY PRESIDENT: Were you going to say something, Ms Wells?

PN7

MS WELLS: I was, your Honour. Interesting reference to leave. I would like to actually cite section 42 of the Workplace Relations Act in relation to representation of parties before the Commission. The NTEIU would like to submit to you today that we do not think it is appropriate that the Bankstown Students Association be given leave to have an appearance of a solicitor or barrister. Throughout this dispute the NTEIU has acted in good faith in attempting to resolve the dispute. It has not been the case with the BSA management yet we still have hope that in formal procedures of the Commission as the Workplace Relations Act envisaged that both parties to the dispute, the management of the Students Association and the NTEIU would be able to resolve the issue today. Thank you, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: What do you say, Ms Ronalds?

PN9

MS RONALDS: I say that, if I could perhaps leave unanswered at this stage the casting aspersions on the Association - I would not want you to take that I accept that slur - these are students who run a Students Association, these are serious allegations being made that there has been a breach of the enterprise agreement and there are in fact quite technical issues that will need to be even if just traversed broadly today and in my submission it is appropriate that they are represented and assisted in the matter even though it be informal at this stage.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I am prepared to grant leave. I particularly note your reference to the fact that it is informal at this stage, the proceedings this afternoon as you both know will go as quickly as I can reasonably bring you into conference and conciliation and at that stage we will see how we go.

PN11

Ms Wells, would you like to tell me what has brought us here?

PN12

MS WELLS: Thank you, your Honour. The NTEIU appears today to seek the assistance of the Commission to resolve a dispute relating to the failure of the Bankstown Students Association management to adhere to the procedures of their agreement. Specifically, we cited in our dispute notification clause 2.3, clause 2.4, clause 3.10 and clause 3.11 and I will be able to take you through those clauses in greater detail, your Honour.

PN13

The following steps of the dispute procedure have already occurred. The Bankstown Students Association incorrectly summarily dismissed Mrs Hazel Cranney by letter dated 7 February 2003. The NTEIU wrote to Mr David Loncar, President of the Bankstown Students Association on 28 February 2003 advising of a dispute between the NTEIU members and Mr Loncar in regards to the failure of the Association to apply the agreement and also outlined - and we will be able to give you a copy of this - in great detail a response to the allegations contained in the incorrect summary dismissal letter.

PN14

On Tuesday, 11 March the NTEIU members employed by the Bankstown Students Association called a union meeting to convey to their management that this meeting of members of the NTEIU employed by BSA deplores the dismissal of Hazel Cranney, calls upon management to meet urgently with the NTEIU in accordance with the clause and in particular - and requires that the outline of the disciplinary procedures clause take place - calls upon the management to meet urgently with the NTEIU in accordance with the dispute resolution procedures and is concerned at the failure of the management to follow the termination of employment procedures outlined in 3.10 and the disciplinary procedures outlined in 3.11 and the unfair, harsh, unjust, unreasonable and wrongful dismissal of Hazel Cranney.

PN15

The dismissal raises job security concerns
for all staff employed by the Bankstown Students Association and for adherence to the provisions of the enterprise agreement and the NTEIU members call for the immediate reinstatement of Hazel Cranney and for the procedures in these clauses to be complied with. The motion was conveyed to their management that same day. On Thursday, 13 March the NTEIU delegate for the Bankstown Students Association, Margaret Zeeto, NTEIU member Hazel Cranney and myself met with President, David Loncar and Association representative, Luciano Vicaro here today to attempt to resolve the dispute. The NTEIU requested a written response by close of business the following Monday and on Tuesday, 18 March the NTEIU received a fax from David Loncar which stated amongst other things that the Bankstown Students Association had met and discussed our stance on the dismissal of Mrs Cranney and has decided to decline the proposal of reinstatement.

PN16

The union members had asked us to take this dispute to the Commission and seek the assistance of the Commission to resolve the dispute as it affects all of their job security and rights under the union agreement. I have a copy here today of the letter of summary dismissal which I would like to show you.

PN17

THE SENIOR DEPUTY PRESIDENT: I will mark this letter, it is dated 7 February 2003 to Mrs Cranney from Clay Freeman, Executive Officer of the Bankstown Students Association exhibit NTEIU1.

EXHIBIT #NTEIU1 LETTER TO MRS H. CRANNEY FROM BANKSTOWN STUDENTS ASSOCIATION DATED 07/02/2003

PN18

MS WELLS: Thank you, your Honour. There are three main points in the letter of summary dismissal, would you like me to wait for you to read it?

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, that would be a good idea.

PN20

MS WELLS: The NTEIU responded in great detail on 28 February 2003 and I would like to give you a copy of that. The management already have a copy. It is quite long and perhaps you will not be able to read it today but I am happy to summarise it for you.

PN21

THE SENIOR DEPUTY PRESIDENT: Very well, that would be a good idea. I can see that it is quite lengthy but I will mark it. Letter of 28 February 2003 to Mr Loncar from Dr Mike Donaldson.

PN22

MS WELLS: Yes, the State Secretary of the division.

PN23

THE SENIOR DEPUTY PRESIDENT: Exhibit NTEIU2.

EXHIBIT #NTEIU2 LETTER TO MR LONCAR FROM DR M. DONALDSON DATED 28/02/2003

PN24

MS WELLS: Thank you, your Honour. In NTEIU1 you can see that there are three main allegations: presenting inaccurate financial figures to meetings of the Students Representative Council; presenting inaccurate financial information to the Association President and members of the Council; and 3, failure to comply with 11.1 of the University of Western Sydney Macarthur Students Association regulations during 2002 in relation to the conduct of the cheque account with Perfection Catering including a number of points. There seems to be other subgroups within that which include:

PN25

Failure to install and ensure the proper working of point of sales system and failure to properly maintain all essential financial and accounting records, including detail of that, and failure to account for or explain the source of the deficit identified by the university's auditors as being $45,000 for the last six months of 2002 and $100,000 for a 10-month period in 2002.

PN26

Of course these allegations say "when it was your responsibility" or "the regulations and when it was your responsibility". The substance of the matter for the NTEU resides very much in the staffing structure of the organisation and who was responsible for what in the detail of response to the allegations. But of course we flag at the first three paragraphs, your Honour, to Mr David Loncar in our response of 28 February, NTEU 2, that we notify formally a dispute that we see that they have failed to apply the agreement and that Mrs Cranney was denied due process in that at no time prior to her termination was she given the opportunity to respond to the allegations made against her.

PN27

Therefore on behalf of Mrs Cranney our state secretary, Dr Mike Donaldson, outlines in many pages, 14 pages with attachments, a response to the allegations. Of course, this is after the termination. Generally the first few pages outline that financial systems are in disarray and that Mrs Cranney continued the methodology as directed by the organisation as per established practice and procedure and never failed to follow a particular direction of her supervisor, the executive officer of the Bankstown Students Association Mr Clay Freeman, who is here today; was never asked to change the methodology of her accounting and reporting; was never directed as to changes. From January 2001 when Mrs Cranney began to the receipt of the letter of 7 February 2003 Mrs Cranney was never notified that any of those procedures were wrong. In fact she was often praised for the reporting that she complied with for the organisation.

PN28

On page 3 at point F in particular we illustrate that in accordance with the Students Association staffing structure, it is the position of the executive officer that has the overall responsibility for the finances of the Association and not the position of operations manager as held by Mrs Cranney. At no point in her entire employment with the Association did any person advise Mrs Cranney of all the budget items allocated by the Association to the operations area prior to the meeting with Mrs Cranney and others with the meeting of the university's investigator around the end of November 2002.

PN29

In summary, your Honour, at no point had Mrs Cranney been advised that her reporting methodology was incorrect and also for some time Mrs Cranney was not aware that other items in other allocated budget areas of the Association were actually allocated to hers. In fact Mrs Cranney had no idea that things like, for instance, the cash registers were leased rather than owned by the Bankstown Students' Association. The NTEU has no doubt that the finances of the Association were in great disarray and we go through records in great detail.

PN30

The other point to make in the many pages of detail before you here is on page 12 where at Q at the meeting of 31 October 2002 Mrs Cranney explained to Mr Vicaro and Ms Avulo what she and Ms Trail had found in their review of the MYOB purchases and payables journal conducted on 29 October and they proceeded to work through the figures supplied to the auditor and Mr Vicaro did not seem to understand as in the student representative what Mrs Cranney and Ms Trail were saying about the purchases and payable journal and at the conclusion of this meeting at R, your Honour, Mrs Cranney, Ms Trail and Ms Zeeto who's the delegate of the workplace called on the present, Mr Vicaro, to initiate an investigation of the accounts. So it was actually our own NTEU members that asked for that investigation to occur. Several times Mrs Cranney asked to meet with the investigators. Just bringing you back to the first page:

PN31

Mrs Cranney has sought on numerous occasions to be interviewed by the university's investigators.

PN32

This is the investigation into the Bankstown Students' Association's finances:

PN33

However, all scheduled meetings between Mrs Cranney and the university investigators were cancelled on the first occasion ...(reads)... meeting occurring.

PN34

So, in essence, there's an investigation happening, the members have information, they've asked for it to occur, they wish to contribute to it, they are denied and during the investigation and before the results of this investigation are published Mrs Cranney is terminated on 7 February 2003. Knowing that context I'd like to take you through the agreement now. Of course we're here and empowered by the Commission to resolve our dispute with your assistance today by 2.3 and in particular clause 2.3.4:

PN35

In the event that the dispute is not resolved either party may refer the matter to the AIRC for determination. The parties agree to abide by the determination of the AIRC.

PN36

Just below this on page 6 of the agreement is a requirement to consult. At 2.4.2:

PN37

It is a requirement that any decisions of any relevant committee of council or office-bearer that materially affects the well-being of staff ...(reads)... before implementation.

PN38

The NTEU asserts that if the NTEU members were involved in the investigation that they had requested that we would not be here today. The next important clause for resolution of our dispute today is 3.10 Termination of Employment page 13. 3.10.1:

PN39

No staff member will be unfairly, harshly, unjustly, unreasonably or wrongfully dismissed.

PN40

So the scope of the agreement as you see is wider than the Workplace Relations Act and union members fought hard to achieve that clause just last year; this agreement was certificate just in August 2002 for their job security. 3.10.2:

PN41

For the purpose of this clause termination of employment shall include termination with or without notice.

PN42

3.10.4:

PN43

An employee shall not be dismissed unless the appropriate grievance, disciplinary, sexual harassment or dispute handling procedure under this agreement has been followed.

PN44

We assert, of course, that the disciplinary procedures have not been followed. 3.10.6:

PN45

Before this meeting takes place the employee involved in the union shall be given in writing the complaints against the employee ...(reads)... by the union.

PN46

The executive officer here today and these students who certified this agreement just last year agreed to give an employee like Mrs Cranney in writing the matters of complaint so that procedural fairness would apply and Mrs Cranney and her union representative would be able to respond to them while in employment. 3.10.10, and I only cite this clause not because I think it's relevant here but because it appears in the summary dismissal letter to Mrs Cranney:

PN47

The period of notice in this clause shall not apply in the case of conduct which justifies summary dismissal such as that which constitutes a criminal act or in the case of casual employees.

PN48

So what is important here to emphasise is that just on the basis of the wording of 3.10.10 there is no lack of procedural fairness or lack of dispute procedures or lack of disciplinary procedures in summary dismissal, there is only a lack of notice. That is what 3.10 says:

PN49

The period of notice in this clause shall not apply in the case of conduct which justifies summary dismissal.

PN50

But that clause 3.10.10 can only be read in conjunction with "no staff member will be unfairly, harshly, unjustly, unreasonably or wrongfully dismissed". Termination of employment shall include termination with or without notice. An employee shall not be dismissed unless the appropriate disciplinary procedure has been followed. Before this takes place, the employee has the right to due process through 3.10.6. Just to make the purposes of these clauses clear again, the agreement re-emphasises these procedural fairness procedures in 3.11 disciplinary procedures.

PN51

Right at the bottom of page 14, your Honour, 3.11.1:

PN52

All decisions to discipline or dismiss an employee must be made in accordance with this clause.

PN53

Must be. 3.11.3:

PN54

The following is a list of actions taken by staff members which may lead to disciplinary action.

PN55

And it gives you a number of examples there and I point out to your Honour the wording and indeed the actions themselves that correlate very nicely with NTEU1, letter of summary dismissal:

PN56

Negligence in the performance of specified duties of position held ...(reads)... constitutions, regulations or policies.

PN57

The very things that the employer has tried to incorrectly summarily dismiss Mrs Cranney for appear in 3.11.3. So even though, of course, the NTEU asserts non of these things have occurred and if we'd just been listened to at any stage it would be clear that none of those things had occurred. But even if the association suspected those things of occurring, their agreement tells them this is how you deal with it, 3.11.3. Those are the things that can initiate any disciplinary action and then talks about unsatisfactory performance and again very, very similar wording to their letter, your Honour:

PN58

Failure to meet requirements of job description, contradicting the aims and objectives.

PN59

"Failure to meet requirements of job description" I suppose is the best one that mirrors their letter. So, again, if at any stage in the nearly two years, actually in fact over two years, that Mrs Cranney was employed, if at any stage her manager who is here today, the executive officer, suspected any of those things, he could have raised them with her informally or in writing and we have evidence to show that was never raised. In fact, her performance was commended by her management and her peers.

PN60

As you can see, even if the employer disagreed with me at this point and suspected these things were an issue, the agreement outlines a number of things and the union members have cited them in their motion, your Honour. Ultimately, the complaint is put to the employee. The employee has the opportunity to respond with their advocate if so chosen. If the employer is still not happy with the response of the employee, it can refer the evidence as in the complaint and the response and any other mitigating factors, to a disciplinary committee and that shall review the application of the procedures under this clause.

PN61

That is how important the application of those procedures are to the union members. They negotiated this clause for this very reason. Any evidence presented in relation to the staff member's performance, the staff member's response and the disciplinary action recommended by the department, manager or president. The disciplinary committee shall determine the appropriate action to be taken which may include referring the matter back, undertaking training and development, re-allocation of duties or the taking of disciplinary action against the staff member which may include "formal written censure, demotion or dismissal with four weeks notice".

PN62

So those are the procedures. Just to emphasise this point one more time, one last time, your Honour, page 18, misconduct, 3.11.5. Point 1:

PN63

Subject to clause 13.11.4 where an allegation of misconduct is made ...(reads)... to respond to the allegation.

PN64

Throughout this dispute, your Honour, all that we've asked for is that the agreement procedures apply. If they think they had such a great case against our member and all the union members feel threatened by this, then they could have just put it to her and allowed her to respond. Finally, that section ends, your Honour, on page 19 at sub clause 9:

PN65

The dismissal for misconduct may only occur where the disciplinary committee ...(reads)... required of the position.

PN66

So again we're reflecting the misused writing of NTEU1, the letter of the employer. They talk about a breach of her responsibilities:

PN67

That the serious breaches of your management responsibilities and duties, etcetera.

PN68

Exactly the wording of the clause which says "dismissal will only occur where the disciplinary committee has determined that the conduct represents a serious and fundamental breach". Those are the safety procedures. Those are the rights that the union members in Bankstown Students Association negotiated and won just last year and already we see the employer trying to avoid them.

PN69

Now, your Honour, to finish with the context of the dispute in the work place. Obviously there is a lot of material which you could look at and I won't take you through all of that today, because we are confident that we can resolve the dispute. The first thing I will show you is the staffing structure of the work place.

PN70

THE SENIOR DEPUTY PRESIDENT: I'll take this subject to proof of its accuracy.

PN71

MS WELLS: Thank you, your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: I'll mark it as a document that's been handed up exhibit NTEU3.

EXHIBIT #NTEIU3 BANKSTOWN STUDENT ASSOCIATION'S MANAGEMENT STRUCTURE

PN73

MS WELLS: This is a structure that appears in an audit report for 2002. As you can see at the top, your Honour, the executive officer/general manager here today, Mr Clay Freeman, his name appears on the letter of summary dismissal. He is above, obviously, the next line of management within the work place and as you can see to the left and below him is operations manager which is the position Mrs Cranney held until 7 February.

PN74

We have a blatant disregard for the union agreement. It starts to make sense. It's not right but it starts to make sense in terms of some of the discussions and problems that were occurring in the workplace in the last two years. So I'd like to show your Honour a copy of the effective staff meeting for Wednesday 26 June 2001.

PN75

MS RONALDS: Your Honour my friend said she was showing it to you I'm not quite sure what that status is but if it is to be tendered I'd object to it as not being relevant to the issues before you today.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, look I'm going to mark them as having been shown to me, they're relevance is a matter for a different situation. I'm trying to get to a conference as soon as I can.

PN77

MS RONALDS: I appreciate that, that's why I'm concerned about this your Honour, we seem to be travelling down a path that we don't need to travel.

PN78

THE SENIOR DEPUTY PRESIDENT: Correct.

PN79

MS WELLS: We think it's essential that we travel down this path.

PN80

THE SENIOR DEPUTY PRESIDENT: Why do you say that?

PN81

MS WELLS: I'm very close to being able to illustrate to you why, your Honour.

PN82

THE SENIOR DEPUTY PRESIDENT: Well you'd better be Ms Wells.

PN83

MS WELLS: Looking at this staff meeting minutes, these were issues raised regarding the new CEO Clay Freeman. I won't take you through all of them your Honour but Clay Freeman as you know is the executive officer who terminated Mrs Cranney and you can see that the staff in attendance at this meeting which included all the staff, missed her there, had problems with in particular the fact that Mr Freeman had no accounting knowledge and implemented a change in process of undertaking the accounts which has resulted in a big mess.

PN84

Calls the accountant for advice incurring a cost for every call when staff have already the knowledge to undertake the job. Account reconciliation can only be done when the bank statement arrives, not weekly. Asked staff to demonstrate to him how to undertake certain tasks and after a few minutes leaves claiming he had more important things to do. With MYOB training he doesn't appear to want to learn things or admit that he has no knowledge of this field. I want you to think about these problems in relation to the summary dismissal letter your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: I'll only be thinking about them if I were conducting an investigation into an unfair dismissal, I'm not.

PN86

MS WELLS: I understand your Honour but I'm going to skip a number of other pieces and take you straight to the heart of why we think that the BSA is trying to avoid their obligations under the agreement. There are a number of other pieces of evidence that we can illustrate to this if necessary in arbitration, hopefully not. The piece I'll get to, in 2002, a number of changes occur, an audit report is undertaken and again financial irregularities and problems are cited by independent auditors.

PN87

Changes are required of the organisation. Mr Clay Freeman sends out a notice to illustrate changes in reporting lines. The first notice and the only notice that he would be able to produce evidence of in October 2002 to talk about different ways of authorising expenditure etcetera. That's because another report had been undertaken on the Bankstown Students' Association to illustrate that. In the year previously $300,000 was missing from the accounts. All unaccounted for. So the organisation has big financial problems.

PN88

While in January Mrs Cranney and other union members are wondering what's happening with the investigation into the finances that they have requested and been given no information about that. I'll give you the last document before hopefully we go into conciliation, your Honour, which I hope illustrates the professionalism and high regard Mrs Cranney has been thought of even close to a dismissal.

PN89

THE SENIOR DEPUTY PRESIDENT: The letter of 21 February 2003 to Mrs Cranney from - well it's unsigned but it is from the human resources co-ordinator.

PN90

MS WELLS: The second page your Honour is signed by David Loncar, President, Bankstown Students' Association.

PN91

THE SENIOR DEPUTY PRESIDENT: Is it in that formal attachment to the letter of 21 February?

PN92

MS WELLS: They came together in the mail and a note on the first page - - -

PN93

THE SENIOR DEPUTY PRESIDENT: All right then I'll mark the two documents exhibit NTEU4.

EXHIBIT #NTEIU4 LETTER TO MRS CRANNEY FROM HR CO-ORDINATOR AND ATTACHMENT DATED 21/02/2003

PN94

MS WELLS: While Mrs Cranney was waiting for information on what was happening with the investigation, variations men in suits came to the Bankstown Students' Association at different times. The employees were asking about who they were and were told that they were people tendering for business. While Mrs Cranney sought to meet the independent investigators in December and January to try and contribute to the investigation and also to find out information about the changing atmosphere in the workplace, she was then, as you would remember dismissed on 7 February 2003. These two pages came stapled together in the mail to Mrs Cranney dated 21 February 2003.

PN95

THE SENIOR DEPUTY PRESIDENT: So that's after her dismissal?

PN96

MS WELLS: After her dismissal. The second page signed by David Loncar:

PN97

Make sure that Hazel knows as a staff person even though she is ...(reads)... the decision was based on -

PN98

etcetera:

PN99

...and the partnership is proposed to commence on Monday March 3rd 2003 and the council encourages all employees to apply for the positions that are available.

PN100

So Mrs Cranney is encouraged to contact in reference to this kind of work, the exact same work that she used to perform before her position was outsourced to this organisation. She is encouraged to contact Clay Freeman from David Loncar. In fact, it was specifically sent to her at home so she'll get it, she's encouraged to apply for her old job. As you can see the cover letter encourages her to apply for her old job from Eurest.

PN101

Unfortunately, your Honour, while the investigation has proceeded and Mrs Cranney has assumed that information will be provided to her and that procedural fairness will be applied to her, the organisation without advising or informing any of the employees, remember the requirement to consult with employees, no information was given to the employees about the outsourcing proposal. Outsources the job and avoids of course the redundancy provisions of the agreement by incorrectly summarily dismissing her just prior to outsourcing her job rather than paying her out as the union agreement would require if her job and her job only was to be outsourced to this organisation.

PN102

So you are right your Honour, I finish with the assertion that this is obviously a collective dispute in relation to the application of the union agreement that there be the members have struck with their management and I refer to two decisions which empower the commission to assist us to resolve the dispute today.

PN103

First is George Weston Foods, Australasian Meat Industry Employees Union v George Weston Foods. More specifically, the decision and dispute related to the sections of the agreement immediately relevant to the commission's jurisdiction in the matter are clauses 2.8.8 and 7.2 and they were the unfair dismissal clause in that agreement and the settlement of disputes clause. Specifically in that dispute the union representing it's members in regard to being unfairly terminated, sighted the unfair dismissal clause and the dispute settlement clause and through the assistance of the commission had those two workers reinstated and the agreement properly applied.

PN104

The second decision your Honour which empowers the commission to assist us today is the Maritime Union of Australia v Australian Plant Services. This decision is very similar to our current issue. Here the settlement of dispute re disciplinary action clauses at paragraph 3 of that decision:

PN105

In essence the MUA contends that the disciplinary process in clause 12 of the agreement has not been applied in accordance with its terms.

PN106

And pages 21 and 22 of that decision outline the disciplinary clauses of that agreement and what has to occur and that the commission in that decision sees that those two clauses, the disciplinary action clause and the disputes resolution clause were not properly applied and seeks to make orders in accordance with his decision.

PN107

THE SENIOR DEPUTY PRESIDENT: You might for the sake of completeness give me the print references to those cases.

PN108

MS WELLS: Yes, your Honour. The Australasian Meat Industry Employees Union and George Weston Foods, Print 924011, C No 2001/3511, for The Maritime Union of Australia and Australian Plant Services, Print No. 908236, C No.2001/472. We seek the assistance of the Commission to resolve the dispute today. Thank you, your Honour.

PN109

THE SENIOR DEPUTY PRESIDENT: Ms Ronalds.

PN110

MS RONALDS: Thank you, your Honour, if I could just briefly comment on the factual matrix that's been presented to you today before I turn briefly and I am conscious we are here for the informal process but I think it would be useful if your Honour understood the position that the association takes which is at variance with the interpretation of the NTU of the agreement.

PN111

THE SENIOR DEPUTY PRESIDENT: We wouldn't be here if it wasn't.

PN112

MS RONALDS: No, indeed. It varied very markedly and as you are aware it's a students association and at various times the president of the students association changes. In June 2002 the president changed to Mr Vicaro who is here with me today and who has been referred to and the students association had been suffering a fiscal loss for some time and quite a serious amount of money was unaccounted for and he set in train certain processes to address and review what was happening in order to endeavour to ascertain where those losses were arising, how they were occurring and how such substantial sums were missing.

PN113

Now, what's interesting about where the NTU starts the process which is the end of October is of course not where the process started at all. The association is run by a council of students and I am sure your Honour is well familiar with the structure of students associations. They obtained the assistance of an independent auditor who they found in the phone book and that work started in early September to try and identify where the losses were occurring. That auditor, Jason Ruskowski, did certain works to look at where the process was and what was happening.

PN114

He identified two areas where there appeared to be loss. One was handling of cash and one was handling of stock. On 9 October he spoke to the council and on 18 October he had a meeting with Mrs Cranney and Mr Vicaro and another in a private meeting to endeavour to explore with them where the losses arose. Mrs Cranney at that stage was unable to offer any explanation so that was the beginning of a process which, as I have indicated, was prior to, quite some time before, where you were taken by the NTU.

PN115

On the same day there was then a subsequent meeting with two members of the operational staff and Mrs Cranney and others and, again, Mrs Cranney could offer no explanation as to the loss. Then there was a bigger staff meeting on the same day when Mr Vicaro invited members of staff to assist him with obtaining the answers to where the loss was located and they were invited to either, if they felt unable to raise the issues in this general bigger meeting, to approach him at any time.

PN116

So when my friend took you on page 12 to (r) and stressed that Mrs Cranney and her colleagues had themselves asked for the initiation of an investigation what in fact they were asking for was someone else to look at the accounts because they didn't like the results of the first look at the accounts by the independent auditor and that's where that process started. So in fact to elide over or attempt to elide the beginning of the process which led to the request the University of Western Sydney is the university of which the Bankstown Students Association is part and they then established an audit process, not an investigation in the formal police sense if I could call it that but an audit process to identify where the funds were missing from.

PN117

They have experienced auditors who audit the university's account and they came in to assist the students union because of the quantum that was identified of around $100,000 that was missing. You would appreciate that's a significant amount of funds to be missing from the students accounts and that process continued on. Now, at no stage was Ms Cranney who was the operations manager and responsible both for cash and stock handling was she able to, despite these meetings and an invitation to provide information has she offered any explanation and that's one of the serious matters which you can see from the dismissal that gives rise to the dismissal.

PN118

Could I indicate for the record, as happens with computers, regrettably the numbering in the dismissal letter has gone awry. I think perhaps for convenience, while one can't obviously alter a document subsequent to the signing of the document, for convenience if your Honour turns to page 2 you will see a (b) that says, "failure to install". That should really properly be numbered No.4 and (c) should be numbered No.5. Then underneath there is an inset (d) that says, "failure to account" that should probably be numbered No.6.

PN119

Then I think you see the letter falls in a more natural sequence. It's one of those - - -

PN120

THE SENIOR DEPUTY PRESIDENT: I had noticed that it was very strange.

PN121

MS RONALDS: Yes, words go awry occasionally and this time it's gone awry. It renumbers itself sometimes when it's emailed. So that is regrettable but I trust that that will assist. So that the process is the students association says it much longer and much more complex than the way it was presented to you earlier. So that's one area that obviously there is some disagreement about.

PN122

There has been some further work done by the independent auditor and if I could tender a copy. I appreciate my friend hasn't seen this but the details are probably not as pressing as the overall process. You will see it's a letter from Jason Ruskowski, or J.P. Ruskowski & Company, Chartered Accountants, dated 20 March 2003, two pages with a number of annexures.

PN123

THE SENIOR DEPUTY PRESIDENT: I will mark these in the same fashion as I have in the other one. We need to be able to chase them down.

PN124

MS RONALDS: That's right. I don't intend to take you through the detail except to say that this further work that's been done and I appreciate that there is law on that matter and I don't think we need to trouble ourselves about the sort of law relating to the subsequent work at this stage except to say that it is not about new circumstances but it is about circumstances that had occurred prior to the termination so that the circumstances themselves are the same.

PN125

THE SENIOR DEPUTY PRESIDENT: I will mark the bundle of documents headed by a letter of 20 March 2003 from J.P.Ruskowski & Co to the Students Representative Council, Exhibit BSA1

MFI #BSA1 BUNDLE OF DOCUMENTS HEADED BY A LETTER DATED 20/03/2003

PN126

THE SENIOR DEPUTY PRESIDENT: What I am in fact doing Ms Ronalds and Ms Wells is marking them all for identification.

PN127

MS RONALDS: Thank you. If I could then take you to the enterprise agreement itself and you've been taken through it but perhaps I could summarise the association's view which is this: they have a very different interpretation of the terms of the agreement as it applies in this situation. The association says this is a situation which applies to serious misconduct and the clause in 3.11 applies only to two limited circumstances. The discipline procedure - - -

PN128

THE SENIOR DEPUTY PRESIDENT: You mean the whole of 3.11

PN129

MS RONALDS: The whole of 3.11 arises when one looks at the way it is applied to unsatisfactory performance and to misconduct. Now, it is possible to comply with it at the beginning part, that is, that it must be made in accordance with this clause and for serious misconduct it appears that the only provision that applies is then the first sentence of 3.11(2) which resides at the top of page 15. Disciplinary action should be used as a last resort.

PN130

It then lists a number of matters and one method by which it is possible to see that it is not a code for all sorts of behaviour or conduct and that it doesn't apply to serious misconduct is that if one turns to page 19, if I could trouble your Honours to do that, which is the provision under misconduct you will see that the discipline committee shall determine the appropriate action to be taken which may include, and then down the bottom, dismissal with four weeks notice.

PN131

When one turns back to 3.10 that makes proviso for dismissal without notice but dismissal without notice is not an outcome that is available pursuant to the discipline process under misconduct and one can say that that's for a fairly clear reason, that there has long been a dichotomy accepted by this Commission and equivalent commissions between misconduct and serious misconduct and that is reflected in the whole approach of the discipline provisions, that is unsatisfactory performance and misconduct are matters which may be cured by certain ways of approaching it but serious misconduct which justifies summary dismissal is incurable because of the very nature of the acts which lead to the view that there is serious misconduct.

PN132

THE SENIOR DEPUTY PRESIDENT: It used to be called serious and wilful?

PN133

MS RONALDS: Yes.

PN134

THE SENIOR DEPUTY PRESIDENT: Is there any use of the phrase serious misconduct in the agreement?

PN135

MS RONALDS: No.

PN136

MS WELLS: Your Honour, there is. At the end of discipline clause on page 19:

PN137

Dismissal for misconduct may only occur where a disciplinary committee has determined that the conduct of the staff member represents a serious and fundamental breach.

PN138

And serious misconduct is talked about - - -

PN139

MS RONALDS: I don't resile from my position that the term serious misconduct is not used absent any interruption from my friend.

PN140

THE SENIOR DEPUTY PRESIDENT: No, it isn't used in those words.

PN141

MS RONALDS: And when one looks at 3.10.10 which is at page 14, the provision which was relied on, it clearly picks up the current law on summary dismissal in terms of:

PN142

...conduct which justifies summary dismissal such as that which constitutes a criminal act.

PN143

I should note that these matters have been referred to the police, they are considered serious matters and the police have indicated that they will commence an investigation when further documents are provided by the Students' Association. Those documents are now just about completed and will be provided to the police in a short time for them to conduct an investigation and the Association doesn't hold itself out as being an organisation which could conduct such an investigation; that's what the New South Wales Police are there for. I just add that as a side note.

PN144

So that's essentially where the parties part company about the application and it may be that at the end of the day that's a matter that has to go to arbitration but in terms of the approach for today as I understand it there are two separate issues and perhaps with seemly and timely progress of the matter we could separate those two issues. One is about the termination of Mrs Cranney; that's an issue, and the other is about the concerns of the operation of the agreement for the existing employees and as I understand the way it has been put by my friend they are two matters she identifies, in essence two strands to one dispute or maybe two separate disputes, it's a bit unclear but there are possibly two strands to the dispute as she has put it, as I understand the way she has cast it in terms of the resolution by members at the workplace. When we move into informal conciliation I think it would be useful if they can be addressed in two quite separate ways.

PN145

THE SENIOR DEPUTY PRESIDENT: That's all you wish to say?

PN146

MS RONALDS: That is in summary what the position is.

PN147

THE SENIOR DEPUTY PRESIDENT: We will go into conference.

SHORT ADJOURNMENT [2.56pm]

RESUMES [3.51pm]

PN148

The Commission makes the following statement about this matter: there is dispute about the extent of the disciplinary procedures which is being addressed by the parties in the Commission. As for the position of Mrs Cranney, there is consideration being given to possible means of settlement, although there is no guarantee of an outcome. The parties are to report back to the Commission at 10.00 am on 13 May next. In the meantime the parties are encouraged to discuss the matter themselves. I adjourn this matter accordingly. I adjourn the Commission indefinitely.

ADJOURNED ACCORDINGLY [3.52pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEIU1 LETTER TO MRS H. CRANNEY FROM BANKSTOWN STUDENTS ASSOCIATION DATED 07/02/2003 PN18
EXHIBIT #NTEIU2 LETTER TO MR LONCAR FROM DR M. DONALDSON DATED 28/02/2003 PN24
EXHIBIT #NTEIU3 BANKSTOWN STUDENT ASSOCIATION'S MANAGEMENT STRUCTURE PN73
EXHIBIT #NTEIU4 LETTER TO MRS CRANNEY FROM HR CO-ORDINATOR AND ATTACHMENT DATED 21/02/2003 PN94
MFI #BSA1 BUNDLE OF DOCUMENTS HEADED BY A LETTER DATED 20/03/2003 PN126