C2003/1253, Transcript of Proceedings [2003] AIRCTrans 973 (21 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2003/1253

NATIONAL TERTIARY EDUCATION INDUSTRY
UNION

and

BATCHELOR INSTITUTE OF INDIGENOUS
TERTIARY EDUCATION

Application under section 170LW of the Act
for settlement of dispute (certification
of agreement) re suspension without pay
of an employee

DARWIN

4.29 PM, WEDNESDAY, 5 MARCH 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Yes. I will take appearances please.

PN2

MR M. WHEELER: If it pleases the Commission. Appearing with me is MR B. DAVIS.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR I. GRANT: If it please the Commissioner. I am appearing on behalf of the Batchelor Institute.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Grant. Yes, Mr Wheelan.

PN6

MR WHEELER: Mr Commissioner, we're here on a matter that comes out of the suspension of Mr Davis without pay which we believe breaches the objectives of the current EBA which operates at Batchelor, which is the Batchelor Institute of Indigenous Tertiary Education academic staff agreement 2000. We believe that the action taken by the Chairman in this matter, or the Director in this matter, was harsh and breaches the objectives of the agreement which is clause 3.

PN7

And, in particular, clause 3.2(c) which requires the parties to maintain and foster an industrial relations environment within which the parties of this agreement may bargain and consult at the enterprise level to their mutual benefit. The reason that we have problems with that is in relation to an article that appeared in the Northern Territory News and a subsequent letter that came out from the Director suspending Mr Byran which states, Mr Davis, sorry which states that there is one issue and one issue only is the article in the paper. And I suppose to assist with that I need to tender some documents.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN9

MR WHEELER: And the photocopies are not of good quality I actually have the original items.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I will return that to you but if you can hand up a copy and I will take the original and I will also return the original to you when I've read it. It is not the one about the dope grower is it?

PN11

MR WHEELER: No. Interestingly I said that when I photocopied it, that was the only part that came out and I thought how was I going to describe to the Commission. The other document that I wish to - or one of the other documents that I wish to tender to the Commission is the letter sent to Mr Davis in relation to that from the Director.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The newspaper article is NTU1. The letter is NTU2.

EXHIBIT #NTU1 NT NEWS NEWSPAPER ARTICLE

EXHIBIT #NTU2 LETTER TO MR DAVIS FROM THE DIRECTOR, BATCHELOR INSTITUTE OF INDIGENOUS TERTIARY EDUCATION

PN13

I can read the photocopy, thank you. Just one minute.

PN14

MR WHEELER: The action taken by the Director is actually the harshest possible action that is allowed under the EBA. And which, I would suggest, is reserved for serious misconduct. And we don't believe that this is serious misconduct. The Director took the action without conducting any formal investigation just contacted Mr Davis on the basis of the article that I've handed up to you and comments that were reported.

PN15

Where, in fact, when the union contacted the Northern Territory News and, in particular, the reporter, received an email response to my questions as to what role Mr Davis actually played in that interview. And I would like to tender that email if possible.

EXHIBIT #NTU3 EMAIL FROM NORTHERN TERRITORY NEWS

PN16

Is there any more exhibits.

PN17

MR WHEELER: No.

PN18

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN19

MR WHEELER: Sorry?

PN20

THE SENIOR DEPUTY PRESIDENT: No. I just need to release my associate. If there were I was going to get her to hand them all up and I was going to deal with them. Very well.

PN21

MR WHEELER: If I can draw the Commission's attention to the second page. And on the second page, two paragraphs in particular which are the ones that starts:

PN22

Mr Guinness provided us with much of the background information which we used in the story while Mr Davis remained focussed on the issues relating to the indigenous career structure within the organisation. He also referred to the conditions of Aboriginal communities and problems they represented when they arrived at Batchelor.

PN23

The second paragraph goes on to say:

PN24

At no point during our conversation did Mr Davis attack the credibility or capability of senior management at Batchelor College, simply highlighted the issues associated with his own area of concern in relation to staff.

PN25

Had they rung the NT News and spoken to the reporter, had they got some of the facts I don't believe that they would have taken the harsh action that they did which was suspending Mr Davis without pay under clause 56 of the EBA. Again, we believe that clause 3 of the EBA, which is the objectives, is the one that should apply. And that there has been no investigation, no formal following of the grievance procedure nor has - Mr Davis has prepared a response to the letter but at this stage he has not, well it was issued to the employer today.

PN26

But we still maintain that the suspension without pay is harsh and, in fact, unconscionable to the situation and encouraging a decent industrial environment for the parties to negotiate a resolution to this matter. If it pleases the Commission.

PN27

THE SENIOR DEPUTY PRESIDENT: Is there anything in the agreement that permits the standing down - the suspension without pay of an employee?

PN28

MR WHEELER: Yes, Commissioner. If you go to clause 56.6.

PN29

THE SENIOR DEPUTY PRESIDENT: I don't have 56.6. I have - - -

PN30

MR WHEELER: If I can approach the Bench I can show you my copy.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Go the earlier bit. All right. Thank you for that. I will return your agreement in due course.

PN32

MR WHEELER: Thank you. Under that clause it says that the Director does have the power to suspend the employee. But I would suggest to you in the light of the agreement and the objectives of the agreement that would be for serious misconduct or serious breaches of the code of practice. We don't believe that that is the case.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it refers to suspected breaches of such a serious nature, whatever that means.

PN34

MR WHEELER: Yes.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that. Just let me gather my papers. Mr Grant?

PN36

MR GRANT: Yes, your Honour. With all due deference to the comments from my colleague, the Institute does, in fact, believe that the comments that were made to the Northern Territory News to be of - to have such severe possible consequences with relation to the students and the people who might send students to the Institute and, indeed, to the professional standing of the people within the Institute that the Director took that particular action. I think it is appropriate to probably say that there were a chain of events that led up to this happening and it is probably worthwhile recounting some of those things. Firstly though, the Institute besides taking action under the EBA, particularly under clause 56.6, also decided to follow the code of conduct and I will give this to the Commissioner if I may.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I will mark that I1.

EXHIBIT #I1 CODE OF CONDUCT

PN38

MR GRANT: And in particular, in looking at the code of conduct reference should be made to clause 3.3, 4.5, 5, 6.1, 6.2 and 12. All of those clauses go to the desirability of an employee conducting themselves in such a way that they do not bring disrepute to the Institute or to the officers in that Institute. And that was one of the documents that has been relied upon to bring about the suspension without pay of Mr Byran. In the meantime, a number of things have transpired. In fact, it seems that events are catching up with us in terms of the time frame of this whole thing is operating in despite that the afternoon has to be the longest afternoon on record for me I think. But the - a number of things have happened.

PN39

First of all, going back to 21 February there was a meeting held between the Institute Chairman, the Chairman of the Institute Council, Gatjil Djerkura, Mr Davis and myself. And at that meeting Mr Davis put forward his desire to receive, as he saw it, some form of redundancy payment which would be payable to him upon his resignation from the Institute. It was explained at that meeting that redundancy wasn't an option in view of the fact that the Institute could not possibly do without the role and, in fact, it is an important role within the Institute. One of the three most senior roles within the Institute.

PN40

However, at the time the Chairman did say to Mr Davis that a payout would be possible and that removal costs would also be a possibility and he advised Mr Davis to have a think about what the quantum might be and to return to him. Now, as far as I am aware, that didn't happen at the time or not for some time afterwards. And Mr Davis had indicated that he was going to seek the advice from his union as to may be what those sorts of amounts might be. And also to the best of my knowledge, the union was unaware that offer had been made.

PN41

And it wasn't until just recently that there has been some negotiations or some conferencing between Mr Davis and the union as to what might be involved. In the meantime, it is also my advice that stemming from a number of conversations that took place on the evening of Saturday, 1 March, that - and conversations with the Chairman of Council initiated by Mr Davis that once again the Chairman was amenable to a payment of monies in relation to an ex gratia payment upon Mr Davis' departure from the Institute at a date to be nominated by Mr Davis in this instance. What date that might be, of course, would then depend very much so upon what the entitlements that Mr Davis would get in addition to the ex gratia payment. But the amount of money that was talked about was $25,000 which was to be inclusive of a sum required to transport Mr Davis and his family from the town of Batchelor in the Northern Territory to Townsville in Queensland.

PN42

And I'm not sure what that might have amounted to but judging from the prices that are being asked lately, probably somewhere in the order of $5,000, I think. Since that time there appears to be some disagreement about the outcome of that process. Because part of the process was that Mr Davis would file an apology with the Chairman, which would be an apology directed towards the good name and standing of the Deputy Director and the Director. And the withdrawal of a number of remarks which were alleged to have been made in the press articles which were held by the Institute to be misrepresentative of the activities that were actually occurring at the Institute.

PN43

And, indeed, some of the aspects of the state of play with respect to students and academic staff. At this stage of the game, and as late as today, there has not been a finality reached in terms of the wording of the apology and there does appear to be a hiccup in terms of the actual amount of money that is being put forward by Mr Davis in relation to the payout. I do believe that the financial aspects are able to be worked out. I do believe that the apology document will be able to be worked out as well but I did try to do that today with my principals at Batchelor but they were uneasy about trying to do it over the phone and they wanted some more time to think about what the apology document might be.

PN44

THE SENIOR DEPUTY PRESIDENT: So that is, in effect, saying the departure package, as it were, however described, might obviate the need to address the disciplinary issue at all.

PN45

MR GRANT: Yes. One of the other things that went along with that package, so to speak, your Honour, was the fact that the suspension would also be withdrawn. You might remember I said that events keep on overtaking things and, in fact, Mr Davis had filed a workers' compensation claim with the Institute some few weeks ago. And we received a letter from the insurers, which I would like to pass to you.

PN46

THE SENIOR DEPUTY PRESIDENT: I'm tempted to cut you off because the longer you go the more complicated you make it. Go ahead.

PN47

MR GRANT: There is something I need to say up in the corner.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. Sorry, it is late in the day. Thank you. So there are two documents?

PN49

MR GRANT: They basically allude to the fact that because Mr Davis has filed a workers' compensation claim he is going to paid regardless of the suspension. And, I think, that point at this stage is worth noting.

PN50

THE SENIOR DEPUTY PRESIDENT: I see.

PN51

MR GRANT: However, and that is the reason for me making it.

PN52

THE SENIOR DEPUTY PRESIDENT: I will mark the documents. The insurer's letter exhibit I2 and the facsimile to Mr Davis I3.

EXHIBIT #I2 INSURER'S LETTER

EXHIBIT #I3 FACSIMILE TO MR DAVIS

PN53

MR GRANT: So in a nutshell, despite the events, and it does go back some time, some months, I think, in terms of the relationships that exist within the Institute at that senior level, I do believe this problem can be resolved but it probably is not going to be resolved until the wording of the apology document meets the requirements of those particular people in the Institute. That is to say, the Deputy Director and the Director, who believe they have been wronged by Mr Davis' statements. Reported correctly or not, they're not to know that those were not reported correctly or not.

PN54

I am now in receipt of that document that Mr Wheeler has given to your Honour today and I will take that back with me tonight. And I'm hoping that, with some goodwill, people will be able to get together tomorrow and work through this. I suggested that perhaps Mr Davis ought to go into conference with the Director, Ms Argon, and see if they can work this out between them. And may be have the Chairman of the Council on tap through the meeting by phone because he is at Nhulunbuy and see if they can work something out. Nothing is insurmountable but up to this point in time, the Chairman of the Council was not very happy with the turn of events today and, in fact, had instructed the Director that we were to take the offers off the table and return to - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Sorry, what was the turn of events today?

PN56

MR GRANT: I think this happened because of the conversations between Mr Davis and the Chairman last night which were then relayed to, and with the paperwork, relayed to the Director today.

PN57

THE SENIOR DEPUTY PRESIDENT: I see.

PN58

MR GRANT: And, I think, perhaps also that - and this was paperwork that both my colleague, Mr Wheeler, and Mr Davis were working on during the early part of today.

PN59

THE SENIOR DEPUTY PRESIDENT: Yes.

PN60

MR GRANT: At the moment the Institute is not happy with that paperwork and it needs to be addressed. It is indeed the apology document and the deed relating to the amount of money and I do think that we can work through it but it probably needs another day at the grindstone to do that. If it please the Commission.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Wheeler, you've raised essentially a question of the operation of the disciplinary procedure and, in a sense, an important question of what does a suspected breach of such a serious nature mean that warrants a suspension with or without pay. Presumably there might even be some differentiation between with and without. And obviously that requires a level of seriousness to warrant a standing down absent any investigation in order to allow the substantive investigation to occur.

PN62

But it appears from what has been put by Mr Grant that there are other processes in train which might obviate the need to resolve that issue in this case. And that in any case in the interim it appears through the workers' compensation Mr Davis will in fact be paid by that route in any case. In those circumstances what is your view as to what I understood Mr Grant to be putting effectively that if the parties were given a couple of more days they may be able to resolve, not only the substantive, but the longer term issues between the colleagues and Mr Davis?

PN63

MR WHEELER: It was always our intention to enter into negotiations. The issue that we had and the issue that we believed warranted this application was the without pay part of the suspension. In light of the dispute settlement procedure, the union has lodged - - -

PN64

THE SENIOR DEPUTY PRESIDENT: Which clause is that, sorry.

PN65

MR WHEELER: Sorry. Unfortunately, you've got my copy of the - - -

PN66

THE SENIOR DEPUTY PRESIDENT: I should be answering with my own question.

PN67

MR WHEELER: Yes, I think it is clause 13.

PN68

THE SENIOR DEPUTY PRESIDENT: There you go. Pleasing to know so little used because things are generally so harmonious out there between the parties. Yes.

PN69

MR WHEELER: The union has taken the first required steps under the dispute settlement procedures and notified, had Mr Davis notify his supervisor of the dispute. And it was just the major concern that we had is the suspension without pay. In light of the other stuff that Mr Davis, Mr Grant was talking about, there has been some discussions between the parties and that is why the delay. Which was a sum of money, was my understanding, was agreed to and that there was an apology. One of the difficulties we had was apologising for something that wasn't said.

PN70

But that was not an immovable object. We were happy to sit down and discuss it to the degree that we actually thought we had an agreement with the Institute on the way in subject to some fine tuning of the wording. I have since been informed that that is not the case.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes. Although Mr Grant seems hopeful that that can be case with a bit more discussion. And it would seem eminently sensible from both parties perspectives that if there appears to be a common view that the employment relationship will cease with some arrangement between the parties and then it would, one would hope, sufficient common sense would be applied to overcome the final hurdle if I can put it that way.

PN72

MR WHEELER: I couldn't agree more.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. Well, in terms of the immediate issue before me, I'm not sure any others are formally before me, but do you have any objection if the matter is adjourned on the basis that it can be brought back. I notice in the dispute resolution procedure there is a quite generous vesting of power in the Commission. Conciliation in the first instance, arbitration within power or absent power, an acceptance by the parties to be bound by any recommendation. But frankly, whilst it is an important issue of how serious is serious to warrant standing down with pay and/or as a separate question without pay, I'm not entirely sure that - if we can't reach agreement on that issue.

PN74

We should put the parties to the problem of an arbitration in the context where it might not be necessary in any case and is a complex set of circumstances which might not necessarily give the best answer to a general question. So what I'm suggesting is is there any objection if the matter is simply adjourned at this stage to be relisted, if required, at the request of the union. If the matters aren't resolved between the parties in the meantime you can have the matter brought back on for conciliation or, indeed, arbitration or a binding recommendation if that is ultimately required.

PN75

MR WHEELER: There is no objection from us.

PN76

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you for that.

PN77

MR GRANT: No objection from the Institute, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Well, I will adjourn the matter on that basis and I wish the parties well in their continuing discussions and I'm hopeful that the parties directly can resolve all matters remaining between them. If the matter does need to be relisted, my office should be notified. It may be that another member deals with the matter given that I haven't got into substantive conciliation and there are, I think, three different members travelling to Darwin in the second half of March and the first week of April. Thank you for your assistance and I will adjourn.

ADJOURNED INDEFINITELY [4.57pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTU1 NT NEWS NEWSPAPER ARTICLE PN13
EXHIBIT #NTU2 LETTER TO MR DAVIS FROM THE DIRECTOR, BATCHELOR INSTITUTE OF INDIGENOUS TERTIARY EDUCATION PN13
EXHIBIT #NTU3 EMAIL FROM NORTHERN TERRITORY NEWS PN16
EXHIBIT #I1 CODE OF CONDUCT PN38
EXHIBIT #I2 INSURER'S LETTER PN53
EXHIBIT #I3 FACSIMILE TO MR DAVIS PN53