C2003/6820, Transcript of Proceedings [2004] AIRCTrans 1891 (21 May 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N 511

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER THATCHER

C2003/6820

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

and

UNIVERSITY OF WESTERN AUSTRALIA

Application under section 170LW of the Act
for settlement of dispute (certification of
agreement) re The University of Western
Australia Academic staff Agreement 2000

PERTH

10.03 AM, TUESDAY, 11 MAY 2004

Continued from 01.04.04

PN183

MS T. BORWICK: If it please the Commission, I represent the National Tertiary Education Industry Union.

PN184

MR D. PARKER: May it please the Commission, I continue my appearance on behalf of the University.

PN185

THE COMMISSIONER: Today's proceedings have been listed for, I think it is for, directions and conciliation and follows the issued of directions on 1 April, which each of the parties has complied with. Perhaps I might hear form you first, Ms Borwick, of where you think we should be going today.

PN186

MS BORWICK: Well, Commissioner, I have come today prepared to in some way reply to the submissions that have been made by the University if that is how you would like to proceed. The union, I think, in its - I mean, there are two sets of submissions before the Commissioner. I think the Commissioner does need to, what we say, determine whether it does have jurisdiction to deal with this matter and if it needs further submissions to that effect, I am prepared to put those to the Commission.

PN187

THE COMMISSIONER: When we met on the last occasion, I think the University was not saying whether or not it was going to take jurisdictional objections because at that stage, I think the University was saying they really needed to see and understand the substance of the dispute and understand the relief being sought. I think your submission has outlined that and I wanted to refer to - I just wanted to ask a couple of questions about that. And I will hear from Mr Parker in a minute but it seems to me the University has, having seen that, the University is now saying: well hold on, we do say we have jurisdictional objections.

PN188

And if that is so and conciliation fails, I wasn't proposing to hear the jurisdictional hearing today because this is the nature of a directions hearing and a conciliation conference. But would be helpful for me to know whether, in the light of that response, to what extent you think we could pursue conciliation today, to what extent, to what sort of timing or resource wise the union may need to respond to those, what I see as - and I will let Mr Parker speak for himself, jurisdictional objections. I mean, up until now, I think you have been consistently saying that the dispute is your view, you are not agreeing with the University's proposition that Mr Parker - contract was frustrated, appears terminated at the initiative of the employer.

PN189

And I think you had been saying that the remedy was to determine that clause 38 procedure should apply without but you are wanting to, I think, concede or seek agreement, with the University that the matter not be referred to the Disputes Committee. In your written submission you are now saying, well, I think paragraph 25 seeks further relief. So I am not sure - I don't have a lot of queries about your submission, I suppose, other than I wanted to query whether there was any tension between clause 24 and clause 23. And I don't wish to put you on the spot today, if it is going to be something outside the conciliation proceedings but I wouldn't mind hearing about that in a conciliation forum or if you wish to, today.

PN190

Because on the one hand you seem to be saying: hold on, if we are saying that you don't dispute that the contract was frustration, clause 16 does not apply. Query on that. On the other hand you say that the union just can't sit back and be silent on the actions of the University and allow them to basically make a decision that a contract is frustrated. And I am not clear of exactly what you want to do about that. If on the one hand you are saying the first, I just am not sure how it follows.

PN191

MS BORWICK: I guess that is why we are asking for the assistance of the Commissioner in providing some assistance in, I guess, supporting the view that the union does have. Because whet we are saying is that the University came to its view about a frustration of contract.

PN192

THE COMMISSIONER: What should they have done? They obviously formed an opinion?

PN193

MS BORWICK: Yes, I think what the University should have done was when it sought an order from the Federal Court as to the meaning of clause 16, it should then have gone further than that to then test whether frustration in the context of Professor Red would - the facts of that should apply. And in the submissions that we have put to - - -

PN194

THE COMMISSIONER: I thought they tried that though and I thought - I haven't read that decision for a while but I thought they tried that and I thought because the Judge was sort of saying, well, he can't deal with that hypothetically at that point.

PN195

MS BORWICK: Correct. Correct.

PN196

THE COMMISSIONER: So you are saying they should have gone back a second time after having found a - - -

PN197

MS BORWICK: That clause 16 does not necessarily apply if there is a frustration of contract.

PN198

THE COMMISSIONER: You would have liked to have seen them go back to the Federal Court a second time?

PN199

MS BORWICK: Well that, if one reads, and I understood the union had put that in its submissions to you in terms of going to the transcript of those proceedings and going to the submissions made by the University in those proceedings was that the Federal Court was not being - Carr J is not being asked to deal with the question of frustration of contract. Carr J was being asked to deal with an interpretation of clause 16 or the meaning of clause 16.

PN200

So that having not been determined, we say that has the contract of Professor - you know, has Professor Reid's contract of employment been frustrated. Those facts have never been tested and so what we are saying is that it can be for the Commission to come to a view, it can be for the Commission to come to an opinion, on that question via, we say, the dispute settlements procedure of the agreement.

PN201

THE COMMISSIONER: But you would have liked to have seen the University having formed that opinion, having tested it before the, say the Federal Court, before actually acting on that?

PN202

MS BORWICK: It should have been tested somewhere.

PN203

THE COMMISSIONER: Somewhere.

PN204

MS BORWICK: Somewhere.

PN205

THE COMMISSIONER: Before acting.

PN206

MS BORWICK: And in terms of a judicial function, it would have been probably - the best place would have been the Federal Court. But given that that has not occurred and the University has said that Professor Reid's contract has come to an end, then the union is left in a position where it is open to it to pursue something under - to pursue a remedy under section 170LW.

PN207

THE COMMISSIONER: Okay. Putting aside the question of conciliation for a moment, are you, and if the University hadn't put in what I consider, or subject to what Mr Parker says, sort of jurisdictional objections, would you have been saying to me today: okay, let us set this down for hearing, let us get directions about the issue of, say, in support of whether or not there was a frustration of contract and also, in support of the remedy. Would that be the next step?

PN208

MS BORWICK: Those would be the, we would suggest, that those would be the next steps. However, my understanding was that I would still be required to persuade the Commission that it does have the jurisdiction. But if we put that to one side then certainly, we are here to have the matter progressed and the reason why we are here is because we believe that conciliation and the use of the dispute settlements procedure has been exhausted. For example, in December the union did write to the University to say: look, we think what you have done is invalid. The University has responded to the union. In this it is saying: well, we don't agree with you. And so therefore hence why we are here, essentially, because we thought to expedite the matter we could come straight to the Commission using clause 38 of the agreement. And we had suggested that to the University.

PN209

THE COMMISSIONER: And I think you have said in doing that you would like to seek agreement with the University to waive the requirement that it go through to the disputes - - -

PN210

MS BORWICK: The disputes committee process.

PN211

THE COMMISSIONER: Process.

PN212

MS BORWICK: Yes.

PN213

THE COMMISSIONER: And so I will hear from Mr Parker on that in a moment. Perhaps I might hear from Mr Parker and then we might look at the conciliation - re-visit the conciliation matter.

PN214

MS BORWICK: Thank you, Commissioner.

PN215

THE COMMISSIONER: Thank you, Ms Borwick Yes, Mr Parker?

PN216

MR PARKER: Commissioner, thank you. In relation to directions and conciliation, the matters for today, sir you are correct in your reading with respect of the University's submissions in that having seen the clarification of what was actually in dispute or what was actually being put in dispute by the union. The University does indeed have some jurisdictional objections.

PN217

Sir, in an effort to be reasonably full in relation to the University's concerns, those submissions are reasonably extensive and also raise a concern about a discretionary consideration even if it is considered there is jurisdiction. But, sir, from what you have said and from my understanding of today's proceedings, now is perhaps not the time to go into that in great detail other than to say, in relation to directions, if the matter is to proceed, at some stage there will need to be a determination on the University's submission of the Commission's jurisdiction to deal with the dispute that the union is seeking to refer.

PN218

THE COMMISSIONER: Would you see that to be a two stage process?

PN219

MR PARKER: Sir, I think in the circumstances I do. I say that with some hesitation because there is always a questions about whether there would be further clarity on what is actually in dispute if matters are fully heard before the Commission. And it might be that it falls out one way or the other that the real issue for the Commission to determine is one that goes to the meaning and application of the agreement. So, I would have to concede that in some circumstances that is what occurs.

PN220

THE COMMISSIONER: See, that is my predisposition if it was to go that way, would be look at jurisdiction first before, then consider merits. But in this case, I have scantful facts about the actual circumstances surrounding the alleged - well, the frustration or alleged frustration, however one wants to put it, and it is very hard to when one is required under private arbitration powers to appropriate characterise a dispute, you know, sort of look at a dispute in a theoretical way.

PN221

MR PARKER: Yes, Commissioner.

PN222

THE COMMISSIONER: So, you know, I am wondering - I am not sure what sort of - how much evidence would be if we bundled it all together because it would be just in the interest of efficiency and convenience of the parties and the Commission.

PN223

MR PARKER: Sir, as I submitted earlier - - -

PN224

THE COMMISSIONER: I mean, would there be a statement of agreed facts.

PN225

MR PARKER: Sir, there is a combination, I think, involved in the long history of this matter of difficulties in agreeing on what are the actual circumstances. And also difficulties in agreeing on matters of law, one of which was the matter that was referred to the Federal Court. And that was a matter of - or a dispute about a matter of law, that is, the meaning of the agreement that the University understood was being - the dispute really arose between the University and the union but the University also understood that that was Professor Reid's view of the agreement as well. And it was that matter that was taken to the Federal Court to determine the matter about the meaning of the agreement and its application determination other than at the initiative of the employer. And indeed, its application in the various circumstances of termination at the initiative of the employer.

PN226

So there have been a variety of disputes. I would have to say, sir, my view based on our conduct of the matter on behalf of the University would be that there would probably be some difficulty in coming to agreed facts. I am not saying it would be impossible. It may be a matter that could be borne out. But, sir, I can anticipate that there would be at least one very significant dispute and I don't think I am speaking out of school in relation to this, Commissioner, and that is, what are the terms of Professor Reid's contract of employment. And that is a matter that seems to have arisen as a problem previously. The differing views has arisen as a problem.

PN227

So, sir, that might be something that can be dealt with by way of directions. It might be something that can be explored if the matter goes further but perhaps to return to the issue about how proceedings might run and whether there would be a preliminary issue about jurisdiction and a later issue about the merits, if I can put it that bluntly, sir, as I submitted earlier, I certainly would have to concede that there are circumstances in which it makes more sense for the Commission to be more fully appraised of the matters in dispute so that you can come to a proper determination with respect, sir, about whether or not the Commission does have jurisdiction in order to deal with that matter in dispute.

PN228

Sir, I would say that this is not one of those situations. The reason I say that is because the union has had ample opportunity to clarify what is in dispute and including the depth of that dispute. And the clarity it has provided is set out in the submissions that have been put before you. Sir, the University has provided its response to that and to proceed to a hearing that includes resolution of a whole range of factual issues, in circumstances where we would say, the union has had the opportunity to properly clarify what is actually in dispute, it may well, sir, to not be the most efficient way of dealing with these proceedings.

PN229

Sir, we would say, if the union says what it says is in dispute, and that is all, then the Commission is in the position to determine whether or not it has jurisdiction or not. So from that point of view, sir, in my submission, jurisdiction could be dealt with by way of a preliminary issue. But I would have to say, sir, I make that submission acknowledging the concern that you have raised.

PN230

THE COMMISSIONER: Yes. I mean, even if I could get a statement of agreement and disagreement, I mean, basically presumably he was employed, some incident happened that resulted in the withdrawal of his clinical privileges, what ever, the university held a view about that, he may not have. That led to application to the Federal Court for a particular way. Just something like that, I think, would be very helpful. I am not talking about, the letter of appointment said this, and the thing said that. I am not getting into the detail but one needs something. I need something. I need some text. And I mean, the submission, I am not criticising. The submission of the union goes some way towards that but I think if we could get an agreement just on what is agreed and what is disagreed without going into the - I would be happier to go with a - and then just look at the preliminary jurisdictional issue on the basis of that if the parties could have a go at it.

PN231

MR PARKER: Sir, that may well be achievable. I am grateful for the assistance of my instructor that there is some background set out in His Honour, Carr Js decision, in the Federal Court. And it may well be that we can still have a further exchange of - these wouldn't be submissions or contentions, it might be the union identifying the material facts it relies on as in saying that there is a dispute. And then the university could provide its reply in relation to the material facts it would rely on in response.

PN232

That may be one way forward to give you, sir, the degree of confidence that you quite rightly require in order to deal with the question of whether you have jurisdiction or not. And that would at least set, perhaps only a bare bones framework, but at least a framework for understanding where the battle field lies, if you like, sir.

PN233

THE COMMISSIONER: How would that sound to you, Ms Borwick, I mean, would that be achievable?

PN234

MS BORWICK: Commissioner, I think that is quite a helpful suggestion and whether it be a chronology, that might even be of some assistance to the Commission in understanding the issues. Between the union and the university, there is a wealth of material that we can, I am sure, synthesise and draw out key points for the Commission to assist in the consideration of this. From the union's position, we understood that we needed to get the jurisdictional issue to deal with those points first.

PN235

THE COMMISSIONER: Yes. No, I understand.

PN236

MS BORWICK: That is secondly. But if we need to do it the other way round, I don't think that that - we are in your hands, essentially and we wouldn't object to that approach.

PN237

THE COMMISSIONER: Yes. Well, I think the situation now is that you have identified the issues. The union has raised a jurisdictional objection and I think the best thing would be if we all agree that we will tackle, I will hear and determine that, of giving you the opportunity to respond in writing to the response by the university to the directions which were lodged before 4 May. And in doing that in that process, if the parties could - I would be in your hands about where in, but basically it is something about getting the material facts or points of agreement, disagreement which will provide a context within which the jurisdictional matter could be determined.

PN238

I hate to say this but I don't suppose there are any prospects of further conciliation on this matter, is there? I said that because I was reading the transcript of the last time and I was hearing about, you know, just really hearing what the arguments that the union was saying about the dismissal. And then I saw it go off and there was discussion about what happened before Me Negus - and it said that at the conference before Mr Negus, agreement wasn't reached therefore you lodged the notice of discontinuance. But I thought I saw something about there was to be further discussions. That notice of discontinuance was lodged after conciliation has been exhausted?

PN239

MS BORWICK: Correct.

PN240

THE COMMISSIONER: Okay then.

PN241

MS BORWICK: Some two weeks after the - Mr Negus, as the union indicated, sought to broker a settlement between Professor Reid and the university. And certainly, the parties were so far apart, to put it in the words of my colleague, and so at the end of the consideration - there were two propositions on the table. The parties could not come to an agreement on what was being proposed.

PN242

THE COMMISSIONER: Very well.

PN243

MS BORWICK: And so therefore the notice of discontinuance.

PN244

THE COMMISSIONER: You concur with that, Mr Parker?

PN245

MR PARKER: Sir, can I perhaps respond in this way. I am always a little bit reluctant to go into any great detail matters that took place before the Commission in conciliation. Sir, I am not suggesting in any way that Ms Borwick has crossed the line or that your questions cross the line. Sir, it does strike me that it may be premature to say that conciliation in relation to the dispute, putting aside the question of whether that is a dispute that arises under the agreement or whether it is one the Commission can deal with, it strikes me as somewhat premature to perhaps say that there is no prospect of there being a settlement between the parties.

PN246

I say that particularly given the fact that there was an unfair dismissal application made to the Commission, differently constituted. That application, it can't necessarily be assumed, is exactly the same. That application is made by an individual concerning the termination of his employment. This application is one made by the union concerning perhaps a variety of maybe wider concerns; I don't know. Maybe they are exactly the same but I would say it may be premature to say that simply because an unfair dismissal application could not be conciliated that the dispute that the union is seeking to refer before you, cannot be conciliated as well.

PN247

And I can indicate, my instructions are that there is no objection to at least exploring the extent to which conciliation might benefit the parties prior to a determination of a jurisdictional matter. Now, sir, I don't know that that means the university holds out any hope of a settlement but I simply make the comment it may be premature. It also may be appropriate for that to occur so that the Commission itself can be satisfied that conciliation is exhausted in relation to this matter. And it would not be improper for at least that process to begin prior to the jurisdictional argument being determined. It may be we get to a point to a point where the better course is for the jurisdictional argument to be determined but, sir, I would simply say that I don't know that those possibilities should be locked out at this stage.

PN248

THE COMMISSIONER: And what would be your attitude, Mr Parker, in respect of, shall we say, a waiving or agreeing to waive that provision of the disputes committee process. In other words, that I would proceed if this had to be determined, I would proceed subject of clause 38C in the knowledge that the parties would concur that that should occur, notwithstanding the disputes committee process having been exhausted?

PN249

MR PARKER: Sir, I guess first and foremost, I don't have instructions specifically on that point in light of what has taken place today and is likely to continue. So I would need to take instructions directly in response. Sir, there is an ability to waive in respect of a dispute that is properly progressing and is properly characterised as one that can be progressed under the dispute settlement procedure. Just as there is the ability for the parties to agree, notwithstanding some jurisdictional objection for the Commission to hear and determine a dispute.

PN250

There is an underlying concern, I think, on the part of the university and this is something I think that also relates to my earlier submissions that the university is dealing with the union in relation to this application and is not sure whether it is also dealing with Professor Reid, and is not sure whether Professor Reid will be bound by those outcomes. Now, I don't seek to put my friend to proof on that. Unions are entitled to take what ever disputes they see on behalf of their membership forward. Whether or not the Commission has jurisdiction, and indeed, as a matter of discretion, wants to deal with those matters is quite another point but, sir, there is a fundamental concern on the part of the university that this will not be the end of it. And indeed, resolving matters with the union will not be the end of it.

PN251

And that is one of the things that the university would need to consider in deciding whether or not to waive one step in the dispute settlement procedure that has been agreed with the union, because it is an important step. It is a step at which, rather than referring the matter to the Commission, a person is appointed by the parties look at a dispute that has risen in the context of the university and apply their knowledge and best endeavours to resolving that dispute knowing about the operations of the university.

PN252

THE COMMISSIONER: Of course if the matter was resolved by conciliation, there would be some sort of deed which would be of comfort to the university in those circumstances, I take it?

PN253

MR PARKER: If Professor Reid was a party to that deed, probably that is the case.

PN254

THE COMMISSIONER: Yes.

PN255

MR PARKER: Sir, by way of suggestion, and I put it no highly than that, it may be appropriate that even today for there to be some off the record, without prejudice and confidential conference proceedings before you, sir, and perhaps, sir, we can be a little more frank about what has occurred in relation to the unfair dismissal application. Obviously Professor Reid is not here and I am not sure to the extent Ms Borwick can deal with the matter but at least we can deal with it by information, given that both myself and Ms Borwick were previously before Mr Negus by way of conciliation. And we might not feel so constrained in relation to what occurred in that conciliation. And that may assist you, sir, in understanding whether indeed in relation to the matter that is presently before you, there should be further conciliation, or at least room within your directions, for further conciliation to take place.

PN256

THE COMMISSIONER: And I take it that if I was to engage in that conciliation process, would you be in a position to give an undertaking that that wouldn't result in any objection from you that I might then hear and determine the matter if it had to go to that course?

PN257

MR PARKER: Sir, perhaps if I can clarify, if we were to go to conciliation are you suggesting that we be put to an election that once utilising the Commission for conciliation purposes, that would be in effect a concession in relation to the jurisdiction to hear and determine the dispute; just to clarify?

PN258

THE COMMISSIONER: I see. You are talking about, without prejudice, conciliation without prejudice to your jurisdictional objections?

PN259

MR PARKER: Yes. Yes, I was, sir. If you thought that might be of assistance, you may, because it is only put on that basis, think it would be of no assistance.

PN260

THE COMMISSIONER: Mr Parker, just before, I will just hear from Ms Borwick on that matter in a second. Do you take the view that - we don't have to discuss this today, but I noticed, which is the narrower in your view., meaning an application of this agreement, or application of the agreement?

PN261

MR PARKER: Sir, without thinking about it in detail, I think it - - -

PN262

THE COMMISSIONER: We will leave that for another day then.

PN263

MR PARKER: Thank you, sir.

PN264

THE COMMISSIONER: Okay then. Thank you, Mr Parker. Ms Borwick, what say you to, we go off the record and talk in a conciliation way and see where that takes us for a little bit here?

PN265

MS BORWICK: Commissioner, I think that would be probably a useful suggestion and we wouldn't object to that approach. And I think that at the end, as my colleague indicates, it is on a without prejudice basis.

PN266

THE COMMISSIONER: Yes.

PN267

MS BORWICK: And we are here to try to get the dispute resolved in some way so I think that would be a useful suggestion.

PN268

THE COMMISSIONER: Thanks, Ms Borwick. Very well. Subject to anything further I would like to say I think we will go off the record and we will proceed into conciliation conference and we will resume later. Thank you.

OFF THE RECORD [10.36am]

RESUMED [1.01pm]

PN269

THE COMMISSIONER: Thank you. During the intervening period, I have held conciliation proceedings with the parties and have explored a possible settlement of this dispute which might include several of the following four elements. Firstly, the preservation of Professor Reid's academic title. Secondly, the characterisation of the termination. Thirdly, a financial component. And fourthly, a means which will resolve all possible claims in relation to the settlement.

PN270

The conciliation progressed and have not been concluded. The university is to consider its position further and subject to the university considering it productive to continue with conciliation in the light of that further consideration, this conference will resume on a date to be fixed. But it will resume on the condition that Professor Reid be present and participate in the proceedings. My associate will contact each of the parties in respect of a future date for the further resumption of the conciliation proceedings and, of course, the availability of those present as well as Professor Reid.

PN271

Is there anything further anyone would like to place on the record at this stage?

PN272

MR PARKER: No, sir.

PN273

MS BORWICK: No, sir.

PN274

THE COMMISSIONER: Very well, this matter is adjourned. Thank you.

ADJOURNED [1.03pm]