C2004/3772, Transcript of Proceedings [2004] AIRCTrans 2143 (9 June 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 11562
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2004/3772

COMMUNITY AND PUBLIC SECTOR UNION

and

UNIVERSITY OF NEWCASTLE

Application under section 170LW of the Act
for settlement of dispute re performance of
duties and classifications

SYDNEY

10.34 AM, MONDAY, 31 MAY 2004

PN1

MR A. HOLLAND: I appear for the CPSU.

PN2

MR P. TILBROOK: I appear for the University of Newcastle and I am officer of the Australian Higher Education Industrial Association of which the University is a member, and with me today appears MS L. COOPER who is an officer at the University.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Holland?

PN4

MR HOLLAND: Thank you, your Honour. The issue that brings the union here today is a claim that the classification descriptors in the enterprise agreement, and that is the University of Newcastle general staff enterprise agreement 2000, have not been properly applied to classify the positions of messenger driver and mail room attendant. they are positions within the University's mail room. Put simply, your Honour, the classificational level of these positions does not properly reflect their work value. The union says that given the nature of the work they perform and with the proper application of the primary and secondary classification descriptors, their position should be classified at either a higher education worker level 3 or 4 and not a level 2.

PN5

The dispute has arisen because five mail room staff had their positions reviewed in accordance with clause 17 of the enterprise agreement. Whilst several lines of management recommended an original regrading from HUI2 to either HUI3 or HUI4, they were unsuccessful in being reclassified. All five staff lodged appeals under the enterprise agreement and these appeals were also unsuccessful. Subsequently, the union notified a dispute under their dispute resolution - or dispute ceiling procedures of the enterprise agreement which is clause 95, seeking to have the positions re-examined as we believed the agreement, and in particular, the descriptors had not been followed.

PN6

The disputes committee has met several times. As a result of that dispute notification, your Honour, the parties did agree to conduct a workplace inspection of the mail room and also to reconvene a classification review committee. Whilst both these were acceptable to the union we did argue at the time that we believed the review committee should be a completely new review committee and not constituted by the same people that were on the original review committee. Secondly, that an internal, that is University employee observer who was trained and skilled in the use of the classification descriptors be allowed to sit in on that process.

PN7

Both of these requests were denied by the University. Your Honour, as you are well aware the primary classification descriptors that I refer to were developed in the course of the review of the Higher Education General and Salaried Staff Interim Award in 1989 and were adopted nationally across all university institutions. The University of New Castle adopted the primary descriptors in the University of Newcastle General Staff Award Restructuring Agreement of 1993 and have been carried over in all subsequent enterprise agreements. The secondary descriptors for the University of Newcastle were finalised in 1998. A brief reference to his, I believe is important because it is our assertion and we believe the underpinning of our dispute, that the classification principles - and here I refer to the dimensions in their classification descriptors must be applied consistently across all general staff positions within a university.

PN8

To do this, we say that there must be the ability and willingness to compare general staff positions to each other. Further, your Honour, the final report into the HEGS award review by the DWM consulting group emphasise:

PN9

The need for the descriptors to be interpreted and applied consistently between institutions.

PN10

And further:

PN11

That consistent with the National Wage principles, the classifications structure in the award should provide for internal relativities across the award.

PN12

We believe this is an important factor, because as I will address shortly, the problem we are confronted with we believe is partly the result of the refusal of the university to either (a) look at similar graded positions across the University in either the original classification process or the review process, or secondly, look at similar positions in other institutions and the level at which they are graded at and the work that they perform. Your Honour, the union is asserting its position on the basis of what we believe is a substantial amount of evidence that we could provide.

PN13

This includes the original applications by the members for their review and for their appeal which were supported by - and the positions I refer to now, your Honour, I think that the incumbents have changed, but at the original time of the review taking place, the members a local manager Mr Michael Rye and his manager who is also the campus service manager, Mr David Heggett both recommended the position be regarded to HUI4. The divisional manager Mr Don foster recommended the positions be regraded to HUI3, and at the time as well the human resources office suggested that HUI3 would be an appropriate grade for these positions.

PN14

We believe, your Honour, that if a comparison of the internal relativities had taken place, and in particular, the work value of other HUI2, HUI3 and HUI4 positions, that it would have shown that the work of the mail room staff is more comparable to the work being performed by HUI3 and HUI4 positions within the University. Further, your Honour, we believe if there had have been a comparison with the work performed and the classification of mail room staff at other institutions, the work performed by the mail room staff at the University of Newcastle would again be more closely aligned with positions at a higher level or at a higher broad-banded level.

PN15

We have evidence that there are a number of Universities who broad-band their mail room staff across several grades. Further, your Honour, we have a minority report which is allowed for in the enterprise agreement that resulted from the reconvened classification review panel. It may be of assistance, your Honour, because I feel that the information contained in this minority report is quite useful, if I hand up a copy of the minority reports. This minority report has been distributed to the Vice Chancellor and to the Human Resources Department at the University. I don't intend, your Honour, to take you through this. I think this might be worthwhile discussing if we do go off into conference.

PN16

Your Honour, the majority report that resulted from the re-convened Classification Committee also tellingly acknowledges that the work performed by the mail room staff did at times cross over into the HUI3 level. This was confirmed by an independent IT who the university did sit on the review panel. The majority report also refers or recommends that:

PN17

A re-organisation occur of the mail room to enrich the positions of the mail room staff.

PN18

Thus, directly we believe raising the possibility of the positions being broad banded across two or more levels. However, there is no action that has taken place by the university management to look at enriching their positions. Finally, your Honour, the union has undertaken its own assessment using two of our experienced job evaluators within the university and that assessment shows that the positions that we refer to should either sit at HUI3 or HUI4.

PN19

Your Honour, the union isn't contending that the university has not met the procedural obligations of the enterprise agreement. We simply say that they are mis-application of the descriptors and we believe the descriptors are of such a nature that there is definitely scope for ambiguity to occur when assessing a position. We do believe however the university either - and again indirectly we at this point in time will be asserting has mis-applied those descriptors - and to compound the mis-application we believe they haven't endeavoured to use the full extent of the discretion allowed for under the enterprise agreement in either interviewing the applicants, or interviewing other members of staff, nor have they compared these positions to, as I indicated, other HUI or similar graded positions within the university, or other mail room positions across other institutions and that, your Honour, is why we believe we are in a situation where our members have not had their positions properly graded according to their work value. Your Honour, we are here today to seek your assistance in resolving the matter and we are happy to go into conference and would ask for that.

PN20

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Holland. Yes, Mr Tilbrook.

PN21

MR TILBROOK: Yes, thank you, your Honour. Your Honour, in the interest of certainty, I indicate that the university's position is that this is a matter in which the Commission jurisdiction under clause 95.3 of the certified agreement is not disputed, that is to say your Honour that the university accepts that the dispute notified in accordance with that clause may be resolved by the Commission by conciliation and arbitration in accordance with section 170LW of the Act. Now, your Honour, we do that because there are two options in clause 95, and in the interests of certainty, we thought your Honour would be best served if there was certainty.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR TILBROOK: Your Honour, in its notification to the Commission, the CPSU, consistent with section 170LW of the Act, alleges that three elements of the certified agreement have been incorrectly applied. Those elements are said to be clause 13 which relates to performance of duties and in summary that clause provides that the university may direct staff to carry out duties consistent with relevantly classification structures and descriptors set out in the agreement.

PN24

The second element is specified as being clause 17 in attachment 2 of the agreement, which taken together deal with classification review. The final element specified in the notification is schedule 7 of the agreement which contains the classification descriptors for the general staff classification structure. Now, as your Honour has heard from my friend today, the particular circumstances in which the incorrect application is said to have occurred relates to a classification review process undertaken of positions in the university's mail room.

PN25

Our position in relation to the allegations of incorrect application of the three elements is that if a mis-application of clause 17 in attachment 2 were to have occurred, the rectification of that mis-application - that is to say the mis-application of the classification review process in those provisions - would also rectify any connected mis-application of the classification descriptors in schedule 7 and, of course, 13 which may have occurred.

PN26

Your Honour, we say that the key step in resolving the dispute would appear to be for the Commission to form a view as to whether there has been a mis-application of clause 17 in attachment 2 when processing the appeals lodged by various staff members following the classification review process undertaken of the university's mail room. Now, in relation to that position it is our submission that there are two elements of the appeal process. The first element is an examination of the appeal by a tripartite committee. The composition of that committee, your Honour, is set out in clause 17.2.7 of the agreement and I will just read that to your Honour:

PN27

The appeal provides for a tripartite committee comprising a representative of the university, a representative of the union with coverage of the position, without having regard to the current membership status of the applicant, and an external experienced person, jointly selected by the university and the union who shall be the Chairperson of the committee.

PN28

The mode of selection of the external Chairperson is provided for in clause 4.5 of attachment 2, and your Honour there has been no suggestion that there was any defect in the formation process that the committee established to examine the mail room appeals. The matters which the committee must take into account in examining an appeal are set out in paragraph 4.6 of attachment 2 - I might take your Honour to that. 4.6 is headed: Criteria for Examining Appeals and reads:

PN29

In examining the appeal the committee shall take into account -

PN30

and then there follows four dot points -

PN31

the grounds and facts nominated by the appellant, the principles and guidelines governing wage ...(reads)... occupational health and safety and rehabilitation.

PN32

The procedures to be followed by the committee when examination and appeal then follow and they are set out in paragraphs 4.7 through to 4.15 and I will not read those to your Honour. In relation to paragraph 4.8, in the present matter the committee has been prepared to revisit its initial recommendation when following the step in the dispute resolution process undertaken by the parties in accordance with clause 95. The university accepted a suggestion by the union that the committee should be invited to reconvene to undertake an inspection of the mail room and to obtain advice of an independent information technology expert.

PN33

Now, as my friend has indicated, following this inspection and following the assistance of the independent expert, a minority report emerged. Such an eventuality has been accommodated by the parties to the agreement by the inclusion of paragraph 4.9 in attachment 2. 4.9, your Honour, makes it clear that there can be a unanimous statement or a majority statement by dissenting member. Your Honour, paragraph 4.15 of the attachment, makes it clear that that the committee's role is a recommendatory role, not a decision-making role.

PN34

When I say, your Honour, it is a recommendatory role, I should draw your Honour's attention to the limits on the discretion available to the committee when making a recommendation and that discretion, your Honour, is limited by paragraph 2.6 of attachment 2 which indicates that a classification review process will result in either of the following being recommended, no change or reclassification to a higher level. That, your Honour, of course, is also consistent with the provisions of clause 17.2.6 of the agreement.

PN35

Your Honour, the second element of the classification appeal process emerges from paragraph 4.16 of attachment 2. That requires the Vice Chancellor to make a decision in relation to the committee's recommendation and again, your Honour, of course the provisions of clause 17.2.6 constrain the discretion which the Vice Chancellor may exercise in reaching his decision. That is to say he can only reach a decision which results in no change to the classification or a reclassification of the position to a higher level.

PN36

Now, because there are two elements to the appeal process agreed to by the parties, a failure to correctly apply the terms of the agreement may emerge from either of those elements. The university's position in relation to the appeal process, in attachment 2, has been and remains, that its obligations are firstly to facilitate the formation of the tripartite committee and secondly, to properly apply paragraph 4.16, of attachment 2, through a decision of its Vice Chancellor.

PN37

My friend does not raise any dispute as to the discharge of the first of those obligations. The committee exists and has functioned. Indeed, the university has facilitated that function by recrediting long service leave to the union's nominee to the committee to enable it to reconvene. Now, in relation to its obligation to properly apply paragraph 4.16, that is properly apply the decision-making process through an exercise of discretion by the Vice Chancellor, the university has always proceeded on the basis that the Vice Chancellor is entitled to rely on the presumption of regularity when reaching a decision on the recommendation of the committee.

PN38

This position reflects the university's identification of the committee as an entity independent of it as a party to the agreement. Indeed, I just observe, your Honour, the structure and role of the committee are by no means dissimilar to those of a board of reference. Now, in this instance, after the Vice Chancellor had reached a decision on the recommendation, a matter arose which caused the committee to reconvene and to revisit its initial recommendation. When that happened, the university, and we say correctly, identified that the presumption of regularity underpinning the Vice Chancellor's original decision had been displaced.

PN39

That is to say it identified his decision had run across a vitiating factor. Following that identification, the decision was set aside and the two further reports, because the committee then had a majority and minority report, and the two recommendations in those reports, were considered by the Vice Chancellor and a new decision, that decision was to approve the majority recommendation, was reached. Again, this new decision relied on the presumption of regularity in relation to the committee's activities.

PN40

Subsequently within the course of following the dispute resolution process, the union requested the Vice Chancellor reconsider his decision in the light of a rereading of the minority report of the committee. The Vice Chancellor acceded to that request. He did not, however, reach a decision to change his second decision. My instructions, your Honour, are that if, in these proceedings, the Commission were to form a view that displaced the presumption of regularity upon which the latest decision of the Vice Chancellor has proceeded, then that decision would need to be set aside to enable the University to properly apply paragraph 4.16 of attachment 2.

PN41

I'm instructed it would be set aside. As to the process by which the Commission might consider whether or not it was of the view that there had not been a correct application of attachment 2 which would require the Vice Chancellor's decision to be set aside, our submission is that the agreement of the parties set out in paragraph 4.14 of the attachment is a determinative consideration.

PN42

4.14, your Honour, says the discussion within the Committee in relation to an appeal shall remain confidential. The written decision shall become available in accordance with this clause. Members of the Committee, by assuming office, undertake to uphold confidentiality in respect of discussions within the Committee. Your Honour, I think it would be common ground that the term "written decision" would include all the documents considered by the Committee in reaching its decision or decisions, as is the case in the present instance.

PN43

Those documents are, of course, essential to a proper understanding of the decision and recommendation of the Committee. Now, your Honour, the full range of those documents relating to the Committee's activity can be made available to the Commission today for its assistance if it was minded to act in a certain way. Your Honour, without seeking to be prescriptive, the University's position would be that there are a number of indicia that are correct application of attachment 2's appeal processes which may or may not have occurred.

PN44

Those indicia would emerge from the consideration by the Commission of the documents relating to the Committee's activities. We would say that those indicia would include those of the grounds of appeal specified in paragraph 4.1, which I earlier read to the Commission, relied on by the appellants which have not been addressed by the Committee. Another indicia would be that the Committee, in examining the appeals, had or had not taken into account the matters set out in paragraph 4.6. A further indicia would be that the Committee had or had not taken into account extraneous considerations which may have been placed before it which would emerge from the documents.

PN45

Another indicia would be that inspections undertaken by the Committee any assistance that it sought and received and took into account was relevant or not relevant to its examination of the appeal in accordance with clause 4.6. Your Honour, in relation to the second of those indicia, can I just refer your Honour to paragraph 4.6 of attachment 2. As I indicated earlier, there are four dot points, and the second dot point relates to the principles and guidelines governing wage fixing principles set down in the decision and statements of the Commission in national wage cases from time to time.

PN46

Now, it would be our view that since the appeal process commenced prior to the Commission's most recent safety net review decision, the relevant principles and guidelines would be those in print PR002002. It would also be our view that the appropriate principle to be taken into account in that decision would be principle 6 - that is, the work value changes principle. Having regard to my friend's submissions today, a particularly relevant element of that principle to be taken into consideration would appear to be the second paragraph of item A which perhaps I might read for the record. That is to be found at page 73 of the print, your Honour:

PN47

In addition to meeting this test...

PN48

Perhaps I might indicate that the test appears in the previous paragraph, that is the strict test for an alteration in wage rates is that the change in the nature of the work should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification:

PN49

In addition to meeting that test a party making a work value application will need to justify ...(reads)... of wage leapfrogging arising out of the change in relative position.

PN50

Now, your Honour, the DWM descriptors, as my friend has pointed out are the descriptors contained in the agreement, and the report to which that third dot point refers, and to which my friend has referred, makes it clear that the extent or classification to which those descriptors relate are the Metal Industry Award standard classifications. Now, your Honour, that, I think, brings me to the issue of what is to be done should the Commission form a view that there has not been a proper or correct application of that part of paragraph 4 of attachment 2 relating to the Committee process.

PN51

A useful precedent is to be found in a decision recorded on 2 January this year by the Commission, as presently constituted, and that decision is recorded in print PR942401. Your Honour probably would not have that available to you.

PN52

THE SENIOR DEPUTY PRESIDENT: I don't have anything like that with me, Mr Tilbrook, no.

PN53

MR TILBROOK: Perhaps I might provide you with a copy.

PN54

THE SENIOR DEPUTY PRESIDENT: Very well.

PN55

MR TILBROOK: And provide my friend with a copy. Your Honour, the decision recorded in print 942401 relates to a dispute between the NTEU and Southern Cross University regarding the correct application of a clause in the certified agreement between them relating particularly to the disciplinary process for academic staff. One of the issues dealt with by the Commission in exercising its powers under section 170LW of the Act was whether or not the vice chancellor should have complied with a particular sub-provision of the agreement in the particular circumstances. Now, can I take your Honour to paragraph 64 of the decision which is towards the end, that is on the third last page?

PN56

THE SENIOR DEPUTY PRESIDENT: Yes.

PN57

MR TILBROOK: In paragraph 64 the Commissioner records:

PN58

I have concluded that the decision taken by the vice chancellor is not a decision taken in accord with the provisions of clause 35, in particular, the vice ...(reads)... by 35.3.6 prior to the vice chancellor making a decision and it follows what is forthcoming as a result of compliance with 35.3.6 must be taken into account.

PN59

Now, in our submission, the first and third sentences of that paragraph annunciate a principle which is perhaps a general application and, with respect, we paraphrase those sentences as leading to the following. Where a decision, or a particular process is found not to have proceeded in accordance with the provisions of the relevant certified agreement, to correctly apply the agreement the decision or process must be set aside.

PN60

Now, paragraph 68, your Honour, and 69 of the decision provides some further guidance. Paragraph 68 reads:

PN61

That leaves the requirements of 35.3.6, which I find was not observed. What is to be done about that? In approaching that I bear in mind the following.

PN62

THE SENIOR DEPUTY PRESIDENT: Now, you say this is in paragraph 68?

PN63

MR TILBROOK: Yes, your Honour, on page 22.

PN64

THE SENIOR DEPUTY PRESIDENT: This is though the problem we have with the different systems of printing. Paragraph 68 is on page 18 of 21 and it does not contain the words you have just read.

PN65

MR TILBROOK: I'm sorry, your Honour. I seem to have provided both you and my friend with a copy of a different print. I do apologise, your Honour, I should have checked.

PN66

THE SENIOR DEPUTY PRESIDENT: It is the same case, Mr Tilbrook, isn't it, but it is a different print?

PN67

MR TILBROOK: It is the same case. I provided both you and my friend with a copy of an earlier decision in the same matter, I do apologise.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, of course, this is 6 August 2003.

PN69

MR TILBROOK: Yes, I do apologise. Perhaps I might show my friend what I was reading from?

PN70

THE SENIOR DEPUTY PRESIDENT: Yes.

PN71

MR TILBROOK: Your Honour, we have discovered another copy which perhaps I might provide to your Honour.

PN72

THE SENIOR DEPUTY PRESIDENT: I think, to be frank with you, the earlier references you gave me were to this decision as well.

PN73

MR TILBROOK: It was, yes, your Honour, that was paragraph 64.

PN74

THE SENIOR DEPUTY PRESIDENT: Yes.

PN75

MR TILBROOK: I am now looking at paragraph 68. As I was saying, your Honour, reading from paragraphs 68 and 69:

PN76

That leaves requirements of 35.3.6 which I find was not observed. What is to be done about that? In approaching that I bear in mind the following.

PN77

And there then follows a series of dot points, your Honour, and I will just read the last two dot points:

PN78

The decision on penalty was taken without recourse to 35.3.6 and it should not have been. The Commission's role is simply to ensure that the parties ...(reads)... and the person of the vice chancellor inviting Academic A to submit matters which he wishes the vice chancellor to take into account at the time.

PN79

A decision of disciplinary action was taken and that is to say, your Honour, to proceed to apply 35.3.6 correctly. Now, your Honour, the practical effect of the determination set out in that last sentence in clause 69, in our submission, was that the vice chancellor's decision having earlier been set aside kin the decision, the Commission decided that the correct application of the agreement required that the vice chancellor return to that point in the disciplinary process at which correct application had ceased and to continue the process anew from that point.

PN80

Now, your Honour, it is the university's submission that should the Commission form the view that there has not been a correct application of that part of the agreement relating to the classification, Appeals Committee Process, the appropriate course of action would be to set aside the committee's present recommendations and to determine that the committee is to reconvene and return to that point and it is in examination of the appeals at which correct application of the process of examination ceased and to recommence the examination of the appeals anew from that point.

PN81

Now, your Honour, there is a matter that my friend touched on concerning the ancillary recommendation made by the committee and that recommendation was made pursuant to clause 4.1.3. 4.1.3 provides that separate from its decision on the appeal the committee may make any further observations on maters arising from an appeal and my friend indicated that there had been no action on the ancillary recommendation concerning job redesign and enrichment in relation to their positions under appeal.

PN82

Your Honour, I am instructed that that is not necessarily the case. that there has been a body of work undertaken in the Human Resource Management area in preparation for that process. Implementation, however, of the process and the ancillary recommendation has been delayed by the university's perception that the process couldn't proceed due tot he provisions of the dispute resolution process and, in particular, clause 95.1.5, paragraph 3.

PN83

I'm sorry, agreement 3, which provides that:

PN84

The university shall not change work, staffing, or the organisation of work, if such is the subject of the dispute, or take any other action likely to exacerbate that dispute.

PN85

Now, your Honour, changing the duties or organisation of work when the classification structure is the subject of dispute really is not a practical thing to undertake. However, my friend may be assured that the underpinning work to acting on the recommendation has progressed. Your Honour, I suppose, in summary what the university would invite the Commission to do, is to consider on the papers that are available in accordance with paragraph 4.1.4 of attachment 2 whether or not there had been a proper application of that element of the classification review process, which is the province of the tripartite committee.

PN86

As I've indicated, your Honour, the university considers that the tripartite committee is not a committee of the university in its role as the employer party to the certified agreement. It wishes to continue with its established practice of relying on the presumption of regularity when dealing with reports and recommendations of the committee. It is willing, as I indicated, to countenance the prospect that the presumption is capable of being displaced. It is not uncomfortable with acting appropriately where that situation arises and, indeed, has done so once already in this instance, and is willing to do so again.

PN87

Your Honour, we say that the parties agreed on a certain process. The university is quite clear on what its obligations are and it is willing to discharge those obligations, but it is willing to discharge those obligations in the total framework of the process - what the parties have agreed, if your Honour pleases. I don't think I can add anything which might usefully assist.

PN88

THE SENIOR DEPUTY PRESIDENT: All right, Mr Tilbrook, thank you. One thing I would like to be clear on, conciliation, do you have a view on that?

PN89

MR TILBROOK: Your Honour, conciliation is always helpful, and the terms of the dispute resolution procedure presuppose that it would be the first step, so we are in the Commission's hands.

PN90

THE SENIOR DEPUTY PRESIDENT: Quite. Mr Holland, I'm ready to go into conciliation. Is there anything you want to add at this stage?

PN91

MR HOLLAND: Nothing further, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Very well. I shall adjourn into conference.

OFF THE RECORD [11.26am]

RESUMED [1.08pm]

PN93

THE SENIOR DEPUTY PRESIDENT: What is the position, Mr Tilbrook?

PN94

MR TILBROOK: Thank you, your Honour. Your Honour, I'm following the Commission's assistance to the parties in the conciliation process which has recently concluded. The parties have agreed on a set of documents that represent the documents that were before the committee established under the agreement to consider the appeals in relation to the mail room staff. The collection of documents includes not only the documents placed before the committee, but also the various reports and recommendations made by the committee following its consideration of those documents.

PN95

Your Honour, the parties would wish the Commission to proceed on the basis of a consideration of those documents, and are content to follow the views expressed by your Honour in the course of conciliation as to what might follow from that review. I don't think I can usefully add anything else, your Honour, other than to tender the documents agreed to by the parties.

PN96

THE SENIOR DEPUTY PRESIDENT: One thing you might give consideration to: what is it that the Commission is to do, having considered the documents, or what action - - -

PN97

MR TILBROOK: I think the parties are agreed, your Honour, that should the Commission form a view that - if your Honour would bear with me for a moment - that there had not been a correct application of paragraph 4 of attachment 2 to the agreement in the committee phase of the appeal process, then your Honour would record that view and would indicate the place in the process at which proper application had failed, and that your Honour would then, if such a finding was made, give an appropriate direction for the proper process to be followed to achieve correct application.

PN98

I think the parties would be comfortable with your Honour doing that. As I've indicated earlier, your Honour, my instructions are that the university would wish to proceed on the basis that any decision arising out of the appeals process that was to be taken by the Vice Chancellor would continue to be taken on the basis that he would follow a presumption of regularity, and that if an existing decision was found to be based on a displaced presumption of regularity then, of course, that decision would be set aside, and a new decision reached.

PN99

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Holland?

PN100

MR HOLLAND: Thank you, your Honour. I concur with everything Mr Tilbrook says. The only question, I think, I would raise as a point of clarification is: if through the course of events there is recourse, as I think contemplated in Mr Tilbrook's submission, that the process or the review committee is let us say reconvened, would it be the intent to reconvene or constitute that process with the same people that were on the original committee, or would it be open for the parties to agree to a different make-up of the committee?

PN101

THE SENIOR DEPUTY PRESIDENT: Well, that is not for me to say.

PN102

MR HOLLAND: No, your Honour. I didn't raise it before to Mr Tilbrook, I'm just raising that now, that it might be worthwhile either addressing that now, or the parties obviously can discuss it at a later date, if necessary.

PN103

MR TILBROOK: Well, your Honour, I think, my instructions would be that the university's position is that the committee was properly constituted in the first place. None of the people on the committee have ceased to be available, there is really no basis on which the university would wish to agree to commence the process de novo, indeed, the proposition I put to you assumes quite the contrary, that the process will be taken to be regular to the point of departure from the proper operation, and in those circumstances, it would be quite inappropriate for a new committee to proceed, if you like, to tidy up what the former committee had dealt with.

PN104

On a more formal note, your Honour, the parties agree that there should be a committee set up. The terms of their agreement was that, the university has honoured the terms of that agreement. It expects the other side to honour the terms of the agreement. The views of the Commission in the decision that I referred you to in print 942481 are, again, helpful and, in particular, your Honour, at the beginning of paragraph 59 the Commission says:

PN105

In considering what to do, it is necessary to bear in mind that section 170LW of the Act enables the parties to an agreement to empower ...(reads)... application of the agreement.

PN106

Then again in 62:

PN107

To determine that the matter should be referred back to someone or some position other than the ...(reads)... the Commission can do.

PN108

I suppose, your Honour, what the Commission is there saying is what the parties have agreed, the parties have agreed. That is the university's position. It agreed to do something, it did it.

PN109

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Tilbrook. Well, that is pretty clear. On that basis I regard the matter as in my hands to conduct the review of the documents to make a decision as to whether or not the agreement has been properly applied. I adjourn these proceedings indefinitely, and I adjourn the Commission indefinitely.

ADJOURNED INDEFINITELY [1.18pm]