C2004/4012, Transcript of Proceedings [2004] AIRCTrans 2272 (18 June 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 11715
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2004/4012

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

and

MACQUARIE UNIVERSITY STUDENTS COUNCIL

Application under Section 170LW of the Act
for settlement of dispute re application of
discipline procedures and termination of
employment clauses

SYDNEY

11.37 AM, TUESDAY, 8 JUNE 2004

PN1

MS J. WELLS: I appear for the NTEU and with me, MR G. APOLESKI.

PN2

MR N. POTTS: With leave, I appear with MR K. MA, who is a solicitor, and MR V. MA, who is the Chairman of the Student Council.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Potts. Any objection to Mr Potts' appearance?

PN4

MS WELLS: Yes, your Honour. The objects of the Workplace Relations Act, in the terms of the agreement, envisage the parties resolving disputes arising under section 170 of the Act, and the dispute resolution procedures of the agreement, the NTEU submits that the Commission is an informal procedure for workers to resolve their disputes and we think that the representatives of the council, in fact, the chairperson of the council is more than capable of representing the views of the management of the council.

PN5

THE SENIOR DEPUTY PRESIDENT: Very well. What do you say, Mr Potts?

PN6

MR POTTS: Well, one, your Honour, the agreement is between the council and its employees. It's not an agreement between the council and the union. The union is representing one of the employees. The council itself is a representative body, it's been in office since November 2003. We have little experience in these matters. On the other side we have an experienced industrial officer and these proceedings, the outcome of these proceedings, may bear directly upon unfair dismissal proceedings before this Commission. And I therefore submit, your Honour, that it's appropriate that the council has some representation in these proceedings.

PN7

THE SENIOR DEPUTY PRESIDENT: Just one thing, which is a side issue, the agreement is between the NTEU and the Students Council, that's the agreement. It's a side issue at the moment, Mr Potts, but I draw your attention to it.

PN8

MR POTTS: Yes, as members of the NTEU, yes.

PN9

THE SENIOR DEPUTY PRESIDENT: But as far as the leave is concerned, I'm prepared to grant it on the basis that you have outlined.

PN10

MR POTTS: Thank you, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Now, Ms Wells.

PN12

MS WELLS: Thank you, your Honour. The NTEU appears today, arising under the dispute resolution procedures of the Macquarie University Students Council enterprise agreement, clause 29. The matter in dispute relates to the incorrect application of clause 30, discipline procedures and clause 31, termination of employment of Macquarie University Students Council enterprise agreement procedures, in relation to the summary dismissal of NTEU member Mr Apoleski.

PN13

On Thursday, 29 April, the NTEU wrote to Macquarie University Students Council to request an urgent meeting regarding to the incorrect application of the summary suspension procedures of the enterprise agreement, in relation to Mr Apoleski. The NTEU asserted the procedural requirements of clause 30 had been incorrectly applied and required an urgent meeting to attempt to resolve the issue, prior to seeking the assistance of the Australian Industrial Relations Commission.

PN14

The Chairperson of the Macquarie University Students Council, Mr Victor Ma, here today, confirmed receipt of this letter in his faxed reply, received later the same day, Thursday, 29 April, committing to respond through their law firm, Ma and Company Solicitors. Nancy Yu received a letter from Ma and Company Solicitors on behalf of Macquarie University Students Council on 3 May advising the NTEU of the summary dismissal of Mr Apoleski.

PN15

This action is an incorrect application of clause 30 and 31 of the agreement, and it is unfortunately clear that the chairperson and/or management representatives of the council are unwilling to properly adhere to the clause 29 dispute settlement procedures of the agreement, and accordingly we seek the assistance of the Commission today.

PN16

I'd first like to - I have very few documents to hand to you this morning, your Honour, but I'd first like to illustrate to you the context of the incorrect application of the suspension leading to the dismissal with a group of documents, if you could mark them NTEU1, if you would care to accept them. I have a copy for the representatives for the employers.

PN17

THE SENIOR DEPUTY PRESIDENT: I'll mark the faxed letter of 29 April 2004 from the NTEU to Mr Victor Ma. Are there any other letters as well?

PN18

MS WELLS: It's a group of documents, your Honour, which I thought to place together, so that's actually from Victor Ma to me on the cover, confirmation of receipt.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, it is too. It's not simply a fax cover, it's an actual document, isn't it? All right, then I'll mark a group of documents commencing with a fax of 29 April 2004 to Ms Wells from Mr Victor Ma and the associated documents exhibit NTEU1.

EXHIBIT #NTEU1 GROUPS OF DOCUMENTS COMMENCING WITH A FAX OF 29/04/2004 TO MS WELLS FROM MR VICTOR MA AND ASSOCIATED DOCUMENTS

PN20

MS WELLS: Thank you, your Honour. This group of documents begins at the end of the group with a notice to Mr Greg Apoleski from Victor Ma relating to a violation of an executive order. So, the very last page has two versions. The printed out version is the last page, and the second last page is actually what was emailed to Mr Apoleski. So, that's the difference in letterhead and not, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: Not in text?

PN22

MS WELLS: Not in text, no.

PN23

THE SENIOR DEPUTY PRESIDENT: No.

PN24

MS WELLS: So, it is dated 25 April, as you can see, and it references a violation of an executive order which took place on 23 April. Mr Apoleski had apparently been advised of the executive order, although there is no written evidence for that apart from what is received on 25 April. But this notice on 25 April states:

PN25

I refer to a notice I received from Stanford Lu, Head of Security, dated 23 April.

PN26

And that is a preceding document which I'll take you to in a moment, your Honour. Strangely, again, dated on 25 April, not the 23rd. Anyway, Victor Ma asserts in this note that:

PN27

I refer to a notice I received from Stanford Lu, Head of Security, dated 23 April, a copy of which is hereby enclosed for your information. I confirm that I've made inquiries with the councillors who were present at the office while the alleged violation took place. I'm satisfied beyond reasonable doubt that you did intentionally violate the said executive order. I enclose a copy of the said executive order which has become effective from 14 April 2004 for your information.

PN28

Your Honour, I don't have a copy of the said executive order, and at this stage neither does Mr Apoleski. It has been apparently discussed in the workplace, but there was nothing sent in this attachment that I've received.

PN29

I hereby advise with regret that as a result of the said violation you are hereby informed that you are summarily suspended from all duties for a period of 14 days -

PN30

and 14 days is the timeframe for summary suspension in the agreement, your Honour -

PN31

and you'll be prohibited from entering into the Level 0 office and Level 1 front office -

PN32

so he's suspended from his workplace.

PN33

In addition, you'll be prohibited from attending the MUSC meeting, the council meeting, which is to be held on 30 April 2004.

PN34

So, your Honour, as a result of the suspension, according to this direction from the chairperson, Mr Apoleski is not allowed to attend the council meeting on 30 April, which is actually the council meeting which dismissed him, but we did not know that at the time.

PN35

I confirm that I've made careful consideration before making this decision and have referred to the following facts in doing so, that Mr Apoleski deliberately breached the said executive order, his seniority and level of experience within this organisation, and the fact that MUSC is so serious about this order it's reflected that a minimum sanction of breaching said order has been mentioned in the order itself.

PN36

Well, again, your Honour, we don't have a copy of that order, but apparently the order directed all employees to require that at least two levels of authority were given for students or any other visitor entering the premises of the council building. To clarify for your information, your Honour, Mr Apoleski is an executive officer, that's the most senior position within the council, and his role is to advise and assist students on the policies and provisions of the university and how they can seek assistance, primarily financial and education assistance, for students. It's what students pay their fees to the council for, that kind of assistance.

PN37

So, to clarify the violation itself, we turn to Stanford Lu, Head of Security, Secretary and Head of IT, Head of Security, Macquarie University Students Council, which is the letter on the preceding page. Again, you'll notice, your Honour, it's dated the same day, not two days earlier, as asserted by Chairperson Victor Ma. And it cc's Victor Ma on the day of the 25th, and it is to Mr Apoleski:

PN38

Re violation to executive order. Dear Greg, this letter serves to inform you of the action taken in response to your violation of the executive order, which clearly states that no-one is permitted to bring any visitors to the Level 0 offices without signed authorisation from two executive officers. On 23 April at 5.35 pm you entered the offices with a female person who did not identify herself to any of the four councillors working in the common office at the time -

PN39

it lists those people -

PN40

two of whom were executives, nor did you make any efforts to introduce her and the reason as to her purpose for being in the Level 0 offices. I confirm that at that moment I verbally reminded you of your obligation pursuant to the said MUSC executive order to obtain the written consent of two executives to authorise the visit of the said female person to Level 0 offices, you had allowed her access to Level 0 office. However, you have failed to do so and the said female person stayed in the Level 0 office for about 15 minutes afterwards until you left the office with her. I also note that the said executive order was effective from 14 April and you had been informed in writing of the existence of said order and the consequences of the breach of it on 14 April. It's therefore clear that you had intentionally breached the order and I will inform the chairman of MUSC about this.

PN41

As I said, your Honour, we don't have a copy of the asserted written existence of the order on 14 April 2004. And it is then, to use position, that Mr Apoleski was not advised of his inability to have students come to seek his assistance in his workplace until the very day that this refers to which is 23 April.

PN42

The NTEU agrees that Mr Apoleski was meeting a student, a female student, who was seeking advice on private matters relating to their student position at Macquarie University on this day. And that after Mr Apoleski was informed that he - according to his job description and requirements which require him to give assistance to students, after he was informed on the workplace, at this very time that he would not be able to meet the student who had made an appointment to see him, to seek his advice. He, after 15 minutes of talking to the student and making alternative arrangements, ends up taking the student to the cafeteria to continue with the provision of advice as per his paid position.

PN43

So, while that is true, certainly, we do not have a copy of an executive order which bans, in fact, all students seeking advice from their own council representatives from the workplace where they would seek that advice. So, we received this and, of course, we were greatly concerned about, not only the nature of the matter and the seemingly ridiculous negation of Mr Apoleski's very required duties and tasks as an executive officer to provide assistance to students and advice when required. But also, of course, the application of clause 30.9 in the enterprise agreement, your Honour, which gives provisions for summary suspension.

PN44

And, accordingly, in this bundle of documents, you'll see that Thursday, 29 April, shortly, following this advice, we write to Mr Ma, the Chairperson, to say, "There's great concern into your rights to you regarding the attempted summary suspension of Mr Apoleski as per your letter, dated Sunday, 25 April." It's important to note, your Honour, that Mr Apoleski had been meeting the student on Friday, 23 April - unfortunately, his normal work time hours - and he was served with this suspension notice via email, which is why I illustrate the difference between the email receipt and the printing out of the same documentation, on Sunday, 25 April which was actually the Sunday of the long weekend, so the next day is actually a public holiday. So, Mr Apoleski gets to speak to his union representative for the first time, unfortunately, on Tuesday, the 27th about this matter having occurred on a public holiday weekend.

PN45

Arising from the Macquarie University Students Council Enterprise Agreement, clause 30.9, "Provisions for Summary Suspension" outlines the circumstances which warrant summary action defining it as "behaviour considered by the executive officer or the chairperson to be of sufficient seriousness to warrant summary action."

PN46

NTEU member, Mr Apoleski, denies the substance of the allegation in your letter, dated 25 April, that is, your Honour, that he denies that he was advised of an executive order which would not allow him to meet with students seeking his advice in his dedicated office and workplace which is the function of that workplace. And denies that he was given the procedural fairness and opportunity to speak to this on the day it was raised by supervisor representatives on Friday, the 23rd.

PN47

NTEU states that, "Your letter of 25 April does not adhere to the defined procedures outlined in clause 30.9 which requires the procedural steps of A through to G of 30.9. And procedural breaches here include - or incorrect application of these agreement procedures include written notification to be given to the staff member at the time of suspension", yet this notice was emailed to Mr Apoleski at 9.30 pm on a public holiday. More importantly, the requirements of (e) have not been outlined in this notice, and you can see that (e):

PN48

The chairperson shall initiate an inquiry pursuant to procedures prescribed in 30.5 into the circumstances which led to the suspension.

PN49

And I think it's of benefit, just at the moment, your Honour, just to look, briefly, at 30.5 which, before you would get to 30.9, "Provisions of Summary Suspension" and, specifically, (e):

PN50

The chairperson shall initiate an inquiry pursuant to procedures prescribed in 30.5 into the circumstances which led to the suspension.

PN51

You also have the opportunity, of course, and 30.5 to have preliminary counselling procedures to examine the issue. But even if the circumstances are so severe that you would not have participated in preliminary counselling procedures which the NTEU objects to that interpretation, of course, in our letter of Thursday, 29 April, we state that there is opportunity for preliminary counselling procedures when there is a concern of such small gravity as this one. But even if you had not followed that step, 30.9 requires you, at (e):

PN52

To initiate an inquiry pursuant to those procedures -

PN53

at 30.5. So, the employee is given the procedural fairness of 30.5, and you can see why that is, your Honour, because at 30.1 in the, "Principles":

PN54

The purpose of these procedures is to ensure that each employee is treated fairly and properly in a matter where the employee considers that disciplinary action against an employee may be necessary. And the provisions of this agreement, with regard to the disciplinary procedures, shall not derogate from the right of either party to take action in industrial forums.

PN55

So, we have written on 29 April to the chairperson to emphasis that already the suspension is not following the prescribed procedures of the enterprise agreement in relation to disciplinary procedures. And we state in the letter that this enterprise agreement procedure is to give the staff member the protections of procedural fairness so that a staff member is given the opportunity to respond to allegations and have allegations examined fairly and independently. Clause 30, "Disciplinary Procedures":

PN56

Require thorough examination of the matters in the allegation and the procedural fairness requirements to be properly applied.

PN57

So, you can see in 30.5 that:

PN58

The inquiry would involve the staff member being advised. They must be advised -

PN59

they must be advised in 30.5.1:

PN60

that they are being counselled under the discipline procedures and be provided with a copy of these procedures and that they would have an opportunity to meet with the supervisor and respond to the supervisor and there would be written records of this process.

PN61

NTEU states, in the second page of our letter:

PN62

Given the serious nature of your action, the NTEU requires an urgent meeting to attempt to resolve the matter prior to escalating this potential dispute. The NTEU requires provision of the documentation leading to such serious action to be provided prior to our meeting -

PN63

So we wanted to see the provision of the executive order specifically the minutes of the executive meeting which created the order named in the allegation, and these kind of things are envisaged by the agreement, the MUSC executive order, named in the allegation, which we still haven't received a copy of:

PN64

The evidence that this was advised to staff and, specifically, NTEU member, Greg Apoleski, stated in your letter and how the executive has reconciled such an order with the job requirements of Mr Apoleski who was employed as an executive officer and was attempting to provide advice and assistance to a student at the time of the allegation as per his job requirements.

PN65

As you can see, your Honour, we seek an urgent meeting and we require that the MUSC cease and desist from further action which would exacerbate this potential dispute. And we give information as to how we can meet to resolve the potential dispute. And if that is not forthcoming, then we will use the dispute settlement procedures rather of clause 29 to seek the assistance of the Commission. And as you can see, our letter was confirmed as receipt by the first document in that bundle, your Honour, where, on that very same day, the chairperson writes:

PN66

Dear Officer Wells, thank you for your faxed letter, dated Thursday, 29 April. We've already forward this matter to our solicitor, Ronald Ma, of Ma & Company Solicitors. We'll be contacting you shortly regarding the case of Mr Apoleski and can you please forward all future correspondence to that address.

PN67

So, your Honour, they confirmed that they received our position and knew that we were trying to avert a potential dispute. Unfortunately, the next piece of correspondence we received from the MUSC representatives was the notice of termination of Mr Apoleski. Before that, though, your Honour, I'd like to hand up to you what was displayed in the workplace in relation to Mr Apoleski's suspension. Thank you. This is a memo to all councillors and staff.

PN68

THE SENIOR DEPUTY PRESIDENT: I'll mark the memorandum to all councillors and staff dated 27 April 2004 exhibit NTEU2.

EXHIBIT #NTEU2 MEMORANDUM TO ALL COUNCILLORS AND STAFF DATED 27/04/2004

PN69

MS WELLS: Thank you, your Honour. This notice was put up on the doors and windows and throughout the workplace to illustrate both to students of Macquarie University who are supposed to have faith in Mr Apoleski's ability to give them advice and to all the staff and to all the councillors of the MUSC:

PN70

I hereby notify all councillors and staff that Mr Greg Apoleski has been suspended as a staff until further notice. During the suspension Mr Greg Apoleski is prohibited from entering all MUSC premises. His fingerprint entry scan has been disabled and anyone assisting Mr Apoleski will be immediately suspended from the premises.

PN71

Certainly the procedures of the enterprise agreement do not envisage that the disciplinary procedures taken against a staff member, while giving them the procedural fairness and protections of due process and the opportunity to respond to an allegation, certainly do not envisage both students and staff being advised of the disciplinary action while it's being proceeded with, and the NTEU was greatly concerned to receive that information.

PN72

Finally, your Honour, I'll give you a copy of the notice of termination that the NTEU received as a response to our letter of Thursday, 29 April. Thank you.

PN73

THE SENIOR DEPUTY PRESIDENT: I will mark the letter of 3 May 2004 from Ma and Company to Ms Wells, exhibit NTEU3.

EXHIBIT #NTEU3 LETTER FROM MA AND COMPANY TO MS WELLS DATED 3 MAY 2004

PN74

MR WELLS: Thank you, your Honour. As stated, they refer to our letter dated 29 April 2004. While - in between us writing to the employer to avert a dispute over the application of the agreement, this summary dismissal notice letter states in the third paragraph - sorry, fourth paragraph - formally on the first page:

PN75

In addition, we confirm that Mr Apoleski has been summarily dismissed by our client on 30 April 2004 pursuant to clause 30.10 of the enterprise agreement.

PN76

This is the first notice that Mr Apoleski received that he was dismissed, this letter to us. The dismissal occurred, apparently, on 30 April in the context of the MUSC meeting which Mr Apoleski was barred from attending because according to the advice from the employer he was suspended and would not be able to attend or enter the premises, which was of course Mr Apoleski's opportunity to defend himself.

PN77

I'll take you again to the discipline procedures, your Honour - 30.4, Conditions Leading to Disciplinary Action:

PN78

Macquarie University Students Council may initiate the disciplinary procedures prescribed in this agreement in any of the following circumstances: inefficiency in performance, misbehaviour which constitutes an impediment to carrying out of the staff member's work or that of the staff member's colleagues which is detrimental to students, (c) action which is prejudicial to the health or safety of the other staff or students, and (d) breaches of the policies or regulations or published procedures of the Macquarie University Students Council.

PN79

I illustrate those clauses first, your Honour, because both in the context of this letter dated 3 May 2004 and also in the summary suspension notice itself, both sets of subject matter - misbehaviour at (b), and (d) breaches of policies or regulation - are both envisaged - are both descriptions of conduct which would lead to disciplinary action. It's an important point to make because they are not conduct which would lead to summary dismissal. They are conduct which would expect procedural fairness according to the agreement.

PN80

The other matter, of course, is that if, for instance, you are suspended and then you have - the chairperson according to 30.9(e) has initiated an inquiry pursuant to procedures prescribed in 30.5 into circumstances which led to the suspension, then you can see that the employee would be given the opportunity to respond to the allegations and would be able to respond both to the chairperson but to the council body itself which would be making the final decision. Now, look at formal inquiry procedures at 30.7 - 30.71:

PN81

A matter which may result in disciplinary action against a staff member which is not resolved under the provisions of 30.4 and 30.5 -

PN82

So, for instance, if it's not resolved by the conditions leading to disciplinary action which explains the kind of behaviour which should lead to action - disciplinary action - or could lead to disciplinary action, rather, which is related to the allegations as put by the council, includes both misbehaviour or also breaches of policies - if these things are found not to be resolved by the supervisor - who is here today, Chairperson Ma - if those things are not resolved by 30.5 or 30.6 - so informal and formal counselling procedures - then in the enterprise agreement, formal inquiry procedures would follow. So, at 30.7:

PN83

A matter which may result in disciplinary action against a staff member which is not resolved under the provisions of - at 30.4 and 30.5 must be considered by the council.

PN84

At 30.7.2:

PN85

The nature of the charges which form the basis of the matter shall be specified in writing in sufficient detail and in sufficient time for a defence to be prepared.

PN86

At 30.7.3:

PN87

The staff member concerned and his or her representative shall be entitled to present written or verbal evidence. Witnesses may be called by either party, the staff member concerned, and/or his or her representative shall be present during the submission of all evidence, and the time spent by staff in such meetings shall be deemed to be timed work.

PN88

So, if, for instance, the chairperson thought that this was such a severe disciplinary matter that it was not going to be resolved by informal counselling or formal counselling procedures but was the basis for provisions for summary suspension in 30.9, then according to 30.9(e):

PN89

The chairperson shall initiate an inquiry pursuant to procedures prescribed.

PN90

And 30.5 is followed by 30.6 is followed by 30.7, which leads your Honour to the opportunity for Mr Apoleski to have been given the allegations in writing, to provide a written response and to have his representative - me - attend the meeting with him - the council meeting with him, or the forum in which these issues would be discussed and determined, to represent him and to be able to hear the nature of the allegations in full and in fact and hear the submission as you can see at 30.7.3 of all evidence. 30.8 gives the council determination:

PN91

And having conducted this formal inquiry, the council may determine that the complaint be dismissed, that no action be taken, that the staff member be reprimanded or that the staff member be dismissed.

PN92

So, the council determination steps are also clear in the agreement. Rather than those procedures being properly applied by the council representatives, instead we received this letter on 3 May to confirm that Mr Apoleski had been summarily dismissed by our client on 30 April 2004 pursuant to clause 30.10. At 30.10 is summary dismissal:

PN93

Nothing in this agreement shall limit the right of the students council to dismiss a staff member whose misconduct is so grave as to warrant summary dismissal.

PN94

Well, your Honour, we will now illustrate to you that this was not considered by the council so grave as to warrant summary dismissal by the very nature of the facts they had already initiated discipline procedures by summary suspension - incorrectly - but they had already initiated summary disciplinary procedures by initiating the summary suspension of Mr Apoleski. They had acknowledged that it was a matter envisaged by the conditions leading to disciplinary reaction of 30.4. They had acknowledged that it was, for instance, either misbehaviour or (d), I can only imagine:

PN95

Breaches of the policies or regulation.

PN96

And they set in process the train that would enable them to determine that. But, your Honour, even stranger, it turns out the reasons for termination given in the incorrect application of the termination procedures on 3 May 2004, does not even relate to the issue that is cited in the summary suspension. The issue in the termination for summary suspension is completely different. Mr Apoleski, if you can turn to page 2 of the letter, dated 3 May to the NTEU, your Honour, is given a list of reasons as to why his employment has been terminated incorrectly by the council. And as you can see from 1 through to 8, they relate to allegations about Mr Apoleski opening a bank account and opening it in his role as an executive officer and whether or not, Mr Apoleski was authorised to open such an account as an executive officer.

PN97

Well, your Honour, we're not here today to talk about the detail of the matter. And I understand we're not here to talk about the detail of the allegations or even, at the moment, of the merit of the allegations. So, I'll just say, you know, in under a minute that NTEUs explanation of this matter is that the Macquarie University Students Council has not paid - has been in a financial crisis for the last 18 months - and has not paid the wages of its employees for a number of months, Mr Apoleski, as well as other employees. Mr Apoleski is the executive officer, but he's also the NTEU delegate of the workplace and has been pursuing the students council to implement payment. At around this latter half of 2003, to be under a minute, the university agreed to supplement the council by giving it the money to pay its own employees' wages so that they could be properly paid.

PN98

At around this time, the council made arrangements for Mr Apoleski to implement this. And, Mr Apoleski, as the union delegate, as well as the executive officer, was keen to ensure payment of himself and other employees of the organisation. But the main point here, your Honour, is look at the date, 5 November 2003, Mr Apoleski allegedly without authorisation opened a bank account. By common law definition of some of summary dismissal arising from common law decisions where employees have no enterprise agreement or award protection, something that happened six months prior to the event would not warrant summary dismissal, by common law definition.

PN99

But here, your Honour, this has occurred in the context of a union enterprise agreement regulating the termination procedures and discipline procedures of this employee. The termination letter cites an action that occurred on 5 November 2003 and decides to summarily dismiss Mr Apoleski on 3 May 2004. Mr Apoleski has never had the procedural opportunity to respond to these allegations, let alone the issues in his summary suspension dated 25 April. And, of course, the NTU asserts that the agreement requires that he be given that opportunity.

PN100

And your Honour, finally, there are many - finally, there are many precedents for the NTU seeking your assistance here. Briefly, the NTU - excuse me, the University of Wollongong and the National Tertiary Education Industry Union (2002) FCA 360, the Steele case, illustrates that on the question of procedural fairness, the court noted at paragraph 34 of the decision of Steele:

PN101

Whatever might have been the position in bygone days, most contemporary employees enjoy a right to be notified of any allegation of misconduct and an opportunity to answer the allegation before disciplinary action is taken against them.

PN102

This situation reflects the principle embodied in Article 7 of the Convention concerning termination of employment at the initiative of the employer, adopted by the International Labour Organisation in 1982 and subsequently ratified by Australia and that article reads:

PN103

The employment of a worker shall not be terminated for reasons related to the worker's conduct or performance before he or she is provided an opportunity to defend themselves against the allegations made unless the employer cannot reasonably be expected to provide this opportunity.

PN104

And paragraph 35 of the Steele decision, your Honour, states:

PN105

The international principle has influenced the content of numerous Australian statutes, industrial awards and enterprise agreements. It is unlikely any trade union today would accept a proposed enterprise agreement that permitted the employer to dismiss an employee for misconduct without prior warning and an opportunity to make a defence. Common fairness requires the provisions of these rights. It is disappointing to find a university with employees claiming not to be under the obligation of common fairness.

PN106

In the Federal Court of Australia again, your Honour, Moshirian v The University of New South Wales (2002) FCA 179, deals with the obligations of an employer to ensure all procedures in a clause relating to a decision to discipline have been followed prior to the disciplinary action being made.

PN107

And of course, your Honour, the University of Western Sydney, Bankstown Student's Association and the NTU, it is C number 2003/1508, further dealt with the requirement of a student organisation employer like the Macquarie University Students' Council, to adhere and correctly apply the disciplinary procedures of an enterprise agreement prior to implementing termination, especially in the circumstances where the discipline procedures have been initiated by the employer, incorrectly or otherwise.

PN108

And certainly the Commission has the power to assist the NTU in this matter according to the decision of the High Court in 2001, Construction, Forestry, Mining and Energy Union and Australian Industrial Relations Commission (2001) 75 ALJR 670, the Gordonstone case, confirms that the disputes clause in an enterprise agreement could empower the Commission to be able to arbitrate in an industrial dispute about the application of that agreement and was not limited to the allowable award matters of section 89A.

PN109

Further, the Shop, Distributors, Allied Employees Association v Big W Discount Department Stores, PR 924554, again the Full Bench held that the Commission did have the jurisdiction to arbitrate on whether or not the employer should provide anti-fatigue manning and relied on the clause stating that Big W, it's associates and SDA are committed to achieving and maintaining healthy and safe work conditions in all Big W workplaces by abiding by all relevant occupational health and safety legislation.

PN110

Well here, your Honour, the enterprise agreement in question is far more detailed and prescriptive than that generic clause and requires adherence to its procedures. The NTU and University of Wollongong, C2002/841 and 842, illustrated that where a Full Bench of the Commission has established that the Commission has the power to arbitrate enterprise agreements through dispute settlement procedures and illustrated:

PN111

It is not restricted to the remedies provided by that agreement, but can settle a dispute arising from the enterprise agreement by providing a remedy for that dispute as the Commission sees fit.

PN112

Australian Meat Industry Employees' Union v George Weston Foods, print 924011, C2001/3511, in this decision relating to the proper application of termination in an agreement, the Commission cited the unfair dismissal clause and the dispute settlement clause and with the assistance of the Commission, reinstated to employees and ensured the agreement was properly applied.

PN113

Further, the Maritime Union of Australia v Australian Plant Services, print number 908236, C2001/472, this decision again is very similar to the current circumstances of this dispute, your Honour. Here the settlement of dispute re disciplinary action at paragraph 3 of that decision, in essence the MUA contends that the discipline processes in clause 12 of the agreement had not been applied in accordance with its terms.

PN114

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

PN115

Again, your Honour, just to affirm, the Bankstown Students Association saw that and the NTEU - C2003/1508 - saw that in the circumstances where the employees procedural rights were not properly applied, the enterprise agreement disciplinary procedures were not properly applied prior to the termination of the NTEU member, that the correct action was that the NTEU member be reinstated to their position and the agreement procedures properly applied.

PN116

Well, here, your Honour, the NTEU seeks the assistance of the Commission to resolve this dispute. We seek that the NTEU member, Mr Apoleski, be reinstated to his position with both back wages to his position and outstanding wages of many months length being paid and that the proper procedures of the enterprise agreement be properly applied by the parties to the agreement. We seek your assistance today and thank your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Wells. Mr Potts?

PN118

MR POTTS: Well, yes, your Honour, I will probably be brief. We say that there is only two provisions of this certified agreement which actually apply to this case and that is 30.9 which in itself expresses itself to be the provisions for summary suspension. We say those provisions in there apply to the suspension of Mr Apoleski and consequentially 30.10 which is the summary dismissal proceedings which basically takes, we say, a summary dismissal outside the purview of the certified agreement and in essence it re-affirms the common law position.

PN119

As far as the summary suspension goes, there is a far more detailed lead up to the actual summary suspension than just on that one action that Mr Apoleski took in inviting that person into the rooms. We still don't know who that person was, it was never explained to us. He was never introduced.

PN120

THE SENIOR DEPUTY PRESIDENT: As I understand the letter from the solicitors, that is not relied on for the dismissal.

PN121

MR POTTS: No, it's partly - - -

PN122

THE SENIOR DEPUTY PRESIDENT: It is certainly not the grounds that are detailed.

PN123

MR POTTS: It's partly relied on. There's a number of issues, there's a number of issues. And as far as Ms Wells's point about the activity in relation to that bank account occurred on round about 5 November where in actual fact that never came to the attention of the council until April. Mr Apoleski was asked on about five occasions by the treasurer what bank accounts were, in effect, for the students council and he never divulged that bank account until April. That's, what, six months after the council took its position that sits on 11 November.

PN124

As far as the rulings go that we say Mr Apoleski breached to bring that female person on to the premises, those rulings or council orders, if you like, were posted all around the office and they were - you could not have missed those rulings.

PN125

THE SENIOR DEPUTY PRESIDENT: Can one be made available because it is said that there is none in the possession of Ms Wells or Mr Apoleski.

PN126

MR POTTS: Yes. I don't have a copy at the moment, your Honour, but one will be made available. As far as the email regarding the suspension goes, the letter of suspension was drafted on the 25th where it wasn't actually emailed to Mr Apoleski until 27 April. I don't have sufficient copies but I will hand up this copy to your Honour.

PN127

THE SENIOR DEPUTY PRESIDENT: I will mark the copy of the email and accompanying letter of 25 April 2004 as exhibit MUSC1.

EXHIBIT #MUSC1 COPY OF EMAIL AND ACCOMPANYING LETTER OF 25.4.04

PN128

MR POTTS: So, in effect, your Honour, before the provisions for suspension could be, if you like, properly gone through, it was determined by the council to summarily dismiss Mr Apoleski.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, well, that is my point. They departed from the suspension route and went to an entirely different route for dismissal.

PN130

MR POTTS: Yes, because the council took all the other matters that had been put to Mr Apoleski previously, or his comments. They took all those matters into account and in that - - -

PN131

THE SENIOR DEPUTY PRESIDENT: It is probably too early to get very involved in this but it appears prima facie that Mr Apoleski was given no opportunity to apply to items 1 to 8 on page 2 of the solicitor's letter.

PN132

MR POTTS: No, these matters had been put to Mr Apoleski on a previous occasion.

PN133

THE SENIOR DEPUTY PRESIDENT: I see. That is not said in the letter.

PN134

MR POTTS: No. These had been put to him along with a number of other matters and those other matters related to the accounts, how he became a level 8, how he became the executive boss there. In essence when this bank account was opened on 5 November he wrote a letter to the ANZ bank representing himself as the executive officer. He was not at that time and there was no procedure in effect at that time to make him an executive officer. He was the Health and Welfare Officer at that time.

PN135

It wasn't until 10 November that he suggested to the incoming chairperson that because the accounts were in such a mess and he was the longest serving officer there that he would be the best person to look at those accounts and it was going to be a time consuming job and therefore he wanted a higher level than what he was. He was a level 5 at that time so the chairperson made him a level 8 from 11 November. So he made a gross misrepresentation to the ANZ bank regarding the opening of this account which he had no authority to do as an executive officer in any event.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes, well, that is certainly mentioned in the letter of 3 May.

PN137

MR POTTS: That's correct and all these matters had been put to him about this account.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes. As I say, I doubt very much that I am going to be involved today in examining whether or not there was a fair dismissal or an unfair dismissal.

PN139

MR POTTS: No, but I think your Honour should know - - -

PN140

THE SENIOR DEPUTY PRESIDENT: But it has been raised.

PN141

MR POTTS: There was also misleading and deceptive conduct of the council itself between November 2003 and March 2004 as to his actual activities. He was not attending work, he was in the office maybe two or three days a week and he was only in the office for three or four hours a week. And when asked what he was doing he said he was spending a lot of time out of the accountant's office trying to sort out the accounts. He was consulting with them.

PN142

Well, in effect, the accountant has come back - when an inquiry was made in March the accountant has come back and said, well, the first time he attended their office was 13 January so no-one knows what he was doing between November and 13 January but it was the first time he'd give the accountants any documents to work on. Yet he'd be advising the chairperson from November that the accounts would be reconciled by the accountants basically at the end of November prior to Christmas, by the end of January and then it went on and on and nothing had been done by the end of February and the accountant said, "We're still waiting for the documents from him."

PN143

So, there is no accounting for what his activities were between November and the end of February, beginning of March. There is also the fact that he had, between October - I believe it was between October and March he had a telephone line from MUSC diverted to his mobile phone continually. Now, he had been counselled on all these matters and he was told that if he didn't improve his conduct then he would be summarily suspended, possibly dismissed.

PN144

So, basically all this came to light in the April. And Mr Apoleski has been made up until his termination date and he also misrepresented what his pay was to the - what is it - the money comes through the university. He misrepresented basically. He said from October he was an executive officer grade 8 when in fact he wasn't until approximately five or six weeks after that date and he collected pay to that extent. So, there is a great number of issues, there's a great deal of breakdown in personal confidence in this former employee. And this former employee should not be reinstated.

PN145

THE SENIOR DEPUTY PRESIDENT: Well, as I say, reinstatement is not - I make it plain. It is not even being pursued today, is it, Ms Wells, or is it?

PN146

MS WELLS: Well, I have asserted that we seek the Commission - - -

PN147

THE SENIOR DEPUTY PRESIDENT: You have asked for it?

PN148

MS WELLS: Yes. But I do understand the conciliation process.

PN149

THE SENIOR DEPUTY PRESIDENT: You have asked for it, yes. I withdraw my earlier comment. You certainly have asked for it but I will have something else to say about that in due course. Mr Potts, what I would like to hear from you on is a response to Ms Wells' claim and what flows from it that the suspension wasn't conducted in accordance with the agreement. Well, Mr Apoleski was. It seems a minor matter, your Honour, because, I mean, in the context of the whole thing, the fact that he was summarily dismissed three days later.

PN150

THE SENIOR DEPUTY PRESIDENT: All right. Yes. I think I - - -

PN151

MR POTTS: I'm not sure, in those circumstances, that the provisions for the summary suspension, basically, weren't basically terminated when the dismissal took effect.

PN152

THE SENIOR DEPUTY PRESIDENT: All right.

PN153

MR POTTS: And, of course - - -

PN154

THE SENIOR DEPUTY PRESIDENT: I think I understand your position.

PN155

MR POTTS: - - - these things take time, of course, to develop and basically, with three days, there was no time for it to develop. I don't think I wish to say any more than that.

PN156

THE SENIOR DEPUTY PRESIDENT: All right. Thank you.

PN157

MR POTTS: Thank you.

PN158

THE SENIOR DEPUTY PRESIDENT: Ms Wells?

PN159

MS WELLS: Your Honour, the enterprise agreements provisions are a very important matter to the parties to the agreement, the NTEU specifically. I would just like to address a number of points there, raised by the representatives of the council. Firstly, the important issue is that the letter, which is relied upon for summary dismissal, does not actually refer to any of the assertions that have been addressed to you just then, on Mr Apoleski's attendance or Mr Apoleski's attitude or Mr Apoleski's behaviour. It references none of that. It references only the activities of 5 November 2003.

PN160

Let me briefly submit some facts about those activities. Mr Apoleski opened an account, in attendance with the prior chairperson of the Macquarie University Students Council, Mr Aaron Khwaja, I hope I'm pronouncing it correctly, Aaron Khwaja. I know you're aware of the nature of the employer bodies in this sector, your Honour, and obviously, there is now a different chairperson of the Macquarie University Students Council. But at the time the account was opened, the account was opened with Mr Apoleski, as an executive officer. Mr Apoleski has been confirmed, in writing, as an executive officer since 2002.

PN161

If the employer wants to dispute that, they can illustrate something in writing about that, and that would be a different form of dispute. But Mr Apoleski has been confirmed by his employer as being an executive officer in 2002. But not only that, was an executive officer and opened that account at the bank across the road, from the campus, with the then chairperson of the council, and under the directions of the chairperson of the preceding council, Mr Aaron Khwaja. There is no illustration from the employer of concerns about Mr Apoleski's attendance or other matters asserted here today.

PN162

We are not dealing with the concerns of either parties here today, your Honour, or the NTEU could submit many concerns, illustrated by reams of evidence about lack of payment to employees, lack of adherence to enterprise agreement procedures, the assistance of the university in assisting the council to pay its employees. The fact that many employees had been concerned about other forms of lack of implementation of their employment conditions over the last 12 months, but they are not the form of the dispute in front of the Commissioner today, so the NTEU rebuts the assertions made by the representatives of the council here today about Mr Apoleski's attendance and would seek to illustrate the rebuttal by the fact that there is nothing in writing that illustrates any concerns about these other factors in the workplace.

PN163

Mr Apoleski has worked for a political organisation for a number of years and knows, very well, that, in order to ensure his continuing professional employment, for a political organisation, that he must ensure compliance with regulated forms of attendance, completion of tasks, etcetera, and Mr Apoleski has reams of paper illustrating that he has done this very thing, because of the political nature of his employment which changes each year. But today it's important to note, your Honour, that the representative here today has asserted counselling of Mr Apoleski and the NTEU rebuts the assertion of counselling because again, there is an easy way to document the counselling, if it occurred. There is a counselling procedure clause in the enterprise agreement, under the discipline procedure clauses.

PN164

If, for instance, the chairperson, who is the supervisor of Mr Apoleski, was not happy with the outcomes of the informal counselling procedures, he could have pursued the formal counselling procedures and then he could have pursued a formal inquiry and then he could have pursued a suspension, on any of the matters that have been asserted today. But that's not what occurred. What occurred, simply, was a direction was purported to have been made about nobody attending the workplace.

PN165

The NTEUs assertion is that this was a ridiculous assertion, a ridiculous order which has not been evidenced in any paperwork so far, to the employee, Mr Apoleski, or his representatives, the NTEU, and has not been presented today. So it is an alleged executive order, not allowing anybody into the premises. On the basis of Mr Apoleski knowing nothing about this, meeting with a student to give advice, he was summarily suspended and again, your Honour, because of the assertions made today, I draw your attention to the termination provisions, which is actually 31.1:

PN166

To terminate his or her employment, an employee shall give the employer 14 days written notice.

PN167

That's an obligation of the employee:

PN168

And the services of an employee may only otherwise be terminated upon a resolution being passed at a duty constituted meeting of the council.

PN169

Well, that's supposedly what the 3 May 2004 letter makes reference to. It makes reference to the termination taking effect on 30 April, determined, supposedly by a duly authorised meeting of the council. Well, we have got no idea whether the council was duly authorised or not, but have a look at what happens:

PN170

No action to terminate the services of an employee shall be commenced before disciplinary procedures above have been carried out.

PN171

31(2):

PN172

At least 14 days written notice of a meeting, at which it was proposed to consider a resolution or termination -

PN173

which is what happened. The council assessed and determined the termination of Mr Apoleski, according to the employer themselves:

PN174

When this is proposed to be considered, 14 days written notice will be given to the employee, specifying time, date and place of such a meeting, full details of any complaints or issues to be considered in connection with such resolution. The employee shall be entitled to written information on complaints or issues to be considered in connection with such resolution.

PN175

We haven't seen the resolution, your Honour. We can only assume that it covers the matters that are listed in the 3 May letter. We haven't been given a copy of the resolution from the council meeting of 30 April:

PN176

The employee shall be entitled to make a written report, which shall be circulated prior to the meeting, to all members of the council. The employee shall be entitled to attend the entire meeting, accompanied by a representative of the union. Both the employee and the union representative shall be entitled to speak in regard to the resolution. If the council resolves to dismiss an employee, the employee shall be given 14 days notice, commencing from the date the resolution is passed, or payment in lieu -

PN177

etcetera. And there's a provision clause here:

PN178

Failure to observe the procedure in 31 and 32, will render the council liable to pay the employee the equivalent of three months salary, in addition to other payments due to an employee upon termination.

PN179

So that compensation, that three month compensation is envisaged just if those procedures in 31 and 32 and 33 aren't followed, in relation to termination. But what the employer did here, was initiate suspension and they initiated suspension because they initiated the discipline procedures of the agreement. And the discipline procedures of the agreement have a very clear path, which involves the employee being able to be represented, to have issues put to them to have it done informally or formally, or in terms or counselling procedures, or if it's this severe, according to - alleged by the employer, even in the context of a formal inquiry, but none of those things took place.

PN180

So, your Honour, we are seeking here today, to have the proper application of dispute resolution procedures. We don't think not properly applying the agreement is a minor matter, we think it's an essential matter, and we seek the assistance of the Commission to resolve the dispute. Thank you.

PN181

THE SENIOR DEPUTY PRESIDENT: Very well. I think enough has been said, Mr Potts. We'll go off the record.

SHORT ADJOURNMENT [1.36pm]

RESUMED [1.43pm]

PN182

THE SENIOR DEPUTY PRESIDENT: The matter before the Commission today is an application based on section 170LW of the Workplace Relations Act. The application alleges that the Macquarie University Students Council, hereafter called the council, did not properly apply the Macquarie University Students Council Packed Staff Enterprise Agreement 1996 in the case of Mr G. Apoleski, a former employee. To understand the situation, a summary background is appropriate. Mr Apoleski was, to use a neutral description, an administrative officer of the council. I've used a neutral phrase because there is some debate about what the proper appellation is.

PN183

On 25 April 2004, he was suspended from all duties because of the alleged breach of an executive order of 14 April. He was also prohibited from entering the workplace. The National Tertiary Education Industry Union, the NTEU, became involved and wrote expressing its concerns and seeking a meeting. As I understand it, no meeting took place, but there was an exchange of correspondence culminating in a letter from the council's solicitors advising that on 30 April 2004, Mr Apoleski was summarily dismissed by the council for misconduct.

PN184

The issue of the suspension appears to be one concerning the application of the agreement. However, the effect of clause 30.10 of the agreement must be considered. That clause states, "Summary Dismissal":

PN185

Nothing in this agreement shall limit the right of the students council to dismiss a staff member whose misconduct is so grave as to warrant summary dismissal.

PN186

The council purports to have acted under it, and I find the provision clear and, on its plain and ordinary meaning, no other provision of the agreement affects it. In particular, all that has gone before, in clause 30, is rendered irrelevant. The clause, effectively, preserves the common law position.

PN187

In the course of argument, I was referred to a number of decisions by Ms Wells. Most, if not all, are considered, in my earlier decision, in the Natural Tertiary Education Industry Union v Bankstown Students Association PR933176. And, for present purposes, I note that I rely on the reasoning in that decision. There is a clear distinction between the agreement in the Bankstown matter and the agreement in this one. In the former, there is no equivalent to clause 30.10, and I found that the agreement did not preserve the common law position. Had there been a similar preservation in that agreement, there would have been a different outcome. I also note that in the Bankstown decision, I said, from paragraph 5:

PN188

The issue before the Commission was whether the association consistent with the agreement could do what it did, that is, to summarily dismiss Ms Cranny without following the procedures for termination generally laid down in clause 3.10. The association asserted that it could and the NTEU asserted that it could not. The issue can be summarised as to whether or not clause 3.10.10 conferred or preserved the common law right to dismiss for serious misconduct. If this was so, the association acted in accordance with the agreement, notwithstanding, that it did not follow the procedures laid down in 3.10.

PN189

And further in that agreement, in respect to a decision of a full court of the Federal Court in the University of Wollongong v The National Tertiary Education Industry Union, I said:

PN190

The terms of the agreement, considered by the full court in that decision, differ from the terms in the agreement under consideration. However, the principles drawn from the decision of the full court to comply with equal force to the agreement. The full court notes that the agreement in that case, "Regulates the termination of the relationship with an employer and employee between the university and its staff members by stipulating as follows for the giving of notice on one side of the other." It notes that where the staff member is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the university to continue the employment of the staff member concerned during the required period of notice, the staff member could be terminated. There is nothing similar to this in the agreement -

PN191

that is, the Bankstown agreement. I believe that I have applied the decision of the full court, in that particular case, and for these reasons, in general, I dismiss the application. For the record, I note that there is an application under section 170CE of the Act alleging an unfair, unjust or unreasonable dismissal which arises from the facts in this case. I have no comment of the merits of either side. I adjourn the Commission until 2 pm. I adjourn this matter indefinitely.

ADJOURNED INDEFINITELY [1.43pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NTEU1 GROUPS OF DOCUMENTS COMMENCING WITH A FAX OF 29/04/2004 TO MS WELLS FROM MR VICTOR MA AND ASSOCIATED DOCUMENTS PN20
EXHIBIT #NTEU2 MEMORANDUM TO ALL COUNCILLORS AND STAFF DATED 27/04/2004 PN69
EXHIBIT #NTEU3 LETTER FROM MA AND COMPANY TO MS WELLS DATED 3 MAY 2004 PN74
EXHIBIT #MUSC1 COPY OF EMAIL AND ACCOMPANYING LETTER OF 25.4.04 PN128