C2005/2866, Transcript of Proceedings [2005] AIRCTrans 1252 (6 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11663-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER DEEGAN

C2005/2866

APPEAL BY NATIONAL TERTIARY EDUCATION INDUSTRY UNION
s.45 Appeal to Full Bench
(C2005/2866)

SYDNEY

10.02AM, MONDAY, 23 MAY 2005

Reserved for Decision

PN1

MS P MULLINS: I appear on behalf of the National Tertiary Education Industry Union, together with MS G WELLS.

PN2

MR C CLARKE: I appear for the University of New South Wales, together
MR D WARD from the university.

PN3

JUSTICE GIUDICE: Thanks. Are you counsel, Mr Clarke?

PN4

MR CLARKE: No, I am just an employee of the University.

PN5

JUSTICE GIUDICE: You're employed by the University; thank you. Yes,
Ms Mullins?

PN6

MS MULLINS: Your Honours and Commissioner, just if I could start by confirming the Full Bench has the relevant papers? There is a blue ring binder which was the Appeal Book I provided. Then, unfortunately, there were a number of items that were then later provided. On 13 May, attached to a letter, there was a submission outline in accordance with the agreement from the parties, and at that point, attachment B which was missing from exhibit UNSW2 which was an attachment to the witness statement of Ms Lafferty, was provided.

PN7

JUSTICE GIUDICE: Yes. We have those, thank you.

PN8

MS MULLINS: There was also, on 28 April, at the time we didn't have the transcript for the hearing on 18 March, and in a letter of 28 April, that transcript was then provided.

PN9

JUSTICE GIUDICE: Thank you.

PN10

MS MULLINS: There may be some confusion as a result of there being an UNSW2 exhibit and an UNSW3 exhibit. There's no UNSW1 exhibit provided and that's because it appears to have just been a numbering error. So my friend and I are aware there was never an UNSW1 exhibit. Just, your Honour, there were two typographical errors in the submission which I just want to briefly take you to. In paragraphs 49 and 51 - there were both picked up in my friend's submission in reply - make a mistaken reference to schedule A. They should both be referring to schedule 5.0.

PN11

JUSTICE GIUDICE: Yes.

PN12

MS MULLINS: Your Honour, just while we're on paperwork, my friend has provided a submission on behalf of the University, and there was one point that I wanted to take you to in term of matters that are dealt with in that submission that go to action that was taken between the parties since the decision of his Honour, Senior Deputy President Duncan. Those appear at paragraphs 38 and 39; they make reference to a meeting of the parties that occurred on 12 April, seeking to rely on some of the material that came out of that.

PN13

Then again there's a later reference at paragraph 67(iv) that seeks to rely - I beg your pardon, I have the wrong reference - paragraph 59(6), to rely on paragraphs 34 to 42 inclusive, and largely those other 38 and 39 that I raised concerns about. I would be seeking a response to the - well, basically that any material that relates to matters occurred after the decision of his Honour not be taken into account in the submissions of the parties.

PN14

JUSTICE GIUDICE: Well, I suppose the question is whether that information might be relevant to our consideration in any way. I suppose the normal test a Full Bench would look at in a situation where it's asked to consider fresh evidence would be whether the material was available at the time of the hearing before the Senior Deputy President, in this case. Was this material available or not?

PN15

MS MULLINS: Your Honour, it's my belief that the University should only be able to rely upon attachment B to UNSW2 which largely overlaps with the material that's in paragraphs 38 and 39, but it's our submission that it doesn't go as far as the statements that are made in 38 and 39.

PN16

JUSTICE GIUDICE: Yes. Would it be convenient to hear from the University as to whether we should admit that material, or would it be better to wait until you have finished your submissions? What's the preferred course?

PN17

MS MULLINS: I am happy with either point, your Honour. I just wanted to raise it early, given - - -

PN18

JUSTICE GIUDICE: Yes. All right. Perhaps the best thing is if you continue with your submissions and we will hear from Mr Clarke in due course about those paragraphs as well as the rest of the submission.

PN19

MS MULLINS: Thanks, your Honour. This is an appeal against the decision of Senior Deputy President Duncan issued on 30 March - - -

PN20

MR CLARKE: Your Honour, given that the NTEUs appeal application wasn't submitted within the 21-day timeframe, we intended to make some submissions on that.

PN21

JUSTICE GIUDICE: Yes. When do you want to make those? Do you want to take that as a preliminary issue?

PN22

MR CLARKE: I think so, your Honour, and I believe that - - -

PN23

JUSTICE GIUDICE: Just a moment. Ms Mullins, do you have any submission to make about that, or should we hear Mr Clarke on this point?

PN24

MS MULLINS: Your Honour, if you hear him on that matter first and then I
will - - -

PN25

JUSTICE GIUDICE: Yes. Yes, go ahead, Mr Clarke.

PN26

MR CLARKE: Your Honour, part of the University's opposition to an extension of time being granted, one of the issues goes to the very point that Ms Mullin raised in regard to the material that was discussed at the meeting on 12 April, and we would believe that that material should form part of the University's submission on the grounds that it goes to a number of issues raised by Senior Deputy President Duncan in his arbitrated decision and that we believe that given the fact that the appeal lodged by NTEU was not made out until 25 April 2005, and the meeting was held on 12 April 2005. We would argue that that particular material is relevant to a number of submissions that will be made today.

PN27

I think perhaps it basically goes to the heart of the number of grounds of appeal on which the NTEU relies and for those reasons, and there may be others, we believe that the material should be rejected by the Full Bench.

PN28

JUSTICE GIUDICE: Mr Clarke, I have indicated that we will hear you on - just a moment. Where in your submissions do you deal with this question of an extension of time within which to lodge the appeal?

PN29

MR CLARKE: Your Honour, it's at paragraphs 38 and 39 of our submission. Sorry, your Honour, I may have misunderstood. You're referring to the submission put in by the University on Friday?

PN30

JUSTICE GIUDICE: Yes.

PN31

MR CLARKE: Or the issues raised by Ms Mullins regarding the 12 April material?

PN32

JUSTICE GIUDICE: Look, we may be at cross-purposes. I thought you were taking some point about the fact that an extension of time is required?

PN33

MR CLARKE: No, your Honour. I am sorry. I am talking about the NTEUs request to have certain material, as I understand it, to not form part of the declarations.

PN34

JUSTICE GIUDICE: Yes. The submission you have made so far is that you should take the material into account. Can you tell us a bit more about that material? Is there anything other than what you have in those two paragraphs?

PN35

MR CLARKE: No, your Honour.

PN36

JUSTICE GIUDICE: Could you just repeat why you say we should take that into account?

PN37

MR CLARKE: Your Honour, the point I was making is that the NTEUs application, or their appeal application, wasn't made until 21 April 2005.

PN38

JUSTICE GIUDICE: Yes.

PN39

MR CLARKE: In accordance with the Senior Deputy President's arbitration decision at paragraph 1(i). One of the requirements, or the requirement under that particular decision, or part of that decision, is that the parties would meet to provide some information to the union, which we did, and also fulfil - I think it's paragraph 1(ii) of his decision - wherein he asks the parties to talk about the commencement of the policy. So we believe it's particularly relevant to a range of issues that will be submitted by, I guess, both sides today.

PN40

JUSTICE GIUDICE: Well, usually if it's intended to adduce further evidence or to ask the Bench to admit further evidence on an appeal, that evidence would be put in some kind of formal fashion as to what occurred. Have you got an affidavit or something?

PN41

MR CLARKE: No, I don't, your Honour.

PN42

JUSTICE GIUDICE: Well, this tabled documentation you refer to, what's that?

PN43

MR CLARKE: Your Honour, that was referred to 100 casual employees in the library at the particular time Senior Deputy President Duncan was determining the matter. Now, of that 100 forms, if you like, of material, 98 of that referred to casual student assistants in the library.

PN44

JUSTICE GIUDICE: What were the documents?

PN45

MR CLARKE: Basically the engagement forms that related to their casual employment, which went to the heart of the NTEUs submission, and why Senior Deputy President Duncan decided, "I have made my decision on this" and he refers to a decision where he says, "On the plain meaning of clause (d)(i) of schedule 5, that I believe that these casual student assistants are excluded from conversion under schedule 5 of the agreement.

PN46

JUSTICE GIUDICE: So these documents were, I think, employment agreements or - - -

PN47

MR CLARKE: Essentially, they were, your Honour. Basically what he - - -

PN48

JUSTICE GIUDICE: Yes. Look, I am asking you something which perhaps you assume is a rather - - -

PN49

MR CLARKE: Obvious point, yes.

PN50

JUSTICE GIUDICE: Well, possibly, but I just want to know what the documents were that you provided at this meeting. Were they employment agreements? Were they extracts from employment agreements?

PN51

MR CLARKE: You could call them employment agreements, your Honour.

PN52

JUSTICE GIUDICE: Well, what do you call them? What did you give them?

PN53

MR CLARKE: They're basically an employment form that says - that confirms that I'm a student of the university and that a range of other conditions will be met.

PN54

JUSTICE GIUDICE: Yes. What were the conditions relevant to that?

PN55

MR CLARKE: It talked about the rate of pay - - -

PN56

JUSTICE GIUDICE: But what were the conditions that went to this point, about the nature of their employment?

PN57

MR CLARKE: Can I just get some instructions?

PN58

JUSTICE GIUDICE: Yes, certainly.

PN59

MR CLARKE: Sorry, your Honour. Your Honour, if you go to, in the material forwarded to you, at UNSW2, it's a witness statement of Susan Lafferty, if you look at attachment A that follows the statement?

PN60

JUSTICE GIUDICE: Yes.

PN61

MR CLARKE: The information that's set out in the various forms is consistent with what was provided to the NTEU on 12 April.

PN62

JUSTICE GIUDICE: I see. Well, what would this new material add to what was already known before the Senior Deputy President when he heard the case?

PN63

MR CLARKE: Well, as I said earlier, your Honour, all it would confirm is that our position was before Senior Deputy President Duncan, that the 100 casuals, of which 98 are casual students, essentially confirmed what the University's position was.

PN64

JUSTICE GIUDICE: But is that the only - - -

PN65

MR CLARKE: Essentially, that's - - -

PN66

JUSTICE GIUDICE: That's the only point? Yes.

PN67

MR CLARKE: Yes, and in accordance - and that just fulfilled part of the arbitrated decision.

PN68

JUSTICE GIUDICE: All right. Ms Mullins, what do you say about that?

PN69

MS MULLINS: That in the way it's expressed in paragraphs 38 and 39, that goes beyond that and purports to deal with assertions that no issue was raised regarding further documentation which, as I understand my friend's submission, would therefore mean that we had no issue with the material, the evidence about 98 casual students, whereas in fact we have different assertions, and if there was to be evidence about 12 April, there would be different assertions that - - -

PN70

JUSTICE GIUDICE: Sorry, where is that?

PN71

MS MULLINS: In paragraphs 38 and 39 of the University's submission.

PN72

JUSTICE GIUDICE: Yes, but just tell me exactly where? Exactly what part of it do you say is not correct?

PN73

MS MULLINS: I beg your pardon. That it makes an assertion that neither the NTEU nor the CPSU raised any questions regarding the tabled documentation.

PN74

JUSTICE GIUDICE: Yes.

PN75

MS MULLINS: We raised the question at the meeting where the documentation was provided about whether they were documents that went to all of the 100 students - sorry, all of the 100 casual library staff, and the reply was that, no, it wasn't 100 per cent. They didn't have documents for every single one of the 100 casuals.

PN76

JUSTICE GIUDICE: Well, do you see 39(1)? Do you dispute that contention?

PN77

MS MULLINS: We have insufficient information to support whether or not they were casual students who met the exclusion under clause (d)(i) or whether they happened to be students who were employed casually. So one of the distinctions in this case is that schedule 5.0 enables an employer, when faced with an application for conversion, to deny it on reasonable grounds and schedule 5(d) defines one of those reasonable grounds as being, effectively, that they are an employee in a designated student casual position. So in order to see whether they meet the exemption, we need more information to assess whether they met that criteria or not.

PN78

JUSTICE GIUDICE: Yes.

PN79

MS MULLINS: One of the orders of his Honour was to provide the union with information to go to that point. My submissions, if we were going to evidence on 12 April, would be that at this stage, we're not convinced about who or who is not a designated student position to meet the exemption.

PN80

JUSTICE GIUDICE: Yes. Is there anything else that you - I suppose not?

PN81

MS MULLINS: Well, on the assertions that are made in 38 and 39, just that they're not in the way of an affidavit and that those aspects which I think my friend was trying to rely on are contained in attachment B to Ms Lafferty's statement, which is UNSW2. So if that is all my friend is trying to deal with, then perhaps it would be safer to rely on the evidence that was before his Honour in UNSW2, attachment B.

PN82

JUSTICE GIUDICE: Yes. All right. Yes, Mr Clarke?

PN83

MR CLARKE: Your Honour, on that point, what I intended to do today was to table some email correspondence between Mr Ward and Ms Mullins regarding the exchange of information - or the tabled documentation on 12 April. Now, your Honour, given that my earlier point was that given an appeal hadn't been lodged until 21 April, we believe that - as I said earlier - that material should be left alone. The interesting point is, your Honour, the exchange of correspondence between 12 April and 26 April in which that correspondence took place, there is no mention anywhere by the NTEU that they have had any problems with the 98 casual student assistants. The email correspondence will show that their concerns were with the remaining two non-student casuals.

PN84

JUSTICE GIUDICE: Yes. Go on, Mr Clarke.

PN85

MR CLARKE: Your Honour, I would have thought that if Ms Mullins or the CPSU had any difficulties, they would have raised them before now. And they didn't, and they were given clear instructions at the meeting on 12 April that if they had any problems with the documentation, they were to basically provide the University with their concerns, and no concerns, as I said, were raised in respect of the 98 casual student assistants. Therefore, essentially, it goes to our submission that we complied with part 1(d)(i) of his Honour's decision, which was the purpose of the meeting.

PN86

JUSTICE GIUDICE: Yes. Anything else, Mr Clarke?

PN87

MR CLARKE: No, your Honour.

PN88

JUSTICE GIUDICE: Yes. We have decided that we will not admit for the purposes of the appeal the matters dealt with in paragraphs 38 and 39 of the submissions of the University of New South Wales dated 19 May 2005. The NTEU has indicated that it does not agree with what appears to be the main contention in those paragraphs. Furthermore, the paragraphs seem to go to matters of fact which could have been adduced in the proceedings before the Senior Deputy President.

PN89

No reason has been given why material was not. In any event, the primary question before us is whether the Senior Deputy President was wrong in the decision which he gave, and we're not assisted at this stage in going into issue as to what has occurred since his decision since it doesn't seem to bear directly on that question. His decision, of course, was made on the material before him. Yes, Ms Mullins?

PN90

MS MULLINS: Your Honour, the University made a submission that initially sounded like it was an application - it was a challenge to the question of whether the appeal had been made in time, but I think that later changed into the different application you have just dealt with. I just want to clarify for the record that as far as we're concerned, the application was made in time, but if that's a point, I am happy to address it.

PN91

JUSTICE GIUDICE: Yes. I think I may have misinterpreted Mr Clarke, but there's no point taken about the time within which the appeal was filed is there, Mr Clarke?

PN92

MR CLARKE: I think, your Honour, his Honour's decision was handed down on 30 March. Therefore, I think the 21-day period elapsed on 20 April, and it's my understanding it was lodged on 21 April.

PN93

JUSTICE GIUDICE: Yes.

PN94

MR CLARKE: That's the only point I would make.

PN95

JUSTICE GIUDICE: Yes. Well, the Registry file indicates that the appeal was lodged on 20 April at 12.13.

PN96

MR CLARKE: Your Honour, all I can say is that it would appear we have received it, not on the 20th, but the 21st. But if you're - - -

PN97

JUSTICE GIUDICE: What's the date on the appeal document that you have?

PN98

MR CLARKE: I have the documentation here from Mr Ken McAlpine dated 21 April 2005. That was sent to Mr Ward at the University, and there was another letter dated 21 April from Mr McAlpine to the Registrar. I have an application for extension of time for lodging appeal documents, or exemption from lodging appeal documents dated 21 April. There's an application for an order for extension for lodging appeal documents or exemption from lodging appeal documents dated 21 April. We assumed that it was lodged on 21 April, but if you're satisfied that what you have before you is 20 April, then - - -

PN99

JUSTICE GIUDICE: Yes. Well, we wouldn't be inclined to go beyond the Registry's file. Prima facie, that's good enough for us. Unless you have some evidence to the contrary?

PN100

MR CLARKE: Thank you.

PN101

JUSTICE GIUDICE: Very well. Thank you, Ms Mullins?

PN102

MS MULLINS: This appeal is against the decision of Senior Deputy President Duncan issued on 30 March 2005. It's contained in the Appeal Book beneath the first coloured tab. We are seeking leave to appeal in this matter. The decision arose out of an application for final orders by the National Tertiary Education Union regarding a dispute about the application of the University of New South Wales General Staff Enterprise Agreement 2003, and that full agreement has been provided today.

PN103

Just looking at the relevant background to the matter that's under appeal, in the decision itself, Senior Deputy President Duncan summarises succinctly in paragraphs 1 to 7 of the decision the progress of the matter, which is that the union had lodged a dispute about a range of matters and the clause numbers are in paragraph 1 of the decision; that initially the NTEU sought interim orders and were successful in some of those and unsuccessful in others, and the matter then went for a hearing initially on - the application for final orders and the draft orders that were sought by the NTEU are reproduced at paragraph 7 of the decision.

PN104

The dispute related to the issuing of a policy document by the University of New South Wales as described in paragraph 4 of his Honour's decision, and that is attached as NTEU1 as the relevant exhibit. I just take you to that document. So it's underneath the blue tab in the Appeal Book, the fifth tab, NTEU1. The relevant aspects that relate to the dispute are paragraph 2 where it states:

PN105

No student casuals will be employed for more than 12 months.

PN106

Then on paragraph 4, the second dot point:

PN107

In keeping with these industrial instruments, casual employees, student or other can expect to be employed for no more than 12 months.

PN108

The NTEU then raised a dispute about the issuing of this policy on 10 February, which is attached as NTEU2, and initially that dispute went to a concern about failure to consult about the lodging of the issuing of the policy. There was then a disputes committee meeting held between the parties on 18 February and on 25 February, NTEU3 is a further document from the NTEU to the University outlining the concerns in more detail. You will see in that letter of 25 February, NTEU3, that the concern raised included the relationship between the policy and the commitments that are made in schedule 5 of the enterprise agreement.

PN109

There was also a concern raised about the actions of the University, about whether it had exacerbated the dispute under clause 43F of the enterprise agreement, which is the disputes settlement clause. NTEU4, the University in response to that letter makes it clear that it did not see any need for a further meeting. So it appears, your Honours and Commissioner, that there's no dispute between the parties that the dispute procedures, in terms of clause 43, the various stages from (a) through to (e), were followed. As the matter was not resolved between the parties, it was properly referred to the Commission under the disputes settling clause, which is 43(h) and section 170LW.

PN110

JUSTICE GIUDICE: Ms Mullins, can you assist me? Is there a full copy of the dispute resolution procedure set out somewhere in the - - -

PN111

MS MULLINS: Yes, in the enterprise agreement which your Honours and Commissioner were supplied this morning, at clause 43.

PN112

JUSTICE GIUDICE: Thank you.

PN113

MS MULLINS: It's a fairly traditional clause, particularly in our sector, which involved initially the parties - 43A just makes the commitment that this is the clause you go to if you have a dispute about the application of the agreement. The first step is outlined in 43(b) which is to raise it with a supervisor in the first instance and try to resolve it; (c) talks about there being a meeting between the representatives of the unions and the University, and (d) deals with the calling of a disputes committee meeting and that occurred, and I don't think it's in dispute between the parties that that occurred on 18 February 2005.

PN114

So the initial stage was met with the dispute letter on 10 February, the disputes committee meeting on 18 February and followed up to see whether there was any point to have any further meetings, and NTEU4 confirms that the University is of the view that there wasn't any point to have a further meeting and perhaps the Commission is where you should take it. So at that point, clearly the parties didn't believe they were able to resolve it internally. It provides in 43(h) that if it remains unresolved, the parties may refer the matter to the Australian Industrial Relations Commission for conciliation and/or arbitration, and the parties will implement any arbitrated decision of the Commission in resolution of the dispute.

PN115

It was that clause that we relied upon to take the matter to the Commission and there was no issue between the parties before his Honour that that procedure had been followed appropriately to get it to that point.

PN116

JUSTICE GIUDICE: Thank you.

PN117

MS MULLINS: The appeal goes to two aspects of Senior Deputy President Duncan's decision. The first relates to the sacking of Mr Murray Whiteford, and I will go through it in detail; the second relates to the conversion procedures that are provided for in schedule 5 of the agreement. The NTEUs appeal relies on section 45(1)(c) of the Act, and that we submit that Senior Deputy President Duncan determined not to make orders, and those are the orders that I took your Honours and Commissioner to that are outlined and reproduced in his Honour's decision.

PN118

There were a number of those orders related to the policy that we sought, that we chose not to make. The NTEU - we also say that the appeal relies on section 45(1)(g) in that his Honour held he did not have jurisdiction to make orders regarding Mr Whiteford. Looking at the question of Mr Whiteford first, I take you through the relevant aspects of his Honour's decision. At paragraph 35 of his Honour's decision, the NTEU asserted before his Honour that the University has breached clause 43 of the dispute resolution procedures, specifically 43(f)(ii) and there's then an extract of the clause:

PN119

Until the procedures described in subclauses 43(c) to (e) have been exhausted, the University will not change work practices due to staffing or the organisation of work if such is the subject of a dispute, nor take any other action likely to exacerbate the dispute.

PN120

The NTEU then asserted that the three ways that the University had exacerbated the dispute, but only one of them relates to a matter that's before the Full Bench. We say that's the second matter. We asserted before his Honour that by sacking Mr Whiteford, the University had exacerbated the dispute contrary to subclause 43(f)(ii).

PN121

JUSTICE GIUDICE: How would such action be something which came within the dispute resolution provision?

PN122

MS MULLINS: We say that the dispute clause itself is a substantive provision and that the processes that are to be followed if there is dispute, and the various commitments that are in that clause if there's a dispute can themselves be a subject of the dispute procedure. Therefore, the commitment that's made by the parties in 43(f), namely not to exacerbate the dispute, not take any other action likely to exacerbate the dispute, is a matter that can be a subject of a dispute, and that was the matter that we took to the Commission.

PN123

Having raised a dispute about another matter in the agreement - and I will come to the evidence in more detail - but essentially the University in response to
Mr Whiteford signing an open letter, or petition - call it what you will - that was then used actually at the disputes committee meeting, about that dispute, and then finding out, and we say through devious means, finding out the name of
Mr Whiteford, the library manager then, immediately following the disputes committee meeting firstly confirmed that Mr Whiteford had signed the open letter, which is not a very hostile or aggressive letter, and then immediately moved to sack him and escort him off the premises.

PN124

That then led to quite significant exacerbation of the dispute and I can take your Honours and Commissioner through the evidence of various witnesses that outlined the way in which, both from the union point of view, the members of the union and library staff, that that sacking of that library member then significantly escalated that dispute; that the staff became afraid to speak out, the staff became afraid - - -

PN125

JUSTICE GIUDICE: Well, let's assume that they took some action to exacerbate the dispute; what can the Commission do about that?

PN126

MS MULLINS: Well, my submission would be that once it's established that the dispute relates to a matter about the application of the agreement, and we say that exacerbation of a dispute is a matter about the application of the agreement because it's the application of 43(f), having established that there was exacerbation, the Commission was then at large about what remedies it could have in that matter.

PN127

JUSTICE GIUDICE: But how can the Commission punish, as it were, or award a remedy, for a breach of the provision?

PN128

MS MULLINS: Well, there are various cases that have been referred to in written submissions, but the NTEU v University of Wollongong, went to the point about the Full Bench agreed that, in that matter, there had been a dispute that had been narrowly characterised in the first instance, and by looking at the remedy, the Commissioner had reached the conclusion it wasn't a matter that he could make an order about. Under appeal, the Full Bench agreed that you need to correctly characterise the dispute, and as long as it's about the application of the agreement, then the question of the remedy that you're seeking is not then narrowed by the requirement for it to be related to a clause that's in the enterprise agreement.

PN129

There's also the question in the Big W decision where the Full Bench in that decision looked at broad wording that related to a general commitment about occupational health and safety; there was no specific provision that you had to have providing CEMAK, and yet in that case, firstly, they characterised the dispute as being about that broad occupational health and safety commitment and then found that they were essentially at large to make their own decision about what was an appropriate determination of relief or what order to make.

PN130

So as long as the matter is about an application of the agreement, we submit that there's nothing in clause 43 or in section 170LW that would limit what powers there are of the Commission in terms of what orders it chooses to make. And that if a party has taken an action to exacerbate the dispute, then from our point of view, the starting point would be to what action could best be ordered by the Commission that would take the parties back to where they were before that exacerbation occurred.

PN131

JUSTICE GIUDICE: Yes. Is there an authority which says that?

PN132

MS MULLINS: It's a developing area of law, as I understand it, your Honour. The authorities that I rely upon are the NTEU v University of Wollongong, which is provided as the last case in the bundle of paper.

PN133

JUSTICE GIUDICE: Yes. You're probably going to come to that in your submissions anyway, are you?

PN134

MS MULLINS: Yes. We also rely on the Big W decision which is under tab 3.

PN135

JUSTICE GIUDICE: Yes. Yes, I understand. Well, I suppose at this stage I am just flagging a concern, that you might bear in mind.

PN136

MS MULLINS: Yes.

PN137

JUSTICE GIUDICE: I am not saying by any means that there was no dispute here that was capable of coming within the clause. It was this particular issue about exacerbation just attracted my attention. I am not too sure how that fitted into the pattern of, I guess, the grant of power that the Commission has under the Act to deal with such matters.

PN138

MS MULLINS: I will come to that in more detail later, but just a further initial response would be, I can understand if what we were seeking was an order related to some third party that had no bearing on the dispute, no bearing on either of the parties to the dispute, but in this case, what we have is quite a direct relationship where the person concerned was employed in a building controlled by the University. He was engaged in work exactly like a worker would be doing who was directly employed. He was managing the casual staff who were part of the subject of that dispute. The order that we're seeking is against the University, it's not an order that we were seeking against a third party.

PN139

It relates to the actions that a party took against a third party as a result of the dispute, and it also - the University has the ability to grant the order, which is to offer; it's not to require Mr Whiteford to do the employment, it's to offer it. I suppose I would make a number of parallels to other situations. If, for example - I use some extreme examples - the union had raised a dispute and somebody from human resources then said, if you carry on this way, I'll kneecap your family, that's clearly an action they're proposing to take against a third party. We would say that that's clear exacerbation of the dispute.

PN140

We think it's quite appropriate for the Commission, even though it relates to a third party, to then require that the University not threaten to kneecap family members as a result of a dispute being raised. I think that's quite a different matter from us trying to seek an order against a bank, for example, that had nothing to do with the dispute or a superannuation scheme, where you can't prove that the action is linked to exacerbation of the dispute.

PN141

Quite often the Commission has been quite willing to look at it the other way, that if the union is exacerbating the dispute by, for example, attempting a blockade to stop a third party coming into the University, or to take some action where we contacted students directly and some action we took against students exacerbated the dispute, I am sure the Commission would be quite willing and open to say to the union and its members, you should not engage in that activity against the students or against the third party trying to get access to the University, because it exacerbates the dispute.

PN142

So, we're asking for no more, that there has to be a nexus between a third party and the exacerbation of the dispute, but once there is that nexus, ie. the third party is the exacerbation, the action taken against that third party is the exacerbation, then we say it's open to the Commission to make appropriate orders. Just highlighting other aspects of his Honour's decision that go to Mr Whiteford so we can be clear about the union's appeal, in paragraph 38 he makes the comment:

PN143

The second also concerns the application of the agreement.

PN144

The second issue, if you look back to 36, there's a list of three issues there. The second issue is the sacking of Mr Whiteford. It's on paragraph 38, and I think it's not contested between us that what the second is, is a reference to the sacking of Mr Whiteford. His Honour held that it did concern the application of the agreement, but went on to say:

PN145

The issue of whether the sacking of Mr Whiteford exacerbated the dispute, for the purpose of the dispute resolution clause.

PN146

Then in 39 to 42, his Honour summarises details about Mr Whiteford, that he was a temporary employee and there's clearly throughout the decision an element of doubt of a temporary employee of who, is not immediately clear from the documents, but he outlines that no issue is taken as to Mr Whiteford's real employer in the proceedings and concludes:

PN147

Although there may now be doubt, nothing has been put forward to require me to change that impression.

PN148

The doubt, your Honours and Commissioner, essentially comes, as I understand it, from attachment 19 which is the very last document in the blue folder. That describes itself as being an assignment confirmation between Zenith Information Management Services, and it's sent to Gil Derby, the manager in the University library. You will see that there are two assignment confirmations; one on the top goes for the period 11 January '05 onwards, and the one behind it commenced on 2 August '04, but in both of them, you'll see it describes Zenith Management Services as:

PN149

Acting as the agent for the client, has responsibility for the following
activities -

PN150

So, on the basis of that document, that was, as I understand it, there were a series of questions which will be on the transcript from Senior Deputy President Duncan, that was the document that then led to the question mark about in fact is Mr Whiteford an employee, a direct employee of the University, where Zenith Management is simply the agent providing and happening to manage salary, or is he in fact an employee of Zenith Management? So that led to the question mark about doubt, but his Honour proceeded on the basis of Mr Whiteford not being an employee for the purposes of the dispute. He goes on to say:

PN151

Mr Whiteford, along with 20 or so others, signed an open letter.

PN152

That open letter, if I could take you to that, is NTEU6, which is under the blue tab. You'll see at the very back of it, in very faint print at the bottom, a series of the names that had been struck out, which doesn't surprise you, given the sacking of Mr Whiteford, but the name that you'll see there is Murray, and you'll see that the signature matches up with the previous document that I have just shown you, the attachment 19, the Zenith Management Services. So this is the document that was signed by Mr Whiteford.

PN153

If you read through the document, it outlines the concerns that the staff who signed it had about the policy, the NTEU1, the new 12-month cap policy, and you'll see that it's not exactly an aggressive or hostile or abusive letter. It's quite mild in the argy-bargy of industrial relations. It's simply outlining their concerns primarily about the workload impact of the change in policy would have on them. Returning to his Honour's decision at paragraph 41, he outlines:

PN154

At the meeting of 18 February -

PN155

Which you will recall is the dispute committee meeting:

PN156

- at least two copies of the open letter were produced by Mr Dale.

PN157

Who's the industrial officer from the NTEU:

PN158

An unsigned one was handed to Mr Clarke from the University.

PN159

He goes on to say that during the time that the NTEU representatives adjourned:

PN160

Out of curiosity Ms Lafferty said herself, she leaned across the table and read the names of the signatories, one of whom was Mr Whiteford. Shortly after the meeting concluded, Ms Lafferty sent for Mr Whiteford and in Mr Dye's presence, told Mr Whiteford he should leave.

PN161

It was then quoted an extract from the transcript of her evidence:

PN162

I asked Mr Whiteford to leave the library. I don't think that taking a stand against this client is appropriate behaviour for a third party, so I asked him to leave.

PN163

Then in 42 his Honour concludes:

PN164

The reading, and the action taken against Mr Whiteford, created ire. I find that among at least some of the employees at the library, it exacerbated the dispute.

PN165

There's some issue between the parties about exactly what happened in the finding out of the name of Mr Whiteford on the open letter at the 18 February disputes committee meeting, and the evidence of Lance Dale which is NTEU13 goes to that point, he was present at the particular disputes committee meeting, and at NTEU13, he outlines his perspective on page 2:

PN166

I tabled the open letter, but did not give management a copy of this document with staff signatures. I gave them the copy of the document less than the staff signatures. I held up the letter with the signatures on it and waved it in front of me and said words to the effect, "We've already had a number of signatures and we'll be seeking more".

PN167

Then later:

PN168

I do not believe that management representatives will have been able to see the individual signatures clearly.

PN169

He talks about:

PN170

The signed document was kept on our side of the table with a number of other documents. We left the room and left our documentation on the table.

PN171

During the time of the adjournment, Ms Lafferty was present at the disputes committee meeting, and went out of her way to look at the list of names who signed the open letter that had been left on the union's side of the table, and I refer you to the evidence of Mr Byron which appears in the transcript at PN535 to 563. His evidence goes to essentially saying that Ms Lafferty was craning forward while he was in the room, leaning forward to look to see who the names were.

PN172

JUSTICE GIUDICE: Was it intended that the petition be secret?

PN173

MS MULLINS: Initially it wasn't intended for it to be secret. It was that the blank document was provided because the names were still being gathered. But certainly since the sacking of Mr Whiteford, it was definitely intended that it be secret.

PN174

JUSTICE GIUDICE: Yes, you explained that before, but presumably the names were being collected to identify the people who supported whatever was in the letter?

PN175

MS MULLINS: That's correct, your Honour. It's not unusual for the union not to provide the names in a letter until it's got sufficient numbers that no small brief or one individual can be picked on. Within the space of about half an hour, we had 26 names or so, and it was our intention, just because of the timing of the events, it was our intention to carry on gathering names.

PN176

JUSTICE GIUDICE: Yes.

PN177

MS MULLINS: Obviously as soon as Mr Whiteford was sacked, that wasn't a popular choice by the staff. They knew he was sacked and - - -

PN178

JUSTICE GIUDICE: Might have been a career-limiting move, too.

PN179

MS MULLINS: Yes. The question about the sacking of Mr Whiteford; there was a statutory declaration submitted which was NTEU7, and that's a handwritten statutory declaration by Mr Whiteford himself. He says:

PN180

At about 11 am on the 18th, I was called into a meeting with Susan Lafferty, the Acting Librarian and Gil Derby, Manager ...(reads)... escorted me out of the library and I signed off at 11.10 am.

PN181

That statutory declaration was entered in evidence and the University chose not to cross-examine that, and that admission of that document is in the transcript which is underneath the orange tab for 22 March, and that's PN119, and that was introduced without opposition and without a requirement to cross-examine. Looking at the evidence of Ms Lafferty, under the orange tab at PN179, she confirms that during the adjournment:

PN182

I did actually pick them up because they were lying there for me to look at.

PN183

Then when asked under cross-examination why she did so, which is at PN234 of the 22 March transcript:

PN184

Why did you want to see who specifically had signed the open letter and pick it up during the adjournment?

PN185

She says:

PN186

Curiosity.

PN187

It's not then in contention about what then happened, which is that Ms Lafferty then had a meeting where she called in Mr Whiteford and Mr Derby was present. She asked Mr Whiteford, had he signed the petition, and then she sacked him and escorted him off the premises. The evidence of Mr Derby went to the fact that as manager of Mr Whiteford, he had no concerns about his performance and there's no evidence that was before the Commission to indicate that anything other than the fact that Mr Whiteford had signed the open letter was the reason why he was sacked and his work at the University ceased. The evidence from Mr Derby is at PN34 through to 43 of the transcript of 22 March which is underneath the orange tab.

PN188

The NTEU contended, and the Senior Deputy President agreed, that this was a dispute about the application of the agreement, clause 43(f), and also that the act of sacking Mr Whiteford had exacerbated the dispute. I will just take you to the question of exacerbation because I think it goes to why the Commission should or shouldn't consider intervening. In Mr Dale's statutory declaration which is NTEU13 which is underneath the blue tab, on pages 3 and 4 of his statutory declaration, he states his opinion, in the middle of the page:

PN189

The sacking of Murray Whiteford has exacerbated the dispute.

PN190

He then goes on to give his reasons why he thinks it has exacerbated it:

PN191

Prior to the sacking, I spoke with a number of staff in the library who were very supportive and cooperative about providing information related to the dispute. Since the sacking, I've spoken with about 10 library staff who have been very worried as a result of the dismissal of Mr Whiteford and said words to the effect, "I don't really feel I can help you as I'm worried I'll end up like Murray".

PN192

He goes on with other quotes:

PN193

Based on these conversations with library staff, the sacking of Mr Whiteford has meant -

PN194

He gives four examples:

PN195

Certain staff, key witnesses were not prepared to give evidence at our last hearing. Staff are not willing to distribute ...(reads)... talking with the union as they are fearful of what management might do.

PN196

He goes on to say:

PN197

Members and other staff at UNSW, not just the library staff, are concerned about the sacking. We had a union meeting of library staff which passed the resolution attached as exhibit 9.

PN198

Exhibit 9 is essentially a union meeting resolution that - a traditional condemn and de-claw type resolution, but it does show that the broader membership were concerned about the library sacking. He goes on to say:

PN199

At 17 March, we held a rally opposing the University action in sacking Mr Whiteford. Over 150 staff and students attended the rally.

PN200

Which is not an insignificant size. There's also the evidence of Mr Derby who is, you will recall, was the direct manager or was the direct manager of Mr Whiteford, and under the orange tab in the transcript for 22 March at PN44, he is asked:

PN201

What's the impact that the sacking had on other library staff?

PN202

He says:

PN203

People were quite concerned. They came to me asking what happened and they wondered by he was sacked, what did he do? So they were deeply disappointed, the way it happened, as anyone would be. If someone is marched out of the building - of course, I haven't been to any meetings so I don't know what else had gone on, but I know staff in my area are very, very, very upset.

PN204

Then we have the evidence of Mr Byron which is under the green tab, for transcript of 18 March. Mr Byron is an NTEU delegate in the library. At PN493 to 496, he gives evidence about how, following the sacking of Mr Whiteford, that the staff willingness to attend a union meeting dropped off, and the reason that they told him they didn't attend the meeting was:

PN205

They'd heard rumours that names might be taken down. They were worried that their attendance may be noted and ...(reads)... may lose their jobs. This was said in my presence.

PN206

He goes on to say that when he tried to talk to people, they felt uncomfortable talking to him, being associated with the dispute. We submit that the issue in the appeal is whether Senior Deputy President Duncan imposed an additional requirement on himself which wasn't required by clause 43(f) and also wasn't required by section 170LW. That requirement being that somebody had to be a beneficiary of the agreement in order for an order to have any application or to have an outcome that might affect them. That's essentially the aspect of his decision on appeal grounds related to Mr Whiteford that we go to. That's his decision in 48.

PN207

We say that that's a jurisdictional question under appeal because he has imposed an additional fetter on himself in his powers and his ability to have jurisdiction, to make an order in this matter. He is stating:

PN208

The task before the Commission is to require the proper application of the agreement. I have no justification in requiring anything be done about it.

PN209

That follows his view that this because Mr Whiteford is not a beneficiary of the agreement.

PN210

SENIOR DEPUTY PRESIDENT HAMBERGER: Can I ask why did he use that language, "I don't have a justification"? I mean, it's not obvious that's a jurisdictional finding. It's worded in a different way than - - -

PN211

MS MULLINS: I think it's a mixture of language. To use the language, "Require the proper application of the agreement" goes to jurisdiction and then use, "I have no justification". I suppose, to be fair, you could say that the language "no justification" sounds more of a discretionary matter. But following on from the language required a proper application of the agreement, we would say that there were a number of jurisdictional steps that he took himself through. One was the dispute about the application of the agreement, was there actually exacerbation? But then in determining whether he had jurisdiction to actually make an order, he looked at the order that was sought and he found that because his role was limited to the proper application of the agreement, he then imposed a requirement in assessing what did the proper application of the agreement mean?

PN212

He then imposed a fetter himself that required the person to be beneficiary of the agreement. So while I accept that there is a mixture of language, it would be my submission that because he uses the language "application of the agreement", it does go to jurisdiction. We submit that the Senior Deputy President did err on the decision in paragraph 48, firstly because clause 43(f) - which is the dispute clause - is very broad. It uses the phrase:

PN213

Not to take any other action likely to exacerbate the dispute.

PN214

That clause 43(f)(ii) doesn't limit it to action related to the parties to the agreement or to parties to the dispute. If that had been the intention, they could have used narrower language. Secondly, the Shorter Oxford Dictionary definition defines exacerbate as:

PN215

Make harsh or bitter; grievous; to increase the smart or bitterness of; to embitter or aggravate.

PN216

The evidence I took you to before, we would submit, is evidence that the action in sacking Mr Whiteford certainly did exacerbate the dispute. From the union's point of view, what action could more aggravate a union and staff than to raise a dispute and then have someone who is then sacked for signing a letter that relates to that dispute; someone who, where the letter was actually tabled at a disputes committee meeting. Just taking you to other examples, we would say that having found that there was an exacerbation of the dispute, that was the primary question; was there an exacerbation of the dispute?

PN217

To then require that you can't make an order that affects a third party, even if that third party was wrapped up integrally in that exacerbation we say is an unreasonable fetter. If, for example, there was a contracting out dispute and we did try and block the third party from accessing the workplace, then I am sure that the Commission would try and intervene. If we were giving handouts to students in a way that related to a dispute and it was exacerbating or causing a lot of aggravation on the campus, then I am sure that the Commission could order that the NTEU and its members no longer make the handout to students, even though the students are third parties.

PN218

We say that the involvement of Mr Whiteford is very direct. He worked in the library. He managed staff covered by the agreement. The University had 100 per cent control over his work and the employment or work he did at UNSW. He raised a concern about the policy and the dispute. The open letter he signed was used in the disputes committee and the only reason he was sacked was because of the dispute. The University is in fact the only entity that could offer him employment in the UNSW library, whether it's direct employment or through the agency.

PN219

The agency on its own can't order that, but the University has that power and they're a party to the agreement, they're an appropriate one to make the order against. Looking at case law in the area, and I won't go through in too much detail, but just to alert you in the written submission outline, paragraph 22 refers to the Automated Meter Reading Services case. If the grounds of appeal go to jurisdiction, a Full Bench will incline towards granting leave to appeal unless the grounds relied upon are not reasonably arguable or are found to lack substance. In 23, we refer to the MUA v Australian Parks Services. The quote that's there is paragraph 57, my apologies for not detailing the paragraph.

PN220

It makes the point in that decision that the character of the dispute is distinguishable from the orders that may be made in settlement of a dispute, and we rely on that determination. Having found that this dispute did relate to exacerbation of the dispute under 43(f), that then meant that the orders could be distinguishable from the requirement for it to be about the application of the agreement. Similarly, in the Big W decision which was referred to in paragraph 24, the two quotes come from - the first paragraph is from paragraph 18 of the decision and the next one is paragraph 23.

PN221

JUSTICE GIUDICE: Do we have a copy of that decision?

PN222

MS MULLINS: Yes.

PN223

JUSTICE GIUDICE: Or do you have one for us?

PN224

MS MULLINS: That's in tab number 3, the plastic one and it's got grey and blue on the back.

PN225

JUSTICE GIUDICE: Thank you. Yes.

PN226

MS MULLINS: Your Honours, I won't take you through, but the submission deals with the grounds of our appeal related to Mr Whiteford, from paragraphs 33 to 48. It deals with the powers that the Commission has on appeal under House v The King in paragraph 37, and looking to - we say that his Honour allowed an extraneous or irrelevant matter to guide or affect him, in that he imposed an additional fetter on his powers. In NTEU v The University of Wollongong, it's referred to in paragraph 39 of the submission, and quoting from that case at the bottom of the page:

PN227

There's no constraint in these terms upon the remedy that may be decided upon once jurisdiction has been established.

PN228

We rely on that and the SCA decision as saying that in this matter the Commission did in fact have the power to make an order that could have affected an offer to Mr Whiteford. I make the point that the orders that were sought by the NTEU were directed at the University, not Mr Whiteford, and the orders themselves are reproduced at the beginning of the decision of his Honour which states in paragraph 7 of the decision:

PN229

The University will offer employment to Mr Whiteford either as a University employee or as an agency employee on terms and conditions no less favourable than in the terms of the enterprise agreement.

PN230

Bearing in mind also, your Honour, that the Commission then has its own power to take the order and vary it as it sees fit, but certainly we were not seeking a requirement for Mr Whiteford to work there, similarly, that the University offer employment. If you look at when did the exacerbation happen? It happened at the point that Mr Whiteford was sacked. What we were proposing in the order is that the University take Mr Whiteford back and the dispute back to where it was before the exacerbation occurred. You will see from the contract with Zenith Management that it had a reasonably lengthy period of 6 months that the University entered into with Zenith Management Services, in attachment 19, from 11 January 2005.

PN231

Duration of contract, from 11 January to the date 26 weeks following the completion date of the assignment. So there was certainly a period that the University had asked Zenith Management Services to provide somebody for 6 months. At 47 of our submission outline, if the Full Bench upholds the appeal of the NTEU, then we are asking the Full Bench to make the orders sought by the NTEU related to the offering of agency employment or direct employment to
Mr Whiteford in keeping with that original outline of it being 6 months' employment. The orders that we're seeking merely to put the parties back to the position they were in before the exacerbation occurred.

PN232

Looking at the second ground of the appeal, that is based on our submission that the Commission failed to apply the provisions of schedule 5.0(a) of the agreement. In the agreement, your Honours and Commissioner, you will see in schedule 5 - which is at page 65 - of the agreement - this clause sets out the process for long term casuals to apply for conversion, to either continuing or fixed term employment. So it's a process of application, but it does then provide that the University is to take reasonable steps to inform casuals that they have the right to apply, so you can't do it in ignorance. They have to at least inform you of your right, and that's under (c), the last sentence of (c).

PN233

It goes on in (a) to say:

PN234

An employee will not be engaged nor re-engaged, nor have his or her hours reduced in order to avoid any obligation under this clause.

PN235

So we would submit that schedule 5 sets out a process for long term casuals with 12 months' service or more, to apply for conversion to more secure employment, which is continuing or fixed term. You will see the criteria in (b)(i), that over the preceding 12 months, they needed to have worked at least 50 per cent of the ordinary weekly hours of a full-timer. And (b)(ii), as long as they have had regular and systematic work, it doesn't matter what the hours were, if it's been over the preceding 24 months. The schedule also outlines that conversion may be refused on reasonable grounds, and those are described in 5(d). The one that's relevant to the appeal is 5(d)(i) which states:

PN236

The University may only refuse an application for conversion on reasonable grounds.

PN237

So it's a discretionary, they don't have to refuse it:

PN238

Reasonable grounds include, but are not limited to, the employee is a student or has recently been a student, other than where his/her status as a student is irrelevant to his or her engagement and the work requirement.

PN239

So we accept that if it's a casual position that's been advertised as a student casual position in the library, and that being a student is relevant to the engagement and the work required, then that would entitle the University to say, no, we're not going to offer you conversion, even if somebody were to apply. But that's discretionary. The University could, for particular reasons, decide to offer. The issue in terms of the union seeking a range of information from the University was to try and establish which of the casuals who were employed fitted that definition in (d)(i) as an allowable exemption and which didn't, because not all students employed casually are necessarily covered by that exemption.

PN240

They might not be in a designated student position, might happen to be students, and of course, in addition to them, there are people employed casually who are not students at all and therefore aren't subject to that exemption. Looking at the relevant aspects of his Honour's decision, in paragraph 29 he found:

PN241

The NTEU says that the University's new policy puts at risk the conversion rights granted by clause 24(3)(i) -

PN242

Which is simply a clause that then refers to the schedule:

PN243

- and schedule 5 of the agreement. The University says it does not.

PN244

He agrees at that point that that is a dispute over the application of the agreement. In 32, he makes the comment:

PN245

While the dispute may be over the application of the agreement, there's no doubt that the University's position was generally justified.

PN246

And goes on to explain the NTEU categories of different types of casuals that might be employed. In 33:

PN247

On the plain meaning of clause (d)(i) of schedule 5, all of the casual student assistants in the library never had the conversion rights alluded to. There's reason for the NTEU to be concerned about the provision of paragraph 4 of the guidelines.

PN248

That's the guidelines in the policy, NTEU1.

PN249

We have reason to be concerned about that paragraph affecting non-student casuals in the library. Although there are only two such out of the total of 100 at the time the documentation was prepared for the case, there nevertheless is an apparent diminution possible on future benefits. This is not denied.

PN250

The entitlements of those two under the guidelines. Then at 47 and 49; at 47:

PN251

There's nothing inherently wrong with what the University has done in limiting the period of casual employment for casual student assistants in the library. In those circumstances, I do not accept the draft order is the appropriate action to take.

PN252

So that's the nub of the concern. In 49:

PN253

I have given consideration to the most balanced way to recognise both the misapplication that I have found to exist, and the fact that the action the University wishes to take is not inherently objectionable.

PN254

So the issue under appeal, from our point of view on this second aspect is whether the 12-month cap policy involves the proper application of schedule 5. We say that when it imposes a cap on all casuals, not just student casuals, and when it's worded in a way that could pick up students who don't fit the student designated category, that it goes beyond and infringes on the requirements of schedule 5(a). Firstly, we say that because it fails to allow casuals to actually apply for conversion. Even student designated casuals have the right to apply. The University then has the right, its discretion, to refuse it.

PN255

It also fails to comply with schedule 5(a) because it provides that they have set up a policy that effectively means that an employee can be engaged and then reengaged in order to avoid the provisions of the schedule 5. You will see in schedule 5(a) it says:

PN256

An employee will not be engaged and reengaged, nor have his or her hours reduced in order to avoid any obligation under this clause.

PN257

We say that one of the reasons the policy was introduced was to avoid the conversion rights in schedule 5, and if you look underneath the yellow tab, the 7 March hearing, at PN168, being a submission from Mr Clarke. The other point I need to make, your Honour, is:

PN258

We don't hide from the fact that we want to limit the number of people who can be converted at the University as casuals.

PN259

It goes on:

PN260

We want to reduce that, eliminate that, so people can apply through the normal recruitment selection and appointment procedures at the library.

PN261

So we rely on that as supporting the view that one of the reasons that the University had this policy was because they did want to limit those who could get access to conversion and we say that that offended against schedule 5. In terms of the question of were casuals to be engaged and reengaged so they had cause to break in service, or were they to have their hours reduced, we say that certainly terminating them reduced their hours down to zero, and that was the effect of the policy, but also we rely on NTEU12, which is behind the blue tab. NTEU12 was a document which is - and I will take you to the evidence about it in a moment, but essentially the evidence was that this was a document prepared by the University management and given to local University managers in order for them to implement the policy in NTEU1.

PN262

You will see from the column at the top of the various columns that are on NTEU12, that it has a column at the second to last on the right:

PN263

Last 3-month break.

PN264

The first pages talk about not to come back, not to come back, but if you flick through to the third page, it says, "Not to come back until" and in the Comment page, you'll see that for various people it's got the statement, "Must not come back until 10/03/05." So from our point of view, the submission is that that's indicative, that this is a document to implement the policy and certainly regarding these named individuals, and we say that there will be more to come, that there was a deliberate attempt to have a break in the employment and an act of willingness to terminate and then reengage, and that's supported by "Must not come back until".

PN265

Looking at the evidence that turns on that, under the orange tab under the transcript of 22 March, PN207 onwards goes to the evidence of Ms Lafferty. Under cross-examination, PN207:

PN266

Managers responsible for hiring casuals were advised of the new policy -

PN267

That's the NTEU1 policy:

PN268

- and given a list of relevant service dates for casuals so they could dismiss them at the right date. Is that correct?---Yes.

PN269

I would like to show the witness NTEU12, the "Not to come back list". This document was used by managers to implement the 12-month limit, wasn't it?
---Yes.

PN270

Then it goes on to give examples of individuals that were sacked under that policy.

PN271

JUSTICE GIUDICE: I am sorry, where is that, Ms Mullins?

PN272

MS MULLINS: At 207 under the orange transcript.

PN273

JUSTICE GIUDICE: Yes, sorry. I am looking at the wrong one. Thank you.

PN274

MS MULLINS: Unfortunately the numbers in some of them got out of whack between one transcript and the other.

PN275

JUSTICE GIUDICE: Yes, yes.

PN276

MS MULLINS: So the 22 March transcript at 207.

PN277

JUSTICE GIUDICE: Yes. Thank you.

PN278

MS MULLINS: That's also supported in the statutory declaration of Mr Dale, which is NTEU13, that he had the document described to him, NTEU12, as being a document given to managers in order to implement the policy, the 12-month cap policy.

PN279

JUSTICE GIUDICE: Yes. Ms Mullins, just bear with me for a moment; I didn't quite understand this, the rationale for people being classified as "Not come back" or "Not come back until". What was the rationale for the two lists?

PN280

MS MULLINS: Management's rationale, or the rationale of my submission?

PN281

JUSTICE GIUDICE: Well, no, the rationale given by the evidence?

PN282

MS MULLINS: The evidence was that this was the document to implement the policy and the document itself, NTEU12, has two categories; one, "Not to come back" and one, "Not to come back until".

PN283

JUSTICE GIUDICE: Yes. My question is, was there any explanation in the evidence of why a particular casual would be on one list rather than the other?

PN284

MS MULLINS: No, there wasn't.

PN285

JUSTICE GIUDICE: There wasn't?

PN286

MS MULLINS: There wasn't. So there was no detailed exploration of that particular column or the heading, "Not to come back until".

PN287

JUSTICE GIUDICE: Thank you.

PN288

MS MULLINS: Looking at the nature of the different types of casuals in the library, perhaps the easiest one is in UNSW3. This is in the submission of the University at the hearing on 18 and 22 March. On page 14 of that submission, there's a summary of the various types of casuals who are employed in the library. All of that data essentially comes from attachment B to UNSW2. So Ms Lafferty had gone through and trawled through the payroll records and the data and this is the University's summary of it, and their submissions. You will see that at the time of the case, there were 100 casual employees in the library. At the time of the case at first instance, there were 98 casual student assistants, according to the University.

PN289

However, over the immediately-preceding 12 months, there were 162 casual employees engaged over that period, so it's quite a high turnover, quite a high number. Of the 162, 148 the University said were casual student assistants, but
14 were non-student casual employees. So the union's submission was that there was a reasonable number of non-student casuals that were being employed in the library. Of the 148 students, one had worked in excess of the required number of hours to be eligible for conversion. That's the reference to the 50 per cent of the full-time load that have to work over a year, and in six of the 14 non-student casuals, only two had worked in excess of the required number of hours to be eligible to make application for conversion.

PN290

So even on the University's submissions on the numbers, you have quite a large number of non-student casuals who are being employed in the University. It's true that only two at the time were non-student casuals, but over a period of 12 months it's been 14. So that's not an insignificant fraction. If you look at the various criteria for conversion, there were two non-student casuals who had got to the trigger point of working over a 50 per cent load. So we're not dealing with some theoretical case here. We're dealing with the fact that there are, certainly not a majority, but there are individuals who, based on past University practice, could meet the threshold and could and should have had access to conversion.

PN291

It's our submission that the engage and reengage, which is supported by the NTEU12 document, the "Not to come back" document, that that indicates that the policy was being implemented in a way to offend schedule 5. Turning to the question of leave to appeal, we submit that the matters on appeal go to the issue of jurisdiction, it's a jurisdictional fact, and to the various steps along the path of determining jurisdiction. We rely on the Automated Meter Reading Services case which is quoted in our submission outline.

PN292

The jurisdictional point is that we say Senior Deputy President Duncan introduced a fetter on this jurisdiction which was not contained in section 170LW or the disputes settling clause 43, and leave should be given to appeal in accordance with the Automated Meter Reading, but also in accordance with NTEU v The University of Wollongong which is also provided under tab 1 and tab 5 of the cases provided. We submit that Senior Deputy President Duncan made an appealable error of the type envisaged in House v The King. House v The King is reproduced at tab 4 of the cases.

PN293

We submit that he acted on the wrong principal and that he required somebody to be a beneficiary or to be bound by the agreement before the Commission was prepared to issue an order that could affect that person. It's the wrong principal in determining that the 12-month cap policy was not inherently objectionable, given that it didn't comply with schedule 5, point zero A, in terms of engage and reengage, and also that not all students employed casually were necessarily covered by the discretionary exemption in schedule 5(d). We say, as in House v The King, that he was guided by an extraneous or irrelevant matter in terms of
Mr Whiteford's status as an employee or not.

PN294

We say that he did not take into account the material consideration, which is that schedule 5(a) required that you not engage and reengage or reduce hours to avoid the obligations. We submit that the decision was unreasonable or unjust and that a substantial wrong has occurred. We therefore submit that the decision has sufficient doubt to warrant a reconsideration. In terms of public interest, firstly the issue of whether a decision under the disputes settling procedures can require an employer to take an action related to a third party not covered by the agreement, particularly when that third party has had the exacerbation action taken against them, that that's an important, wide-ranging issue.

PN295

We're not aware of it being judicially-determined elsewhere. It would be helpful, I certainly would have referred to the cases, but I am not aware of any case that has gone to whether or not an order can go to a third party where an employer has taken an action that exacerbated that third party related to a dispute. Many enterprise agreements have a dispute provision where the parties have agreed to similar wording about not exacerbating the dispute, so the central issue of exacerbation that affects a third party is an important one for parties generally.

PN296

Secondly, we say that the parties under the object of the Workplace Relations Act in 3(e) are to adhere to the enterprise agreements and it's clear that in this case the University hasn't adhered to the enterprise agreement as found by the misapplication reference by your Honour. Thirdly, the question of an employer potentially avoiding a provision that enables greater job security for casual employees through conversion is a matter of public interest. There's a significant public interest and concern about the lack of job security and about casualisation.

PN297

Fourthly, we say that a significant injustice would arise if leave was refused because it says an employer can sack agency staff in a way that aggravates an industrial dispute. It also would mean that the University will be able to introduce a policy which removes the right to conversion by engaging and reengaging them in a way that defeats schedule 5. That's both non-student casuals as well as students that don't meet the exemption. There have been a number of cases that have held that rights of appeal should be interpreted beneficially, and I could take you to those, and should be interpreted broadly. We say that that should be the case here, and I could take you to those cases, if your Honours wish.

PN298

In some of the cases, looking at leave, they say that you should look at the conduct of the parties. We say that the conduct of the parties as outlined in his Honour's decision reveal that the University did exacerbate a dispute, that there was a dubious practice in how they came to acquire Mr Whiteford's name, and that they continued to implement the new policy despite the non-exacerbation clause. So from our point of view, the actions of the University, we say, go in favour of granting leave to appeal. Your Honours, I didn't intend to go through the details of cases that we have provided because they have been dealt with in the outline of submissions.

PN299

JUSTICE GIUDICE: Yes, thank you. Thanks, Ms Mullins. Yes, Mr Clarke?

PN300

MR CLARKE: Thank you, your Honours. Your Honour, the first thing I'd say is that we rely primarily on our written submission, and I will go through that as quickly as I can, given Ms Mullins has raised quite a number of issues that go to a lot of his Honour's decision. Can I say, firstly, that in terms of procedure, the way events occurred, we would generally agree with what was said by Ms Mullins, although we have a much different understanding in the way of which a number of events occurred in respect to the exacerbation of the dispute and the number of claims made against the University in respect to the disputes meeting.

PN301

But having said all that, that matter was dealt with by the Commission at first instance and I don't propose to spend a lot of time on that. Your Honour, looking at the jurisdiction question which was dealt with in the NTEUs written submission, and their first, if you like, ground of appeal where it said Senior Deputy President Duncan erred in holding he did not have the jurisdiction to do anything in relation to Mr Whiteford. Now, your Honour, we said in our submission that we felt this claim was groundless and we basically said, in point number 2 of our written submission, that the University submits that Senior Deputy President Duncan considered in the first instance whether or not the disputes were ones out of the application of the agreement.

PN302

We went on to say that having completed this process his Honour found that, on the evidence presented, the University had misapplied certain provisions of the agreement and exacerbated the dispute by its actions with respect to Mr Whiteford. As Ms Mullins said, that's referred to at paragraphs 38 and 42 of his decision. I won't read it out. We then say having found - that the University had misapplied certain provisions of the agreement and exacerbated the dispute by its actions with respect to Mr Whiteford, Senior Deputy President Duncan elected to deal with both matters in its entirety in the most balanced way, which was stated by him at paragraph 66, and to bring about the application of the agreement, and that was at paragraph 49 of his decision.

PN303

We submit that in approaching the matter in this way, Senior Deputy President Duncan exercised his discretion on how to deal with the matter, and he went on to say that in the exercise of his discretion in respect to Mr Whiteford, Senior Deputy President Duncan was aware, on the evidence presented, of Mr Whiteford's employment situation. Your Honour, in respect to - we went on to say that this was a very relevant consideration and on that point, we reject the statement made by Ms Mullins in respect to paragraph 33 of her written submission, in which she says:

PN304

Alternatively, if Senior Deputy President Duncan is held to have found that he had jurisdiction, but in his discretion he declined to make such orders sought by the NTEU, he erred in making that decision by taking into account a relevant consideration, namely that Mr Whiteford was not entitled to a benefit of the agreement.

PN305

Your Honour, on that point, as I said, we reject that claim, that Senior Deputy President Duncan erred in declining to make orders in respect to Mr Whiteford by taking into account an irrelevant consideration, namely Mr Whiteford - by taking into account an irrelevant consideration, namely Mr Whiteford was not entitled to benefit of the agreement. The University contends that, that the fact that - which is not disputed by the NTEU - that Mr Whiteford was not entitled to the benefit of the agreement was a relevant factor for the Senior Deputy President in determining whether to exercise his discretion to make orders.

PN306

As I said, your Honour, the University submits that in approaching this matter in this way, he exercised his discretion in how to deal with it, and in exercising his discretion in respect to Mr Whiteford, the Senior Deputy President was aware, as I said on the evidence, that Mr Whiteford - of his employment situation. Having found that Mr Whiteford was not an employee of the University and therefore not a beneficiary to the agreement, his Honour correctly decided that there was no justification requiring anything to be done about him.

PN307

Your Honour, we said in our submission that the University submits that the decision-making processes applied by Senior Deputy President Duncan in respect to Mr Whiteford were properly exercised within his powers under the dispute resolution procedures, and consistent with section 170LW of the Act. The University submits that the processes used by Senior Deputy President Duncan were consistent with the decisions in CPSU v Seven Network Operations at Print PR933766, and SDA v Big W Discount Stores at Print 924554, to which he referred at paragraphs 13 and 14 of his decision.

PN308

Your Honour, as I said, we believe that Senior Deputy President Duncan exercised discretionary judgment in respect to Mr Whiteford, and the University contends that the decision of Senior Deputy President Duncan to decline to make orders with respect to Mr Whiteford should not be disturbed by the Full Bench. In this respect, the approach the Full Bench should take of course is reflected in House v The King. The University contends that leave for appeal should not be granted for the reasons of exercising a discretionary judgment. The Senior Deputy President did not act on a wrong principal, he did not allow extraneous matter to guide him or affect him and he did not make a mistake of fact in the matters before him and he took into consideration all material considerations.

PN309

We further respectfully submit, your Honour, that the orders sought by the NTEU in respect of Mr Whiteford went beyond the scope of the Commission's powers under section 170LW, and to make orders would not be reasonable or incidental to the application of the agreement, which can be found at CPSU v Seven Network Operations at paragraph 32. As such, it is submitted that Senior Deputy President Duncan was correct in making - in not making orders with respect to
Mr Whiteford. Now, your Honour, in our submission we also made a statement in the alternative, if Senior Deputy President Duncan - or the Full Bench would find that Senior Deputy President Duncan decided that he held - that he had no jurisdiction to do anything in relation to Mr Whiteford.

PN310

The University submits that Senior Deputy President Duncan correctly applied the necessary requirements under section 170LW of the Act, to determine whether or not he had jurisdiction to do anything in relation to Mr Whiteford. We went, in our written submission, your Honour, from paragraphs 8 through to 23, to describe the matters that would have been required to have been resolved by Senior Deputy President Duncan under section 170LW of the Act. In that part of our submission, we talk about the matters required to have been resolved by him which touched on the decisions made by his Honour at paragraphs 13 and 14.

PN311

We also set out in our submission how the Senior Deputy President addressed this issue at paragraphs 36, 38 and 42. Your Honour, in our submission we also relied on, at paragraph 19, a number of decisions regarding how the Commission in dealing with matters arising from section 170LW of the Act - we have relied on a number of clauses there which I will go through in a minute. But if I can just make some observations about the case law, the leading authorities, that Ms Mullins referred to in her submission, and those were made at paragraphs 38 and 39. Your Honour, in our view, those decisions essentially refer to - sorry, in particular, I'll deal first with the Big W decision.

PN312

They basically talk about powers conferred upon the Commission and how those powers will be exercised. Your Honour, we would submit that with regard to - sorry. The decision of the NTEU v University of Wollongong, that that decision dealt with matters arising from an employee, in fact a former employee, of the University and not to the resolution of any dispute in relation to a third party. Similarly, NTEU v University of Wollongong was also, as I understand it, in a similar position. So, your Honour, what we say in essence is that the decisions on which the NTEU relies have no particular correlation to how the Commission should exercise its powers under 170LW.

PN313

Your Honour, in terms of 170LW, Ms Mullins was saying that essentially the exercise of those powers, as I understood her submission, that they should not be read narrowly. Your Honour, the difficulty we have with that proposition is that section 170LW does in fact put a - placing a caveat on what its powers are. If you look at the first part of section 170LW, it's said:

PN314

The procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement, may if the Commission so approves, empower the Commission to do either or both of the following matters.

PN315

Your Honour, the University has considerable difficulty in understanding how having a statutory provision which gives the Commission the power with which it can exercise its ability to resolve disputes, it is clear that from both - well, from section 170LW and section 170LI and section 170LT(8) of the Act, each of those provisions talks about the relationship between the employer and the employees whose employment will be subject to the agreement. It is clear from those statutory provisions that in our view, it can only apply to persons or employees who are bound by the agreement with the employer.

PN316

Your Honour, in terms of the leading authorities to which we referred in our submission, at paragraph 19, if I could just very quickly go through some of those authorities just to confirm the University's position that Senior Deputy President Duncan had no authority to exercise or make any orders in respect to Mr Whiteford. Your Honour, if I could just turn to the first decision in your hand out which is the blue folder with such a heading? Your Honour, I won't refer to CPSU v Seven Network Operations extensively, we've dealt with that already, but if you turn to the second attachment, green, it's the Maritime Union of Australia v Australian Plant Services Ltd, PR908236.

PN317

Your Honour, if I could just turn you to paragraph 63 of that decision? Senior Deputy President Duncan Lacy made the following statement:

PN318

What, then, of the orders that the Commission may make in the exercise of powers under an agreement in settlement of a dispute over its application? It seems that the scope and nature ...(reads)... of the agreement to which the dispute relates.

PN319

Now, basically it's a two-part sentence, your Honour. In the first part, of course, it reads that the scope and nature of the orders the Commission may make in circumstances will depend on the agreement of the parties as recorded in the certified agreement. Now, it was never an agreement of the parties that the resolution of a dispute would involve or apply to a third party. The other point I'd make, your Honour, is in relation to the second part of that statement in paragraph 63 which says:

PN320

Provided only that is reasonable and incidental to the application of the agreement to which the dispute relates.

PN321

Now, the making of any orders in respect of Mr Whiteford, we contend, your Honour, would not be reasonably incidental to the application of the agreement to which the dispute relates. Simply because in the Whiteford case, Senior Deputy President Duncan clearly didn't have that authority. Now, your Honour, if I could turn to the tab number 3, which is the yellow tab, which is in the matter of CEPU v Telstra, PR933892. If I could draw your attention to paragraph 34 of that decision? Vice President Lawler said:

PN322

Each of the sources give rise to limitations on the powers and jurisdiction to exercise powers when dealing with a dispute notified under a disputes settlement procedure in a certified ...(reads)... disputes over the application of the agreement.

PN323

Which, of course in our view, is consistent with the statements referred to at paragraph 63 of the APS case. His Honour then went on to say at (ii):

PN324

Any express or implied limitation arising from the terms of the agreement of the parties.

PN325

Now, your Honour, in this respect, we say the express or implied limitation in the present application is that Mr Whiteford was not a party to the agreement under clause 4 of the UNSW agreement. Therefore, as he was not a party to the agreement, that the limitations were that the Commission's powers to exercise the powers provided to it were limited, and we also say that Senior Deputy President Duncan was correct in not exercising those powers or making any orders in respect to Mr Whiteford. If we could then just go on to the Full Bench decision on the Vice President's decision at tab 4. In that decision, the Commission referred to the High Court decision in a private arbitration case.

PN326

I draw your attention in particular to paragraphs 19 through to 32 of that decision. In particular, I'd like to refer to paragraph 32, wherein the Full Bench stated:

PN327

To the extent that section 170MH -

PN328

Which is now of course section 170LW of the Act:

PN329

- operates in conjunction with agreed dispute resolution procedures to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the agreement.

PN330

It merely authorises the Commission to exercise a power of private arbitration. Now, your Honour, we submit that the High Court's statement in paragraph 32 makes it clear that the Commission can only make decisions as to the legal rights and liabilities of the parties to an agreement. Mr Whiteford was not a party to the agreement and therefore in our view no orders could be made by Senior Deputy President Duncan in respect of Mr Whiteford. Your Honour, if I could just then quickly turn to a case which is commonly referred to as Schefenacker. It was a Full Bench decision, Print Number 956575. It's in the green tab of our folder.

PN331

Your Honour, there's some observations made at paragraph 14 of that decision regarding comments made and observations made by McHugh J, and he went on to say:

PN332

Critical to the operation of section 170LI is that for the purpose of certification under Division 2 of Part V(1)(b), there must be an agreement in writing about matters pertaining to the relationship between the employer and all persons who at the time when the agreement is in operation are employed in a single business.

PN333

Your Honour, if I could just then turn to paragraph 20 of the decision of the Full Bench. Once again, the Full Bench is referring to statements made by McHugh J of the High Court in respect to the construction of section 170LI:

PN334

His Honour observed, unlike the provisions considered in Re: Alcorn, section 170LI is not concerned with the meaning of "industrial dispute" or "industrial matter". The expression, "The matters pertaining to the agreement" between an employer and all persons who at the time when the agreement is in operation are employed in a single business.

PN335

He goes on to say a number of matters about Alcorn and its decision. Interestingly, McHugh J also went on to say:

PN336

In those cases, the relevant expression "Where matters pertain to the relationship between employers and employees" and the matters pertaining to the relations of employers and employees ...(reads)... single business of that employer.

PN337

Your Honour, on that point, the University submits that McHugh Js observations about section 170LI which are in similar terms to section 170LW and 170LT(8) clearly express or imply that an agreement can only be one that refers to the relationship between the employee bound by the agreement and all persons employed in a single business of that employer. As we know, Mr Whiteford was not such a person because he was not an employee employed by the University of New South Wales.

PN338

JUSTICE GIUDICE: I know you are taking us to the authorities at the moment, but seeing as you have mentioned Mr Whiteford, I don't quite understand one of the terms of the arrangement which is in these documents from Zenith. It says the duration of the contract is from a particular date to a date 26 weeks following the completion of the assignment. What does that mean?

PN339

MR CLARKE: Your Honour, I am advised that it means this; that if you look at the document, it says in attachment 19:

PN340

Name of temporary employee, Murray Whiteford. Job title, document delivery officer. Commencement date, Tuesday, 11 January 2005. Anticipated finish date for a period of a few weeks.

PN341

Now, that is the relationship or the engagement of Mr Whiteford. It goes on to say hours of work as nominated by the client. The next heading is, "Duration of Contract", from 11 January to a date 26 weeks following the completion date of the assignment. I am advised, your Honour, that relates to the situation where if Mr Whiteford were to be continued to be employed for a period of 6 months and the University were to engage him as an employee of the University, then the University, as I understand it, have to make a fee to Zenith, but the - - -

PN342

JUSTICE GIUDICE: That's the contract with Zenith?

PN343

MR CLARKE: Yes. So the first part is talking about the relationship with Mr Whiteford, but the second part is about the University's contract.

PN344

JUSTICE GIUDICE: So he was engaged on 11 January for a period of a few weeks?

PN345

MR CLARKE: Yes.

PN346

JUSTICE GIUDICE: Then there are some earlier documents as well. There's one that says the commencement is 2 August 2004.

PN347

MR CLARKE: Yes, your Honour.

PN348

JUSTICE GIUDICE: And that was said to be for a period of a few weeks as well.

PN349

MR CLARKE: That's my understanding, your Honour. It went to a period prior to the second engagement.

PN350

JUSTICE GIUDICE: They are the only two engagements, were they?

PN351

MR CLARKE: Yes.

PN352

JUSTICE GIUDICE: So the few weeks turned into - - -

PN353

MR CLARKE: A period of some 12 weeks, your Honour, in the first period.

PN354

JUSTICE GIUDICE: 12 weeks? Does the evidence indicate when that period of duty concluded?

PN355

MR CLARKE: It concluded on, I think, 18 February 2005. So it only lasted some 5 or 6 weeks before his engagement was discontinued by the University.

PN356

JUSTICE GIUDICE: No, I was talking about the first one, the one dated 2 August 2004. Did that continue until the new contract was signed on 11 January or - - -

PN357

MR CLARKE: Can I seek some instructions on that, your Honour?

PN358

JUSTICE GIUDICE: Yes.

PN359

MR CLARKE: Your Honour, I am instructed that the first contract was for a particular role. The second contract was a different role.

PN360

JUSTICE GIUDICE: Well, I am not really interested in that. My question was - well, it may be interesting but it's not the question I was asking. The
2 August 2004 period, when did that finish?

PN361

MR CLARKE: It continued prior to the commencement of the second contract.

PN362

JUSTICE GIUDICE: So the two arrangements were contiguous?

PN363

MR CLARKE: Yes. Your Honour, and finally if I could just refer to paragraph 45 of the decision in Schefenacker. It relates to the summary; in fact, it's paragraphs 45 and 47, your Honour. I will turn to paragraph 47 where the Full Bench said:

PN364

When dealing with applications for certified agreements made pursuant to Division 2 of Part V(1)(b) of the Act ...(reads)... the description in section 170LI.

PN365

It goes on at paragraph (b) to say:

PN366

To answer that description, each discrete substantive significant provision must be about matters pertaining to the relationship between the particular employee and its capacity as an employer and its employees as their capacity as employers.

PN367

Your Honour, the issue regarding the relationship between employer and employee was discussed at paragraph 73 of that decision. I won't read it, but your Honour, we rely on the statements made in paragraphs 73, 79, 80 and 83, which essentially substantiate or are consistent with McHugh Js comments made earlier in that decision. Your Honour, we would submit that sections 170LI, section 170LT(8) and section 170LW are inextricably linked, and as such, we submit that it would be a lack of consistency and logic were it to be decided that the making of orders in resolution of the dispute under section 170LW of the Act could be made in respect to a person who is not an employee of a company or organisation and his employment is not subject to the agreement.

PN368

Your Honour, we submit that paragraphs 19 and 20 of the University's written submission are threshold issues, and paragraphs 19 and 20 of our written submission refer to the case law to which I referred. We simply affirm that the University - well, explicit from the decisions in the APS and Telstra decision, and Schefenacker, that the Commission only has jurisdiction under 170LW of the Act to make decisions as to the legal rights and liabilities of the parties to an agreement and not to non-parties to an agreement, such as Mr Whiteford.

PN369

Your Honour, could I also indicate that at the decision in first instance, Senior Deputy President Duncan asked Ms Wells who was the advocate for the NTEU, could she provide any authorities to Senior Deputy President Duncan in the proceedings in the first instance that could provide him with some evidence about the assertions made that he had the scope to make some orders. If I could refer you to PN409 and 410 to the decision - sorry, to the transcript which is below the orange tab, wherein at 408 Ms Wells went on to state:

PN370

Your Honour, just to point out that in the list of cases which I have not given copies of, I also have another, more recent example ...(reads)... it wasn't a third party.

PN371

Ms Wells stated:

PN372

Yes, they were no longer an employee at the time of the resolution, although, your Honour, I just forgot to mention that. I just now give copies of that case. Thank you.

PN373

Now, your Honour, at first instance, we would argue that Ms Wells could not rely on any authorities to give him the scope of - to make the orders sought by the NTEU in its final order. We submit that the cases, as I said earlier, regarding SDA v The University of Wollongong are also not reliable and cogent decisions that provide the scope for the Senior Deputy President, or any other member of the Commission to make any orders in respect to a third party. Your Honour, the other question goes to the orders that Ms Mullins sought from Senior Deputy President Duncan.

PN374

Your Honour, it goes to the utility of the orders it was seeking. If I could go to paragraphs 21 to 23 of the University's written submission because I think it's important to highlight this point, your Honour. The University submitted that as Mr Whiteford was employed by a labour hire company which was not a party to the agreement that Senior Deputy President Duncan had no jurisdiction to provide any orders. At paragraph 22, we indicate:

PN375

It is necessary to examine each of the orders sought by the NTEU in respect to Mr Whiteford.

PN376

The University submits that Senior Deputy President Duncan could not make the orders sought in respect of Mr Whiteford because such an order would have required the University firstly to negotiate the reinstatement of Mr Whiteford's employer, and that was Zenith Information Management Services which is not bound by the agreement. In other words, as such, bind a third party. We went on to say, secondly, it placed Mr Whiteford in a better position than he previously occupied in that he would have had to have been offered a position as an employee of the University.

PN377

We went on to say that the University admits that the orders sought by the NTEU in respect of Mr Whiteford was futile in that Senior Deputy President Duncan had no power under the agreement to make any such order. Your Honour, we made mention at paragraph 24 about if the Commission were to accept our arguments in paragraphs 2 to 6, which refer to the discretionary way or approach in which the Senior Deputy President went on to resolve the disputes, then we would rely on our submissions that were made from paragraphs 7 to 23.

PN378

Your Honour, I think that's all I wish to say about the first ground of appeal made in the NTEUs written submission. What I would like next to refer to is the second ground of appeal which goes to the statement made by the NTEU that Senior Deputy President Duncan erred when he found that the student casuals never had a conversion rate under the agreement. Your Honour, Senior Deputy President Duncan, as you would be aware, dealt with this matter in his decision at paragraphs 32 to 34. One of the statements made by the NTEU at paragraph 51 of its written submission was:

PN379

The NTEU claims that it's clear from the words in schedule A -

PN380

It should be schedule 5:

PN381

- that the clause applies to casuals who meet the criteria in part (b).

PN382

Now, we went on to indicate that this particular part of the schedule need to be read in its totality. We also indicated at the start of paragraph 52 of its written submission:

PN383

The University may refuse an application for conversion pursuant to clause (d) of schedule 5.

PN384

Now, your Honour, we made the statement that it was made abundantly clear by the University through Ms Lafferty's witness statement at paragraphs 8 and 9 which I'd like to refer to in a moment, that through Ms Lafferty's witness evidence and through the University's written submission to Senior Deputy President Duncan in exhibit UNSW3, paragraph 3.57, that the applications for conversion from casual students occupying a position in the library set aside for students would be refused pursuant to clause (d)(i) of schedule 5.

PN385

Your Honour, I won't go through the rest, other than to refer to what Ms Mullins remarked in respect to part 4 of our written submission which dealt with the various statistics and the way in which the number of casual employees were engaged in the library. I think, your Honour, one of the crucial points or differences between the parties is that we asserted before Senior Deputy President Duncan that of those 100 registered casual students in the library, 98 of those were in positions that were set aside for students only, if you like. Now, it gets back to the question we put before which Ms Mullins raised, about where is the evidence that these 98 casual students were who they said they were, and the two non-student casuals, what was their status?

PN386

Now, if I can, as I said, just refer you to paragraphs 8 and 9 of UNSW1. Of course, this goes to the issue or the claim regarding the avoidance by the University - - -

PN387

JUSTICE GIUDICE: Do you mean 2?

PN388

MR CLARKE: Sorry, University 2, your Honour. My apologies. At paragraph 8, Ms Lafferty stated:

PN389

In developing the guidelines documents -

PN390

Which is NTEU1:

PN391

I did so under the clear understanding that schedule 5 of the agreement was irrelevant to the circumstances because the people affected were casual student assistants employed specifically because of their status as UNSW students.

PN392

JUSTICE GIUDICE: Was there any cross-examination of that paragraph?

PN393

MR CLARKE: There was none, your Honour. Neither paragraph 8 nor paragraph 9 was contested:

PN394

I was a member of the bargaining table at the last round of bargaining when the new enterprise agreement for general staff in 2003 ...(reads)... from being able to considered for conversion.

PN395

I think that is a very relevant point, your Honour, and as I said, it was uncontested. Ms Lafferty had no thinking whatsoever about schedule 5 and therefore the claims made that somehow the University was somehow trying to avoid its obligations under (d)(i) of schedule 5 are not correct and have no substance.

PN396

SENIOR DEPUTY PRESIDENT HAMBERGER: You talk about the ones who aren't students? Are you going to go on and talk about the ones who aren't students, such as they are? I mean, especially when there were only two, but nevertheless - - -

PN397

MR CLARKE: Yes. What we're able to demonstrate to the Commission is essentially that there were two non-student casuals, both of whom were - essentially commenced duty in November 2004. Now, under clause (d) of schedule 5, the eligibility criteria, a casual to be eligible to apply for conversion must be able to satisfy that they have worked over that 12-month period
50 per cent of the full time employee, which was 840 hours. As the evidence provided at part 4 of the NSWU2, I think there were two non-students casuals who went over the 840 mark, which is the benchmark, and one student who I think had 861 hours.

PN398

But we also made, in reference to that point, your Honour, that - and I refer to it at paragraph 3.57 of UNSW2, because I think it's a fairly pertinent point. Because the allegation made against the University and made in submissions by Ms Mullins today was that - and I think made in her written submission as well, is that the - notwithstanding the fact that casual students - the clause at (d)(i) of schedule 5 is discretionary, which we don't argue about.

PN399

What we said at paragraph 3.57 was that notwithstanding the fact that there may be a number of reasonable grounds on which the University may refuse an application for conversion from a casual student who works in the library, the University's fundamental position is it would also use part (d)(i) of schedule 5 to refuse any such application. So in other words, the University at the library has made a predetermined decision that it does not propose to convert any casual student assistants in designated positions.

PN400

Now, Ms Mullins made the point about the other type of casual employees that can be engaged in the library. We have no right under (d)(i) of schedule 5 to reject a non-student casual who's not in a designated position. We have no qualms about that. But that was not the question that was - that question was not addressed to any degree by the NTEU at first instance. In her evidence, Ms Wells basically said - if I can just direct you to Ms Wells' submissions. It's PN605 and 606 made on 22 March which is in the orange tab. She made the following statement:

PN401

Regarding the students, your Honour, the orders we seek include provision of information from the University to enable the union to determine if the casual students who happen to be employees who fit schedule 5 and specifically (d) and (i) or not. Is it the fact that they are students -

PN402

It should be "relevant" to their engagement, not "irrelevant".

PN403

JUSTICE GIUDICE: Not necessarily. Are you sure that's right?

PN404

MR CLARKE: You do? Okay. Let's assume that's correct, Ms Wells then said:

PN405

Mr Clarke talked about Ms Floyd's submissions on the basis of they particularly fit a scenario.

PN406

Now, the scenario that we were talking about was the evidence provided to Senior Deputy President Duncan at attachments 13 to 17 of UNSW2 in which we presented to Senior Deputy President Duncan some comments made regarding the employment of casual students in libraries. We refer to that in our submission quite extensively at paragraphs 3.30.

PN407

JUSTICE GIUDICE: Where is it in the material?

PN408

MR CLARKE: UNSW2.

PN409

JUSTICE GIUDICE: Well, I am having a bit of trouble navigating.

PN410

MR CLARKE: Sorry, UNSW3, your Honour. My apologies.

PN411

JUSTICE GIUDICE: Which are the attachment numbers?

PN412

MR CLARKE: The paragraphs were 3.30 through to essentially 3.54, and your Honour, I could spend considerable time going through all that evidence, but I won't. But essentially what that evidence demonstrated was, you might be aware of it, there was a casual case for the Higher Education Sector in, I think, 2004. A negotiated settlement was reached between the parties. What we refer to in our written submission was to essentially indicate to Senior Deputy President Duncan that a statement was made by Mr Stuart Pill from Clayton Utz, that basically said in effect that students occupying designated positions were essentially excluded by (d)(i) of schedule 5.

PN413

Ms Floyd for the NTEU basically made a submission regarding the remarks that Mr Pill had made. If I can try and find that particular statement; it's very important. It might be useful, your Honours and Commissioner - - -

PN414

JUSTICE GIUDICE: It's an attachment, is it?

PN415

MR CLARKE: - - - to go to paragraph 347 of UNSW3.

PN416

JUSTICE GIUDICE: 347?

PN417

MR CLARKE: 3.47.

PN418

JUSTICE GIUDICE: 3.47. Yes?

PN419

MR CLARKE: And 3.47 stated:

PN420

The University is also fortified in its opinion that it may refuse an application for conversion made by a casual student assistant who works in the library by a decision of the Full Bench in ...(reads)... to the agreement by the parties in the matter.

PN421

Ms Floyd stated at 10.11.7 (a) to (f):

PN422

Are reasons that the employer can refuse to convert a casual employee. The first is where the staff member is a student or has recently been a student, other than where the status of a student -

PN423

It goes on and it's a little bit woolly and difficult to understand. But the relevant bits were the highlighted type at which Ms Floyd indicated:

PN424

These positions have not been designated for students, then if that is the case, they can't refuse them unless it has been specifically designated as a student.

PN425

In our submission, we went on to put a clarification as to the words that Ms Floyd made on transcript, and we indicated that the point that Ms Floyd was trying to make was made at 3.49 which basically stated:

PN426

Where a student is engaged in a casual position not designated as students, the University may refuse an application for conversion from a student under the relevant part -

PN427

Which in their submission was 9.11.7(f), which is equivalent to (d)(i) of schedule 5. She went on to say:

PN428

In our view, however, where a student is engaged in a casual position that is designated by a University student, then the University may refuse an application for conversion from a student under the relevant provisions.

PN429

So, we made it quite clear to Senior Deputy President Duncan that casual student assistants in the library in designated positions were excluded. That evidence was not challenged by Ms Wells. She made the point, quite correctly, that there were other ways that students could be employed other than in designated positions, which we can commit with. But that was evidence that was given to a Full Bench and that decision I think was referred to - I think it was attachments 16 and 17. So, your Honour, in our view, the 98 casuals that were employed, the student casuals employed in the library at the relevant time were not eligible to be converted and we made that - - -

PN430

SENIOR DEPUTY PRESIDENT HAMBERGER: They could apply? They could apply, but they didn't have a right to - - -

PN431

MR CLARKE: Well, because as we said at paragraph 3.57 of UNSW3, we would never engage them. I simply make the point, why would a casual student want to be converted to non-casual employment? That's the point we make. We said in our evidence to his Honour that the University had not received any applications from anyone in the library for conversion.

PN432

SENIOR DEPUTY PRESIDENT HAMBERGER: What's the experience generally for applications for conversion?

PN433

MR CLARKE: Your Honour, I think we've probably had no more than four or five, full stop, and the agreement has been going since July 2003. So it is not huge.

PN434

SENIOR DEPUTY PRESIDENT HAMBERGER: At the whole University?

PN435

MR CLARKE: At the whole University. But I mean, the important - the other important issue is the fact that Senior Deputy President Duncan, on the evidence before him, we assert, particularly the attachments 13 to 17, enabled him to quite correctly come to the decision he did in paragraph 33, in which he said:

PN436

On the plain meaning of clause (d)(i) of schedule 5 of the agreement, all of the casual student assistants in the library never had a conversion right alluded to insofar as typically referred to in (d)(i).

PN437

We believe he was correct in forming that view and making that decision. I won't talk about the meeting on 12 April, your Honour, just too many issues to raise. The other point we would make, your Honour, is that at paragraph 56 of the NTEUs submission, it went into say in its written submission that if the Full Bench upholds the appeal of the NTEU, then that part of Senior Deputy President Duncan's orders excluding discussions about the positions of student assistants with respect to conversion pursuant to clause 23 and schedule 5 should be deleted.

PN438

We believe, if one examines clause (1)(ii) of Senior Deputy President Duncan's arbitrated decision, and I won't read it in full, but the relevant clause is (1)(ii) wherein he says:

PN439

The unions and the University discussed the implementation of the policy with particular relevance to positions of casual students ...(reads)... pursuant to clause 23 of schedule 5.

PN440

Your Honour, on the NTEUs claim, we submit that it would be futile to make the order sought by the NTEU in respect of requiring the University, whilst discussing the implementation of the policy, to discuss the position of casual student assistants in the library with respect to conversion pursuant to clause 23 of schedule 5 when such students may be refused conversion under clause (d) of schedule 5 and as a matter of practice this will be refused, conversion by the University. Your Honour, I don't have anything further to say on that particular part of the NTEUs submission.

PN441

If I could just refer now to the third limb of its written statement in its submission where in the NTEU stated:

PN442

Senior Deputy President Duncan erred when he determined that the University can limit the engagement of casuals.

PN443

Your Honour, we submit that essentially Senior Deputy President Duncan dealt with this claim at paragraphs 20, 32, 45, 47 and 49 of his decision, and that's set out in paragraph 52 of the University's written submission presented yesterday. If we go through the various statements made by his Honour, if you look at paragraph 20, he states:

PN444

The University was frank in giving its reasons for making the change. Firstly, it said it was because of an unhappy experience ...(reads)... of sections 170CL and 170CE of the Act.

PN445

Notably, he went on to state:

PN446

This may be ignoble, but it is not illegal in the sense that nothing in the Act prevents the University moving in that direction.

PN447

Your Honour, basically what we understand and believe that Senior Deputy President Duncan was making by those remarks is as stated in our written submission at 53, that the University contends that Senior Deputy President Duncan properly decided this point for the reason that the relevant provisions of the policy, exhibit NTEU1, are not contrary to law. We believe that the Senior Deputy President decided that particular issue raised by the NTEU correctly. As I said, he referred to the other paragraphs at other parts of this particular question, paragraph 32 of his decision, where he said:

PN448

While a dispute may be over the application of an agreement, there is no doubt that the University's position is generally justified.

PN449

He then stated in paragraph 45:

PN450

The NTEU called in aid a convention concerning termination of employment at the initiative of the employer to which Australia is a signatory and claimed that the action of the University was breach of it ...(reads)... restricting employment to 12 months.

PN451

At paragraph 47 he went on to say further:

PN452

As observed earlier, there is nothing inherently wrong with what the University has done in limiting the period of employment of casual students in the library. In those circumstances, I do not accept the draft order as appropriate action to take.

PN453

At paragraph 49:

PN454

I have given consideration to the most balanced way to recognise both the misapplication I have found to exist and the fact that the action the University wished to take is not inherently objectionable.

PN455

JUSTICE GIUDICE: Mr Clarke, what's the misapplication he refers to there?

PN456

MR CLARKE: The misapplication referred essentially to not following the dispute procedures in respect to one of the issues in dispute where we basically said that we didn't feel that this matter needed to be consulted with, with the unions. It's not a matter of the application of the agreement, and Senior Deputy President Duncan found otherwise.

PN457

JUSTICE GIUDICE: I see.

PN458

MR CLARKE: Your Honour, a number of issues were raised about various statements made and documentation referred to in respect of the third limb of its submission, and Ms Mullins referred to claims made by the University at PN168 on 7 March 2005. Now, your Honour, we have addressed this particular issue at paragraphs 55, 56, 57, 58, 59 and 60. So I won't read those, your Honour, but the University certainly relies on them, on the statements made in that submission, to contest Ms Mullins' statement. Your Honour, you will recall that Ms Mullins also referred to exhibit NTEU12 regarding the meaning or the application of that exhibit. We referred to, in particular, this issue at paragraph 67 of our written submission.

PN459

I think it needs to be put on the record again, your Honour, that we rely on the statements made at paragraphs 67 to 69. I think it's worth putting on transcript that - because it seems to be a fairly significant claim by the NTEU - that this document was used to avoid its obligations under (d)(i) of schedule 5, which was clearly not the intent and the reasons were set out at paragraph 67 at parts 1 to 4. Yes, 1 to 4, your Honour. It's important that as we said in (i) of paragraph 67 of our submission, that the transcript evidence of Ms Lafferty at page PN208 and 209 does not refer to or have any relationship or connection with the claim by the NTEU that the purpose of exhibit NTEU12 is to engage and reengage employees to avoid its obligations under the agreement.

PN460

Can I just pause there and say, your Honour, that the policy, exhibit NTEU1, makes no reference to the engagement or reengagement of casual employees. If I were to go on to the rest of the statements in paragraph 67(i):

PN461

In particular, Ms Lafferty's statements must be considered in the context of her firm and unchallenged evidence that the issue of conversion of casual students played no part in her thinking in developing the policy. See paragraphs 8 and 9 of Ms Lafferty's witness statement, exhibit UNSW2.

PN462

It needs to be highlighted, your Honour, that exhibit NTEU12 is prepared to manage the termination of casual students in the library in order to try to reduce the University's exposure to unfair dismissal claims. The document had nothing to do with the library seeking to avoid its obligations under schedule 5 of the agreement. The third point we made was exhibit NTEU12 was prepared on or about 16 February 2005, well before the hearing of the granting of interim orders issued by Senior Deputy President Duncan on 7 March 2005 and which over-rode and superseded any administrative action proposed or implemented by the University arising from this exhibit.

PN463

We also say that exhibit NTEU12 applied only to casual student assistants in the library and therefore it is not relevant to the question of avoidance under clause (a) of schedule 5 of the agreement because, as Senior Deputy President Duncan stated at paragraph 33 of his decision, all of the casual students in the library never had the conversion rights alluded to, insofar as are the type referred to in 31. No non-students were included in the document. At paragraph 68 we went on to say:

PN464

For these reasons outlined, the University contends that the NTEUs claim in respect of exhibit 12 is of no relevance whatsoever in that the exhibit does not give rise to any evidence that the purpose of the policy - exhibit NTEU1 - is to engage and reengage employees to avoid its obligations under schedule 5 of the agreement as claimed by the NTEU.

PN465

Your Honour, I think we'd rely on the rest of our submission in respect of the third limb of the NTEU appeal. Your Honour, I won't refer to our various reasons in respect of leave to appeal because I think they're very straightforward and set out in our submission on which we rely. Your Honours, I have addressed the substantive raised by Ms Mullins regarding the various issues raised by her in respect of our written submission and our position put at first instance before Senior Deputy President Duncan, but I'd just like to reaffirm in regard to the first ground of appeal, or the first limb of the NTEUs written submission that the University submits that Senior Deputy President Duncan did not err in holding that he did not have the jurisdiction in relation to Mr Whiteford.

PN466

In respect to the second limb of the University's submission, we simply state that for the reasons outlined in respect of this appeal, that the University submits that the evidence presented by the University was extensive and enabled Senior Deputy President Duncan to confirm that the University's position that the 98 casual students in the library were the type of employee referred to in clause (d)(i), and that was referred to at paragraph 33 of his decision. We believe that such evidence enabled Senior Deputy President Duncan to find that the casual employees as student assistants in the library did not have a conversion right under the agreement.

PN467

As I said, in regard to the third limb of the NTEUs written submission, your Honour, we believe that Senior Deputy President Duncan was correct when he determined that the University can limit the engagement of casual students in the library essentially because it is not contrary to law. As I said, your Honour, we just rely on our written submissions presented to Senior Deputy President Duncan on 22 March 2005 and our submission presented to the Commission yesterday. If the Commission pleases.

PN468

JUSTICE GIUDICE: Thank you, Mr Clarke. Ms Mullins, do you have anything in reply?

PN469

MS MULLINS: Yes, I do. I am just conscious of the hour, whether you wanted me to do that now or - - -

PN470

JUSTICE GIUDICE: How long will you be, do you think?

PN471

MS MULLINS: Well, your Honour, if I have the break to make it more succinct, my current estimate would be half an hour, 20 minutes to half an hour.

PN472

JUSTICE GIUDICE: It seems rather a lot in reply. But in any event, we'll adjourn until 2.15.

<LUNCHEON ADJOURNMENT [12.55PM]
<RESUMED [2.13PM]

PN473

JUSTICE GIUDICE: Ms Mullins?

PN474

MS MULLINS: Mr Clarke took your Honours and the Commissioner to a number of cases and I'll just briefly respond to them. He took you to SDA v Big W, which has been provided by both parties. The response to that would be we would refer you to paragraph 36 of the decision where they found that the order is a means to resolve the dispute, rather than characterising it. So our submission would be that the means to resolve this dispute is to respond to the exacerbation of the dispute regarding Mr Whiteford.

PN475

NTEU v University of Wollongong was referred to, and I would refer you to paragraph 21 of that decision where they found there's no constraint upon the remedy that may be decided once jurisdiction has been established. Mr Clarke made a submission that the dispute can only apply to employees and employers bound by the agreement. Taking that approach it wouldn't even be possible to have an order that went to a previous employee, where they failed to follow the redundancy procedure or they followed to follow the discipline procedure, and that certainly would go against the NTEU v University of Wollongong.

PN476

That was a Full Bench decision where they made orders that related to an academic who had been sacked, so they were technically no longer an employee covered by the agreement, and yet they were prepared to make orders. He referred to MUA v APS. I referred you to paragraph 57 of that case where they found that the character of the dispute is distinguishable from the orders in the settlement of the dispute. He indicated that the dispute clause was never intended to apply to third parties. Our submission would be there's no such limiting words that are in clause 43(f). The simple question was, has it been exacerbated? Has the dispute been exacerbated by an action and if so, then it's open to the Commission what to do, to address that.

PN477

He referred you to CEPU v Telstra and to the criteria for the Commission to consider in dealing with such a matter and we would assert that this is a dispute over the application of the agreement. It's a dispute regarding Mr Whiteford, that is about 43(f), exacerbation, and regarding schedule 5 of the agreement. There's no express or implied limit that was referred to in that case on those powers. So we rely on the unfettered powers of clause 43. He referred to Telstra - - -

PN478

JUSTICE GIUDICE: Ms Mullins, sorry to interrupt you, but just while you're somewhere near the topic that I wanted to ask you about, do we have a copy of the originating document? The notification?

PN479

MS MULLINS: The original notice to the Commission - - -

PN480

JUSTICE GIUDICE: Yes.

PN481

MS MULLINS: - - - is attached to UNSW3. I believe it's attachments 6 and 10. I'll just have to check that. Attachment 6 was the original notice which originally went to the question of the application of clause 9.3 which is the process of consultation, and then attachment 10 went to the question of 9.1, job security, 24.3.1, conversion, and 43(f). There was a matter made at the original Commission hearing about whether or not clause 9.3 and the dispute about that was still a live matter, but that's not in contention today because the dispute and the appeal relates to 24.3.1 and schedule 5 and 43(f), the non-exacerbation. So the relevant notice that we rely on is attachment 10 to UNSW3.

PN482

JUSTICE GIUDICE: That says the parties have met and satisfied all requirements of clause 43.

PN483

MS MULLINS: Yes.

PN484

JUSTICE GIUDICE: Is that the case?

PN485

MS MULLINS: In that the union had raised a dispute, which is the first step under clause 43 and we had the disputes committee meeting under clause 43.

PN486

JUSTICE GIUDICE: Yes.

PN487

MS MULLINS: It wasn't a statement that they have met in terms of clause
43 - - -

PN488

JUSTICE GIUDICE: I follow, yes.

PN489

MS MULLINS: Before you can get to the Commission, you have to prove that you have - - -

PN490

JUSTICE GIUDICE: Yes, I follow. Yes.

PN491

MS MULLINS: - - - tried to kiss and make up with the employer.

PN492

JUSTICE GIUDICE: Yes. Thanks. That's what I was looking for. Thank you.

PN493

MS MULLINS: Mr Clarke referred you to the Telstra v CEPU which was the appeal decision, and he emphasised the words that the dispute needs to relate to the legal rights and liabilities of the parties. We say that the legal right is of the union and employees not to have a dispute exacerbated. The legal liability of the University is not to exacerbate the dispute. They did exacerbate the dispute and that the order is against the University, it's not against a third party and a third party liability, it's against the University's liability, ie. not to exacerbate.

PN494

Mr Clarke then referred to Schefenacker, and the emphasis in that case is related to the Electrolux decision and the relationship between an employer and employee. We say that the exacerbation of a dispute in this case is about the relationship of an employer and employee, and in that case in fact the Full Bench took what at the time was a broader approach to what was meant by a relationship with employer and employee, and they in fact found that making labour hire workers permanent, a clause that actually provided that labour hire workers would be made permanent after a certain time and certain criteria, that that was about the relationship of an employer and employee.

PN495

If you look at paragraphs 71 and 79 to 83 of that decision, you will see that in that case they found that the third party, the labour hire workers similar to
Mr Whiteford, that that was a relationship of employer and employee.
Mr Clarke's given the impression that there's little chance of access for any casual to get to the conversion criteria and to meet the criteria, based on 12 months' service over 50 per cent or 2 years' regular service, but in fact, if you look at attachment B to UNSW2, that really is a force document that goes to the numbers of casuals over an 11-month period and the ones that according to the University are student-designated and those that are non-student.

PN496

You'll see that essentially this is the one that the University has then used to make their assertions about numbers. So they say that over an 11-month period, there were 162 casuals and you'll see at the very last page of that, page 5, it reaches up to the 162. So that's how they get to the figure of 162 casuals over 11 months. You'll see in the first left-hand column, they have indicated their view about whether it's a student or non-student, and NS obviously indicating non-student. So looking down at the pattern of employment, for example, if you flick down to number 8, you'll see that there's a non-student there, who between February '04 and January '05 - so for a year - they were employed quite regularly and systematically.

PN497

They got to the magic figure of over 800 which gets them to over 50 per cent load, so they got up to 841. So that's an example, that's not just a theoretical issue that we're saying here. You can have a non-student who gets to the trigger point to be converted. You will also see that there are other students and non-students who got to that figure, but for example on employee number 40, once again, a
non-student, got to 983. Admittedly, there was a 4-month gap in their employment, but nonetheless, they got to the hours. So potentially over time, particularly given that the 2-year requirement doesn't have the 50 per cent rule there is, based even on the last 11 months' practice, it would indicate that this is not a theoretical debate. There are employees who could otherwise have had access to conversion if the policy NTEU1 was not brought in.

PN498

JUSTICE GIUDICE: But you're not suggesting these two are the two who were currently employed at the time of the proceedings?

PN499

MS MULLINS: My understanding is that one of them was currently employed at the time of the proceedings and that one of them left. I take you to that evidence.

PN500

JUSTICE GIUDICE: Mr Clarke told us earlier, I think, that the only two
non-students currently employed started in November.

PN501

MS MULLINS: That's what I am challenging by this evidence. That - - -

PN502

JUSTICE GIUDICE: But did you cross-examine - did anybody cross-examine the witness who gave this evidence, on this point?

PN503

MS MULLINS: The assertion about November, I don't believe was made on transcript. It was made today.

PN504

JUSTICE GIUDICE: I see.

PN505

MS MULLINS: There was certainly evidence that went to attachment B which I have just taken your Honour to. I take you to Ms Lafferty's evidence which is beneath the orange tab, at PN167.

PN506

JUSTICE GIUDICE: Yes. Thank you.

PN507

MS MULLINS: So, starting from PN159, it goes to attachment B, and it's her explanation of how she put the document together that comes up 100 on the books at the time. It then looks over the last 12 months and there's 14 non-students, but importantly, at PN167, there's a series of questions that go to the getting over the 50 per cent load. The half normal hours would be 840 - that's at end of 164. If you go through, there are actually three people who worked more than 840 hours. She was explaining here to you about attachment B, and then she talks about numbers 340 and there's some misquote on the transcript, it says 841, which must - I don't know what that number actually is, maybe it's 8:

PN508

And that one happens to be a non-student?

PN509

Is what the Senior Deputy President said:

PN510

Yes. Number 8 and number 40 are both non-students and both of those people are no longer working casually in the library. They are each on a fixed term contract at the moment.

PN511

So in fact if they'd been converted from casual to continuing, one of the options through the conversion process was to be fixed term or continuing, and their
case - - -

PN512

JUSTICE GIUDICE: Yes, but by the sound of it, they can't be the two who are currently in the library? They're on fixed terms - - -

PN513

MS MULLINS: Well, because the names weren't attached; in terms of what's before his Honour, all we have are the statistical records and that evidence of
Ms Lafferty.

PN514

JUSTICE GIUDICE: But the evidence she gave, that they're now on fixed term contract.

PN515

MS MULLINS: Yes. So she gave an attachment B to say who were in the last 12 months had been employed, and that's what the University then relied on.

PN516

JUSTICE GIUDICE: Yes.

PN517

MS MULLINS: And made a comment that there were two who had reached over the 50 per cent load. As for whether they're still - her evidence seems to indicate that they're no longer employed as casuals, but - - -

PN518

JUSTICE GIUDICE: Why shouldn't that evidence be accepted, though?

PN519

MS MULLINS: Sorry?

PN520

JUSTICE GIUDICE: Why should we not accept that evidence, that they're no longer casually employed in the library?

PN521

MS MULLINS: I am not making an issue with that.

PN522

JUSTICE GIUDICE: No, but that was the question I was asking you, so perhaps I didn't ask it very clearly.

PN523

MS MULLINS: Sorry, your Honour.

PN524

JUSTICE GIUDICE: But I understand that, yes.

PN525

MS MULLINS: I am not sure whether they are or they are not the two on the list, but it would seem to indicate from that answer - - -

PN526

JUSTICE GIUDICE: But, Ms Mullins, with respect, you can't just say, it may be wrong. I mean, if that was the evidence, how can we disregard it?

PN527

MS MULLINS: Sorry, perhaps I was not being clear either. It's clear from Ms Lafferty's evidence that casual numbers 8 and 40 were casuals for quite some time and then were converted or changed or applied for fixed term, not conversion according to the University evidence, but they certainly were then employed on fixed term. When Mr Clarke gave evidence before that the two casuals are employed since November, I am not aware of any evidence - the ones, who are still currently employed, I am not aware of any evidence that goes to that in the transcript.

PN528

JUSTICE GIUDICE: Yes.

PN529

MS MULLINS: Mr Clarke might be able to help me, but I am not sure. The relationship between attachment B which was an historic document looking forward, and something that was a snapshot in time, it's difficult to match up which student was which, or which casual was which.

PN530

JUSTICE GIUDICE: Yes.

PN531

MS MULLINS: But I am relying on attachment B to say that it was not just a theoretical possibility. Over that period of time, you can see that there were quite a number of casuals and quite a number that made it to the threshold. NTEU12, which is the "Not to come back" document prepared by the University, that also shows that there are casuals who commenced employment as early as 2000 and 2001, so those casuals wouldn't have to meet the 50 per cent threshold requirement. They would only have to meet the 2-year regular and systematic and somehow prove that they didn't meet the category of student exemption for the specific designated student.

PN532

Looking at that question of designated student, Mr Clarke made a point that the evidence had covered the field and wasn't challenged. Well in fact, the order that was sought by the union was seeking an order that we be given sufficient information to be able to weed through and find out who was actually a designated student position covered by the exemption and who wasn't. Because that wasn't clear at the time we went to the Commission, and his Honour actually gave us an order in that regard which is order 1(i):

PN533

The University is to supply to the NTEU the details of the engagement of students as casuals for all students currently recorded as available.

PN534

The whole point of that was for us to then try and work out who did or did not fit into that specific designated category. PN168 was referred to about whether or not the University's motivation, or one of its motivations for the 12-month cap policy, whether that was to avoid the conversion provisions. The reference that I had referred to at PN168 is a statement made by Craig Clarke on transcript and Mr Clarke then tried to rely on the evidence of Ms Lafferty. We'd make the submission that Mr Clarke was involved in issuing the policy, the 12-month cap policy.

PN535

He had advised Ms Lafferty and the comment that he made at PN168 was made directly under the heading and under the topic of the conversion policy and he was making submissions about 5.0(a) and its relationship to the policy. So if you read the proceeding paragraphs in the transcript of 168, it starts with his submission that he's making about was the conversion policy - sorry, was the 12-month cap policy there in order - what did it mean and how did it relate to the agreement? So he was talking about the 12-month cap policy and how it related to schedule 5 and conversion, and then he goes on to say that the University is not trying to hide the fact that they want to limit conversion.

PN536

So it's our submission that that's quite clear, that the University, including its HR Manager or Senior Industrial Relations Officer, I should say, is in a reasonable position to make a statement about what the motives of the University were and one of them, as is supported by PN168 is that they did want to limit the conversion of casuals.

PN537

JUSTICE GIUDICE: Where is it? I see. Yes.

PN538

MS MULLINS: Looking at NTEU12 which is the "Not to come back" document, Mr Clarke tried to say that that was not evidence of any attempt to engage and reengage. It's our submission that as a matter of logic, when you look at the evidence that was given by both Mr Derby and Ms Lafferty, that that document was given to managers for them to implement the policy and that was its purpose. Why would you have a column in it that talks about the 3-month break and then have a heading, "Not to come back" and at the end of it, have a statement when people are not to come back to?

PN539

We would say that as a matter of logic, that the purpose of it was to enforce a break, but then be able to reengage casuals. Further evidence of that, and I was trying to find it before, was if you look at PN214 and 215, Ms Lafferty was asked some questions in cross-examination - that's under the orange tab - on 22 March. She was asked a series of questions that were going to what impact the casual policy would have about the numbers of casuals actually employed, but I think that the answer actually supports the union's contention that there is an aim of trying to terminate and then potentially reengage people in a way that offends schedule 5.

PN540

She is asked a question at PN214:

PN541

You've said earlier that, for example, in a normal turnover example of a 12-month period, in relation to Mr Derby's evidence, there was a turnover of nine casual employees during that ...(reads)... don't think so. Some of those people might be the same.

PN542

So, it's got the concept that they could be terminated and then reengaged. The only way that you can have less than 16 casuals who are terminated, engaged and terminated in that period, is if some of the people are engaged, terminated and then engaged again.

PN543

SENIOR DEPUTY PRESIDENT HAMBERGER: But is that the issue? I didn't think the University made any bones about the fact that they didn't want to have people for more than 12 months because - capped, talking about the students, because that would leave them vulnerable to unfair dismissal action potentially. But the University's position, as I understand it, is that the students didn't have any right to conversion anyway, so the 12 months is neither here nor there. You know, the engagement and reengagement in relation to conversion for students is neither here nor there.

PN544

In other words, they're not really denying that they were - unless I have this wrong, they're not denying that they were letting people leave and then bringing them back later on, but it wasn't about the issue of conversion to permanency because they didn't think that applied to them, it was about the issue of unfair dismissal, which as Senior Deputy President Duncan said, may have been ignoble motivation but not illegal.

PN545

MS MULLINS: Well, I suppose that depends on whether you rely solely on the evidence of Ms Lafferty where she says that that was the motivation, or what weight you give to the comment on transcript by Craig Clarke, where he talks about schedule 5, which is the conversion applications, and he is upfront in saying at PN168 that the University is trying to avoid the numbers of conversions. So if it was - well, I'll take you to the exact quote, PN168 - I just need to get the right one, because there is two PN168s. It's actually under the yellow tab, PN168 for 7 March.

PN546

JUSTICE GIUDICE: It's the one you just took us to.

PN547

MS MULLINS: Way back, yes. Earlier.

PN548

JUSTICE GIUDICE: Yes.

PN549

MS MULLINS: Sorry. So in that, you'll see at PN157 he's talking about the dispute notification relates to 24.3.1 and it relates to schedule 5 and then noting at 166 that they haven't actually had an application to conversion, and then he goes on to an explanation of that they're trying to limit casualisation. "The other point I need to make", so he's making this point in the context of his submissions about 23.3.1 in schedule 5, is:

PN550

We don't hide from the fact that we want to limit the number of people who can be converted at the University for casuals.

PN551

So we raised a dispute about the policy and how it relates to the conversion procedure. He's then responded in a submission to that question that he's not hiding the fact they do want to limit the people who can be converted.

PN552

JUSTICE GIUDICE: Provided they have reasonable grounds for that, isn't that permitted by the provision?

PN553

MS MULLINS: We would submit that it's not permitted if what they are doing is reducing the hours or engaging and reengaging in a manner that avoids the obligations.

PN554

JUSTICE GIUDICE: Well, that might be a different question, but it's a question of reasonable grounds, isn't it, whether an employer is reacting improperly to the possibility of the conversion option arising?

PN555

MS MULLINS: So we're relying on the commitments in the enterprise agreement itself. I mean, obviously we have philosophical issues around that, but they're a separate matter. All we can rely on is what's in the enterprise agreement, and we're relying on the commitment that the University made in the agreement, in schedule 5(a), which is:

PN556

An employee will not be engaged nor reengaged, nor have their hours reduced in order to avoid any obligation under this clause.

PN557

So we're relying on the comments that were made by Mr Clarke as indicating that one of the reasons they had the policy, the 12-month cap policy, was to avoid conversion. In his submission, he's saying, "We don't hide from the fact that we want to limit the number of people who are converted." The way that they then did that, which is supported by NTEU12, is to have a policy, the "Not to come back" and "Not to come back until" which enabled them to sack and then reengage. So at least on those examples they had a document they used to implement it, that all managers had, where they would be sacking and then potentially reengaging.

PN558

JUSTICE GIUDICE: This is the document with the two lists, is it?

PN559

MS MULLINS: Yes, that's the one in NTEU12, that they had issued to managers to implement that policy.

PN560

JUSTICE GIUDICE: Yes, but I asked you about that and you said there was no explanation given, that how one got onto one list or the other.

PN561

MS MULLINS: The only explanation was that of - Mr Derby's evidence was that managers had been given that document to implement the policy and they used it to determine who they would terminate, and Ms Lafferty's evidence was that, yes, that was the document to implement the policy.

PN562

JUSTICE GIUDICE: But that doesn't get you the whole way, does it, on the issue of using engagement and reengagement to avoid obligations under the provision?

PN563

MS MULLINS: Well, it depends on what view - - -

PN564

JUSTICE GIUDICE: Because there were two lists; that's my point. I am not sure - unless there's some explanation for why some people could be reengaged and others not.

PN565

MS MULLINS: Well, certainly maybe that some had no chance of coming back so those ones would not be reengaged, but the provision in NTEU12 certainly indicates that there was another grouping, for whatever reason, that were not to come back until. So this is the policy document they were using to implement the policy and for quite a significant number of that list, they would be having a break and then would be reengaged, open to be reengaged. So our point would be that we have the policy to rely on, we have NTEU12 to rely on, and we also have that evidence of Ms Lafferty where she acknowledged that the number of casuals would not be necessarily going from 8 to 16, for example, because they could be the same people.

PN566

The only way they could be the same people in that period would be if you engaged them, terminated them and reengaged them. So you're absolutely correct, your Honour, that there's not express wording where somebody said, that column, last 3-months' break and must not come back means XYZ, but we're submitting that as a matter of logic, we have a document, NTEU12, that document we're referring to, which management acknowledged was the implementation of the policy. It has a provision in it about instructions to managers about when they're not allowed to reemploy to.

PN567

So, the only way that that column is relevant is if you are able to terminate and then you are reengaging.

PN568

JUSTICE GIUDICE: But wouldn't that be equally consistent with the objective of avoiding the unfair termination provisions?

PN569

MS MULLINS: They certainly both overlap, that you achieve both ends, but our point is that it doesn't have to be exclusively for the ignoble aim of avoiding the unfair dismissal, but we say that based on PN168 which is the earlier March hearing, that Craig Clarke made it clear that one of the aims was, we say, based on the wording, that one of the aims was to avoid the conversion. If that was not an issue, then why not stick with the story that it's just about the 12-month limit for unfair dismissals? Why raise in your own submission that there's no doubt that the University wants to limit access to conversion, in the context of talking about that policy and the application of the agreement?

PN570

SENIOR DEPUTY PRESIDENT HAMBERGER: I mean, it's a bit hard to tell here, just reading the transcript, but the students who the University's position is on the reading of - you know, they don't have a right to convert anyway, there are some people who aren't students who might have a right to convert and so the 12-month policy - the engagement and reengagement might be relevant in terms of students in relation to purely the unfair dismissal, but the points about preventing casuals becoming permanent, getting in through the back door, could be more in relation to non-students. Now, it's true that in the transcript he says, "Well, if you're a student or even a non-student", but it's hard to tell whether that was almost essentially a slip of the tongue.

PN571

I am reading the transcript, I wasn't here, but it's just that - but what we were told was that the list of people who could be reengaged only included students.

PN572

MS MULLINS: Well, that's an assertion that's been made.

PN573

SENIOR DEPUTY PRESIDENT HAMBERGER: It's an assertion, not evidence.

PN574

MS MULLINS: It's not on evidence, in that there is nothing on transcript about that. The evidence did go to the fact that there are potentially three categories. One is students that meet the exemption definition; the other is students who happen to be students but don't meet subclause (d) of schedule 5, and the third is the non-students, and there's a reasonable number, certainly of the non-students. But the conversion procedure is of most relevance to the non-students because they have the greatest chance of getting up. It's potentially relevant to the students who happen to be students, and then even for the students that are designated students, there's still the discretionary decision.

PN575

So for example, Ms Lafferty herself was a student. I mean, there are lots of students that become permanent employees, so there's no reason why they couldn't at least have a right to be considered for conversion. What the University is saying is that despite the wording in schedule 5, they simply should be ruled out of that right to even apply. We're acknowledging that if you're a designated student, you advertise there's a student position casually and you fill that as a designated student position, and it's relevant to that casual job, that you're a student, then we don't have qualms that that exemption can be used as a discretionary exemption.

PN576

But we say that not all students necessarily fall into that category. You need to look at each and every case. I mean, the question about evidence, about which student fell into which of those two categories really wasn't fleshed out fully, to the satisfaction of his Honour anyway, which is why he made the order. Well, I believe why he made the order to say it gives them information to look up for each student what their basis of engagement was. Just finally on the Mr Whiteford matter, I am concerned that a possible outcome of the University's submission is that if I threaten to kneecap an employee's family, or they threaten to kneecap the union member's family members, running around without knees, then that's entirely possible, by their version of the world.

PN577

But equally, if we wanted to threaten students, we couldn't be ordered to stop threatening students. So I am a bit concerned that if we're having a view about not being able to make an order related to an exacerbation by a party, that just because that threat is made to a non-party, that that's enough to bow out of the equation. I like my knees. Thanks, your Honour.

PN578

JUSTICE GIUDICE: Thanks, Ms Mullins. One question that occurs to me is that it may be that the union is attempting to have it both ways in this appeal. You have accepted the decision and presumably accepted the procedure that's been set out there by the Senior Deputy President in his arbitrated decision. Don't you think that that's, as it were, cherry-picking?

PN579

MS MULLINS: We have given power to the Commission to arbitrate privately, but as in a number of cases, where any of the parties feel that the arbitration was outside jurisdiction, then they have the normal rights to raise a question, and we say that, yes, we gave the power to the Commission through consent through the enterprise agreement, but we didn't give the consent to act outside jurisdiction or to fetter himself in a way that wasn't envisaged by the clause, and there are a number of cases where if a section 170LW case has jurisdictional points, then you can go to the Commission.

PN580

But equally, in terms of merit, we say that the dispute clause is quite broad about the ability of the parties to bring the matter to the Commission, and the Commission includes both an original level as well as an appeal level, and that where we have concerns about the error or not of the decision, that we're able to take it to the next level of the Commission.

PN581

JUSTICE GIUDICE: It's not a point that's been raised by the University, so it's probably not a very significant one. I suppose it might be thought better that where one is seeking leave to appeal, the issue of the exercise of a discretion, it might be better not to take advantage of so much as you get from the decision, you try and get a bit more, but just - - -

PN582

MS MULLINS: Well, your Honours, we have, right from the very beginning, raised a question with the University about the decision. It's not that we're getting the benefit of any part of the decision. Clearly, we're going to act in accordance with it until it's overturned by any due authority, so where it's set out that we were to meet with the University, we did that in good faith, as they did in good faith, but very early on in the piece, we indicated that we were exploring legal options, that we weren't happy with the decision and those aspects that we're not happy with, those are the ones that we have appealed.

PN583

JUSTICE GIUDICE: Yes. Well, that may be a good explanation. Yes. As I say, it's not likely to be a very significant issue in any event. Is there anything else? Any other submissions? It will be necessary to reserve our decision and we shall adjourn.

<ADJOURNED INDEFINITELY [2.47PM]