C2005/3032, Transcript of Proceedings [2005] AIRCTrans 1282 (9 June 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11698-1

SENIOR DEPUTY PRESIDENT DUNCAN

C2005/3032
C2005/3034
C2005/3035
C2005/3037

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
AND
UNIVERSITY OF NEWCASTLE
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/3035)

SYDNEY

11.19AM, THURSDAY, 26 MAY 2005

PN1

THE SENIOR DEPUTY PRESIDENT: I note from the way in which these matters have been called that there must be some acceptance of the fact that they are to be joined and we need spend no further time on that. I will take appearances. I will go to the university first because their notifications are the earlier.

PN2

MR M MOIR: I seek leave to appear for the University of Newcastle and with me is MR P TILBROOK and also from the university is MR P MUNRO.

PN3

MS T MULLINS: I appear on behalf of the National Tertiary Education Industry Union and with me is MS N DAWSON. Your Honour, I do wish to raise a question about opposing the application for leave to appear.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes.

PN5

MS MULLINS: In the room on behalf of the university at the moment, we have the director of employment relations, we have the deputy vice-chancellor of services, a senior position only second from the vice-chancellor and we have the executive director of human resource services. Initially, your Honour, I understand the parties are seeking and open to conciliation on this matter and genuinely trying to conciliate a way through. So we would certainly be opposing leave to appear. But even if the matter proceeds as the union is making an application for interim orders, we don't see that in terms of section 43(3) of the Act that there are special circumstances that require them to be represented. This is a fairly regular dispute through section 170LW. It is a dispute that largely relates to a managing change clause which certainly human resource directors and employment relation directors are dealing with day in, day out and they are very senior positions in the university. We see no need to make this more litigious than it need be.

PN6

THE SENIOR DEPUTY PRESIDENT: All right. What do you say, Mr Moir?

PN7

MR MOIR: Your Honour, I seek leave to appear on a number of grounds but before I go to those I just wish to indicate that the university is not in any way opposed to participating in conciliation. To the contrary, it is quite willing to engage in conciliation before the Commission and my appearance here today is in no way a barrier to that occurring. But the basis upon which I seek leave to appear is that the relevant notifications filed with the Commission raise issues about the construction of the particular enterprise agreements, especially the managing substantial workplace change clause and the dispute resolution clause.
Secondly, the notification brought by the NTEU goes to the legal principles to be applied to the grant of an interim order.

PN8

As the university understands it, the NTEU is seeking to pursue interim orders subject to agreement being reached under the auspices of a conciliation and indeed the university was provided a copy of the draft interim orders at about
7.30 last night by the NTEU. So this matter, if it does progress beyond conciliation will go to the legal principles to be applied for the grant of such interim orders. As your Honour well knows, the circumstances under which interim orders can be granted must be exceptional. That is the proposition arising from a number of authorities of the Commission harking back to the Metal Trades decision of 1952.

PN9

So the very fact that the NTEU comes before the Commission and flags that it is in a position to pursue interim orders by itself constitutes exceptional circumstances under section 43 of the Act. I also act that it is not unusual for legal representatives and counsel to appear in matters of this kind, indeed your Honour will be aware that counsel has regularly appeared before you in such matters involving disputes in the higher education sector. The final thing that I would submit is there is simply no prejudice to the other side if leave were to be granted. As I understand it my friend is a practising solicitor. My colleagues at the bar table do not hold formal legal qualifications whereas my opponent does so in those circumstances I respectfully submit that leave should be granted.

PN10

THE SENIOR DEPUTY PRESIDENT: I won't grant leave at this stage. The application can be renewed if we move to consider interim orders. I give indication as to how I will react at that stage but certainly the application can be renewed then. In the meantime, leave is not granted.

PN11

MR MOIR: In those circumstances, your Honour, I might withdraw from the bar table and just remain in the hearing room.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moir. Your courtesy and sensitivity in that regard is something which could be emulated with advantage by other members of your profession. Ms Mullins?

PN13

MS MULLINS: Your Honour, the NTEU has lodged two disputes against the University of Newcastle. One relates to the General Staff Agreement and one relates to the Academic Agreement and as I understand it those C numbers are 3035 for the - which agreement, and 3037. It is unclear which attaches to which agreement.

PN14

THE SENIOR DEPUTY PRESIDENT: 3035 is the academic staff and 3037 is the general staff.

PN15

MS MULLINS: Thanks, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: In the case of the university's applications, 3034 is the general staff and 3032 is the academic staff.

PN17

MS MULLINS: Thank you, your Honour. Your Honour's support of the application of the parties for all four disputes to be joined and to be heard together, we are seeking regarding our two disputes, we are seeking conciliation. If the parties are unable to resolve the matter, at some point today we would certainly be seeking interim orders. Our disputes - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Just before you go on with that, Mr Moir did say as part of his application that the university sought conciliation. I suppose I should, for the record, get that confirmed in the present situation. It will be of some relevance to the way I handle the case. Yes, Mr Tilbrook?

PN19

MR TILBROOK: Your Honour, my solemn instructions in this matter to brief counsel, the only assistance I can give you is to say that in my instructions to brief counsel I was instructed to tell counsel that the university was prepared to enter into conciliation. If your Honour pleases.

PN20

THE SENIOR DEPUTY PRESIDENT: Was? I am sorry, I didn't quite catch whether it was "was" or "was not".

PN21

MR TILBROOK: Was, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Was. Thank you, Mr Tilbrook. That is enough for my present purposes.

PN23

MR TILBROOK: The purpose of putting it that way, your Honour, was to indicate to you that in the details of conciliation I really have nothing to contribute at this - - -

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. Well, should you withdraw from the bar table?

PN25

MR TILBROOK: Well, your Honour, I though that remaining here might enable me to indicate to you that that was the case and that an appropriate time when your Honour movers into conciliation that other officers at the university will participate in the conciliation process.

PN26

THE SENIOR DEPUTY PRESIDENT: I see. Very well. Yes, that is perfectly proper. Yes, Ms Mullins?

PN27

MS MULLINS: Regarding the two disputes that have been lodged by the university, at this stage we have no idea what they actually relate to. I understand that they are not pressing particular orders related to that today but we are certainly not aware which aspects of the agreement they are particularly concerned about. It appears to mirror the same as - - -

PN28

THE SENIOR DEPUTY PRESIDENT: Well, just before you go on, my recollection of them is that the notification is pretty explicit in each case in that what it says is that it annexes a letter from the NTEU of 11 May 2005 which - - -

PN29

MS MULLINS: Was our dispute against them.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. That is the dispute that is being referred to.

PN31

MS MULLINS: I only meant in the sense, your Honour, that the union has certainly been pressing a dispute with the university through the internal disputes procedure and then on the Commission. We are not aware of what the pressure back is because the university hasn't indicated what their concerns have been about the application of the agreement so far. But I hope it all will become clear in the conciliation.

PN32

THE SENIOR DEPUTY PRESIDENT: I see. Yes, it will, that's right.

PN33

MS MULLINS: Or if they intend to press arbitration on it then at that point we might be raising issues about whether or not they have complied with the initial stages of the dispute settling procedure. Or in fact, your Honour, it may just be a technical application, if you like, in order to keep the door open that both parties have come with an application about the same issue.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MS MULLINS: So hopefully, all will be made clear on that at some point. Clearly there is no jurisdictional objection to the Commission being involved given that both parties have referred the matters here but I can just say for the record that the NTEU submits that the parties have complied with the internal steps in the respective dispute settling clauses and we rely on the clauses that are in those agreements. Can I just check, your Honour, that you do have a copy of the two agreements?

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, I do have.

PN37

MS MULLINS: For the sake of time, given that we are seeking to move into conciliation, I won't take you to those clauses but it is the traditional clause in our sector that says that if the parties are unable to resolve the matter a party can refer it to the Commission for conciliation and arbitration and they commit to being bound by the outcome of the Commission. We are completely committed to seeking to resolve the issues today but given the timelines that have been proposed by the university, and I will come to them briefly in a minute, we will be seeking interim orders today in the matter. What we are hoping is that we could use the morning for conciliation and then at some point, perhaps 12.30 of so, make an assessment of how the parties are going and then make some decision about how long conciliation continues to be attempted.

PN38

We are certainly seeking that there be enough time for the matter to be arbitrated. My understanding is that we certainly will have evidence presented through one witness if it comes to that matter and we have an affidavit and various annexures. I understand my friend has possibly two witnesses on behalf of the university going to the same matter about whether interim orders would be appropriate so there is obviously a timing issue about trying to schedule that in this afternoon if conciliation is unsuccessful. Just turning briefly to give you the flavour of the matter. Clearly, there are going to be differences of perspective about fact and issue.

PN39

From the union's perspective, the primary issue relates to an announcement on
2 May made by the university, the University of Newcastle, that there would be job cuts of approximately 450 full time equivalent staff. That equates to one in five of all of the staff at the university. Part of that, the university referred to projected deficits and the vice-chancellor said there was no other way of addressing the university's deficits other than these job cuts. That the first redundancies could be initiated as early as 21 June of this year. In an email that went to staff that same day, the vice-chancellor then advised that the 450 positions were made up of between 250 and 290 general staff and 150 and 180 academic staff are to have the positions cut.

PN40

This is one of the most significant cuts in jobs in the university sector. It is much larger than the other job reductions that I am aware of. The essential dispute that the union has with the university at the moment is that it is our concern that the university has not followed what is known as the preliminary stage of managing change. While we refer to other clauses, just, your Honour, before we go into conciliation I will take you to 18.4.1 in the Academic Agreement. It talks about what the nature of change can be, what significant changes but at 18.4 it deals with a process with a preliminary discussion of substantial workplace change. I can think that it is no doubt that the loss of 450 jobs is such a change, that that consideration will be discussed with staff likely to be affected and the union as soon as possible. The critical thing that we are in dispute over is the next sentence:

PN41

Sufficient information is to be provided as part of the process of consultation. This would be through appropriate consultative processes prior to a decision being taken to progress any such changes with a view to working towards mutually acceptable solutions and/or alternatives.

PN42

Now, there are other consultation provisions and provision of information clauses in the agreement. The General Staff Agreement has in clause 22.4.1 similar wording. Our concern is that according to the university timeline, on 30 May the university, which is this coming Monday, proposes to issue a discussion paper which you will see from the procedure is the stage 18.5 in the enterprise agreement. They propose to issue that discussion paper on 30 May, they then propose to that same week hold some staff forums and meetings. Staff and the union would then only have 10 working days to discuss and respond to the discussion paper. By 16 June the vice-chancellor will determine to approve the implementation of the proposal and by 16 June refer it to the university council.

PN43

A report will go to the university council meeting for 20 June, at which point the council makes a final decision. From that point, according to the advice we have had from the university, they could commence job cuts and restructure as early as 1 July 2005. Our understanding from a comment made from the vice-chancellor is that as early as 1 July 2005, in fact, the majority of redundancies will come out in a letter to staff. So looking at the preliminary discussion of change, our concern is that the union and staff at this stage have very little information to go on about what the change proposal is and therefore we have been unable to be involved in any real consideration and consultation about the proposal.

PN44

In the enterprise agreement in 5.6 for academic, for example, it has a definition of consultation which is pretty similar to the one that is often quoted from Commissioner Smith, which talks about a process in 5.6;

PN45

A process in which the parties have time and opportunity in which to exchange information about a matter, provide relevant documents and details, hold discussions to explain their point of view and genuinely understand and address the views of the parties.

PN46

At this point, your Honour, the union and staff, in terms of the 450 jobs, all that we know is that 450 full time equivalent jobs have to go according to the university. That appears to have been a decision that has been made as opposed to a proposal. That because it is full time equivalent, that would mean more than 450 actual people. They have broken it down into the numbers I referred to before between academic and general staff. At this stage we have no idea which aspects of the academic part of the university will be cut, which academic positions, which academic units are affected by it. At this point, for general staff the only level that has been broken down beyond the 277 odd general staff positions is they have broken it down into three categories of central, faculty and school, which are just three convenient ways of grouping the organisation of the university.

PN47

Beyond that we have no idea how many are in the library, how many are in finances, how many are in human resources. So for any given individual in the university, they have no idea whether their position or in fact their work unit is affected by it. In terms of the questions we have asked, a lot of the answers have been on wait until the 30 May paper, wait until the discussion paper. But at that point, your Honour, the information that is required to really be involved in the discussion, it's too late. At that point there is then only 10 working days for there to be feedback. It then goes up to the vice-chancellor to then recommend that it be approved and from that point you are really into the implementation stage.

PN48

So our essential point that we are concerned about in bringing this dispute, and I haven't gone into the detail of the whole lot because it is only at the conciliation point, our essential concern is that for such a dramatic change which involves
450 jobs being cut, it involves a significant restructure of courses and programs which is happening at the same time. It involves restructuring the entire general staff positions and structure across the whole university. How are the units going to be grouped, how many of them shall there be. It involves issuing generic position descriptors for general staff positions to be used of which we have not been provided. It involved introducing a whole new information technology in our administrative system which obviously that can clearly have its own ripples and effect.

PN49

On top of that the university is proposing to use an academic workload model which we say hasn't been developed in accordance with the agreement, the Academic Agreement. But they are not only proposing to use that for the allocation of work, they are proposing to use that to identify which academics are to be made redundant. This is a very complicated spreadsheet developed by the university which we don't have a copy of. So at this point this magic, wonderful gizmo, the spreadsheet, is being used potentially as we speak to identify named academics to make them redundant. As far as we know on 30 May it may be that the paper identifies named academic positions based on this workload model, this whizzo machine that is in the back room that we haven't been involved in.

PN50

So from this point, our essential submission is that we believe that we should still be at the 18.4 and 22.4 stage and the university believes as on Monday, they can go to the 22.5 and 18.5 issuing of the discussion paper. So we certainly are genuinely committed to conciliation and we hope that that can resolve the matter.

PN51

THE SENIOR DEPUTY PRESIDENT: Very well. Thanks, Ms Mullins. I presume Mr Munro is left holding the bag.

PN52

MR MUNRO: I am.

PN53

THE SENIOR DEPUTY PRESIDENT: What do you wish to say in response to what Ms Mullins just said, Mr Munro?

PN54

MR MUNRO: I have to admit that I have not prepared a submission, basically because I did not think I would be in this situation. The only thing that I can do is suggest that we move into conciliation at this point and, because there are matters that we wish to put, put those in conciliation. Also, I would like to advise ..... at the table and - - -

PN55

THE SENIOR DEPUTY PRESIDENT: Yes. That's perfectly proper. I think we will move into conciliation.

<SHORT ADJOURNMENT [11.41AM]
<RESUMED [3.21PM]

PN56

THE SENIOR DEPUTY PRESIDENT: Mr Moir?

PN57

MR MOIR: Thank you, your Honour. I would seek to renew my application for leave to appear just for this occasion. I understand my friend does not object to leave being granted for this occasion alone. The occasion is to advise the Commission that a settlement of the disputes notified to the Commission has been reached. I seek to hand up to the Commission an agreement in writing reached and signed between the parties.

PN58

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Moir. On the basis that the position is as stated, leave is granted.

PN59

MS MULLINS: Thank you, your Honour.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Moir?

PN61

MR MOIR: Your Honour, I don't propose to speak to the terms of the document which I have just handed up. I simply seek to tender the document which outlines the agreement reached between the parties.

EXHIBIT #UN1 AGREEMENT DATED 26/05/2005

PN62

MR MOIR: I would just thank the Commission for its assistance today. I have nothing further to add.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN64

MS MULLINS: Thank you, your Honour.

PN65

THE SENIOR DEPUTY PRESIDENT: Very well. I note the agreement has been handed up. I permit myself to say that I trust that the work that has been done by the parties today will assist in the resolution of the quite significant problems that have to be faced by the university and its staff in the next few months. With those words I adjourn this matter indefinitely.

<ADJOURNED INDEFINITELY [3.23PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #UN1 AGREEMENT DATED 26/05/2005 PN61