C2005/2973, Transcript of Proceedings [2005] AIRCTrans 1473 (7 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12035-1

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT CARTWRIGHT
COMMISSIONER THATCHER

C2005/2973

APPEAL BY AUSTRALIAN BROADCASTING CORPORATION
s.45 Appeal to Full Bench
(C2005/2973)

SYDNEY

10.05AM, TUESDAY, 28 JUNE 2005

Reserved for Decision

PN1

MR R BUCHANAN: I seek leave to appear with my learned friend
MR S MEEHAN for the ABC.

PN2

MR M RYAN: I appear for the Media Entertainment Arts Alliance, together with MS L CONNOR and we don't oppose leave be granted.

PN3

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Leave is granted. Thank you, Mr Buchanan.

PN4

MR BUCHANAN: Your Honours, Commissioner, may I immediately correct a small error in the written submissions. In our written submissions at paragraph 14, we refer to some emails that appear in volume 3 at page 83, and we attribute to Ms Barakat in the last line of that paragraph the words:

PN5

Thanks, Walter. See you at 2 pm.

PN6

In fact, what Ms Barakat said, at page 83, is:

PN7

Walter, that's fine. Alan will be on the following number -

PN8

Alan, being Mr Kohler. It's not of great significance for our case, but it may have some importance for a suggestion made by the respondent that Ms Barakat was somehow taken by surprise by the program review that occurred on that day. We don't propose to deal with all the factual issues which are outlined in the written submissions. They're there to give some context to Commissioner Smith's findings, but they are of limited relevance to the questions of construction that arise on the appeal, at least so far as the first issue that we want to address is concerned. We rely upon what's in the written submissions. It's a considered and careful statement about principal arguments.

PN9

We need to go into a little more depth to some issues, but without repeating what we there said, the power that was being exercised by Commissioner Smith in the matter under appeal was grounded by section 170LW of the Act. That section relevantly permits agreements to empower the Commission to settle disputes over the application of the agreement. The cause of the section is permissive. That is, because it allows agreements to empower the Commission, as the High Court has said the Act may, the limits of the power thereby granted are to be found in the agreement itself. As the Commission appreciates, in particular cases that power may or may not extend to a power of determination or arbitration.

PN10

In the present case, the power does extend to a power of determination, but subject to some important limits. May we refer the Commission to the agreement itself in that respect, which the Commission will find in volume 1 of the appeal papers behind tab 2. We wish to refer to clause 63 which begins at page 84, and in particular the clause 63.5 under the heading, "Referral to the AIRC". I am sure the Members of the Bench will have had the opportunity to glance at this provision already, so I will mention it only briefly. Under 63.5.1, matters may be referred to the Commission. Under point 5:

PN11

The Commission may make determinations or recommendations, but that is subject to point 6, namely, that the determination or recommendation may not be inconsistent with the terms of the agreement.

PN12

The relevant terms for the purpose of the present appeal are for the most part to be found in clauses 19, 23 and 24. I will come to clause 19 shortly. May we commence with clause 23, which is the first clause in part (f), Performance Management. It was clause 23.6 that was of particular importance in Commissioner Smith's reasoning, but may we, before referring to that, draw the Commission's attention to clause 23.1 where the objectives of the performance management system are set out. They are to do with fostering a high-performance culture, the ABC's goals are to be realised efficiently and effectively, employees are to benefit through active participation of the process, et cetera.

PN13

There is mention of feedback, high performance, poor performance and so on. When one comes to clause 23.6, it may be seen that discussions about work performance may be held at any time as part of the ongoing feedback process and if a problem is identified, then the cause of the problem is to be identified. Now, it will be clear on the material which is in the written submissions that there was a particular point in time at which a problem was identified by Mr Hamilton to Ms Barakat which led to Mr Hamilton's proposal that there should be a change in the arrangements for the production of the Inside Business program, and Ms Barakat's move to an alternative position at the 7.30 Report.

PN14

To the extent that it's necessary to do so, we would submit - as we submitted below - that the problem was identified immediately in the context of clause 23.6.1, but that is not at the heart of the present issue. At least, the issue I am addressing at the moment, which is an issue of construction. The way in which the further steps are to be taken may be important in particular cases. For example, in (a) of the causes due to a difficulty in the workplace or working arrangements which the ABC can reasonably be expected to rectify, then this will be rectified. If it's due to a deficiency in knowledge or skills, and it's reasonable to provide expert training et cetera, then this will be provided.

PN15

It was not suggested in this case that Ms Barakat's skills and knowledge were deficient in any technical sense. Clause 23.6.2 is important because it depends for its operation upon a lack of progress. Concept of lack of progress has to be considered in some practical and sensible way against what will be reasonable in the circumstances for such progress to be measured:

PN16

If adequate progress has not been made within a reasonable period, then formal procedures for dealing with unsatisfactory performance will be commenced in accordance with clause 24, "Unsatisfactory Performance".

PN17

SENIOR DEPUTY PRESIDENT MARSH: Mr Buchanan, isn't it true that in 23.6.1, it indicates that the cause will be identified, however, without limiting possible causes?

PN18

MR BUCHANAN: Yes, it does, your Honour. That's quite so.

PN19

SENIOR DEPUTY PRESIDENT MARSH: Yes. I think that should be pointed out.

PN20

MR BUCHANAN: Quite so, and (a) and (b) are really selections of what might be thought to be primary examples.

PN21

SENIOR DEPUTY PRESIDENT MARSH: Well, examples.

PN22

MR BUCHANAN: And they impose upon the ABC in those cases an obligation to take the steps that are there referred to. That is, rectify any problem which is capable of being rectified or provide adequate support, and if that's reasonable. There was no chance for progress to be assessed in the present case because Ms Barakat refused the steps that were offered to her. The combination of events had the result that progress of any kind was not possible. Clause 23.6 does not say that employees can veto steps taken to manage underperformance, if underperformance is indeed the issue.

PN23

But may I stress again, I am dealing with this in an introductory way because it was important in Commissioner Smith's reasoning, but it does not, with respect, bear directly upon the issue of the appropriate construction of clause 19 for reasons that we wish to develop. In clause 24, there are further, more particular provisions made for dealing with unsatisfactory performance. This is a provision that may be engaged following the identification of the processes in clause
23. Commissioner Smith thought that clause 24.3 was of central significance, but without reading through the whole of clause 24 - and I am hoping that the Members of the Bench may be able to quickly cast their eye down that provision from its commencement until clause 24.3.

PN24

By the time clause 24.3 is reached, the following steps have been taken. Firstly, there will have been, in many cases at least, a failure of any steps taken under clause 23.6 after a reasonable period has expired during which an assessment can take place. Secondly, the commencement of a formal process under clause 24. Thirdly, the development of a performance improvement plan. Fourthly, the implementation of training programs or work changes, and fifthly, the establishment of a time frame in which improvement might be shown. The establishment of those steps under clause 24 is to take place in conjunction with a human resources manager and in consultation with an employee.

PN25

It's evident that some time will be involved in those steps being designed, discussed and implemented. Then there must be an assessment over the period of the performance improvement plan. So only if those processes were unsuccessful that clause 24.3 is engaged. Then if it is engaged in a formal way, there must be a formal second notification of the problem and a time fixed for a meeting to give reasons why the ABC should not take certain action. The Commission might notice that there is a reference in the certified version to a subclause 19.3.3. That is, I regret to say, an error. There is no clause 19.3.3. The reference should be to clause 24.3.3 and the error has in fact been corrected in the version which is published for internal use within the ABC.

PN26

SENIOR DEPUTY PRESIDENT MARSH: Was that pointed out to Commissioner Smith?

PN27

MR BUCHANAN: I don't think he refers to this particular provision, your Honour. I don't know that it was pointed out, but it's not - he doesn't refer to this. He seems to refer to something in clause 19 that he thought engaged clause 24.

PN28

SENIOR DEPUTY PRESIDENT MARSH: I see.

PN29

MR BUCHANAN: May I, just to make this point, hand up a copy of the ABCs booklet, just so the Commission can see itself that the error has been corrected.

PN30

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you.

PN31

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, the correct reference is to?

PN32

MR BUCHANAN: To 24.3.3.

PN33

SENIOR DEPUTY PRESIDENT MARSH: So you just move on through the provision?

PN34

MR BUCHANAN: Exactly.

PN35

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN36

MR RYAN: Your Honour, we don't quibble with that at all.

PN37

SENIOR DEPUTY PRESIDENT MARSH: No, no. It makes sense. Yes, thank you for that.

PN38

MR BUCHANAN: I thought I should clear it up, though, because it may, in the light of Commissioner Smith's reasoning, raise questions about the way in which he thought the internal references in the agreement were going. He doesn't appear to place any weight upon this.

PN39

SENIOR DEPUTY PRESIDENT MARSH: No.

PN40

MR BUCHANAN: Then there are the further steps that must be taken under clause 24.3. There may be a further period of assessment, or there may be other steps including, but not restricted to, transfer. The other steps may include termination of employment, they may include a demotion. Those processes, we submit, have nothing to do with clause 19 and we will attempt to demonstrate that in more detail in a moment. They were not invoked in Ms Barakat's case and we will refer to some evidence to that effect later when Commissioner Smith himself asked precisely about that issue.

PN41

Nobody was contemplating any sort of disciplinary procedure that might lead to termination of employment or demotion.

PN42

SENIOR DEPUTY PRESIDENT MARSH: Well, what about transfer?

PN43

MR BUCHANAN: Transfer, certainly.

PN44

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN45

MR BUCHANAN: Yes. But not, your Honour, we will contend, in the context of a disciplinary response of the kind which is set out in clause 24, with all the formality which attaches to it. You see, by the time this point is reached, as I have been endeavouring to submit, one has the identification of a problem, certain informal steps or what one might term an informal period in which the position might be further assessed, in the light of the immediate responses which the ABC and the employee concerned might make, and then if that fails to bring about a result, then there are the more formal processes under clause 24.

PN46

They are quite formal and involve quite specific steps which must necessarily be taken over a not insignificant period of time in order to allow an adequate assessment. Now, if Commissioner Smith is correct in his interpretation, all of that must happen without a transfer occurring and regardless of the needs of the program involved, regardless of the sensitivity of the position involved, and regardless of the judgements made by ABC management. Because if he is correct, then the idea of transfer in clause 19 is in any case where a performance issue might be said to be involved necessarily deferred until the end of the process which is set out in clauses 23 and 24.

PN47

In other words, the whole of the discretion in clause 19, regardless of the operational need, is suspended. Indeed, not just suspended, but entirely replaced by the existence of the provision in clause 24.

PN48

SENIOR DEPUTY PRESIDENT MARSH: So is it the ABC's decision that it is the ABC's prerogative to determine when to invoke 23 and 24?

PN49

MR BUCHANAN: No - - -

PN50

SENIOR DEPUTY PRESIDENT MARSH: According to the needs of the program and the sensitivity of the issue?

PN51

MR BUCHANAN: No, no. It - - -

PN52

SENIOR DEPUTY PRESIDENT MARSH: Because that's not what the agreement says.

PN53

MR BUCHANAN: No, your Honour, the contention is that the discretion in clause 19 is not dependent upon following the steps in - - -

PN54

SENIOR DEPUTY PRESIDENT MARSH: So why would you ever invoke those provisions? What work do they have to do, if management's at large under clause 19?

PN55

MR BUCHANAN: Because, your Honour, these provisions - and they're not just concerned with underperformance, but where they're concerned with underperformance, they might lead to a demotion, for example, or even dismissal. They are provisions that operate for the protection of the employee, but they don't operate for the protection of the employee in a way which entirely suspends all other discretions that the ABC might have in dealing with the programming arrangements, for example.

PN56

SENIOR DEPUTY PRESIDENT MARSH: But where does it say that in the agreement, that it's conditioned upon certain rights of management to manage?

PN57

MR BUCHANAN: Your Honour, the very point that we seek to make is that the agreement does not say that one clause is conditional upon another. Commissioner Smith thought that the discretion in clause 19 gave way to the provisions of clause 24.

PN58

SENIOR DEPUTY PRESIDENT MARSH: Well, can I put it another way? Can you explain to me when performance management, under 23, and managing underperformance does not apply under the agreement? To who does it not apply? That would assist me, Mr Buchanan.

PN59

MR BUCHANAN: I have to take them in two discrete areas, your Honour. Under 23, and I want to come back to other aspects of clause 23 in a little while, but clause 23 deals with the whole performance management scheme. It deals with the job - - -

PN60

SENIOR DEPUTY PRESIDENT MARSH: I know what it deals with, I want to know where the exceptions, where you draw the line on sensitivity of issues and programming needs, because I don't understand it, and I need that to be able to understand - - -

PN61

MR BUCHANAN: But you don't - - -

PN62

SENIOR DEPUTY PRESIDENT MARSH: - - - where you draw the line in saying, "Your performance doesn't come under 23 and we're not going to manage your underperformance under 23.6 or your unsatisfactory performance under
24". I just want to know what the parameters for 23 and 24 are to better appreciate the parameters that you're placing on it in terms of saying management's at large under 19. I don't know when you'd ever invoke 23 or
24 other than at the will of management.

PN63

MR BUCHANAN: Well, clause 23 applies to everybody, and not just in relation to underperformance. It applies to everybody because it involves the creation of job plans, feedback and review, appraisal; it provides an appeal mechanism and so on. Part of clause 23 deals with what is entitled, "Managing Underperformance". The opening line is important:

PN64

Discussions about work performance may be held at any time as part of the ongoing feedback process.

PN65

Now, that makes it apparent immediately that this is not part of a formal disciplinary procedure. Insofar as clause 23 is involved - and I'll come to 24 in a moment - you can have a discussion with somebody at any time without the necessity to treat that discussion as a formal process of discipline or counselling or anything of that kind. If there's a problem under - - -

PN66

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Presumably, the reference to the feedback process is a reference back to 23.5?

PN67

MR BUCHANAN: Yes. Ongoing feedback during the performance cycle. And there's nothing at all curious about the idea that there would be a recognition in what is intended to be a practical instrument, of the fact that ongoing discussions could take place in an appropriate way without engaging unnecessary, formalistic processes. Presumably, 23 is seen by the parties, for the most part, as contributing constructively to employee career development and job satisfaction, as well as aiding the usual addictives of efficiency.

PN68

If there is a problem identified, then the expectation is that the problem will be raised immediately, but presumably without every such occasion being regarded as the occasion for complaint or grievance about the fact that there is feedback which is not always complementary. The idea presumably is that there is to be frank, and within the limits ordinarily of courtesy, uninhibited discussion about matters that involve the ABC's operations and the employee's performance. In that context, if any problem identified can be attributed to difficulties in working arrangements and they can reasonably be rectified, then the expectation is that they will be rectified.

PN69

If it's due to what appears to be a deficiency in knowledge or skills and it's reasonable to provide support, then that will be provided. To this point, this doesn't imply any particular criticism. There may be a performance issue which seems to be attributable to causes which don't imply necessarily criticism of the employee. Where reasonable steps can be taken to rectify that, the expectation is that that will happen. Then, if those sorts of processes have been unsuccessful, then clause 24 will be engaged. One might infer from that provision that the commencement of some more formal process is to be distinguished from the operation of the less formal, ongoing feedback process to which clause
23.6 refers.

PN70

That would be appropriate, because the more formal process under clause 24, which was never engaged in the present case, is one which necessarily involves a criticism of the employee in some personal sense. It's one which now does not appear to be related to a difficulty in working arrangements or a deficiency in knowledge or skills which can be remedied as contemplated by clause 23.6. The consequence of this rather more formal process may be termination of employment. It's not surprising, therefore, that there are a series of very explicit steps set out.

PN71

This is no longer just part of the ongoing feedback arrangement. These are a series of very explicit steps at a higher level of performance, accompanied by a time frame, accompanied by a period of assessment, accompanied by a second formal notification and so on. None of that was engaged in Ms Barakat's case.

PN72

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I am just, Mr Buchanan, scratching my head and would be interested in your views on this. So far we have been talking about the issue of handling performance problems under clause
23.

PN73

MR BUCHANAN: Yes.

PN74

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Clause 23.7 goes on to essentially use part of the process also for salary progression, which seems to be the upside of the process. You know, the downside of the process is that there are problems identified, and indeed, that can flow through into salary ramifications, but the upside in 23.7 is that that flows through into award and there's a review process in 23.8 to ensure that that's all properly handled and so on. Do you have anything to say about that other side of the process?

PN75

MR BUCHANAN: Well, to the extent that it's an upside, of course - no, I shouldn't say of course, but my submission is that it supports the point that I have been making. Of course, there is the possibility of an unsatisfactory rating. The consequence of an unsatisfactory rating is that there's no salary advancement. But the fact that such a provision is made within clause 23.7, together with the remedy which is provided in 23.7.7, rather emphases the fact that these sorts of appraisal arrangements are to be distinguished from the ones in clause 24. The mere fact that you might have, in a particular cycle, an unsatisfactory arrangement doesn't necessarily mean that all of the more formal steps will be taken.

PN76

Now, it's true that on 24.1.1, if there is an unsatisfactory assessment, there has to be a performance improvement plan developed. But subject to that, the other assessments don't involve the engagement of clause 24. The point that we want to make is that clause 24 was not engaged in the present case. One doesn't get to - the mere possibility, the mere possibility, that something has emerged in the workplace which might conceivably, over a period of time, and in the light of a series of assessments, lead eventually to the commencement of formal processes under clause 24, which might in turn conceivably, over a period of time, lead eventually to the engagement of clause 24.3, which might in turn eventually lead to consideration of the possibility of a transfer as one response to the problem perceived, verified and confirmed, does not mean that any other discretionary transfer is in every such case put at law.

PN77

It simply means that transfer, as well as termination of employment, or demotion, is an option at the end of that process. Now, I haven't get come to clause 19, but there's nothing in clauses 23 or 24 that says these processes shall operate to the exclusion of any discretions available in clause 19. So if one is looking for an indication in these provisions that they operate on some other clause of the agreement, it's not there to be found. The next question is, can one see it in the operational terms of clause 19? Commissioner Smith thought that he could and I need to come to that in a little more detail.

PN78

But there's not the slightest evidence that in the circumstances as they developed in April 2004, anybody was contemplating some sort of disciplinary procedure. Now, the point comes back, then - - -

PN79

SENIOR DEPUTY PRESIDENT MARSH: So what was being contemplated?

PN80

MR BUCHANAN: A transfer to another position so that - so that - the program needs of the Inside Business program could be met to the confidence of the relevant ABC head.

PN81

SENIOR DEPUTY PRESIDENT MARSH: So where did the lack of confidence come from by the ABC head?

PN82

MR BUCHANAN: It came from his appreciation, your Honour, of the circumstances and events that had led up to his meeting with Ms Barakat on 5 April and according to his evidence, in particular her responses at that meeting.

PN83

SENIOR DEPUTY PRESIDENT MARSH: So was that a performance issue?

PN84

MR BUCHANAN: It may have been, under clause 23.

PN85

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN86

MR BUCHANAN: Yes. It may have been.

PN87

SENIOR DEPUTY PRESIDENT MARSH: So if there's a performance issue in the ABC, there's two routes; there's a short route, through 19, or there's the long route through 23 and 24 - - -

PN88

MR BUCHANAN: Not at all.

PN89

SENIOR DEPUTY PRESIDENT MARSH: - - - to get to a transfer?

PN90

MR BUCHANAN: Not at all. The obligations under clause - - -

PN91

SENIOR DEPUTY PRESIDENT MARSH: And that's up to management to decide on the sensitivity of the issue and the performance needs of the program.

PN92

MR BUCHANAN: I don't accept what your Honour has put to me. What - - -

PN93

SENIOR DEPUTY PRESIDENT MARSH: Well, I don't know how else to interpret it. There's two provisions of transferring on a performance basis. You say there's no link?

PN94

MR BUCHANAN: There's no provision for transfer in clause 23. What your Honour asked - - -

PN95

SENIOR DEPUTY PRESIDENT MARSH: In 24, once you go through 23, you get to 24.

PN96

MR BUCHANAN: Not necessarily.

PN97

SENIOR DEPUTY PRESIDENT MARSH: No?

PN98

MR BUCHANAN: No, not necessarily. Your Honour asked me about whether the performance issue had to be raised under clause 23 and it probably does. It probably does and it should happen quickly - - -

PN99

SENIOR DEPUTY PRESIDENT MARSH: It has to be discussed.

PN100

MR BUCHANAN: It has to be raised immediately, but that doesn't engage clause 24. Clause 24 is a different mechanism. It may or may not be engaged at some time in the future. The mere possibility that it may be engaged in some case or other, some time in the future, and the further possibility that at the end of that process under clause 24, after all the variables have been taken into account, one of the responses to an irremediable underperformance might be transfer. It doesn't mean the fact that somebody's given a bit of feedback, under clause 23, means that all the other discretions have gone out the window.

PN101

There is no collision or conflict of any kind here, and as I have been at pains to point out, clause 24 was never engaged in this case, nor would anybody suggest that there was any likelihood it would be engaged. Now, with respect, one cannot address the other discretions in the agreement by reference to mere possibilities unless of course there's something in the agreement itself that makes those other discretions subject to another clause in the agreement. As I said, Commissioner Smith thought that clause 19 operated that way, but we wish to point out that that's not so.

PN102

May I point out immediately that clause 19.3 is part of clause 19, Classifications. It's in a section of the agreement, part E, "Salaries, Classifications and Related Matters". It's not in the same section as part F, "Performance Management" and so there's no immediate assumption that it addresses the same immediate objects as part F. It deals with classifications. It's important, of course, to look at the clause as a whole. There are three groups of classifications, they are graded into nine salary bands in each classification in accordance with work level standards referred to in clause 19.2.

PN103

Then there comes clause 19.3, "Performance of Work". Clause 19.3 is a clause about workforce mobility. It gives the ABC discretion to require such a movement within the limits of employees' competence, training and classification. It can obviously use that discretion to meet operational objectives. The discretion which is there given is consistent with objectives which are to be found in the main - stated in the main purposes and principles of the agreement, which are in clauses 11 and 12. For example, 11.1.1(a):

PN104

The purpose of the agreement is twofold; (a) to provide terms and conditions of employment that are responsive to the ABC's needs, the needs and aspirations of employees and the industries and markets in which the ABC operates.

PN105

Clause 12.1.1(a); the agreement helps to give effect to the commitment by supporting a mobile, multi-skilled workforce with broad banding including
cross-media classification structures that preclude unnecessary or outmoded demarcations. And 12.1.2(i) refers to the needs of specific work areas and the exigencies of the marketplace. The discretions to deploy staff to best meet the ABC's operational needs is perceived from time to time by its management, are not affected, in our submission, by the disciplinary procedures in clause 24. And to find that they are, as Commissioner Smith did, is in an important way to rob clause 19.3 of its capacity to meet operational needs.

PN106

There must be a very large number of transfers which, if they were resisted by employees, might be resisted on the basis that somehow it inferred dissatisfaction with performance. That could only be addressed under not only clause 23, but some notional extended process that engaged the possibility of clause 24 as well, and the eventual possibility at a higher level of theory of a transfer. Such an approach, in our submission, robs what ought to be a valuable agreed discretion of much of its utility. It's also against the approach that was taken by a Full Bench of the Commission in what the parties have referred to as the Lobez case, PR953063. It's now reported in 136 Industrial Reports at page 99. May we hand up a copy of that decision.

PN107

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you. We won't mark that.

PN108

MR BUCHANAN: The case was similar to the present case in the sense that the respondent of a present appeal argued that clause 19 was limited by the operation of another clause in the agreement, in that case, clause 13. May we refer to four paragraphs in the decision in particular? Firstly, clause 14 where clause 19 is set out with the notation. It's accepted that it provides for the compulsory transfer of employees under certain conditions. Then the clauses 22, 23 and 26. In
22 there's a reference to the argument - sorry, to Commissioner Smith's determination that:

PN109

A person appointed to a position as a result of action under clause
13.2.2(b) of the agreement cannot be the subject of compulsory transfer under clause 19.3 of the agreement.

PN110

In paragraph 23, in the second sentence:

PN111

Clause 19.3 permits the ABC to require an employee to move between functions and work areas within the limits of their competence, training and classification. It was common ground that the clause permits the ABC to compulsorily transfer an employee to a new position subject to the limitations specified, and any to be implied from the agreement.

PN112

In clause 26, in the last two sentences of the clause:

PN113

Leaving aside the final sentence of the clause, all that is required for clause 19.3.1 to apply in relation to a particular employee is that there be a position within the limits of the competence, training and classification of that employee. There is nothing in the terms of either clause, express or implied, which requires clause 19.3.1 to be read subject to the operation of clause 13.2.2(b).

PN114

The same position, in our submission, pertains here subject to the matter that I want to come to now, which was that Commissioner Smith thought that he saw in clause 19 something which in terms incorporated the operation of the performance management system. In his decision, that appears most clearly from four paragraphs. Firstly, paragraph 35, where he says:

PN115

Having set out clause 19.3, the first matter to notice is that the performance management system is also referred to in clause 19.3, and I shall return to that matter later.

PN116

Because he set the clause out, it's convenient to draw attention to the last line of clause 19.3.2 where there is a reference to the performance management system. But it is a reference which is qualified by the context in which it appears. Namely, that it appears in the context of a reference to employees' development needs and career aspirations identified in the performance management system, and I will refer to where those words come from shortly. In paragraph
73, Commissioner Smith says:

PN117

Unlike the position dealt with by the Full Bench in Lobez, clause 19.3 deals internally with the performance management system.

PN118

In 74:

PN119

Whilst the Full Bench in Lobez said there's nothing in terms of either clause, express or implied, which requires clause 19.3.1 to be read subject to the operation of clause 13.2.2(b). The same cannot be said about the performance management.

PN120

And in 77:

PN121

I am satisfied that in this case, there are terms contained in clause 19.3, together with the context of the agreement read as a whole, which means that the power to transfer for poor performance cannot be accessed through clause 19.3.1 as it would not give meaning to clauses 19.3.2, 23 and
24.

PN122

Now, I have attempted to deal with clauses 23 and 24. They don't depend in any way, in our submission, on subjugating clause 19.2. So far as clause 19.3.2 is concerned, may we point out, by going back to the agreement, point out two things; firstly, that the reference - and one level of generality is the performance management as a whole and not to underperformance in any sense. The reference to the whole of clause 23, if one wants to read it in that way. Secondly, it appears to be that by its terms, a specific reference to clause 23.4.1, where in the second sentence this is said:

PN123

The job plan is based on the operation of plans at the work area, the employees' competencies, development needs and career aspirations.

PN124

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, where are you again?

PN125

MR BUCHANAN: I am in 23.4.1, your Honour, and I am attempting to identify the precise words that I used in clause 19.3.2, which are development needs and career aspirations. The development needs and career aspirations which are identified in the performance management system as that ideal is used in clause
19 are those which find reflection in the job plan. This has nothing to do with underperformance. On the contrary. It's a reference in the context, if one reads clause 19.3.2 properly, of avoiding artificial limitations and allowing full scope for employees to transfer and be mobile. Employees are not to be restricted by formality.

PN126

If their development needs and career aspirations are identified in the job plan, that will be sufficient reason to allow the mobility which clause 19 provides for. Clause 19.3.2, in this context, refers to beneficial outcomes. It doesn't refer to discipline. These are words of expansion, not words of restriction.

PN127

SENIOR DEPUTY PRESIDENT MARSH: So 19.3.1 covers disciplinary matters?

PN128

MR BUCHANAN: Not directly. But there's no reason why there couldn't be a transfer for programming needs independently of some form of disciplinary action, which didn't occur in this case.

PN129

SENIOR DEPUTY PRESIDENT MARSH: Commissioner Smith didn't make a finding on whether or not in the circumstances of Ms Barakat's case, under
19.3, whether the transfer was designed to promote deskilling, because he didn't have to, because of his other findings. In the event that we found in favour of the ABC's position, would it be appropriate to refer that matter back to him to determine that unresolved matter, of whether the transfer was designed to promote deskilling?

PN130

MR BUCHANAN: No. For two reasons, your Honour. The first is that in paragraph 80 of the decision, whilst saying that he had no need to decide whether the move was designed to deskill, Commissioner Smith makes some reference to the possibility that salary maintenance, that is, no reduction in the salary, was used to mask whether or not the action was designed to deskill. There's not the slightest support for that suggestion anywhere in the evidence.

PN131

SENIOR DEPUTY PRESIDENT MARSH: But that's not a ground of appeal. We're not dealing with that.

PN132

MR BUCHANAN: No.

PN133

SENIOR DEPUTY PRESIDENT MARSH: So, that's my question; should then go back to him to make a finding, because it may be that he would find that way.

PN134

MR BUCHANAN: Well, he couldn't, because there's no support anywhere in the evidence for the oblique suggestion - - -

PN135

SENIOR DEPUTY PRESIDENT MARSH: But it's not for you to decide or me to decide. It would be a matter for the Commission to decide.

PN136

MR BUCHANAN: But it is a matter for the exercise of the Full Bench's discretion and in a circumstance where there's no evidentiary support for what he mentions as a possibility, it would be a sterile exercise. Nobody has suggested that the fact that Ms Barakat was not going to suffer a reduction in salary was designed to mask deskilling. There was a suggestion, it's true - - -

PN137

SENIOR DEPUTY PRESIDENT MARSH: I thought she suggested it.

PN138

MR BUCHANAN: There was a suggestion - - -

PN139

SENIOR DEPUTY PRESIDENT MARSH: I thought that was one of the reasons why she didn't accept the transfer.

PN140

MR BUCHANAN: There was a suggestion, it's true, that the case was originally commenced upon the premise that what the ABC had done was designed to deskill her. No doubt that was a response to what the Full Bench said in the Lobez case that in clause 19 - - -

PN141

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes.

PN142

MR BUCHANAN: It wasn't a question of deskilling being an outcome. There had to be some intention to deskill people, but - - -

PN143

SENIOR DEPUTY PRESIDENT MARSH: But I thought the Commissioner said he didn't need to decide it?

PN144

MR BUCHANAN: He did.

PN145

SENIOR DEPUTY PRESIDENT MARSH: Well, it may be in the event that he lost on the other ground, that he did have to decide.

PN146

MR BUCHANAN: Well, that's rather suggesting - - -

PN147

SENIOR DEPUTY PRESIDENT MARSH: So I am saying you can't really pre-empt his finding on that.

PN148

MR BUCHANAN: But, your Honour, that's suggesting that the Commission, in this case, Commissioner Smith, has an agenda in which he's going to get to a certain result. I mean, it just sort of puts the steps in place.

PN149

SENIOR DEPUTY PRESIDENT MARSH: No, it's not. It's because he said, "I do not need to decide it". A quite common way of reaching decisions, that "I'll leave this up in the air because I've decided it on another ground". I mean, it happens all the time.

PN150

MR BUCHANAN: Yes, but if he had thought that it provided independent support for his conclusion, it doesn't - my submission is that it would be expecting that he would make the finding.

PN151

SENIOR DEPUTY PRESIDENT MARSH: Well - - -

PN152

MR BUCHANAN: The only basis upon which he says the possibility exists is that the fact that nobody suggested a reduction in salary was designed to mask some intention to - - -

PN153

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand what you're saying.

PN154

MR BUCHANAN: And the second reason why it would not go back, in our submission, is that the Full Bench in the Lobez case has sufficiently identified what would be required to establish an intention to deskill. It is, to begin with, very unlikely it would arise in an individual case. Because that supposes a level of direct personal, covert, punitive action that would be extreme in the range of conduct. We wouldn't lightly impute that.

PN155

SENIOR DEPUTY PRESIDENT MARSH: If the words provided - - -

PN156

MR BUCHANAN: And designed.

PN157

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes. Designed.

PN158

MR BUCHANAN: Designed - - -

PN159

SENIOR DEPUTY PRESIDENT MARSH: Yes, yes.

PN160

MR BUCHANAN: And in this case, in the individual case, that is some particular step taken directly contrary to the interests of the individual, designed to disadvantage them by robbing them, as it were, of their skill base. You wouldn't lightly impute such a motivation, particularly to a large organisation such as the ABC. But there's nothing - - -

PN161

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, especially in the light of the statements made in clause 15 of the agreement.

PN162

MR BUCHANAN: But there's nothing in the material that would support such a suggestion, and - - -

PN163

SENIOR DEPUTY PRESIDENT MARSH: My question was whether or not Commissioner Smith, if we found in favour of the ABC's interpretation of these clauses and found that the Commissioner had erred, whether or not because he had decided something, whether he should then decide it because it's another leg of the argument. I don't think it's appropriate that the Full Bench - well, we don't need to probably determine that matter.

PN164

MR BUCHANAN: Well, it's certainly within the Full Bench's - - -

PN165

SENIOR DEPUTY PRESIDENT MARSH: I just wanted guidance as to whether it would be appropriate to refer it back to him, for him to decide, whether it did fall within that part of 19.3.1?

PN166

MR BUCHANAN: Well, your Honour, it's within the discretion of the Full Bench to determine everything that's in an appeal, including all the issues at first instance. If some serious argument is raised, that this was a move designed in Ms Barakat's case to promote her deskilling, and if in response to that argument we can't convince the Full Bench that there's insufficient supporting material for the proposition, then of course it's a matter of how the Full Bench could send it back, and it would be much more satisfactory if the Full Bench made its own decision about the matter based upon the material which is before it.

PN167

My immediate response to it is that there is no support for it in the materials. The second response is, that it's contrary to the way in which the Full Bench has identified the operation of the words, and the third response is that if Commissioner Smith wished to rely upon it to support his determination, then he would have done so. What is before the Full Bench at the moment is the determination that he made. If his reasons for making that are inadequate, then the prima facie position is that the determination should be set aside. If the Full Bench found an alternative basis upon which it ought to be preserved, that would be one thing.

PN168

But as a matter of judicial administration, it's not normally appropriate to send matters back to Courts or Judges or Tribunals at first instance to see if they can provide an alternative means of supporting their original determination. That's really a matter for the Appeal Bench.

PN169

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you.

PN170

MR BUCHANAN: Now, I have almost come to the end of the first point that we wanted to argue, which was the question of construction. Namely, that clause
19, whether by reference to its own terms, or by reference to implications that arise from other clauses in the agreement, does not operate to provide a right of compulsory transfer merely because there is a possibility that a right of transfer might eventuate ultimately from the operation of some of that clause which had not been engaged. If that contention is correct, as we submit it is, then the conclusion in paragraph 92 of Commissioner Smith's decision that the ABC did not have the power to transfer Ms Barakat, is incorrect and cannot stand.

PN171

As also is the rather general finding that the performance was in issue, then the provisions in relation to the management of performance should have been used, if, by that, he intends to declare that the provisions of clause 24 should necessarily have been used. That's a point that may or may not ever have arisen. Nobody has suggested it to that point and any opportunity to see whether, in real life, matters would go in that direction or some other direction was in fact not provided because she was not there to perform any duties at all.

PN172

The decision in that respect, in our submission, are both incorrect and inconsistent with the terms of the agreement and therefore beyond power and in those circumstances, a competent appeal lies under section 45(1)(g) as the Full Bench found in the Lobez case. Now, it's possible to get to this point without saying very much at all about the facts and about the competing positions which arise on the factual contents. Commissioner Smith formulated, in our submission, the question correctly quite early in the proceedings. So I am not attempting to persuade the Commission on appeal to take some different approach to the course that he sought for the agreement of the parties' charter.

PN173

The reference to that is in volume 2 which is the volume containing the transcript, at page 62, paragraph 452. Really commencing at the bottom of page 51:

PN174

I have conferred with the parties and as I understand the position, the Commission will consider, determine or recommend in accordance with the disputes settlement procedure matters arising between the parties. But the terms of reference will be as follows -

PN175

And then paragraph 453:

PN176

In accordance with clause 63.5.5 of the ABC Employment Agreement, the Commission shall determine or recommend ...(reads)... secondly, clause 63.2.1, whether or not that inhibits the use of clause 19.3.

PN177

That's not a matter which ultimately found - I will just check that. That's not a matter which ultimately found expression in the decision. No. Then in paragraph 454, there are some matters referred to which are not dealt with in the decision, and which the Commission on Appeal doesn't need to be delayed by. In 455, there is a reference to the express reservation by the ABC of it's position as to jurisdiction, namely that any determination made would have to be consistent with the terms of the agreement. That was agreed by the parties and that is the first issue which the decision set out to address, as is clear from the terms of paragraph 24 of the decision, where Commissioner Smith says:

PN178

In the first aspect of this decision, I propose to consider the interaction of clauses 19.3, 23 and 24 of the agreement.

PN179

So 24 is now, as it were, in the equation. Now, at the risk of being repetitive, may I just remind the Commission that the reference in clause 19 itself, the performance management, is not a reference to 24. It's a reference to clause 23. And it's a reference to a particular part of clause 23 by way of extending the circumstances in which it might operate, rather than restricting. So our submission is that on the issue of construction, that is, a primary issue dealt with in paragraph 92 of the decision, the appeal should be upheld. There are, however, some other matters I need to deal with because of the further steps that he took.

PN180

It wasn't strictly necessary, in our submission - - -

PN181

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Mr Buchanan, before you go on with that, I understand the submission about the relationship between 19 and 23 and that on your submission, what commenced was informal steps to deal with an issue. But the progress of that was essentially frustrated by inability of the parties to engage in - - -

PN182

MR BUCHANAN: Well, if there were informal steps which might have had any further consequence at all, I mean, the decision to replace Ms Barakat was obviously formed. So far as any reflection on her capacities or ability was concerned, one can discern, at least a response to the requirements of clause
23, that any issue about performance must be raised as part of the ongoing feedback process. But it may never have gone beyond that.

PN183

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes. Okay - - -

PN184

MR BUCHANAN: My resistance is in relation to process - - -

PN185

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Okay, I understand that, and perhaps I didn't put it well, but what was it in the agreement that gave the ABC the power ultimately to get to the position of proposing to terminate Ms Barakat's employment?

PN186

MR BUCHANAN: Well, that's in a sense a different issue and one that I wanted to come to in a little more detail, but let me endeavour a short summary now. In the circumstances as they have developed, there never was a transfer that was accomplished. There was an offer made to her to go to the 7.30 Report, which she refused. She went on leave at various times, including sick leave. There were some restrictions suggested by the medical practitioners that she consulted, both on her own behalf and on reference from the ABC. And they were perceived to restrict her capacity to perform certain types of work.

PN187

At one stage, although the letter is not in evidence, it's referred to, but the letter itself is not in evidence, we can provide it if necessary, she was directed to report for work. Directed in mid-December 2004 to report for work at the 7.30 Report in January this year. In other words, she was directed to transfer. In the light of a further report by a Dr Smith, extracts of which are set out in our written submission, a further letter was written to her which is in evidence, revoking the directive to transfer. It was because the restrictions that were suggested by
Dr Smith were perceived to in effect disable her from performing work at her level in the news and current affairs area in Victoria, that the same letter said to her:

PN188

We now would like to give consideration to terminating the employment.

PN189

That's a letter that was furnished to Commissioner Smith and at that point he gave a direction that no further steps be taken in that regard and that direction has been respected, although we wish to submit that, strictly speaking, it was beyond power because it also was inconsistent with the terms of the agreement. Now, we don't want anything more done about that on this appeal. The Full Bench acknowledge that it's time to move on, and I'll say something about that right at the end of the submission, but that's how it arose, for a very long, and even now the position has not been formally filled.

PN190

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So what was the power in the agreement under which the ABC would act in that way?

PN191

MR BUCHANAN: There are two clauses that need to be considered. One is clause 60 that gives a power to terminate in particular ways. One is 60.1.1(b)(ii). One is to terminate on notice on the grounds of medical incapacity. That was the ground referred to in the letter that was written to her. There are other grounds, including unsatisfactory performance, serious misconduct and so on. The provision I referred to is subject to clause 59; 59 has three elements to it. One is that in cases of extended illness, there has to be case management with a view to return to work, if that's in accordance with the requirements of medical advice.

PN192

The second is if there's an indication by Health Services Australia that the employee is no longer fit for continued employment, the ABC may review the continuing employment and take such action as is appropriate in the circumstances. And we want to suggest that that has a particular significance in the present case. The third is that you can't terminate without consent until sick leave credits have been exhausted. I do want to come back to mention how that has a role to play in the present matter particularly because Commissioner Smith seemed to think that reinstatement was a desirable outcome. There are a number of reasons why that is not so.

PN193

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So your basic proposition is that, look, an issue arises in the context of the requirement for a problem to be raised with an employee; that's done. The formal process is not engaged in, but through all the twists and turns we finish up with a medical incapacity which gave the ABC the ability to terminate employment, though that never eventuated?

PN194

MR BUCHANAN: Well, before we got to that, of course, there's been a long period where no duties have been performed. The facts don't bear really directly upon the question of construction that we have argued so far, but the meeting which occurred between Mr Hamilton and Ms Barakat, which was the last occasion upon which she consented to see him face-to-face, on 5 April last year, followed shortly after an occasion upon which she had left the workplace at a time that was seen by others at least as important, if not critical. She came back to work for a short period thereafter. She then had the meeting with Mr Hamilton.

PN195

His evidence was that he had developed concerns as a result of what she said in the meeting with him. He decided that he had lost confidence in her and he told her so. Lost confidence in her so far as the needs of the program were concerned, so he determined to take a step to deal with what he perceived to be the production necessities of the program. So far as her position was concerned, he proposed that she transfer, without reduction in salary, to an area in which he was confident she would cope well because she had come from the same area before. That was the last occasion upon which those two met.

PN196

Thereafter, Ms Barakat did not return to work. She has been on a variety of forms of leave including sick leave. Medical advice has been tendered suggesting restrictions on the persons with whom she can work and the effect of those restrictions is perceived to be that she's effectively precluded from working in the employ. More than 12 months now after those events occurred, there is of course an issue about her future, if any, with the ABC. The respondent to this appeal says she should be reinstated to the position that she earlier held in April 2004.

PN197

But that's not a claim that was made at first instance, at the end of the day, that we would wish to point out. May I deal, if it's convenient, your Honour, with a couple of factual issues because we need to come to the other point of focus of the appeal. In paragraph 67, Commissioner Smith says:

PN198

In this case, there's no doubt that Ms Barakat was removed from her position as a consequence of her perceived performance.

PN199

Then he says:

PN200

It's also beyond argument that the transfer could be characterised as a punishment, given that - - -

PN201

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I would have thought that was not beyond argument?

PN202

MR BUCHANAN: Well, that's the point I wanted to make, your Honour, particularly given what he then says:

PN203

- given that Mr Hamilton lost confidence in her ability to do the job.

PN204

The first point that we wanted to make is that it doesn't follow that a loss of confidence reflects itself in a punishment. The next thing I wanted to do was draw attention to what Commissioner Smith says at paragraph 76:

PN205

In the context of a punishment for poor performance, it is open to the ABC to transfer Ms Barakat, but only after the provision of the relevant clauses had been implemented.

PN206

Then in 78 he says:

PN207

The ABC has taken a shortcut to the transfer.

PN208

So he appears to conclude that what the ABC has done is somehow attempted to get to the end of the clause 24 process without taking any of the intermediate steps. With respect, such a conclusion is not justified. There's no basis for suggesting that the ABC wilfully and blindly neglected to follow the detailed procedures that are set out in clause 24. Now, that may be contrasted with the findings that he makes at - - -

PN209

SENIOR DEPUTY PRESIDENT MARSH: Sorry, can I just take you back? So is it the ABC's position that it wasn't open to the Commission to make those findings?

PN210

MR BUCHANAN: Yes, your Honour. It was a finding utterly unsupported by the evidence, and in that sense, not open. There's no basis at all for concluding that clause 24 was either engaged or, as it were, deliberately avoided. On the contrary, the whole of the material suggested that the ABC was acting under what everybody believed was the power given in clause 19. There's not the slightest basis for suggesting that the ABC set out, as it were, to wilfully disregard clause 24.

PN211

SENIOR DEPUTY PRESIDENT MARSH: It may not have been wilful, but it might have been in error?

PN212

MR BUCHANAN: Well, then you wouldn't - - -

PN213

SENIOR DEPUTY PRESIDENT MARSH: And as a consequence he is correct in his findings. It's not attributing wilfulness on the part of the ABC, but he has made findings with respect to the construction of the agreement which results in the conclusion that the ABC has taken a short cut.

PN214

MR BUCHANAN: Well, it certainly - - -

PN215

SENIOR DEPUTY PRESIDENT MARSH: And hasn't complied with its obligations. That doesn't necessarily mean it was deliberate.

PN216

MR BUCHANAN: It certainly looks like a criticism, your Honour, but if it's not a criticism, then it opens up the prospect that any transfer can be called unfair. Because any transfer might be perceived by an employee to have implications for their performance, or to be in some respect or other based upon some criticism of performance. And the characterisation of any such transfer would, one would imagine, give rise to very fertile ground for dissention. Any employee who didn't wish to be transferred from a position could no doubt contend, from their own perspective, that the transfer could only be due to dissatisfaction with their performance.

PN217

And if that were so, in accordance with Commissioner Smith's decision, at least, the ABC's obligation was to pursue any such dissatisfaction through the underperformance provisions in the agreement and otherwise not transfer.

PN218

SENIOR DEPUTY PRESIDENT MARSH: Yes, and the opposite of that is, that if that's not the correct construction, the ABC is at liberty to transfer anybody on the basis of underperformance under 19.3.1.

PN219

MR BUCHANAN: No. They can transfer in accordance with the provisions of clause 19, but the fact that - - -

PN220

SENIOR DEPUTY PRESIDENT MARSH: Yes, and there's no necessary reason or need or requirement, obligation, to go through 23 and, if required, 24. And 24 followed 23.

PN221

MR BUCHANAN: Not always. There may be an obligation to mention any perceived underperformance in accordance with clause 23. That's an obligation which is independent of clause 19. It's an obligation which was satisfied in this case. But that doesn't mean that clause 24 is engaged. Nor does it mean that - - -

PN222

SENIOR DEPUTY PRESIDENT MARSH: Well, it may be. It may be, depending on the circumstances.

PN223

MR BUCHANAN: Well, it may be, but it doesn't mean that every transfer which is accompanied by the slightest concern about performance means that it has to be dealt with under clause 24.

PN224

SENIOR DEPUTY PRESIDENT MARSH: No. So each one will be determined on its own facts and circumstances and that is maybe what we have to determine in this matter?

PN225

MR BUCHANAN: No, your Honour. The question here is whether the power exists in clause 19. Commissioner Smith found there was no power to transfer.

PN226

SENIOR DEPUTY PRESIDENT MARSH: Well, it may be for us to determine whether he's correct. We'd have to look at the circumstances of whether 24 should have been invoked, how far through 23 should the matter have been taken.

PN227

MR BUCHANAN: But nobody knows. That point was never reached. I mean, you only got as far, as it were, the beginning of clause 23 and then an endless chain of possibilities. Because the power is a power of compulsory transfer, it's inherent in that notion that there will be a degree of resistance. It's not hard to imagine that any resistance can be supported upon the footing that there may be performance issues involved. On Commissioner Smith's approach, that means that the power in clause 19 simply disappears. Effectively there is no power of compulsory transfer, at least if an employee wishes to argue that the transfer must be due to perceived shortcomings in their performance.

PN228

And so it goes. Now, that could only happen if such an implication were absolutely necessary to give effect to the agreement, or if you saw such an express qualification in terms of clause 19 itself. But there's no such express qualification, and it's certainly not necessary to give effect to the terms of the agreement. The fact that in some cases there may be an overlap, and one couldn't deny that possibility, doesn't mean that the discretion is removed. It couldn't possibly be removed. Because what if clause 24 is never engaged?

PN229

Does this mean that in order to justify a transfer, the ABC has to elevate any manageable feedback-type issues in respect of an employee to a level of formal disciplinary processes necessarily suggesting punishment? That would be to condemn the parties to a stand-off. They'd have to wage war about every transfer.

PN230

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Isn't the problem you have, Mr Buchanan, that essentially the power in clause 19 is in the context of - well, "transfer" in clause 19 is within the context of a broad-banded classification structure and broadening skill base.

PN231

MR BUCHANAN: Yes.

PN232

SENIOR DEPUTY PRESIDENT CARTWRIGHT: However, the transfer in this case was in the context of a performance issue.

PN233

MR BUCHANAN: It was in the context - your Honour, I can't deny that's an aspect - - -

PN234

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And the problem therefore is, we have clauses which on your submission are not related to each other, where there's an apparent conflict.

PN235

MR BUCHANAN: But there's no - - -

PN236

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And what do we do?

PN237

MR BUCHANAN: But there's no conflict, your Honour. There's no conflict between 23 and 19. They can both be satisfied, and in this case they were. There's no conflict between 19 and 24, we would submit at any level, but certainly not if 24 was never engaged. Now, it may be - it may be - that if clause 24 had been engaged in a particular case, there may be an argument to say thereafter the use of a power to transfer which existed independently in the agreement at least raised a question in that regard. How the question was resolved is another matter of construction.

PN238

But in the absence altogether of clause 24 being engaged or even suggested, the question doesn't even arise. You see, what one is doing here is weeding clause 19 almost out of existence so far as compulsory transfers are concerned, upon the mere possibility that clause 24 might or might not be engaged at some time in the future, and the further possibility that all the efforts made under it would be entirely unsuccessful to remedy any perceived deficiency, and that some transfer might, a long way down the track, result.

PN239

And all the while - all the while - the ABC's programming requirements as perceived by the management of the Corporation which is charged with the responsibility of the affairs of the Corporation, cannot be addressed. All the while, regardless of - - -

PN240

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But isn't that the result of the clauses in the agreement?

PN241

MR BUCHANAN: It would be, if that's what they said.

PN242

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I mean, to which the ABC has saddled itself?

PN243

MR BUCHANAN: It would be, if that's what they said. But - - -

PN244

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, the problem is that the transfer is proposed in the context of dealing with the performance issue. It's not in the context of broad-banded classification structure or developing skills. It is in the context of a performance issue.

PN245

MR BUCHANAN: Your Honour, you could have performance issues that don't suggest disciplinary action. Some people are better fitted - - -

PN246

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, and it's unfortunate that it's referred to as "punishment". I think that's just semantics, quite frankly.

PN247

MR BUCHANAN: Or even "underperformance". People have different capacities and talents. Mr Hamilton's declaration that he had lost confidence in Ms Barakat, he attempted to make clear, he had nothing to say about her technical skills and abilities. And not everybody is universally blessed with equal talents for people management. Let's assume that he thought that her management skills were inadequate to the task, or let's assume that he thought, as he said, that he thought that her level of response was inappropriate to the criticisms that had been made, and so he said, "Well, I've lost confidence in you. I want you to do other work which is within your capacity at your present level".

PN248

It's a performance issue, but it doesn't necessarily suggest discipline. It doesn't even suggest underperformance. It might not be the sort of thing that you ever address again. Clause 23 itself says, if the ABC can change work arrangements, and that might rectify the problem, it should do so. Assume that the work arrangements are changed and the problem is rectified. There's no performance issue.

PN249

SENIOR DEPUTY PRESIDENT MARSH: The trouble was, it wasn't rectified, and that's where 23.6.2 has work to do.

PN250

MR BUCHANAN: We can't know, your Honour, because there was no chance for any further assessment to be made.

PN251

SENIOR DEPUTY PRESIDENT MARSH: Well, the point is adequate progress hadn't been made.

PN252

MR BUCHANAN: No progress had - - -

PN253

SENIOR DEPUTY PRESIDENT MARSH: Adequate progress had not been made.

PN254

MR BUCHANAN: No progress had been made because Ms Barakat did not attend for work after her meeting with Mr Hamilton.

PN255

SENIOR DEPUTY PRESIDENT CARTWRIGHT: The problem is that once you're dealing with an issue in the performance realm, the clauses in the agreement involve this long and complex process.

PN256

MR BUCHANAN: Only if they're engaged. I must say, it's a little bit difficult to see why every management judgement should be turned into a personal criticism. If punishment is wrong, what was it? It's not a punishment; what is it? Perhaps it was, as Mr Hamilton said, a decision taken by him having primary regards to the needs of the program. Attempting at the same time to give legitimate weight to Ms Barakat's interests. Well, is he denied the right to act under clause 19, to give primary regard to the needs of the program simply because some element of criticism might be involved? We would submit that - - -

PN257

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Unless the ABC has bound itself to dealing with performance issues in a certain way, I would think he probably is, isn't he?

PN258

MR BUCHANAN: Well, only if what he did can be characterised, fairly, as dealing with a performance issue in a way that excluded the operation of clause 19. The only way that clause 19 can be excluded is on an overall construction of the agreement by necessary implication because there are no words that say clause 19 is excluded. Commissioner Smith's reference to the words at clause 19 are not an adequate foundation for that conclusion. So it follows, with respect, immediately that a central plank, if not the central plank, of his reasoning has been removed.

PN259

Can one find in the construction of the agreement as a whole an intention that in every case where the possibility of underperformance might at the end of a long process lead to the possibility of a transfer, amongst other responses, that all of the discretions for compulsory transfer have been removed? Without express language to that effect, in our submission, the answer is clearly no. Such a dramatic result, with respect to such an important discretion, would require express language. You would expect the parties to have said, "Here is a power of compulsory transfer, but it is never to be used in circumstances where there is a possibility that a transfer might be the result of underperformance issues".

PN260

Now, you don't see anything like that and it's impossible to find it by implication, in our submission. In the present case, clause 24 wasn't engaged. Nobody mentioned clause 24 - I am sorry, Ms Barakat mentioned it. Ms Barakat mentioned it. She says, "I should be dealt with for underperformance". She said so in an email. But Mr Hamilton didn't say, "I'm commencing a clause
24 process". Mr Hamilton didn't say, "I'm starting a job improvement plan. You're now on a period of assessment".

PN261

SENIOR DEPUTY PRESIDENT MARSH: But wasn't that one of the bases of the dispute that was first notified, that the ABC hadn't invoked those clauses and it should have? Wasn't that the whole basis of the notification? From memory?

PN262

MR BUCHANAN: How you can require an employer to discipline somebody that it doesn't want to discipline - - -

PN263

SENIOR DEPUTY PRESIDENT MARSH: Because they're processes that are meant to be fair to both sides, Mr Buchanan. Due process. And I thought that was the basis of the MEAAs application? Well, I thought that was the basis of the MEAAs application.

PN264

MR BUCHANAN: Probably fairer if you don't discipline them in the first place, but I mean, the idea of compulsory discipline, your Honour, is - - -

PN265

SENIOR DEPUTY PRESIDENT MARSH: No. My question was, wasn't that the basis of the notification of the dispute - - -

PN266

MR BUCHANAN: I will check.

PN267

SENIOR DEPUTY PRESIDENT MARSH: - - - that certain provisions of the agreement had not been invoked by the ABC when they should have been, where they have gone straight to another provision of the agreement.

PN268

MR BUCHANAN: I will check, your Honour, but the way the proceedings ultimately - - -

PN269

SENIOR DEPUTY PRESIDENT MARSH: Well, it's a serious question.

PN270

MR BUCHANAN: The way in which the proceedings ultimately went forward was in accordance with the matters that I have directed the Commission's attention to, at page 62 of the transcript. Which involved the parties' agreement and the Commission's formulation.

PN271

SENIOR DEPUTY PRESIDENT MARSH: Yes, I have the dispute settling procedure now at page 113.

PN272

MR BUCHANAN: But it's been suggested to me that's before the application. The application that has been referred to is one that placed the section 99 notification. But more importantly, the terms of reference that Commissioner Smith determined were never altered and it's very clear - - -

PN273

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand that point. I understand that point.

PN274

MR BUCHANAN: - - - that that's the way he approaches - - -

PN275

SENIOR DEPUTY PRESIDENT MARSH: Yes. I understand that.

PN276

MR BUCHANAN: The section - - -

PN277

SENIOR DEPUTY PRESIDENT CARTWRIGHT: By the way - sorry, go ahead?

PN278

MR BUCHANAN: The section 99 notification complained about the ABC not following its own procedures to address allegations made by Ms Barakat of bullying and harassment, failed to properly investigate her grievances against three people, reached certain clauses of the agreement, none of which included
23 or 24.

PN279

SENIOR DEPUTY PRESIDENT MARSH: I thought part F was performance management - - -

PN280

MR BUCHANAN: Yes. Part F, performance management and part E, settlement of grievances and disputes. We will get along a lot more quickly if I am not interrupted continually. I don't mean by the Bench. Part of part F is clause 23 and I think I conceded a couple of times now that there seems to be an obligation to raise issues immediately and that that was done. Part F is not confined to those couple of elements of it that relate to underperformance, much less discipline.

PN281

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Well, in fact, discipline doesn't come up, does it?

PN282

MR BUCHANAN: Only at the end of the clause 24 procedure.

PN283

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, but it's not referred to as discipline.

PN284

MR BUCHANAN: No.

PN285

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I mean, it seems to me unhelpful to use that word. Essentially, 23 and 24 are about performance, not discipline.

PN286

MR BUCHANAN: Yes, I accept that, your Honour. I wanted to - - -

PN287

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And the proposition of punishment doesn't seem to be in 23 and 24.

PN288

MR BUCHANAN: No, but it seems to have played a part in Commissioner Smith's thinking, and I wanted to contrast his use of that concept towards the end of the decision, with the way in which he began it in paragraph 1 where he says:

PN289

On 5 April 2004, the Head, National Programs, News and Current Affairs for the Australian Broadcasting Corporation, Mr Walter ...(reads)... was offered a position as a producer on the 7.30 Report, which she declined.

PN290

Now, he was obviously trying to balance a variety of factors, including the needs of the program and the legitimate interests of Ms Barakat. On Commissioner Smith's approach, he would have had to have put aside any question of the needs of the program, he couldn't respond to that. He would have been confined to dealing with her interests, and then by reference to mere possibilities, none of which had really eventuated. Now, his efforts to deal with her circumstances were short-lived because she didn't work again for the ABC. Commissioner Smith refers to that at paragraph 44:

PN291

Given Ms Barakat's concern about her working environment, she is not returning to the workplace.

PN292

He says:

PN293

Since 6 April 2004, in fact, she hasn't worked.

PN294

Didn't work after 3 April. In the written submissions, we have referred to one of the ways in which that concern has manifested. This is at paragraphs 22 to - I am going to come to the medical opinion later, but in 22 to 26, we have summarised very briefly the course of events thereafter. Ms Barakat declined to transfer, she did that by letter, on 13 April. On 15 April, Ms Marshall contacted her and sought to arrange a meeting, between Mr Hamilton and Ms Barakat. Ms Barakat indicated she was not ready to meet with Mr Hamilton. On 23 April, Mr Hamilton sent an email in which he proposed that they meet on 28 April. Ms Marshall contacted her again on the 26th or 27th to try and arrange a time for the meeting.

PN295

Ms Barakat declined to meet with Mr Hamilton, said she didn't want any further contact with him, and she has since not returned to work. Now, we will refer shortly to the limitations imposed as the result of medical certificates or opinions, but the practical position is, for one reason or another, and I am not attempting to get all emotive about this, Ms Barakat has refused any transfer and she's not returned to work. Sorry, I shouldn't say she's refused any transfer. That's incorrect. She refused the transfer that was proposed to her and she's not returned to work. One of the reasons why an examination of the facts is a bit sterile in this case is the fact a transfer never occurred.

PN296

Neither did she remain in her original position so that any assessment of the position could thereafter be made. By the time the case was heard and concluded, any claim for reinstatement of that position, as we read the record of the proceedings, was abandoned. We will go to that in a moment. May I refer to what Mr Hamilton said about some of these matters? In volume 2 at page 643, this is on the question of the transfer. Before I refer to that, may I mention one other thing arising from Commissioner Smith's decision, just to put into further context what I have been saying about punishment.

PN297

At paragraph 52 and shortly after, Commissioner Smith embarks upon an evaluation of the merit of Mr Hamilton's views about Ms Barakat and his loss of confidence in her. So he finds, for example, that Ms Barakat left the program at an important time and he refers in paragraph 60 to a matter of concern to Mr Hamilton being Ms Barakat's apparent indifference to the seriousness of her actions, but he concludes in paragraph 62 that he went to the meeting with Ms Barakat with inaccurate or insufficient information. Without reading the whole of this passage, in our respectful submission, it suggests on these findings that Mr Hamilton's motivation was not discipline at that point in time.

PN298

On the contrary, he was concerned with the program. He wasn't concerned with disciplining Ms Barakat. He was concerned with managing matters that came directly under his responsibility. There is set out in paragraph 37 part of answers that he gave to the Commissioner in transcript. I want to refer to the three questions that commence:

PN299

From your earlier answers, I did not understand you to say that your decision was of a temporary nature that it was a concluded ...(reads)... program on air and dealing with the situation, I felt I didn't have confidence in the EP to continue in the role.

PN300

Now, Mr Hamilton is the effective decision-maker. That becomes important later, but the focus of attention, until one gets to the idea of punishment, the focus of attention gleaned by reference to the material before Commissioner Smith is that Mr Hamilton was concerned with programming, he wasn't concerned with discipline or punishment, or with response to underperformance at a personal level at that point in time. Now, when one comes in just a little bit more detail to his evidence at 643, an example at paragraph 5253, he is asked, had he reached a concluded view on the application of clause 19.3. He believed he had the powers to act under that. Then he's asked:

PN301

Did you actually formally do that?---No, I didn't formally do it in the sense that we didn't complete a process. If I had transferred Neheda Barakat, I would have had a vacancy in Inside Business. I would have filled that vacancy by advertising a position and appointing an executive producer. That process was never completed.

PN302

He says:

PN303

In all this time, we've been trying to resolve the matter through conciliation initially, and we're now in arbitration.

PN304

When he dealt with some of these issues, Mr Ryan, who was one of the people appearing for the respondent, said at page 742, commencing at paragraph
6117:

PN305

Commissioner, I just seek to address you on the question of interpretation of certified agreements ...(reads)... transfer Ms Barakat to that position.

PN306

Now of course, the position has changed again because the direction to transfer that Mr Ryan was referring to has been revoked because there appear to be no suitable positions to employ her. I am not suggesting that that march of events is in any sense an answer to the issues that arise on the appeal because the construction issue that's raised by the appeal is a fundamental one. But I do want to emphasise that for one reason or another, the matter never moved beyond a declaration by Mr Hamilton of what he proposed to do, firstly, in the interests of the program and secondly, bearing in mind Ms Barakat's interests.

PN307

The next matter we wish to mention is Commissioner Smith's assumption about how his decision should be implemented. I say "assumption" because Commissioner Smith makes no determination about this issue. Indeed, at paragraph 82 of his decision, he declines to do so. He says:

PN308

The MEAA invited me to make orders in relation to remedy, should a finding be made in relation to the ability of the ABC to deal with Ms Barakat in the way it did.

PN309

He declines to become involved in that process. But then in paragraph 85 he says:

PN310

It's clear that an outcome of this matter is for Ms Barakat to return to her normal duties. If this or any position within Victoria ...(reads)... then the allegations of bullying need to be resolved.

PN311

With respect, that's simply not so. We will have something more to say about the bullying issue, but the question simply does not arise for other reasons. There should not, in our submission, now be any suggestion of reinstatement. In the MEAAs submissions on this appeal, towards the end of them at paragraph
47, under the heading, "Conclusion", this is said:

PN312

As the position of executive producer on Inside Business remains unfilled, Ms Barakat should be reinstated to that position.

PN313

Now, there are three things to be said about that. Firstly, Commissioner Smith did not make such an order. Secondly, such an order was not sought by the MEAA in its final submissions before Commissioner Smith, and thirdly, there are good grounds for submitting that such an order would itself be inconsistent with the agreement, having regard to the medical evidence. What was sought is revealed in the transcript at page 774, commencing from paragraph 6410. These were Ms Connor's submissions:

PN314

Finally, I would like to address the issue of what is to be done about Ms Barakat. Firstly, we would like to ...(reads)... that maintains her status as the ABC's employment contract with Ms Barakat requires that they do.

PN315

Then Commissioner Smith says:

PN316

What powers do you say I have to do that?

PN317

The answer is:

PN318

We believe they're well within the powers, that this course of action is within the Enterprise Bargaining Agreement, and indeed, it is a course of action that has been undertaken by the ABC in other cases. The could indeed - we certainly wouldn't be coming back to you on it, they could indeed actually use clause 19.3 to do that, just that case.

PN319

Now, that's a reference, of course, to the width of the ABC's discretion under clause 19.3. Simply transfer Ms Barakat to another position. I don't want to sound too opportunistic about this, but it strikes at the heart of Commissioner Smith's reason. It was accepted she would not return to Inside Business. It was accepted she would be transferred, if necessary using clause 19.3 It was said a position could be created for her. That appears in the first two lines at page
775, create a position specifically for her, and again, at 776 in paragraph
6429, towards the bottom of the page. The second line in that paragraph:

PN320

The ABC has in the past - I want to make this point. The ABC has in the past created positions for people to fill.

PN321

Commissioner Smith:

PN322

Well, it's happening in relation to the 7.30 Report, on the ABC's evidence, wasn't it?

PN323

Answer:

PN324

Yes. Precisely.

PN325

Now, at paragraph 67, Commissioner Smith appears critical of the idea there was a position created. He says in the last sentence:

PN326

There was no vacancy at the 7.30 Report, but one was created for Ms Barakat so that she could be removed from Inside Business.

PN327

In context, that looks like a criticism of the way in which the ABC handled the whole matter. But there shouldn't have been a criticism about this. It was accepted that this was not only possible, but not unique. It was accepted that clause 19 was available. In the end, in our submission, the debate became one about status. That is, what was going to be the level of the position? Would it be a very high level producer position, rather than a debate about the powers which were available under clause 19 itself.

PN328

The next submission that we wanted to make was to this effect, that reinstatement in the circumstances as they have developed is prevented by the agreement itself. In paragraphs 31 to 32 of our written submissions, we have referred to the
various - - -

PN329

SENIOR DEPUTY PRESIDENT MARSH: Can I just interrupt you,
Mr Buchanan?

PN330

MR BUCHANAN: Yes, of course, your Honour.

PN331

SENIOR DEPUTY PRESIDENT MARSH: I do so because I don't understand, and obviously I am only speaking for myself, the relevance of this submission. I know that the MEAA are putting their submissions, but in the event that the appeal is dismissed, wouldn't the situation be this? And that is that what Commissioner Smith has concluded in paragraph 92, and that's by way of determining the proper application of the agreement, means that the ABC did not have the power to transfer Ms Barakat and if performance was an issue, then the provisions of the agreement should have been used?

PN332

Further, the Commissioner decided that the matter of bullying could be the subject of an investigation report. That would stand? That would mean, in practice, that it would be up to the parties how they - the next course of action. That would be it.

PN333

MR BUCHANAN: The reason I am referring - - -

PN334

SENIOR DEPUTY PRESIDENT MARSH: I mean, there's nothing before us that would lead us to a reinstatement order.

PN335

MR BUCHANAN: No.

PN336

SENIOR DEPUTY PRESIDENT MARSH: It would be dismissing the appeal and reaffirming the Commissioner's interpretation or application of the agreement, and what followed from that would be a matter for the parties to determine what further steps would be taken, whether that would be - well, it would be up to the parties to decide. You know, it may mean in terms of the Commission's role, and maybe a role - or would be a role for Commissioner Smith, with respect to this investigation into bullying? With respect to the other matters, it may be an issue of disputing that in the Court or whatever, or acting upon them. That would be where the Full Bench would finish.

PN337

MR BUCHANAN: Your Honour, the reason I am dealing with these matters is to lead to the question of bullying, which is the subject also of the appeal.

PN338

SENIOR DEPUTY PRESIDENT MARSH: I see. You're leading into bullying.

PN339

MR BUCHANAN: Because, Commissioner Smith in paragraph 85, makes the link himself:

PN340

If this -

PN341

That is, reinstatement, effectively:

PN342

- or any other position or any position is to occur, then the allegations of bullying need to be resolved.

PN343

Now, the first point we want to make - - -

PN344

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand that, but to the extent you're saying there can be no suggestion of reinstatement, I just want to be clear, and I will take guidance from this, but my understanding is it's not within the jurisdiction of this Appeal Bench to do with anything with respect to reinstatement.

PN345

MR BUCHANAN: No, but it is within the Commission's power to do something about the proposed investigation of the bullying. And the first step in the argument is there can be no question of reinstatement for a variety of reasons. One is that there is no order to that effect. The second is it wasn't sought. The third is it would be against the medical advice, not only the old position but any position. The next step in the argument is if that is right there is no need to investigate any suggestion of bullying in connection with Ms Barakat's circumstances.

PN346

The next proposition is any wider investigation would be outside the Commission's power, because it wouldn't relate to a question about the application of the agreement. It wouldn't arise, for example, out of the terms of reference with the Commissioner stated and which the parties agreed. But I have to come to those issues sequentially, and I also desire to show the Commission how the allegation of bullying arose in the proceedings, and why it, with respect, is absolutely unmeritorious. Now it is suggested it ought to have further currency or be pursued further. I will do that as efficiently as I can. It is not the first or primary point upon which we focus but it is important nevertheless, because it involves the prospect of further wide-ranging proceedings which will no doubt be characterised by allegations which are immoderate rather than neutrally.

PN347

MR RYAN: That's neutral?

PN348

MR BUCHANAN: That's neutral. We referred to the medical reports. The latest report is from Health Services Australia, the earlier - - -

PN349

SENIOR DEPUTY PRESIDENT MARSH: Can I just take you back a step, that is the context in which you are referring to bullying. In '85 the Commissioner, I think to be fair in relation to the allegations of bullying, he refers to the need to resolve that if Ms Barakat is returned to her normal duties.

PN350

MR BUCHANAN: Or any position, your Honour.

PN351

SENIOR DEPUTY PRESIDENT MARSH: Pardon?

PN352

MR BUCHANAN: Or any position within Victoria.

PN353

SENIOR DEPUTY PRESIDENT MARSH: Any position within Victoria. I see. So it is .....

PN354

MR BUCHANAN: It is. That is one of the difficulties.

PN355

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It is any position in Victoria where Mr Hamilton believes Mr Bass has direct management.

PN356

MR BUCHANAN: Yes, but that is - - -

PN357

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is that any position?

PN358

MR BUCHANAN: That is any position, effectively.

PN359

SENIOR DEPUTY PRESIDENT MARSH: Because he does say if some other solution is found then it doesn't require a determination.

PN360

MR BUCHANAN: Apparently somebody is going to say that it is not so, and no doubt when they do that they can refer to the evidence instead of interjecting. But we will go to some of the material that bears upon this. Our submission is, and that is effectively any position in Victoria to which she would ordinarily be transferred. Dr Smith's report - we set out extracts. Dr Smith's report we find in volume 3 at page 13. This is the most recent of the reports. Health Services Australia is, of course, an independent body. The old commonwealth legal office I gather. Certainly not a part of the ABC. Dr Smith is a consultant psychiatrist. His report was forwarded under a letter of 14 February 2005. On page 2 of the report there is a reference in the middle of the page to - I am sorry. I should start at the top of the page. There is a reference to an allegedly conflictual workplace environment. The second paragraph:

PN361

Her symptoms lasted for about eight weeks.

PN362

It is page 2 of the report.

PN363

Her symptoms lasted for about eight weeks. She felt fit to return to work in about July 2004. Assessed fit to return to work by Dr Mutton but not reinstated.

PN364

Then about the middle of the page:

PN365

A number of relatively minor workplace incidents of an adverse nature for about two years that centred around the State Editor whom she identified as Marco Bass.

PN366

She was promoted to the position of Executive Producer, Inside Business in
mid-2002. She reported Mr Bass allegedly bullied her, harassed and intimidated her at the end of March 2004. Would the Commission bear in mind something I pointed out earlier. Mr Hamilton is the decision maker in this case. The proposal to transfer comes from Mr Hamilton. It is on 5 April 2004. Going back to the report:

PN367

This precipitated -

PN368

That is Mr Bass's actions -

PN369

- the onset of the aforementioned psychiatric symptomatology. Ms Barakat reported that she thought there was unjust and unfair criticism, an attack on her integrity and professional competence. Furthermore she reported that the employers offered the employment at the 7.30 Report as a de facto demotion. She said this would also be stressful for her and she pursued the matter with industrial action.

PN370

On this view of matters a problem predates the meeting with Mr Hamilton. It arises from Ms Barakat's perceptions of her relationship with Mr Bass, and it is perhaps exacerbated by the events which occurred in early April. There is no reference, particularly, to the removal from the position of executive producer of Inside Business, although there is a reference to an offer of employment in the 7.30 Report being seen as a demotion. At page 6 in the section which commences at the bottom of page 5 Specific Questions/Comment. Item 2:

PN371

With regard to her work capacities it is my opinion that Ms Barakat has an incomplete occupational capacity at the present time. It is improbable she would be able to function ..... on the 7.30 Report according to Mr Shane Castlemaine. It is noted that Mr Castlemaine has not previously been involved in Ms Barakat's grievances or any other disputes. It is improbable that Ms Barakat would be able to work with the 7.30 Report on psychological grounds. It is likely that this lead would lead to an exacerbation of other mood disturbance and create considerable anxiety. Her state of the grievance most likely precludes her being able to adjust and adapt to this proposed redeployment.

PN372

So (3):

PN373

It is improbable that Ms Barakat would be able to undertake this work in either a full time or part time capacity. Furthermore it is improbable that any workplace modifications et cetera would assist Ms Barakat returning to this position either now or in the foreseeable future.

PN374

So there is a position incontestable within her competence which, on Dr Smith's appreciation, is removed from the consideration, now and in the future.
Then (5):

PN375

With regard to the question of any additional restrictions and limitations it is important that Ms Barakat not be working with, near or around Mr Marco Bass whom she identified as her injurer. On the other hand it is probable, from psychiatric assessment, she could be deployed to some other area of work which is mutually agreeable.

PN376

Then (7):

PN377

To reiterate, it is improbable that the passage of time with or without further treatment is likely to improve Ms Barakat's occupational capacity.

PN378

So in a nutshell Dr Smith says, not the 7.30 Report, and no contact with Mr Bass. That is to say, no contact with Mr Bass he says:

PN379

With, near, or around Mr Bass.

PN380

As a result of the first opinion any suggestion of transfer to the 7.30 Report was revoked. As to the second we wish to submit for reasons that I will come to now that that effectively removes the remaining options, including of course Inside Business, although there was no suggestion anywhere in Dr Smith's report that she should return there or she had herself suggested it. In the absence - I know this doesn't answer the question of construction which I have attempted to address by reference to legal principle. But in the absence of any suggestion that there should be a return to Inside Business or any reinstatement, the idea that the ABC lacked capacity under clause 19 to take the action that Mr Hamilton did loses much of its immediate practical significance, although the question of construction remains a very important one. Mr Bass's responsibilities - - -

PN381

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, say that again.

PN382

MR BUCHANAN: The question of construction remains very important, of course. But the idea that the ABC should have held its hand and dealt with Ms Barakat for - on the basis of some as yet imprecisely formulated concern about performance rather loses its practical significance so far as she is concerned, in light of the fact that there is no real suggestion that she should go back to Inside Business. In other words, if she is to return to the ABC, and there is every reason that she is disqualified now from doing that on medical grounds. But if she was to return to the ABC it appeared to be accepted that it would not be to Inside Business.

PN383

So the resistance to the power to transfer, and the insistence that she had to be dealt with under the performance management system rather drops away. Is it now to be suggested, for example, that if she goes back to the ABC, the ABC has to engage the provisions of clause 24? Why would that be so? Perhaps it will, who knows. But why would that be so? The reference to and reliance on clause 24 arose initially in the context of resisting the notion that she could be removed from Inside Business. And the practical matter that issue seems to have gone with the passage of time.

PN384

But what has not gone is Commissioner Smith's interpretation that the power in clause 19 is drastically cut down, or perhaps even removed. That is the power to order a compulsory transfer is cut down or removed, if there are overtones or suggestions of performance issues which arise at the same time. That is at the heart of the appeal. I am not seeking to diminish Ms Barakat's personal circumstances. But as the proceeding went the idea of reinstatement to the Inside Business program, as I said, appeared to go with the passage of time. One doesn't, for example, see a reference to it in Dr Smith's opinion.

PN385

SENIOR DEPUTY PRESIDENT MARSH: So if there is no practical utility in what the Commissioner has decided why would we - where would be the public interest in determine the construction of Act as you have asked us to?

PN386

MR BUCHANAN: Because the public interest extends well beyond Ms Barakat's personal circumstances your Honour, and extends decidedly into the area of a proper construction of the agreement, as it did in the Lobez case. The construction which has been adopted by Commissioner Smith is, with respect, a highly destructive one. And if it is allowed to go uncorrected no doubt it will be relied upon. So that resistance to a compulsory transfer which can be categorised as involving a performance issue will be bolstered by a reference to Commissioner Smith's decision which this Full Bench, upon your Honour's postulation, will have refused to correct. Giving it, as it were, added authority. And that is the difficult your Honour. The construction issue is a very important one.

PN387

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Shouldn't construction issues be dealt with in the court?

PN388

MR BUCHANAN: No your Honour, because one of the things that clause 63 - - -

PN389

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Let me give the full context of that question. It was shorthand. The Commission deals with construction issues in the context of resolving disputes. That is probably as far as I need to go.

PN390

MR BUCHANAN: One of the things, one of the important aspect of clause
63, and the engagement of section 170LW, which it accomplishes, is that it gives to the Commission a power which it would not otherwise have. That is a power of interpretation. And subjecting this case to the restriction that the interpretation can't be inconsistent with the agreement itself, which provides an opportunity for a line of appeal as in this case, which is a valuable ingredient within the Commission's processes.

PN391

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Were it not for that in the wording of the clause there would be no right of appeal I presume?

PN392

MR BUCHANAN: Yes, and were it not for the fact that the parties have agreed to accept a determination there would be no binding effect of the determination. But the parties have agreed to accept the determination subject to the determination not being inconsistent with the terms of agreement. Which, as it happens, gives a right of appeal, a right of check from the Full Bench. But leaving those matters aside, the fact that Commission can deal directly with questions of interpretation by agreement between the industrial parties, rather than the parties having to go to the federal court is a not insignificant matter in our respectful submission. And it makes it the more important, with respect, why the Commission should deal with the questions of interpretation which thereby arise. And if an interpretation is made by a member of the Commission, using the power such as this, and the interpretation is incorrect as we contend it is, then it is highly desirable that the interpretation be corrected on appeal so that for no other reason the alternative remedies don't seem more attractive. If there is a right to submit matters to the Commission, and if there is a right of appeal, then it is highly desirable that the legitimate issues which arise in the appeal be dealt with at the highest level of authority. Of course the Commission has a discretion not to grant leave to appeal, but our respectful submission is that in this case, having regard to the potential consequences of the interpretation that has been given, that would be tantamount to an invitation to - an erroneous interpretation which would have potentially significant effects for the operation of the agreement. And there is no reason, with respect, there is just no reason not to deal with the issue.

PN393

SENIOR DEPUTY PRESIDENT MARSH: What about the reason that the matter arising out of the application of the agreement pursuant to 170LW has disappeared on the submission of the ABC? In that there is no utility in the grievances raised, and the determination made by the Commissioner, because for all intents and purposes it is not possible for Ms Barakat to be reinstated within the ABC in Victoria?

PN394

MR BUCHANAN: Your Honour the reason - - -

PN395

SENIOR DEPUTY PRESIDENT MARSH: Therefore the matter that gave rise to the LW is no longer a matter arising out of the application for the agreement there is no practical effect at all any more. That is where you have taken us to now.

PN396

MR BUCHANAN: No, I - - -

PN397

SENIOR DEPUTY PRESIDENT MARSH: In practice. In the absence of a return to Inside Business or reinstatement within the ABC that capacity to take action loses practical effect. To the extent that that is a practical outcome, why is there still a matter, why does any determination of the Commissioner have any practical effect when you are saying she can't come back. On medical evidence she can't come back. Is this a scope the width of Mr Bass's influence in Victoria such that on the medical evidence of Dr Smith it is just not possible to take her back.

PN398

MR BUCHANAN: Your Honour I thought the Commission should have a
..... appreciation of the factual position. That is - - -

PN399

SENIOR DEPUTY PRESIDENT MARSH: Yes, and you have taken us to it. So the next question is what is left? What is left of the original dispute under LW? It has got to be a matter over the application of an agreement. There can't be a construction of an agreement at large, the matter has arisen because of her circumstances, Ms Barakat's circumstances. That is the matter.

PN400

MR BUCHANAN: It may be possible to have a question of the construction of the agreement but it is true in this case, the occasion for it is what happened with Ms Barakat.

PN401

SENIOR DEPUTY PRESIDENT MARSH: That is where the private arbitration role comes from, and that role, that function, that gives up the power to interpret an agreement along the way, in determining something by way of an arbitral power.

PN402

MR BUCHANAN: Your Honour the - - -

PN403

SENIOR DEPUTY PRESIDENT MARSH: We are not at large to determine the interpretation of an agreement.

PN404

MR BUCHANAN: You are certainly at large to deal with this appeal, and the appeal was not confined to Ms Barakat's circumstances. Indeed Commissioner Smith was at pains to say that what he thought his role was, was to give the interpretation and allow the application of the interpretation to be dealt with in some other way. But the terms of reference that he stated, which were agreed, the way he introduced the discussion at paragraph 24 of the decision, and the way in which he concluded it at paragraph 92 of the decision raised matters which go well beyond Ms Barakat's personal circumstances. They engage the question of the proper operation of the agreement, and the existence and nature of the power which clause 19 grants. Those questions remain and Commissioner Smith's interpretation remains, unless something is done about it on this appeal.

PN405

SENIOR DEPUTY PRESIDENT MARSH: Yes, I hear what you say but 92 does relate to Ms Barakat. It doesn't relate to any employee at the ABC. It relates to, in the circumstances of this case, the ABC did not have the power to transfer Ms Barakat. It is not saying anything about any other employee in the ABC.

PN406

MR BUCHANAN: It's very hard, your Honour, to see how the reasoning which Commissioner Smith gives for arriving at that conclusion does not apply to other cases, for example, paragraphs 73 and 74. There is a conclusion which finds ..... in the precise determination that the ABC powers in clause 19 are subject to the operation of clause 23 and clause 24 ...... that removes the power of ..... and that is not a matter any more than it was in the Lobez case, which is restricted to the circumstances of the individual and provides the occasion for consideration of the issue. And that is why, with respect, the Full Bench said in the Lobez case, that leave to appeal should be granted and the matter of construction should be dealt with, because it was a matter that had wider implications for the relation to the parties under the agreement. So it is here. Subsequently the same reasoning applies.

PN407

SENIOR DEPUTY PRESIDENT MARSH: Except that you have told us that there is no practical utility because Ms Barakat cannot be reinstated. If that is what has triggered the response, well, if it is all over - - -

PN408

MR BUCHANAN: I am attempting to argue that it can't govern the position for Ms Barakat because of the circumstances which have developed but it is not all over.

PN409

SENIOR DEPUTY PRESIDENT MARSH: It is all over for her.

PN410

MR BUCHANAN: That is the submission. I don't think it is agreed but that is our submission. It is a tip of the iceberg your Honour. The issue of construction, the reason why we should get leave to appeal in this case is that involves wider issues that go beyond the circumstances of the individual.

PN411

SENIOR DEPUTY PRESIDENT CARTWRIGHT: This agreement runs till January next year does it not, 2006? I mean isn't the real solution for the parties to work out what the interaction of these clauses should be in the next agreement?

PN412

MR BUCHANAN: It may be your Honour, but it would be highly desirable if that exercise were to form on the basis of a correct construction, rather than an incorrect one. And the idea that, as it were, the MEAA would have an unvaried bargaining chip based upon an incorrect construction - as it is our submission they might - is disturbing. Furthermore, although the agreement comes up for renegotiation you can't compel agreement about some ..... regime and in the absence of agreement of course the present provisions remain in force. So it is not as though they can be anticipated to have a short life. If the present construction remains there might be no real incentive to renegotiate them because an important discretion originally agreed has been removed at no cost, leaving aside Ms Barakat's circumstances of course.

PN413

I don't want this to sound insulting or perjorative but there is an adage that says that it is better to be ultimately right than persistently wrong. And bearing in mind that a critical function of appeal is the correction of error if we had persuaded the Full Bench that error has been permitted in my respectful submission is deserves to be corrected. If, of course, we haven't persuaded the Bench that an occur has been permitted then there is no difficulty about the Bench making that clear also but either way it would be desirable for the matter to be dealt with at an appropriate level of authority so that it doesn't involve the prospect of re-litigation in some other personal case where the matter has not received attention from the Full Bench.

PN414

If I can then refer the members of the Commission to some of the statements of Mr Bass's responsibilities to give ..... breadth. So far as the transcript is concerned he gave some evidence about that in volume 2, page 525, paragraphs 4394 and 4395.

PN415

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, page?

PN416

MR BUCHANAN: 525, your Honour. 4394 and 4395. I don't think it's necessary to read all of that:

PN417

He has mixed responsibilities. Some of them direct, some of them less direct -

PN418

Perhaps an important statement is the one in the middle of 4395:

PN419

I am the first port of call should there be an immediate management issue that requires senior executive intervention.

PN420

That is apart from his other more formal responsibilities.

PN421

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is that to be read in the context of accommodation issues?

PN422

MR BUCHANAN: I can see that it is possible to read it both ways your Honour, but it doesn't appear to be restricted and I will take the Commission to a formal statement of duties in a moment. That puts the matter even more broadly than he himself does here. Mr Hamilton gave evidence about it also. At 656 to 657. He was asked about this specifically in the context of Dr Smith's opinion. Which is referred to towards the bottom of 656. At 657 he answers in this way:

PN423

This advice sets the parameters under which I can act. Clearly she can't be placed in the Melbourne news and current affairs operation because that would seem to me to be placing her with, near or around Marco Bass. He is the editor of Victoria. His office is located in conjunction with the rest of the news room. The Inside Business office as a matter of fact is about the most removed office from the proximity to Marco Bass. So she can't be in physically the least proximate location to Marco Bass..... 7.30 Report for example - .

PN424

And it mentions the others as well. In volume 3 behind the second last tab, which is tab 16 there is a role description of Mr Bass's position.

PN425

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, tab number which?

PN426

MR BUCHANAN: Sixteen your Honour, the second last page.

PN427

SENIOR DEPUTY PRESIDENT MARSH: In which volume?

PN428

MR BUCHANAN: Three. In item 2 in particular there are very widely stated objectives. I refer to your answer to an earlier question, to clause 59 of the agreement. The effect of Dr Smith's opinion is that she is incapacitated for employment with the ABC in Victoria. The ABC's response to that, and we have referred top in written submissions, and set out in extract is to revoke the direction of transfer and to engage a process of consideration as to whether her employment could continue. That didn't survive at all because Commissioner Smith directed that no further step be taken in that regard. That that position had caused her to remain in limbo, whatever. The reason that we have gone to these issues is to come to the next effective decision made by Commissioner Smith, which is the subject of the appeal, which appears at paragraphs 90 and 93. At paragraph 90 Commissioner Smith says:

PN429

In the event that this matter requires determination because of the need to have Ms Barakat returned to work I believe I should appoint an independent expert to investigate and report.

PN430

On one view the matter may simply lapse in the light of the medical opinions. But it is important, in our submission, to appreciate the connection that is there made. It appears to be a connection which relates to the possibility that Ms Barakat will return to work. As was the connection in paragraph 85. So our submission is that it is not a - it didn't appear, at least until the very end of the decision, to be a free standing proposal unconnected with Ms Barakat's circumstances. But in paragraph 93 he says that he has decided that the matter will be the subject of a report and investigation and report by an external expert.

PN431

The first point that we want to make about that, apart from its lack of utility to any circumstance concerning Ms Barakat is that there is no issue concerning the application of the agreement to which the exercise could be directed. The issue concerning the application of the agreement was dealt with in paragraph 92, in circumstances where Commission Smith said he wouldn't take further steps to enforce it but leave that to the parties. It is therefore, in our submission, outside the scope of clause 63.5. That is it is not a matter referred to the Commission concerning the application of the agreement. It is a matter which arose during the course of the proceedings and it is very important to understand how the issue was generated.

PN432

We have already made some submissions to the effect that a close examination of the factual position had very limited relevance to the construction point which arose under clause 63.5. And one point at least Commissioner Smith seemed to agree with that, because he said at page 255, at paragraph 1819. It relates to an observation by Mr Smith: It appears that the ABC ..... in terms of Ms Barakat going back to Inside Business, given the arguments we've heard so far about all the sorts of problems, he says:

PN433

Yes, but I am not here judging the merit. I am making an independent assessment. I am here asking whether or not the agreement - I have been asking myself whether or not the agreement has been properly applied. I must say it is an interesting proposition -

PN434

He goes on to raise the concerns that ..... raised with me from time to time during these submissions. But events rather moved on from there in terms of an examination of merit positions, notwithstanding the statement in terms of reference. The issue of bullying was opened up by the MEAA in the cross-examination of the ABC human resources witness, Ms Marshall who Ms Barakat had had some communication, and so also had Mr Hamilton. Ms Barakat is going back to deal with earlier events as well. In volume 2, and I am going to give these references without attempting to go to all of them.

PN435

In volume 2, from about page 420, at paragraph 3450 Ms Marshall was asked whether there had been other allegations of bullying by Mr Bass, and whether such allegations had been referred to in medical reports provided to the ABC. There were five people said to be involved, and they were named by the cross-examiner. So the names were put onto the record in the cross-examination by .the MEAA, notwithstanding Ms Marshall's reluctance at paragraph 3450 to have the names stated. And over the objection of the ABC as to the relevance of these issues. The cross-examination was not curtailed and, not surprisingly, in re-examination Ms Marshall was asked to give a further explanation of the matters which had been put to her in cross-examination.

PN436

Not surprisingly also, when Mr Bass was called, he was given the opportunity in examination in chief, to more fully put the context concerning the particular individuals and his role in relation to them. That evidence will be found in volume 2 from page 556 in paragraph 4583 to 558 paragraph 4587. So although it is reasonably detailed it is all encompassed within two pages or so of the transcript. He was then cross-examined extensively about these issues, from
564 at paragraph 4636 to page 580 at paragraph 4784. 15 or 16 pages worth of cross-examination. I've given the references so the members of the Full Bench may read the passages if they think it is important to do so.

PN437

But it is all, with respect, monumentally irrelevant. Mr Bass had concerns that resistance to the performance management system was manifesting itself in unwarranted allegations against him as a manager. They had nothing, with respect, to do with the matters before Commissioner Smith concerning, as they did, so far as the application of the agreement was concerned, the question of the power or lack of it under clause 19. They were introduced by the MEAA, not by the ABC. They weren't raised as matters, as it were, in defence until it opened up. The position appeared to have been cleared up by the Commission himself, at the end of Mr Bass's evidence, at page 594, paragraph 4913 at the bottom of the page. This is right at the end of Mr Bass's evidence. The Commission says:

PN438

Before you resume your seat, if I could ask one question you may wish to follow up after that. I want to put into context, Mr Bass, how you see Ms Barakat's complaint in these proceedings. As I understood some of your earlier evidence it is your view that there is, if you like, a campaign where if somebody is put on performance management then allegations of bullying tend to arise. It is the case here, as I understand it, that Ms Barakat is not on and has not been put on performance management yet her allegations predate the suggested move to the 7.30 Report. Do you see Ms Barakat's case as falling within the ambit of those other cases or do you see this as different?

PN439

Answer:

PN440

No, I see it as different because it doesn't involve performance management. Much more generally it falls within the clear view of the anti bullying policy because those are the nature of the allegations. The broader issue that Mr Smith and I have raised relates more to the other cases and relate to the quantum rather than particular individual cases within it. In fact, I must advise that I am sitting here defending these allegations of Ms Barakat because I think they are quite spurious.

PN441

But you don't see Ms Barakat's case linked with the others?---I do in the sense that there is, as I said, a coalition of interested people who don't like me or allege that I am a bully. And we have heard allegations from those people, untested allegations, about my alleged behaviour and I think those people would all have an interest in seeing me damaged in some way or other. To the extent that Ms Barakat has ..... interest it can't be against the performance management system? No. As I said earlier there are two things running in parallel here. One is the broader industrial issue for news and current affairs in the ABC and some union officials and some former and current staff members who have a great deal of personal antipathy towards me and both things come into play and not necessarily in equal proportions in each case. And in the case of Ms Barakat her performance management issue is not relevant.

PN442

Question:

PN443

That doesn't arise does it?

PN444

Answer:

PN445

No it does not.

PN446

Is that an attack on the ABCs ability to manage in this specific instance?---Yes, and.....

PN447

So there was Mr Bass and Commissioner Smith as it were putting the issue to one side and with respect that is where the issue should have been left. The issue arose again. I am very close to being finished.

PN448

SENIOR DEPUTY PRESIDENT MARSH: Are you?

PN449

MR BUCHANAN: Is it convenient for me to finish now?

PN450

SENIOR DEPUTY PRESIDENT MARSH: Yes that's fine, thank you.

PN451

MR BUCHANAN: The issue arose again somewhat later at page 726. This is in Mr Hamilton's re-examination. 5958:

PN452

You are aware that I offered the ABC to have an independent investigation into the bullying to bring it all to an end? Yes I did hear that. That was to kind of ..... offered the ABC.

PN453

Then at 7275 969:

PN454

I thought it might have been in the interests of the ABC to have an independent expert look at this, report back to me and say there is no foundation to this, put it to rest forever. Or there is foundation in which case you would have a real concern.

PN455

Then there was some discussion about whether there would be an inquiry from the staff whether they thought it would be a good idea. Then in the final submissions at 771 to 773, in the middle of paragraph 6387:

PN456

I would now like to address the issue of what you knew about the bullying and intimidation allegations and I would like...(reads)... Hamilton who failed in his duties as Neheda Barakat's manager.

PN457

Going over to the next page, 6390 the third line:

PN458

Neheda Barakat's ...(reads)... intent, his demeanour and his tone in dealings with her. This indeed, Commissioner, in my belief, the realm of experts.

PN459

Then it is suggested that there is a pattern of behaviour. Then there is a third point in 6391about the attitude of ABC human resources and senior management people. Then in 6392 on the fourth line:

PN460

Marco Bass and Kate. Marshall led evidence about other ABC employees or former employees that cannot go uncontested.

PN461

I should just finish this by referring to the next page. Mr Smith .... the ABC objects and points out that these issues were raised by the ME AA and Commissioner Smith declines to intervene. The submission was put is at 6401:

PN462

Commissioner therefore must either allow...(reads)... point of view to the Commission or the Commission should provide an alternative avenue for them to be able to correct the record.

PN463

It produces itself with respect to two issues. Ms Barakat didn't like Ms Bass's tone with her and perceived him to be doing things that harmed her. It would seem somewhat remote from Mr Hamilton's decisions. And the second issue is the MEAA was to have some general wide ranging inquiry to allow a wider reply on an issue which it opened up where it named the people and which was irrelevant to begin with. With respect, the whole matter has gone completely out of hand. One thing that may certainly be said about it is that it does not arise in any sense under clause 63.5 of the agreement. And in our submission therefore the proposal is beyond jurisdiction.

PN464

May I just make six very brief points to the submissions. The only real issue before Commission Smith in our submission was a point of construction. He didn't attempt, as it were, to decide Ms Barakat's personal circumstances, leading that as a matter of application of his interpretation of the agreement. He made that determination at paragraph 92 of the decision. The determination was erroneous and inconsistent with the terms of the agreement itself. So the third point is that the determination was therefore outside jurisdiction. And fourthly that determination should be set aside. The last two points are these. The issue of bullying is not one which arose under clause 63.5 of the agreement, and it also is outside jurisdiction and we invite the Full Bench to so find.

PN465

Finally, although the Commission need not make any form of order about it, it ought to be clear that the ABC may deal with outstanding issues relating to Ms Barakat consistent with the agreement and that no continuing restriction of the kind imposed by Commissioner Smith exists in that regard.

PN466

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, I missed the first clause of that.

PN467

MR BUCHANAN: The Commissioner did not make a formal order about it, your Honour, and perhaps it is just something which might emerge from any discussion of the background circumstances, but the present position is that Commissioner Smith has restrained the ABC from acting on its advice to
Ms Barakat that it wishes to consider whether she can remain in employment given ..... our submission about that is that that restriction is beyond Commissioner Smith's power, but it was respected, and, it ought to be clear now that, whatever its legal ..... it has no utility now. Of course, in the light of the earlier discussions there are other matters that I should specifically address. I am happy to do so if the Commission pleases I have no other submissions.

PN468

SENIOR DEPUTY PRESIDENT MARSH: Yes. Thank you for your submissions, Mr Buchanan. We will hear you at 2 o'clock, Mr Ryan.

<LUNCHEON ADJOURNMENT [12.56PM]
<RESUMED [2.05PM]

PN469

MR RYAN: Your Honour, I don't want to dwell on our written outline, but if I could take that as read.

PN470

SENIOR DEPUTY PRESIDENT MARSH: Yes, you can take that as read. I should have said that at the commencement, that it's read by submission.

PN471

MR RYAN: To that extent I'd like to concentrate on Commissioner Smith's decision, the submissions made by Mr Buchanan this morning and the issue of interpretation concerning an apparent conflict between a general provision and a specific provision in the same legal instrument. By way of brief background, your Honour, the matter was conducted by the Alliance below dealing with basically four things. One was as a starting point that the grounds that Mr Hamilton relied upon to seek to transfer Ms Barakat were misplaced and didn't justify such a decision.

PN472

Secondly that his decision to purportedly rely on clause 19.3 of the agreement to do so immediately he had a concern was not open to him in that he should have followed the procedures under clause 23 and 24. I must state, that was a position put to him at the time by ABCs own Human Resources department, and if I can refer the bench to paragraph 38 of the Commission's decision which is on page
12 of the first appeal book and there the Commissioner quotes from an email from Ms Marshall, 6 April 2004, Ms Marshall being Senior HR Advisor to the ABC in Victoria, to Mr John Cameron who was the top of the tree for News and Current Affairs. He's the Director of News and Current Affairs for the whole of the ABC and it was copied to Mr Hamilton, and this is the day after the meeting between Mr Hamilton and Ms Barakat on 5 April:

PN473

The issue I had raised with Walter after his meeting with Neheda is that she was promoted to the position with Inside Business as evidenced by her Job Plan. Therefore it may be viewed to move her back to her old role to The 7.30 Report would be a demotion and therefore not a move within the same classification as specified in clause 19.3 of the Employment Agreement (even if theoretically you maintain the same salary level). The ABC can only invoke a demotion at the end of the PIP process. My recommendation ...(reads)... particularly due to last Thursday -

PN474

And that refers to the day she left work early -

PN475

She should have been given the opportunity to further improve and a PIP could be put in place.

PN476

And on it goes, which is not relevant for this purpose. So up front from day one ABC editorial management was on notice by its own HR advisors that the course at best was risky and in fact, in Ms Marshall's view, was not open to it. Now, they went ahead and did that anyway. We say that very decision of Mr Hamilton against the advice of his own HR people has got us in this sorry mess that we're in at this point of time.

PN477

Very simply advice to say, if you have performance concerns the agreement provides a process by which you seek to solve them. Now, Mr Buchanan made much in his submissions of the theoretical aspect of clause 24, the under performance, at the end of the process. The problem being, the reason it never happened was because of the actions of Mr Hamilton by transferring or seeking to transfer Ms Barakat from day one. She was deprived of all her rights set out in the agreement to meet reasonable performance expectations and clause 23.6 is a starting point for that, and if I could just refer to that, your Honour. I've got off the red book because, no offence, I'm more used to it in a personal sense than the appeal book.

PN478

Now, we have no quibble with Mr Hamilton raising at any time with Ms Barakat performance issues. What we do quibble with most seriously is what happened then, and the second sentence at 23.6.1, "Where a problem with an employee's performance is identified the manager will raise the problem with the employee immediately." The next point is the most important point and where this thing went off the rails, "The cause of the problem will be identified." And then there are two examples of what can take place, but they're examples and examples only, without limiting possible causes. So the process should be, a very simple common sense one, manager raised that - - -

PN479

SENIOR DEPUTY PRESIDENT MARSH: Sorry, that's a typing - there's a typo. That's what I couldn't work out when I referred Mr Buchanan to that sentence this morning. The copy that was certified said, "will be identified arid", but I think looking at the red book it's "and", is that right, that's agreed? Yes.

PN480

MR RYAN: Yes, I think there's more unfortunately than one typo in the certified agreement and hence I'm more familiar with the red book, because we've all agreed to that, "will be identified".

PN481

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN482

MR RYAN: Now, Mr Hamilton didn't take the second step. He didn't identify the cause of the problem. What he merely did was, I've lost confidence in you, sets out some reasons on which he relies for that and says, as a consequence of my loss of confidence based on my performance concerns, you are being transferred to the job that you held immediately prior to becoming Executive Producer of Inside Business, a position that ABCs HR department identifies as a demotion. He doesn't seek to work out a way of solving what his view is the performance issue because if he had done that, then we would move on in the next sequence to 23.6.2 where the manager has the absolute right to say, look, we've identified the performance issue, we've identified the cause of that. We've set in place some sort of arrangement to deal with that, but you still have not made adequate progress within a reasonable period. As a result of your inadequate progress we now proceed to clause 24 of the agreement, Unsatisfactory Performance.

PN483

Unsatisfactory Performance, again I don't quibble with the stage approaches outlined by Mr Buchanan, it's a sensible approach when dealing with under performance so that again if you go through all the steps set out after the establishment of performance improvement plan, ongoing discussion and assessment, and then in 24.3, if again the employee's performance remains unsatisfactory there's a last chance meeting for the employee to be given a chance to explain what's going on, and again, if a satisfactory response is not provided, then one consequence is what happened to Ms Barakat, set out in 24.3.3(a), to transfer the employee to another position at an equal or lower salary.

PN484

But because Mr Hamilton, the base of the process from day one contrary to the advice given to him, we will never know at this point in time what Ms Barakat could have achieved in that position or up until a week or two before that meeting with Mr Hamilton, things were going quite well. Now, what Mr Buchanan would have you believe is that somehow the agreement would exclude people who either produce or are seen on programs made by the ABC, that somehow there is an exclusive group of people who must be taken out of the plain words of the agreement because of the roles they hold. In our view that is an utter nonsense.

PN485

The fundamental role of the ABC is the making of programs. That's why it exists. So to say that the core function of the ABC from the people who perform it are somehow special from the rest of the ABC, no doubt the accounts department is quite important for the ABC, but not for its core function, and that program makers who produce the programs or present the programs or report for the programs are somehow excluded because of their roles from the agreed processes that dealing with performance issues is untenable when one looks at the agreement as a whole and has regard to the long standing standard, method of interpreting a document which has a conflict between a general provision such as 19.3 and a specific provision dealing with issues of, in this case, performance.

PN486

The position of both parties is set out on page 19 of the first appeal book in paragraphs 64, 65 and 66. In paragraph 64, Commissioner Smith sets out the ABCs position. The position of the ABC is straightforward. He submits that the Full Bench in Lobez gave it an unfettered right to transfer a person as long as the action is not designed to de-skill. Indeed, it went further and submitted the reasonableness or otherwise of that action is not a relevant consideration. There was actually a reference there to various paragraphs of the transcript where there was an exchange between Commissioner Smith and Mr Smith for the ABC about the ABC not even having a reason for a transfer. They can just use 19.3 and transfer somebody.

PN487

The opposing point of view on behalf of ourselves is put in paragraphs 65 and
66. The MEAA argue that each case has its own facts and that the Full Bench decision, that's the Lobez decision, did not deal with mattes which fall for consideration in this matter. In any event, it was also submitted that notwithstanding the fact that Ms Barakat's salary is maintained, the action of sending her back to The 7.30 Report was designed to de-skill. If I could just stop there for a second, your Honour. There was evidence shown between an executive producer of a program, which is the single person on that program responsible for getting it to air, and a producer which may well just be responsible for part of the program. It doesn't have any sort of managerial control or financial or budgetary control over that program.

PN488

As I said before, the position that Ms Barakat held immediately prior to Inside Business, because that program was created from nothing I think in mid-2002 and it was staffed at that time, was the position that she was going to be sent back to. Secondly we say the Alliance submitted there are mandatory procedures with dealing with performance under the agreement. It is not open to the ABC to choose whether or not to use those procedures. It was submitted that the Commission approved of the conduct of the ABC in this matter, and that it will be given to the ABC the discretion to avoid using performance requirements of the agreement. We stand by that. That is a most important point, because it just doesn't affect the process for performance. Also, using the ABCs logic, it deals with misconduct in a similar way.

PN489

If I could just refer the bench to clauses 57 and 58 of the agreement you will see a not dissimilar approach to how this deals with misconduct and serious misconduct as it does with performance and serious under-performance. In clause 57 it's misconduct as defined and it goes on to the ability to have the right of representation and it says, "Where misconduct arises which it is agreed is insufficient to warrant an investigation" - this is 57.3 - then certain things can happen. Then again there is a process there.

PN490

More importantly in clause 58 dealing with serious misconduct you can see in 58.4, the outcome of serious misconduct being proved, one of those is, "Where an allegation of serious misconduct has been substantiated through investigations an employer may transfer the employee to another position at an equal or lower salary." Now, the logic of the ABC they can avoid the need for an investigation and say, look, we think you're guilty of serious misconduct, we will transfer you to another position but will retain the salary. What an abuse of process that would be if the facts didn't justify a finding of serious misconduct? If an investigation was held and conducted properly, the facts alleged weren't proved, that person could clear their name and nothing could happen to them.

PN491

But if you accept Mr Buchanan's view of clause 19.3 being the silver bullet, the mere suspicion of misconduct or serious misconduct, the ABC management can avoid those processes and just transfer.

PN492

SENIOR DEPUTY PRESIDENT MARSH: So what do you say about Mr Buchanan's construction of events that yes, it was appropriate to invoke
23, Mr Hamilton did that, but then because Ms Barakat didn't return to work, those processes lapsed, nothing happened?

PN493

MR RYAN: We say fundamental before that, your Honour.

PN494

SENIOR DEPUTY PRESIDENT MARSH: And that is the transfer?

PN495

MR RYAN: Mr Hamilton had a meeting with Ms Barakat. There was an issue about that meeting being arranged earlier to talk about some of Ms Barakat's concerns with Mr Bass. Mr Hamilton's view, in his mind, was he had performance concerns and says as an outcome of that meeting you are going to be transferred, I'm going to transfer you. There was no process. He's raised the issue, as he should, the first point was done, I have performance concerns, I am meeting with you, and then jumps all the way through the process set out in
23.6 to the very end of 24, I will now transfer you at your salary.

PN496

By him determining on the day of the meeting that she was to be transferred he robbed her of the chance to meet his expectations. The damage was done by Mr Hamilton at the very start.

PN497

SENIOR DEPUTY PRESIDENT CARTWRIGHT: But he doesn't say he's going to transfer her. He proposes that as a solution, doesn't he?

PN498

MR RYAN: No, it becomes sort of weasel words, with respect, your Honour, because he uses "offer" in the letter confirming the outcome of the meeting, his point of view. It's made quite clear in the Commission's decision that the word "offer" was never used when he had a meeting with Ms Barakat. It came out of his discussions with Ms Marshall and that's set out in paragraph 41 of the Commission's decision. Footnote at the bottom of page 13, footnote 27, "The use of the word 'offer' was not in fact used at the meeting with Ms Barakat. It was only used on the advice of Ms Marshall, see paragraph 5186." So, you know, it was a fake offer in that sense and there was an exchange with the Commissioner and Mr Hamilton, you know, what happens, he's not backed the offer?

PN499

So we say that if you accept the submissions of the ABC that 19.3 can be used whenever you feel like it and transfer, you have a situation where people can't respond to performance issues.

PN500

SENIOR DEPUTY PRESIDENT MARSH: Where's the material that the evidence tells what Mr Hamilton in fact said, he words he used? Can you go to that shortly? If you can't, I don't want to delay proceedings. I can find it myself at a later stage.

PN501

MR RYAN: Ms Connell will find it in the meantime, if that's all right, your Honour?

PN502

SENIOR DEPUTY PRESIDENT MARSH: Thank you.

PN503

MR RYAN: And if you follow that logic then the situation of misconduct and serious misconduct are just the same. The ABC can bypass the proper process which - - -

PN504

SENIOR DEPUTY PRESIDENT MARSH: Ms Barakat was still at work when this happened or did that happen after she came back? I just can't quite recall the sequence.

PN505

MR RYAN: Inside Business works a Tuesday to Saturday.

PN506

SENIOR DEPUTY PRESIDENT MARSH: Yes, and she went home on the Friday?

PN507

MR RYAN: On the Thursday.

PN508

SENIOR DEPUTY PRESIDENT MARSH: On the Thursday.

PN509

MR RYAN: Returns to work on the Friday and the Saturday. Sunday and Monday are her normal days off, but on the Monday she meets with Mr Hamilton on her day off.

PN510

SENIOR DEPUTY PRESIDENT MARSH: I see, yes, thank you.

PN511

MR RYAN: And then doesn't return to work after that. I'll return to that later, your Honour, as to - - -

PN512

SENIOR DEPUTY PRESIDENT MARSH: If you go to that do it in your own time.

PN513

MR RYAN: Can I say that - - -

PN514

SENIOR DEPUTY PRESIDENT CARTWRIGHT: I'm just looking at the email that followed up the meeting and that's in volume 3 and it's at page 88.

PN515

SENIOR DEPUTY PRESIDENT MARSH: Yes, I think that's what I was looking for.

PN516

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And, you know, he sets out his concerns and in the second paragraph acknowledges skills of a television producer and then in the third paragraph, "That's why I would like to offer you the following course of action."

PN517

MR RYAN: Yes.

PN518

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And certainly the way the email is presented, it says, look, you know, I've got a problem. I acknowledge your skills and here's a course of action, you know, by inference here's my preferred solution.

PN519

MR RYAN: Well, that's right, but if you look at that exchange as quoted in the Commission's decision, he'd made his mind up, and the use of the word "offer" which is used in inverted commas in the Commissioner's decision, I think reflects that. He just wanted her off the program, your Honour.

PN520

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry, he doesn't?

PN521

MR RYAN: He just wanted her off Inside Business as Executive Producer.

PN522

SENIOR DEPUTY PRESIDENT MARSH: So it wasn't an option to stay?

PN523

MR RYAN: Not in Mr Hamilton's mind, and the safe option for him is to put her back to the position as she held previously, as a segment producer on The 7.30 Report because of the national programs, The 7.30 Report's Executive Producer is based in Sydney. There are two national programs only which come out of Melbourne and that's Inside Business and Barry Cassidy's Insiders. All other national programs, Four Corners and the like, The 7.30 Report, are Sydney based.

PN524

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So were you saying that this email which, you know, is sent after the meeting, doesn't reflect what was actually said in the meeting?

PN525

MR RYAN: In the meeting, yes, yes.

PN526

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And where do you say the evidence is about what was said in the meeting?

PN527

SENIOR DEPUTY PRESIDENT MARSH: That's my question.

PN528

MR RYAN: It's in paragraph 5816 of the transcript which is page 634.2 and it says down the bottom, Mr Hamilton is being examined by Mr Smith for the ABC, so when Mr Hamilton answered that question:

PN529

When I finished the meeting with her on the 5th I came back to the office, as I was saying before, and I had a...(reads)... conversation with Kate Marshall about the matters that I mentioned. So I immediately rang Neheda. I said I want to make it clear that where we had the conversation earlier, I think things are important and she'd understand. One is that I'm making an offer. I have not used the word "offer" before. I had talked about a proposal as my desire. I used the word "offer" on the advice of Kate Marshall because it seems to be significant to her.

PN530

Now obviously the reason she said that was that she had already expressed concerns that if you sought to compulsorily transfer you, you couldn't do it under her interpretation of 19.3

PN531

SENIOR DEPUTY PRESIDENT CARTWRIGHT: So when he says, "I'd talked about a proposal as my desire", is the context there that it's said, well, look, what I want you to do is X?

PN532

MR RYAN: No. I've lost confidence in you as Executive Producer of Inside Business, you're not going to be that any more. Here's an option, go back to where you came from. That was the only option ever put to her.

PN533

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Is that somewhere else in the proceedings?

PN534

MR RYAN: I think it is, your Honour, Ms Connell is just trying to find that.

PN535

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Sorry. I don't want to delay you. Perhaps we can come back to that.

PN536

MR RYAN: Could I just then refer to the Lobez decision. Commissioner Smith is well aware of that decision because he was the member of the Commission whose decision was overturned by the Full Bench and he makes it clear in his decision that in paragraph 31 of his decision, he makes it quite clear up front, "I must also apply the decision of the Full Bench in Media Entertainment and Arts Alliance v ABC Lobez. That decision, reverse decision of the Commission is constituted and reached conclusions about the operation of 19.3 and then quotes the relevant part of the Full Bench decision.

PN537

Could I take the bench to the Lobez decision and why we say this is distinguishable to the matter before Commissioner Smith and the matter before you today. If I could refer to paragraphs 23 and 26 of that decision and in relation to paragraph 23, it's the last sentence of that, and we don't walk away from this. We affirm it:

PN538

It was common ground that the clause in which the ABC compulsorily transferred an employee to a new position subject to the limitations specified and any to be implied by the agreement.

PN539

Now, in that particular matter the only other part of the agreement that was of relevance or discussed before the Full Bench was that of clause 13.2.2(b). That is under Advertising. 13.2.2 is an exception to the general premise that all vacancies will be advertised and the circumstances of (b) are:

PN540

The vacancy relates to a key program or program requiring the skills and attributes of a particular person which may involve canvassing potential candidates on a discrete basis.

PN541

Now, the factual situation in Lobez was, Ms Lobez was a barrister who was hired by the ABC to be the presenter of Radio National's The Law Report. She had no prior broadcasting experience at that stage. So she commences as the presenter of the law report and then over a period of time does some work in different television programs, takes some periods of leave for adoption purposes, and then seeks to come back to be presenter of The Law Report, but she'd been away for a fair time. The person who had been acting in her position, Mr Carrick, was appointed by way of clause 13.2.2(b) to be the permanent presenter and Ms Lobez was offered the position of being the presenter of another Radio National program.

PN542

She rejected it. She said, look, my skills are legally based. I don't want to be a presenter of another program. Commissioner Smith worked backwards by saying, well, obviously if you've said this program is so important that you've used the exclusion to advertising to fill it, that must mean that Ms Lobez is in the same position and you can't move her to this other program. The Full Bench said, no, that's not the case. There's nothing in the wording of 19.3 and 13.2.2(b) which would require you to read down 19.3. That's not the case here. The case here is, you know, very different in that there are three powers of compulsory transfer identified already. One is 19.3, one is in clause 24 for failure to reach performance levels and one is for serious misconduct. So we then have a situation where we have to deal with the one instrument, having a conflict, as to how do you make an interpretation and give force to the agreement as a whole.

PN543

If I could hand up a decision of the Federal Court, it's a Full Bench of the Federal Court, Hoffman v Chief of Army and that was a situation - it looks bigger than it needs to be because it's a, as I printed off the other day, it's a five person bench. There is a joint judgment starting on page 3 of CJs Black, Wilcox and Giles, there is a dissent by Justice Beaumont and Justice Lindgren gives a short judgment again which concurs with the majority. So in effect it was a 4-1, and the point at issue there was, Major Hoffman actually pleaded guilty to assault. If I could take the bench to the bottom of page 7 where there's a brief outline of the situation and I only need to restrict myself to the first ground of appeal, the others aren't relevant to the matter of construction between the specific and general:

PN544

The appellant was charged pursuant to section 61 of the Discipline Act which picked up section 26 of the Crimes Act of the ACT that being a defence member at Shoalwater training area, Queensland, did assault Captain Paul Barry Higgins by pointing a pistol at him during ...(reads)... at the time that the section 61 charge was brought.

PN545

By way of background, section 33 of the Discipline Act relates to assault by a superior on an inferior officer, is a service specific offence. The section 61 was just a general assault, common assault pursuant to the standard Crimes Act. The argument there was that the incident happened some six years earlier. They had to bring a section 33A matter within three years at the time. They didn't. They bought it under the law general, catch-all clause, and that was appealed. We then have a discussion at paragraph 8 on page 8 of the decision as to what happens here.

PN546

The question that arises here concerns this construction of the one statute. It's not inconsistency between different statutes. It then goes on to quote from Dixon J in South Eastern Drainage Board (SA) v Savings Bank of South Australia and quotes:

PN547

Where two apparently inconsistent provisions of the one Act of Parliament directly consulted by interpretation is the only course open. They cannot both receive their full meaning as it is expressed.

PN548

Then again there's a reference to Network 10 v TCN Channel 9 quoting from Acting Chief Justice McHugh, Gummow, Hayne JJs, after discussing various sections of a sentence of the preferred interpretation, "In this way effect is given to each provision while maintaining the unity of the statute in the sense discussed." Then if you go over the page to paragraph 11 it says:

PN549

Providing two different penalties for an offence with the same elements in two sections of the same statute gives rise to a question of construction that cannot be resolved otherwise than by choosing one section over the other. It is hardly likely ...(reads)... such a result would be capricious and arbitrary.

PN550

Exactly to the point we say here, if you adopted the ABCs interpretation, they could act in a capricious and arbitrary way by denying rights freely given in the agreement to employees to have performance management in the way set out in the agreement so that hopefully they would solve the problem, or alternatively, in the case of serious misconduct, could have a proper investigation and if the facts were such that it wasn't proved, their name could be cleared. Not to allow the ABC to pick and choose when to apply those provisions on whatever whim or in the case that was actually put to Commissioner Smith, without any reasons being given whatsoever.

PN551

Then at paragraph 12 there's a reference to how you deal with this, what is the legal maximum, and I must admit, I haven't done Latin since 1971, so, "A conventional method of resolving such an inconsistency as arises here is for the general to yield to the particular." They quote from the statutory interpretation by Pearce v Geddes, Fifth Edition. Then in paragraph 13 there's a reference to Dean Js decision in Refrigerated Express Lines Australasia Pty Limited v Australian Meat and Livestock Corporation, and it's quoted there:

PN552

As a matter of general construction where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter the latter must prevail ...(reads)... the particular enactment must be taken to be operative.

PN553

Exactly the point with the process for dealing with under-performance which can lead to transfer to another position with the same salary.

PN554

SENIOR DEPUTY PRESIDENT MARSH: Mr Ryan, is it the MEAAs position that the two provisions, leaving aside clause 58, are inconsistent? Couldn't it be construed that clause 19 comes under the heading classification and it's not an unusual provision in instruments of this Commission in that it deals with multi-skilling and requiring an employee to work consistent with their skills, competency, et cetera, et cetera, subject to health and safety considerations, and that the clause in provision in 23 deals with performance?

PN555

MR RYAN: Normally, yes, that would be the case, but the ABC doesn't apply it that way. I think Commissioner Smith does a good example of setting out the history of such clauses, going back to when he said - - -

PN556

SENIOR DEPUTY PRESIDENT MARSH: I'm raising that with you because you're taking us to an authority that assists in how to resolve an inconsistency. I'm going one step back and asking if it's the MEAAs view that there is an inconsistency.

PN557

MR RYAN: Well, that's not our view, it's the ABCs view. Unfortunately we've got to live with that and our member has got to live with their way of using clause 19.3

PN558

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN559

MR RYAN: We would say that you may be calling the head of the journalism panel at the time that all these clauses started coming into the award as part of the second tier arrangements and SEP, that's where they all started. Now, the ABC left it at that and said, yes, look, you are a television journalist, but now you're going to be doing radio as well. Fine, we accept that, that's the nature of the beast. But what they say is we can just move people around and a lot of times they can, a lot of times, you know, that's more than valid operational reasons to transfer people from one job to another or expand their jobs. What's not acceptable, what's not allowed by the agreement is where, once a manager has identified -and it starts with the management, it doesn't start with the employee - - -

PN560

SENIOR DEPUTY PRESIDENT MARSH: So 19.3 can't override the 23 where 23 would otherwise be invoked?

PN561

MR RYAN: No. If a manager says, I have got concerns with your performance, that's the starting point. Not the employee, it's a nonsense for Mr Buchanan to say, look, we are seeking - you know, creating disputes left, right and centre. Mr Hamilton had a right to raise performance issues. What he didn't have a right to do was then avoid the process in the agreement for seeking to resolves those. We don't quibble with that. He's got every legitimate right to raise performance issue and attempt to have that fixed in both the interests of the ABC and more particularly the interests of the individual. So we are reduced to relying upon interpretation tools because the ABC has said, and makes it quite plain - - -

PN562

SENIOR DEPUTY PRESIDENT MARSH: Yes, I understand on their interpretation.

PN563

MR RYAN: Personally in my view, I agree with you that 9.3 is a multi-skilling - - -

PN564

SENIOR DEPUTY PRESIDENT MARSH: Well, I haven't really expressed a view - - -

PN565

MR RYAN: I agree with the question as put.

PN566

SENIOR DEPUTY PRESIDENT MARSH: - - - to say that it could be that there's not inconsistency.

PN567

MR RYAN: Then there's a further quote from a judgment of the High Court in Smith v Queen, in paragraphs 14 and further on. Can I say that paragraph 17 sort of sums it up:

PN568

It is correct to say that section 61 incorporates a series of particular offences. That does not detract from the proposition that the proceedings in such a section as 33 each relate to a topic to which the legislature has given particular attention whereas section 61 is a catch-all provision.

PN569

The same here. Substitute 24 for 33 and substitute 19.3 for 61, and that's what's staring us in the face. Catch-all transfer or multi-skilling clause, performance issues, here is the process and then finally at the very back of the decision, just to briefly quote from Lindgren J, three pages from the very end, it's the third last page in the whole of the decision, your Honours and Commissioner.

PN570

SENIOR DEPUTY PRESIDENT MARSH: Yes.

PN571

MR RYAN: And it's at the top, in the first paragraph, I think it's page 12, it starts:

PN572

It can be seen to have provided specific kind of factual circumstances that have occurred and special permission for them will prevail over any inconsistent general provisions ...(reads)... and ordinary usage.

PN573

Then at paragraph 217:

PN574

Once it is accepted that the approach indicated by the maxim may be invoked as a result of internal inconsistency there is no reason why a case of external ...(reads)... of internal inconsistency.

PN575

So we say that having regard to the ordinary statutory interpretation, we have a conflict in the one document between a general provision and a specific provision and the specific provision must prevail and in the case here, that is, performance issues should have been dealt with by way of the processes set out in 23.6 and
24. As I said, that was derailed from the very start by Mr Hamilton making the decision that there were performance issues with Ms Barakat, that as a result she had lost his confidence and therefore she must go from the program by way of transfer. That put the thing right off the rails from day one.

PN576

SENIOR DEPUTY PRESIDENT MARSH: What do you say about the section of the transcript that Mr Buchanan has taken us to in that the agreed terms of reference didn't involve any consideration of 24, it just went to 23?

PN577

MR RYAN: I think if you look at 23.6 you'll see, 23.6 is the - - -

PN578

SENIOR DEPUTY PRESIDENT MARSH: Is the trigger for 24, yes, yes.

PN579

MR RYAN: Is the trigger, so what happens is that hopefully you'll shape up, but if you don't then 24 is what happens. I mean, 23.6 is you either solve the problem or you don't. If you don't solve it, then you're down to the formal performance improvement plan process because 23.6.2 is quite clear. "If adequate progress has not been made within a reasonable period, then formal procedures for dealing with unsatisfactory performance will be commenced in accordance with clause 24." So when we refer to 23, the performance is still an issue, 24 follows as night follows day.

PN580

One of the other issues that we rased was the situation of the position on The 7.30 Report not being available to the ABC because of one of the other restrictions contained in clause 19.3 which is in the second sentence, "Requirement to perform work in accordance with this clause will be consistent with the ABCs obligation to provide a healthy and safe working environment" is one aspect, or one limitation, and the other limitation is, "Re-skilling." Putting aside this re- skilling issue, we did raise up front the fact that the decision to transfer to The 7.30 Report would be contrary to the medical advice the ABC had received early on in the piece.

PN581

Just by way of background again, Ms Barakat goes on sick leave I think on 6 April, remains on sick leave to mid-June and says to herself and says to the ABC, "I feel unfit to return to work. I'm not going to be putting in sick leave forms anymore." As a result Ms Barakat is sent for a return to work report from a Dr Mutton which is in volume 3 at page 12A and onwards and at the bottom of page 12B where Dr Mutton is setting out some points:

PN582

From a medical viewpoint Ms Barakat indicates she wishes to return to work and has advised the ABC of this intention over the past two months but a position has not yet been provided.

PN583

Then on page 12C, under the heading Assessment, Dr Mutton answers the questions actually put to him by the ABC, (1):

PN584

At present do you feel that Ms Barakat is physically and/or psychologically fit for the work described in the attached job description? Will Ms Barakat be able to undertake this work on a full or part time capacity?---Ms Barakat is currently fit to undertake work as a Program Manager, Band 8, as was her pre-illness injury. She can continue to work in a full time capacity.

PN585

Then at (3) there is any medical restrictions or limitations:

PN586

Clearly there are some issues with management and the ABC. Ms Barakat quite clearly is concerned about the interventions of Mr Marco Bass and any direct reporting relationship or direct contact with this particular person should be avoided.

PN587

Point (4):

PN588

She has no current medical or psychological illness that prevents her from undertaking her work.

PN589

Now, the ABC gets that advice and nothing happens. They are still trying to push her into that 7.30 Report position in the full knowledge that because Mr Bass is responsible directly Friday work, which is not 7.30 Report but Stateline, ..... so the 7.30 Report doesn't go to air on the Fridays, Stateline replaces it and he has direct responsibility for that. The position that they wanted her to do, or
Mr Hamilton forced her to do, wasn't available because of this very point. So it was actually the alliance who raised the matter of this before Commissioner Smith, it was only half way though proceedings where the agency is trying to play a little trick by saying, " We have got this medical report that has been sitting around since February and we want to trigger that by sacking you.

PN590

The Commissioner rightfully says hold on for a second, Ms Barakat has got legitimate rights which have been aired here, the ABC was able to proceed and terminate her employment, ..... her rights and hence issues a direction pursuant to section 111(1)(t) I think it was, that she not be dismissed. ..... sees no good to say that we want to sack her now thanks very much when they knew in early August that Mr Hamilton's position wrongly taken we say, he could have transferred at the time he did and the way he did it, but the very position that he forced - that he wanted her to go to wasn't open for it to be done, because of the medical report from Dr Mutton. And we raised that by saying what a stupid thing for the ABC to do, you knew you couldn't do it but you persisted down this course.

PN591

So as the result Ms Barakat goes onto leave without pay, forcefully without pay from the ABC. So what we say is that the ABC can't hide behind clause 59 of the agreement, the medical report of both Dr Smith and Dr Mutton, are she, does not have a medical condition. She doesn't have a psychiatric illness. She's fit for work as a program manager, but their issue is with her and Mr Bass.

PN592

SENIOR DEPUTY PRESIDENT MARSH: Such that it was put to us this morning that it is not possible for Ms Barakat to be reinstated at the ABC in Victoria.

PN593

MR RYAN: Well, that is not the point. The ABC is seeking, with respect, your Honour, to rely upon provision of clause 59 - I mean they don't look at clause 59.1.1. If the ABC is saying, as they did, that she still has some medical condition:

PN594

Where an employee is ill for an extended period of time or incapable of performing their job because of medical reasons the ABC will manage the case in accordance with the requirements of medical advice to assist the employee to return to full-time work capacity.

PN595

Now, the only impediment Ms Barakat earning a living at the ABC was the limitation expressed about working near or around Mr Bass, clause 59.1.1 makes it mandatory for the ABC to manage her return to work in accordance with the requirements of the medical advice.

PN596

SENIOR DEPUTY PRESIDENT MARSH: Yes, but Mr Buchanan said there is no job in Victoria because of the scope of Mr Bass's responsibilities and functions.

PN597

MR RYAN: He may well say that, your Honour, that is not the point.

PN598

SENIOR DEPUTY PRESIDENT MARSH: Well, that is the submission we have got.

PN599

MR RYAN: I know he may well say that, but that is not the obligation of the ABC pursuant to the agreement. I mean the ABC will manage the case. There are ways of - so she hasn't got medical incapacity, both doctors say she is fit for work as a program maker band 8, but the ABC is trying to say she has a medical condition, we say, well, in that case, you can't just sack her because she is capable for work in accordance with the limitation and our agreement requires you to manage her return to work by following the medical advice. And they have said, "Sorry, we are not going to do that. Mr Bass is there and that's it". And that is why Commissioner Smith, in the last part of his decision, talks about the need to see whether or not there is bullying going on at the ABC in its Melbourne newsroom.

PN600

It is predicated upon wrongly as it turns out the ABC doing the right thing. I think you said before to Mr Buchanan, your Honour, what was supposed to happen. Well, Commissioner Smith says under your agreement Mr Hamilton had no right to transfer by use of 19.3. One outcome would have been for the ABC to say, yes, Commissioner Smith said we have done the wrong thing so we couldn't have transferred Ms Barakat in that method.

PN601

Ms Hamilton's evidence to Commissioner Smith was the position is still vacant as a person working as a supervising producer, but not executive producer. The ABC could have and should have we submit most strongly said, all right, we have been caught for doing the wrong thing. We couldn't have transferred her, she will go back into position, and we will invoke performance issues under clause 23 firstly, hopefully to solve the problem., if that doesn't work then 24 would kick in. Well, they haven't done that. So as a consequence, Commissioner Smith says well, going back is a logical conclusion from his decision.

PN602

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Can I just ask you something on that. If they had done that, presumably you submit that Ms Barakat would have had an obligation under clause 24 to engage with Mr Hamilton.

PN603

MR RYAN: Yes, definitely, no objection to that, your Honour. The process in 23 is talking informal and then if that doesn't solve it then formally 24.

PN604

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, I mean partly the problem is you have referred to Dr Mutton's report in August.

PN605

MR RYAN: Yes.

PN606

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And then there is the later report in February from Dr Smith. I suppose picking up Mr Buchanan's submission this morning, there is nothing wrong in Mr Hamilton at the first time a performance issue is discussed saying, "Well, look I have got a preferred solution here". In your submission what went wrong was finding that that wasn't a feasible solution from Ms Barakat's point of view, not then pressing ahead with the rest of the performance management process.

PN607

MR RYAN: I think it was a bit worse then that actually, your Honour. Mr Hamilton says, "I have got issues with you performance-wise. I am now going to transfer you". There wasn't that exchange at that meeting, and there is where it goes right off the rails. If Hamilton said at that meeting, I want you to go away and have a think about it.

PN608

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It then goes off the rails too because there is no engagement between the two, and in that sense we have got a stalemate where you have almost got to rewind the tape.

PN609

MR RYAN: I didn't want to go into the facts in as much detail, but if you chart the email exchange in early April, the position is yet hardened.

PN610

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, I mean, that is what I did.

PN611

MR RYAN: Yes, and there is a situation, you know, "Can I bring a representative to the meeting?" Mr Hamilton, says, "No, you can't, I'm the manager, I will talk to you" and then he says, "Well, why don't we try and resolve this by a written exchange".

PN612

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Yes, and at that point it is a lose, lose proposition, Ms Barakat doesn't help herself.

PN613

MR RYAN: That is right, and to some extent Mr Hamilton doesn't either. We're still not getting to the situations ..... says, "Hold on for a sec, I wanted to raise with you my concerns with Mr Bass" and they never get that addressed because of
Mr Hamilton's view of what is going on, and unfortunately Commissioner Smith points out a fair bit of that was flawed as to his understanding of what actually happened around that time.

PN614

But, in relation to the bullying issue there was two aspects to that. One was - I will come back to Ms Barakat returning to work in the context of somewhere in Melbourne, you know, her old position was something else, but another aspect which was addressed by us during the course of proceedings was that one of the things we said the ABC had done incorrectly was how they dealt with her grievance against Mr Bass for bullying. There is a reference to the Crane report, Mr Crane who is the ABCs Queensland human resources manager, conducted an inquiry.

PN615

Now, I get the strong impression - I wasn't present earlier on - but I think part of the conciliation between Commissioner Smith and the method by which that was done is unknown to me, we attacked the way it was conducted, but Commissioner Smith said I think - well, that was conducted, I think by way of conciliation what came out of that.

PN616

But one aspect that was important to us was that if you look at the ABCs anti-bullying policy one of the things that you need to establish is there a pattern of behaviour, and what we did attack about Mr Crane's methodology was that he didn't seek out others in Melbourne that were brought to his attention. All he said was, "In relation to Ms Barakat's allegation about this particular incident, it was one off, therefore it wasn't a pattern". We said, "Hold on for a second, did you seek out other people, no you didn't" and hence when Ms Connor was cross-examining Ms Marshall the situation was, as you can see in the medical reports concerning Ms Barakat, "Yes, fit to return to work, but keep away from Mr Bass".

PN617

There were four other people who had similar medical reports, and from our point of view and the context of our complaint that the grievance that Ms Barakat filed against Mr Bass wasn't handled properly it was very important and essential to say that Mr Crane misconceived what he had to do by not seeking to apply the ABCs anti-bullying policy by looking at a patter of behaviour. We said, "There is no other newsroom in this country where there are five medical reports of recent time saying people should not go near the state editor" and hence we could imply if not state that there was a pattern of behaviour which could be bullying. So this was the context of why it was raised.

PN618

The second aspect of which it was raised was because Mr Bass made the point that many people, and this is made again in Commissioner Smith's decision, was that people only raise bullying after they have put in a performance improvement plan, and Commissioner Smith makes a point quite validly there in paragraph 89 of his decision, of course, Ms Barakat was not on a PIP and raised the issue of bullying informally prior to removing her from Inside Business. I also - some of the management responsibilities that Mr Hamilton said Mr Bass had were not fully appreciated by Ms Barakat.

PN619

So it may well be that the modifications sought or the limitation that Ms Barakat being fit to resume here work as a program maker band 8, kept separate from
Mr Bass. If it was proven that Mr Bass was a bully, then why should Ms Barakat suffer? That is what it boils down to and all Commissioner Smith is seeking to do as a natural progression from his determination that the ABC didn't have the power pursuant to 19.3 to transfer as a consequence she should be back where she was because what the ABC did couldn't have been done, there is a complication in that she has raised concerns and there are purported limitations in the medical reports as to what happens down there.

PN620

SENIOR DEPUTY PRESIDENT MARSH: It might be a natural progression, but how it is a matter the question of an investigation or determining whether Mr Bass was a bully on the basis of five medical reports? How is that a matter arising out of the application of the agreement under LW that was notified by the MEAA? What provision of the agreement is invoked in this investigation as part of gathering facts to have it determined whether or not somebody was a bully with respect to a number of other employees? Isn't that really extending the - - -

PN621

MR RYAN: No, we say not at all. There are two direct aspect of it. One is clause 59 as raised by the ABC which is:

PN622

The ABC will manage the case in accordance with requirements of medical advice to assist the employee.

PN623

SENIOR DEPUTY PRESIDENT MARSH: Was that in the MEAA notification?

PN624

MR RYAN: Yes, we raised it up front.

PN625

SENIOR DEPUTY PRESIDENT MARSH: In the terms of reference?

PN626

MR RYAN: I think we did, your Honour, I will just check.

PN627

SENIOR DEPUTY PRESIDENT MARSH: It isn't as involving four other employees who weren't remotely concerned with the grievance of the individual, that is Ms Bakarat's grievance something that is this enquiry into a number of other employees. Well they are their complaints

PN628

MR RYAN: No, we said in part N, settlement of grievances and disputes, what we are saying is Ms Barakat had lodged a grievance about Mr Marco Bass's bullying. We said the Crane report was - - -

PN629

SENIOR DEPUTY PRESIDENT MARSH: Was too narrow, therefore, we want to involve all these other employees.

PN630

MR RYAN: No, there is also the medical - - -

PN631

SENIOR DEPUTY PRESIDENT MARSH: I thought you said there were five medical reports.

PN632

MR RYAN: To show a pattern.

PN633

SENIOR DEPUTY PRESIDENT MARSH: Yes, there is not medical reports in relation to Ms Barakat, they are in relation to other employees.

PN634

MR RYAN: Indeed, because as I said part of the ABCs bullying policy is a pattern of behaviour which Mr Crane did not investigate? He was asked to interview a number of people and Ms Barakat. He refused to do so. I put to him, "That if you had been aware of this, would that have been different, if you had been aware that there was a pattern down there, would you have done something different?" He said, "No", but it was put to him, and that was one of the grievances, but her grievance hadn't been dealt with properly. That is something that arises under the agreement in clause 62, personal grievance resolution.

PN635

As does her return to work with a limitation, and the ABCs obligation to follow the medical advice. And all he was doing actually was taking evidence. All he is seeking to do is have an expert report on the situation. It is a process, it is not an end in itself, I mean, the taking of evidence and the gathering of evidence is an essential part of making decisions by this Commission. He has got no conclusion, all he is doing is setting in train one method of gathering facts to allow him to make a decision.

PN636

Now, it is a procedural thing. Now, the ABC has fought this up hill and down dale to stop somebody who is an independent expert and unbiased to see what is going on down there, and they pressed that today. It is logical that if Ms Barakat should not have been transferred and she goes back to work, then her 0H and S matters in relation to her position.

PN637

Now, from our point of view to some extent what flows from this appeal? We have got to take Federal proceedings to seek to enforce Ms Barakat's rights under the agreement. We say it may well be done, that she shouldn't have been removed in the way she was from her position, and we seek redress there, because the ABC hasn't voluntarily sought to apply Commissioner Smith's decision, and I suspect if this Bench was to uphold Commissioner Smith's interpretation of clause 19.3, what should the ABC do.

PN638

Now you would expect as I said a reasonable employer to say, well, we have been told we can't do what we did, so we had better put her back to the position prior to what happened, or seek to come to some other arrangement. All the ABC has said is, "We want to sack her" and rely upon the wrong doing of Mr Hamilton at the start as a justification for that. That is what they want out of these things. Or as Ms Buchanan let the cat out of the bag, they want to seek out an advantage when it comes to renegotiating the agreement in relation to what they say is the interpretation given to 19.3 by the Full Bench in the Lobez case which we say is complete and distinguishable from the facts before you here.

PN639

So to some extent we believe this is an appropriate case for leave to be actually granted. Take the point that we have to as a union, take Ms Barakat's matter to the Federal Court for enforcement since the ABC appalling as a government organisation doesn't wish to comply with it's own dispute procedure by accepting as final the determination of the Commission.

PN640

SENIOR DEPUTY PRESIDENT MARSH: So you are saying the MEAA is going to take the agreement to the court to have the agreement interpreted?

PN641

MR RYAN: No, get a penalty against the ABC for breach of the agreement will be a way of saying. As much as I, you know, know Commissioner Smith, I wish he had actually made some recommendations or orders, but he didn't, he just said in his point of view, well, he is happy the agreement should apply but I am not game to do what you asked me to do, therefore, that means Ms Barakat goes back to where she was.

PN642

SENIOR DEPUTY PRESIDENT MARSH: Well, it seems to me both parties are going to do what they want to do as a result of this appeal.

PN643

MR RYAN: No.

PN644

SENIOR DEPUTY PRESIDENT MARSH: Well, it might be a relevant consideration to move. We have been told that she can't be reinstated in Victoria because of Mr Bass's wide ranging responsibilities and managerial functions. The MEAA are saying they are going to seek to have the agreement enforced, I don't know if it matters what we do quite frankly in practice.

PN645

MR RYAN: Well, I do take a little bit of offence to that, your Honour, we are here defending - - -

PN646

SENIOR DEPUTY PRESIDENT MARSH: It wasn't meant to be offensive, I am just trying to look at the practicalities.

PN647

MR RYAN: I know so many people are offending the Commission these days, but we aren't one of them. Commissioner Smith's decision has been appealed by the ABC. We are duty bound to put to you the best argument that we can.

PN648

SENIOR DEPUTY PRESIDENT MARSH: And I have just put a position that might be relevant to me, that's all.

PN649

MR RYAN: And I am saying that's right in which case we can live with that, because we then have two decisions there, both points of view, and a Federal Court matter to be finalised in due course and I will start the argy bargy for a new agreement around Christmas time.

PN650

SENIOR DEPUTY PRESIDENT MARSH: I might say to both parties, and I am speaking for myself because it is my initiative, if it was my reading of the conclusions of Commissioner Smith and the fact that it could well be that there wouldn't be finality whichever way the Full Bench ruled in these matters, that I wrote to the parties last week and invited the parties to participate in conciliation.

PN651

MR RYAN: And we get to five and a half hours yesterday, your Honour.

PN652

SENIOR DEPUTY PRESIDENT MARSH: It may be that the matter is not resolved for some time to come in terms of litigation.

PN653

MR RYAN: That is a possibility, you know, we have tried, and Commissioner Smith tried a number of times to see if we can come to some arrangement, and he makes reference to that in his decision. But, we are here to defend because we think Commissioner Smith's decision is correct when you apply the standard forms of interpretation in this given set of circumstances. That is why we are here in relation to that.

PN654

In relation to Ms Barakat, we would have hoped that the ABC had followed Commissioner Smith's theoretical point and done the right thing by Ms Barakat. We would certainly hope the appeal was rejected or leave was not granted that the ABC would do that, but I am not hopeful by the way they have been acting of recent. So if we have to, we will exercise legal rights in another jurisdiction which we were almost invited to do by Commissioner Smith in his decision anyway by his refusal to make orders or recommendations.

PN655

But just having regard to the final paragraph, the so called Mr Bass's overwhelming responsibilities.

PN656

SENIOR DEPUTY PRESIDENT CARTWRIGHT: Just before you leave that, in seeking to enforce the agreement in the Federal Court, wouldn't the court necessarily have to interpret the agreement?

PN657

MR RYAN: I suspect they probably would, your Honour. We would be saying something very similar to what has been put to yourselves today.

PN658

SENIOR DEPUTY PRESIDENT CARTWRIGHT: In other words I cant, and this is a question, but, you know, at this stage I can't envisage that the court would be able to enforce the agreement without first deciding what the agreement provides.

PN659

MR RYAN: Yes, I shorthanded by way of saying we would say what they said the 19.3 wasn't open to them because when you interpret - - -

PN660

SENIOR DEPUTY PRESIDENT MARSH: Which triggered my question.

PN661

MR RYAN: I am sorry I shorthanded - - -

PN662

SENIOR DEPUTY PRESIDENT MARSH: To which you took offence.

PN663

MR RYAN: I thought you just wanted an interpretation hanging out there, what we were saying was the interpretation is a necessary step to what we are seeking which was an enforcement of, so, I am sorry if I got it convoluted, your Honour. But, just to go to the so called wide ranging role of Mr Bass in Melbourne in relation to the two national programs which work out of there, Mr Crane attached to his report the family tree, and in his evidence he tried to suggest there was dotted line responsibility for Mr Bass for both Inside Business and Barry Cassidy's program, the Insiders, and we were showed that no dotted line existed. There is no direct responsibility.

PN664

Mr Hamilton, in his evidence, explained that Mr Bass was by necessity of him being the most senior editorial person in there organising facilities and the like, but as far as much else goes I think it is grossly overstated. Even when you compare his duty statement as to what role if any he has. There is no direct editorial employee, there is a minor direct role in relation to ensuring that you don't have three programs using the same studio at the same time or that if there aren't enough camera people to go around that they are prioritised. But it is nothing to do with actual content of program for Inside Business or the way in which Ms Barakat or any executive producer does their role in their team.

PN665

SENIOR DEPUTY PRESIDENT CARTWRIGHT: It is in the context of service provider.

PN666

MR RYAN: Yes, your Honour. He is responsible for all that is in Melbourne, he has got these two national programs, he has got to fit in with because there is no dedicated resources if you like, to them, they share around but his job is to make sure that all the programs get their fair share of resources at the appropriate time and that is set out in his duty statement.

PN667

So your Honours and Commissioner, we say that if you do grant leave to appeal to the ABC the appeal should be rejected and we set out what we say should be the conclusions, although you have a wide gambit as to what you do if you reject it and I think you have alluded to that earlier, your Honour, in relation to Mr Buchanan. If the Commission pleases.

PN668

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Mr Buchanan?

PN669

MR BUCHANAN: Can I make some short points in reply. Firstly, mention has been made of paragraph 89. May I refer to that again briefly? Firstly, Commissioner Smith's observation that Ms Barakat was not on a performance improvement plan you cannot get to clause 24.3 except through amongst a wide range of other things the existence of a performance improvement which has been distinguished, of course, from the job plan.

PN670

SENIOR DEPUTY PRESIDENT CARTWRIGHT: And the significance of it being distinct from the job plan?

PN671

MR BUCHANAN: It is a performance improvement plan and it is the peculiar creature of clause 24, whereas the job plan arising out of clause 23 applies to everybody. The next matter I want to mention is the reliance placed on paragraph 38 of Commissioner Smith's decision, and the reference to the advice given by Ms Marshall to Mr Cameron and Mr Hamilton on 6 April 2004. That has to be seen, of course, in the overall context. Firstly, while it may be interesting to study and reflect upon internal advice that is given within an organisation. It is not always a sound validation for appreciating the way in which ultimately decisions are made.

PN672

Secondly, in the particular context it is necessary to appreciate the fact that two weeks later Commissioner Smith refers to paragraph 42. Ms Marshall was asked specifically to express an opinion about the operation of clause 19.3 in the agreement, and in clause 43 her response is summarised. The first three points in particular are important. Firstly, the move to the 7.30 Report would be within the limits of competence training and classification. There was some speculation about how the Commission might view the move, however, and I'm looking at the second dot point, the ABC could consider that the move would fit within the existing standards that apply to her, and this is important, if there was a significant risk to the program it is worth testing the matter, so that has the hallmarks of prudence about it. There may be an issue about this, but upon a proper construction it is available, and if there is a risk to the program, then it may be worth having the issue. All of that goes to emphasise if a proper and balanced view was taken of it that ultimately these sorts of decisions were taken we would submit primarily by the reference to the interest of the program rather than by reference to any desire to punish Ms Barakat.

PN673

Now, there was next a reference to clauses 57 and 58 of the agreement, and that is referred to in clause 57 and 58. I am most likely to find reflections they are made out in the operation of clause 60 which is the termination clause, and it is not without some significance may we suggest that in clause 60 the termination response is made as it were expressly subject to most of the disciplinary provisions.

PN674

The reason I reference to clause 57 I must point out that there are references in clause 60 in many other respects to other provisions which clearly are expected to be engaged in order to assess whether somebody falls within the categories there mentioned, medical incapacity, unsatisfactory performance, misconduct and so on. Now, that brings me to a couple of brief references to the Federal Court decision that was relied on, Hoffman v Chief of Army. This was a case, as is apparent from the provisions referred to, which involved a criminal matter and, amongst other things, the principle against exposure to double jeopardy that appears particularly from paragraph 9.

PN675

The other thing that is worth mentioning is that even in the criminal context as is plain from paragraph 11 it is not unusual to have a variety of offences created by statutes where there might be a considerable degree of overlap. It is referred to at the end of paragraph 11, for example:

PN676

It is, of course, commonplace that the one act or course of conduct might lead to a variety of offences created by the same statute. However, those offences would all be different in character, one from the other, usually with an ascending order of gravity.

PN677

One example that is sometimes given in these sorts of context is common assault, assault occasioning actual bodily harm, assault occasioning grievous bodily harm they each being varieties of assault it being possible to plead to a lesser charge even if brought before the court on the more serious one.

PN678

Another example is the murder manslaughter. You can be charged with murder and plead to or be found guilty of manslaughter, but that is not the question that was addressed in Hoffman's case. Hoffman was dealing the different penalties for the same offence, that is the same criminal offence with the same elements.

PN679

In our submission, even if this criminal case could be applied for the present circumstances, and it really cannot, clauses 19 and 24 don't have the same rules in them. They don't overlap for the reasons that we have advanced earlier they don't - their interaction, or their presence in the same agreement does not produce a conflict of an inconsistency.

PN680

Now, as to what was proposed initially in relation to Ms Barakat - may we rely on the submissions that were put draw the Commission's attention to how she herself responded to Mr Hamilton's position in the letter that she wrote on 13 April 2004 which is to be found in volume 3, page 92. This was written just over a week after the meeting that took place on 5 April. I certainly don't propose to read all of it, but may I draw attention to these features of it. In the first paragraph there is a reference to "your offer". In the third paragraph there is a reference to "your proposal". In the fourth paragraph, Ms Barakat says that she regards the matters that he referred to as "minor incidents" and she says that she doesn't accept that they justify what she says is putting pressure on her to take a lesser position. That appears to be a rejection of any suggestion of any inadequacy on her behalf. And then she says:

PN681

There are two other matters which cause me concern about this matter, first is I am a senior and very experienced...(reads)...Alternatively, we can continue to discuss other positions which are commensurate with my present position.

PN682

Two things that have been quoted from that last paragraph, firstly, it is clear that she doesn't regard those procedures as having at that point in time as having been revoked, secondly, it is put as a matter as it were within her discretion. The inference appears to be, "You can't move me, but I could agree to move if it suited me to do so".

PN683

Now, there was on the material before the Full Bench no direction of transfer until 17 December 2004, that is no formal direction, but the question of construction that we sought to ventilate crystallises at that point. Was there power at that point in time to direct the transfer? We submit the answer is yes. But what had not happened on anybody's appreciation ..... was that there had been an invocation of the provisions of clause 24. Indeed, I don't wish to misrepresent her position, but Ms Barakat in a sense seems to challenge Mr Hamilton to do that if he wanted to move her.

PN684

Now, Mr Ryan said in his submissions that if she had stayed where she was and there had been some further assessment of her position either under clause 23 that would solve the problem or it would not, but presumably it is intended to submit at the same time that you couldn't use clause 19 whatever the position was. If it wasn't resolved you couldn't use it, if it was resolved you couldn't use it either.

PN685

More lately in his submissions he said that Mr Bass's position in Victoria should not inhibit Ms Barakat's return to her role or position. It ought not be forgotten that the complaints that Ms Barakat had against Mr Bass concerned interaction with him in the position which she held as executive producer of Inside Business, or to the extent that they predated her assumption that her position on the 7.30 Report. And Commissioner Smith indeed commented at paragraph 89 that some of the management responsibilities which Mr Hamilton said Mr Bass had were not fully appreciated by Ms Barakat.

PN686

Now, presumably the inference arising from the submission that the only impediment is that she should not work near or around Mr Bass and the ABC has an obligation to manage that is that that sets up some obligation to deal with Mr Bass's responsibilities and change them and, with respect, there is not a good foundation for such a suggestion.

PN687

The second last matter that I wish to mention is this. The bullying allegation against Mr Bass and against Mr ..... as well as certain other allegations against Mr Hamilton were made in a formal sense in May pursuant to the provisions of the agreement omitting personal grievances. The operation of clause 62 is not a matter with which Commissioner Smith ultimately dealt. When he set out to attempt to resolve the disputes over the application of the agreement and that is part why we have already submitted that it is not a matter which arose in relation to issues with respect of clause 63. Whatever else may be said about it, but with respect it was sufficiently clear that the desire of the MEAA to ventilate the bullying allegations against Mr Bass were little connected with Ms Barakat's circumstances if for not other reason that they were a very long way from Mr Hamilton's decisions which are the ones that were the operative ones in the present circumstances.

PN688

And the final point that we wish to make is to say something again very briefly about the question of leave. If indeed the MEAA has it in mind to bring proceedings in the Federal Court to enforce either the agreement or any determination which remains in place after the appeal, that is the determination or the ..... subject to what the Appeal Bench might do, then ordinarily the Federal Court, in our submission, was assisted by having the benefit of the views of this Bench about the construction issue which might arise before them. To the extent if necessary to do so may invite the Commission to take that declaration of intention into account also on the question of leave to appeal. Thank you.

PN689

SENIOR DEPUTY PRESIDENT MARSH: Thank you, very much, to both parties for the submissions. We will reserve our decision.

<ADJOURNED INDEFINITELY [3.42PM]