C2004/6470, Transcript of Proceedings [2005] AIRCTrans 1997 (27 September 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12842-1

SENIOR DEPUTY PRESIDENT DUNCAN

C2004/6470

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
AND
MACQUARIE UNIVERSITY
s.170LW - Application for settlement of dispute (certification of agreement)
(C2004/6470)

SYDNEY

3.08PM, THURSDAY, 15 SEPTEMBER 2005

Continued from 3/2/2005

PN169

THE SENIOR DEPUTY PRESIDENT: Are there any variations to appearances?

PN170

MS R KELLEHER: I appear on behalf of the university.

PN171

THE SENIOR DEPUTY PRESIDENT: Thanks, Ms Kelleher.

PN172

MS KELLEHER: Your Honour, you will recall on the last occasion that this matter was before you, 3 February, the parties - you adjourned the matter on the basis the parties had reached agreement on terms of reference for a review panel which they had agreed to set up to investigate the various allegations and complaints. The parties received a memorandum from the review panel dated 31 March this year, advising that the review panel considered that it was not of a type provided for under the university's certified agreement and they expressed some concerns regarding the basis on which they were constituted and their ability to effectively function.

PN173

Therefore the parties agreed to allow Mr McIntyre, who was the chairman of the review panel to mediate and the parties have met on a few occasions since that time, since March, to try and resolve the matter. In the meantime, while those negotiations have been continuing, the university has reached the view that the protected disclosures complaint which is one of the matters that the review panel was to investigate, is not a matter which can be resolved by any form of mediation or settlement because the university has various statutory obligations under the Protected Disclosures Act and therefore it must comply with those obligations and must investigate the complaint in accordance with the Act and its own policy, so, your Honour, we've come here today - we've sought to re-list this matter as a courtesy to the Commission and to advise you that we propose to proceed with our investigation of the protected disclosures matter in accordance with the Act and our policy and we have, as you might have seen from our correspondence, notified the other parties that we intend to do that.

PN174

When we advised the parties about that, Mr Harmer suggested that we might list this matter for a conciliation after this report back and we've taken no objection to that. We're happy to try and resolve the remaining matters, provided the protected disclosures matter will continue. We've undertaken, after the steps that are necessary to be taken in the protected disclosures investigation, we've undertaken that before any of the other matters are to be investigated or proceeded with, we will provide each of the other parties with 14 days' notice so that they can have the matter re-listed if they consider it's appropriate, take any objection and therefore we see no prejudice to the other parties as a result of our decision and we hope that this new process will replace all the other processes agreed to between the parties.

PN175

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Kelleher. Mr Harmer.

PN176

MR HARMER: Thank you, your Honour. Your Honour, we certainly agree that since the matter was last before the Commission, the review panel process which your Honour will recall is part of an actual agreement concluded and assisted by the conciliation in this matter. That agreement contained a number of elements, one of which was certainly the review process and that was central, but there were other aspects of the agreement of benefit to the parties.

PN177

The NTEU has concerns with what occurred subsequent to that agreement in terms of the briefing of the review panel and, indeed, takes the view that deficiencies in its briefing led to its initial conclusions on 31 March. Notwithstanding that, your Honour, there was certainly an attempt thereafter for mediation as part of that review panel process and that also has failed to resolve the matter.

PN178

Because that review panel process, frustrated as it currently is, was part and parcel of a wide agreement, progressed in conciliation, we felt that there was warrant to at least revisit as parties to that agreement in conference whether there's any aspect of it that can be salvaged or whether the parties simply pursue their own rights, one aspect of which is certainly the original application here under 170MW to enforce aspects of the agreement and for that reason, your Honour, we certainly do seek to avail the further time of the Commission and I appreciate you've already put considerable time into this matter, this afternoon in conference.

PN179

In relation to the proposal of the university to proceed with its protected disclosure investigation, we continue to be of the view that there has been nothing preventing the university at any stage for now over 12 months looking into this matter and we report, your Honour, that as we understand it, even as we stand here today, not one of the students involved in the original concerns has been talked to by way of interview, investigation or other attempt by the university to inform itself of the issues.

PN180

Your Honour might recall in that regard that when we were last before you, we had a hearing relating to the possibility of a student evidence day and your Honour did decide and wisely so that your Honour would recommend that that be a matter that the review panel consider, whether it would recommend itself or require the assistance of this Commission.

PN181

We seek to inform the Commission that the observations made by the chair of that review panel, Mr McIntyre, as we understood it included concerns that the review panel could not compel attendance of witnesses, could not ensure that evidence would be taken under oath, could not offer protection in terms of privilege against defamation proceedings, could not offer any protection in terms of victimisation and other issues, Your Honour, that were of concern to Mr McIntyre and we just note that given that as we say, the students involved in some of the allegations, some of which your Honour will recall went to allegations of a member of staff pressuring them to be dishonest, sexually harassing them, et cetera.

PN182

Those students still remain in the case of at least two of them students of the university and they have not been talked to to date, so we still have concerns with the inactivity of the university in this matter. We understand the university's course, but we see utility in exploring as parties to this now protracted dispute whether there can be any productive progress, given that we could hardly describe progress to date in that way, so, your Honour, we would be assisted by the Commission in conciliation and would seek to address any other issues in that forum.

PN183

THE SENIOR DEPUTY PRESIDENT: Very well, thank you, Mr Harmer.
Mr Dale.

PN184

MR DALE: Thank you, your Honour. Just for the record, my client John Selby is not in the country at the moment and will be away until February next year, so we have expressed an objection to the idea that we proceed with the protected disclosure whilst Mr Selby is not in the country. We feel that protected disclosure will go to issues which are involving Mr Selby and he will need to be here to respond to matters that do arise.

PN185

Further, our objection also goes to the fact that Mr Selby did initiate a grievance which we feel triggered the whole protected disclosure matter. The university hasn't given us an assurance on the investigation of that grievance, so we feel that it's unfair that - on one hand we're prepared to activated the protected disclosure matter, but not look at the grievance concurrently.

PN186

I appreciate there's statutory requirements in relation to protected disclosure, but we say it should be done at the time that Mr Selby is here in the country. It's been made very clear to all parties that Mr Selby would not be in the country after July 2005. It was in that vein that we participated in all the mediation that occurred at the university.

PN187

We don't necessarily agree that the university has been inactive on this issue. We believe the university has tried to resolve the matter. Unfortunately, we weren't able to do that. Certainly there's been extensive discussions and we have certainly put our views on how this matter could be resolved, so we do have concerns. I have put it in writing. I understand that you may have a copy of that correspondence. If not, I am prepared to hand that up.

PN188

THE SENIOR DEPUTY PRESIDENT: This will be a letter to yourself - - -

PN189

MR DALE: To Minter Ellisons. I can hand that up.

PN190

THE SENIOR DEPUTY PRESIDENT: I know Minters did send quite an amount of relatively recent correspondence, but the well known ..... of the NTEU doesn't immediately leap out at me.

PN191

MR DALE: We're not opposed to the idea of further conciliation. We want to see the matter resolved, but we do believe that it would be unfair to proceed with the protected disclosure whilst Mr Selby is in Belgium until February next year.

PN192

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dale. I think that's everybody, isn't it, who wants to say something on the record? I think we might go into conference.

PN193

MS KELLEHER: Your Honour, may I just make two points in relation to the submissions of my friends?

PN194

THE SENIOR DEPUTY PRESIDENT: Yes.

PN195

MS KELLEHER: In relation to Mr Harmer's comments about the failure of the university to take any action in the last 12 months under the protected disclosure complaint, the protected disclosure complaint was one of the matters in which the parties agreed to refer to the review panel and therefore the actions to be taken by the review panel from February this year were actually subject to that agreement and therefore the university was precluded from taking any further action of independently investigating the complaint, so we reject any assertion that there's been any delay by the university.

PN196

THE SENIOR DEPUTY PRESIDENT: But it is prepared to take action now, is it not?

PN197

MS KELLEHER: It is prepared to take action now that the review panel has said that it is unable to determine those matters.

PN198

THE SENIOR DEPUTY PRESIDENT: I see.

PN199

MS KELLEHER: And I would just like to for the record state that the protected disclosure complaint was made on 20 August 2004 and the matter was notified, the NTEU had already been involved in the matter at that stage and then the dispute was notified on 14 September 2004, so, really, there was less than a month there before the dispute notification required us to cease all action in relation to the various matters being complained of and the various allegations that were made, so the university's position is that until this time, it's been unable to progress the investigation and just in relation to the comment about the interaction of the grievance and the protected disclosure, the grievance lodged by his client was formally lodged on 7 October 2004.

PN200

The protected disclosure, as I have said, was lodged on 20 August. The university submits that the fact that Mr Selby is out of the country should not be relevant to the investigation. Mr Selby is currently out of the country on study leave and is still very much an employee of the university and can be expected to respond to the allegations. He's currently being paid to perform work, even though he's not required to attend work, so there should be no problem in providing written responses if necessary to the allegations that are subject to the protected disclosures complaint.

PN201

We submit that it's inappropriate for the matter to be delayed for another four or five months until Mr Selby's return and certainly his grievance can be investigated upon his return and that would be appropriate. I also understand that Mr Dale has had some difficulty contacting his client, so his client's position is not known and this is the position of the NTEU that's being put forward today and finally I just want to say that there will be no prejudice to Mr Selby that we can see from the proposal that the protected disclosures matter be investigated and he be notified of any steps to be taken after that in relation to the grievance because Mr Dale would have an opportunity to respond and bring this matter before the Commission if necessary, so that no prejudice is suffered. Thank you.

PN202

THE SENIOR DEPUTY PRESIDENT: Very well. I am going into conference.

<NO FURTHER PROCEEDINGS RECORDED