C2004/6470, Transcript of Proceedings [2005] AIRCTrans 2222 (25 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13144-1

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

11.41AM, WEDNESDAY, 12 OCTOBER 2005

Continued from 6/10/2005

Reserved for Decision

PN272

THE SENIOR DEPUTY PRESIDENT: Changes in appearances?

PN273

MR R GOOT: Yes, again, your Honour, I appear for the university and I am instructed by MS KELLEHER.

PN274

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Goot. I think we pick up where we left off.

PN275

MR HARMER: Yes, thank you, your Honour. If the Commission pleases, on the last occasion I was moving through with a document that has been marked exhibit L1 I believe which was an outline of NTEU submissions in support of an application for a direction for a students evidence day.

PN276

THE SENIOR DEPUTY PRESIDENT: Yes.

PN277

MR HARMER: Your Honour, I had started to proceed through that document when the university pointed out that it was not prepared on that particular day to deal with the issue and as a result of that the matter was stood over to today. Your Honour, at the risk of repetition I might just recap very briefly on where I commenced. First of all, 1.1, I had taken the Commission to the nature of the application be directions for evidence to enable the Commission to assess the merits of recommendations that we seek pursuant to section 89B and section 170LW of the Act and clause 1403.06 of the dispute settlement procedure contained in the certified agreement.

PN278

Your Honour, 1.2 indicated that we saw the three stage process, the first of which would involve this application, the second would be a date if we're successful for a student evidence day and the third we'd suggest potentially on some other date thereafter submissions in support of the recommendations that we seek under LW. Your Honour, at 1.3 we set out briefly the effect, not the precise drafting but the effect of the recommendations that we would ultimately seek at .1.2(c), they being that interviews are required to be conducted with certain specified students, the names of which I will come to. Under 1303.36 of the EBA for the purposes of disciplinary process and proceedings against three members of academic staff were listed there.

PN279

The second recommendation is that the requirement for that interview process can be satisfied by the university's participation in the student evidence and the reason for trying to kill two birds with one stone at that point, your Honour, is that there has been considerable discussion around the need for protections for the students that informal processes within the university could not otherwise provide but which this Commission we assert can. The third recommendation was that any allegations of misconduct under the disciplinary process at 1303.39 would have to be assessed in light of the information yielded from the interviews with the students on that student evidence day.

PN280

Your Honour, we then moved on to a brief recap of the background to this matter and I might briefly recap the recap but not go through it given that we did get into a bit last week, but briefly, your Honour, I had handed up which is also part of the same exhibit a set of supporting materials and just by way of brief refreshment of the Commission's memory of what has been an extensive matter over a number of dates before the Commission, your Honour, I had included at tab 1 the original notification of a dispute and grievance by the NTEU to the university and that notification related to the 2000 and 2003 agreement and a number of clauses under it which are listed there, including 1303.36 relating to a requirement to interview certain persons who may be able to corroborate or refute allegations.

PN281

Your Honour, at tab 2 we then included material which was part of the dispute and grievance process between the parties before the dispute committee and that document your Honour may recall set out the fact that the union asserted concerns in relation to allegations against three members of academic staff, that being all three, and specifically in relation to the application of a disciplinary process at page 3 there with specific reference to the failure to interview relevant persons under 1303.36 and so I'm just grounding the scope of the dispute as it emerged through the dispute settlement process under the 2000 agreement, your Honour.

PN282

Your Honour, we then went to annexure 3 which was the notification of that same dispute, having gone through all the steps necessary under the 2000 agreement dispute settlement process to the Commission by the NTEU and again the actual notification asserted departure from a number of clauses of the EBA including 1303 regarding the disciplinary process. Your Honour, thereafter at tab 4 just repeating for convenience sake a document that included as part of conciliation and I acknowledge at this point these are documents the NTEU puts forward as its asserted position in relation to the matter, but your Honour, the NTEU raised concerns as to the application of the EBA and the confluence of clauses and a table at page 2 of the document at annexure 4, involving again issues involving all three members of academic staff.

PN283

The last page of tab 4 we provided in conciliation a brief chronology setting out the early history of the matter and, your Honour, last week I briefly took your Honour to the asserted positive of the NTEU that the university had in relation to the three members of academic staff not progressed disciplinary action against either Professor Croucher or Mr Selby but had proceeded past 1303.36 and to the point of 1303.39 allegations against Ms Lim and indeed as far as the preparation and sending to the deputy vice chancellor under 1303.49 of the relevant process in August last year of a report concerning Ms Lim's conduct. Your Honour
might - - -

PN284

THE SENIOR DEPUTY PRESIDENT: I might make clear that it is my understanding that as we sit here today the university's position is that it will take no further action in any of those disciplinary proceedings until the whistle blower proceedings have been completed.

PN285

MR HARMER: Yes, and that was our understanding of this issue as far back as last week.

PN286

THE SENIOR DEPUTY PRESIDENT: Well, it was in a letter.

PN287

MR HARMER: It was, your Honour, and I will come to that. There has been a letter from the university yesterday afternoon further revising that position.

PN288

THE SENIOR DEPUTY PRESIDENT: All right. I will let you run your case.

PN289

MR HARMER: No, you're right, your Honour, but I acknowledge that was the position of the university as of last week. Your Honour will recall that we had the attempt in conciliation before the Commission as currently constituted to set up a review process, a review process and then a re-listing of the matter recently leading up to today. Now, your Honour, at point 3 of our outline of submissions we come to some important issues relating to the Commission's source of jurisdiction to deal with this matter under the Act and, your Honour, it might be appropriate at this point that I do provide your Honour with copies of recent exchanges of correspondence.

PN290

Perhaps, your Honour, if I could first redraw your Honour's attention to the correspondence your Honour just referred to which is at tab 8 of the set of materials which was the letter seeking to re-list the matter before the Commission. Apologies for the false start. Your Honour, that letter of 9 September 2005 seeking to re-list the matter attached correspondence from the university dated
19 August 2005 and, your Honour, that set out the intention on the first page just in summary form to proceed with the assessment by Professor Moore under the Protected Disclosures Act and on the second page, about halfway down the page, your Honour, it's indicated:

PN291

In relation to the issues raised by (1), our client under the disciplinary procedures in relation to your client as set out in the letter from Professor Croucher dated 2 July 2004 -

PN292

And your Honour, that letter is included at tab 11 and I will just very briefly ask your Honour to go that letter which your Honour will see at tab 11, dated 2 July 2004, on the second page - I'm sorry, on the third page, your Honour, it has a heading Allegations of Misconduct and after referring to clause 1303.39 of the agreement, which obviously follows after 1303.36, lists a number of allegations accusing Ms Lim of, amongst other things, vexatiously accusing or harming others within the university.

PN293

So your Honour, what the letter at tab 8 at that stage seems to be referring to specifically was the steps under the 2000 enterprise agreement and the second point made within that letter of 19 August was that also Mr Selby's grievance under the 2000 agreement would be treated as an outstanding matter and would be investigated following the protected disclosures investigation and point 3 was that the parties were being provided with 14 days notice that the university proposed to progress the investigations of outstanding matters, that 14 days having lapsed, and so it seemed to us at that time, your Honour, that the university was indeed referring specifically matters progressed under the 2000 agreement and their intention to continue on with those specific matters, having specifically referred to the 2 July 1303.36 letter.

PN294

Now, your Honour, we following the proceedings last week, I guess in abundant caution, asked the university to clarify that it was talking about the 2000 agreement and clarify its position also in relation to the suggestion of way forward that we proposed in our outline which I will come to shortly, your Honour, and I might now, a bit later than I had already indicated I would, hand up a couple of letters, if the Commission pleases. The first is dated 7 October 2005 from our firm to the instructing solicitors for Mr Goot and the second response from Minter Ellison as solicitors for the university, dated yesterday, your Honour.

EXHIBIT #L2 LETTER TO MINTER ELLISON FROM HARMER'S WORKPLACE LAWYERS DATED 07/10/2005
EXHIBIT #L2 LETTER TO HARMER'S FROM MINTER ELLISON DATED 11/10/2005

PN295

MR HARMER: Thank you, your Honour. Your Honour, just first of all referring to L2 on the first page, we just sought an undertaking in relation to contact with the students which was the preferred aspect of the directions and on the second page, your Honour, under the heading Jurisdiction of the Commission, we had the end of the proceedings last week invited the university to contact us if they had any uncertainty as to what we were putting forward and in this correspondence we actually sought that they clarify whether they are referring to the 2000 agreement in relation to the applicable instrument for carrying forward various processes and the university's position as to accrued rights under the 2000 agreement and whether they have a position in relation to the proposed wage clause set out in 3.3 of our submissions which I will come to, your Honour, which was in effect a suggestion that we simply waive the requirements of the Act and treat the old notification as being renotified under the 2003 agreement and just carry on as it were.

PN296

Now, your Honour, the response received, not within the timetable requested but no point taken on that, but certainly received yesterday afternoon from the university is exhibit L3 and the confirmation in relation to contacting the students, which is appreciated is provided and then about point 5 on the page it's an indication that:

PN297

In relation to the jurisdictional issues you have raised we are instructed that -

PN298

And if I could just move through these, your Honour, they are, we believe, significant in the scheme of things. First, our client will submit to the Commission that the 2000 agreement ceased to be in operation by virtue of 170LX(2) on 9 February 2005 and it's not an applicable instrument in relation to any future disciplinary process. Secondly, that no disciplinary process has yet been instituted under the 2003 agreement. Thirdly, that the disclosures the subject of confidential exhibit M1(i) which is the preliminary report from Professor Moore are not related to either agreement.

PN299

Fourthly, that for the purposes of the current proceedings before the Commission under 170LW the university does not consider that the university, NTEU or Associate Professor Lim has any accrued rights under the 2000 or 2003 agreement. Fifthly, that the notification is a notification which the Commission has no jurisdiction, and sixthly, the university will propose a proposed way forward set out in point 3.3 of our outline of submissions. Now importantly, your Honour, it's in the indicated in the next paragraph:

PN300

We are further instructed that in light of the matters referred to above and in particular cessation of the operation of the 2000 agreement ...(reads)... will be brought under the 2003 agreement.

PN301

And it is then an indication that Professor Croucher because her involvement will not be involved in any future disciplinary process, because it was actually one of the other issues we had sought to progress under our original notification. So your Honour, as we read it at least and no doubt the university will elaborate on its own position, but as opposed to the situation that the investigation would be into the 2 July 2005 1303.39 allegations that were listed specifically under the 2000 agreement as we read it. That process to date including the report to the deputy vice chancellor has been treated as a nullity, your Honour, and there's to be a fresh ..... under the 2000 agreement - sorry, the 2003 agreement, which is, as I say, not what was actually read into the 19 August correspondence, but that may be a misunderstanding.

PN302

The other point I would make, your Honour, is that it seems that although it is recorded that Mr Selby's grievance would also be processed at some point in the future, on this rationale it would seem that it's been treated also as a nullity. I assume it's a matter for Mr Selby to fully address. Your Honour, that brings us to then the situation whereby assuming the application of the 2003 agreement for the moment, your Honour, if I could take your Honour to the disciplinary process under 1303 of the 2003 agreement.

PN303

THE SENIOR DEPUTY PRESIDENT: That agreement isn't it in any of the annexures, is it?

PN304

MR HARMER: No, we were referring to it last week, your Honour, and I don't seem to have a copy. I apologise, I didn't - - -

PN305

THE SENIOR DEPUTY PRESIDENT: That's perfectly - - -

PN306

MR HARMER: We can provide a copy, your Honour.

PN307

THE SENIOR DEPUTY PRESIDENT: Look, it might be quicker.

PN308

MR HARMER: Your Honour, there's a folder with your Honour's decision concerning certification dated 11 February 2005 and there's a copy of the agreement - - -

PN309

THE SENIOR DEPUTY PRESIDENT: I see. Yes, Mr Harmer.

PN310

MR HARMER: Thank you, your Honour. Now, your Honour, if I could just take you to close 1303 of the disciplinary procedures under the 2003 agreement.

PN311

THE SENIOR DEPUTY PRESIDENT: The 2003 agreement is the one you just handed up.

PN312

MR HARMER: That's correct.

PN313

THE SENIOR DEPUTY PRESIDENT: It starts in 2003 and runs to 2006.

PN314

MR HARMER: That's correct, your Honour, and certified 11 February 2005.

PN315

THE SENIOR DEPUTY PRESIDENT: Right. Yes, 1303.06 - well, what subparagraph do you want me to look at?

PN316

MR HARMER: Perhaps if we start at the beginning of 1303.01, your Honour, and just seek to walk through some aspects of the disciplinary procedures.

PN317

THE SENIOR DEPUTY PRESIDENT: Right.

PN318

MR HARMER: Your Honour, the disciplinary procedure, 13.03, consists of a number of segments and the 1303.03 it's indicated there's requirements for effective, fair and open procedures and over the page at 1303.04 it's indicated that all decisions to discipline or terminate the employment of a staff member must be in accordance with this agreement. Your Honour, I just indicate that by way of preliminary issue because it seems to take the view, this agreement, that it's the processes that follow, including processes of investigation that are to be followed for compliance with this agreement, not other things such as protected disclosures which serve purposes under other legislation.

PN319

At 1303.06, the disciplinary procedures include, amongst other things, identification and investigation of misconduct. There's then at 1303.09 requirements for procedural fairness. Thereafter, your Honour, the process goes on to talk about performance, commencing at 1303.14 and it's not until 1303.29 that misconduct and serious misconduct is addressed. 1303.29 through to .32 seems to provide definitions of misconduct and serious misconduct and it's not until 1303.34 that one actually starts to get into the process to be followed. 1303.34 indicates that:

PN320

When it appears that a staff member has engaged in misconduct or serious misconduct the head must take action to address ...(reads)... that is practicable.

PN321

1303.35 talks about every effort being required to be made to resolve it at the local level and 1303.36 importantly says:

PN322

If a supervisor or head observes or receives information suggesting that misconduct or serious misconduct has occurred the head must record the allegation in writing.

PN323

The next sentence relating to interviewing the person who made the allegation and then it follows:

PN324

And persons thought to be able to corroborate or refute the allegation.

PN325

Your Honour will see that that's a requirement before the allegations are to be set out 1303.39. So your Honour, we have a disciplinary process which is said to be closed in terms of these are the procedures to be followed including to investigate. There must be action when information is received. That doesn't seem to be qualified. When it appears that there is misconduct or serious misconduct there must be action and then there is specific requirements about the initial review by way of interview of the person making the allegation and persons thought to be able to corroborate or refute the allegation.

PN326

Now, your Honour, in relation to this enterprise bargaining agreement 2003 which came into effect on 11 February 2005 - I'm sorry, 9 February 2005, your Honour. It's now October 2005 and we would say in respect of information coming to the attention of the relevant heads of department in relation to Professor Croucher,
Mr Selby and it would seem now by way of deemed 912;05:50) from the university, Ms Lim, there's been no action taken over a period of about nine months, contrary to the requirement of the exclusive code if you like by way of disciplinary process and investigation.

PN327

Certainly, your Honour, in relation to the requirement to interview persons able to corroborate or refute allegations against all three staff members, there's been no progress even under the nine months of this agreement, leave aside the extensive delay under the old agreement. So your Honour, when we come therefore to the jurisdictional issue, back to the position relating to correspondence yesterday, your Honour, at 3.2 we indicated there's a strong argument of accrued rights under the old EBA and I will come to the Abetts and how we think it's distinguishable. But we acknowledge that by virtue at least of the correspondence yesterday as far as Ms Lim is concerned there is no position of reliance on the steps taken without 1303.36.

PN328

So your Honour, what we say in relation to that is that whilst the dispute that that's necessarily the legal position that the university is capable of adopting as a matter of law, we don't, apart from reserving our rights to the past failure to comply with the agreement for the purposes of section 178 or otherwise, your Honour, we don't see the need to press that issue in light of that correspondence. Your Honour, that then brings us - and I must say and it may be through our misunderstanding, as I say, a change in what we thought was the position, your Honour, we next raised at 3.3 a practical way forward. We had apprehended, particularly through the correspondence I took your Honour to at tab 8, that there was a purport that there was a continue with continuity if you like of processes that were to be picked up under the 2000 agreement because they were mirrored in the new agreement.

PN329

Indeed, your Honour, if one takes the examples of the disciplinary process we have set out a comparative table at annexure 7 of the materials indicating in our respectful submission that there's no material change to the steps that are to be gone through and to the extent there's any change we've noted saying but it's substantially the same procedure. Your Honour, the grievance or dispute settlement procedure under 1403.06 of the agreement is replicated word for word. There's no change at all indeed at any stage of any step at all of the entire dispute settlement procedure of one agreement to the other.

PN330

Your Honour, in light of potential extensive argument the parties could indulge into in relation to accrued rights under the old agreement and the impact of 170LX and LW and Abetts case, we raise the practical suggestion that treat the notification that's been provided through waiving the rules and we've set out the relevant sections of the Act and the outline and the relevant accruals, that permit the Commission to waive compliance with formal notification requirements under 111(1)(q) and (t) and of course rule 6 which enables the Commission to waive compliance with any rules and we have listed there clause 66 and form R47 which are the formal requirements of bringing an LW matter before the Commission, and we asserted in the outline, your Honour, that it would be consistent with the statutory encouragement for this Commission under 110(2)(c) and other sections of the Act that the Commission focus on equity, good conscience, substantial merits, focus on substance over form, move speedily, avoid legal technicality.

PN331

That we simply moved to the situation whereby any suggested 170LX impact on the old notification and the Commission's jurisdiction under an agreement which has arguably been removed by the new one, that that be amended if you like virtue of treating the notification and now some days notice that we've provided of this intent as being notified afresh for the purposes of the new agreement, in circumstances, your Honour, whereby, as I say, as a matter of substance as opposed to form the Commission is empowered under 1403.06 of a dispute settlement process to make recommendations where certain previous steps have not satisfied or resolved the dispute.

PN332

What your Honour will observe is that in relation to the now nine month delay in taking any action at all as required by this agreement and the report, your Honour, to further delay in favour of a narrower process managed by the university for other purposes, the disputation over that delay and failure to take action in compliance with this agreement or proper application of this agreement, all of the steps required prior to this Commission moving to arbitration, your Honour, have been satisfied in substance and, your Honour, in circumstances where the dispute settlement procedure, the disciplinary procedure under each of the two agreements are essentially the same, your Honour, we say it makes abundant good sense for the Commission to proceed under the new agreement and the jurisdiction clearly existing under section 89B and section 170LW of the Act and 1403.06 of the new agreement, and to deal with the substance of this matter and that is by dealing with the recommendations we seek.

PN333

And the first step towards that, your Honour, is to get evidence which we say will satisfy the Commission that there are persons who can corroborate or refute the allegations for the purposes of 1403.36, that they have not been interviewed now for many, many months, nine months under the new and in excess of 12 months under the old since the university got awareness of problems and, your Honour, we say that that's a sound jurisdictional foundation on which to proceed. Now, in relation, your Honour, to the Abetts case which is at tab 5, as your Honour is possibly aware, that was a decision of a Full Bench of the Commission on appeal which dealt with the issue of the impact of section 170LX(2) on the Commission's jurisdiction to resolve by private arbitration under 89B and 170LW and applicable certified agreement certain issues.

PN334

Your Honour, there's reference to the argument put forward by each of the parties there. The Full Bench itself comes to the conclusion commencing at around paragraph 49, your Honour that:

PN335

A corollary of the conclusions about the effect of sections 170LW and LX of the Act is that if a certified agreement empowering the Commission ...(reads)... private arbitration power in the agreement.

PN336

There's then discussion of specific provisions of the two agreements there and, your Honour, I particularly draw attention to clause 6.3 which was a provision indicating that the 2000 agreement in that matter applied to the complete exclusion of the 2001 agreement, a clause which you won't find replicated here, your Honour. Certainly clause 6.4 which would provides that the 2000 agreement replace the 2001 agreement. Here the 2003 agreement purposes to supersede the 2000 agreement. Your Honour, importantly in relation to the specific issue in dispute, the relevant clause of the 2001 agreement that was the subject of the dispute was not replicated at all in the later agreement, so there is no continuity if you like.

PN337

Against that background, when it came to the issue of accrued rights your Honour will observe at the end of paragraph 54 that the Full Bench took the view that certain factors displaced any prima facie preservation of such a right or accrued right, and there's reference there to the High Court decision which we have set out or included at tab 6, which is the Attorney General for Queensland v The Commission. Your Honour, I would just ask you to note that the matters that found that rejection if you like or the prima facie preservation of the accrued right, include certainly the impact of 170LX but also the above mentioned provisions of the agreement and the absence from the 2003 agreement of a clause consistent with the very agreement at the centre of the dispute.

PN338

Now, we say, your Honour, that there's clear distinctions here. As I say, there's no clause corresponding to clause 6.3 which it was an express indication that the 2003 agreement there operated to the complete exclusion of the previous agreement. Here there is merely, your Honour, at clause 3.01 and 05 of the agreement an indication that the 2003 Macquarie University Agreement supersedes the 2000 agreement. It's signed on any purported operation to the exclusion of, et cetera. Your Honour, unlike that dispute where there was no clause corresponding at all in the new agreement, here there's pretty much complete continuity in the substantive sense.

PN339

Now, your Honour, for that reason we would say that even in relation to the question of accrued rights under the 2000 agreement this decision is capable of being distinguished. But what we say, your Honour, is in light of the position conveyed in the correspondence yesterday we don't have to press that position. But what we do say, your Honour, is that even in light of the position conveyed in the correspondence yesterday, this Commission should waive the requirements for notification of a dispute for the purposes of 170LW, under the sections and rules that we've outlined and deal with the fact, your Honour, that even under the 2003 agreement there has been nine months delay.

PN340

All of the substantive prerequisites to this Commission arbitrating under the dispute settlement process have been satisfied. That's the substance of the matter. The dispute in substance is the exact same dispute and, your Honour, what we say is that it would be the ultimate victory for form over substance for there to be any purport that the parties to this matter had to go back and now replicate under the 2003 agreement all the steps in the dispute settlement process they have already taken in relation to the substantive dispute and the exact same steps. It would be, with great respect, ridiculous.

PN341

It would also, your Honour, in our respectful submission be inconsistent with industrial custom and practice generally and specifically on my instructions from the NTEU in this industry. Thirdly what we say, your Honour, is that the university should be estopped from now purporting that in some way after nine months everything starts again in circumstances where over the last nine months we have been continuing with a review process in relation to the very allegations and steps and procedures and indeed as part of the conciliation under the dispute settlement process under the 2000 agreement, where even in their correspondence up to the re-listing of this matter in our respectful submission the university was conveying an intention to continue to rely on the steps previously taken.

PN342

As I say, your Honour, and no doubt the university can clarify this in its submissions, is the position that the university puts forward that as at 9 February 2005 every counselling, warning, any step at all taken under the disciplinary process under the 2000 agreement immediately ceased and would have to be restarted. Is that what the university has done throughout its entire operations? It seems to be what they're now putting forward. Your Honour, in our respectful submission it's contrary to general principles of interpretation that absence some express provision in circumstances of succeeding agreements, renewed agreements if you like, or rollover agreements, that there would be an assumption that everything would stop and have to start again on certification of a new agreement.

PN343

It's not our understanding of what occurs in relation to any other agreement in fact or as a matter of practice. Your Honour, just in terms of the notion of even the term used in the relevant clause of the agreement of supersede, if I can just take briefly take your Honour to that phrase as utilised in Macquarie University in terms of one gauge and what is meant by the parties in that context to the extent it's of any utility at all.

PN344

THE SENIOR DEPUTY PRESIDENT: I will mark the extract from the - - -

PN345

MR HARMER: Sorry, your Honour, it's from the Macquarie Dictionary.

PN346

THE SENIOR DEPUTY PRESIDENT: Well, I would hope so.

EXHIBIT #L4 EXTRACT FROM THE MACQUARIE DICTIONARY

PN347

MR HARMER: Sorry, your Honour, I should have given a cover page with that. At about point 8 on the left hand column, your Honour, there's a reference to the phrase supersede which is the phrase utilised, as I say, in 3.01.05. That's a reference to replacing power authority effectiveness and importantly, as by another person or thing. There's then:

PN348

Set aside, void, useless or obsolete but now usually in favour of something mentioned.

PN349

And then:

PN350

To displace in office or promotion.

PN351

And importantly at (4):

PN352

To succeed to the position, function, office.

PN353

Et cetera, supplant. Your Honour, what we maintain that is conveyed by that meaning is stepping into the place of and becoming the presiding authority but not in a way that causes everything to start again but stepping into the position and carrying on. As I say, your Honour, we maintain that that's the standard industrial approach. So your Honour, in terms of the jurisdictional position we put forward as a practical matter at 3.3, just to confirm, your Honour, what we say is that if your Honour accepts as conveyed last week that the dispute previously notified under the 2000 agreement should now be treated as notified under the 2000 agreement - 2003 agreement, sorry, and moves to the right of this Commission pursuant to 89B, 170LW and clause 1403.06 to arbitrate to resolve through recommendation.

PN354

Your Honour should, consistent with the requirement for regard to substance rather than form and avoidance of legal technicality and cutting to the substantial merits of the matter, find jurisdiction to move forward and make recommendations about the application of this agreement and the exclusive code dealing with disciplinary processes and not after nine months under even this agreement, in our respectful submission, your Honour, acquiescing further delay by reference to a process, which I will come to, lacks the protections that we seek for the students and indeed lacks compliance with the very disciplinary process under which that action must be taken.

PN355

Your Honour, that's what we say is the appropriate foundation for jurisdiction for what we now seek by way of a student evidence day and if your Honour will bear with me I will just briefly go to the merits behind the requirement for such a day, appreciating that your Honour has had a previous hearing on this very issue so I will try and be as brief as I can. Your Honour, at point 4 on page 3 of the outline there's a heading there, The Need For A Student Evidence Day, and I have taken your Honour to the relevant enterprise bargaining clauses that we say will be fulfilled by way of application through the recommendations we seek and at 4.2 I again repeat that not only will your Honour's recommendation compel or properly apply the agreement but it will also fulfil the requirement of an interview in a way which is protective to the students.

PN356

At 4.3, your Honour, I very briefly go to the history of this attempt to obtain a student evidence day and at tab 9 there's the transcript, your Honour, of the hearing that your Honour conducted on 3 February 2005 in support of a student evidence day. Your Honour, I don't seek to repeat the submissions we made on that occasion but just to briefly remind your Honour that at paragraph number 122 your Honour briefly summarised certainly the arguments put forward and at paragraph number 123 noted that the NTEU had pointed to the importance of the evidence to careers and academic focus, etcetera. But your Honour then went on to say that given the review panel process that had been set up your Honour would prefer to defer, in your Honour's wisdom and we don't take any issue with the decision so made, that the head of the review panel would make that decision.

PN357

But your Honour did indicate that the Commission remained available to provide a forum if you like and so at paragraph number 126 your Honour indicated:

PN358

I make it plain that if a panel has difficulties in this insofar as attendance by witnesses are concerned the Commission stands ready to issue summonses as its purpose of this observation, et cetera.

PN359

So your Honour referred at that stage to the review panel process and, your Honour, what then occurred and as your Honour has been informed by way of report back, for various reasons the review panel process went into conciliation but some of the obstacles were seen by the review panel and as observed by
Mr McIntyre and I stand to be corrected if there's any inaccuracy in this, but as previously reported, your Honour, Mr McIntyre was concerned at the panel's inability to compel evidence under oath to provide protection from the defamation proceedings in circumstances where this very dispute started off with threats and defamation proceedings, et cetera.

PN360

Your Honour, that was obviously part and parcel of some jurisdictional concern that the review panel had and hence there is an attempt to further conciliation. So that's the history and we don't take any issue with the fact that that's occurred, your Honour, but we say that now the various processes having failed it's time to move to a protective review of the facts of this matter so that the proper application of the agreement can be assessed by the Commission.

PN361

Now, your Honour, at 4.4 and again I don't seek to go through it in great detail, we refer to the content and relevance of the student evidence and at annexure 10 we have included again a summary of the potential content of certain of the evidence of the students which, your Honour, goes to allegations of raising issues with the dean, allegations of misconduct by Mr Selby raised with the dean, threats of intimidation of the students by Mr Selby in relation to that material and indeed the conveyance of information concerning that material to Ms Lim who then raised it herself with the dean and not getting a response, chose to send the email that brought certain consequences. If the Commission pleases, I am happy to go to that in detail but that's the gist of - - -

PN362

THE SENIOR DEPUTY PRESIDENT: I think that's enough for me.

PN363

MR HARMER: Yes, sorry, your Honour. Your Honour, at 4.4 we also mentioned a table concerning the allegations that were made against Ms Lim in the July 2004 correspondence and I have already taken your Honour to the letter of 2 July at tab 11 and I would seek after reminding your Honour that that's the letter that sets out the extensive allegations against Ms Lim under 1303.39 of the old agreement. At tab 12, your Honour, there's an analysis of each of those allegations as were then put forward against what the students can do within the meaning of the agreement to either corroborate or refute the allegations.

PN364

Your Honour, just to take example number 2, that in sending an email Ms Lim had vexatiously accused Mr Selby of improper conduct. In the right hand column in the third dot point beside that entry, your Honour, we set out the Macquarie Dictionary version of the word vexatious which includes at point 2, your Honour:

PN365

Instituted without sufficient grounds and serving only to cause annoyance.

PN366

Your Honour, of course the evidence of the students is vital to establishing the grounds on which Ms Lim saw it as being necessary to raise their concerns in the way that she did and over the page, your Honour, will see in the next column or grouping 3 through to 7 this word vexatiously is used in relation to Ms Lim's conduct, that is, without any grounds she did certain things, harming, Mr Selby, the students themselves, the division of law, the university and the moot competition.

PN367

Nothing could be more important to either corroborating or refuting those allegations than interviewing the students who were the very subject of the relevant conduct about which Ms Lim complained. So your Honour, again without going into any more detail at this stage, that's what the union asserts would be the effect and relevance of the student evidence. Your Honour, again just very briefly because this is summarising matters we put in a previous hearing, at 4.5 we talk about the benefits of the Commission allowing that interview as required under the agreement to be met by a student evidence day before this Commission.

PN368

The first benefit is compellability, that is, that we have a number of students, some have graduated but may have aspirations in academia as tutors or otherwise, your Honour. Some have not graduated and still are therefore under the auspices of the university and in circumstances of apprehension about consequences of giving, for example, evidence against their own dean or one of their lecturers in Mr Selby, compulsion by summons is an important benefit that isn't available to the university or a review process, or indeed the protected disclosure process.

PN369

At (b), your Honour, independence and your Honour might recall that we talked about the fact that if the Commission brings along the students rather than one side or the other of the three members of academic staff there's this perception of independence and they can all come along without any preconceived notions as to where they stand potentially. The third one is protection from victimisation. The fourth one relates to protection from defamation proceedings and again, your Honour, I just note that this matter started with threats of defamation proceedings, Mr Selby against Ms Lim over these very issues, and your Honour might recall that there were even preliminary orders taken out in the district court on that very issue.

PN370

The next issue, your Honour, is that the evidence will be provided under oath where of course the truth can finally be faced and the final point we make, your Honour, is that time is of the essence and compared to the progress or lack of it under the agreement to date with these events occurring in late 03/early 04, the Commission holds the opportunity to progress this at some rapidity compared to the progress of the parties under the agreement.

PN371

Now, what I say in relation to that, your Honour, is that if you take the situation of Ms Lim and any suggestion that look, don't worry, whilst we rushed through allegations all the way up to the deputy vice chancellor and we're now prepared to step back from that and you wait for this protected disclosure process, notwithstanding that as I will come to it's far more defective in terms of protections and guarantees of any reliable outcome, but leave this set of allegations hanging over your head with all the stress that it's carried to date for a longer period of time and the uncertainty that carries in you, for example, applying for roles elsewhere or getting on with your academic career, or securing book contracts or other things which have been lost by Ms Lim throughout the course of this. She has been ..... by this matter, your Honour.

PN372

Equally with Mr Selby, the union as acting for Mr Selby can talk for him but he has a right to get this out of the way, not to have it after - well, it looks like it's going to go beyond two years with the allegations still hanging over everyone's head. So your Honour, apart from that we then come to the - - -

PN373

THE SENIOR DEPUTY PRESIDENT: I am right in my belief that it was
Ms Lim herself who began the protected disclosure action/

PN374

MR HARMER: Absolutely, your Honour, yes, and began those protected disclosures for the purposes of that protected disclosure legislation and independent of the proceedings here, your Honour. Now, your Honour, at 4.6 what we say is that apart from the fact that this agreement makes it clear that there's an exclusive code or investigation of these disciplinary for purposes of this agreement, that the protected disclosure process itself cannot offer the protections that I've just listed as emanating from this Commission and at tab 14, your Honour, we have just summarised, certainly as the union asserts, some of the contrasts and I will only go through certain of them, but protected disclosures under the Act must be voluntary.

PN375

There is no compulsion of the kind by summons that is available to the Commission which is the first point. Privileged against self incrimination is not available. The extended protected only applies to the protected disclosure and there is some doubt as to whether the protected disclosure legislation would even be available to the students by way of protection for them as witnesses in the processes if you like. So your Honour, without exhaustively pressing that comparison, notwithstanding that there's a strong right under the agreement to have the matter progressed under the agreement and I am just reminded that the protected disclosure process under the Act is in fact required to be completed within six months, your Honour, notwithstanding that there are benefits that the NTEU sees in the agreement being applied, leave aside that is a matter of agreement with the university that's what should occur.

PN376

So your Honour, what we seek grounded on the jurisdiction we've referred to by way of our application, the waiver of the requirements and by virtue of the merit behind what we have just outlined, are directions that a date be fixed for a student evidence day and we would seek that at least that direction be achieved today, your Honour. For the reasons we have gone through about compellability and independence, your Honour, we do seek that summonses issued for the relevant student attendance and for the purposes of protecting the students from any interference if you like we're suggesting that the Commission will convey a statement to the students as to the purpose behind the student evidence day rather than any one party and that the parties themselves would agree that there would be no contact pending that student evidence day with the students so summonsed.

PN377

Your Honour, in terms of timing of those summonses and details we're obviously happy to stand in the hands of the Commission in relation to that. As I say, what we press strongly today is that a date to be set or at least a direction that such a day be held. We're happy to discuss off record timetabling if we reach that point. Your Honour, in terms of the identity of the students they're set out at tab 13 and, your Honour, they essentially consistent of students from two moot teams and certain students who are playing a coaching role in relation to the other moot team.

PN378

So your Honour, the first six witnesses relate, as I understand it, to the VIS moot team which is the moot team which was allegedly provided with the cheating material from Mr Selby and certain members of that team feature in tab 10 in terms of their evidence about that conduct. Your Honour, the VIS moot team shared a room with the Jessup moot team and there was discussion about
Mr Selby's conduct between the two teams and your Honour will observe from tab 10 the table that certain students are prepared to give evidence that, for example, they became aware of what was occurring, took the view that it was cheating, had discussions with the other moot team about it, et cetera.

PN379

For example, witness D in table 10 was coaching the Macquarie Jessup moot team, so she was a senior student coaching the other team, your Honour, and of course the members of that team sharing the room were involved and aware of and indeed the cheating material allegedly provided by Mr Selby, so that's the relevance of the two teams. But your Honour, rest assured, the predominant evidence are from the five students we have referred to first as we understand it at least. It would be more ancillary corroborative evidence that will emerge from the other students if the Commission were so minded to bring them together and we have set out at table 13 those students who have graduated and those who remain students, which is certainly some members of the Jessup moot team.

PN380

So your Honour, that concludes the submissions we seek to make in relation to that step of the student evidence day and unless the Commission has any questions?

PN381

THE SENIOR DEPUTY PRESIDENT: No, I don't, Mr Harmer.

PN382

MR HARMER: May ait please the Commissioner.

PN383

THE SENIOR DEPUTY PRESIDENT: Mr Goot.

PN384

MR GOOT: Thank you, your Honour. If I can take a leaf out of Mr Harmer's book and hand up an outline of submissions to assist your Honour.

EXHIBIT #M2 OUTLINE OF SUBMISSIONS ON BEHALF OF THE UNIVERSITY

PN385

MR GOOT: If your Honour pleases. Now, your Honour, can we start at the outset by summarising the relevant background and I know your Honour is familiar with some if not all of it, but this application needs to be understood in the context of the particular background and we have set it out in paragraph 1.

PN386

THE SENIOR DEPUTY PRESIDENT: yes.

PN387

MR GOOT: April 2004 is the moot competition in Vienna, a team or teams from Macquarie University coached by Mr Selby. On 3 May 2004 an email is sent under the name of Frank Smith. That email can be found at tab 11 of exhibit L1. Your Honour will recall that tab 11 is an allegation made by the university against Associate Professor Lim and I'm sure she won't mind if I refer to her as Ms Lim from hereon in, I hope she won't. Your Honour, if you go beyond the letter which is I think a three page letter signed by Professor Rosalyn Croucher you will come to a photocopy of an email. Does your Honour have it?

PN388

THE SENIOR DEPUTY PRESIDENT: Yes.

PN389

MR GOOT: It's from Frank Smith.

PN390

THE SENIOR DEPUTY PRESIDENT: Yes.

PN391

MR GOOT: And your Honour will see it's been sent to a number of people and it's sufficient for our purposes that those people are within and outside the university and it says:

PN392

This is to inform you that Mr John Selby, an arbitrator for the 2004 ...(reads)... in the competition as arbitrator and as coach.

PN393

Now, the gravamen of this complaint is that he breached the competition rules by making copies of some 10 to 20 memoranda which he was assessing and then distributing them to the Macquarie University team and that allegation hadn't previously been raised in any way with any representative of the university by any students or any other person. Now, your Honour will see that has been sent by Frank Smith, [e-mail]. Because the email account was closed almost immediately after the email had been sent the sender couldn't be identified by ordinary means.

PN394

Through a process of preliminary discovery and proceedings instituted in the district court by Selby and Mr Harmer refers to those as the defamation proceedings, but essentially they were preliminary discovery before proceedings are commenced to ascertain the name of a potential defendant. A perfectly legitimate course to take especially when someone has gone to such trouble to disguise the fact that they are the author. It was discovered that the Smith email had been sent from an email accounted owned by the brother of Ms Lim and Lim subsequently admitted to Professor Croucher that she had sent the Smith email. She is the author of this document.

PN395

On 21 June the disciplinary procedure was commenced by the university against Ms Lim pursuant to the relevant provisions of the old enterprise agreement and the letter which your Honour sees at tab 11 was sent on 2 July. As your Honour knows, that process hasn't been finalised and that is the case for reasons associated with procedures that have taken place and which I will address more precisely when I come to deal with the question of delay upon which Mr Harmer places such reliance.

PN396

Your Honour has seen from exhibit L3 that the university takes the view that a proper construction, and this is not form over substance, but a proper construction of the old agreement and the new agreement means that in the absence of any transitional provisions such as found in a number of university agreements, especially in relation to part heard disciplinary procedures and I will try over the luncheon adjournment and get some of those agreements to provide to your Honour so you can see how other institutes have dealt with this issue, that in the absence of such transitional provisions the new agreement replaces the old agreement and in effect any disciplinary process has to be started again under the new agreement.

PN397

That's the view we take and it's a question, and this is a practical issue, your Honour, it's a question of whether if there is to be a disciplinary process and that's a matter for a decision maker at the university and we have indicated it won't be Professor Croucher without any admissions as to - but given that she's the subject of a protected disclosure, your Honour, I don't need to say anything more. But if that is to take place it will either take place before or after the investigation is completed in relation to protected disclosures and, your Honour, I will tell you and it's in our submissions that the Honourable Terrence Cole QC has been appointed to conduct that investigation and he will commence his investigation on Monday, 17 October, that's next Monday.

PN398

So whatever else can be said about delay, and I don't want to go into it and I will deal with it shortly, the matter is being dealt with - or the protected disclosures are certainly now being dealt with alacrity and no-one can gain say the appropriateness of the person conducting the investigation or suggest that he's going to take his time over it or deal with it other than in a robust fashion. Returning to the submission, in subparagraph (f) Professor Croucher provided
Ms Lim with five opportunities to be interviewed about the allegations. She chose to reject such opportunity, refused to meet with Professor Croucher, yet
Mr Harmer talks about delay and stress that she has experienced.

PN399

On 20 August, and this is very important, 2004, Ms Lim made a number of complaints alleged to be protected disclosures about Selby and Croucher and she chose how to make those complaints. She chose to make them protected disclosures. She chose to adopt a process that was not recognised by the enterprise agreement. It was open to her admittedly. She has alleged in the protected disclosures certain things against Selby and Croucher which are set out in subparagraph (g) and go well beyond, your Honour, the gravamen of her complaint in the Smith email, and that's clear just from the summary and your Honour will see in exhibit, I think it was M11 but it's the confidential exhibit M1(i) I think it was, that was tendered on 6 October and which is also the signed copy of which is annexed to L3, that the various allegations are set out one by one in short form.

PN400

Your Honour will see that they go well beyond what the Lim, the Frank Smith allegation. As we note in (h), that's been dealt with by the Honourable Terrence Cole and is proceeding. No disciplinary procedure under the enterprise agreement or any enterprise agreement has been commenced against Professor Croucher. That's not to say that at some point in time a procedure won't be commenced against Professor Croucher and your Honour knows that the Cole report if it discloses misconduct will be something - will be an event which would, depending on the terms of the report, trigger the disciplinary procedures under the new enterprise agreement.

PN401

It will, to use the words of the enterprise agreement, there will appear that a staff has engaged in misconduct. So that any anxiety or apprehension that a disciplinary procedure against Professor Croucher in relation to the matters the subject of the protected disclosure complaints that that will never amount to anything in terms of disciplinary procedure, there is no basis for such apprehension. The same can be said, your Honour, in relation to the allegations of harassment in particular and pressuring students to withhold information made in the protected disclosure against Selby.

PN402

Now, Selby has been dealt with already by Croucher, that's dealt with in subparagraph (j) on page 2, in 2004 in terms of the distribution of the memorandum to students referred to in 1(b) which was the extract from the Frank Smith email, making copies of some 10 to 20 memoranda which he was assessing and then distributing then to the MU moot trial team - the mock trial team, and that's been resolved by Croucher in terms of the 1303.35 of the old EA. Now, as we note in (k), clause 1303.04 and I think Mr Harmer took you to it, he did:

PN403

All decisions to discipline or terminate the employment of a staff member must be in accordance with this agreement.

PN404

Represents a code. It requires the MU to follow the procedure as a precondition of taking disciplinary action but doesn't impose a positive obligation on Macquarie University to prosecute every allegation of misconduct, otherwise it would be unworkable. That is not to say that if something arises out of a protected disclosure process it won't be dealt with, but the university is faced with a delicate choice between running things simultaneously as it were in tandem or waiting for the wider to be dealt to see what can be addressed as a result of that in terms of disciplinary procedures.

PN405

THE SENIOR DEPUTY PRESIDENT: I take it there's no dispute about (k), is there?

PN406

MR GOOT: No, there's no dispute. It's common ground.

PN407

THE SENIOR DEPUTY PRESIDENT: Common ground.

PN408

MR GOOT: It becomes very important in our submission in terms of the application here and the effect of it attempting to graft on to the process and procedures in 1303, additional processes such as taking evidence on oath and the like and I will come to that when I deal with the merits of the application. But on 1 November there was the notification and Mr Harmer has taken you to it. The notification of all the above matters occurred under the old EA, and as we know, from 9 February 2005 the old EA was replaced by the new EA.

PN409

Now, jurisdiction, firstly we say the notification seeks to activate section 170LW in respect of an enterprise agreement, the old EA which has ceased to be in operation by virtue of section 170LX(2). There is no certified agreement concerning the application of which there is any dispute and we rely on clause 3.0105 I think it is of the new agreement which Mr Harmer took your Honour to, the word supersedes, and we also rely on 3.701, no further claims, et cetera. Now, supersedes means what it says and it means that it replaces and that's exactly what the Macquarie Dictionary says, to replace in effectiveness.

PN410

Well, I'm not sure what the debate is in terms of supersession. But Mr Harmer asserts that he is instructed that it's standard industrial approach in New South Wales within the tertiary education sector for these things to - for processes, especially disciplinary procedures commenced under an earlier enterprise agreement to continue under a new enterprise agreement. We say that is not standard industrial approach. We will try and bring forward enterprise agreements for other tertiary institutions including the University of New South Wales which expressly provide that a disciplinary process started under the old agreement will continue and there is no such provision here.

PN411

It follows, and I don't need to take your Honour - well, I will take your Honour to Abetts. It follows that there is no jurisdiction because there is nothing upon which section 170LW can operate and the notification of course is in respect of the earlier enterprise agreement. Abbott's case which is at tab 4 I think - 5, sorry, and I am obliged to Mr Harmer for providing it, the conclusion in fact starts at the foot of - just after paragraph 38 and dealt with the private arbitration case in the High Court.

PN412

Then at 49, the passage that Mr Harmer read, the corollary, and 50, very important, from 20 August 2003, therefore when the 2001 agreement ceased to operate because its nominal expiry date of 28 October had passed and it was replaced by the 2003 agreement, the Commission no longer had jurisdiction to exercise the private arbitration power under clause 65 of the 2001 agreement and that's the statement of principle and they go on to not qualify but justify that in relation to particular facts.

PN413

My learned friend takes comfort from the fact that in the Abbott's case clause 6.3 existed and clause 6.4 existed. Well, our 6.4 is no different to their 6.4, it uses supersedes rather than replaces but that means the same thing. Clause 6.3 doesn't take it any further because replaces means replaces and in the absence of an ability to add anything to it, which is clause 3.0701, the agreement operates to the exclusion of the earlier agreement. The different terminology in the later agreement in Abbott's case is not the reason for the Full Bench saying that the earlier agreement doesn't apply. It's an additional consideration but it doesn't detract from the conclusion in paragraph 50.

PN414

The reference to the High Court decision in Attorney General and Queensland takes the matter no further except in this sense, that your Honour will recall that in Attorney General and Queensland the issue was whether disputes in respect of which conciliation had occurred under section 140 of the old Act but where arbitration had yet to occur and where there was an amendment as a result of which section 111AAA came into force, whether the unions had a right having regard to section 8 of the Acts Interpretation Act, to have an accrued right in the circumstances and the right was to have their disputes arbitrated in accordance with section 104 of the 1988 Act and the High Court said no.

PN415

The High Court said no for a variety of reasons, including that a right, an accrued right for the purpose of section 8 of the Acts Interpretation Act did not include the right to have a dispute arbitrated. Your Honour, it's paragraph 39 through to 50 of the High Court decision and your Honour is familiar with it.

PN416

THE SENIOR DEPUTY PRESIDENT: Certainly you needn't take me to it, I have for all my pains on more than one occasion had to wander around in a stygian forest accrued rights under the industrial legislation. I think it might be an appropriate time.

PN417

MR GOOT: Yes, thank you, your Honour.

PN418

THE SENIOR DEPUTY PRESIDENT: I adjourn until 2 pm.

<LUNCHEON ADJOURNMENT [1.03PM]
<RESUMED [2.07PM]

PN419

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Goot.

PN420

MR GOOT: Thank you, your Honour. Just before the adjournment I had dealt with paragraph 2.1 of the outline and I had referred to other agreements in the tertiary education sector and I will have one to hand up shortly but not immediately. In 2.2 we say that alternatively the orders sought, namely, that directions be made fixing a date for student evidence and for summons be issued to students. Neither of those orders relate to or attempt to resolve any matter which is the subject of the notification or could be the subject of a section 170LW notification.

PN421

This is so because firstly, broadly and simply speaking the subject of the section 170LW dispute is the manner in which the disciplinary procedure has been conducted against Lim, that is, whether it's been conducted in accordance with the enterprise agreement and particularly whether the actual steps taken against Lim have been accordance with the old EBA and whether the failure to take disciplinary procedures against Selby and Croucher is contrary to the old enterprise agreement and that's especially the case in circumstances where there is extant the protected disclosure complaints.

PN422

So that's what the complaint is, and secondly, although the section 170 recommendation might be said to relate to the dispute - sorry, I withdraw that. Although the section 170LW recommendation might be said to relate to this dispute, we'd say there is no jurisdiction, the student evidence day directions don't. That is, the students can have nothing to say about whether the actual steps taken against Lim have been in accordance with the old enterprise agreement and nor can they have anything to say about the failure to take disciplinary proceedings against Selby and Croucher and whether that's contrary to the old EA.

PN423

We can understand that someone might say that when you operate under these procedures 14.3.36 of the agreement requires you to - when I find it, sorry. 13.03.36, I'm sorry, yes. That someone might say, well look, the head will possibly interview the person who has made the allegation and persons thought to be able to corroborate or refute the allegations, that's one thing, but you have got to go to the allegation to work out who those persons are or whether there is any such person. We say that having regard for the allegation against Lim the students have nothing to say, but we will come to that further.

PN424

In the further alternative the orders sought don't relate to or resolve any dispute which is capable in the subject notification because section 170LW relates to settled disputes over the application of the agreement. The old enterprise agreement provides that disputes about any matter in this agreement can be referred to the Commission for arbitration. The orders sought if granted would be inconsistent with the enterprise agreement in this way, to the extent that student evidence is relevant under clause 13.3.36 it's a matter for the supervisor or head to obtain that evidence. That's clear from the terms of it and this is a code. It's not for the Commission to do so and the directions sought if granted would, contrary to clause 13.3.04 and 13.3.06 result in the Commission, not the supervisor or head obtaining that evidence inter alia through cross-examination by others.

PN425

It's a process that's entirely alien to the enterprise agreement which is a code and that's common ground and so what is being sought to do here, incidentally by a party to the enterprise agreement, is to rewrite it in effect to enable other processes to be grafted on. I will come further to that under merits when I address the purported benefits of getting this evidence this way. 2.5 we say:

PN426

Further, insofar as the foreshadowed section 170LW recommendation would require Macquarie ...(reads)... on which it becomes aware of allegations of misconduct.

PN427

And that's not a matter of application of the agreement. Incidentally, your Honour, in the context of a situation where we have said that any process re Professor Lim, if there is to be a disciplinary process, will start again, it would be open to the university at that time, the supervisor or head, whoever it is, we know it's not going to be Professor Croucher, to obtain statements through interviews in accordance with 14.3.06 at the appropriate time. Further, in 2.6 we say:

PN428

Professor Croucher has considered the allegation of misconduct, serious misconduct against Selby.

PN429

That's the discrete allegation contained in the Frank Smith email, and resolve the matter through guidance, counselling and professional development under clause 13.3.35 of the old enterprise agreement -

PN430

Any order to take further action would be inconsistent with the enterprise agreement and contrary to the exercise of the discretion of the head.

PN431

Which he is. So they are our jurisdictional arguments. As far as the merit is concerned and we're told this is that our arguments are form over substance, we say the application puts the cart before the horse in that it seeks directions for the taking of student evidence at a student evidence day to enable the Commission to assist the merits of the foreshadowed section 170LW recommendation. Namely, that following consideration of the students evidence allegations of misconduct by Lim, Selby and Croucher are to be assessed and issued.

PN432

That is, have a mini hearing, forget about the enterprise agreement, have your own mini hearing and then we'll work out whether it appears that a staff member has engaged in misconduct and we'll do it, so the applicant says, notwithstanding that the applicant, Ms Lim, has made an application, has lodged protected disclosures which are in the process of being dealt with and investigated, and that's the process she has adopted. We say however that the Commission has no jurisdiction to make the recommendation and in the alternative if it has jurisdiction it should decline from making such a recommendation.

PN433

We say there's no purpose served by taking evidence at a student evidence day because it's not relevant to the disciplinary action against Lim, that's firstly. And we set out in 3.2(a) again the gravamen of Lim's allegation in the Smith email and say in (b):

PN434

Selby has admitted to the university that he provided the memoranda to the relevant students. This fact is not in dispute and no establish is needed to establish it.

PN435

So the question, and your Honour will recall that the gravamen was making copies of some 10 to 20 memoranda which he was assessing and then distributing them to the MU, that's the allegation upon which Ms Lim relies to say that he cheated or that it was in breach of the competition rules, I think is what was the precise allegation in the Smith email, in breach of the competition rules. Now, he's admitted it. You don't need anyone to say that's what he did. It's completely redundant and odious. The issue is not what Selby did because he's admitted it, it's whether it was in breach of the competition rules. That's not an issue to which the student evidence can possibly be relevant.

PN436

The arbitrator of the moot has informed the university that Selby was not in breach of the competition rules, so where are we going with this student evidence? They can't shed any light on the competition rules. They can simply say he asked us - he distributed memoranda to us. Well, we don't need anyone to give us that evidence, thank you, it's admitted. It's not in dispute. It's whether, and this is the Lim allegation, whether as a result of that he breached the competition rules. And there's another allegation of course re Lim, whether it was appropriate for her to raise this issue in the way she did through the Frank Smith email.

PN437

Now, clause 13.3.06 only requires the supervisor or head to interview any persons thought to be able to corroborate or refute the particular allegation of misconduct being investigated and although the applicant has tendered a list of witnesses there is no information provided as to the possible relevance of any student's evidence. There's 13 of them. Five of them were in the team. But most importantly, the allegation of misconduct against Lim concerns the sending of the email and the evidence of the students does not go to corroborate or refute that particular allegation and is accordingly irrelevant and presumably that's why it wasn't dealt with under 13.3.06 in the context of Selby admitting sending the memorandum.

PN438

Further, even if the notification is designed to have the Commission under section 170LW require Macquarie to take disciplinary action against Selby and/or Croucher, the student evidence is simply irrelevant. The student evidence may be relevant to some of the allegations against Selby and Croucher as contained in the protected disclosures, and your Honour, can read confidential exhibit M1 and work it out, I think there are two or three to which they might be relevant. Incidentally, your Honour, the learned Mr Harmer made a submission that the protected disclosures under the Protected Disclosures Act had to be dealt with definitively within six months of the disclosure being made. That's not the case.

PN439

Section 27 of the Protected Disclosures Act requires the person who made the disclosure to be notified within six months of the disclosure being made of the action taken or proposed to be taken in respect of the disclosure, a very different proposition. But in any event, the protected disclosure process is a process that's being investigated independently, not being conducted under the enterprise agreement, and accordingly cannot form the basis of any recommendation under section 170LW because it doesn't relate to the application of the enterprise agreement at all.

PN440

The Lim protected disclosures about Selby and Croucher are being dealt with as I have said by the honourable Terrence Cole, are not the subject of disciplinary proceedings against Selby or Croucher, nor has Macquarie made any decision to commence such procedures, apart from the specific procedure involving Selby which I have referred to, and the protected disclosures can't become the subject of a requirement by the Commission pursuant to section 170LW to commence any such proceedings as this would be inconsistent with the EA which only requires Macquarie to conduct such proceedings as a precursor to taking disciplinary action.

PN441

I think Mr Harmer referred to 1303.34 and as I have already noted, if as a result of this procedure which Ms Lim has adopted, that's her option, if as a result of that procedure something as arises upon which the university wishes to fasten for the purpose of the disciplinary procedure then so be it. It will be dealt with that way and that's precisely how the interrelation between someone making a protected disclosure and the disciplinary procedure under the enterprise agreement operates. It's certainly not a case of the university pre-empting the protected disclosure proceedings which have a whole raft, as your Honour knows, of protections for the person making the disclosure which ought not be interfered with, obviously.

PN442

We say further that granting the directions sought would open the flood gates and establish two principles. One, every allegation of alleged misconduct no matter how trivial would need to be investigated. Two, every investigation under the disciplinary procedure, including sexual harassment complaints, would potentially be required to be conducted in this matter. I mean where would you draw the line? All - I'm sorry, not all. A large number of complaints or allegations involving disciplinary procedures at universities involve students, especially allegations of sexual harassment and the like.

PN443

Where would you draw the line in determining that in this particular occasion you'll avail yourself of the powers of the Commission and the auspices of the Commission in order to provide protections which are not otherwise dealt with in the enterprise agreement deliberately and to which Mr Harmer's client is a party. Why do these particular students, the vast majority of whom are not students any more at all anyhow and can't possibly be victimised, get that privilege and protection whereas others don't and haven't and never have? Because one thing that Mr Harmer can't point to is where this process has been used in a disciplinary procedure in any university, all of which universities has, as his client well knows, disciplinary procedures which are similar to in their scope and comprehensiveness to that which is in this agreement.

PN444

I move on. There is no justification for the directions. In substance the applicant seeks to resile from important aspects of its agreement to the disciplinary processes contained in the old and new enterprise agreements to which it respectively was and is a party by compelling persons through the Commission's processes to give evidence before the Commission. Then Mr Harmer sets out a series of benefits in one of the paragraphs of his submissions, 4.5. It's worth examining them to just see what it is that the Commission is being asked to sanction here.

PN445

Firstly, compellability. Incidentally, it was not Mr McIntyre's concern as I understand it. Compellability was not his concern, it was cross-examination of the students which was his concern. Cross-examination of students is completely alien to the enterprise agreement and its processes. But dealing with compellability, there is no justification to compel persons to give evidence in substitution for that person agreeing to be interviewed by the supervisor or head and none has been suggested. No reason to take this out of the general rule at all.

PN446

No-one else is compellable in this investigation or any other investigations by Macquarie University under this enterprise agreement and as I understand it, under the vast majority of enterprise agreements affecting universities in this state if not the country. If this application were granted potentially all witnesses in all internal investigations would need to be brought before the Commission to be cross-examined. Independence, there is no basis for an independent tribunal taking evidence on oath in substitution for the interview processes in the enterprise agreement and none is suggested.

PN447

Protection from victimisation, only three of the students in respect of whom evidence is sought to be obtained by the applicant are still students at Macquarie University. Your Honour has seen a list, I think it's tab 13 of exhibit L1, of students. As I understand it, and doubtless Mr Harmer will correct me if I'm wrong, the first five students are members of the moot team and none of them are any longer students at the university and can't be victimised. Student 6 is a student. Number 9 is a student and number 13 is a student. But in respect of those three it's unclear what if any involvement those students had in the moot competition. We are not told.

PN448

The three students were not in the moot team, haven't been referred to previously in these proceedings or in the protected disclosures or the documents supporting the protected disclosures. So it's a mystery and we saw, as your Honour will see from exhibit L3, to be let in on the secret by writing yesterday to Mr Harmer and saying tell us who they are and what their relevance is and please tell us by the end of the day and we haven't heard. So we say the protection from victimisation is no basis, it's no benefit and it's inherently the case in these sorts of investigations and disciplinary procedures.

PN449

Secondly we say under protection from victimisation, annexure 10 to exhibit L1 is a summary of evidence for five witnesses described as A, B, C, D and E. We note that A, B, C, D and E are no longer students at the university and the three who are students are not referred to in annexure 10 and there's no basis to suggest that they or any of them will be victimised if they participate or choose not to participate in the processes under the enterprise agreement. Finally on victimisation, the five students who are referred to in annexure 10 have already provided statements regarding the protected disclosures against Croucher and Selby which are attached to an affidavit by Ms Lim dated 2 March 2005 which has been provided to the university and supported the protected disclosures.

PN450

These five students are no longer students of the university but they have waived any right to be protected from victimisation as if it would occur or a right to give their evidence on oath, or a right to independence or compellability. They have already volunteered the information. This is just curious. Protection from defamation proceedings, and part of the justification for this is that after all the university instituted defamation proceedings in the district court to find out who had send the scurrilous Frank Smith email. Of course that's got nothing to do with protection from defamation proceedings because under the enterprise agreement to which the applicant is a party and deliberately agreed to these procedures and the lack of benefit or protection, no-one else has this protection and never has had.

PN451

No basis has been suggested as to any risk of defamation proceedings arising from anything said in the interview process. In any event, it would generally be expected that a truthful statement made without malice in the course of a disciplinary procedure would be subject to the defence of qualified privilege and as we have already noted, five students have already provided evidence and affidavits in respect of the protected disclosure in respect of which evidence they are liable to suit. They have waived their rights.

PN452

Next, evidence on oath, again no-one else in this investigation or any other investigation by Macquarie University under the enterprise agreement is required to give evidence under oath or is able to be cross-examined and there's no need for such evidence on oath has been demonstrated. Lastly we come to time of the essence and we were told repeatedly earlier today that the delays that have occurred, that there have been extensive days, the delays that have occurred to date have in the main arisen as a result of the negotiations between the parties about how to resolve the matters, including the establishment of the review panel and mediation.

PN453

The applicant can't now seek to rely on those delays brought about by consent to ground this application. Now, we have a chronology which I don't want to spend a lot of time on but which I hand up, your Honour, of events relating to delay.

EXHIBIT #M3 CHRONOLOGY OF EVENTS RELATING TO DELAY

PN454

MR GOOT: Thank you, your Honour. Now, it picks up the protected disclosure point and various other things. Your Honour will see that there's been extensive exchange in correspondence, that on 2 October 2004 the process came to a halt insofar as the Lim investigation was concerned. No further action was taken pending the resolution of the disputes and I use that in general terms, because the university was anxious to try and resolve by conciliation a problem. Of course we've moved from conciliation and we're now into arbitration, hence the position we now take. But we can't be penalised for what Mr Harmer says is the last nine months or the last 12 months where in effect we've been trying to work it out.

PN455

So we say that there's nothing to the delay point and in any event, as your Honour now knows, the protected disclosure matter is being processed, the Lim complaint has become a nullity. The process in relation to Ms Lim has become a nullity and will be started again, if it's going to start again it will start afresh and the university shouldn't be required to simultaneously run a multiplicity of proceedings concerning the same factual matters. So we would say to your Honour in summary three things I think. Firstly, there's no jurisdiction to entertain the notification, alternatively if there is your Honour ought not to exercise any discretion by dealing with it, the proceedings should be dismissed, or thirdly, it is a possibility that your Honour in light of the most recent developments might wish to stand the matter over for a period of time to see what happens in relation to the protected disclosure matter and what attitude the university adopts in relation to the report that will come from the honourable Terrence Cole QC.

PN456

They are, we say, practical and sensible approaches but your Honour ought not to do what Mr Harmer seeks. Just before I sit down can I hand a copy of the University of New South Wales Academic Staff Enterprise Agreement 2003. It's photocopied in reduced size, your Honour, out of difference to the trees.
Mr Harmer has pointed out how wasteful we have been, it's not front and back, that's right. That's right, it's not front and back. Well, we chose to save paper the other way.

PN457

THE SENIOR DEPUTY PRESIDENT: It certainly isn't making a contribution to my eyesight though.

PN458

MR GOOT: Your Honour, I understand that those instructing me are out purchasing some magnifying glasses as well. But your Honour, mindful of the fact that your Honour, as I am, wears glasses, if you go to the last page, page 5, it's in full.

PN459

THE SENIOR DEPUTY PRESIDENT: Yes.

PN460

MR GOOT: It's in its entirety. If your Honour looks at 7.0(e) it says:

PN461

Despite subclauses 7 and 14 of this agreement, if the university has prior to 1 June 2003 provided an employee with allegations of misconduct ...(reads)... under clause 14 of the 2000 agreement.

PN462

So that's an express carve out to enable an investigation or a disciplinary procedure under clause 14 of this agreement which is, if your Honour were minded to go to it and I'm not suggesting you need to, with an appropriate device to enhance the size of the print, your Honour will see it's not in dissimilar terms to what's in the agreements before your Honour. But if that were in these agreements then the point I make about accrued rights and the agreement not having expired, et cetera, could not be made. They are my submissions, if your Honour pleases.

PN463

THE SENIOR DEPUTY PRESIDENT: Mr Good, just one thing, my note taking failed me, I don't have the three possible outcomes which you contend for.

PN464

MR GOOT: Okay. Firstly, no jurisdiction. Secondly, jurisdiction but in discretion dismiss the application.

PN465

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN466

MR GOOT: Thirdly, stand the application over either to a date to be fixed or to a period of time following the report from the honourable Terrance Cole, QC.

PN467

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN468

MR GOOT: In that latter respect we would think a period of two to three weeks would be appropriate to enable us to digest it and work out what we're going to do.

PN469

THE SENIOR DEPUTY PRESIDENT: Very well.

PN470

MR GOOT: Yes, two to three weeks after his report.

PN471

THE SENIOR DEPUTY PRESIDENT: Yes.

PN472

MR GOOT: Yes, thank you.

PN473

THE SENIOR DEPUTY PRESIDENT: Mr Harmer, a short adjournment?

PN474

MR HARMER: No, your Honour, I'm just wondering does Mr Dale seek to be heard from at all?

PN475

THE SENIOR DEPUTY PRESIDENT: Yes, of course. I'm sorry, Mr Dale.

PN476

MR DALE: Thank you, your Honour. I was just going to make a few very brief comments having been able to contact Mr Selby since our last hearing.

PN477

THE SENIOR DEPUTY PRESIDENT: That's good.

PN478

MR DALE: Via email I have to add. But it's very rare that I find myself in agreement with university management but on this occasion I have to say I do wholeheartedly agree with the submission that has been put forward by the university and I was particularly interested on the jurisdictional matter, I think it's 2.5 of the university's submission because I think that opens the flood gates to a whole range of - and the union particularly could take great advantage of what's being proposed here by Harmer's party.

PN479

I just want to make a few very brief points. I've made these points previously but I guess irrespective of the merit of a student evidence day we continue to say that we believe that would be procedurally unfair for our person, that the conduct of the student hearing day will have implications for Mr Selby and that we say it's imperative that he's in the country and able to be part of that particular day were it to take place. Mr Selby has the professional relationship with the students and he has a right to hear first hand what is being alleged about his conduct during the course of the international moot.

PN480

It is important to note that Mr Selby to this day remains completely unaware of the particular problems that the students are alleging against him. He is only able to refer to documentation which is suggesting the complete opposite, that they had been very thankful for his role in the coaching and in terms of the international moot, so it all remains very mysterious to him. So that's one of the reasons he's actually prepared to - you know, is looking to the protected disclosure so he can actually see some of the statements that have been alleged in relation to his particular conduct.

PN481

So we think it's fundamentally important that he's able to be readily available to work with his advocate to clarify matters as they arise if there is a student hearing day to respond immediately to student testimony and to help frame any questions for various student witnesses. It's always been our position and it remains our position that the university must be able to conduct its protected disclosure investigation before any determination on whether to conduct a student evidence day is warranted.

PN482

We believe that the process should be as we understand is being outlined that the honourable Mr Cole QC firstly reviews all documentation, that the NTEU and
Mr Selby then receive all evidence that Ms Lim has been relying on, remembering that we have yet to be afford this opportunity, that the NTEU and Mr Selby then have the opportunity to make submissions to the honourable Mr Cole QC about the evidence provided and the various allegations, that on the basis of the submissions provided the honourable Mr Cole QC would then decide how to investigate those matters remaining.

PN483

If in investigating those matters that remain the honourable Cole QC wishes to hear oral testimony from any interested persons, at that point he can ask persons to give that oral testimony and that they be subject to questioning by each side. We say that only if a person refuses to give oral testimony should it then be a matter that the IRC could consider at a later date and only once alleged misconduct looks like it has been established and if. That, your Honour, is the process we would propose to progressing this matter.

PN484

Thirdly, we have yet to see or affidavits from any of these students suggesting that a student hearing day under the auspices of the Commission is warranted. Today all we have heard is a lot of what I believe is hearsay on this matter, but none of that really has been substantiated. We say we should allow a QC to test the preparedness of witnesses to come forward if necessary before any intervention of the IRC is sought. Fourth and perhaps fundamentally and the university has covered this to a great degree, we believe this would be a total misapplication of the disciplinary procedures of the enterprise agreement particularly as it may pertain to Mr Selby and the analogy was put that this is putting the cart before the horse and that's certainly our sentiment on this matter.

PN485

It's critical to remember that no formal allegations of misconduct have yet been brought against Mr Selby. If any allegations are made we say they can only result from the university's protected disclosure investigation or through other legitimate investigative procedures that the university chooses to activate and we think the student hearing day as has been pointed out would just be adding processes onto the established EBA guidelines. Finally we say that the students have - if they've lodged - that there was opportunities for students to lodge complaints through established university procedures including grievance policies. That's the vehicle we say that should have been adhered in this case and that we don't believe a student hearing day under the auspices of the IRC is the appropriate forum.

PN486

So just to summarise, your Honour, the NTEU does not believe that a student evidence day of the NTEU representing John Selby, does not believe a student evidence day is warranted. We believe to be premature and it would compromise the fairness and integrity of the entire process and we would subsequently urge you to reject this application.

PN487

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dale. Yes, Mr Harmer.

PN488

MR HARMER: Thank you, your Honour. Your Honour, the response of the university goes to demonstrate perfectly the very issue over the proper application of this agreement that stands between the NTEU as notifier of this dispute and the university. The university would seek to have the Commission believe that in relation to Professor Croucher and Mr Selby there's just a protected disclosure making some allegations and that's a particular funnel that can be followed down, whereas the NTEU says that there was information going to Professor Croucher and Mr Selby dating back to early 2004 placed in the hands of initially Professor Croucher, that the allegations were repeated in VTAL orally in February 2004.

PN489

In 2004 when Ms Lim had the discussions where she said yes, I sent the email, she didn't just say that. She went on and she said I sent it for all these reasons, this happened, I told you this months ago, I had nowhere else to go, I took you about sexual innuendo, I told you about inappropriate behaviour, I even sent you an email on it. They're the parameters and is the students' evidence relevant to establishing those parameters, that difference over whether the proper application of this agreement for a start should have required action against Professor Croucher and Mr Selby? Of course it is.

PN490

Now, the other thing they seek to say is that look, don't worry about Ms Lim, it's the narrow allegations about the email and that's already been dealt with. Again, your Honour, the NTEU from the start of this dispute your Honour might recall as being saying it's vital to get the context, it's vital to understand why that email was sent. We say, your Honour, that all this information has not just been available to the university throughout various stages under the old EBA, it's been available every day since the operation of the new EBA and not just through protected disclosure, through a whole variety of means. Every day since 9 February 2005, and I will come to the detail of this, the university has had all the information it needed to properly action 1303.34 where it says it must take action and to properly seek to corroborate or refute. It has done nothing.

PN491

Now, we say that that requires a recommendation under 1304.06 by this Commission properly grounded on jurisdiction as we will come to, to properly determine the application of the agreement, a straight forward matter under LW, but vital to that is evidence from students that demonstrate independently the very essence of the differences between the parties and that's what this is all about and it's no answer for the university to say come down our tunnel, funnel everything into our narrow way of looking at things and our excuses for delay and have the Commission resolve the matter on that basis. That's just a finding their side of the dispute.

PN492

Now, your Honour, in terms of jurisdiction, we indicated that there could be argument about accrued rights. We have indicated our view that Abbott's can be distinguished but we said given the correspondence of yesterday we don't need to press that. We made an application, treat the notification, the whole essence of the dispute in its substance as being put forward under the new EBA and one comes to a position where one has nine months of non proper application of the 1303.34 and 36 and when one goes to the dispute settlement procedure and one looks at the prerequisites for arbitration or recommendations, which is the broad phrase used to this Commission to resolve the matter, a very broad phrase, one will find that in substance all those prerequisites, all those steps have been dealt with.

PN493

Now, that's the essence of jurisdiction and I don't need to repeat that, your Honour, but I don't understand that to have been actively addressed by the submissions made. It would seem to relate predominantly to Abetts and the old EBA. Your Honour, when one goes to 1303.34 it talks about when it appears that a staff member has engaged in misconduct or serious misconduct. We are not talking about flood gates being opened because the preceding clauses define exactly what misconduct and serious misconduct are. They give examples. It's quite specific what the agreement is but what the agreement says there is that the head must take action.

PN494

There's been total inactivity nine months under the new agreement, longer under the old. 1303.36, if the supervisor head receives information, as we say, the student evidence goes to when Professor Croucher received information about
Mr Selby. Of course it's relevant. The student evidence goes to a number of matters that demonstrate why they are able to corroborate or refute allegations against, Ms Lim, Mr Selby, Professor Croucher, it's ..... and the real question is here why don't the parties want to apply this agreement as they agree to get to the truth, and again one can draw one's own conclusions on that.

PN495

Your Honour, 1303.36 just talks about receiving information, suggesting misconduct or serious misconduct. It doesn't say how it's received. Now, we say in relation to Mr Selby and Professor Croucher the university received not only through protected disclosures which is not an excluded means of receiving information, but through alternative means over a long period that information and still has not taken any steps as agreed in 1303.36. So the departures from the proper application of the agreement we say are clear and can be demonstrated by the evidence we seek to bring forward.

PN496

Now, in that regard, your Honour, there's been certain submissions put forward about how your Honour should look at this matter starting in say April 2004 and going to the Frank Smith email. If you look at our chronology without taking up too much time on this issue it starts back, as do the students' statements, those that have given draft statements and I will come to that, back in October 2003. Your Honour, it refers to meetings with the dean going back to before the end of 2003. It refers to an email from Ms Lim to the dean in January 2004, a discussion between Ms Lim and the dean in February 2004 when the issues were portrayed in full, and of course the 21 June discussion where Ms Lim didn't just say look, I sent the email, she said I sent it for these reasons and why didn't you do something, why didn't you help him out.

PN497

So your Honour, we acknowledge there's differences on the chronology but that's again the very reason why we want this evidence to come out, otherwise we will be getting whatever protected disclosures approach is taken on a preliminary assessment which we don't agree with. We don't accept what Professor Moore has come up with. She hasn't gone to all the evidence yet. We want to bring that forward properly and we'll demonstrate again why we even disagree with the scope of the protected disclosure. But the real essence is why does the protected disclosure on any basis purport to displace the clear exclusive code agreed to by the parties, that's what we seek to apply.

PN498

We see no basis for this excuse for further delay why a protected disclosure is finally followed pursuant to a separate Act. Your Honour, in terms of the information coming available under 1303.34 where it just needs to appear that there's misconduct or 36 where the information just has to be received, as I say, your Honour, it came up through various points other than the protected disclosures under the old agreement and not only from every day from 9 February has it been carried forward as active information held by the university in the face of their inactivity under the agreement, but your Honour, I have participated in processes on behalf of the university in that review process conciliation attempt where post dating the handing over of all the statements there were summaries of the key extracts of the students statements provided to the university representing Professor Croucher, to Mr Dale and Mr Selby who both participated, and I will come back to this assertion by Mr Dale that Mr Selby has got no idea what's being alleged.

PN499

I have got copies of those documents here. They were extracts ..... under headings setting out what were the key allegations. So Professor Croucher as
Mr Selby's head received the information yet again in May this year, documented. The protected disclosures were sent to the deputy vice chancellor academic as I understand it who is the supervisor of Professor Croucher, so her head. They were received again by the university participating in that very review process, post the new EBA coming into effect. There's no lack of receipt of information under the old or the new that would warrant the delay under 1303.34 and 36 that's occurred.

PN500

So your Honour, we don't understand why it is said that given the clear dispute over the proper application of this agreement and the clear satisfaction of all steps under the EBA which we had done, we think it would be ridiculous if the parties have to go through the motions of repeating the new EBA, why the Commission cannot properly invoke its jurisdiction to resolve that dispute through hearing the evidence and eventually getting to make recommendations. We may not succeed on any of the recommendation. We are just seeking a direction to get the evidence to ground and, your Honour, the first recommendation we seek is just defining that these are students, people to be interviewed, but we seem to be having trouble even getting to that point with the university.

PN501

Your Honour, it is conceded by both sides that 1303 of the agreement is an exclusive code. That is vital in terms of this question of priority and timing. In terms of more specific response to what's been put forward by the university I'm instructed to make a few additional comments. In relation to 1(f) and the assertions that their opportunities to meet with Professor Croucher that were waived by Ms Lim, for the record we dispute that and I won't go into the quite detailed scenario that exchanged between the two of them but just to note the dispute.

PN502

In relation to 1(h) of the outline, so this is addressing specific aspects of the written submissions of the university. In relation to 1(h) I've noted that we don't accept the findings of Professor Moore in relation to the protected disclosures. In relation to 1(i), no disciplinary procedure under the EA has been commenced against Croucher, again that is the very essence of the problem. It's no so much that no disciplinary procedure has been commenced, it's just that 1303.34 and 36 have been ignored in relation to the various materials clearly received within the meaning of those clauses by the supervisor or head of Professor Croucher and the student evidence will go to establish that.

PN503

Similarly with (j), it's interesting that it's put forward that the specific allegations against Mr Selby were considered by Professor Croucher. Now, as we're all now aware as of yesterday, the university is asserting that that conduct by Professor Croucher is a nullity under the old agreement. So that's hardly any answer in relation to Mr Selby. But your Honour, what the problem is, is that we have said from day one and it's clear in the documents we've included about the scope of this dispute, that the allegations against Mr Selby just didn't go to 10 to 20 memoranda. They went to not just that example of cheating, and I will come back to the fact that the students dispute Mr Selby's position in relation to that, but they go to sexual harassment, to pressure not to talk about what occurred, things of that nature.

PN504

That's what put forward by Ms Lim by way of allegation and brought to the attention of Professor Croucher as far back as 2004. That's what's been tabled since then on numerous occasions with the university. There's been no attempt to properly apply the enterprise agreement to the allegations against Mr Selby at all and it's no answer to say look, we've defined it very narrowly and we've dealt with that informally. That again just demonstrates the scope of the dispute and the scope of the non application of the agreement.

PN505

Your Honour, over the page I have dealt with the issue of jurisdiction. I just remind your Honour that whilst the written submissions address the old EBA we've attempted to move the matter forward to the new EBA and that doesn't seem to have been addressed. I further note that at the top of page 4 it is important that we do seek recommendations within the meaning of the current dispute settlement provision and your Honour, obviously we dispute the contentions there that there's any inconsistency with what we're seeking by way of those recommendations and I've given as an example the first one we seek about just whether the students are able to corroborate and should be interviewed.

PN506

Your Honour in terms of 2.5 and the last two lines of that entry, whilst it's not disputed that 1303 is a code on disciplinary process, as I have already mentioned, we do dispute this notion that it does impose a positive obligation. It does compel action by agreement between the parties but it is carefully qualified, as I said, by reference to definitions of conduct or misconduct and serious misconduct.

PN507

THE SENIOR DEPUTY PRESIDENT: What do you rely on for the statement that there is compulsion on the university to take action?

PN508

MR HARMER: Your Honour, we rely on the wording of 1303.34 and 36. 1303.34 says:

PN509

When it appears that a staff member has engaged in misconduct or serious misconduct the head must taken action to address and seek resolution.

PN510

THE SENIOR DEPUTY PRESIDENT: Must take action, yes.

PN511

MR HARMER: Now, there's been absolutely nothing at all, no action whatsoever in relation to anything concerning Professor Croucher and only action on a narrow front of the vast array of allegations against Mr Selby and when gets to 1303.36 it says:

PN512

If a head receives information suggesting misconduct or serious misconduct the head will if possible -

PN513

Now, that's a qualification, if possible, and we say there's no impossibility at any time about interviewing these students -

PN514

interview persons thought to be able to corroborate or refute the allegation.

PN515

Now, we say that is a requirement which is only qualified by possibility and, your Honour, there's been no attempt whatsoever in relation to the allegations against any of the three members of academic staff, Ms Lim, Professor Croucher or
Mr Selby to interview any of these students as people thought to be capable to corroborate or refute and we say that's not the proper application of the agreement. So that's why we say, your Honour, that the exclusive code does by agreement require certain steps to be taken that have not on this occasion.

PN516

Your Honour, in terms of the cart before the horse argument, as I have said, if you take example of our recommendation 1.3(a) in circumstances where we say that there's been this failure of activity, it's hardly putting the cart before the horse where there is total disagreement over the proper application of the agreement to these circumstances, to get some evidence and have the Commission recommend a resolution. Your Honour, in terms of some of the other differences between the parties, at 3.2(c) it is said by way of example again of the relevance of the student evidence.

PN517

The issue is not what Mr Selby did, it is whether assuming he did copy and distribute memoranda it was in breach of competition rules. Now, your Honour, by way of example of the relevance of student evidence to that, the student evidence says that Mr Selby admitted to the students he was cheating and that's pretty pertinent to that sort of issue. The students were working intimately under the rules. One of the students was the coach of the other team that was sharing the room, so the Jessup moot team was sharing the room with the VIS moot team. She was coaching under the rules. She took the view it was cheating and it was discussed between the students, it was cheating.

PN518

Mr Selby admitted it. That's the evidence that's going to come out and it goes well beyond the narrow scope that the university wants to put on the matter. At 3.2(c) it says:

PN519

The arbitrator of the moot has informed the university that Mr Selby was in breach of the moot rules -

PN520

Sorry:

PN521

was not in breach of the moot rules.

PN522

Your Honour, what the evidence will reveal is that Mr Selby communicated to the arbitrator and secured that finding. Well, that's what we will assert the students will put forward and their evidence will be that Mr Selby showed them to him his communications to the moot arbitrator and that they dispute what he put forward to the moot arbitrator. They say it wasn't true what he put forward. That's certainly very relevant, we say, coming from the students and not within the narrow scope that the university will put forward.

PN523

So your Honour as I say, the controversy between the parties to the agreement just serves to demonstrate the need finally to interview the students after all this time and just get to the truth. That's what the agreement talks about, must take action, interview, corroborate or refute. It's not been done. Now, at 3.4 it says:

PN524

The student evidence may be relevant to some of the allegations against Selby and Croucher as contained in the protected disclosures.

PN525

But this, your Honour, is the attempt to place that relevant material in a tunnel of protected disclosure in circumstances where the information has come to the university in some other ways, even if one accepts that information coming by way of protected disclosure is not information received within the meaning of the EBA. 1303.34 just says when it appears and 36 says, receive information. It doesn't exclude a protected disclosure as a means of conveying information, but even if it did we say the evidence of the students will verify that the information came forward through many different means and indeed under the new EBA since 19 February 2005 has been tabled by the union with the university under the very process of conciliation before this Commission under the review process.

PN526

Not under the protected disclosure, your Honour, so under the very dispute process we're now trying to resolve through arbitration. So that admission of relevance to the allegations against Selby and Croucher is very pertinent to why we say the relevant material should now come forward to properly resolve the dispute through recommendations. Your Honour, 3.6 there's this reference to the flood gates and I've noted how qualified the EBA is in qualifying what has to be actioned by reference to the definitions and in terms of the notion that everyone would then put their hand up for this sort of protection, your Honour, first of all, this is a confidential process.

PN527

Your Honour will recall we sought those confidentiality orders from the start to protect everyone's reputation. No-one is going to hear about this unless the university breaches those initial directions put in place. There's no precedent value and this has been an extensive process properly under the dispute settlement procedure of the EBA. There has been a disputes committee, there's been meetings, there's been extensive conciliation under the auspices and before the review panel. There's been quite a gauntlet to run and then finally we're asking for arbitration. It's hardly an easy thing for someone to replicate such a confidential process and open the flood gates, it seems ridiculous, that's our submission, your Honour. So we don't see that that is a basis to reject what we're seeking.

PN528

Your Honour, in terms of going over to page 7, the issue of compellability, it was an issue that Mr McIntyre commented on and we reported that earlier on about dispute and I understand today it's questioned, but that's the NTEUs position. He commented on other aspects of what we put forward including specifically protections from defamation proceedings was a matter he raised as the head of the review panel and we say that compellability is important for that link to the perception of independence. In terms of protection from victimisation I will repeat, it goes not just to those continuing students but it goes to ex students who might seek roles in academic as tutors or might come back to the university for post graduate studies.

PN529

Your Honour, you're talking about university medallists here. These students were in the moot because they were the uni leading students of the year. The prospect of post graduate studies has got to be a realistic consideration, as does indeed engaging in academia. So reluctance to give evidence or potential victimisation is still alive for both past and current students. Your Honour, there's suggestion that the students in the Jessup moot have not been previously referred to. One of the statements that was provided to the university, and these are draft statements, your Honour, they were provided as draft statements, unsworn, to Ms Lim's defamation lawyer in anticipation of the initial defamation proceedings and I understand what's said.

PN530

There was just preliminary discovery, but Ms Lim initially engaged a defamation lawyer and certain of the students gave a confidential statements email and it was those materials that were eventually forwarded to the university and conveyed not only protected disclosures but under this very process before the Commission, before the review panel, et cetera. The evidence of one of those students indicated the link to the Jessup moot, the fact that they shared the room, the fact that she was the coach, the fact they took the view of her cheating. So to say it's just not relevant or hasn't been previously indicated as relevant is in our respectful submission not correct.

PN531

Yes, yesterday there was an attempt to get that information from us. It came yesterday afternoon and unfortunately I didn't get the letter until the after the deadline, but we repeat what we said earlier about the relevance. Your Honour, over the page, top of page 8, ..... 3, the entry there, in terms of the statements provided they're just copies of the student's own email to us. They're not signed. They're put forward by Ms Lim as part of the process and they've been quoted in various documents in this conciliation process. There's a still a requirement for protection not only for those students but for others.

PN532

The next one, protection from defamation proceedings, as I say, Mr McIntyre himself raised that concern, as with the issue of evidence on oath. Your Honour, finally with the issue of delay and time is being of the essence, we dispute a number of the aspects of the completeness of the chronology of M3 but I don't seek to take up your Honour's time with that. If I can just note we dispute some of the issues put forward and some of those admitted, but that's understandable. What we say, your Honour, though is no matter who, if you like, is to blame for the delay or if no-one is to blame is between the parties if it's been consensual, it doesn't change the fact that three members of academic staff still have hanging over them allegations and in the case of Ms Lim, ones which went all the way to a report to the DVC and then forwarded on to the vice chancellor which are now said can be re-ignited at any time.

PN533

There is no basis under the exclusive code at all to further delay by reference to protected disclosures. There is nothing in the EBA that would warrant that and, your Honour, obviously that's an issue that after the student evidence may have to be further addressed in terms of seeking actual recommendations. Your Honour, in terms of the conclusion reached and the alternatives put forward, first of all, that there's no jurisdiction, we say there is and we've created a means for that and there's no response to why the substantive satisfaction of the 2003 EBA dispute settlement process shouldn't give your Honour a means to deal with it properly 1403.06 of the 2003 EBA.

PN534

In terms of merit, we have addressed that thoroughly and obviously we have a different view and we see no basis for further standover. This process for the protected disclosure which as I say is a separate discrete process which has no priority at all and should not consistent with the terms of the exclusive code under 1303, there's just no basis for that. In terms of Mr Selby and what's being put on behalf by Mr Dale, your Honour, I would simply dispute what's being said about lack of notice and I don't repeat that. I am happy to hand up the material that
Mr Dale and Mr Selby were handed as well as Professor Croucher through the university. They do quote quite extensively from the statements.

PN535

Your Honour, we are happy for Mr Selby to either attend personally, as with Professor Croucher, or to be represented but, your Honour, in our respectful submission it's not a basis for further delay in terms of progressing the matter.
Ms Lim lost the whole of sabbatical over this and obviously there's inconvenience for all of the academics and the fact that this is breaking out, it should be brought properly to a resolution in accordance with the terms of the EBA. So your Honour, that concludes our submissions in response to both the university and
Mr Dale.

PN536

THE SENIOR DEPUTY PRESIDENT: One question.

PN537

MR HARMER: Yes, your Honour.

PN538

THE SENIOR DEPUTY PRESIDENT: I think somewhere in the correspondence or the documents is a statement that the dispute as it stands at the moment, subject to all the comments that have been made today, is over the position or treatment of Ms Lim as far as the NTEU is concerned in this matter.

PN539

MR HARMER: We dispute that. We say that's the university attempt to confine and your Honour - - -

PN540

THE SENIOR DEPUTY PRESIDENT: So what do you say it's about it?

PN541

MR HARMER: Yes, your Honour, that's why we took your Honour to these preliminary materials which was the dispute material under the initial stages of the dispute settlement procedure and indeed your Honour will find under tab 2 in particular the material put forward for the dispute committee process and for discussions with the university which makes it very clear that the dispute is not just about Ms Lim and what happened to her. It was the fact that the university got into Ms Lim like a rat up a drain pipe on disciplinary process and did nothing at all on the Croucher and Selby fronts and your Honour will find in that document that many of the subclauses of 1303 I have gone to today were quoted.

PN542

Mr Selby's conduct pointed to Ms Lim's conduct, Professor Croucher's behaviour. It was then at page 3, talk about 1303.36 and Mr Selby and lack of interview of persons. That's then repeated at 5.5 in relation to Professor Croucher. So your Honour, from the beginning this dispute had a very wide scope and, your Honour, the document at tab 4 was again an early stage of the matter but your Honour will see that there were a confluence of matters that were referred to. But certainly from the union's point of view, your Honour, the scope of this dispute was never just about what happened to Ms Lim, even though it's an important aspect of it.

PN543

It was incorrect application of a variety of the clauses across three members of academic staff and part of the very dispute was the disparity of treatment, but the dispute spanned and we repeat, your Honour, today we're in dispute with this university about conduct failure to properly apply the exclusive code under 1303 in respect of Mr Selby, Professor Croucher and Ms Lim, particularly under 1303.34 and 36 under either the old EBA and we say for the last nine months the new EBA. So that's the scope of the dispute, your Honour, and those documents were intended to demonstrate that old scope as we've never shared that narrow view.

PN544

THE SENIOR DEPUTY PRESIDENT: And as you would appreciate from the many occasions this has arisen in the past, what do you envisage at this stage, and I accept could well change dramatically, would be the outcome that the NTEU seeks in the end?

PN545

MR HARMER: Yes, your Honour. We seek in essence three things, that the fair application of the disciplinary process to Ms Lim which we would say properly applied on this occasion would see the students interviewed, the allegations properly cast with the context and benefit of their information and her facing then the 1303.39, 46, et cetera, that she went through previously, on a fair and proper basis and we see that dissipating to what it should. In relation to Mr Selby, we see again the fairness to him, interview to either refute or corroborate allegations properly put and he gets the EBA applied to him as it should have been from the start and he will be properly represented by the NTEU and on that goes.

PN546

But that's the fair and proper application there and in terms of Professor Croucher, exactly the same, your Honour. That's what we say from the start should have been the outcome, not a very selective and disparate and almost victimising application by one of the very people who were part of the problem, not the solution, that is, attack Ms Lim, leave Mr Selby and Professor Croucher rule the roost in that fashion. So that's what we seek, your Honour, and that's really what we've sought from day one but obviously there's been some delay.

PN547

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Thank you.

PN548

MR HARMER: Thank you, your Honour.

PN549

THE SENIOR DEPUTY PRESIDENT: Mr Goot, can I proceed under the impression that as far as the university is concerned there is at law and in fact no disciplinary action on foot against Professor Lim?

PN550

MR GOOT: That is correct.

PN551

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN552

MR GOOT: And the reason I didn't address the 2003 agreement is because it follows from my submissions in relation to the 2000 agreement that there has been nothing that's happened under the 2003 agreement.

PN553

THE SENIOR DEPUTY PRESIDENT: Yes, that's inherent in my question I believe.

PN554

MR GOOT: Yes.

PN555

THE SENIOR DEPUTY PRESIDENT: All right. I will reserve. That's only because I don't guarantee myself to get a decision out by about 5 o'clock and I think if it goes beyond that it would be unreasonable. But in light of the need for some urgency in the matter you can all rest assured that it will be out as promptly as humanly possible.

<ADJOURNED INDEFINITELY [3.22PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L2 LETTER TO MINTER ELLISON FROM HARMER'S WORKPLACE LAWYERS DATED 07/10/2005 PN294
EXHIBIT #L2 LETTER TO HARMER'S FROM MINTER ELLISON DATED 11/10/2005 PN294
EXHIBIT #L4 EXTRACT FROM THE MACQUARIE DICTIONARY PN346
EXHIBIT #M2 OUTLINE OF SUBMISSIONS ON BEHALF OF THE UNIVERSITY PN384
EXHIBIT #M3 CHRONOLOGY OF EVENTS RELATING TO DELAY PN453