C2006/1092, Transcript of Proceedings [2006] AIRCTrans 1267 (6 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16190-1

DEPUTY PRESIDENT BLAIN

C2006/1092

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
AND
CURTIN UNIVERSITY OF TECHNOLOGY
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/1092)

PERTH

10.04AM, THURSDAY, 23 NOVEMBER 2006

PN1

MR P STOKES: I appear on behalf of the NTEU. With me today is
MS E FLOYD, NTEU industrial officer, as well.

PN2

MR I CURLEWIS: I appear for the respondent and I have on my left
MS E HAAS from Curtain University.

PN3

THE DEPUTY PRESIDENT: It’s my understanding that leave has been granted previously in this matter on the basis of assurances given by Mr Curlewis to the Commission and on that basis I proceed. I commence noting that there was a directions conference in this matter on 9 November and I would ask if indeed there has been any progress towards a resolution of the matter since that time. Mr Stokes first.

PN4

MR STOKES: Your Honour, further to the directions conference there has been no further resolution to the matter.

PN5

THE DEPUTY PRESIDENT: Mr Curlewis?

PN6

MR CURLEWIS: That is correct.

PN7

THE DEPUTY PRESIDENT: Do I take it that the parties have made no further attempts to resolve the matter? Yes. Before proceeding I note that - it’s the Commission’s understanding that there had been seven prior proceedings in the Commission in this matter, and this would be the eighth proceeding in relation to this application over a period of some three and a half months. I should, with some regret, say at the outset that the conduct of this dispute to date doesn’t appear to reflect particularly well on anyone. There is no clear or obvious evidence to the Commission of the staff and the university carrying out their responsibilities and working together as partners in the development of the functions of the university.

PN8

I have had a chance to read all of the materials that have been provided to the Commission for this jurisdiction and arbitration hearing today and indeed those materials are quite extensive. I have a concern that there is a serious risk to both parties of adverse findings against the party. I’m not clear in my mind that this indeed is not somewhat of a pointless arbitration and jurisdiction hearing. At least it’s not clear to me that much can be achieved through these proceedings that could not be achieved by reasonable conduct of the parties in negotiations or in conciliation.

PN9

It’s hard for the Commission to see that this matter could not be resolved through reasonable compromises between the parties with all the necessary decision makers present in a much shorter time than the current hearing is scheduled, and I note that there has been a request for further time. Further, it’s not clear to me that the parties couldn’t achieve more by expending the time and resources that are planned to be and programmed to be spent in this Commission in these proceedings disputing so many issues in a better way.

PN10

Therefore that leads me to ask the parties before proceeding further if you would wish to consider entering into further private discussions or conciliation, or considering perhaps another option of a recommendation by the Commission, which the parties would agree to accept. Those comments that I have just made might prompt you to want to reflect on what I have said before proceeding with the hearing today, and I would ask, if that is the case, if you wish to have a short adjournment, perhaps five or ten minutes, to consider what I have said and then for the Commission to resume and to hear what your further thoughts are as to what is the best way to progress this matter towards a mutually satisfactory outcome.

PN11

Mr Stokes, would you wish to have an adjournment?

PN12

MR STOKES: Yes, that’s agreeable to the NTEU, your Honour, a short adjournment of between five and ten minutes, and I do believe that conference room 2 is available for the NTEU to have that discussion, your Honour.

PN13

THE DEPUTY PRESIDENT: Thank you, Mr Stokes. Mr Curlewis?

PN14

MR CURLEWIS: That’s fine, thank you, your Honour.

PN15

THE DEPUTY PRESIDENT: You would concur? That being the case the Commission will adjourn for approximately ten minutes.

<SHORT ADJOURNMENT [10.13AM]
<RESUMED [10.37AM]

PN16

THE DEPUTY PRESIDENT: After a brief adjournment to allow the parties to reflect on the comments made by the Commission I invite Mr Stokes first to give me your further thoughts.

PN17

MR STOKES: Thank you, your Honour. The NTEU did meet down in the conference room and had an extensive conversation about what you proposed to put to us, your Honour. The NTEU are of the view that we would enter into further conciliation, your Honour, to the extent that the conciliation commence this morning with the understanding that such conciliation not progress beyond lunch time and therefore if matters had not been resolved in that process then we would continue with formal hearing beyond that.

PN18

We do have, your Honour, with us today our decision maker Dr Sinclair Jones, who is president of the branch and well able to make decisions. We would assume that the university would also have a decision maker in that process. As to the question of recommendations, your Honour, that is not something - we certainly discussed that matter, binding recommendations that would come out of such a conciliation conference, but we didn’t determine that matter at the time, your Honour, but certainly we’d give that further serious consideration. Thank you, your Honour.

PN19

THE DEPUTY PRESIDENT: Thank you, Mr Stokes, that does assist. Mr Curlewis, your comments?

PN20

MR CURLEWIS: Thank you, your Honour. My client, with whom I have had discussions obviously, has said that from their point of view obviously consultation is far more preferable than disputation, but given the last ..... from their point they are too far apart and we say in this respect that if we are left with the situation that the consultation involves retraction of anything that’s been done to date, we cannot conciliate. If it is for the future that there is - to leave it as it is and nothing is undone but we move forward in good faith, we could have further consultation and would urge that that be done but we would have to have that commitment before we start otherwise it simply goes over old ground.

PN21

That said, if there was that commitment given, that it was for the future rather than the past, and nothing was to be unscrambled by virtue of the consultation, my client would have Professor den Hollander here as soon as she could be, but obviously we couldn’t be sure to get her any quicker than there was that commitment given. So that would be our precondition, we would have to say, to further discussion.

PN22

THE DEPUTY PRESIDENT: Mr Curlewis, thank you for that. You have mentioned attendance by Professor den Hollander. When would she be available?

PN23

MR CURLEWIS: She’s at Curtin and we would have to get her on the mobile. She would travel in fast and barring issues and sticking to the speed limit around 30 minutes. But I have to say it is contingent upon us having some parameters before we start.

PN24

THE DEPUTY PRESIDENT: Having heard those submissions it seems that there could be a basis for the Commission to consider further whether conciliation could take place and with that in mind, and taking into account what has been said by the parties, I invite the comments of Mr Stokes in relation to first the attendance of Professor den Hollander in relation to participation in any discussions. Your view on that first?

PN25

MR STOKES: On that matter, your Honour, the request was that there be a decision maker from both sides. If the university is determining that their decision maker is Professor den Hollander, by all means. Ours is here and waiting, your Honour.

PN26

THE DEPUTY PRESIDENT: Thank you for that. The second question, Mr Stokes, for your consideration, and given perhaps the importance of the question, I would certainly be willing to grant an adjournment if you wished to consider that point further, is the question of what has been put to the Commission by Mr Curlewis in relation to conciliation addressing the future rather than the past. Would you wish to take an adjournment and reflect on that?

PN27

MR STOKES: We will, your Honour.

PN28

THE DEPUTY PRESIDENT: How long would you like?

PN29

MR STOKES: A very short period of time, your Honour, a couple of minutes.

PN30

THE DEPUTY PRESIDENT: The Commission will adjourn - there’s no objection Mr Curlewis - for about five minutes.

<SHORT ADJOURNMENT [10.44AM]
<RESUMED [10.52AM]

PN31

THE DEPUTY PRESIDENT: After a brief to allow the applicant to consider one of the considerations raised by the respondent - Mr Stokes?

PN32

MR STOKES: Thank you, your Honour. Yes, during the adjournment we did consider the matter and the NTEU’s position on the matter is as follows, your Honour: we make no commitment or put on any conditions with regard to the conciliation. We enter into conciliation without any predetermination and in good faith. Your Honour, it’s the dispute matter that is there before the Commission and that is what we want resolved and would welcome the conciliation to assist. Thank you, your Honour.

PN33

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis, the Commission is informed by Mr Stokes that the applicant wishes to approach conciliation in good faith. He wants to have this dispute resolved and however it makes no commitments one way or the other, as I understand it, in relation to, if I can put it this way, past events. My understanding of that is that the applicant is saying that it will have an open mind to enter into conciliation and that it will do everything that it considers to be right and proper to try and achieve a conciliated outcome and I would ask therefore in the circumstances if you could agree to that taking place, to give conciliation a further opportunity. Do you wish to reflect briefly on that, or do you wish to respond now?

PN34

MR CURLEWIS: Your Honour, I can only give what my instructions were and are and it is, if I could put it that way - - -

PN35

THE DEPUTY PRESIDENT: Yes, but if I can just come in there - I’m giving you an opportunity, if you wish, to take further instructions or give further consideration to what I have said, if you wish.

PN36

MR CURLEWIS: I think it’s appropriate that I do so but I need to understand that the commitment sought has been declined and there is also a stipulation that conciliation must finish, I think it is, by lunch time, so there is a precondition put on the part of the union that whatever discussion is entered into must finish by lunch time. I wish to understand if that is in fact a precondition from that side of the bar table.

PN37

THE DEPUTY PRESIDENT: Are you saying to me that you would consider the response of the applicant to that question in relation to the matter that I have just put to you?

PN38

MR CURLEWIS: Well, I am to go back to my client.

PN39

THE DEPUTY PRESIDENT: Yes, I understand.

PN40

MR CURLEWIS: To take instructions. I wish to know that clarity because that in fact is a precondition, if I understand it, that it will talk in good faith but it’s got to be over in two hours. Now, I just wish to know that and if it’s said, no, look we’ll talk in good faith and there are no strings attached to our talking, I need to go back to my client and say that.

PN41

THE DEPUTY PRESIDENT: Yes. Mr Stokes, it would seem that that could be viewed as a precondition in a sense by the applicant, that if the matter is not to concluded by lunch then it should go to hearing, so I would ask - give you the opportunity to clarify further, if you would, anything that might assist the Commission to reach a proper conclusion as to whether or not conciliation would be worthwhile and proper.

PN42

MR STOKES: Yes, your Honour, what the lunch time timeline was to do was to in fact assist and focus all our attentions on the conciliation process. Of course, your Honour, if progress had been made I’m quite sure that that timeframe would be considered at the time. It was simply a process by which we were attempting to focus all parties’ minds on the task at hand. But, as I say, and I’m repeating myself, but it’s important, if progress is being made, we would consider extensions of the time. Thank you, your Honour.

PN43

THE DEPUTY PRESIDENT: Yes, thank you. Whilst it’s the Commission’s decision as to whether or not the Commission would choose to pursue conciliation, it would not be my intention in making such a decision unless there is, from both sides, a desire to pursue conciliation in a genuine way which would enable as speedy as possible a resolution to this long-running matter.

PN44

Mr Curlewis, would you wish to have a brief adjournment?

PN45

MR CURLEWIS: I think it’s appropriate that I re-put the union position to Professor den Hollander, which I shall do very briefly with your permission, and then come back and report.

PN46

THE DEPUTY PRESIDENT: Certainly. Approximately five minutes?

PN47

MR CURLEWIS: If that will - yes.

PN48

THE DEPUTY PRESIDENT: The Commission will adjourn for about five minutes.

<SHORT ADJOURNMENT [10.58AM]
<RESUMED [11.08AM]

PN49

THE DEPUTY PRESIDENT: Mr Curlewis, if you could inform the Commission of the respondent’s position concerning the question of conciliation.

PN50

MR CURLEWIS: Thank you, your Honour. There are two or three things I need to say in this respect. Firstly, I have spoken to my client and in that perspective I was reminded that what is being said as to conciliation is no more than was said three or four months ago in terms of moving forward and nothing said about further conciliating takes it any further, from my client’s point of view. It cannot unwind what has taken place in the past, that is done, as far as my client is concerned, done and achieved and if we are to conciliate or discuss it must be for the future, which means that unfortunately my client cannot enter into negotiations under the terms which have been set essentially by the union.

PN51

I needed to place on record that no mischief should be made of my client’s position. My client is willing to discuss but cannot negotiate in the way it’s been put. My client is always willing to talk to the union in good faith but this dispute has been taken to a level which - cannot take it to discussion at this point. So that being my position, your Honour, we regretfully have to say that we can’t take it further. We need to arbitrate if the union wishes to proceed with this arbitration.

PN52

THE DEPUTY PRESIDENT: I’d like to clarify a little further the position of the applicant. Is it correct that - I understand what you indicated, Mr Stokes, to be that the applicant is not agreeing to a precondition for the conciliation to commit to not pursuing any retraction of past actions. Do I understand that position to mean that you would be entering conciliation with an open mind one way or the other, that you would enter conciliation with an open mind as to whether conciliation would or would not result in an outcome that past events be addressed or not? Is that clear?

PN53

MR STOKES: Yes, your Honour. I think you encapsulated that reasonably well in the context of what we understand to be that we were going to enter into the conciliation with an open mind and in good faith, your Honour. We did say that prior to the adjournment and that was our view then and it is now.

PN54

THE DEPUTY PRESIDENT: Do I understand that to mean that the applicant would approach a conciliation on the basis that there may not be any outcome dealing with past events or there may be an outcome dealing with past events?

PN55

MR STOKES: We enter into it with an open mind, your Honour, yes.

PN56

THE DEPUTY PRESIDENT: Yes. I just want to be very clear.

PN57

MR STOKES: Yes.

PN58

THE DEPUTY PRESIDENT: If that can be taken as a clarification it would seem, Mr Curlewis, that the respondent might be seen to be placing a precondition on the conciliation in pursuing the requirement that the applicant commit in advance the conciliation commencing to not wanting the conciliation to canvass one way or the other, past events. Would you like to comment on that?

PN59

MR CURLEWIS: Yes, I would, your Honour. With respect, I totally disagree with your Honour. The position is that my client asked for a commitment. That commitment has not been given. In fact, the question put by yourself to the applicant was not answered. He just says: we’re prepared to negotiate in good faith. That’s all he says. All bets are on and it’s open slather for discussion. That is what is being said. We will not narrow this issue before we start. We will start from square one.

PN60

Now, you may say that’s good conciliation but the process is that we have been at this - both parties have been at this for several months now and the track record of the applicant to date has been: we wish to unwind the past. My client cannot unwind the past and until one knows one is moving to the future, we’re using the proverbial that has permeated these proceedings - until we are dealing with a new egg rather than the scrambled egg, we cannot conciliate because what is being sought is to unwind the past and it is quite clear, on any assessment of the transcript of what is said, that the union is not prepared to give that commitment. It wants to go back over three or four months’ worth of hard work at the university and unwind that or negotiate that. That is something my client cannot in a practical sense deal with.

PN61

The precondition in fact, if there is one, is being put by the applicant. The applicant says: we won’t give you a commitment. We want negotiation going from A to Z and given the nature of the dispute that is just simply not tenable. So, your Honour, my client is prepared to negotiate in good faith, indeed consistent with some of the intimations you have given at a previous conciliation conference about moving forward rather than looking over one’s shoulder. That is the basis upon which my client can see that this thing can develop to the mutual benefit of both parties.

PN62

But if it is simply said: we won’t agree to that, all we want to do is talk in good faith, we simply see that as obstructive because that doesn’t give us any guideline to move on. It is simply saying: there’s the deck, let’s go on the deck and see what we can do. That is our position, your Honour. Again, I would stress that my client is prepared in good faith to move forward but not go over the past.

PN63

THE DEPUTY PRESIDENT: In relation to the past, I think, Mr Curlewis, you did use the word “retraction” earlier. The question before the Commission is whether the parties are willing to enter into conciliation and whether, if they are, there are any preconditions on that. I understand the applicant’s position - I’ll give the applicant an opportunity to comment shortly - to be that from what was said earlier that indeed there is no precondition one way or the other being put on this by the applicant.

PN64

But I do, as I have said to you earlier, understand that what you’re putting is, in a sense, a precondition, even though you have put to me that you are indeed attempting to narrow the issues before you and that you did seek a commitment. I have heard what you have said in relation to that. But I’m still having difficulty in seeing that that is not a precondition. I will hear the applicant, Mr Stokes, on what Mr Curlewis has said.

PN65

MR STOKES: Yes, your Honour. We don’t place any precondition on the conciliation. I can only repeat that the dispute is there in terms of questions of guidelines. We are open minded. Conciliation will require, and does always require, ..... of compromise on both sides. Therefore we would not enter into the conciliatory process with preconditions and narrowing issues and matters. We’re ready, willing and able to do it, your Honour, and they would be the comments that I would continue to make. Thank you, your Honour.

PN66

THE DEPUTY PRESIDENT: Yes, thank you. Do I take it that you - you’re not addressing Mr Curlewis’ comment about unwinding the past. Do you not wish to comment on that?

PN67

MR STOKES: Your Honour, we have made comment on that to the extent that we give no commitment for the reasons that we have given with regards to questions of preconditions, with regards to matters in conciliation. Thank you, your Honour.

PN68

THE DEPUTY PRESIDENT: Thank you. It would seem to the Commission that it is and would be unfortunate if either party declines to pursue conciliation for reasons which relate to some of the comments that I made at the commencement of this hearing. And it would seem to me that whilst understanding that each party would want to enter conciliation on the basis that there was the best possible environment present for a successful outcome, it would seem to the Commission unfortunate that this opportunity to do so today, which might, through reasonable compromises by both sides, lead to a final resolution of this application which has been long-running and time-consuming, if every opportunity to that option was not explored.

PN69

However, having said that, this matter has been listed for hearing today and I would be reluctant to enter into conciliation given the statement of Mr Curlewis that he disagreed with the Commission’s interpretation of what the situation concerning conciliation might be, in that Mr Curlewis has sought a commitment in advance of the conciliation, as I understand it, for a logical reason that might narrow the issue before the conciliation, but nevertheless the Commission would be reluctant to pursue conciliation given what I would call a precondition put upon the conciliation by this respondent which is that the past and what might happen about the past could not be at least canvassed in the conference.

PN70

Now, if that’s a misunderstanding of the position of the respondent, please, I would like you to clarify that but it seems to me that what I’m hearing is the applicant is saying that it’s willing to go into conciliation, there are no preconditions, it seems to me that the respondent is saying that it would go into conciliation but there is a precondition which doesn’t seem to have been satisfied. But before making a final ruling on conciliation, certainly if either party would wish to comment on that further please do so.

PN71

Would you wish to go first, Mr Stokes?

PN72

MR STOKES: I’m happy to do so, your Honour. I just wish to put on record that the NTEU agreed to your offer of conciliation, your Honour, and we’re ready to do so. Thank you.

PN73

THE DEPUTY PRESIDENT: Mr Curlewis?

PN74

MR CURLEWIS: Your Honour, I have a proposal without instructions but I’m prepared to go back to my instructors. If there is genuine intent on the part of the NTEU to negotiate, it should be done in a context where there is no gun to anyone’s head; that is to say, there is a dispute ready for hearing. If this good faith is such that we are prepared to sit down and talk and there’s no timeframe put on it, it would be appropriate, and I will take instructions if the NTEU intimates that it would go along with this. I will go back to my instructors to see if they would simply come to the negotiating table with no strings attached provided that this arbitration is adjourned, i.e. we have a day, and time is set, we have a senior person from the university available to talk so that the parties sit down and make a full fist of it to see what can be done.

PN75

That is good faith but it is not appropriate to be - and it’s now half past 11 - saying finish it by lunch time or, as it was said, if we’re getting somewhere we’ll continue it. The parties need to have no pressures on them either way and need to sit down. If that were so, if I had an intimation that the union would agree to that, I would take instructions and put some submissions and come back very quickly with a proposal.

PN76

THE DEPUTY PRESIDENT: Thank you. That does assist, Mr Curlewis. In relation to what has been raised by Mr Curlewis, it would seem to the Commission that whilst this matter is listed for hearing, for jurisdiction and arbitration, there are a number of witnesses that are present and yet to be called. The Commission needs to consider the convenience of them and the Commission needs to also consider the practicalities of conducting a full hearing in this matter, noting that the parties have already submitted that more than one day is required and noting the Commission was reluctant, taking into account the public interest and the requirements of the Act and list more time on this long running dispute which has involved much time of the Commission and the parties already.

PN77

So, taking that into account, it would seem that there is a basis for the applicant to consider seriously that request, that the respondent be allowed to finalise its position on the basis that the applicant would consider adjourning the hearing today to allow conciliation to take place, but on the basis that if the conciliation failed, that the hearing would resume at a time that the Commission would choose, taking into account the views of the parties.

PN78

Would you wish to have a brief adjournment, Mr Stokes, to consider all of that?

PN79

MR STOKES: Yes, thanks, your Honour.

PN80

THE DEPUTY PRESIDENT: About five minutes?

PN81

MR STOKES: Yes.

PN82

THE DEPUTY PRESIDENT: The Commission will adjourn for five minutes.

<SHORT ADJOURNMENT [11.28AM]
<RESUMED [11.38AM]

PN83

THE DEPUTY PRESIDENT: We resume after a brief adjournment suggested by the Commission to enable Mr Stokes to confer and reflect and I would like your report back.

PN84

MR STOKES: Thank you, your Honour. Your Honour, we agree that the dispute has gone on long enough. The question to the issue of the conciliation conference and timeframe is that we have already stated. Of course, we would reflect on questions of time if progress was being made in conciliation. We have got things listed for the rest of the day, your Honour, which clearly we have got the capacity there in terms of conciliation. Hopefully matters would be progressed in terms of conciliation but there is therefore always the option, if they’re not for a hearing to be called as a matter of urgency. So, again, I wish to say that we welcome the opportunity for conciliation, your Honour.

PN85

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis?

PN86

MR CURLEWIS: Your Honour, that’s not an answer to the proposal put. It is simply saying we welcome conciliation but it’s not said we will adjourn or otherwise into conference. It’s quite clear to me that the union is saying in good faith, no strings attached, we wish to conciliate. My client has now also said: good faith, no strings attached, we won’t put any strings attached. We wish to conciliate.

PN87

It seems to me that the appropriate issue in the public interest, and I’ll say that with a capital P, capital I, so that no further wasted time is spent, that this Commission within its powers simply adjourn the matter and direct the parties to go and conciliate for the rest of the day and adjourn it to no fixed date on that basis. It seems to me that is the outcome of the good faith of both parties. There is no good faith if one party wants to have the matter hanging and wants to negotiate in good faith. The good faith is exhibited by the matter being taken off the list and the parties get round the table and start hammering it out. And my respectful submission is that this matter should be adjourned at the Commission’s direction to no fixed date and the parties directed to get together as soon as possible.

PN88

THE DEPUTY PRESIDENT: Thank you. Yes. The question at the hearing is one that I think that I should comment on. Certainly this application is before the Commission, it’s been listed for hearing for the day and it is possible for the Commission to adjourn the hearing sine die but also to indicate to the parties that the matter is still a live application before the Commission and if discussions between the parties were unsuccessful then the Commission would use its best endeavours to re-list the matter at short notice if an application to do so was made.

PN89

In relation to the question of conciliation or private discussions, I would like to clarify with the parties specifically whether it would be your desire to commence those as soon as possible in the Commission this morning or whether it would be your preference to discuss an appropriate timeframe. Mr Stokes?

PN90

MR STOKES: As soon as possible, your Honour, this morning.

PN91

THE DEPUTY PRESIDENT: Do I take it that the applicant is ready now, in effect, to commence those discussions.

PN92

MR STOKES: Absolutely.

PN93

THE DEPUTY PRESIDENT: The Commission would be willing and would wish to cooperate if it was useful to both parties to provide facilities here for those discussions as soon as possible to commence. Mr Stokes, you wanted to say something?

PN94

MR STOKES: Sorry, your Honour, just a point of clarification, that in terms of - I use the phrase “private decisions”, we understood that you are referring there to questions of conciliation with your presence, your Honour.

PN95

THE DEPUTY PRESIDENT: Yes, I’m glad you raised that because I was intending to come onto that and you got in first. The question that’s in my mind that I have been considering is whether the parties would wish to have conciliation or indeed private discussions. This is a thought that’s recently come to mind. Bearing in mind that the matter is listed for hearing for jurisdiction and arbitration and this indeed is all occurring within that context, I would like to seek your further views on whether you would wish to have conciliation or private discussions.

PN96

If it was conciliation, whether it might be more appropriate to have conciliation with another member of the Commission present on the basis that this is, as I have said, a hearing which is in progress. But I have an open mind as to considering what the parties would wish and the Commission’s duty of course is to act in an informal manner and a manner free from technicalities if that is what would be of greatest assistance.

PN97

Mr Curlewis, did you wish to comment on any of those matters?

PN98

MR CURLEWIS: Thank you, your Honour. My client’s position would be that the discussions should be private to the parties. It would be preferably here on the basis that if it was going sideways or they needed your assistance you might possibly be available to, at their joint request, intervene at some other stage. But we would prefer to have meetings between the parties, a meeting, and use the facility and the rest of the day on that basis. That would be our way we wish to approach it.

PN99

THE DEPUTY PRESIDENT: So, to clarify that, your position is that the university would wish to commence private discussions in the Commission’s premises forthwith and on the basis that parties would wish the Commission to be, as it were, on standby if there was an agreement between the parties that the Commission should resume then a request could be made to my associate for me to join with the parties in the appropriate way.

PN100

MR CURLEWIS: Your Honour, yes, certainly. That would not mean, I stress, any disrespect to yourself that you essentially were kept on tenterhooks as to what was going on. I would certainly, if the facility was available, and the parties knew it was, my client would appreciate that, but I would need to be sure that this was on the basis that the day was set aside for the discussion and that the arbitration aspect - potentially my brief on that point was adjourn it and that the parties - my client knew that they were sitting down to discuss it as opposed to it calling upon yourself to be in the conciliatory mode rather that the arbitral mode.

PN101

THE DEPUTY PRESIDENT: Yes. Thank you. It was certainly my intention to suggest that the hearing today be discontinued to allow today to be used by the parties as fruitfully as possible with the best environment for discussions to take place and indeed with the aim in mind of trying to resolve this dispute today. However, if that couldn’t be done then certainly an application can be made at short notice for the hearing to resume. That was certainly my intention to indicate that.

PN102

I can assure you, Mr Curlewis, that the Commission, having set aside today for the purpose of hearing, would be hopefully relatively accessible at short notice if the parties so wished but I would like to hear some further clarification from the applicant as to what would work best from the applicant’s point of view.

PN103

MR STOKES: Your Honour, we do understand and agree in the context of your summary with regards to the hearing and understand that if the conciliation did not resolve matters then you would take application and call the hearing on at short notice. We have no argument with that.

PN104

As to the question of the discussions that we have had this morning, your Honour, our mind is being put to questions of conciliation, that our understanding and in discussion throughout the adjournment was to matters of conciliation. We have agreed to that. We were not of the understanding that they would be questions of private discussion. But, your Honour, my experience through the conciliatory process is that from time to time, your Honour, there has been a process by which it has been advantageous to parties to enter into private discussions, coming out of conciliation. That is something that we are open minded about, your Honour.

PN105

But we understand that where we’re heading is into questions of conciliation in an attempt to resolve this dispute, and again we would agree with your Honour that it is a long-running dispute and we want the matter resolved. We enter into this process in good faith. We enter into this process with an open mind, but we set no preconditions. We have a view that we have a discussion around the fact that the remainder of the day could assist that process but we do repeat, your Honour, that if the process cannot be progressed with the intention that compromises occur in these sorts of situations, then we were ready, willing and able to go ahead with hearing today and that we do reiterate that you have stated at short notice you could call the matter on.

PN106

THE DEPUTY PRESIDENT: Yes.

PN107

MR STOKES: Thank you, your Honour.

PN108

THE DEPUTY PRESIDENT: Good, thank you, Mr Stokes, that’s very clear. Just before Mr Curlewis giving some comments, it occurs to me that perhaps a way of proceeding which might, as I say, give the best chance to a resolution of this matter and a speedy one, which is certainly desirable, it is something which it would be unfortunate if this matter was prolonged and drawn out. It needs to be dealt with quickly and as decisively as possible to get to a reasonable outcome which usually involves reasonable compromises by each side.

PN109

It occurs to me that if the parties started in private discussions and on the basis that if any unforeseen difficulty arose the Commission would be available, would certainly use its best endeavours to be available quickly, to be available to the parties to assist whether in a conciliation conference or some other way, then I have an open mind as to what would, as I say, work best. But the Commission is here to assist and would want to do everything that would enable that to happen.

PN110

What I’m putting in short is if the parties would wish to commence private discussions and if there is any desire for the Commission to become involved to notify my associate and I could then become involved. I would seek your views on that and would invite your comments now, unless you’d like to reflect a little further.

PN111

MR STOKES: Can I just confirm, Commissioner.

PN112

THE DEPUTY PRESIDENT: Yes, please do.

PN113

MR STOKES: Your Honour, we’re in your hands with regards to the question of the private discussions but what you have clearly stated - that’s what I was conferring about - is that clarification that at any time either party require assistance then you’re suggesting that you would be available.

PN114

THE DEPUTY PRESIDENT: If the parties so wished and a request was made then certainly I would wish to assist.

PN115

MR STOKES: Well, hopefully that’s agreeable to all parties concerned but certainly that’s our view, your Honour.

PN116

THE DEPUTY PRESIDENT: Yes. Thank you. Upon agreement by both parties the Commission would wish to assist. Does that answer that?

PN117

MR STOKES: Yes, your Honour.

PN118

THE DEPUTY PRESIDENT: Indeed, thank you. Mr Curlewis?

PN119

MR CURLEWIS: The latter issue first, yes, your Honour, that’s fine. My client is happy for that process, for your being available to assist as requested and subject to two things I would obviously move that we get on with the discussions, but I do need to clarify - well, let me just indicate, I obviously have to call Professor den Hollander and say get ..... soonest and so I need to talk to Mr Stokes just to say exactly what time to start.

PN120

Secondly, as to - and this may be unnecessary given the parties are entering into discussion in good faith - it may be unnecessary that this matter be re-listed again. What I heard you to say was that you would entertain an application for an early listing and you gave a commitment to list it early. What I need - that distinction is that if an application were made for an early listing my client would be given opportunity to respond to that application, rather that you would simply list it early. There is a big distinction there and I need that clarified. I don’t in any way negate the good faith the parties are about to commence with, but it’s important that it be not misconstrued that you have committed to list this matter early other than to hear an application for it to be listed early or to have submissions at least in that respect, that all be said.

PN121

THE DEPUTY PRESIDENT: Yes. Mr Stokes?

PN122

MR STOKES: The second point first, your Honour. It’s a live dispute and our understanding is it can be called on at any time and we do not agree with the respondent on that matter. We heard what was said, your Honour.

PN123

With regards to another matter, your Honour, the question of being able to request your assistance, it’s just a point of clarification, your Honour, I might have misunderstood but my understanding is that either party would be able to call on you for assistance, not by agreement between parties. It would be our view, your Honour, that it be either party who should have that opportunity. Thank you, your Honour.

PN124

THE DEPUTY PRESIDENT: Yes. Thank you. I appreciate these - what might appear to be small points but may prove to be important. The Commission would be willing to be available at the request of either party but before reaching any conclusions about what its involvement or assistance could be would wish to seek the view of the other party.

PN125

Similarly, with an application to list the hearing again at short notice, in the unfortunate circumstance that that became necessary, the Commission would be willing to allow the other party, within a relatively short period, time to give a response before actually listing it and perhaps one day, but I would be open to any comment on that - to allow the other party one day to give any comments to the Commission before it actually - and perhaps any suggestions about non-available dates before listing the matter again on a particular date.

PN126

Were there any further questions that should be addressed? I’m conscious of the fact that the time is moving on and the parties will need to make the best use of the time that is available.

PN127

MR CURLEWIS: The only request, your Honour, is that before you rise you simply adjourn these proceedings, as I understand will happen, by simply adjourning them in front of both parties and we can get on with the discussion.

PN128

THE DEPUTY PRESIDENT: Mr Stokes?

PN129

MR STOKES: Your Honour, I think it’s incumbent on the NTEU to say just one thing with regards to the matter and by all means let’s get on with it, and I’m more than happy to have a discussion with the respondent around the conciliation with regards to an early lunch and get on with matters post haste. But can I just state that this is an application by the NTEU and we are adjourning this. This is our application and in terms of going into the processes with regards to conciliation we are doing so with an understanding that there is an adjournment to attempt to resolve the dispute and that the matter will be called on for hearing if that process does not satisfy the resolution of the dispute. So we repeat that this is our application and we need to say that.

PN130

THE DEPUTY PRESIDENT: Yes, certainly. Mr Stokes, it appears beyond dispute that this is the NTEU’s application. I note however the matter will be adjourned shortly into private discussions but, as I have said, from those private discussions a request can be made for the Commission during the course of the day to be available to assist the parties, as I have said earlier,, and I don’t think I need to repeat the fact that if the further discussions and deliberations are unsuccessful then there is a clear procedure in place for this matter to be brought on again.

PN131

That being the case, it remains only for me to again stress the serious importance of both parties addressing frankly and constructively - I repeat that - frankly and constructively the issues in dispute, recognising their obligations and responsibilities which affect many people, which arise from obligations that both parties have freely entered into in the past, which are enshrined in a certified agreement and to act reasonably and bring about an outcome which satisfies and fulfils those commitments and responsibilities so that this matter can be resolved expeditiously, the sooner the better, and not dragged on but, to the contrary, be brought to a rapid but fair conclusion in the interests of both parties and their constituents. We’ll now adjourn.

<ADJOURNED ACCORDINGLY [12.05PM]