C2006/1092, Transcript of Proceedings [2006] AIRCTrans 1303 (13 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16273-1

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

2.05PM, MONDAY, 04 DECEMBER 2006

PN1

MR P STOKES: Your Honour, I represent and appear on behalf of the National Tertiary Education Union. Thank you.

PN2

MR I CURLEWIS: Your Honour, I appear for Curtin University.

PN3

THE DEPUTY PRESIDENT: Thank you. The question of leave has been addressed and the grant of leave continues to apply. I now turn to the matter before the hearing and I note that it was listed at short notice upon application by the applicant. As the parties are aware, the matter is listed for a jurisdictional and arbitration hearing and I must commence with the jurisdictional question first. In the letter of 28 November to the Commission, Mr Stokes indicated the NTEU agreed to enter into a further conciliation with the University. I should clarify that it was not conciliation that occurred, it was private discussions between the parties as the Commission did not participate in those private discussions and nor did it seek any report-backs on the details of those discussions.

PN4

On that note, I would ask the parties first what the latest positions are as to whether or not the private discussions do provide a basis for any useful continuance of them or not. Mr Stokes first.

PN5

MR STOKES: Your Honour, as was discussed the last time we were here, is that the NTEU's position was that we would enter into further discussions as suggested at the time, your Honour, with regards to the University. The NTEU entered those discussions in good faith and we met on the afternoon - that afternoon of the Thursday, your Honour. I've just for the moment forgotten the date, but it was the last time that we were here. At those discussions, your Honour, we spent many a good hour discussing what we felt was a compromise position from the NTEU. Also it was of the view of the University from Professor den Hollander that they would look at further compromises from the NTEU and they would take those back to the vice chancellor.

PN6

I guess it is worth noting, your Honour, that we were of the understanding at those discussions that there was going to be a decision-maker there and we were more than happy that that was the case and were slightly disappointed that the matter had to go away for consideration by the vice chancellor. That being the case, the NTEU requested that there be a response to the compromise position that it proposed to the University, to return the following Monday as outlined in my communication to you, your Honour, with a view. We felt that we had made many compromises with regards to the matter. We certainly had a strong view that we entered those discussions with an open mind. We also came up with a proposal that I have to say to your Honour that was a very painful process from our side and we felt that it was a fair and reasonable proposition.

PN7

The University quite clearly had an alternative view and communicated the fact back to us by close of business on the following Monday. Your Honour, on the basis of that, we felt that there was nowhere to go, we felt that there was no scope for further discussions, but we also felt we had an obligation to write to you, your Honour, certainly forwarded a copy to the respondent, the University, and were of the view that there simply was no scope for further discussion and sought that the matter be listed for hearing. We are now here, we're ready, willing and able to have the matter heard and concluded. Thank you, your Honour.

PN8

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis?

PN9

MR CURLEWIS: Thank you, your Honour. Your Honour, in brief, the discussions that took place were also entered into in good faith by my client. Some concessions were made as well in those discussions, but the overall outcome was that no compromise could be reached and we are here because the matter has been brought on for hearing, and I don't wish to labour that point, other than to say discussions have failed at this point.

PN10

THE DEPUTY PRESIDENT: Mr Stokes, do I take it that it's your assessment that the discussions have failed and at this point, if that is the case, is it your assessment that there is no purpose at this time in renewing those discussions?

PN11

MR STOKES: Yes, your Honour.

PN12

THE DEPUTY PRESIDENT: Yes. At the previous hearing, I raised the question of possible conciliation and there was some to-ing and fro-ing, should I say, concerning that. But that option was not pursued. I would ask before proceeding further as to what your positions would be in relation to whether conciliation you consider could be of assistance in trying to resolve any remaining differences, noting from what's been said that compromises were made by both parties and therefore the question arises as to whether you would be of a view that conciliation may be worth pursuing as an alternative to pursuing with a jurisdiction and arbitration hearing. I would like to hear your views on that. Mr Stokes first?

PN13

MR STOKES: Just a clarification on that, your Honour. My memory of that matter when it was raised previously is that you proposed or suggested the question of conciliation, but you also raised it, I believe, in the context of a question of recommendation, or recommendations. Is that still your view with regards to that question, your Honour?

PN14

THE DEPUTY PRESIDENT: Yes. Certainly, Mr Stokes. Just to clarify, I did foreshadow one possible option being whether conciliation by another member of the Commission, given that this matter is listed for hearing, might be of assistance. I also pursued the question of whether the parties might wish to seek the assistance of the Commission by way of a binding recommendation. Indeed, I think in the transcript at paragraph 18, Mr Stokes, you indicated a willingness to give further serious consideration to this. I hope that clarifies the point you were raising. Do you wish to respond to those two issues, conciliation - - -

PN15

MR STOKES: No, that clarifies it, your Honour.

PN16

THE DEPUTY PRESIDENT: Yes. Well, if you could let me know, then, the position of the applicant in terms of whether you feel conciliation may be of assistance or alternatively, whether you would wish to advise me your position concerning a binding recommendation, or perhaps further consideration of that.

PN17

MR STOKES: Your Honour, could we just have a slight adjournment to discuss that, for five minutes, please?

PN18

THE DEPUTY PRESIDENT: Yes, certainly. Would you like a formal adjournment? Yes. Mr Curlewis, any objection to that?

PN19

MR CURLEWIS: None.

PN20

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

<SHORT ADJOURNMENT [2.15PM]
<RESUMED [2.34PM]

PN21

THE DEPUTY PRESIDENT: The Commission adjourned for approximately five minutes and I understood that the parties wished a little more time, so the adjournment extended for that purpose, and I know invite Mr Stokes first to let me know your further thoughts.

PN22

MR STOKES: Your Honour, thank you for the adjournment and also thank you for that slight extension. Your Honour, my instructions are that we - that is the NTEU - would agree to conciliation with binding recommendations as put to us. Your Honour, we are about having this matter resolved. This matter, our application, went in on 8 August. That's four months ago. We want the matter resolved. So we propose, or respond to the request that you have put to us to the extent and to repeat that conciliation with binding recommendations. Your Honour, with that before us, I would only add that if that was going to be acceptable to all, then what we would want was urgent action on that. Thank you, your Honour.

PN23

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Stokes. That is indeed a constructive response. Thank you for that. Mr Curlewis, I would invite your response to that, but I'd like to ask you if you'd wish to have an adjournment to consider that?

PN24

MR CURLEWIS: No, we have considered it in advance, thank you, your Honour.

PN25

THE DEPUTY PRESIDENT: You have considered it?

PN26

MR CURLEWIS: Your Honour, my client's position, it considers that certainly through the auspices of the Commission, there have been, with respect, magnificent efforts made to date from the Commission's point of view in an attempt to conciliate. My client considers that if this matter is to be resolved, it can really only be resolved between the parties in private discussion. It sees that as the practical way to go. My client is also open to discussing matters. The door is not closed now, but certainly the discussions, as there were last Monday, failed. We do not, with respect, agree to conciliation with binding recommendations. We think too much water has gone under the bridge, too much paperwork is before the Commission and we feel that either the matter be adjourned, simply for the parties to meet at their leisure, but we certainly would not want any conciliation to come down as any matter of urgency.

PN27

This matter has gone far too far in terms of time. It is not urgent, in our respectful submission. We would therefore, if the union does wish to talk further, that door is open, but that would have to be at an appropriate time, for instance, Professor den Hollander set aside extra time last week to discuss further, cancelled her appointments, those came to naught, so the parties made every effort and for further conciliation now to take place at this stage just before Christmas we think is simply an imposition on all parties. Therefore in summary, we would be happy at any stage to talk to the union, but not by virtue of the conciliation now coming on, particularly with binding recommendations.

PN28

THE DEPUTY PRESIDENT: Thank you. Are you in essence saying that you, on behalf of the respondent, do not accept either conciliation or a binding recommendation from the Commission, but you do propose private discussions by agreement between the parties? Is that in essence what you are saying?

PN29

MR CURLEWIS: Well, to take the latter first, discussion is always by agreement. We simply say the door is open and my client is always amenable to discussion privately between the parties, matters. When it comes to the question of conciliation, with respect, your Honour, you have the power to direct conciliation. It's a question of whether you in fact could take it further to direct recommendations. With respect, I don't think that can be directed, but you can certainly direct conciliation. Given, as I say, the extremes, magnificent extremes the Commission has gone to already, we do not believe the conciliation process as chaired by the Commission is the appropriate way to go. We think the matter can be better resolved between the parties directly in private discussion.

PN30

So we leave that door open and simply leave it in the hands of the union, if it wishes to take that position for further debate. But as to the arbitration proceedings, obviously that depends on the union's attitude to that proposal we put forward.

PN31

THE DEPUTY PRESIDENT: Yes. Mr Curlewis, it's my understanding of the submission of Mr Stokes earlier that a difficulty - as I understood the submission from Mr Stokes, and he can correct me if this is not a correct understanding, is that there was a difficulty at a meeting in that there appeared to be a position to be taken back to the vice chancellor and that it wasn't possible for the matter to be decided in the meeting concerned. Is that your understanding also?

PN32

MR CURLEWIS: Your Honour, as I understand it, and I wasn't there, but I believe my instructions to be precise, the union ultimately put forward a list of seven issues and the University went back in writing by the end of Monday, the 27th with its response. Some of them were agreed and some weren't, and that's where it got to. That was after consultation between one of the deputy vice chancellors and the vice chancellor. So there was always an appropriate person to negotiate. Ultimately, the managing director can't always be there - that's the vice chancellor - and the most senior person from the University was there and, nevertheless, needed to take instruction and did. That's where it got to, that what was put forward as a package by the union could not be accepted by the University and that's where it got to and the simplistic position is that having responded between the two parties, the union was told that's what we can accept, that's what we can't, and the next thing my client was aware, was the letter you received saying we're disappointed and I want arbitration. That is the position.

PN33

THE DEPUTY PRESIDENT: Yes. Mr Stokes wishes to speak and I will allow him just a moment. You would understand, Mr Curlewis, that in considering how this matter might be best progressed in the interests of the parties, and noting your comments about private discussions being the best way to go, I wanted to have an understanding of what might be the best possible environment, if any future private discussions are going to take place and ensure that they are successful. And if those discussions are to take place, don't fail again. Are you saying to me that, as you see it, there is no procedural barrier that would cause a problem?

PN34

MR CURLEWIS: Well, but I don't understand procedural barrier; in what sense?

PN35

THE DEPUTY PRESIDENT: In terms of having the relevant decision-makers present and the timing of such discussions.

PN36

MR CURLEWIS: There are two barriers. One is this, that my client cannot get any guarantee that things can be done sort of yesterday, as was said, I think the last thing from Mr Stokes, they want further discussions to take place immediately. This thing has been running since July. An application was made for interim orders and that was declined and my client has been continuing business as it has without interruption. There is no basis for this matter to be brought on now as a matter of urgency, particularly just before the Christmas period, particularly as those negotiating are making other arrangements. Prof den Hollander is not here tomorrow, for instance. Prof Craven, you have seen their availabilities. It is just not something that needs, with respect, to be brought on that quickly. That is the barrier.

PN37

If discussions could take place to the suitable parties, then those will take place. They have to. There needs to be discussion between the parties in the workplace. That doesn't take Blind Freddy to see, if I could put it that way. But it's a question, the same position is we want to conciliate, we want to talk, as the union says, but it's got to happen now, and the fact is, that is a demand which cannot be met. That's the one issue. As to the seniority of the person negotiating, my client cannot give an undertaking, and won't give any undertaking that the vice chancellor herself will participate in these discussions. A senior, very senior executive from the University is present and it is quite appropriate that sometimes aspects need to be considered out side the meeting

PN38

But fundamentally, decisions in principle can be made and they have to be checked with the vice chancellor and that's the level which we would be able to negotiate. It's not an issue that the vice chancellor is going to run to the table and discuss it. It's not that level of negotiation.

PN39

THE DEPUTY PRESIDENT: Thank you, Mr Curlewis. Mr Stokes, I know that you wish to make some comments and if you could also address your response to any suggestion of further private discussions.

PN40

MR STOKES: Thank you, your Honour. Your Honour, with respect, we don't believe Mr Curlewis actually answered your question with regards to clarification around decision-making and seeing I was at the meeting, I think it is useful to clear that point up. Our understanding when just prior to us going into those discussions that both parties agreed to going into those discussions, we at the time had a decision-maker, Dr Jan Sinclair-Jones, who is the president of the branch and she was in fact in attendance from the beginning of the hearing and we said we were more than happy to go into those discussions as long as the University had a decision-maker. We believe it was clarified that Prof den Hollander was a mobile phone call away and that she would be ready, able, and able to make decisions.

PN41

Therefore, it surprised us during the process of those discussions that Prof den Hollander, when we got to the question of matters of compromise, made the point that she had to go away and discuss things with the vice chancellor. It appears from our perspective, your Honour, that the question of conciliation with binding recommendations is a way to have this matter resolved. We believe it's disingenuous of the respondent to suggest that to enter into further private discussions, which both parties did, and the NTEU with good faith in an attempt to resolve it, and we believe that we came up with a range of compromises that in fact could satisfy the needs and interests. We believe the NTEU, it would be fair to say, bent over backwards during that process. The fact of now going back into those private discussions, your Honour, from our perspective would not assist us moving forward.

PN42

But we do believe - we do believe - conciliation with binding recommendations would have this matter resolved and resolved quickly, but we have heard what the other party have said and clearly they are not of the same view with regard to that matter. But we would still like to say to you, your Honour, that we are willing and able to do it. Thank you, your Honour.

PN43

THE DEPUTY PRESIDENT: Yes. Thank you, Mr Stokes. Yes. From what's been said, it seems that the applicant is agreeable to conciliation and resultant binding recommendations from the parties to resolve this dispute quickly. As I understand the position of the respondent, it does not agree to that course of action, namely, conciliation particularly on the basis that that would lead to binding recommendations. I note also that the respondent proposes continuing private discussions and that the applicant does not favour the continuation of that approach. It seems therefore that there is now no agreement between the parties on the question of the matters that I raised, conciliation or a binding recommendation, or the matter that's been raised by the parties in response also to my question earlier about further private discussions.

PN44

I am satisfied that I have explored those options and being of the understanding that the applicant is anxious to have this matter dealt with quickly, I would like to be very clear just to clarify with both sides, firstly, that you agreed that I have summed up the situation correctly, and if that is the case, whether you are now - what is your view in relation to the commencement of the formal hearing now. Mr Stokes first.

PN45

MR STOKES: Your Honour, if it is the determination of the Commission not to go down the pathway of questions of conciliation with binding recommendations, then it is our view that we are ready, willing and able to go into formal hearing, your Honour.

PN46

THE DEPUTY PRESIDENT: Yes. Certainly just to clarify, it seems to me that there would be - would not be a helpful course of action for the Commission to attempt to conciliate this matter in the absence of agreement by both parties, since conciliation by its nature depends upon the parties cooperating with the assistance of the Commission to reach some reasonable outcome. Mr Curlewis?

PN47

MR CURLEWIS: Yes. I think that's the position. I think that conciliation and a meeting is not going to be available today, I think it must take its course if the NTEU wishes to proceed with its arbitration.

PN48

THE DEPUTY PRESIDENT: Yes. Well, I intend to proceed with the matter as listed. However, I do wish to do so on the basis that at any time the Commission is open to any further proposals from either party as to what might assist the parties in the resolution of this matter. Mr Stokes, did you wish to say something?

PN49

MR STOKES: No, your Honour.

PN50

THE DEPUTY PRESIDENT: No? You were just thinking?

PN51

MR STOKES: Just pondering, your Honour.

PN52

THE DEPUTY PRESIDENT: What I would intend to do first is to canvass the question which must be addressed by the Commission which is does the Commission have jurisdiction to settle the notified dispute. It seems that that is the starting point for these proceedings, does the Commission have jurisdiction to settle the notified dispute. I would like to just confirm with both sides that that is your view of what the Commission must do first. Mr Stokes?

PN53

MR STOKES: Yes, your Honour. Thank you. Your Honour, it was our view and our understanding, which it is still our view and our understanding, that the matters of jurisdiction and the merits of the matter could be determined and heard at the same time. We appeared and do appear with that understanding. So it would be our view that matters be progressed in terms of our application where jurisdictional and the merits of the matter be determined as one. Thank you, your Honour.

PN54

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis?

PN55

MR CURLEWIS: Your Honour, the process you follow, with respect, is yours. Neither party dictates on the procedure. In my respectful submission, indeed the fundamental point the Commission has to find out is whether it has got jurisdiction, not to as I take it, settle per se, but arbitrate this matter. We are before you by virtue of a dispute lodged under section 14 of the certified agreement and that is, where the Commission determines it does not have jurisdiction to arbitrate on a matter, in the sense of your power is here to arbitrate rather than to settle, per se, and it's only a play on words, but I think it's important that all parties are clear on what powers you will be exercising.

PN56

THE DEPUTY PRESIDENT: The Commission's power derives of course from the Act, and the Act under section 170LW does empower the Commission to settle disputes over the application of the agreement. So it would seem to me that the notified dispute to the Commission clearly would, if the Commission has power, involve that dispute which is a dispute or should be a dispute over the application of the agreement to be settled. Do you have any difficulty with that reading of the Act, Mr Curlewis?

PN57

MR CURLEWIS: Yes, I do, with respect, your Honour. The outcome may be a settlement of it, but as I understand it, and it may be the effect of any orders you might make as a result of the arbitration, but as I understand it, when talking about settlement in that context, that's more to a conciliation mode. This has now become the arbitral power. That is, you are being asked to arbitrate and make a determination and a finding to make orders as a result of the referral by the parties to you to arbitrate on a matter, as opposed to conciliation on a matter. And I really make that distinction and no more can be said of it. If the outcome is that the matter is settled by virtue of that, that would be where I would see it go. No more than that, your Honour. As I understand it, this is an arbitration of a dispute as opposed to a settlement of a dispute.

PN58

THE DEPUTY PRESIDENT: It would seem, Mr Curlewis, that the dispute procedure, which is clause 14, does have certain steps in it.

PN59

MR CURLEWIS: Yes.

PN60

THE DEPUTY PRESIDENT: Those steps include conciliation and indeed arbitration. But whether the Commission is conciliating or arbitrating, surely it would be, as envisaged by the Act, that that is settling a dispute over the application of the agreement?

PN61

MR CURLEWIS: In the end that would be the outcome, and I don't cross swords with you on that.

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR CURLEWIS: Our position ultimately is that, if I could say this, and you have asked does the Commission have jurisdiction to settle the dispute, I would accept that that's the first question the Commission has to determine, is whether it has jurisdiction to deal with this matter.

PN64

THE DEPUTY PRESIDENT: Yes.

PN65

MR CURLEWIS: Our position, from the papers you would understand, is that this matter is premature, but that's - being here, but that is for another day.

PN66

THE DEPUTY PRESIDENT: Yes, thank you. Mr Stokes, the Commission can't do everything at once, as you would appreciate, but this is quite a substantial hearing, with the documentation and the issues. The Commission needs to start somewhere and it would just seem, as I said at the commencement of this hearing, I would elaborate that by now, saying that it would be a logical starting point for the Commission to commence with the jurisdictional question. If jurisdiction does not exist, because the respondent is opposing jurisdiction, the matter would be dismissed and that would be the end of the application. If jurisdiction is found, then the application proceeds to arbitration for determination and for the Commission then, depending upon that circumstance, the outcome of the arbitration, then move to address the question of the orders sought.

PN67

So it would seem that that would be the logical way to proceed at the hearing, which would lead me to start with clause 14.2.1 and then proceed to clause 14.2.2 and perhaps any other relevant clauses as well. Is there any difficulty with that approach?

PN68

MR STOKES: Your Honour, again simply a question of clarification. So it is your Honour's view that in proceeding today, it is your view the jurisdictional questions will be heard prior to the merits of the matter, and that you will determine the jurisdictional question, whereas the NTEU had expressed a view in terms of its application before you today that we wished to have questions of jurisdiction and the merits of the matter determined at the same time. I am just seeking clarification, your Honour.

PN69

THE DEPUTY PRESIDENT: Yes. Certainly. The Commission has a duty to the parties and in the public interest to run an efficient hearing and it wouldn't be, it would seem to me, to be an appropriate use of the time and resources of the Commission and of the parties spending for example two days in resolving a matter which could be resolved in one day. However, much depends upon the way the hearing unfolds and if the Commission is not able to quickly and easily reach a conclusion about jurisdiction, it may be that then arbitration - the issues in the arbitration should proceed. But if on the other hand the question of jurisdiction can be dealt with quickly and efficiently first, then it would seem of assistance to the parties to do it that way. But again, I'm in your hands as to the submissions and the evidence that you would wish to put forward.

PN70

It would seem that the usual procedure to deal with a jurisdictional objection would be for the respondent to commence and to put its position in relation to its jurisdictional objection, and so I would ask the respondent if you would be ready to commence?

PN71

MR CURLEWIS: I'm happy to proceed, your Honour.

PN72

THE DEPUTY PRESIDENT: Yes.

PN73

MR CURLEWIS: Your Honour, you have received, as filed on 30 October, a summary of the respondent's position in relation to jurisdiction in particular, and I take it you have a copy of that document in front of you?

PN74

THE DEPUTY PRESIDENT: Is that the document that has the date October 2006 on the front page?

PN75

MR CURLEWIS: Yes. Without a particular day marked there. You just see the month.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MR CURLEWIS: But it date stamped 30 October from the Commission.

PN78

THE DEPUTY PRESIDENT: It would seem perhaps, given that the papers have been provided to the parties and the Commission, it would seem perhaps an appropriate starting point for you to address the provisions first of clause 14.2.1.

PN79

MR CURLEWIS: Yes. Your Honour, fundamentally, one needs to go back to clause 14.1 and 14.2. The respondent's position is a dispute has to arise, first of all, relating to the conditions of employment contained in the agreement. My client's position is that what is said to be a dispute as to a condition of employment in fact is not so on the basis that the clause which is in dispute, clause 12, is not as my client says, a condition of employment. Now, to start with where that argument arises, one has to go to section 170LW of the Workplace Relations Act and that is the Pre-Reform Act, that is the one we are dealing with. Section 170LW in its A category, in its A section, refers to:

PN80

The parties may, within their dispute settling provisions with a certified agreement, empower the Commission to do either or both of the following to settle disputes over the application of the agreement.

PN81

What clause 14.2 in the certified agreement says, and it restricts indeed the Commission's power, to any matter relating to the conditions of employment as opposed to a dispute over the application of the agreement. So from my client's point of view, the matter may only be referred to the Commission under 14.2 of the certified agreement, where the matter relates to the conditions of employment and what my client says is the first jurisdictional point is that what, properly read, clause 12 which is the one which is in dispute is about, is not a condition of employment, it is simply a procedural aspirational clause. As such, it falls outside the ambit of the clause for dispute. My argument, my client's argument is set out in the document which has been provided to you, and I don't repeat that particular argument. It is there and my client repeats it. Your Honour, as you will note, my client's argue about jurisdiction - - -

PN82

THE DEPUTY PRESIDENT: I'd just like to ask you there, what is the difference between an aspirational and procedural matter and a matter which is a condition of employment?

PN83

MR CURLEWIS: A condition of employment is something that creates a binding obligation as between employer and employee. Something that's aspirational is, if I can put it in that sense, something which is of a more fuzzy nature. It is simply a motherhood statement about the parties' general mindset about issues. So for instance, if one were to take clause 12.2 as an example, it says:

PN84

The University recognises the role and responsibilities of staff as partners in the development and maintenance of Curtin's teaching programs and research activities and corporate functions.

PN85

That is an aspirational statement. It's a recognition of certain positions. There's nothing enforceable in that clause. What is a partner in the development? It's not a situation comparable to saying you will have 20 days a year annual leave. There is a big distinction between that type of clause, and as I've said, the last one. So that is the distinction I draw and it has been drawn, indeed, in a number of Commission cases.

PN86

THE DEPUTY PRESIDENT: Yes. Had you finished that line of reasoning?

PN87

MR CURLEWIS: Yes. I have finished that point.

PN88

THE DEPUTY PRESIDENT: But surely wouldn't there be a difference between 12.2 and 12.4?

PN89

MR CURLEWIS: 12.4 is all part of that process, and we are simply saying that that is a consultation process of some format which again given the very wide English that is set out, doesn't fall within the dispute resolution procedure because it is not as wide as the Act envisages because the parties are entitled to agree upon what powers the Commission would have, and that is here. This is not a dispute over the application of the agreement. This is, as section 14.2 says, it should be relating to the conditions of employment contained in the agreement. We simply say on this point of the jurisdictional argument that clause 12 is not a condition of employment in that sense. Your Honour, that said, that is the first leg of this jurisdictional argument and if you were to determine that you do have jurisdiction under that point, the core issue then goes to whether, if there is a dispute, the union - the applicant in this matter - has indeed applied the dispute resolution clause correctly.

PN90

What is required in the first instance - and we deal here with clause 14.2.1 through to clause 14.2.3. In the first instance, it says, and that is the word of that clause:

PN91

A staff member and/or where they chose, their representative, shall discuss the dispute in attempt to reach agreement on it.

PN92

So in this instance, the staff member as defined, and the staff member is defined on page 6 of the agreement as a person employed by Curtin University whose employment is covered by the provisions of this agreement. But what it requires is that there shall be discussion between a staff member and/or their
representative - - -

PN93

THE DEPUTY PRESIDENT: Sorry, did you refer to page 6?

PN94

MR CURLEWIS: Yes. What I did is I just simply referred you to the definition of staff member under this agreement along the way. That is to say, we're dealing with what is set out on page 11 of the agreement, that is the application of clause 14.2, but for ease of reference I referred you to the definition of what a staff member is.

PN95

THE DEPUTY PRESIDENT: Yes. No, I understand. We have some difficulty. Perhaps the document pages are different in different versions of the certified agreement. That's on page 5 of mine.

PN96

MR CURLEWIS: I beg your pardon, your Honour.

PN97

THE DEPUTY PRESIDENT: Yes.

PN98

MR CURLEWIS: It is in clause, I should simply say, the definition falls within clause 9 of the agreement overall. That is what a staff member is. And noticeably, while staff member is defined, the words, "affected staff member" are not. The word "affected" staff member is not. But I would submit an affected staff member is something more than just a staff member. It is someone who has been affected. It is certainly not something that is less than a general staff member, if I could put it that way. It is somebody who has been affected. So, your Honour, the first step is that there shall be discussion between the staff member initially and/or their representative. The union will say that there was discussion accordingly, so that complied with that clause.

PN99

Now, my client's position is, and from a jurisdictional point of view, we say you can't have discussion if you don't know who the principal is. That is, someone who has a dispute needs to be identified to the parties so we know which party we are dealing with. That said, why I raise that as a strong point, if I could put it that way, if you have reference, your Honour, to clause 14.2.2 which is the next paragraph, that requires two issues to be complied with before this matter can be referred to the IMCC, which is your Implementation, Monitoring and Consultative Committee. Firstly, the matter can - - -

PN100

THE DEPUTY PRESIDENT: Before you proceed to that stage of your submission, I would ask for you just to clarify what you are saying about 14.2.1. Are you saying that there was no staff member that was involved in a discussion about the dispute?

PN101

MR CURLEWIS: As I understood your question, am I saying that there was no member discussed, or there was a member discussed?

PN102

THE DEPUTY PRESIDENT: What I'm asking is, was there or was there not a staff member in your submission for the purpose of 14.2.1?

PN103

MR CURLEWIS: In my client's position, no. There was no such staff member because (a) we have never been advised who that staff was or is, and indeed, it's clear on the papers the union says it's under no obligation to identify that person. So from my client's position, there can be no meaningful discussion if you don't know which is that person you are in fact discussing their dispute with. It does require a staff member or members, per se. But having, we say, not satisfied 14.2.1 - - -

PN104

THE DEPUTY PRESIDENT: Sorry, are you saying there was no discussion of the dispute?

PN105

MR CURLEWIS: Not of the type envisaged by 14.2.1. What was, there was discussion raised by the union directly with the University, but we say that doesn't comply with 14.2.1. The union will say we did it because we had a so-called bargaining agent form. The bargaining agent form doesn't fit. It's only relevant to sections 335 and 334 of the Act. There's no provision in the Act for a bargaining agent form to give a union carte blanche, a general power of attorney, to put its hand up and say, "We're here on behalf of that person". This is very specific. It requires a dispute, specifically, to be dealt with on behalf of an individual, affected member, and not under general power of attorney, as the union effectively is saying it can do. If one looks, with respect to 14.2.2 - - -

PN106

THE DEPUTY PRESIDENT: Just again before you go onto that, are you also saying in relation to 14.2.1 that there was no representative?

PN107

MR CURLEWIS: No. The union purported to be the representative, but if it doesn't identify the source of who its complainant is that, we say, is not a proper representative. Under this clause, there is a need to identify who one is in fact putting one's hand up as the union in the dispute. There is a need for that representative to identify who is the person that they purport to represent. Otherwise, one cannot deal with the specifics of the matter.

PN108

THE DEPUTY PRESIDENT: So are you saying there was a representative, but not a proper representative, for the purpose of 14.2.1?

PN109

MR CURLEWIS: That's right. We simply say that it doesn't satisfied 14.2.1 to simply hand up a general power of attorney and say, "We are authorised to represent this person on any so-called dispute." It has to be specific to the dispute in question. The union will say to you it gave a bargaining agent form which says - the forms that have been put up, we don't know which particular - it simply says you are authorised to represent us on any dispute. We say that doesn't comply with 14.2.1, and more particularly, 14.2.2.

PN110

THE DEPUTY PRESIDENT: Are you referring to that form in relation to any particular person as representative? Or - - -

PN111

MR CURLEWIS: What I'm saying is that the answer that is put up to this jurisdictional argument is we don't have to advise the University who is the member who has the dispute. That's what is said, because we have a general power of attorney that allows us to simply raise the dispute without the specifics of an individual instruction from a particular member. It is put in the union's submissions throughout, it's quite clear, that they dispute that there is any need to tell the University that they are representing a particular person, a particular member of the staff, and if I could go a step further, we are dealing with obviously the clause 12 which is the issue of consultation and change management. Where the dispute arises is that matters should be discussed with all staff in the area concerned.

PN112

Now, what the University was not told was which staff member was involved and which particular area was involved. None of those were complied with to satisfy, as we would see it, 14.2.1 and obviously evidence from the parties, we will say, will corroborate that. Now, your Honour, the point is why we say this is the only conclusion you can draw as to the application of 14.2.1 is what is said in 14.2.2. There, it is even made more specific, what it says there:

PN113

At the request of an affected staff member -

PN114

There has to be a request for a referral. There needs to be a request for matters to be referred to the IMCC. Even if 14.2.1 had been complied with, there must be then, on my client's version, a specific request to the agent to refer a matter to the IMCC. It cannot act under any general power of attorney because this document goes further. It says there must be a request. It doesn't say, give them the power of attorney and let them do what they like. A power of attorney is a very wide document, which is what this bargaining agent form is. My client says you have to deal with every word as it's put there, so that we say even if there had been discussions at that point, it behoved the NTEU, the union, to go back and get an instruction to refer the matter.

PN115

We say that aspect was never complied with and that the request for the arbitration has not come from an affected staff member; the arbitration request has come from the union. We say that the evidence shows. Your Honour, that there is a need for there to be a specific request from an affected staff member is also emphasised by what you will find in clause 10.3, 10.3 of the same agreement. 10.3, the second dot point, it repeats that same English. It says:

PN116

At the request of an affected staff member -

PN117

It doesn't say at the request of their representative. It specifically says at the request of an affected staff member, and that is a repeat of what is put at clause 14.2.2. There is a reason for that, of course, because that is what the parties agreed, that there be a referral of the arbitration. It was an important step after discussion had taken place. That is, the referral to the IMCC I should say. Your Honour, it is quite clear that the request to the IMCC is not just a general request for IMCC intervention - that is, the committee - it's a request of an affected member. It's a very specific request. It is much more restrictive than somebody operating under a general power of attorney as this bargaining agent is put up to you, saying we have a bargaining agent form, we won't tell you who we are representing and we are simply seeking that referral. That is not what the clause says.

PN118

THE DEPUTY PRESIDENT: Are you putting that this needs to be advised prior to those two steps? Are you putting it that the identify of the staff member needs to be advised pursuant to 14.2.1 prior to the discussion taking place?

PN119

MR CURLEWIS: Absolutely.

PN120

THE DEPUTY PRESIDENT: As distinct from the identify being advised perhaps after discussions have taken place?

PN121

MR CURLEWIS: I understand your distinction, but in any practical sense, discussion takes place in the full context of each party knowing exactly what particular person they represent and from which particular direction they come. How one can, in the instance of clause 14.2.1, discuss a dispute when it is in general terms, not about a particular area in the University, nor about in particular, a particular person. You will know that in this instance the dispute here, as I understand it, is about the lack of involvement the NTEU says in persons being consulted in the formulation of a particular reshaping document. Now that is the dispute. It is not a dispute about the subsequent implementation about that document. It is how the document came to be drawn up. That is the draft evidence as I see it from various NTEU witnesses.

PN122

For any practical application and to have proper discussion, my client's submission is it behoves the union to identify who it is dealing with, who it is representing.

PN123

THE DEPUTY PRESIDENT: Did the University refer the dispute to the - to use the acronym - the IMCC?

PN124

MR CURLEWIS: It was raised there, but the point has never been conceded, and you will know that there are submissions before you saying this is premature because you never told us about which member you were referring. That has been the position all along. It's not as if the matter was referred to the IMCC on the basis that the University abandons its standpoint.

PN125

THE DEPUTY PRESIDENT: So are you saying that the University did not refer the dispute to the IMCC?

PN126

MR CURLEWIS: Certainly, on the basis that this had been complied with, the University didn't refer it in that sense. It was raised at the IMCC, as I understand it. It was put on the agenda, but that doesn't mean to say it's referred to on the basis that 14.2.2 is there. The University, without prejudice position, puts it on the agenda because it's asked to be put there. That's not the same as complying. You can't overrule 14.2.2 if in fact it hasn't been complied with.

PN127

THE DEPUTY PRESIDENT: Is that saying that the University may have been in error in referring the dispute to the IMCC? Is that what you are saying?

PN128

MR CURLEWIS: No, I'm not saying that. It's not referred in that sense. It was simply, the record would indicate, it was put on - it was asked to be put on the agenda and it put it on the agenda. There's nothing to stop people discussing matters, but the fact is it was not in compliance with 14.2.2 because there had been no request at that time of an affected staff member. What had been done was a request by the union to have the matter referred.

PN129

THE DEPUTY PRESIDENT: So should the University refused, then, to place it on the - - -

PN130

MR CURLEWIS: The University could quite easily have refused.

PN131

THE DEPUTY PRESIDENT: Pardon?

PN132

MR CURLEWIS: The University could have quite easily said, look, we're not going to discuss it because you haven't complied with 14.2.2. It could quite easily have done that. The fact it did doesn't mean to say it loses its rights, particularly as it has raised it consistently through these proceedings and it is on record with yourself that it disputes that this whole procedure has been followed. Your Honour, the position is that whether it got to the IMCC or not, the position is the union says it's not obliged to advise that a particular person's identity is - well, it's not obliged to advise a party with which it is obliged to consult, of the party which is in fact the one who has the dispute. It's not the union's dispute. This is an affected staff member, and to this day, nobody knows who this affected staff member is. There cannot possibly be compliance with the English of clause 14.2.2 if there has never been a request of an affected staff member.

PN133

It doesn't make it right, if the union exceeds its power, by referring it or asking the committee to discuss it. So from the respondent's point of view, we say that this matter coming to yourself is premature. It cannot have been properly discussed at any stage, and no real issues can have arisen, because it wasn't under 14.2.1 properly discussed, under that clause, and thereafter, assuming it even had, there was no request of that affected staff member. The request made was made by the union and that's clear from the evidence to come, that the union made that request, not the affected staff member. I would suggest that the affected staff member didn't even know it was being referred to the IMCC, because nobody has been called, no affected member, is to give evidence in these proceedings about what they told their union.

PN134

In fact, there is a clear exercise of declining to tell us anything about this affected staff member. That affected staff member should have requested it, has not done so. If I may use as an analogy, but indeed a very good analogy by way of example, the case of NTEU v The Victorian University. Whilst it turned and went in a different direction - I believe you have a copy of that, but I can hand you a further one if you wish, your Honour?

PN135

THE DEPUTY PRESIDENT: I believe that is in my file. What was the name of that decision again?

PN136

MR CURLEWIS: It's the National Tertiary Education Industry Union v Victoria University.

PN137

THE DEPUTY PRESIDENT: Yes. That's the decision of Kaufman SDP?

PN138

MR CURLEWIS: That's right, yes.

PN139

THE DEPUTY PRESIDENT: Yes. Do you want to take me to the - - -

PN140

MR CURLEWIS: Yes, your Honour. If you have it in front of you, I use simply by way of comparison and how that case proceeded, at page 3 of that decision, reference is made to the dispute settling procedures in that certified agreement. Now, I accept it's a different one, but it certainly is of guidance, I would say with respect, to this Commission in dealing with this jurisdictional point. Now, at clause 63.2 it says:

PN141

Where the dispute involves an individual staff member, they may raise it with their supervisor.

PN142

Now, that is different English, I concede to what is put here, which talks about the staff member. But what is important is 63.3 says:

PN143

Where a dispute is not resolved, at the request of either party to the dispute, a disputes committee shall be convened.

PN144

Now, you can read, for disputes committee, the IMCC in this respect. That is the same essentially the committee where it is referred to. But it has to be at the request of either party to the dispute. What was in argument in this case was whether the union could be a party to the dispute. But that's not what was in fact in the Curtin agreement. What is within the Curtin agreement, it says at the request of an affected staff member. It's not at the request of the union from that point of view, as was found to be one of those parties. And to indicate how it was applied out, if I take you then, your Honour, to page 7 of that agreement at paragraph 25, it is quite clear that the individual member, person, personally advised of their request to go to this committee.

PN145

It says therefore - this was written by a Mr Deal. His notification states he advised my head of school, and then his matter was not resolved, "I therefore request the convening of a disputes committee under clause 63.3 of the agreement." Now, that is what should have happened here. There an individual member sought to have it referred to the disputes committee, or the IMCC. Now, that didn't take place under 14.2.2 here. That is, at the request of an affected staff member. That did not take place. It was the union which sought that request, we would say simply completely out of power under 14.2.2. It didn't have the authority.

PN146

THE DEPUTY PRESIDENT: Yes, but 14.2.1 does allow the representative to be chosen.

PN147

MR CURLEWIS: That's absolutely right.

PN148

THE DEPUTY PRESIDENT: You would agree, wouldn't you? And are you putting to me that even if a staff member had chosen a representative, that 14.2.1 is not satisfied unless the identity of that staff member who chose the representative is known? Is that what you're saying?

PN149

MR CURLEWIS: That's partially yes, your Honour. The point is, how can one possibly consult and attempt to reach agreement when the representative is declining to advise who is the person in dispute with you? You have to identify who is in dispute with you so that the other party can know who it is dealing with.

PN150

THE DEPUTY PRESIDENT: I want to clarify this point further. I did touch on this earlier. If the identity of the staff member is divulged later, you are still saying that that doesn't satisfy 14.2.1 because the identity must be advised in advance of that discussion? Is that the case?

PN151

MR CURLEWIS: Yes, I am. The point is, one cannot possibly meet the aims of this agreement unless one is told the full parameters of the dispute. If I could use an analogy, if this was an unfair dismissal issue, if someone is dismissed, if the union then filed an unfair dismissal claim and said one of your employees was dismissed, but we're not going to tell you who it is but we want to resolve it in conciliation with the Commission, it's the same as this exercise. It can't enter into meaningful discussion about something which says that in the first instance the representatives should discuss the dispute and attempt to reach it if you don't know about which individual you are talking about. That is in fact emphasised by the following clause and what it says there is:

PN152

At the request of an affected staff member -

PN153

It doesn't say "and/or their representative" and that is very important.

PN154

THE DEPUTY PRESIDENT: What would you say to the submission, if it was made, that the agreement doesn't require the identity of the staff member to be divulged?

PN155

MR CURLEWIS: The agreement does not do so simply because it is one of the most fundamental rules of natural justice that you know who you are dealing with. One could not possibly negotiate if the principal is not identified for purposes of a dispute. There is no fair application of this agreement if one party is saying we want to discuss a dispute, but we won't tell you who you are in dispute with. That is the most fundamental underlying principle of natural justice that one can possibly think about, that you are entitled to negotiate, or one should negotiate with someone when they won't tell you who they're actually negotiating for. It goes to the very integrity of any fair basis and to the rules of - the very fundamentals of natural justice. The fact it's not there doesn't mean to say that the rules of natural justice don't apply.

PN156

There are many things, sadly, that are not put into certified agreements which aren't put in. These are sometimes cobbled together in haste and the application of them, sadly, is not always worked through, but to suggest one party can operate under an agreement in the way it sees fit to the detriment of the other party and says we want to negotiate, but we won't tell you who in fact we are representing goes against any tenant of natural justice. That is a difficulty that we say the union has because it simply says we're not going to tell you. We want to negotiate in good faith, but we won't tell you who in fact the complainant is. It's like putting in a workers compensation claim in a court and saying, "We won't tell you who's got the broken leg, but you must pay compensation" to use another analogy. This is, we want you to talk and settle this matter, but we won't tell you who is complaining, who has got the problem.

PN157

Now, that's fundamentally the difficulty here, and we say that to bring this matter to you to arbitrate when the parties haven't exhausted - haven't exhausted - the very basics in the workplace, is premature. Fundamentally premature. These clauses under the dispute resolution clause are there for the parties to work them to their fullest extent, to try and resolve it in the workplace. Bearing in mind that we're dealing with a dispute about the compilation of a document, not thereafter further dispute, we're dealing here in this particular matter with the compilation of a document. Your Honour, so from the respondent's point of view it says, jurisdictionally, to bring this application here is premature because clauses 14.2.1 and 14.2.2 both in the application of their English, and any application of natural justice, haven't been complied with and we shouldn't be here.

PN158

We shouldn't be wasting this Commission's time, let alone the public purse. We should be back at the workplace discussing it. But with full disclosure about who is the complainant and who isn't, in that respect. Just to reemphasise the point, it is very clear that this agreement under 14.2.2 and 10.3 goes much further than simply filing a general power of attorney or a bargaining agent's form. That is, it talks about a referral to the IMCC at the request of an affected staff member. The evidence is that there was no such request. There is no evidence, even in draft form, to say that any member requested this matter be referred to the IMCC. It no doubt might be found, but it hasn't been put in evidence on any draft statement I have seen, to say that any member requested that this go forward. It is stretching natural justice to suggest that if somebody says, "You're my union, you have the power to request something" when it says that there should be a request from a particular person.

PN159

It doesn't say, 14.2.2, their representative. It differs in that respect. So your Honour, the second jurisdictional point we have relates to the application of clause 14.2.1 and 2 in that respect. If you then find that there is jurisdiction to proceed with the arbitration, we again say that there is a third jurisdictional point. That is, in dealing with the application in clause 12. Clause 12.4 is the operative one, or the one in dispute. And fundamentally it turns on that clause as to whether it has been complied with. It needs to be read carefully, obviously, and the main issue is fundamentally where issues arise, which may lead to workplace change, the issue will be discussed with all staff in the area concerned to allow for meaningful consultation. Now, there are several aspects of that, assuming one has got to this point. There must be an area concerned. It's not, as the union says, the whole University.

PN160

It says where issues arise, they may be discussed in a particular area. Again, if no area is highlighted, it's very hard to see that there can be discussion. It says they shall be discussed with all staff in the area concerned.

PN161

THE DEPUTY PRESIDENT: Are you saying this is not possible because the staff member was not identified?

PN162

MR CURLEWIS: Firstly, the staff member wasn't identified, for which you might be able to extract in which area he or she was. One, there's no identification again in terms of compliance with 12.4, from that point of view. If the issue that is being referred to is the formulation of a document, you will notice - you will have read this reshaping document - there is no reference to any particular area.

PN163

THE DEPUTY PRESIDENT: I have read what's been provided to the Commission.

PN164

MR CURLEWIS: Yes, that's right. We've all read it, and I think it's mutual we've seen this reshaping document.

PN165

THE DEPUTY PRESIDENT: I'm not sure that the Commission might have been provided with all of the documentation.

PN166

MR CURLEWIS: No, I accept what - the documentation that you had filed by the parties, you will see one of the documents that was filed is this reshaping document. It doesn't refer to any particular area. It doesn't say in XYZ area, or that one. It simply is a document asking for input. We say that on any fair reading of this document, where issues arise, they only can arise out of the document. We say therefore that this application for alleged breach of 12.4 is again premature because the issue that arises is the consultation that is taking place after areas are identified in the reshaping document. No issue can arise until it is actually identified. Your Honour, that is accentuated, we say, by what is 12.4, the second sentence:

PN167

It is understood that there will often be informal discussion or consideration of issues that may or may not lead to workplace change prior to the development of any specific change proposals.

PN168

Now that, you may say - well, I beg your pardon. That, we say, epitomises exactly what this clause is about. It is simply saying there will be informal discussion. That is, before any changes take place. Now, your Honour, 12.4 talks about where issues arise. They must actually arise. They can't just simply be in vacuum, and as is evident what has taken place here, the University has gone to 15 of its managers and said, "Give us some ideas." That is effectively what has happened. The ideas cannot do anything or do not have any body until they have actually been generated. Then they arise, and they arise then in the reshaping document as completed. So we say again, your Honour, on any fair application of what is said here, clause 12.4 cannot apply to these proceedings because we are not in that mode. We haven't got to that point.

PN169

It is only when consultation takes place after the reshaping document that 12.4 takes place. And that is indeed the argument that has been put to you consistently in these proceedings, that there is nothing arisen until such time as the managers have put their thoughts down and the University has gone to separate sections, and that is where the consultation is taking place, and we say that's entirely consistent with 12.4. So, your Honour, for these reasons, my client says that this consideration that 12.4 has been breached is also premature because we're not on the page, to put it bluntly. We haven't got there yet, and I stress, that is in dealing with the formulation of the management plan. That is, the reshaping document.

PN170

Everything after that we accept is within 12.4. We say that's what has happened. There has been continuous consultation thereafter. You see, why we say we are right in this, your Honour, what clause 12.4 says:

PN171

Where issues arise, they shall be discussed with all staff in the area concerned.

PN172

Now, the area concerned doesn't arise until it is identified and no area was identified for reshaping until the reshaping document had been completed. So therefore, on the simple factual basis it could not have arisen until the area specifically had been identified by managers, then determined as to being an area, and then clause 12.4 clicks in. But simply to stop, as in fact is said, the University from working out areas in its thought process, identifying some which it considers it will keep, some which it chucks away, is not an issue It doesn't arise until such time as it is consolidated and therefore we say it doesn't, regardless of how wide 12.4 talks about an issue arising, it can't in any fair application of its English arise until it is identified as an area and it is, from our point clear, the area concerned must be an area, not the whole University operation. It doesn't say that.

PN173

The union is saying the area means the whole university. That's not what this says. Your Honour, from a jurisdictional point of view, we say that be the position and then there's a fourth and last leg, that the relief that is sought in this arbitration is relief - - -

PN174

THE DEPUTY PRESIDENT: I wonder, Mr Curlewis, if that point might perhaps be dealt with a little later.

PN175

MR CURLEWIS: I won't be long with it and I appreciate time is of - - -

PN176

THE DEPUTY PRESIDENT: Are you going to refer to the jurisdiction of the Commission to make orders?

PN177

MR CURLEWIS: Yes.

PN178

THE DEPUTY PRESIDENT: What was then in my mind was that would seem to be a different question from the one that I raised earlier in the sense that it's not dealing with the steps of the disputes procedures, it's actually dealing with - on the assumption that jurisdiction does exist pursuant to the certified agreement, would you not agree?

PN179

MR CURLEWIS: Not entirely, your Honour. What I'm saying is that there are two types in this exercise, one is complying with the certified agreement to give you jurisdiction to deal with it and simply on that basis we say that's the one type. The other one is the aspect having got that far, because we say you don't have jurisdiction to go further, it is also jurisdiction in the same type, and that is to say, we're saying, that you're functus officio. You've already dealt with the matters in dispute by dealing with the interim orders application and the relief sought there is what is really being sought here. Therefore, we simply say that to unwind what you've already ordered, ie. declined to order on, is simply reversing your previous decisions. Your Honour, I'm more than happy to address you further on that later should it become necessary.

PN180

THE DEPUTY PRESIDENT: Yes. I'm not trying to in any way deny you that opportunity to make those submissions, but if the logical order of the proceedings is to deal with the Commission's jurisdiction, if you like, to arbitrate, and then to deal with the arbitration on the assumption that there is and then to deal with the question of what orders, if the Commission indeed does arbitrate.

PN181

MR CURLEWIS: Your Honour, I will leave that for another moment.

PN182

THE DEPUTY PRESIDENT: Does that sequence - - -

PN183

MR CURLEWIS: I'm more than happy to deal with it later should it become necessary.

PN184

THE DEPUTY PRESIDENT: That fits in with your capacity to make submissions.

PN185

MR CURLEWIS: As your Honour pleases, I'm happy to meet that.

PN186

THE DEPUTY PRESIDENT: Yes, certainly.

PN187

MR CURLEWIS: Your Honour, those are fundamentally the jurisdictional issues and I just need to emphasise one point, with your permission. That is, efforts have been made to say that the union says it has got power by virtue of a bargaining agent form. That bargaining agent form we say is misconstrued. The words "bargaining agent" is a hackneyed term and it's only given legs under sections 335 and 334. It doesn't exist for the purposes of a dispute. The Act doesn't make provisions for a bargaining agent form, a general power of attorney for disputes and it's not open, we say, for the union on a jurisdictional basis to hide behind a bargaining agent form when the Act doesn't make provision for it, let alone the certified agreement.

PN188

There's no provision, there's no authority under the Act for such a form to be put up as it would be if people were negotiating for an AWA or indeed for a certified agreement. The Act is very specific as to what clauses 334 and 335 say for this bargaining agent form. We say that's misconstrued, your Honour, and that form does not have any legs in this context whatsoever.

PN189

Those be our submissions, your Honour.

PN190

THE DEPUTY PRESIDENT: Part VIB is the relevant part for certified agreements, is it not?

PN191

MR CURLEWIS: I have them here and it is in fact - and I'm talking about the new Act - it is Part VIII, Division 3.

PN192

THE DEPUTY PRESIDENT: Isn't this application brought under the pre-reform Act?

PN193

MR CURLEWIS: It is. In fact, those provisions - but the bargaining agent form has been supplied after the new Act. As I understand it, it is put as a bargaining agent form in relation to an - you will see in its English it refers to an AWA or the making of a collective agreement and then hooked in the corner is something about "and to represent an employee in all disputes."

PN194

THE DEPUTY PRESIDENT: You're saying the bargaining agent form is under 334 of the reform Act. Is that what you're saying?

PN195

MR CURLEWIS: If it has application it falls under what a definition of a bargaining agent is and that is under the current Act:

PN196

A bargaining agent means in relation to an AWA a person who has been duly appointed as a bargaining agent in relation to the AWA in accordance with section 334 or in relation to an employee collective agreement a person who has been requested to be a bargaining agent.

PN197

Certainly if on goes back t o the old Act, section 335 and the bargaining agent issue was only in place in respect of the certified agreement or the AWA as well. None of them - - -

PN198

THE SENIOR DEPUTY PRESIDENT: Hasn't that section been repealed?

PN199

MR CURLEWIS: Yes, it was repealed. If we have to deal with bargaining agents, it has to fit under the new Act. We simply say that it's simply because somebody calls it a bargaining agent form doesn't give it any legs or authority under the Act. That is also why clause 14.2 has not been complied with because it's put up as the power in the certified agreement which requires that there be an act, a particular act by an affected staff member.

PN200

Those be my submissions as to the jurisdictional issues.

PN201

THE DEPUTY PRESIDENT: Mr Curlewis, if the Commission found that there was jurisdiction to settle this notified dispute, and it found that clauses 14.2.1 and 14.2.2 had been followed, would not then the requirement be for conciliation?

PN202

MR CURLEWIS: I'm not sure if I understand what you're saying.

PN203

THE DEPUTY PRESIDENT: I don't think you've made any submission as to whether the requirement of 14.2.3 for conciliation has been satisfied, have you?

PN204

MR CURLEWIS: 14.2.3?

PN205

THE DEPUTY PRESIDENT: Yes.

PN206

MR CURLEWIS: No. What I should say there is that we say that the reference to this Commission was premature because it wasn't resolved in the first instance by discussion under 14.2.1, then also under 14.2.2 and then whilst it has been through various phases here, that is, should - the dispute may be referred for conciliation then if still not resolved, arbitration. We're simply saying those conciliation efforts that have taken place are premature because there has not been a proper airing of it in the workplace so therefore such conciliation that you, with respect, have applied your mind to is premature and was not within the keeping of that agreement. That is my point.

PN207

THE DEPUTY PRESIDENT: I understand, yes.

PN208

MR CURLEWIS: So that were you to find that the clause had been complied with, it would depend at what level you found it to be complied with. If you were to find, for instance, there had been discussion in the workplace but it had been premature to refer it to the IMCC, again it has the same effect. If you find that there is total jurisdiction, ie. that the referral to yourself for conciliation was not premature, then, with respect, you would have the power to arbitrate as you're doing now. If you find otherwise, anything short of that, you don't have the power, in my view, my submission, to arbitrate.

PN209

THE DEPUTY PRESIDENT: Yes. Thank you, that clarifies that. Are you intending to call any witnesses?

PN210

MR CURLEWIS: Yes. I have the two witnesses whose statements have been filed, Profs Craven and den Hollander.

PN211

THE DEPUTY PRESIDENT: In terms of logistics, can you indicate to me how long you think you might require for their evidence to be adduced?

PN212

MR CURLEWIS: From my perspective, it depends on what level of
cross-examination there is but that would probably take a morning. In terms of in-chief, it would probably take an hour for each, depending on how much is admitted by the other side but it really would take probably two or three hours, I suspect, I expect I would have to say envisaging calling any witnesses in relation to the jurisdictional issue.

PN213

THE DEPUTY PRESIDENT: Are you not intending to adduce any evidence on the jurisdictional issue?

PN214

MR CURLEWIS: No. My understanding was that you wanted to be addressed on the law in relation to the jurisdictional issue. I certainly would call these witnesses for two purposes, to deal with, such as is necessary, the factual background to how we got here and from that point of view the dispute itself, but I'm addressing you as a point of law as to why I say there's no jurisdiction.

PN215

THE DEPUTY PRESIDENT: You would wish to call them now to deal with the factual background relevant to the jurisdictional issue. Is that the case?

PN216

MR CURLEWIS: No. What I'm saying is that my understanding was that you wanted me to address you on the jurisdictional issue. I did not understand that you wished me to call any evidence at this point. Certainly, my understanding was that if you were going to deal with the jurisdictional issues, you would deal with that now separately from the factual background to it. If that be your determination, my evidence would still follow in the normal course in response to the arbitration evidence to be led by the union. I've addressed you purely on the law, as I see it, in terms of what the jurisdictional issues are.

PN217

THE DEPUTY PRESIDENT: Yes, but there are questions of fact here, aren't there?

PN218

MR CURLEWIS: Absolutely, yes.

PN219

THE DEPUTY PRESIDENT: To the extent that it might be possible, would you wish to adduce evidence on the relevant factual issues?

PN220

MR CURLEWIS: I certainly would, yes. I had no idea that my client's witnesses would be called today. The onus is on the union, which is seeking the arbitration, to normally proceed first. You have required issues on arbitration to be dealt with from the bar table and that's how I deal with it. If you wish evidence to be called, I would certainly need to consult with my witnesses as to their availability for that to be put to you.

PN221

THE DEPUTY PRESIDENT: Are you saying that your witnesses are available n

PN222

MR CURLEWIS: No.

PN223

THE DEPUTY PRESIDENT: They're not available now.

PN224

MR CURLEWIS: One was available and might possibly be available. One isn't and the Commission is aware of that, but certainly in the way I understood you asking me to address you on jurisdictional issues, I did not perceive that you were going to take evidence in that respect this afternoon, but if you wish I can get one witness through this afternoon but I don't see that as being of benefit to the Commission, the onus not being on my client to lead the evidence.

PN225

THE DEPUTY PRESIDENT: Mr Stokes, in relation to the jurisdictional issues, would you wish to make submissions only or would you wish to adduce evidence also?

PN226

MR STOKES: Your Honour, in terms of the question that you're putting to us, now that we have heard the respondent's submissions on the jurisdictional matter, we certainly believe by calling evidence it could clarify some matters and assist with the jurisdictional matters and seeing the question has been put to us, yes.

PN227

THE DEPUTY PRESIDENT: Yes.

PN228

MR STOKES: Sorry, your Honour, just one question in clarification, the witnesses that we would call are available now. Thank you, your Honour.

PN229

THE DEPUTY PRESIDENT: Thank you. Mr Stokes, in terms of presenting your jurisdictional submissions, have you got some idea of the length of time that you would need, as distinct from the evidence?

PN230

MR STOKES: Sorry, your Honour.

PN231

THE DEPUTY PRESIDENT: The submissions on jurisdiction.

PN232

MR STOKES: Your Honour, I just didn't catch your last point, sorry.

PN233

THE DEPUTY PRESIDENT: I'm just trying to plan the timeline of these proceedings and Mr Curlewis has taken perhaps an hour or so to give - I haven't actually timed him, but it seems sort of roughly about an hour. Is that a similar length of time that you would have in mind to make your submissions?

PN234

MR STOKES: Yes. Excluding the question of evidence which you put to me previously, it would take approximately an hour.

PN235

THE DEPUTY PRESIDENT: Mr Curlewis, it would seem that I should ask you if - again, and to be very clear, having heard Mr Stokes - to clarify that you would, as I understand it, wish to adduce evidence on the jurisdictional issues. I did hear what you said earlier and I'm wondering if that is the case, if the way you proceed might be for this afternoon for Mr Stokes to give his submissions and then for the Commission to reconvene to hear the evidence relating to the jurisdictional issues. Would you wish to do that?

PN236

MR CURLEWIS: Your Honour, I am not sure what the union will say to this, but it seems to me that the evidence from my witness at least, and I suspect even the union's evidence from their witnesses, is all very much in the same mould that some of it is factual and some of it goes to jurisdictional issues. Given the fact that people have signed witness statements, it's almost impossible on the witnesses giving evidence to put them in straight lines and say, "That's a jurisdictional issue and that's a factual issue," so that when the evidence is led, it's all going to be led all at the same time and therefore, from my point of view, if I lead evidence I would be leading all my evidence, that is dealing with the jurisdictional issue, and the main arbitration because it's certainly not practical to separate them at this point.

PN237

From my point of view, if I may submit, if the arbitration is to proceed I would submit the proper way for it to go would be for the union to put its point of view as to the bar table submission that I've got as to the jurisdictional issue and that thereafter when we reconvene the matter proceed with the evidence in the normal course. That is to say the union witnesses go first and the university's witnesses go second and that is the evidence which then, from your determination, you could distil which is jurisdictional and which isn't, but I do not think, with respect, it's going to be productive to try and break down and to separate for witnesses which part is jurisdictional and which is factual.

PN238

THE DEPUTY PRESIDENT: The jurisdictional questions seem perhaps narrower and more confined. They're not as wide and as far ranging as the questions for the arbitration, it would seem. I don't think you would dispute that, would you?

PN239

MR CURLEWIS: Indeed. It just depends. We had some debate the other day as to exactly what the point is in dispute. I'm told that I should know that from the papers, not by my client I might add, but by the NTEU representative. For you to know whether there's jurisdiction one ultimately has to know exactly which dispute one is dealing with, whether indeed the compilation of a document, the reshaping document, is that the dispute, and it's my understanding that it is and it has got nothing to do with any further consultation. All of that goes to the factual evidence and therefore it is not as simple, in my view, to say that the dispute is defined unless the union agrees that it is so defined because we had, even subsequent to a conciliation with you, some debate on the papers outside as to exactly where the dispute was and what evidence would be admissible or not.

PN240

My submission would be that, given where we've got to this afternoon at this time, the NTEU put its submission from the bar table and if you are inclined you might determine that on those papers. Alternatively, if the union wants to lead its evidence, as I said, I don't think they can be separated but it's for Mr Stokes to put his point of view.

PN241

THE DEPUTY PRESIDENT: Yes. Mr Stokes.

PN242

MR STOKES: Your Honour, with due respect, at the beginning of proceedings, the NTEU's view was the matters be determined at the same time. It was determined by the Commission the jurisdictional matter would be heard first. We have heard from the respondent in terms of verbal submission today. It was put to the NTEU with regard to questions surrounding jurisdiction if we wished to bring evidence. We answered in the affirmative because we believe the jurisdictional matters that have been raised by the respondent need to be responded to. We are willing to do that.

PN243

We are willing to call evidence that could assist the Commission in determining the matter and therefore we agreed with your Honour's view. You put a view to us, your Honour, to clarify that and we said yes that we were able to do that. We have always our witnesses available but again we're in your Honour's hands. We're in the hands of the Commission but again I will repeat two matters that we did put a view at the beginning with regard to both jurisdictional and the merits of the matter be determined at the same time. We did also put the view that we were willing to call evidence on the jurisdictional matter. We don't believe that that is as complex a question as has been suggested in the sense of being able to separate matters as you suggested, your Honour, but again we're in your hands.

PN244

THE DEPUTY PRESIDENT: Yes, thank you. Mr Curlewis, to put your case, and having heard what Mr Stokes has said, do you wish to proceed on the basis that you would cross-examine the witnesses of the applicant to the extent that they were able to be confined to the jurisdictional questions. From what Mr Stokes has said, his witnesses are readily available, as I understand it, so would you be satisfied to do that, just to cross-examine his witnesses and not call your own witnesses on the jurisdictional issues but call your witnesses on the substantive issues?

PN245

MR CURLEWIS: Your Honour, I can't agree to that, with respect. I don't know what these witnesses of the union are going to say. I know what's in their witness statements. I don't know what is going to be put forward as a jurisdictional point or not and I would need to rebut whatever is there by virtue of my statements and I would wish to confine my clients in that respect. Indeed, you will notice that there is before you a substantial objection on my part to a number of the parts of the witness statements which have been put up, which has not been determined by you in any respect at this point. I don't know what your position is or what the Commission's position is in respect of those objections.

PN246

From my point of view if there is evidence to be led, it should follow the normal course, that is the entire witness statement be preferred, put up, dealt with on a step-by-step basis. I can't confine my client's position to committing to only part of a statement and I don't know what part is going to be put up and what isn't going to be put up.

PN247

THE DEPUTY PRESIDENT: It seems that perhaps for this afternoon, we should proceed, Mr Stokes, for you to put submissions and then I think I'll need to make a ruling on how we proceed thereafter, if you're in a position to do that. Yes, Mr Stokes.

PN248

MR STOKES: Thank you, your Honour, and thank you for clarifying those matters for us.

PN249

Your Honour, it's the NTEU's view that the Commission does have jurisdiction to determine this dispute that's before you. We have provided two written submissions to you both in terms of the request by 30 October and in terms of further written submission to you following the original submissions.

PN250

THE DEPUTY PRESIDENT: Is that the response submission?

PN251

MR STOKES: Yes, the response submission. It's titled NTEU Response to Respondent's - - -

PN252

THE DEPUTY PRESIDENT: Yes, that was received on 3 November.

PN253

MR STOKES: Your Honour, both those written submissions go to questions of jurisdiction as do the witness statements also provided to your Honour by the five witnesses that the NTEU would seek to call. With regard to the question of jurisdiction and in relation to a number of matters that the respondent has raised, the NTEU would make the following points.

PN254

Firstly, to the question of the operations of the Act, the Commission's powers to hear this dispute arise from section 170LW of the pre-reform Act to questions of procedures for preventing and settling disputes, in combination with the transitional provisions of Work Choices. Section 170LW provides as follows:

PN255

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment ...(reads)... and to appoint a board of reference.

PN256

With regard to the second point in terms of questions of jurisdiction, it goes to the question of the certified agreement, and as your Honour has pointed out, to questions of clause 14. The first point that has been raised jurisdictionally and again the NTEU has in its written submissions responded to that point in full, your Honour, but it would be fair to say that the first area in terms of clause 14 that has been raised jurisdictionally, is the question of conditions of employment.

PN257

Your Honour, the parties to the Curtin University of Technology Academic Staff Certified Agreement 2005-2008 have agreed to procedures as outlined in
clause 14 to be followed for dealing with disputes arising from any matter relating to conditions of employment contained in the agreement. It's the NTEU's view, your Honour, that the question of conditions of employment should be read broadly and includes all the matters set out in the certified agreement. The right to have discussions and consultation on workplace change issues is a condition of employment.

PN258

Your Honour, in submission we made reference to supporting this position where we referred to the High Court of Australia, the Australian Tramways Employees Association Claimants Prahran and Melbourne Tramways Trust and Others (1913) CLR 680, 20 October 1913. We've highlighted with our emphasis to the statement at the end of the paragraph that stated - - -

PN259

THE DEPUTY PRESIDENT: Which paragraph is that?

PN260

MR STOKES: I beg your pardon, your Honour?

PN261

THE DEPUTY PRESIDENT: Which paragraph are you referring to?

PN262

MR STOKES: I beg your pardon, your Honour. It goes to - - -

PN263

THE DEPUTY PRESIDENT: In fact, the copy that I have doesn't have a paragraph number but it has page numbers.

PN264

MR STOKES: Your Honour, it's in our original submission at attachment 8.

PN265

THE DEPUTY PRESIDENT: The case? Are you referring to the case?

PN266

MR STOKES: Yes, your Honour.

PN267

THE DEPUTY PRESIDENT: Yes, I have the case in front of me.

PN268

MR STOKES: Yes, you just want the paragraph.

PN269

THE DEPUTY PRESIDENT: Just the reference in the case.

PN270

MR STOKES: Your Honour, it's at page 5.

PN271

THE DEPUTY PRESIDENT: I have page 5 opened.

PN272

MR STOKES: At the top there, your Honour, where it refers to questions of condition of employment, including all the elements.

PN273

THE DEPUTY PRESIDENT: On the page, which paragraph number is that? Is that the first paragraph?

PN274

MR STOKES: Your Honour, halfway down on page 5 of 20, paragraph 6.

PN275

THE DEPUTY PRESIDENT: Yes, I have that.

PN276

MR STOKES: Then the last sentence:

PN277

The conditions of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or all other circumstances affecting the employment.

PN278

THE DEPUTY PRESIDENT: What would you say then to the argument that indeed the relevant provision in clause 12 - or the relevant aspects of clause 12 are indeed procedural or aspirational as the respondent has put it, rather than being a necessary requisite of the conditions of employment?

PN279

MR STOKES: Your Honour, we were going to come to that point, but thank you for the question. It goes to our view that the question of the conditions of employment should not be read narrowly, that particularly due to the words "relating to" in terms of 14.2. In 14.2 any matter relating to conditions of employment and relating to. In support of this contention we rely on the meaning as set out in the Statutory Interpretation in Australia at 12.7 which we included as an attachment to our response to the respondent's submission at tab 2 on page - at 12.7 at paragraph 56.

PN280

THE DEPUTY PRESIDENT: Perhaps given the extensive documentation, is this attached to the submissions?

PN281

MR STOKES: Yes, it is, your Honour. It's attached to the second of our documents titled NTEU's Response to Respondent's Submission and it's on
page - - -

PN282

THE DEPUTY PRESIDENT: It is attachment number?

PN283

MR STOKES: Two, tab 2.

PN284

THE DEPUTY PRESIDENT: That is, according to my contents here, a letter dated 13 July 2006.

PN285

MR STOKES: No, your Honour, it's the second of our written submissions.

PN286

THE DEPUTY PRESIDENT: Yes, I'm with you. So it's the reply submissions would be the correct way of describing that.

PN287

MR STOKES: The reply submissions, yes, at tab 2.

PN288

THE DEPUTY PRESIDENT: Yes, I have that. thank you.

PN289

MR STOKES: At pages 14 and 15, at paragraph 56, your Honour, and it says at paragraph 56:

PN290

The width of the phrase "relating to" is undoubted. Lord McNaughton stated that there is no expression more general or far reaching.

PN291

So to the question of the matter of conditions of employment, your Honour, we believe in submission that the question of conditions of employment that the Commission does have jurisdiction. The NTEU contends that a matter which relates to possible workplace change is clearly about a matter - - -

PN292

THE DEPUTY PRESIDENT: Just before you go on there, if I may, Mr Stokes, are you saying that because there is no expression more general or far reaching, that the words "relating to" in 14.2 include the provisions of clause 12?

PN293

MR STOKES: Yes, your Honour. To continue with that point, the NTEU contends that a matter which relates to possible workplace change, as I just stated, is clearly about a matter relating to conditions of employment. Again it needs to be reiterated, your Honour, at clause 12.11 of the certified agreement, a matter that we again have submitted to you in written submission, the question of the correlation between clause 12 and the application of clause 14 is there in terms of the operations of clause 12.11 where it says:

PN294

Where any party is dissatisfied with the processes or outcomes of changed management, they may utilise the dispute resolution procedures set out in this agreement.

PN295

Your Honour, clause 12.11 goes to all parts of clause 12 and to the question of parties as defined, the parties to the agreement are defined on page 5, clause 9, definitions of the certified agreement and parties do mean Curtin University of Technology as defined, the National Tertiary Education Union, the union - the NTEU, as you're aware, has made application with regard to this dispute matter before you today your Honour - and the academic staff of the university.

PN296

Quite clearly, your Honour, quite clearly there is a definitive correlation between the operations of clause 12 and the operations of clause 14 and on each of the points that we have outlined to you, your Honour, today on the questions of conditions of employment, it is our strong view that there is clear jurisdiction on that matter.

PN297

THE DEPUTY PRESIDENT: Mr Stokes, in relation to party in 12.11, you've taken me to the definition of party which includes the academic staff.

PN298

MR STOKES: Yes, your Honour.

PN299

THE DEPUTY PRESIDENT: Is not the, if you like, the right enshrined in 12.11 already enshrined in 14?

PN300

MR STOKES: In what sense, your Honour?

PN301

THE DEPUTY PRESIDENT: In the sense that 12.11 refers to any party and you've taken me to the definition which includes the academic staff within that definition.

PN302

MR STOKES: Yes, your Honour/

PN303

THE DEPUTY PRESIDENT: If you go to clause 14, do you read the staff member as being a member of the academic staff?

PN304

MR STOKES: Yes, your Honour. Just to make one point, the reason why I raised the question of 12.11 goes to the question of conditions of employment and the jurisdictional question with regard to the question of conditions of employment and the suggestion that clause 12 does not relate to a question of conditions of employment, I did want to proceed to a number of questions in terms of the question of jurisdiction in clause 14.

PN305

Just to continue, the dispute resolution procedure at clause 14, which is the second matter that has been raised and we have addressed in written submission, goes to the question of dispute avoidance and resolution procedures. The dispute resolution procedures allow for staff to be represented by a person of their choice. In the operations of this agreement - - -

PN306

THE DEPUTY PRESIDENT: Sorry, Mr Stokes, I just want to be very clear about that previous submission. Was that in connection with what is a condition of employment? When you took me to 12.11, does that provision, in your submission, constitute a condition of employment?

PN307

MR STOKES: That's in part of our submission with regard to the question of conditions of employment, your Honour. Equally, what I'm trying to draw to the Commission's attention is that 12.11 also goes to the question of the dispute resolution procedure.

PN308

THE DEPUTY PRESIDENT: Yes, but have you got for my assistance a definition or some clarification of what a condition of employment is for the certified agreement or within the certified agreement?

PN309

MR STOKES: Your Honour, I would suggest to you, with respect, that in terms of the submissions that we have already made, that we have argued or put forward submission to the effect that both in terms of the High Court of Australia decision and in terms of the statutory interpretation that it is far reaching and wide. We also would point out that questions of clause 14 in terms of the operations of clause 14 goes to a question of dealing with matters arising in contention with any matter relating to the conditions of employment contained in this agreement.

PN310

THE DEPUTY PRESIDENT: Yes, but does that clarify what they are?

PN311

MR STOKES: It goes to, in our view, not a narrow but a broad question with regard to the application of this agreement, your Honour. To argue that clause 12 does not go to questions of conditions of employment for an academic staff member under the operations of this agreement, we would dispute quite clearly clause 12, because it's our view that the operations of the question of conditions of employment is far reaching, is broad. The questions of the operation of clause 12 do go to the application in clause 14.

PN312

THE DEPUTY PRESIDENT: If I understand you, what you are doing, at least in part, is citing the High Court in the Tramway Employees case to support your submission that the conditions of employment include all the elements and that constitute the necessary requisites, et cetera. Are you saying that the necessary requisites include those in clause 12?

PN313

MR STOKES: Yes, your Honour, because to highlight the High Court decision, it's stated, and what I emphasised was, the conditions of employment include all the elements that constitute the necessary requisites, attributes, qualification, environment or other circumstances affecting the employment. We would argue that clause 12 is such a matter.

PN314

THE DEPUTY PRESIDENT: Yes, I do follow, thank you.

PN315

MR STOKES: Your Honour, to go back in terms of our submission before you today, we would go back to the operations of clause 14 and to the other question with regard to what we would argue quite clearly the Commission has jurisdiction to hear this matter as to the operations of clause 14 and each of the steps of
clause 14. The dispute resolution procedures allow for staff to be represented by a person of their choice, your Honour. Clause 14.2.1 states:

PN316

In the first instance, the staff member or members and/or where they choose, their representatives.

PN317

Just on the question of representatives, it is useful in terms of assisting to clarify this matter to refer to page 6 of the certified agreement where representative is defined, and deliberately so, your Honour:

PN318

Representative means any person chosen by the staff member and may be a colleague or friend, union officer or official.

PN319

For example, I am a union officer and therefore an academic staff member who came under the operations of this agreement may in fact, under the operations of 14.2.1, may choose me. Equally, your Honour, it's broader than that in terms of union representation because it's the NTEU that are a party to this agreement. It also says official, your Honour. I emphasise that. It's also not only myself but an official. For instance, Dr Sinclair-Jones, who is with us today, who's the president of the Curtin branch and is an official and in our evidence that was provided to you, your Honour, we provided five witness statements, which is why when you raised the question of would we like to provide evidence, and call
Dr Sinclair-Jones to clarify what is a fundamental matter it appears to the respondent, I think that matter could be very, very quickly resolved in terms of the question of representative. We believe we have made written submission and provided evidence that has clarified that.

PN320

Your Honour, irrespective of that question, the question of the operations of this clause, it is a fundamental point to make that there is no requirement at 14.2.1 to identify, to name the staff member or members in question. It states nowhere that there is a requirement under the operations of 14.2.1. The mere fact, and this point has been raised, at the level of 14.2.1, as the respondent has highlighted, is the so-called question of identifying staff members. What is the respondent suggesting here? Is the respondent suggesting that in some way the NTEU are not telling the truth or what's the suggestion? There is no requirement for identification and I think that's an extremely strong point, your Honour.

PN321

THE DEPUTY PRESIDENT: Mr Stokes, if the staff member is not identified, how can the Commission and how can the respondent be satisfied that that has happened?

PN322

MR STOKES: With due respect, certainly, your Honour, that's a matter that can be clarified in evidence and certainly in terms of examination that can be clarified and we're certainly happy to do that. The only point we're making, your Honour, is that the application of 14.2.1 doesn't require identification. What the agreement, in terms of the operation of clause 12, in terms of consultation and changed management, about bringing people together in good faith and goodwill to go through a consultative process - but what I'm saying to you is, that in fact in the circumstances of this dispute, there is no need to identify the staff member to have the matter resolved and I'll come to a couple of reasons in a moment, your Honour, why.

PN323

The suggestion, for instance, of a matter that was raised by the respondent to questions of unfair dismissal or other matters, may indeed, as we've also submitted in our written submissions, may in fact indeed lead to questions of identification of a staff member in terms of a question of unfair dismissal. As to the question of the operations of workers compensation, I think that's a separate jurisdictional matter and I don't think there's much weight on that question.

PN324

Just to continue, your Honour, in terms of clause 14.2.1, the fact of the matter is that a number of academic staff members chose the NTEU to represent them. That was communicated to the university at 14.2.1 and 14.2.2.

PN325

THE DEPUTY PRESIDENT: Mr Stokes, are you saying that the word "representative" can be the NTEU as an organisation?

PN326

MR STOKES: I'm saying, your Honour, that the wording of representative as defined goes to questions of union officer or official and that the notification of the dispute to the university goes to that question.

PN327

THE DEPUTY PRESIDENT: Yes, so the answer is that it's not the organisation, it's the person. Is that the answer?

PN328

MR STOKES: Yes, your Honour. A number of academic staff members chose to have the NTEU represent them in accordance with the clauses that I mentioned. The university sere notified of the dispute.

PN329

THE DEPUTY PRESIDENT: Mr Stokes, again I would ask, didn't you just say to me it's not the NTEU?

PN330

MR STOKES: Yes, your Honour.

PN331

THE DEPUTY PRESIDENT: Was it not perhaps you or another - - -

PN332

MR STOKES: In this instance it was the president, your Honour,
Dr Sinclair-Jones as the union official, and sought to follow and notified the university of the dispute and sought to follow the procedures in attempting to resolve the dispute, at all times in accordance with the terms of the certified agreement. As the dispute was not resolved, it was referred to the AIRC as
per - - -

PN333

THE DEPUTY PRESIDENT: Just before you go on there, are you saying that will adduce evidence in due course to establish that point?

PN334

MR STOKES: Yes, your Honour.

PN335

THE DEPUTY PRESIDENT: That in fact there was a staff member who chose the president to be the representative?

PN336

MR STOKES: Yes, your Honour. During this process there has been much said about the question of identification of staff members. It is true to say that on a number of occasions the university requested of the NTEU the names of staff member who were representing those staff members. On one of those occasions that request was made to Dr Sinclair-Jones. There is no requirement in accordance with clause 14 of the certified agreement for the representatives to provide the names of staff members. I think it's also important to say, your Honour, that this dispute does not require the names of the staff members for the dispute to be characterised or resolved.

PN337

THE DEPUTY PRESIDENT: Yes, but Mr Stokes, even though 14.2.1 doesn't make any requirement for the name of the staff member to be disclosed, how can the university be satisfied that there was in fact a staff member unless something is given or provided to the university to show in fact that was the case?

PN338

MR STOKES: Your Honour, with respect, the point again - some of those points could be easily clarified in evidence but the other point that I would make is that the clause doesn't require that.

PN339

THE DEPUTY PRESIDENT: Yes, I have accepted that point, that the clause doesn't require it, but the question was a little different. If you're saying to me that you're going to answer that later through evidence, then that satisfies that question for the moment.

PN340

MR STOKES: Your Honour, we also would make some points in terms of the question of the dispute matter before you and to questions of affected staff members as well in a moment, your Honour, with regard to the operations of clause 12 which has been raised, but I will come to that in due course.

PN341

The dispute resolution procedures, as I've said, allow for staff to be represented by a person or persons of their choice. As stated in the witness statement of Dr Sinclair-Jones which you have a copy of, your Honour, a number of academic staff members chose the NTEU and the NTEU representative in this instance, Dr Sinclair-Jones, to represent them. This is in accordance with clause 14.2.1 and 14.2.2.

PN342

THE DEPUTY PRESIDENT: Can you take me to the relevant provision in the witness statement or perhaps the paragraph?

PN343

MR STOKES: Yes, your Honour. Dr Sinclair-Jones, who is president of the NTEU and a staff member of the university, has provided two witness statements, a supplementary second one, but I'm referring to the first one at paragraph 13:

PN344

I became aware of Curtin University of Technology's reshaping document as a consequence of advice from a member of the NTEU, that his line manager had told him in conversation that he had been approached by HR consultants in his area and given the document -

PN345

In this instance, your Honour, of course, it's the reshaping document:

PN346

with an instruction to complete it and return it to HR and that it was a confidential process.

PN347

THE DEPUTY PRESIDENT: Is that staff member going to be divulged in evidence?

PN348

MR STOKES: Your Honour, again that is a matter that we could easily resolve in evidence/

PN349

THE DEPUTY PRESIDENT: Yes.

PN350

MR STOKES: Your Honour, the other paragraph that's relevant to the question that you put to me is paragraph 15 where Dr Sinclair-Jones, in her written witness statement, says:

PN351

On about 12 July a different member of the NTU brought to me a copy of the document which was entitled Proposal for Support under the Reshaping Curtin Initiative.

PN352

THE DEPUTY PRESIDENT: And again, is that different member going to be identified in evidence?

PN353

MR STOKES: Your Honour, that again is a matter that we could clarify in evidence.

PN354

THE DEPUTY PRESIDENT: Yes.

PN355

MR STOKES: As to the question of identification of the staff member, again I would say to you, these are questions that we will clarify in evidence. I think that's the best I can answer at this stage. We would repeat, I have done this three times, your Honour, but I think it's important to be precise, that the question of identification is not a matter that goes to the operations of 14.2.1.

PN356

THE DEPUTY PRESIDENT: It's not a matter which is referred to or required, but it may be a matter that the Commission may need to be satisfied about.

PN357

MR STOKES: The question of, again, thank you, your Honour, I was struggling for words in terms of the question of evidence, but I believe that can be satisfied as I believe the point that you're making with me is, I think that can be satisfied in evidence, your Honour. Thank you for that.

PN358

THE DEPUTY PRESIDENT: Yes.

PN359

MR STOKES: Your Honour, the other point that we'd make with regards to clause 14 is in relation to the bargaining agent forms that the respondent has made a number of points regarding. Your Honour, the bargaining agent form is in the NTUs written submission at tab 10. That's the first written submissions, your Honour. Your Honour, the bargaining agent form needs to be actually read in full and not selectively and, your Honour, I'm now reading about halfway down where it says:

PN360

I also appoint the National Tertiary Education Union as my agent in relation to any industrial matter.

PN361

I'd highlight that point with you, your Honour.

PN362

And under where it says insert name of institution, it says, "Under the Workplace Relations Act 1996" - - -

PN363

THE DEPUTY PRESIDENT: Just before you go on there, Mr Stokes, we went through earlier the question of whether it's the NTEU or a person and my recollection is you did acknowledge the distinction between those two forms, if I can put it that way.

PN364

MR STOKES: Well, I'm only simply - that goes to the question of representative for which you were making that point, your Honour.

PN365

THE DEPUTY PRESIDENT: Yes.

PN366

MR STOKES: What I'm simply saying is highlighting the fullness of the documentation with regards to any industrial matter.

PN367

THE DEPUTY PRESIDENT: Yes. Are you making a distinction between agent and representative?

PN368

MR STOKES: Well, it states, "as my agent in relation to any industrial matter", your Honour, it says that.

PN369

THE DEPUTY PRESIDENT: Yes. So are you saying to me that agent means representative?

PN370

MR STOKES: I'm suggesting to you, yes, your Honour, that in the operations of this bargaining agent form, in this bargaining agent form, your Honour, it does go to the question of representative because it goes to any industrial matter and with regards to the operations of a certified agreement, yes, it does. But the other point I'd like to make there, your Honour, is under "insert name of institution" it goes there to "under Workplace Relations Act", because there is some reference to the legislation, your Honour, but it also adds, "or successor at" as varied from time to time. So that's its fullness, your Honour.

PN371

I think those points are important to make, your Honour, because there are, one could selectively read from that - - -

PN372

THE DEPUTY PRESIDENT: There may be a distinction between agent, for the purposes of the Act and the representative for the purpose of the certified agreement. Would you accept that?

PN373

MR STOKES: Your Honour, in terms of where I'm heading, I would suggest to you that I'm simply responding to questions that were raised around the questioning of the bargaining agent form. We believe that because these matters have been raised, we're simply trying to clarify them. As to the questions of clause 14 and the question of the jurisdictional matter, we believe we wish to make a number of points. The bargaining agent form is only one of many.

PN374

THE DEPUTY PRESIDENT: Yes.

PN375

MR STOKES: Your Honour, the other point beyond the jurisdictional questions, of the operations of the Act, the question of conditions of employment, the dispute resolution procedure, the other matter that we would turn beyond that, we would turn to is the question of clause 12 of the certified agreement which in effect goes to the question of the dispute matter before you, your Honour. I do reiterate that it's certainly NTEUs view that the Commission does have jurisdiction to hear this dispute matter as to the application of clause 12, consultation and changed management of the certified agreement.

PN376

Your Honour, clause 12 needs to be read in full to get the full meaning of the operations and application of 12.4. 12.1 of the certified agreement states staff members and where they choose a representative shall be provided with opportunities to provide timely input into the decision making processes of the university. 12.2, the university recognises the role and the responsibilities of staff as partners in the development and maintenance of Curtin's teaching programs, research activities and corporate functions, and again, your Honour, with regards to, and we accept the point that you have said with regards to clearing the jurisdictional matter first, but I think 12.2 stands there as a beacon for the operations of the dispute matter with regards to 12.4.

PN377

12.4:

PN378

Where issues arise which may lead to workplace change, these shall be discussed with all staff in the area concerned to allow for meaningful consultation and input by those staff and/or where they choose their representative or representatives, it is understood that there will often be informal discussion or consideration of issues that may or may not lead to workplace change proposals. Staff may seek the assistance of representatives in such a discussion.

PN379

12.5, your Honour, seems to then carry on quite logically where:

PN380

The University has determined that changes will be made that are likely to result in significant -

PN381

and that's defined in clause 9 under definitions -

PN382

affects the staff and prior to implementing such change, those staff shall be advised in writing and have the right to comment on the proposals -

PN383

and it goes on, your Honour.

PN384

12.5 follows 12.4. There are a number of matters in 12.4 that we wish to highlight, your Honour, that have come up today. The first one goes to the question of the area concerned. All staff in the area concerned. Your Honour, even a cursory examination of the respondent's submissions and witness statements indicate that the area concerned is the university and therefore if the area concerned is the university, then all staff, that is all academic staff, are in that area. The university have indicated that the re-shaping document is to be applied across all areas. That certainly again can be clarified in evidence, your Honour, but there has been reference in the written submissions from the respondent, the Reshaping Curtin University is often a phrase used. That would be the first point.

PN385

The other point - - -

PN386

THE DEPUTY PRESIDENT: But Mr Stokes, if the area concerned is the university, doesn't that mean by implication that it's the constituent parts of the university within the university as well?

PN387

MR STOKES: Yes, your Honour, I think that also goes to the full question there in my view is the question there of all staff because it goes to the question of the operations at 12.4 and what are the issues arising that may lead to workplace change, these shall be discussed with all staff, and it goes on to say, in the area concerned. The point I was leading you to, your Honour, is there has been suggestion that, well, we don't know what the area concerned is. Well, I'm not sure how that suggestion or how you can conclude that. The University's own submission and witness statements goes to the point that there is reference to the whole of the university. That's the area concerned.

PN388

THE DEPUTY PRESIDENT: Yes. No, I understand what you're putting.

PN389

MR STOKES: Sorry, your Honour. I'm trying to emphasise the point and in part go to the second point, again in submission, the university referred to the document only going to 15 senior employees, but it goes to all areas across the university. So even in the submissions of the university, I think there is an acceptance that it goes to the whole of the university. From that we would suggest that all staff are concerned. Your Honour - - -

PN390

THE DEPUTY PRESIDENT: Are you referring to all academic staff or to staff other than academic staff?

PN391

MR STOKES: Well, we're referring to the certified agreement, the academic certified agreement, which is the disputed matter before you, your Honour. So we are referring to all academic staff in this instance.

PN392

THE DEPUTY PRESIDENT: Yes.

PN393

MR STOKES: Your Honour, as to the question of issues, issues which may arise, we - - -

PN394

THE DEPUTY PRESIDENT: Just before you do move on. The definition you took me to refers to a person whose employment is covered by the provisions of this agreement. So does that, in effect, cover the members of the NTEU?

PN395

MR STOKES: Sorry, your Honour, I beg your pardon?

PN396

THE DEPUTY PRESIDENT: Yes. I'm just exploring with you who are included, who are covered by the agreement and you took me to staff member earlier, the definition.

PN397

MR STOKES: Your Honour, I thought I took you to, just for clarification, page 5 of the agreement, parties to the agreement, that's - - -

PN398

THE DEPUTY PRESIDENT: On my copy that's page 4.

PN399

MR STOKES: I beg your pardon, your Honour.

PN400

THE DEPUTY PRESIDENT: Yes.

PN401

MR STOKES: I took you to the question of the parties as defined.

PN402

THE DEPUTY PRESIDENT: Yes, thank you. That clarifies that.

PN403

MR STOKES: Your Honour, can I just have a second to confer with my colleague, please, your Honour?

PN404

THE DEPUTY PRESIDENT: Yes, certainly.

PN405

MR STOKES: Your Honour, the other matter that may assist is on page 2 of my document, your Honour, 3.1. I did refer to the question of parties as defined, but it also refers to under clause 3, parties and parties bound, and it goes to:

PN406

This agreement shall apply to and be binding according to its terms upon all academic staff, employed by Curtin University of Technology except those who are a party to the Australian Workplace Agreement.

PN407

THE DEPUTY PRESIDENT: Yes, thank you. That's good.

PN408

MR STOKES: I was just trying to assist the - - -

PN409

THE DEPUTY PRESIDENT: That's very clear.

PN410

MR STOKES: Thank you, your Honour. Your Honour, I was referring to the question of issue or issues arising and I would ask you to refer to again our document, our submission, under tab 1, which again goes to this question of the operations and jurisdiction of 12.4 in relation to a number of questions beyond the area concerns to the question of issue.

PN411

THE DEPUTY PRESIDENT: Is this the proposal?

PN412

MR STOKES: Proposal for support under the Reshaping Curtin Initiative, which is the only document, and at the beginning there it refers to guidelines, your Honour. As well, there's another document, but I haven't seen that document, your Honour, but to the question at hand, it's the question of issues and it would be fair to say that under 1 where it refers to clearly workplace change, questions of positions, staffing levels, what's going to happen with certain positions is clearly an issue that staff, in terms of the operations of clause 12 have an interest in, it would appear under point 2 that questions of increased efficiencies and reducing costs may well be issues for all staff in the area concerned that may lead to workplace change.

PN413

THE DEPUTY PRESIDENT: Does that include other staff other than academic staff?

PN414

MR STOKES: It may well do, your Honour, but I make the point that this is to do with the operations of the academic certified agreement. It may well do, your Honour. Point 3 is to questions of current and future staffing. We would suggest, without labouring the point, and sometimes it is worth labouring, your Honour, that it is clearly these are matters that are issues that may lead to workplace change, they shall - shall is quite clear - should be discussed with all staff, and we would suggest the area concerned is the university, and the staff in question are the academic staff, as we have clarified with you, your Honour.

PN415

Your Honour, in conclusion and bearing in mind time, your Honour, it is the university's strong view that - I beg your pardon, your Honour - the NTUs strong view - the university clearly have got some strong views as well, but it is the NTEUs strong view that the Commission has jurisdiction to determine this dispute. This dispute does need resolution, your Honour. We are able to call evidence to assist with regards to the matter of jurisdiction, but on the basis of what we have submitted to you today, your Honour, we would strongly believe that this matter can and should go to arbitration for the merits of the matter to be determined.

PN416

THE DEPUTY PRESIDENT: Yes. But Mr Stokes, I'll need to be satisfied that there has been a proper compliance with clauses 14.2.1 and 14.2.2 in order to be satisfied that there is jurisdiction. But you have said to me that you intend to adduce evidence, to demonstrate this, haven't you?

PN417

MR STOKES: Yes, your Honour.

PN418

THE DEPUTY PRESIDENT: Yes. So in that sense you're just foreshadowing to me that you have got further important material to put?

PN419

MR STOKES: I beg your pardon, your Honour?

PN420

THE DEPUTY PRESIDENT: You're foreshadowing that you have important further material to put in support of your case, is that the case?

PN421

MR STOKES: Yes, your Honour. And that concludes our submission, your Honour.

PN422

THE DEPUTY PRESIDENT: Thank you. It would seem that perhaps the best way to progress the matter would be to adjourn to a suitable time for evidence to be adduced. The applicant has indicated it does have witnesses that it will wish to call upon in support of jurisdictional issues as well as issues relating to arbitration on the basis that the Commission would establish that there is jurisdiction. Perhaps that wasn't entirely clear. Would you like me to repeat that, or was that sufficiently clear?

PN423

MR STOKES: If you could repeat it, your Honour.

PN424

THE DEPUTY PRESIDENT: Yes. It seems that the Commission should adjourn to a time and place to hear evidence now and the applicant has foreshadowed that it does have some important evidence to put forward. The respondent has certainly indicated it has certain objections and would wish to cross-examine. Yes, Mr Curlewis?

PN425

MR CURLEWIS: Yes, and I may add, lead my own evidence.

PN426

THE DEPUTY PRESIDENT: And lead evidence for the respondent. The Commission has been advised by the parties of certain dates that might be suitable to the parties. Without actually having those opened before me, maybe the best thing may be for the Commission simply to re-list this matter, taking into account those submissions at the earliest opportunity. What are your thoughts as to the best way to proceed? Mr Curlewis?

PN427

MR CURLEWIS: If I could raise two matters. I would like to raise one point, please, if I may, in response to what was put in the submission made by Mr Stokes and I'd like to draw to your attention that no other party has to another definition in the certified agreement which may assist in determining the issue of what an area is. It is put by myself that the area means a particular or specific area within the University under clause 12.4. Mr Stokes says the area quite clearly means the University as a whole area. I would refer you, nevertheless, in support of - - -

PN428

THE DEPUTY PRESIDENT: Mr Stokes, do you wish to object?

PN429

MR STOKES: Your Honour, I'm unclear as to where we're heading. Yes, your Honour, I object. I understood that there had been submissions, that those submissions had been concluded and I'm now hearing that there's further submissions. I'm asking for some procedural clarification, your Honour, because we in fact could be, many of us, making further submissions.

PN430

THE DEPUTY PRESIDENT: Yes. Mr Curlewis?

PN431

MR CURLEWIS: Yes, your Honour, it is quite appropriate I may say and is fairly regular for somebody who has closed their place to have a response. I have said my peace. Mr Stokes has responded and has full knowledge of everything I've said and I'm entitled, with respect, to be able to respond briefly raised in his submissions which were put in response to mine, and I simply wish to draw your attention to another provision in the certified agreement which is there for the benefit or no benefit of both parties. It goes to the issues raised before you.

PN432

THE DEPUTY PRESIDENT: Yes. Just before you proceed. I will allow you but I'll also allow Mr Stokes the opportunity to reply. Please proceed.

PN433

MR CURLEWIS: Your Honour, I just refer you to, in support of my argument that an area means an area or a particular school or a particular division within the University to what is the finishing of workplace change. That is referred to. The word workplace change is used in clause 12.4 because what it says is that:

PN434

where issue which may lead to workplace change.

PN435

Now, that word "workplace change" is defined as the last definition in clause 7 of this agreement as:

PN436

Any change that impacts the staffing arrangements for an area, school or division.

PN437

It is not "and university" or and whole structure of the whole university. It talks about arrangements for an area, and school, if I could put it that way, for a division. So I say no more. I say that supports what we're - when it comes to area, what it means, a particular area as opposed to some extension of what an area means. That, I say, supports our argument. Your Honour, as to the other issues of procedure - - -

PN438

THE DEPUTY PRESIDENT: Perhaps before we go on, Mr Stokes, would you like to reply to that point first and then we'll come on - - -

PN439

MR STOKES: Yes. Just a point of clarification, your Honour. There was reference by Mr Curlewis to a clause within the agreement. I'm just trying to go to it and seek clarification of what clause he referred to, please, your Honour.

PN440

THE DEPUTY PRESIDENT: Yes. Clause - it's under the definitions clause. Is that clause 9? At the last element part of that clause.

PN441

MR STOKES: Thank you.

PN442

THE DEPUTY PRESIDENT: Do you wish to reply to that, or not at this point?

PN443

MR STOKES: Yes. Well, no, yes, I would, your Honour.

PN444

THE DEPUTY PRESIDENT: Yes, certainly.

PN445

MR STOKES: And I'm glad that it's been brought to our attention because we would argue that in fact with regards to this it goes to all areas, all schools and all divisions and the point that we were making was reference in our submission to the statements by the Vice Chancellor and others with regards to Reshaping Curtin University which includes all areas, all schools and all divisions and we further add the point that the 15 senior employees that we made mention of go to all areas, all schools and all divisions of the whole of Curtin University.

PN446

So that is a helpful clarification, thank you, your Honour.

PN447

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

PN448

MR CURLEWIS: Thank you, your Honour. Your Honour, as to the way forward, I did understand you to say earlier that you would rule on the jurisdictional matter and then, depending what it was, give directions as to the further conduct of the matter thereafter. Now, if I misunderstand that, I apologise, but that's how I understood it. Now, from my point of view, if that is to be the position, I don't know if it is in fact whether you, ruling on the jurisdictional issue, were going to deal with it on the basis of the submissions today and rule on those from the bar table or whether you would hear the evidence and then rule thereafter as to the further conduct of the matter.

PN449

THE DEPUTY PRESIDENT: Yes. There seem to be, first, there's the need for the Commission to re-list this matter and to hear evidence. The second thing is for the Commission then to determine if it's able to determine the jurisdictional question before proceeding further or whether in fact the Commission cannot determine the jurisdictional question and must hear the arbitration in its entirety and then determine both later, or both together, perhaps, is a better way of putting it rather than later.

PN450

MR CURLEWIS: If that be your view of the matter, it doesn't, it seems to me with the greatest respect, serve the public purse to have half the evidence heard and not all of it. That is to say, if the witnesses are to come once, whichever party they were, my submission is they should give all their evidence and proceed on the basis of hearing their evidence, rather than to have half the evidence and there be the debate about what is admissible and what isn't as to those issues on that point.

PN451

I only make that point that ultimately if the parties are to convene at some stage for the future, they have to all convene at an appropriate date, bearing in mind their availability. It would be appropriate in my view for all evidence to be heard and if you can distil jurisdictional determination out of all of that, so be it. But if not, then you would determine the whole matter together, but I make that submission at this point, leaving aside availability and when that takes places of witnesses.

PN452

THE DEPUTY PRESIDENT: Yes. No, I understand what you've put. I'd ask first if you would concur that if the Commission has jurisdiction to hear and determine the dispute, then does in fact the arbitration of this matter mean the Commission deciding whether the respondent failed to apply properly the requirements of 12.4 in relation to the proposal for support under the Reshaping Curtin University Initiative document? Is that your view, Mr Stokes?

PN453

MR STOKES: Your Honour, at the beginning of proceedings, and again without wishing to drag things on, we're in your hands, your Honour, but the NTUs view at the time was that both matters be heard at the same time, both the jurisdiction and the - - -

PN454

THE DEPUTY PRESIDENT: Yes, I understand that.

PN455

MR STOKES: And with regards to where we were heading, your Honour, it was put to us, did we wish to submit any evidence with regard to the jurisdictional question that could assist the Commission and we said, yes, and we foreshadowed, I think the word you used, were we foreshadowing that there would be evidence, that we could provide evidence that could assist the Commission and we understood that we had said at the time that there was - - -

PN456

THE DEPUTY PRESIDENT: Yes. I'm asking now a different question. I'm asking, if there is jurisdiction, clearly it would seem that if the Commission finds it has jurisdiction, then the matter is dismissed. If the Commission finds there is jurisdiction, then would you concur that the question to be arbitrated is, did the respondent fail to apply properly the requirements of clause 12.4 in relation to the Reshaping document?

PN457

MR STOKES: Yes, your Honour, that's in our application, yes, your Honour.

PN458

THE DEPUTY PRESIDENT: That is the question to be arbitrated?

PN459

MR STOKES: Yes, your Honour.

PN460

THE DEPUTY PRESIDENT: Yes. Mr Curlewis, your view on that?

PN461

MR CURLEWIS: Yes, your Honour. That's partially the position. WE have asked the question but it's never been answered, and that is, is the question to be arbitrated in relation to the formulation of the document or is the actual implementation of the document. That remains unanswered. It's been said, it's clear on the papers, but of course that distinction is not made on the papers. So from my point of view it's not clear what the arbitration is other than, as I seek to contain it, and that is, it is not anything to do with any even after the date of the lodgement of the dispute, and hence there's objections about what sort of evidence should be led or anything that took place after 12 August 2006.

PN462

THE DEPUTY PRESIDENT: Yes. Would it be your position that if the respondent failed to apply properly the requirements of 12.4, in relation to the formulation of the document, then that would require the Commission to find against the respondent?

PN463

MR CURLEWIS: No. With respect, no. We say we're not even in the - what we did, that is, in formulating a document for management purposes, it's not even in the scope of this document. It is not an issue which has arisen. Because no issue had arisen into a particular area, it was a blank page that was sent out. We say it doesn't fall within 12.4.

PN464

THE DEPUTY PRESIDENT: So are you saying it would be - that it would only be in relation to the respondent failing to properly apply 12.4 in relation to the implementation of the document?

PN465

MR CURLEWIS: Exactly, yes, your Honour.

PN466

THE DEPUTY PRESIDENT: That is your position?

PN467

MR CURLEWIS: Yes, and we say, from my point of view, that dispute isn't before the Commission today.

PN468

THE DEPUTY PRESIDENT: Yes. I understand what's put. Mr Stokes, do you have any comment on that?

PN469

MR STOKES: Well, your Honour, the only comment, and we have also made written submission to you, your Honour, on a number of matters, and we would say and continue to say that our application is there before you and it goes to the question of properly applying clause 12.4. Again, these are matters that we are more than happy to present beyond our written submissions with regards to the arbitration of the matter, your Honour.

PN470

THE DEPUTY PRESIDENT: Are you saying that if the respondent failed to apply properly requirements of 12.4 in relation the formulation of the documents, the same question I initially asked Mr Curlewis, that the Commission would then be required to find in the applicant's favour?

PN471

MR STOKES: No, your Honour. With respect it goes to our application and it says with respect to the document in question and with respect to the document in question goes to issues that arose leading to the document in question, which is the Reshaping document and the question of proposals arising out of the document and to questions of implementation, your Honour.

PN472

THE DEPUTY PRESIDENT: Doesn't that, put simply, relate to the formulation of the document as well?

PN473

MR STOKES: With respect, your Honour, it would not be our view that it goes beyond that in terms of the operations of clause 12.4 and it goes to a range of questions around formulation, proposals leading in to questions of implementation. Again, it would be our intention to sketch this out before the Commission through evidence because it's our view, without going into matters or submitting matters to you today, your Honour, is that 12.4 goes to those questions and our application goes to the application of 12.4.

PN474

THE DEPUTY PRESIDENT: Yes. How much of the evidence of the parties and you first, Mr Stokes, relates to that issue as distinct from the other issues that have been canvassed this afternoon?

PN475

MR STOKES: To the issue that you're referring to, the jurisdictional matter, your Honour?

PN476

THE DEPUTY PRESIDENT: Yes.

PN477

MR STOKES: Well, again, your Honour, that's why when you raised this question of determining the jurisdictional matter first is, that's why we said we could assist with regards to that. We are of the view that the Commission have got jurisdiction. This is not a matter that we have raised, your Honour. We have responded to this matter.

PN478

THE DEPUTY PRESIDENT: Yes, I understand that. My question really is, in terms of the logistics, as to whether you would anticipate that most of the evidence would relate to jurisdiction or most of it would relate to arbitration.

PN479

MR STOKES: Well, your Honour, sorry, with respect, your Honour, it is difficult to say but I would say most would go to - if I'm pressed to the question of arbitration.

PN480

THE DEPUTY PRESIDENT: Yes, thank you. And Mr Curlewis, for the respondent?

PN481

MR CURLEWIS: Your Honour, I need to go back, if I may, to come to your question. The very point that has been raised today, and in fact was slightly expanded on by Mr Stokes, goes to the query I pertinently raised before you in conciliation, what is the scope of the dispute?

PN482

THE DEPUTY PRESIDENT: Was that the directions conference you're referring to?

PN483

MR CURLEWIS: Yes, that's right.

PN484

THE DEPUTY PRESIDENT: Yes.

PN485

MR CURLEWIS: In which there was some specific debate about whether this dispute for your determination related to the drafting of a document or whether it related to the implementation of that document. Mr Stokes' answer was, read the documents, it's clear. Today for the first time, the very first time, Mr Stokes has said it goes to the implementation of the working choice document. Now, from my client's point of view, that is arbitration by stealth. It is not fair. I wanted to prepare, my client needs to prepare and put evidence before you, as to a clearly defined dispute. For the first time it has now moved from being the document to its implementation and you will clearly remember, your Honour, your words at the directions hearing, Mr Stokes, is it the compilation of the document or is it the implementation, and the answer was not given. Read the document, it's in my dispute notice.

PN486

I was then required to write a letter to say, and you wrote, and you indeed said, well, I cannot receive evidence for at least anything after the notice of dispute, and a notice been put in that respect. We need, with the greatest respect, not to waste the taxpayer's money in arguing about what in fact is the dispute before you. It perhaps even goes to the level of the dispute that was brought supposedly for the discussion for the University because it is now moving from the partly specific area into a grey area and it is a shifting target. For the University to meet it, it needs to know what that target is. It is moved today for the first time, to the implementation of the workplace document, and that has never been said before, albeit, and I had asked for it specifically to avoid this very question.

PN487

Your Honour, it seems to me that that said, before this dispute can go to any evidence, we need to know what it is about because if I have been taken by surprise, that the evidence now to be moved and the arguments are going to the implementation, my client needs to be given a proper opportunity to put evidence in to rebut that type of extension of this dispute. Therefore, your Honour, from that point of view, I'm not sure - or I leave now simply the further conduct of it because this is a new avenue opened by virtue of what is said from the other side of the bar table as to exactly what, with respect, you have to arbitrate.

PN488

THE DEPUTY PRESIDENT: Mr Stokes?

PN489

MR STOKES: Your Honour, with due respect, the application has been before the Commission since 8 August. The application states very clearly with regards to this matter, and I'm going to it, your Honour, yet again, the matter in dispute relates to the failure of the University to properly apply clause 12.4 and it is with respect to the proposal for support. The respondent continues to raise this matter. The applicant, the NTU, has continued to clarify this matter and it's the matter to do with the operations of clause 12.4 in its fullness, your Honour.

PN490

The respondent continues to attempt - - -

PN491

THE DEPUTY PRESIDENT: With respect to the Reshaping document?

PN492

MR STOKES: Yes, your Honour.

PN493

THE DEPUTY PRESIDENT: Yes.

PN494

MR STOKES: With respect to that document. That is, in all our submissions, at all times we have gone to the operations of clause 12.4. It is our view that the respondent continues to narrow the application of 12.4 almost to the point of wishing to re-write as we have stated before our application before you - - -

PN495

THE DEPUTY PRESIDENT: But am I correct that your case relies upon events that occurred prior to the lodgement of the application?

PN496

MR STOKES: Your Honour, the matter before you when that question was asked was that we put our application in on 8 August. With regard to the question of 12.4 there are a whole range of matters in terms of the application of 12.4 and with regards to that question of clarification we have agreed on that point, your Honour, yes.

PN497

THE DEPUTY PRESIDENT: Yes, that it does in fact relate to events prior to the lodgement of the application which was - - -

PN498

MR STOKES: With respect, sorry to interrupt, your Honour, but with respect to the application of clause 12.4, with respect to that document and in submission, in written submission, and to the question we would go to, the full application of 12.4 which was what I was attempting to try and clarify, that I'm happy to put that to the side for the moment.

PN499

THE DEPUTY PRESIDENT: Yes.

PN500

MR STOKES: Your Honour, this is a matter that we have gone through on many occasion and we will continue to come back to our application.

PN501

THE DEPUTY PRESIDENT: The application also refers to the steps of the dispute settlement procedure that were taken?

PN502

MR STOKES: Yes, your Honour, with regards to - or the dispute resolution procedure is there which is why the matter is before you, your Honour.

PN503

THE DEPUTY PRESIDENT: Yes. It refers to the dates, being 19 July and 20 July, are referred to in the application?

PN504

MR STOKES: Your Honour, when the original dispute, at 14.2.1 and 14.2.2, I believe you're referring to there.

PN505

THE DEPUTY PRESIDENT: I'm just simply looking at the application, which is the second page of the application, refers to the lodgement of the dispute on the 19th, with the University, on 19 July, and it thereafter mentions 20 July for an urgent special meeting of the relevant committee.

PN506

MR STOKES: That's correct, your Honour.

PN507

THE DEPUTY PRESIDENT: Yes. Does that clarify for you, Mr Curlewis, the matter?

PN508

MR CURLEWIS: It only goes back to the point that was made by myself and the report in the letter that it relates to a dispute as was formulated by letter on 20 July and, as subsequently confirmed, by notice of dispute on 12 August. If that is the limit of this application or arbitration, that may resolve it. But if it goes to anything, I would have to say, after the dispute and its implementation, and we've never had - we have still not, from the bar table, that commitment that we're dealing with matters only up to 12 August. If it is that, that certainly narrows it down.

PN509

THE DEPUTY PRESIDENT: Yes, thank you. I return to my question earlier and I'd ask how much further time do the parties expect for the hearing of this matter, so the Commission can list the matter? Mr Stokes first?

PN510

MR STOKES: Your Honour, these things are always difficult but in terms of what we had originally said was a day, but I would suggest to you, your Honour, depending on - without limiting ourselves to that - but as a ballpark figure, between half a day to a day with regards to both submission and evidence, your Honour.

PN511

THE DEPUTY PRESIDENT: Yes, thank you. That's a further half day to one day?

PN512

MR STOKES: Yes, your Honour.

PN513

THE DEPUTY PRESIDENT: Yes. Mr Curlewis?

PN514

MR CURLEWIS: Thank you, your Honour. From the respondent's point of view its case, I think, will take half a day and I understand that to be in addition to what Mr Stokes has said to be the NTU case. So I would envisage a day and a half would satisfy the taking of evidence and submissions.

PN515

THE DEPUTY PRESIDENT: For the respondent?

PN516

MR CURLEWIS: For both parties. I understood him to say - - -

PN517

THE DEPUTY PRESIDENT: For both parties?

PN518

MR CURLEWIS: Yes.

PN519

THE DEPUTY PRESIDENT: Yes. Well, for the Commission to find that time will require looking at the other case commitments and then notifying the parties, I would ask whether, in the interim, now that the positions of the parties to some extent have been further clarified, whether you would wish to, on the basis that the Commission is going to list this matter, whether you would wish to, in the interim, prior to the next hearing taking place, enter into further private discussions between yourselves to clarify anything that might be useful. Do you have a view on that, Mr Stokes?

PN520

MR STOKES: I don't have a view at the moment, your Honour, on that matter, but certainly I could seek a view.

PN521

THE DEPUTY PRESIDENT: You have an open mind at this point?

PN522

MR STOKES: I always have an open mind, your Honour.

PN523

THE DEPUTY PRESIDENT: Mr Curlewis?

PN524

MR CURLEWIS: Equally, we're very open minded.

PN525

THE DEPUTY PRESIDENT: You have an open mind? Well, the Commission would encourage the parties to reflect on these further developments in these proceedings and to communicate with each other with a view to making any constructive progress at all that might assist the resolution of this dispute expeditiously. If there's no further matters, the Commission will list this matter again. I expect to have a notice of listing out to the parties within a couple of days.

PN526

MR CURLEWIS: Your Honour, I take it you would want to know some availability of potential witnesses to assist you with that determination?

PN527

THE DEPUTY PRESIDENT: If you would wish, please notify the Commission if you could perhaps by noon tomorrow, would that be possible?

PN528

MR CURLEWIS: Could I ask, I know one of my witnesses is interstate and I'd need to get that availability. Could you give me 24 hours to get that to you?

PN529

THE DEPUTY PRESIDENT: Mr Stokes, 24 hours, would that be convenient to you?

PN530

MR STOKES: I'm always cognisant of time, your Honour, but I understand that both parties did actually submit some availability to you this week, your Honour, so I'm not sure why 24 hours is needed.

PN531

THE DEPUTY PRESIDENT: Yes. The Commission does have those availabilities.

PN532

MR STOKES: Yes, your Honour.

PN533

THE DEPUTY PRESIDENT: Are you proposing further availabilities beyond the time?

PN534

MR CURLEWIS: Quite frankly, your Honour, I was asked for availability for the end of last week and this week. I've given that to that position. I would understand, as I understand this matter, given that it's been listed for half a day today, that there's no chance, if I could submit, that it's to be listed this week given that witnesses, I've already indicated they're not here for much of this week or here, in or out, so that the availability I'm talking about is for the future after this week as to a re-listing for a day and half's trial. That's what I'm talking about.

PN535

THE DEPUTY PRESIDENT: Yes. I will endeavour to get this matter listed as quickly as possible, but hearing that submission I will allow until 5 pm tomorrow for either party to give any further information to the Commission about any proposals for listing beyond what has already been given. We'll now adjourn.

<ADJOURNED INDEFINITELY [5.49PM]