C2005/4093, Transcript of Proceedings [2006] AIRCTrans 150 (9 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14028-1

SENIOR DEPUTY PRESIDENT DRAKE

C2005/4093

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE
AND
AUSTRALIAN BROADCASTING CORPORATION
s.170LW - Application for settlement of dispute (certification of agreement)
(C2005/4093)

SYDNEY

10.06AM, MONDAY, 23 JANUARY 2006

Reserved for Decision

PN1

MR RYAN: If the Commission pleases, I think Mr Caruso and myself had discussions about the chronology on this matter and as a result of that, there is an agreed chronology which I think was sent to your office on Friday.

PN2

MR CARUSO: Yes, on Friday afternoon.

PN3

THE SENIOR DEPUTY PRESIDENT: I have it. Is that the one where you say:

PN4

I have discussed this document with Mr Ryan of the MEAA.

PN5

MR CARUSO: That's right.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7

MR RYAN: And you can see from the chronology, this matter has been on foot now since really April of last year in some shape or form - so 2004, it's 2006 now and it really boils down to as we see it, your Honour, what authority if any lies with Mr Cameron to curtail Mr Greaves' activity for the ABC. You will see from the transcript when we were last before you that the ABC seems to be saying that there is some conflict of interest between Mr Greaves' major role as that of the newsreader and the occasional work he does as the voice-over - - -

PN8

THE SENIOR DEPUTY PRESIDENT: I am sorry, I didn't hear you then. His role as?

PN9

MR RYAN: A newsreader and the occasional work he does as the back-up voice-over for Media Watch. You will note, however, the evidence of
Mr McIntyre when he was cross-examined, looking at the role of the voice-over person which is merely to read either the words that are coming up in print or to use the words spoken by somebody else, that Mr Greaves does not impose his own views or his own opinions or anything.

PN10

He is just merely repeating what was said or written by others in that program. The job of comment is left to the presenter of Media Watch where it's been acknowledged that the current presenter, Ms Jackson, would be known to all and sundry as an ABC journalist and if there was any conflict, one would have thought that if such a creature does exist, that the light should shine on the presenter rather than on the voice-over person, in this case Mr Greaves.

PN11

As well as that, there was a document handed up which is exhibit MEAA3 which is a document of the ABCs about the process to be gone through for the engagement of staff for work additional to normal duties and it's quite clear from that document that the process is that it's the supervisor in the area seeking to use somebody else which has to give approval for that person to be engaged, whereas Mr Cameron's memo turns that on its head and puts the onus purportedly on
Mr Greaves or anybody else to seek permission to do the work, whereas the process within the ABC is the opposite.

PN12

It's that people who are responsible for making Media Watch which need to get approval to use Mr Greaves and we say on that basis, the document of
Mr Cameron where it purports to go beyond your standard common law, if you like, rights and obligations of an employee not to perform work for another employer outside the ABC, where that's standard, it's permission being sought, obviously people will have regard to the sort of work being undertaken to see if there was any conflict to the ABC and you will notice, I think, as a matter of some notoriety, your Honour, that a number of ABC journalists do the occasional writing for The Sydney Morning Herald or The Australian, obviously after permission has been given

PN13

That's allowed and for Mr Greaves, it would be the ABCs position that he can't work for his own employer in the role of the voice-over person for Media Watch purely on the basis of Mr Cameron's purported guidelines which I say conflict fundamentally with the process established for the ABC, by the ABC in MEAA3. I think what's at the heart of this matter is that Mr Greaves has been doing this work for 10 years within the ABC.

PN14

What's the difference, the appointment of Mr Cameron to the director of news and current affairs position and the fact that the Media Watch program was critical of Mr Cameron shortly after his appointment, that particular piece that was run and what flows from that is the direction to Mr Greaves not to do the work and the creation of the guidelines of Mr Cameron which on its face would apply to everybody in news and current affairs, but when you look at it in detail, it's actually structured directly at Mr Greaves about people in news and current affairs doing voice-over work of which Mr Greaves is the only creature, so it's coloured it by that.

PN15

We say it's not a coincidence. If you look at the time line involved, the only trigger for Mr Greaves being probably banned from working on Media Watch is the appointment of Mr Cameron to his current position, a program by Media Watch which was critical of an aspect of Mr Cameron's work, voice-over on that program done by Mr Greaves and what follows from that is the over-turning of 10 years continuous history of working on Media Watch for the ABC before the issuing of guidelines by Mr Cameron.

PN16

As a result of all that, we have an escalation into Mr Greaves being disciplined by the ABC in July of last year which triggers this notification, so we would be seeking, your Honour, that Mr Greaves be allowed to be the back-up voice-over person for Media Watch, that the ABC should follow its guidelines as set out in MEAA3 and as a consequence, the guidelines concerning internal work in the ABC to the extent that they conflict with the pre-existing ABC policy be treated as null and void.

PN17

As I said, there are parts of that document which relate to seeking permission to work outside the ABC. We don't quibble with that. That's quite within the ABCs rights and to the extent that it's been used, we haven't said in the case that the ABC has acted capriciously in denying people the right to work outside the ABC, but in this case we had the ludicrous situation where 10 years of Mr Greaves doing something for his own employer is taken away from him on the whim and fancy of the director of news and current affairs, purely because as we submit, there was an over-reaction to a program by Media Watch of which Mr Greaves, of course, had no role in the content of what the presenter said.

PN18

He was merely doing his normal job of reading the words of others, in this case Mr Cameron, so we say that the ABC through Mr Cameron has not acted in good faith in this matter. What's been done by the creation of these guidelines is really a cover to get at Mr Greaves. Although it's couched in general terms, as I said, if you look at the reference to voice-over people in news and current affairs, the sole source of grief for Mr Cameron is that Mr Greaves is the only one who's mentioned in the largest paragraph of those guidelines, so, your Honour, we rely on the evidence to back up that time line.

PN19

We say it's not coincidence. It flows. Mr Cameron is the only X factor in this whole story. As I said, 10 years of doing the work under a number of other directors of news and current affairs, has caused no grief to anybody, but soon after the appointment of Mr Cameron, we say the evidence and the inference you can draw from that must support our proposition that the decision of Mr Cameron was not taken in good faith, but as I said, was a reaction to the Media Watch program as criticism of himself. If the Commission pleases.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Caruso.

PN21

MR CARUSO: Thank you, your Honour. Your Honour, the MEAA has raised the dispute over the application of clause 7 of the ABC employment agreement. Under the agreement, the Commission's powers don't ascribe under 63.5 and as you can see under 63.5:

PN22

The parties have agreed that the Commission has the power to make a binding recommendation subject to the limitation that it cannot make a determination or recommendation inconsistent with the terms of the agreement.

PN23

In this matter, your Honour, we submit the Commission needs to determine whether the ABC has properly applied the provisions of the agreement under section 57 in that Mr Greaves wilfully disobeyed or disregarded a lawful direction. Now, we submit that the ABC has a right to invoke the disciplinary procedures in clause 57 where an employee wilfully disobeys a lawful direction and that's 57.1.1(a).

PN24

It's also generally accepted that implied in every employment contract is a general duty to obey an employer's lawful and reasonable directions. Now, I'd like to refer to a recent Full Bench decision, your Honour, in the Woolworths Ltd t/as Safeway v Cameron Brown. It's an unfair dismissal case.

PN25

THE SENIOR DEPUTY PRESIDENT: The eyebrow ring?

PN26

MR CARUSO: Yes, the eyebrow ring. I've got a copy.

PN27

THE SENIOR DEPUTY PRESIDENT: I've read it.

PN28

MR CARUSO: You've read it? I might give Mr Ryan a copy. As you'd be aware, your Honour, the Full Bench stated in that case that:

PN29

Where a failure to observe a policy amounts to refusal to follow the lawful and reasonable directions of the employer, any such refusal would justify dismissal at common law, then this would be a valid reason for termination of employment under the Act.

PN30

Also, your Honour, the Full Bench stated that:

PN31

Failure to comply with a direction will not provide a valid reason for termination where the policy or direction is illegal or where the policy does not relate in the employment or matters affecting the work of the employee or if the policy or direction is unreasonable.

PN32

In this case, your Honour, Mr Brown's refusal to remove an eyebrow ring after repeated requests to do so was the failure to follow a lawful and reasonable direction of the employer. Furthermore, although Mr Brown had been permitted by his first manager to wear the eyebrow ring, the employer had followed a fair, protracted process to allow Mr Brown the opportunity to remove the eyebrow ring prior to taking disciplinary action. The Full Bench also stated that:

PN33

Whether a policy is reasonable will depend on the circumstances of the case.

PN34

They also noted that:

PN35

However, the policy will not be unreasonable because a member of the Commission considers a better or different policy may be appropriate.

PN36

Your Honour, we submit that the principles I've described above also apply in this case, but we also submit that the test under our employment agreement is even narrower in that under clause 57.1.1(a) which states:

PN37

Wilfully disobeys or disregards a lawful direction.

PN38

The matter before you, your Honour, requires the Commission to determine whether or not the clause has been applied properly. Now, the ABC employment agreement only requires a direction to be lawful for the ABC to invoke the clause. The direction to Mr Greaves did not involve illegal behaviour and it certainly relates to his employment with the ABC.

PN39

THE SENIOR DEPUTY PRESIDENT: Do you want to give me a copy of that decision? Have you got one there?

PN40

MR CARUSO: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Mr Caruso, there is a matter here of timing I want to put to you and it's occurred to me during the course of hearing the evidence in this matter. What if there's an improper application of the agreement, what if the decision is a matter that we might find that the agreement has not been properly applied and that the conduct itself is not one that ought properly have been subject to a direction? There's one finding.

PN42

What if you think that perhaps the direction to follow the decision of Mr Cameron ought to have been followed until the notification, a notification was made? What if there were two matters here, failure to follow the direction of Mr McIntyre and the matter of conduct of Mr Cameron in issuing - do you say that the matter of conduct here about which Mr Greaves was disciplined is the failure to follow the direction? What if that's true? What if I have a view about that? Do you understand what I'm putting to you?

PN43

MR CARUSO: Not quite. You're saying there's a failure to follow a direction?

PN44

THE SENIOR DEPUTY PRESIDENT: Well, you know, let's make something up here, although I think the factual decisions in that particular Full Bench on that come within the bounds of it. What if there was a decision that all employees who were pink shirts will be dismissed or will be directed not to wear pink shirts? There you go.

PN45

It's probably not a reasonable application of the ABCs power to direct its employees, although I don't like pink shirts very much, but set that aside, but
Mr McIntyre in the course of conducting his obligations directs an employees not to wear pink shirts. The employee says I'm sorry, Mr McIntyre, you know what you can do with your direction, I am not doing that and is disobedient of that direction, so you have - and if Mr Greaves or whoever immediately notified a dispute, but followed the direction, you might be able to complain about the direction itself being unreasonable in the circumstances, but he would have obeyed the direction.

PN46

If he, however, said, I'm sorry, Mr McIntyre, that's a ridiculous direction, I'm going to wear the pink shirt, anyway, it might be that you'd have a finding that the direction itself was unreasonable, but that there was a refusal to obey in the meantime and not notify the dispute and have the matter determined. Do you see what I mean? You've got it now? What if that is the situation here in my view?

PN47

MR CARUSO: I think the point comes back to the application of the clause, was it a legal direction?

PN48

THE SENIOR DEPUTY PRESIDENT: Do you think in any event that it's a matter of conduct in refusing to follow the direction of Mr McIntyre?

PN49

MR CARUSO: Well, I think there's a referral to the code of conduct, your Honour, in our editorial policies and they all, you know, should be read together. I mean, if we're arguing about whether it's a reasonable direction or not, I think in this case it still needs - we submit it would still need the reasonable test in that it is in relation to his employment and we're not asking him to do anything illegal.

PN50

THE SENIOR DEPUTY PRESIDENT: I don't think you answered my question, Mr Caruso, but I'll let you off. I just want you to understand that that is a question in my mind, the division of the two matters.

PN51

MR CARUSO: I know what you're saying, but I suppose my argument is that we're talking - well, it's a matter of the facts, did Mr Greaves fail to follow or disobey, did he disobey a legal direction from Mr McIntyre?

PN52

THE SENIOR DEPUTY PRESIDENT: A legal direction?

PN53

MR CARUSO: In accordance with - sorry, a lawful direction. That's what the agreement says. What my argument is that we had a right to invoke that clause on the basis that he has failed to follow a lawful direction.

PN54

THE SENIOR DEPUTY PRESIDENT: But the allegation, the inference clearly in Mr Ryan's submissions, he makes it clear here is that this is not a proper direction, but one motivated by self interest and angst and that it arises directly out of a personal irritation of Mr Cameron and personal interest of Mr Cameron. I don't know if I can make a finding about that or not, but he says look at the time line, no problem beforehand, criticism of Mr Cameron, a problem. He makes
that - - -

PN55

MR CARUSO: Well, that's not quite correct. If you follow the chronology document - - -

PN56

THE SENIOR DEPUTY PRESIDENT: I know, that's a factual matter. I'm just saying that's the allegation.

PN57

MR CARUSO: Our submission is that that is not the case, that if you look at the chronology document, I mean, it's as early as 26 April 2004 where there's discussions between Mr Greaves and Mr McIntyre about Mr Greaves doing the voice-over work. I mean, if you follow that, if you follow the chronology, then it's again on 7 July Mr McIntyre issues Mr Greaves a directive not to do the work. Sorry, on 21 January 2005, when they had their performance review meeting, again Mr McIntyre reminds him of the policy and not to do the work for Media Watch.

PN58

Now, it's not until April - there's an exchange of emails on 8 and 11 April between Mr Greaves and Mr Cameron where again Mr Cameron has concerns about him doing that work for Media Watch. That program doesn't go to air until the evening of 11 April. This is after the exchange of emails between Mr Cameron and Mr Greaves. Now, even after 11 April, Mr Cameron didn't issue him with - didn't issue him with a warning, we didn't take disciplinary action.

PN59

Mr Cameron followed that up with a letter on 18 April to tell Mr Greaves to cease doing any further work for Media Watch and again he includes I think a copy of the guidelines of that document, so, I mean, the MEAA is sort of arguing that this is all a result of Mr Cameron. Well, I think the evidence shows that there's quite a number of discussions between Mr McIntyre and Mr Greaves well before
Mr Cameron's letter of 18 April.

PN60

Now, no disciplinary action is taken against Mr Cameron, or formal action, until he does it again on 11 July and that's when we start with arranging the meetings and giving him the opportunity to respond, et cetera, et cetera, so I suppose my argument is that not much weight should be put on Mr Cameron's decision and whether Mr Cameron - as a result of Mr Cameron becoming director of news and current affairs that that's the trigger that sets off the disciplinary action.

PN61

Our submission is that long before then, there were discussions between
Mr McIntyre and Mr Greaves about the policy.

PN62

THE SENIOR DEPUTY PRESIDENT: I've interrupted you, Mr Caruso.

PN63

MR CARUSO: That's all right.

PN64

THE SENIOR DEPUTY PRESIDENT: You'll lose your thread.

PN65

MR CARUSO: This hasn't been brought up as, I suppose, an issue in terms of the process of the misconduct part of the agreement. The MEAA hasn't submitted that somehow we haven't followed due process in terms of the misconduct process, but maybe I could just quickly run through it.

PN66

THE SENIOR DEPUTY PRESIDENT: I don't think that's on the table, is it?

PN67

MR CARUSO: No.

PN68

THE SENIOR DEPUTY PRESIDENT: Well, don't worry about that. I don't think that's any allegation that there's been a failure of process.

PN69

MR CARUSO: Maybe I should just concentrate on the whole issue of conflict of interest and the reasoning behind Mr Cameron issuing of the policies.
Mr Greaves, he's employed as a producer/presenter and his role is to produce and present news stories. Now, in cross-examination, Mr Greaves acknowledged that he reports to Mr McIntyre.

PN70

He acknowledged that Mr Cameron has ultimate responsibility in decision-making in regard to editorial policies. He also agreed that he was duty bound to advise his supervisor of any intentional or actual conflict of interest. Now, the ABC places under its charter and its editorial policy a high value on editorial independence and integrity.

PN71

Now, news employees are required to comply with editorial policy as well as the code of conduct. Now, it's all premised on referral, accountability for editorial matters lies with ABC managers we submit who are charged under the editorial policy with those responsibilities. Now, Mr Cameron commenced acting in the role of director of news and current affairs on 10 May 2004.

PN72

He was appointed on 29 July 2004. He issued the policy in October 2004 and it's applied to all policies, not just Mr Greaves. The principle of obtaining permission to work is outside - it's applied to other areas in the ABC, not just news and current affairs. Now, as was stated earlier, Mr Greaves primarily does his work for Media Watch when Mr Simon Marney is unavailable.

PN73

Simon Marney is employed by the radio division. Now, he has declared this a conflict of interest with his manager and he's been given permission to work for Media Watch. Now, there's different considerations in terms of editorial sense as he is a radio division employee and the work he does for radio is quite different to the work that Mr Greaves performs in news and current affairs.

PN74

THE SENIOR DEPUTY PRESIDENT: In what way?

PN75

MR CARUSO: Mr Greaves, as I said, is primarily employed as a producer/presenter, he is a newsreader. He reads the news and his job is to present the news that's been gathered by news and current affairs. Mr Marney presents more of a program which involves talkback, it involves discussions over topical matters, entertainment, information, et cetera, et cetera.

PN76

THE SENIOR DEPUTY PRESIDENT: News items? I'm just not familiar with Mr Marney's work.

PN77

MR CARUSO: His program is more a traditional, I suppose, a flow radio program. It's talking to viewers, chats, comment, that sort of thing.

PN78

THE SENIOR DEPUTY PRESIDENT: About what?

PN79

MR CARUSO: General matters, topic of the day, a topic that either talkback callers may initiate or a topic that - - -

PN80

THE SENIOR DEPUTY PRESIDENT: So it's a range from your latest recipe to the latest terrorist bombings? I turn talkback radio off as soon as it appears on my radio, Mr Caruso. I hate it, so I never listen. I've got no idea.

PN81

MR CARUSO: Well, it's not mostly talkback, but it includes talkback. I suppose the big difference is that there's nothing stopping Mr Marney from expressing his opinion to listeners' talkback, et cetera, et cetera, whereas Mr Greaves is restricted in that sense in that he is reading a news bulletin.

PN82

THE SENIOR DEPUTY PRESIDENT: All right.

PN83

MR CARUSO: In terms of Media Watch and I suppose that's the difference, that it's not a news program presenting factual material. It's made by the TV division, its subject is to analyse media output in a critical manner and Mr Greaves' job is to present facts gathered by the news division in an authoritative way, accurately and objectively. Now, the concern news have, as we've submitted before, is that the impact on the editorial integrity of the work that Mr Greaves does for news.

PN84

Now, their concern is it may undermine the credibility of the news, to have an identifiable news voice which we submit Mr Greaves has an identifiable news voice being used to express criticism of news programs, now, whether they're from other media outlets or whether they're the ABC. In terms of the policy, we submit that the policy is consistent with the ABC code of conduct and I think that's been marked as MEAA5.

PN85

Apart from the general policy, Mr Greaves was given specific direction about his work with Media Watch. Mr McIntyre, and I won't go through the chronology, but certainly you can see from the chronology, it goes back as early as April 2004. Now, Mr McIntyre has explained the reasons for the policy, so has Mr Cameron. Mr Greaves may not agree, but the direction was clear.

PN86

He was not ignorant of the policy as indicated in his evidence. It appears he did understand it, because he sought permission from Mr Cameron in the email of 8 April which is ABC3. The policy has been in place since October 2004 and we submit, your Honour, that the interpretation of editorial policy is one for management to make.

PN87

It's not open for Mr Greaves to pick and choose which editorial policy he will accept and it's Mr McIntyre's call. If he's in doubt, as per the editorial guidelines, he is required to refer it upwards, in this case Mr Cameron.

PN88

THE SENIOR DEPUTY PRESIDENT: I haven't heard from Mr Cameron.
Mr Cameron is the decision-maker here, really, isn't he? Mr McIntyre is enforcing the decision made about these matters made by Mr Cameron.

PN89

MR CARUSO: Well, I suppose my evidence from the table, your Honour, is that as the director of news and current affairs, that's part of his job, that's his responsibility.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr McIntyre?

PN91

MR CARUSO: No, no, Mr Cameron, and Mr Cameron then has his next level of managers which includes Mr McIntyre to carry out the - - -

PN92

THE SENIOR DEPUTY PRESIDENT: Mr McIntyre is applying the decision made by Mr Cameron?

PN93

MR CARUSO: Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: I haven't heard from Mr Cameron, then, the information about why it is that this situation is a proper application of editorial policy or to refute the suggestions made by MEAA and Mr Greaves in this matter.

PN95

MR CARUSO: My submission is that I suppose the issue of the policies and guidelines, the guidelines back in October 2004 is really his authority. I haven't got long to go, your Honour. I just want to touch on a couple of matters that the MEAA have raised which I don't consider, or we would submit are not relevant in this case.

PN96

One is the fact that under the previous director, it was an issue that - or that the previous director may have known about Mr Greaves working for Media Watch and it was never raised with him. Look, we submit that the policy was introduced in October 2004 and it applied to Mr Greaves as it did to all other news and current affairs.

PN97

Now, after that, he was afforded a fair and proper process before any disciplinary action was taken and I refer back to the Safeway v Brown case. As I stated earlier, they also found that even though in that case, Mr Brown had permission to do it from his previous supervisor, that when they introduced - reinforced the policy, the Full Bench found that he was afforded a fair process in terms of disciplinary action or termination of employment before that took place.

PN98

In terms of the presenters of Media Watch, the MEAA mentioned Ms Jackson and Ms Monica Attard who has been engaged to present the program this year, we submit that the circumstances are different, your Honour. They are on temporary transfer from news and current affairs. Whilst working for Media Watch, they are employed by the television division.

PN99

They report to the executive producer of Media Watch. Overall, they report to the director of television. Neither Mr McIntyre nor Mr Cameron have any say in their day to day work for Media Watch, your Honour. Mr Ryan also mentioned the general orders which was MEAA3. As submitted in the previous hearing, your Honour, we submit that they've got the wrong reading of that.

PN100

What that clause refers to, we submit, your Honour, is more a financial obligation, that is a line manager needs the permission of the delegate in order to spend money to employ someone for the program, so what we say is that in this case, if applied, it would mean that the executive producer of Media Watch would need to get permission from the director of television to employ Mr Greaves, to spend money to pay Mr Greaves for any work he does for Media Watch.

PN101

It's got nothing to do with Mr Cameron or Mr McIntyre. Just in closing, we submit, your Honour, that the evidence shows that Mr Greaves undertook work for the Media Watch program after being directed on three separate occasions not to do so and that was on 7 July 2004, 11 April 2005, 18 April 2005. He failed to seek permission to undertake the above mentioned work which was required in the working outside news and current affairs guidelines, staff and managers' policy of October 2004.

PN102

He failed to advise Mr McIntyre of a potential or actual conflict of interest as required under clause 9.2 of the ABC code of conduct. We submit, your Honour, that Mr Greaves' actions constitute misconduct under clause 57.1.1(a) of the ABC employment agreement which states that:

PN103

Misconduct arises when an employee wilfully disobeys or disregards a lawful direction.

PN104

We submit, your Honour, that the MEAAs application should be dismissed and that the warning issued to Mr Greaves on 29 July 2005 stand. If the Commission pleases.

PN105

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN106

MR RYAN: Just briefly, your Honour. Although the Commission isn't bound by the strict rules of evidence, I think this is an appropriate case for you to have regard to the best evidence rule. The ABC had the ability to call Mr Cameron to give evidence. They chose not to, to explain the circumstances behind the issuing of the guidelines.

PN107

As pointed out by yourself, Mr McIntyre as a senior news executive carries out the will of Mr Cameron, but wasn't the author of the guidelines. Our submission is quite clear, that the ABC had the ability to call Mr Cameron. They chose not to and I think in those circumstances, a negative inference can be drawn from that, that to have called Mr Cameron would not have helped their case as to what lay behind the timing of the issuing of the guidelines.

PN108

THE SENIOR DEPUTY PRESIDENT: What about the matter I raised with
Mr Caruso that refusing to do as Mr McIntyre requested, whether or not it had a reasonable basis itself, might be a matter for discipline, which might have been a better matter, to have obeyed the direction and notified the dispute?

PN109

MR RYAN: In retrospect, that may well have been the case, your Honour, but I think in the circumstances that Mr Greaves was confronted with where for 10 years he had been happily doing this - - -

PN110

THE SENIOR DEPUTY PRESIDENT: That may be his reasons, but you can't have a situation where everyone looks behind the decisions of management and says, oops, I don't like that one, either. There is a process here that gets the matter listed and the matter can be dealt with. In the meantime, Mr McIntyre is discharging his obligations. I just put it to you as a matter. You can answer it or not, as you like.

PN111

MR RYAN: What you say is - as I say, in retrospect, it may have been handled differently. However, I think the end result is a lot different.

PN112

THE SENIOR DEPUTY PRESIDENT: All right.

PN113

MR RYAN: Because the underlying problem, we see it as reliance upon a set of guidelines which we say can't be lawful when they conflict fundamentally with the general orders as to the engagement of staff who's responsible for making that call. I mean, for the ABC to achieve its ends, I'm not telling them how to suck eggs, but the simplest thing would have been to say do not use Mr Greaves on Media Watch to the appropriate executive in that line of authority.

PN114

THE SENIOR DEPUTY PRESIDENT: I am not sure that would be a proper means.

PN115

MR RYAN: In a practical sense, that could have been achieved through - - -

PN116

THE SENIOR DEPUTY PRESIDENT: Yes, that would have been a back door way to achieve it. I don't think you can criticise them for being up front about the process.

PN117

MR RYAN: Well, we say that the guidelines is the - it's not exactly up front either. We make some strong submissions about how we say that came to be and the lack of good faith behind it and particularly when I'm still none the wiser what is the conflict of interest and it seems that the whole basis of the ABCs reasoning.

PN118

Now, would have you believe that ABC viewers watching Ms Jackson or
Ms Attard in the role would somehow be aware of the internal arrangements as to who employs them within the ABC as some sort of magic wand to stop them being looked at as a journalist, where they actually do the criticising of the media in a professional manner, while they've attempted to stop Mr Greaves from using his voice to put on the TV screen the words of others which doesn't contain any views of Mr Greaves at all.

PN119

I mean, if there's a conflict of interest perceived of otherwise and I don't think there is, then surely it goes to the presenters, not to the voice-over people and the whole basis is the conflict of interest and if you look at the codes of conduct, there's a mention of work outside the ABC and the process to be gone through with that, there's a reference to perceived or otherwise conflict of interest, but for the life of me, I cannot see how there is anything remotely a conflict of interest in Mr Greaves working for his own employer by doing news reading and reading the words of others on television. I mean, just objectively, we submit you just cannot say there is a conflict of interest.

PN120

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN121

MR RYAN: And again, as we say, the policy is unreasonable because it conflicts with the general order and also as we submit the circumstances which was put. If the Commission pleases.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you. I will reserve my decision. We will go off the record for the moment.

<NO FURTHER PROCEEDINGS RECORDED