C2006/2714, Transcript of Proceedings [2006] AIRCTrans 889 (17 July 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15342-1

COMMISSIONER WHELAN

C2006/2714

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
AND
SWINBURNE UNIVERSITY OF TECHNOLOGY
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2714)

MELBOURNE

10.06AM, MONDAY, 03 JULY 2006

PN1

MR J COONEY: I appear on behalf of the LHMU with me is MR D EGAN.

PN2

MR R WILLIAMS: I'm from Swinburne, Commissioner and with me I have MS T SULLIVAN, also from Swinburne. If the Commission pleases.

PN3

THE COMMISSIONER: Thanks. I have received the notice in this matter and subsequent correspondence. Unfortunately I wasn't here last week so I got to read this correspondence this morning but I have received the response by the university dated 27 June, a reply to that by the LHMU dated 29 June and further correspondence from the university dated 30 June. So I think that's all I should have, I think. Is that right?

PN4

MR COONEY: Yes that's correct, Commissioner, and with the question of the jurisdictional arguments raised by Swinburne, if my learned colleague would like to open on his jurisdictional grounds then that would be the best way to proceed.

PN5

THE COMMISSIONER: Yes. All right then. Okay, Mr Williams, thanks.

PN6

MR WILLIAMS: Thanks Commissioner. Commissioner, as you suggest you've got correspondence from the university there. I'd like to speak to the correspondence dated 27 June, Commissioner, if I may.

PN7

THE COMMISSIONER: Yes.

PN8

MR WILLIAMS: I don't know how you'd like to handle this but we'd be relying upon that if you wanted to mark that as an exhibit.

PN9

THE COMMISSIONER: All right.

PN10

MR WILLIAMS: I'll leave that to your discretion of course.

PN11

THE COMMISSIONER: Yes that's probably useful because that's really an outline of your argument isn't it?

PN12

MR WILLIAMS: Effectively it is.

PN13

THE COMMISSIONER: Okay then.

EXHIBIT #SU1 LETTER ADDRESSED TO THE COMMISSION IN RELATION TO THE ALLEGED DISPUTE DATED 27/06/2006

PN14

MR WILLIAMS: Thanks, Commissioner. Commissioner, there's one error in paragraph 3 of that letter that I'm sure Mr Cooney won't object to. It's my mistake. When we refer there to correspondence dated 4 July 2005? That in fact should be 14 June 2005. That's supported in fact by the union's reply to that letter. They refer to the letter being 14 June but otherwise, Commissioner, we would rely upon this document and in effect, as we're saying here is, regardless of the substance of the dispute we submit that the Commission doesn't have any jurisdiction to hear the matter.

PN15

We think that there are effectively three limbs to that argument. The first one that I would outline is the operation of section 170LX of the Act. In particular section 170LX(2). To give you a bit of background here, Commissioner, as to why we say LX(2) is relevant here I could pass up some correspondence, Commissioner, that might help you understand the matter here.

PN16

THE COMMISSIONER: Well I understand that the substance of the argument is that the 2005 agreement entirely replaces the - - -

PN17

MR WILLIAMS: That's right.

PN18

THE COMMISSIONER: The 2000 agreement and that therefore any dispute can only arise under the 2005 agreement.

PN19

MR WILLIAMS: Yes that's right. What we have, Commissioner, is a notification of dispute from the Miscellaneous Workers Union on 10 June 2005, that was when we first got notification or formal notification of a dispute that applied to the 2000 agreement. As we suggest here on 14 June we responded to that dispute notification and disagreed if you like with the union as to where the dispute was at.

PN20

THE COMMISSIONER: Yes.

PN21

MR WILLIAMS: The 14 June correspondence acknowledged the dispute had been notified but it disagreed with the step in the process where we were at. Nothing happened after that, Commissioner, after 14 June 2005. That dispute didn't progress in any direction. It stopped. Subsequent to that on 26 July 2005 you certified a replacement agreement. I have got some copies of the relevant part of that agreement, Commissioner. We've got, I don't think it's in dispute - - -

PN22

THE COMMISSIONER: I've got both the agreements here actually.

PN23

MR WILLIAMS: Terrific. It's relevant, Commissioner, if you look at the 2005 agreement.

PN24

THE COMMISSIONER: Yes.

PN25

MR WILLIAMS: And you look at clause 6 of the 2005 agreement and we talk about the relationships to awards and certified agreements - - -

PN26

THE COMMISSIONER: It supersedes …..

PN27

MR WILLIAMS: And yes, I'd let you read, it's 6.1 and 6.2 there Commissioner.

PN28

THE COMMISSIONER: Yes thank you. Okay. Yes.

PN29

MR WILLIAMS: Those words in our submissions are very relevant, very important. There's a bit of a history in the higher education sector linked to government funding and when – I could get the dates wrong here but from about 2001 onwards universities had to demonstrate that when they certified their agreements that they were closed and comprehensive, they were fully closed documents and that was the intention of those words. So in making those submissions I think they're fairly straightforward about the chronology there, Commissioner, but there is a case that goes directly to the point that I would like to rely upon when making submissions as to the effect of section 170LX(2).

PN30

THE COMMISSIONER: Yes.

PN31

MR WILLIAMS: If I could hand that decision up for you, Commissioner. I've got a copy here for Mr Cooney. We say this is directly on the point, Commissioner. It's the decision in Abetz. It was an appeal against a decision of a single Commissioner. It's a Full Bench decision print number PR 952743 and Commissioner what the Minister was saying on appeal, if you look at paragraph 21 of that decision, is a mirror of the submissions that we're making here this morning with respect to section 170LX(2) and that is that on certification in our case, on certification of the 2005 agreement in July 2005, the 2000 agreement ceased to operate due to the effect of section 170LX(2).

PN32

We'd rely there upon those submissions that the Minister made to the Commissioner at paragraphs 23, 24 and 25. Without reading those if I could just ask you to highlight - - -

PN33

THE COMMISSIONER: I think I recall reading the decision when it came out.

PN34

MR WILLIAMS: Well it's directly on the point we say.

PN35

THE COMMISSIONER: Yes.

PN36

MR WILLIAMS: If you go to the conclusion, the Full Bench's conclusion at paragraph 40 Commissioner, or 40 onwards I should say and go to 42 and the Full Bench there is saying apart from the effect of the private arbitration case and the disputes that go to the application of the agreement, section 170LX has that effect that it constrains or limits the jurisdiction of the Commission to exercise that private arbitration power. Without taking you through the rest of this decision we would rely on paragraphs 42 through to 53 in making the submissions with respect to 170LX. Commissioner, that's all I need to say on LX(2) unless you want me to elaborate upon anything.

PN37

THE COMMISSIONER: No I'm familiar with the argument, Mr Williams.

PN38

MR WILLIAMS: But we do have a second and in fact a third meaning to our argument as well Commissioner.

PN39

THE COMMISSIONER: Yes.

PN40

MR WILLIAMS: If I can just you in a moment but the second is it goes to the steps in the 2000 dispute resolution procedure themselves. If you've got the 2000 agreement there.

PN41

THE COMMISSIONER: Yes.

PN42

MR WILLIAMS: We might have a look at the dispute resolution procedure at clause 11.

PN43

THE COMMISSIONER: Yes.

PN44

MR WILLIAMS: What we have before you Commissioner, as I said I can tender documents to support the chronology that I've just outlined but we've got a dispute that was notified on 10 June. The dispute that was notified on 10 June requested that a disputes committee be convened for the purposes of clause 11.2.2. Now the correspondence in reply dated 14 June disagreed with the union's characterisation of the dispute if you like, disagreed with where we were at the dispute and the director of Human Resources wrote back to the union and said well we acknowledge that you've notified a dispute under the dispute avoidance procedure, nonetheless we disagree that we're at 11.2.2.

PN45

We don't believe that 11.2.1 has been done yet so we invite you to go back and look at 11.2.1 and we can progress the dispute from there. And as I said, Commissioner, there is no correspondence from that time on. It was a month and a half, six weeks later that the replacement agreement was certified and nothing happened to that dispute for the purposes of this clause between when - - -

PN46

THE COMMISSIONER: The thing was this wasn't new, this didn't suddenly arise on 10 June 2005. This had been an ongoing dispute hadn't it?

PN47

MR WILLIAMS: Well no. No I'd characterise it as a matter of issue between the parties most certainly. The debate over a 38 and a 36 hour week was up for grabs in enterprise bargaining but a dispute over the application of that clause had never been notified until 10 June. We were progressing the issue through the dispute resolution procedure until 10 June 2005 even though the matter might have been an issue between the parties in enterprise bargaining negotiations. It wasn't a formal dispute for the purposes of clause 11 of that agreement and clause 11 of that agreement, Commissioner, provides that we can't come to the Commission until those steps have been followed.

PN48

At 11.4 you'll see, until the procedures described above have been exhausted, 11.4.3 provides the subject matter of the dispute will not be taken to the Australian Industrial Relations Commission by the union or management. So we say it's a condition precedent that those steps had to have been followed before we can actually end up here today. So in the first instance we're saying that LX provides that the, you can't do anything with the 2000 agreement and secondly we say if you weren't persuaded by that argument you couldn't hear the substance of this dispute because a disputes committee has not been convened and we are at 11.3.

PN49

The union's response dated 29 June, Commissioner, acknowledges that a dispute committee hasn't been convened. Now again I've got a Full Bench decision that supports the argument that, known as conditions of precedent to being able to come here and hear a dispute Commissioner and I might hand up a decision that we'd rely upon to that effect.

PN50

THE COMMISSIONER: If the 2000 agreement is no longer operative why is the dispute settlement procedure in the 2000 agreement the relevant procedure?

PN51

MR WILLIAMS: Irrelevant or relevant procedure?

PN52

THE COMMISSIONER: Why is it the relevant procedure? I would have thought that the relevant procedure is the dispute settlement procedure in the 2005 agreement.

PN53

MR WILLIAMS: The dispute was notified under the 2000 agreement. There's never been a dispute notified under the 2005 agreement. That's a different dispute resolution procedure and again - - -

PN54

THE COMMISSIONER: Yes I know. That's what I'm saying.

PN55

MR WILLIAMS: Yes.

PN56

THE COMMISSIONER: The dispute resolution procedure - - -

PN57

MR WILLIAMS: There hasn't been one notified under the 2005 agreement. The only dispute that was notified was under the 2000 agreement. We didn't have any further discussion on that dispute beyond 14 June 2005 until we received the listing in this matter some 12 months later. It quite frankly came as a very big surprise to us that there was a dispute notified under the 2000 agreement. So what we're saying is that even if the 2000 agreement was still in operation the Commission wouldn't have jurisdiction to hear the matter because we haven't been through the steps in the dispute resolution procedure and as I say we've got three limbs to the argument.

PN58

This is the second one and I've got a Full Bench decision here that I'd like to rely upon, Commissioner, in making those submissions. Thank you. This is a Full Bench decision in the matter of Charles Sturt University and the National Tertiary Education Union. This was an appeal against a decision where the Commission found it had jurisdiction to hear the substance of the dispute. If I can take you to paragraph 7 of that decision, Commissioner, the argument there was that the jurisdiction of the Commission doesn't arise unless the procedure in the clause has been completed and that didn't occur in this matter and that's what we're saying is the case here.

PN59

If I can take you to paragraph 10, Commissioner, at the last sentence of that paragraph 10 the Full Bench states that the jurisdiction and power of the Commission as private arbitrator under the dispute settlement procedure is subject to any limitations in the agreement that confer power on the Commission. And then paragraph 11 explains the conditions precedent that must be followed before the Commission has jurisdiction to hear the substance of the dispute and this is in effect what has happened in our case here, Commissioner, that it's got to a certain point, it didn't progress beyond that point and the Commission needs to have all or needs to be satisfied that all the conditions precedent have been followed before it has jurisdiction to hear the matter.

PN60

Paragraph 14 again it's right on point here, paragraph 14 the Full Bench notes that no dispute committee had been convened and that the four steps specified in the relevant clause hadn't been completed and the Commission found that it didn't have jurisdiction to hear the matter. The third limb I've got, Commissioner, I suppose goes more to the characterisation of the dispute. We know from a number of decisions, including the private arbitration case that when we look at section 170LW of the pre-reform Act that it's important for the Commission to characterise the dispute in the first instance.

PN61

We say this is a dispute more to do with the interpretation of the agreement if you like, of legal rights and obligations that might have arisen under the old agreement rather than the application of the clause itself. It appears to us, with all due respect Commissioner, that it's more a matter that would be pursued through judicial proceedings if the union had an issue with clause 36 of the, of the 36 hour week, whatever clause it was in the 2000 agreement and I've got a final decision here, Commissioner, I'd like to rely upon when we're talking about this perhaps being more a matter for judicial proceedings than proceedings in the Commission.

PN62

This is a decision of a single Commission, Commissioner Smith, Commissioner. It's a decision that goes to 170LX again. The decision here, Commissioner Smith notes at the outset it was a long running dispute between the parties but effectively what happened here was that the union had made an application to vary the agreement then the agreement was replaced by a subsequent certified agreement with an operation clause similar to the one that we've been discussing. Commissioner Smith notes here that it's a closed agreement.

PN63

That there were no transitional provisions and the like but at the conclusion, Commissioner Smith's conclusion at paragraph 21 and 22, Commissioner Smith follows the decision in Abetz and notes the effect of section 170LX which, as we say, is our prime submission and then at clause, paragraph 22 Commissioner Smith notes that the character of the dispute if you like that it was probably more suited to judicial proceedings rather than proceedings through the Commission.

PN64

THE COMMISSIONER: I don't know that that's actually what he concludes. I think he concludes that even if the agreement has been superseded.

PN65

MR WILLIAMS: Yes.

PN66

THE COMMISSIONER: That the accrued rights of those parties are not extinguished and that they can take up proceedings.

PN67

MR WILLIAMS: Yes that's right.

PN68

THE COMMISSIONER: Yes.

PN69

MR WILLIAMS: Yes, sorry, if I mislead you there.

PN70

THE COMMISSIONER: That's what he's saying.

PN71

MR WILLIAMS: Yes. No I agree with you, Commissioner. Yes but he's certainly saying that the Commission doesn't have jurisdiction to hear the matter in dispute.

PN72

THE COMMISSIONER: Yes.

PN73

MR WILLIAMS: I think, Commissioner, effectively that's all we intend to say on the jurisdictional point. We say it's a threshold issue. We say the Commission doesn't have jurisdiction to hear this matter so we ask the Commission to make a decision to that effect. If the Commission pleases.

PN74

THE COMMISSIONER: Okay. Thanks Mr Williams. Mr Cooney?

PN75

MR COONEY: Thank you Commissioner. Mr Williams has given submissions on section 170LX. By virtue of the new amended Act pre-reform certified agreements do continue to apply. However the sections of the Act that do apply have been, as I understand, modified and even though the pre-reform certified agreement part of the Act does mention 170LX, it only mentions the subsections 1 and 4. The section that I believe Mr Williams was referring to was subsection 2. The amended Act actually goes on to say that a pre-reform certified agreement means an agreement that was made under Division 2 or 3 of Part VIB of the Act.

PN76

We would say that would give a general meaning to any certified agreement that could be used in a proceeding before the Commission including ones that, as Mr Williams has argued, may no longer be in operation because they were replaced by another certified agreement. The second issue we wish to raise, Commissioner - - -

PN77

THE COMMISSIONER: Sorry, are you arguing that an agreement that's been replaced under the Reform Act continues to operate?

PN78

MR COONEY: No.

PN79

THE COMMISSIONER: I'm just having some difficulty in understanding what you're argument is. I understand that what you're saying is that when certain provisions in relation to pre-reform agreements are maintained under transitional provisions they don't maintain all of those but section 170LX(2) would have become operational on 26 July 2005 prior to the Reform Act coming into existence.

PN80

MR COONEY: And section 170LX(2) specifically excluded from operation by virtue of the Reform Act. I'm referring to the Reform, well not even the Reform Act, the Workplace Amended Act with the amendments contained in Part 2 schedule 7 pre-reform certified agreements.

PN81

THE COMMISSIONER: Yes.

PN82

MR COONEY: What I was getting at on the issue of pre-reform certified agreements is that it's not a core issue whether the agreement has been replaced by another agreement. What I'm getting at is the 2000 agreement can still be put before proceedings before the Commission even though there's another agreement which has replaced it.

PN83

THE COMMISSIONER: And what's your basis for arguing that, Mr Cooney? I'm having difficulty in understanding it.

PN84

MR COONEY: The Reform Act. The Reform Act is expressly excluded or by implications have expressly excluded section 170LX(2) and all it does, it refines or defines a pre-reform certified agreement means an agreement made under Division 2 or 3 of Part VIB of the Act. It doesn't go on to say - - -

PN85

THE COMMISSIONER: But it has to be an operative agreement because otherwise you could say any agreement that had been made since 1996 whether it had been superseded, set aside or anything else would still be somehow revived by virtue of the Reform Act. I don't think there's anything that would suggest that it was the intention of the Work Choices legislation to revive agreements that had been superseded or set aside prior to 27 March 2006.

PN86

MR COONEY: But when we look at the intent of the legislator we can look at what the actual Act says. The Act specifically says subsections 170LX(1) and (4) continue to operate not subsections 170(LX)(2).

PN87

THE COMMISSIONER: But the whole part, but that whole part is transitional provisions in relation to agreements which have not passed their nominal expiry date.

PN88

MR COONEY: But if the legislator's attempt was to have the whole part apply it would have stated 170LX and left - - -

PN89

THE COMMISSIONER: No I'm saying the whole part of the Work Choices Act that you're referring to deals with agreements that have been certified prior to 27 March 2006 and which have not passed their nominal expiry date. So they are agreements that are live agreements. You're talking about an agreement that has been superseded. Not only has it passed its nominal expiry date but it's also been expressly superseded by a further agreement. The transitional provisions in the Work Choices amendments relate to agreements that still have a life.

PN90

If an agreement has passed its nominal expiry date and has been superseded by an agreement which specifically says that it supersedes and replaces in its entirety the previous certified agreement then the agreement's dead effectively. It is dead in the sense that it's been replaced. It certainly does not mean that people don't have accrued rights under that agreement and can't enforce those accrued rights but those accrued rights under that agreement are rights that arise because of the terms of that agreement and they are enforceable under section 178 or what was section 178.

PN91

It's now something else but they're enforceable under those provisions of the Act. The amendments, the Work Choices amendments don't give life to agreements which have passed their nominal expiry date and were superseded otherwise you'd have 1998 people bringing dispute notices under 1998 agreements that have been replaced once, twice or three times.

PN92

MR COONEY: The legislators, in some respect the legislators remain silent on agreements that have been replaced but in, well actually I take that back. If that was the legislator's intent of having pre-reform agreements that are passed their nominal, or that have been replaced by another agreement, I would have imagined that the legislator would have placed in section 170LX(2) into the Act. It would have the option to do that. It chose not to.

PN93

It specifically went to subsections (1) and (4). We would say that there's a Statute of Limitation Act as well which would allow that agreement to continue for six years but I would imagine the Commission would look at that and probably say it's – what you're looking at is a jurisdictional issue.

PN94

THE COMMISSIONER: Well that's exactly what I've said. It preserves the right to enforce entitlements under that agreement, yes. And that's clearly what the Act does allow and I don't think there's any argument about that, that if there are rights and entitlements arising under that agreement which people have been denied, then they have the capacity to enforce those rights. The difficulty I have is that you're talking about an agreement which had a nominal expiry date of 31 March 2003.

PN95

It could have continued after that date and it did obviously continue after that date for some period of time because the replacement agreement didn't come into effect until 26 July 2005 but once that replacement agreement came into effect, while the rights and entitlements under the 2000 agreement continued to be available to the people who were covered, the ongoing conditions applicable to their employment became the conditions contained in the 2005 agreement. I don't think you can revive the dispute settlement procedure under an agreement which has been superseded and I think that, irrespective of section 170LX(2), I think that would be the case.

PN96

I think that the intention of the parties, when the agreement was certified on 26 July 2005, is that these are now the dispute settlement procedures which will apply and that any dispute which has arisen under the previous agreement effectively lapses unless it becomes a dispute under the new one. I'm having difficulty in understanding why that would not be the case.

PN97

MR COONEY: I'm just quoting from the amended Act, Commissioner.

PN98

THE COMMISSIONER: Yes.

PN99

MR COONEY: As I understand the Commission's point a dispute could be – the Commission would have no problem with the dispute enacted under the 2005 agreement, dispute resolution procedure.

PN100

THE COMMISSIONER: No. I mean the dispute resolution procedure under the 2005 agreement is the one which currently applies. Now the 2005 agreement dispute resolution procedure is very broad as far as I can see in terms of what it covers. It covers disputes concerning workplace matters which may arise. Now that's a very broad spectrum and it contains a process under it which ultimately brings the parties before the Commission if they don't resolve it any other way. At the behest of either party but from 26 July that's the dispute settlement procedure which applies.

PN101

MR COONEY: If the Commission could aid me and just direct me to the clause of the agreement.

PN102

THE COMMISSIONER: Clause 11 I'm talking about in the agreement that was certified on 26 July.

PN103

MR COONEY: Thank you Commissioner.

PN104

THE COMMISSIONER: It says:

PN105

It is recognised that disputes concerning workplace matters may arise. It is agreed that we will work co-operatively to promptly resolve any such disputes as far as practical at the workplace in accordance with the procedure set out below.

PN106

Now my reading of that is it's not confined to disputes arising out of this agreement. It's any workplace dispute. So as of 26 July this is the procedure that applies in relation to any dispute in the workplace. The dispute procedure under the 2000 agreement is effectively superseded. It's no longer available. This is the procedure which is now available. It sets out what the parties must do and it's got a series of steps where if they don't resolve it, it ends up in the Commission. Now it would still, you know, that's what my understanding is when the parties signed that agreement, that's what they were agreeing to, that that was now to be the process.

PN107

It does not preserve expressly anywhere in this agreement and in fact suggests to the contrary, anything arising out of the previous agreement. It doesn't say any dispute that arose under the previous agreement will continue as if the previous agreement continued to operate. My understanding is that you'd have to start, re-start I suppose although from a practical point of view obviously there has been some notification given and some discussion but my understanding is you'd have to effectively re-start the process applying the provisions in clause 11 of the 2005 agreement to any dispute. As I said it's very widely worded so it's any dispute.

PN108

There may be other issues in this case. I don't know. There may well be an issue about whether you can have a dispute arising under that agreement in relation to employees, people who are no longer employees. That may very well be an issue and that may be something that you need to consider. Certainly those people, whether they – who are no longer employees still have rights under the old agreement which are enforceable under the provisions of what was section 178 but whether they can access the dispute settlement procedure is another matter.

PN109

So there are, I think, some other issues that need to be considered in relation to it but that's my reading of the legislative framework and what the provisions of the agreements, these two agreements here provide.

PN110

MR COONEY: Just with respect to the Commission's reference to employee.

PN111

THE COMMISSIONER: Yes. I'm only raising that because I understand there is an issue, that this issue relates to security officers and the university ceased to employ, directly, security officers as I understand it?

PN112

MR COONEY: That's correct, Commissioner.

PN113

THE COMMISSIONER: So there may be an issue about whether you can have a dispute in relation to people who are no longer employees of the university. That may be an issue. I'm not saying that it's, you know – all I'm saying is it may be an issue that needs to be determined as to whether you can have a dispute under an agreement in relation to conditions of employment of people who are no longer employees.

PN114

MR COONEY: Is the Commission stating for example – this matter was raised up in 2003.

PN115

THE COMMISSIONER: Yes.

PN116

MR COONEY: Given the 2005 agreement the whole procedure must start again from its inception?

PN117

THE COMMISSIONER: Well my understanding is unless the 2005 agreement specifically preserves a dispute that was instituted under the other agreement, when it says this agreement completely supersedes and replaces the previous agreement, that means it supersedes and replaces anything commenced under the terms of that agreement unless they are proceedings in the court for enforcement of a provision of that agreement.

PN118

Now, proceedings in a court for an enforcement of a provision of the 2000 agreement is open, obviously, because you're still within any statutory time frame to take any proceedings in the courts to enforce entitlements under that agreement and those are accrued entitlements which people are entitled to, you know, seek to have enforced but my understanding is that unless the agreement says that any dispute under the previous agreement is preserved that in fact once that agreement finishes the next agreement, you have to reinstitute it under the new agreement and I think that's the problem that Mr Stephenson had in relation to the Parliament House matter.

PN119

That he had a dispute under the old agreement but once the new agreement came in, the position adopted by the Full Bench was that it died, effectively. His dispute died because that agreement ceased to have currency except in relation to an accrued entitlement. My understanding is that basically at this stage you've got two options. You institute dispute over the 2005 agreement and that may raise some issues as to jurisdiction if these people are no longer employees employed under the terms of that agreement or otherwise you take proceedings under the equivalent of what was section 178 in the Federal Court or the Federal Magistrates Court.

PN120

MR COONEY: I guess it also gets down to the issue of whether the employee in question has to be affected by what's actually happened as well.

PN121

THE COMMISSIONER: Well I don't know. I don't know the substance of the dispute. At the moment all I've been dealing with is the procedural aspects of it so I'm not clear on what the substance of the dispute is. I understand that there's been an issue which is over how the university applied the 2000 agreement. In any dispute over how an agreement is applied there has to be some point at which you have to interpret what the agreement meant.

PN122

So I don't think merely the fact that you have to interpret what the agreement meant means that the Commission can't do it but if the matter is, can't be brought before the Commission under the 2000 dispute procedure, which is what my understanding is, then it either has to be brought before the Commission under the 2005 dispute procedure or it has to be taken to the court as a matter of enforcement under the current equivalent of section 178 because the agreement and therefore the dispute settlement procedures of the 2000 agreement have been superseded.

PN123

That's my understanding, Mr Cooney, anyway. I don't feel that I need to deal with the other issues that Mr Williams has raised and I don't comment on them because I think that the essential issue is whether you can proceed with a dispute under an agreement that has been superseded at any time and replaced and I don't think you can.

PN124

MR COONEY: Well that's the Commission's opinion. I'm still going to hold on to section 170LX and ….. fall under the new Act but if that's the Commission's opinion that's the - - -

PN125

THE COMMISSIONER: So all I'm saying to you is that is my view and I've told you what I think your options are in relation to progressing the matter. All right?

PN126

MR COONEY: Thank you Commissioner.

PN127

THE COMMISSIONER: Thank you. I don't think there's anything further that we can say this morning. I'm happy to provide assistance if there's anything I can do but at the moment I think you have to take one of two courses of action which, neither of which are before me at the moment. Thank you.

PN128

MR WILLIAMS: Thanks Commissioner.

<ADJOURNED INDEFINITELY [10.44AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SU1 LETTER ADDRESSED TO THE COMMISSION IN RELATION TO THE ALLEGED DISPUTE DATED 27/06/2006 PN13