C2006/2641, Transcript of Proceedings [2006] AIRCTrans 979 (22 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15522-2

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2641

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
AND
VICTORIA UNIVERSITY
s.170LW pre-reform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/2641)

MELBOURNE

11.27AM, MONDAY, 07 AUGUST 2006

Continued from 22/6/2006

Hearing continuing

PN1

MR R THOMAS: I appear on behalf of the NTEU and appearing with me is
MR J CULLINAN.

PN2

MR C O'GRADY: I seek leave to appear on behalf of the university and with me is MS D WINTERMANTEL.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr O'Grady. Leave has previously been granted, that will continue.

PN4

MR O'GRADY: Thank you, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: There was some preliminary matters we need to address, are there not, gentlemen? The university has taken, I'll call it a jurisdictional objection, and the scope of the case with which I have to deal will, it seems to me, depend on how that is determined, is that correct?

PN6

MR CULLINAN: Yes, your Honour, it would appear that way.

PN7

THE SENIOR DEPUTY PRESIDENT: Well, I think we ought to deal with that first. I've read the written submissions of both sides including the supplementary submissions in reply of the NTEU but I do invite the parties to briefly address me on those submissions and make any further points that they wish to make. Who do I address, Mr Cullinan or Mr Thomas, who is going to run this thing?

PN8

MR CULLINAN: Thank you, your Honour. In terms of the jurisdictional questions it would be most appropriate to address myself, your Honour, but in this instance it might be best if the respondent actually puts their jurisdictional concerns forward.

PN9

THE SENIOR DEPUTY PRESIDENT: Well, they've put them. What do you say about the clauses that you're not pressing at the moment, if I can put it that way?

PN10

MR CULLINAN: In terms of those clauses what we're saying is that the requirements under the Act is - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Just a moment. Yes, go ahead.

PN12

MR CULLINAN: The requirements of the Act are that there be a dispute over the application of the agreement and what we're saying is that there is a dispute over the application of the agreement and in order to narrow the scope of what we're going to be discussing we've put in our original submissions that clauses 14, 24 and 48 and 70 that we're not pursuing the dispute with respect to those parts of the agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR CULLINAN: But what we're asserting is, is that alleged breaches of other parts of the agreement result in a dispute over the application of the agreement and therefore those clauses have some - - -

PN15

THE SENIOR DEPUTY PRESIDENT: I was just going to say in respect of the dispute over the application of those clauses I got the impression that that's not something with which I need deal in this hearing, is that correct?

PN16

MR CULLINAN: That's correct, yes.

PN17

THE SENIOR DEPUTY PRESIDENT: Very well. Well, however we put it I don't need to deal with those matters.

PN18

MR CULLINAN: No, the only point being that clause 70 for example has relevance in that it's part of an interplay between other clauses, but an alleged breach over it isn't.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes, and you can address me on that when you need to.

PN20

MR CULLINAN: Thanks, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: So that brings us then to the submission of the university in relation to the manner in which the exercise of the jurisdiction can be exercised by the Commission, the point being as I understand it that the NTEU can't bring a matter of its own accord under the dispute settling clause. It must be a staff member affected and the union can be a representative of that staff member but can't initiate a dispute, that's one point. Then there's the point about clause 65, the university says that the procedure prerequisite to that being brought to the Commission have not been met. They seem to me to be the two issues that I need deal with in a preliminary way. Is that correct, gentlemen? Mr O'Grady perhaps first.

PN22

MR O'GRADY: We would agree with that, your Honour, particularly in the light of the fact that NTEU has sought in reply to put in additional material to meet some of the jurisdictional objections that were raised and in my submission the Commission should not have regard to that material and that would also have to be determined at the outset, so I agree with your Honour's approach that the ambit if you like, the dispute over the application of the agreement should be ascertained at the outset and if we're right about our jurisdictional point it becomes quite a narrow ambit.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Have I correctly in your submission characterised the nature of the jurisdictional objections you take?

PN24

MR O'GRADY: Yes, your Honour. The points really flow to the function of the dispute resolution clause in the context of section 170LW and as we apprehend it, your Honour, the principles lying behind section 170LW are not contested by the NTEU. Certainly they haven't sought to take issue with the authorities referred to in their submissions in reply. Those authorities make it clear in my submission that the Commission is confined to dealing with a dispute over the application of an agreement as a "private arbitrator". In those circumstances the Commission's jurisdiction is confined to that which the parties have agreed to confer upon the Commission.

PN25

Now, we say for the reasons we set out in the written submission that clause 63 is quite clear and the dispute that NTEU seeks to agitate is not one which the parties have agreed to confer on the Commission and that - - -

PN26

THE SENIOR DEPUTY PRESIDENT: In relation to clause 65?

PN27

MR O'GRADY: In relation to clause 65.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR O'GRADY: Now, I can go through the written submissions that were filed, your Honour, but we tried to be quite uncomprehensive.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. I don't think that's necessary,
Mr O'Grady. Unless there's anything you want to add to those submissions I'll ask Mr Cullinan to - - -

PN31

MR O'GRADY: Yes. The only point I would make, your Honour, and it's tied up with the material that the NTEU has sought to file in reply which raises, as we apprehend it, two matters. Firstly there is reference to another dispute, namely, one that was instituted by Mr Deal that does deal with clause 65.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR O'GRADY: In my respectful submission that point is met by the submission that's made at paragraph 13 of the written submissions filed by the university that the dispute must be a genuine a genuine one. Now, the authority of R v Cohen of course was a decision made in a different statutory context but in my respectful submission the principle is a sound one, that you can't generate a dispute with a means of simply enlivening the jurisdiction. There must be a real dispute and there must be evidence to show that the parties have a dispute about a particular matter.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, Mr Deal, it seems to me, has a genuine dispute on the materials, does he not?

PN35

MR O'GRADY: And if Mr Deal had sought to bring a matter before the Commission then that might well be a matter that the Commission could determine, but that's not what's happened. Mr Deal has not sought to institute the process set out in section 170LW. The NTEU seeks to rely upon a discrete dispute that Mr Deal instituted to buttress its application, an application that was brought completely independently, as the 170LW dispute notification shows. There's no mention of Mr Deal in any of the material filed at first instance by the union. The second point I would make, your Honour, is tied to that, namely, the reliance upon the bargaining agent's forms that have been filed by the NTEU, as those exhibits make clear and in particular NTEU25 makes clear.

PN36

That was a bargaining agent for the purposes of making, accruing, varying or terminating an AWA.

PN37

THE SENIOR DEPUTY PRESIDENT: What about the appointment of the NTEU as my agent in relation to any industrial matter concerning me? Is it not a matter an industrial matter Mr Deal?

PN38

MR O'GRADY: Well, in my respectful submission as the heading of the clause makes clear, it is a bargaining agent authority.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, but it seems, and that's the NTEUs submission, that it goes beyond the bargaining agent authority and has an ongoing effect. Would it be your submission, Mr O'Grady, that if the NTEU had notified a dispute on behalf of Mr Deal in relation to what he claims as a non observance of clause 65 that it could not have done so as his agent?

PN40

MR O'GRADY: No, Well, sorry, not have done so as his agent, in my respectful submission clause 63 doesn't appear to contemplate a dispute being generated by a union as an agent for an individual, rather it deals with an individual having a dispute and then being entitled to be represented by the union. So if Mr Deal had sought to be represented through the processes set out in clause 63 and then sought to have the matter referred to the Commission, I could not say that the Commission would not have jurisdiction in respect to clause 65 in those circumstances.

PN41

THE SENIOR DEPUTY PRESIDENT: And if he'd sought to be represented by the union at the time of referring the matter to the Commission do you submit that he could not do that?

PN42

MR O'GRADY: No, I don't submit that, your Honour, but that's not what's happened.

PN43

THE SENIOR DEPUTY PRESIDENT: I understand that.

PN44

MR O'GRADY: And this is an attempt to retrospectively fix things up and in my respectful submission that's not appropriate and it's not a process that's contemplated by clause 63. If it were, your Honour, then we would be in the possession where the NTEU could in effect bank disputes that arise from time to time and then exercise a general power to bring matters to the Commission if they fell within any one of the multiplicity of disputes that have been raised by individuals in the past and that's not the process that clause 63 appears to contemplate.

PN45

THE SENIOR DEPUTY PRESIDENT: Perhaps before I question you further we'll hear Mr Cullinan on that jurisdictional point and I'll give you a right to reply.

PN46

MR O'GRADY: Thank you, your Honour.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Cullinan.

PN48

MR CULLINAN: Thank you, your Honour, if it pleases the Commission. We've laid out most of our responses to these questions quite clearly, I believe, in the submissions in reply. Clause 63 has a number of facets to it I guess. The first is that we say that 63.2 does have some specific work that 63.2 has to do and that is in relation to a dispute which involves an individual staff member the disputes can be promulgated through 63.2, but it was never the intent, as will be provided in that second witness statement from Dr Doughney, that 63.2 was seeking to narrow the application of the entire of clause 63. So 63.3 provides a capacity for the union or any other party in dispute that might be a group of employees or be - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Where do I find that in the words of 63.3, Mr Cullinan?

PN50

MR CULLINAN: Simply in the first sentence -

PN51

Where a dispute is not resolved under 63.2 above.

PN52

THE SENIOR DEPUTY PRESIDENT: And that must surely refer to the dispute that's referred to in 63.2, doesn't it?

PN53

MR CULLINAN: No, we submit that it refers to any dispute, any dispute that's not resolved through that process. So whether it's brought through that process and not resolved or simply not resolved at the point of time and isn't appropriate to be brought through that process.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR CULLINAN: So we submit that the union is capable of bringing a dispute. We also submit as is in our statement in reply - submission in reply, sorry, your Honour, that we promulgated these disputes in the first instance under 63.2 out of an abundance of caution and that 63.1 provides the capacity - - -

PN56

THE SENIOR DEPUTY PRESIDENT: But what led you to do that,
Mr Cullinan? You did that before you received the submission of the employer, so if 63.3 has the clear intent that you say it does what prompted you to notify the dispute through the agency of Dr Doughney?

PN57

MR CULLINAN: In the first instance we notified it through that process out of an abundance of caution and out of the interpretation - - -

PN58

THE SENIOR DEPUTY PRESIDENT: Well, what alerted you to require you to act with an abundance of caution?

PN59

MR CULLINAN: Previous decisions in the Commission, that it's most appropriate to try and resolve it through the clause instituting every possible to the clause. So we had our decision last year in Inglis v CSU the Full Bench decided that we had to go through the entire process. We have alerted all of our industrial staff throughout the country to that process - to that decision, sorry, your Honour, and part of that is to follow the processes laid out in the agreement. So if there is a capacity to take a dispute through the processes laid out that we have asked all of our industrial staff to pursue, so that is why in the first instance we ran it through 63.2, similarly also because Dr Doughney has a capacity to run it through 63.2. But this is based on 63.1 and we say 63.1 is clear and unambiguous and that is that every staff member has an interest in the proper application of the agreement and that means that Dr Doughney has a clear and unambiguous in the proper application of the agreement to other staff members.

PN60

So in any event, we don't see how any dispute could fail on the fact that it doesn't necessarily involve Dr Doughney and his personal redundancy because the redundancy of others does have an impact on Dr Doughney.

PN61

THE SENIOR DEPUTY PRESIDENT: How is that?

PN62

MR CULLINAN: Well, it goes to his job security. It goes to his capacity to ensure that the agreement that was certified last year is enforced. It goes to ensure that his - - -

PN63

THE SENIOR DEPUTY PRESIDENT: He's not at threat, is he, of being made redundant at the moment? He hasn't been - there's been no suggestion that he might be made redundant, has there?

PN64

MR CULLINAN: Not at this stage. Earlier on when they were seeking a general approach without the forced redundancies as even part of the dispute that was a potential, but I think is that his personal situation, as with every other single individual staff member we would agree, they all have an interest in the proper application of the agreement to ensure that their entitlements are protected going forward.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes.

PN66

MR CULLINAN: We also submit that if there is a narrow view of the interpretation of clause 63.2 that that may prevent the capacity for disputes concerning groups of employees, or as is in this case, the union from being able to bring the dispute, and we say that was never the intent and that was never the understanding. In terms of the other dispute that's been notified what we're here today to do, as we've done every other time - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Just so that I’m on the same wave length, which other dispute?

PN68

MR CULLINAN: Sorry, wasn't notified to the Commission or I'm not aware of it being notified to the Commission. It was notified to the employer.

PN69

THE SENIOR DEPUTY PRESIDENT: And that's Mr Deal's - - -

PN70

MR CULLINAN: This the dispute concerning the other staff member in clause 65, Deal.

PN71

THE SENIOR DEPUTY PRESIDENT: Mr Deal.

PN72

MR CULLINAN: That was raised earlier.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MR CULLINAN: What we're here to do, as we have been all through this process, is to resolve the dispute over the application of the agreement. Now, what has happened to Mr Deal we contend is just part of the process of what's been going on in terms of the workforce renewal project, so as we've outlined in our submission in reply, the actual notification to the Commission was in relation to that workforce renewal project. So we don't see how any of the steps then taken can be excluded through that process from the ambit of what the actual dispute is here today. In terms of the bargaining agent authority, the bargaining agents are now given and what we may have guessed mid last year when we started the process of having members sign bargaining agent authorities, the bargaining agents have been given a new life under the new Act.

PN75

What we say is that it was always intended for that form to go beyond AWA making, varying, offering and terminating and go to the issues that the form contends with and that is all industrial matters. So we're happy to provide further evidence about that, about the intended, but we hardly think that our friend here is able to, so we say that that bargaining agent authority and the purpose of it and what it's set out to achieve is exactly as I think you indicated, your Honour, and that is to be able to provide the capacity to bring disputes on behalf of staff members, although that may necessarily be narrow by the application of the clause. We say that an individual staff member has the right to be represented. Well, they've chosen to be represented when they sign that bargaining agent authority. The words are clear on their face. Your Honour, were there any other matters?

PN76

THE SENIOR DEPUTY PRESIDENT: Not at this stage. These are the matters with which I need to deal now.

PN77

MR CULLINAN: Yes, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Cullinan.
Mr O'Grady.

PN79

MR O'GRADY: Yes, thank you, your Honour. Your Honour, with respect to the scope of clause 63, as I understand the submission that's being put on behalf of the union it's said that, well, because Dr Doughney has an interest in the proper application of the agreement as a whole and he can in effect generate a dispute about anything and reliance is placed upon clause 63.1 in that regard.

PN80

In my submission that construction cuts against the structure of clause 63 and its clear focus on disputes involving individual staff members. And one could ask your Honour rhetorically perhaps that if that was the intention of the drafters of the clause why didn't they simply say that the union or any staff member could institute a dispute about any matter whether it impacted upon them or not? And the vice in that construction, your Honour, is that it would give rise to a situation where Dr Doughney could for his own reasons generate a dispute about other staff members where they themselves have no dispute with the university.

PN81

There could for example be a circumstance where a staff member wanted to take a separation package. Dr Doughney for his own reasons might want to generate a dispute in respect of that and impede the capacity of the university to relate with its staff member and process a separation if that's what the staff member wanted to do. In my submission the very breadth of the construction being contended for by the university is a telling reason why it should not be accepted by the Commission.

PN82

THE SENIOR DEPUTY PRESIDENT: Is it not rather, on your construction of the clause, is it not rather an odd clause that doesn't allow a party to the agreement to raise a dispute over the application of the agreement?

PN83

MR O'GRADY: It doesn't, your Honour, but that's not surprising in my respectful submission. It reflects the fact that this agreement has practical effect with respect to the employees of the university, and it is consistent with the objects of the Act as it then was and have been reinforced now to increase the focus on the relationships between employers and their employees. So in my submission whilst the clause perhaps could have been better drafted, that's not uncommon, with the greatest of respect, and one is left with what the words say.

PN84

As I understand it, it's also put by the union that, well, Dr Doughney gives evidence about what the purpose of the clause is. Now, in my respectful submission Dr Doughney's evidence which appears at paragraph 20 of the submission that's been filed in reply is of a very different nature.

PN85

THE SENIOR DEPUTY PRESIDENT: Sorry, that's paragraph 20 of the submissions?

PN86

MR O'GRADY: Sorry, of the written statement in reply.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes. That's the last - - -

PN88

MR O'GRADY: The last paragraph, your Honour. That evidence is of a very different nature to the evidence that the university has put on with respect to the negotiations concerning 11 at 11.3. Dr Doughney is not saying that when this clause was being negotiated he was told as a representative of the union that it would have a certain effect, and the parties proceeded upon that common assumption, a matter going to the objective intention of the parties, or the mutual intention of the parties. That's obtained objectively. He's saying what his recollection is and, in my respectful submission, whatever Dr Doughney's subjective understanding of the clause was or was to be, that can't inform the Commission on undertaking it's task.

PN89

And as I say, your Honour, that's very different in my submission to the university about the mutual intention of the parties that has been filed by the university in respect of clause 11. Turning to the submissions made in respect of Mr Deal, in addition to what I've already said to your Honour, I would make the point, your Honour, that Mr Deal is subject to the same limitations as we say Dr Doughney is, in that he can't simply generate a dispute under clause 63 about matters that do not directly affect him, because were he to do so it wouldn't be a genuine dispute. He can't stick his nose into the affairs of other staff of the university and seek to impede a process that the university is pursuing with respect to those staff.

PN90

THE SENIOR DEPUTY PRESIDENT: How do the members of staff raise a dispute then about a matter of general concern or general application such as the work force renewal project?

PN91

MR O'GRADY: Well, in my submission the clause in its terms does not contemplate that such matters would be raised, that's the first point. We would say that the clause is designed to deal with disputes concerning individual staff members, and that's what we have agreed as an organisation to submit to ultimate arbitration under the clause. But if there were a number of staff who were unhappy with respect to a particular proposal that was impacting directly upon them there is no reason, in my submission, why they couldn't institute individual disputes and those matters couldn't be processed through the dispute resolution procedure and, indeed, ultimately referred to the Commission.

PN92

What the Commission would have to be alive to is whether or not there was a genuine dispute in respect of the individual staff members who were seeking to ventilate it, not, well, I don't agree with this as a matter of principle or ideology and I want the Commission to stop it.

PN93

THE SENIOR DEPUTY PRESIDENT: Is it your submission that there's no genuine dispute between Mr Deal and the university?

PN94

MR O'GRADY: Well, Mr Deal isn't being made redundant, your Honour. Mr Deal's dispute resolution notification, which is NTEU23, concerns a conversation that he had with his head of school in May to the effect that he was likely to be made redundant as a consequence of the implementation of the work force renewal project.

PN95

THE SENIOR DEPUTY PRESIDENT: And that's not proceeded beyond that?

PN96

MR O'GRADY: As I understand it, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: He's not being notified of any redundancy?

PN98

MR O'GRADY: Those are the instructions I received a moment ago and their concerns, your Honour. So just as Dr Doughney can't stick his nose into matters that don't directly affect him, we would submit that Mr Deal can't either.

PN99

THE SENIOR DEPUTY PRESIDENT: Well, if Mr Deal's head of school tells him I think you're about to be made redundant, he'd be worried wouldn't he? What should he do in that case?

PN100

MR O'GRADY: What would be open to him in those circumstances is to generate a dispute notification. I don't say that he - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Which he's done.

PN102

MR O'GRADY: Which he's done. But now having been informed that he's not being made redundant, or at this point in time that redundancy not having been progressed with, in my respectful submission he could not then seek to enliven the broad dispute which is the subject of the union's submissions.

PN103

THE SENIOR DEPUTY PRESIDENT: In his notification Mr Deal says that he advised his head of school of the dispute, that the matter was not resolved, and he requested the convening of a dispute committee under 63.3. I don't know beyond that. The NTEU submission says that committee couldn't resolve the matter. Do you have any instructions about what happened at the dispute committee?

PN104

MR O'GRADY: I don't at the moment, your Honour. I can seek to obtain them. Your Honour, I should say we received, or I received these exhibits this morning so we're working through them on the run if you like.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes. I received them on Friday.

PN106

MR O'GRADY: I understand they were faxed to my client on Friday, but they didn't make their way through to me.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes. I must indicate I was grateful to have submissions in reply in writing rather than await today's hearing. I think that's useful for all of us. But if you've only just seen them I understand your difficulty. Well, perhaps Mr Cullinan can tell us what he understands to be the position with Mr Deal.

PN108

MR CULLINAN: Your Honour, if it please the Commission, we understand that the dispute was taken to that disputes committee and the committee itself wasn't able to resolve the dispute, and it was at that point that we notified the broader dispute about the work force renewal project, and we haven't promulgated that individual dispute in the Commission because we had the broader dispute that we had already notified, and the hearings had commenced for them. So that's where that will come to.

PN109

THE SENIOR DEPUTY PRESIDENT: Well, what is the dispute regarding Mr Deal when he's not being targeted by redundancy, by the sound of it?

PN110

MR CULLINAN: There's still the broader issue of the failure to consult and the failure to implement the other parts of the agreement.

PN111

THE SENIOR DEPUTY PRESIDENT: But what's his grievance, what's his personal grievance? If Mr O'Grady is right about the nature of the disputes clause then what is Mr Deal's grievance with the university, what's his dispute over the application of the agreement?

PN112

MR CULLINAN: Your Honour, we would say it's in the same vein as Dr Doughney's, and that is, that although his personal redundancy isn't being rammed through now, that at the time the dispute was notified there were the concerns about the mitigating circumstances that they might be investigated as well as the consultation that was required, as well as the requirements under 11.3. So they're the circumstances under which the dispute would have potentially been promulgated as an individual dispute here. So in the same way as we argued that Dr Doughney is capable of bringing a dispute, as is the union, as is the union as representative for a number of staff.

PN113

I think the clear matter that's before the Commission is that we're arguing that the general approach, that is, a dispute that it concerns more than one employee, must be able to be promulgated through the clause, the disputes procedure clause, and it's through that capacity that we're raising this dispute. Although there might be six or seven ways home that we've laid out, we think it's quite clear that 63.2 was never an option for the union, that that would limit the scope of what the clause actually required. There was always an anticipation that disputes about groups of employees could be promulgated through the dispute setting procedure. It would be a one off in the industry.

PN114

And certainly when we were negotiating the broad range of agreements last year we never anticipated that this could have been an approach. Similarly 63.1 provides the application, so for Mr Deal we'd say it's the same approach as Dr Doughney's.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Cullinan. Sorry, Mr O'Grady, we interrupted you.

PN116

MR O'GRADY: No, sorry, your Honour. With respect to Mr Deal my instructions, your Honour, are that there is currently no proposal that he be made redundant. If he had sought to progress the matter through the disputes resolution procedure and bring it before the Commission then it would be open to my client to question whether there was a genuine dispute such as to enliven the Commission's jurisdiction. In my submission on those circumstances the Commission would not find that there was such a dispute.

PN117

With respect to the background of clause 63 I don't have evidence of this, your Honour, but my instructions are that the higher education workplace requirements, which are government guidelines going to the nature of agreements that educational institutions enter into with - or the nature of agreements that educational institutions enter into require that the disputes settling procedure be focused on individuals rather than on the collective, if you like. And that might provide some explanation for why clause 63 is in the terms that it's in.

PN118

One matter that I hadn't dealt with before your Honour asked or directed attention to the union is the bargaining agent's form. In addition to what I've already said, your Honour, I would note that if you accept my submission with respect to Mr Deal then it would be a strange outcome if his position could somehow be improved or his capacity to generate a dispute that can be referred to the Commission for arbitration increased because he has entered into a bargaining agent's form with the NTEU. A stream cannot rise higher than its source, your Honour. Those are the matters I'd seek to put.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Cullinan?

PN120

MR CULLINAN: If it please the Commission, I think there's just one matter that I wanted to deal with, although I'm not entirely across the argument about the bargaining agent authority at the end. And the issue to due with HEWRS, that's the higher education workplace requirements, that I've had the opportunity to be involved with some 20 or 30 agreements and the negotiating of them. The understanding the NTEU has of them, and that's quite an intimate understanding, is that previously many of the agreements had a union only option, and as part of the pre-emptive Work Choices as well as other matters last April when the requirements were released, the requirement was that there be a process essentially for an individual staff member to take a dispute of their own and without the necessity to have union involvement all through the process.

PN121

It's quite different to removing the capacity for the union to notify it's own disputes.

PN122

THE SENIOR DEPUTY PRESIDENT: Well, why is there nothing in terms in the agreement that still enables that to happen?

PN123

MR CULLINAN: I mean, the union thinks that 63.3 is clear when it talks about parties to a dispute. As with our submissions in reply it doesn't say employer and employee, which one could only assume if it was supposed to follow on directly from 63.2.

PN124

THE SENIOR DEPUTY PRESIDENT: Why? I have a bit of difficulty in understanding that. You might enlighten me a bit further as to how you put that submission, Mr Cullinan.

PN125

MR CULLINAN: What we're saying at that stage at 3B is that - - -

PN126

THE SENIOR DEPUTY PRESIDENT: This is in your - - -

PN127

MR CULLINAN: This is in our submissions in reply.

PN128

THE SENIOR DEPUTY PRESIDENT: And what page is that on?

PN129

MR CULLINAN: Page 4 of 39.

PN130

THE SENIOR DEPUTY PRESIDENT: Thanks, I have that.

PN131

MR CULLINAN: So what we're saying there is that the respondent's construction would have us believe that only an individual staff member's dispute could be promulgated, but the language of the clause doesn't go through with that process. It talks about a party to a dispute, which we understand quite broadly, we say it's a well covered link.

PN132

THE SENIOR DEPUTY PRESIDENT: Well, it doesn't talk about a party to a dispute, it talks of a party to the dispute that's referred to in 63.2, which seems to be the individual dispute on the face of the words of those two subclauses. It's not the party to a dispute.

PN133

MR CULLINAN: Further at 63.8, your Honour, though it talks about all parties to the dispute. And so all we're saying is that those references to parties to the dispute go beyond the employer and employee.

PN134

THE SENIOR DEPUTY PRESIDENT: So it's 63.8?

PN135

MR CULLINAN: It's the same concern as you've raised.

PN136

THE SENIOR DEPUTY PRESIDENT: But again 63.8 talks about the Commission resolving the dispute and the decision being binding on all of the parties to the dispute.

PN137

MR CULLINAN: Yes, your Honour.

PN138

THE SENIOR DEPUTY PRESIDENT: Well, is that a different dispute to the one that's notified under 63.2?

PN139

MR CULLINAN: Yes, your Honour. We're saying that it's the disputes notified under 63.2 as well as those disputes notified under 63.3.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes.

PN141

MR CULLINAN: I mean, the union movement generally probably wouldn't have a concern if the dispute as itself and the dispute settling process was narrowed to the process laid out there.

PN142

THE SENIOR DEPUTY PRESIDENT: Well, it's not a matter of anybody's concerns, it's a matter of - you do accept, I take it, because you haven't cavilled with it, the way in which Mr O'Grady set out the law relating to disputes clauses and the jurisdiction of the Commission?

PN143

MR CULLINAN: Yes, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: And if the parties in their infinite wisdom have confined a disputes clause to the way in which Mr O'Grady contends for, that's not a matter for the Commission is it? The Commission can only do what is conferred upon it.

PN145

MR CULLINAN: That's right, your Honour. But we would submit that disputes exist outside of dispute settling procedure, and so disputes occur in the first instance in the workplace or broadly. Then the dispute is brought to the dispute settling procedure, and at the dispute settling procedure the decision is made whether it involves an individual staff member or whether it involves more broadly the group of employees or the union potentially on behalf of a number of staff members, or all of its members. And so we'd say that's the intent of what the disputes procedure is intended to do. If it pleases the Commission.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I'm just wondering whether I should take the luncheon adjournment a little earlier to try to consider this matter, or whether the parties want to go on before I do so. Is there anything that can usefully be done that won't necessarily involve canvassing matters that may, if I accept Mr O'Grady's submissions, fall outside such a ruling? Mr Cullinan, do you want me to go on now, or would it be better if I try to resolve this issue before you - I suppose you're going to call Dr Doughney next?

PN147

MR CULLINAN: I think, your Honour, we were going to call Mr Baader and then Dr Doughney. But just in terms of this concern, the broader issue of Dr Doughney's capacity to win the dispute in any event, and then the linking of clause 65 and it's interplay with the other clauses and how the dispute about the application of the agreement is about more than just the specific clause numbers that were notified in the notification. We'd be concerned that if you had any questions about that structure and that argument in any event, and the capacity to bring a dispute through that process in any event.

PN148

THE SENIOR DEPUTY PRESIDENT: Well, I have concerns but they've been dealt with in the written submissions. I don't have any further particular questions in relation to that.

PN149

MR CULLINAN: Your Honour, we would say that Dr Doughney has brought a dispute through 63.2 through the disputes procedure about clauses that impact upon him and about the consultation that was required through that.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes, I understand the way that's brought.

PN151

MR CULLINAN: And that the broader application would have 65 included as part of that process.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes, and that's something I have to deal with on the submissions.

PN153

MR CULLINAN: If it pleases the Commission.

PN154

THE SENIOR DEPUTY PRESIDENT: Yes, Mr O'Grady, do you have anything to say about the procedure I should follow?

PN155

MR O'GRADY: In my submission this is an issue that the Commission should determine at the outset. Clearly if the Commission were to find that its jurisdiction was confined in the way that we say it is, that would mean that a number of parts of the evidence would not have to be explored, and that would save time for the parties and for the Commission, to start the process and then have to go back and attempt to exile material. It just seems a bit messy, with the greatest respect.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr Cullinan?

PN157

MR CULLINAN: Your Honour, the other thing we would add is that the number of the negotiators of the agreement - it might elucidate some of the understanding of what was intended when it was brought together - are witnesses, and that therefore it may assist the Commission to have some - - -

PN158

THE SENIOR DEPUTY PRESIDENT: Well, Ms Thomas has given some evidence about that, Dr Doughney has. Is there anybody else who has given evidence.

PN159

MR CULLINAN: Not that has given evidence.

PN160

THE SENIOR DEPUTY PRESIDENT: Or who has provided a witness statement?

PN161

MR CULLINAN: No, that's right, your Honour, not that it's given it in a witness statement before today. Mr Baader is - well, not that it's in his witness statement - was a part of those negotiation processes as well.

PN162

THE SENIOR DEPUTY PRESIDENT: Yes. Well, he's not given evidence about it. There were clear directions requiring that. Do you wish to
cross-examine Ms Thomas on that aspect of the matter, on the matter that goes to the jurisdiction of the Commission?

PN163

MR CULLINAN: I think, your Honour, it would depend upon what approach the respondent takes with our evidence of Dr Doughney in terms of clause 63. We've already heard a little of - - -

PN164

THE SENIOR DEPUTY PRESIDENT: Well, Mr O'Grady has taken the point that it's an indication of his intent, not necessarily of what was agreed between the parties.

PN165

MR CULLINAN: Yes, your Honour.

PN166

THE SENIOR DEPUTY PRESIDENT: And I take it that Mr O'Grady doesn't wish to cross-examine him on that. Is that right, Mr O'Grady?

PN167

MR O'GRADY: Sorry, that I don't wish to cross-examine him?

PN168

THE SENIOR DEPUTY PRESIDENT: Yes.

PN169

MR O'GRADY: Yes, your Honour, because it's not relevant, and that's different we say to the evidence that Ms Thomas has given about what was told, what the parties told each other at the time, which goes to their mutual understanding or what was their intention.

PN170

THE SENIOR DEPUTY PRESIDENT: Rather than what was in Dr Doughney's head.

PN171

MR O'GRADY: Yes. Well, Dr Doughney's evidence on this issue, in my respectful submission, takes the matter nowhere.

PN172

THE SENIOR DEPUTY PRESIDENT: Yes, that's how I understood your submission. That leaves you, Mr Cullinan. On this question of the meaning of clause 11 and clause 65 I suppose, do you intend to cross-examine Ms Thomas?

PN173

MR CULLINAN: On the meaning of clause 63, no, your Honour. No, I don't.

PN174

THE SENIOR DEPUTY PRESIDENT: Well, in that case I don't need to hear any evidence before I make a ruling on these preliminary matters then, do I?

PN175

MR CULLINAN: Despite what's just been said I think that Dr Doughney's statement is still a statement of his intent at the time, and nothing has been put that counters that.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes, I understand the submissions on that, and it's a matter for me to make a determination on those submissions. But there is evidence from Ms Thomas that you haven't addressed me on. I don't know whether you want to cross-examine her, and I will give you the opportunity now if you like to do either or both, cross-examine her and address me on what she has said in her statement on this issue.

PN177

MR CULLINAN: Your Honour, I don't recall that anything was said in the statement about clause 63. I think that regards clause 11. And we will cross-examine. But to be honest, your Honour, it goes - it's really he said, she said. So we'll bring that up and we'll have that cross-examination, as I'm sure the respondent will with Dr Doughney. But in terms of clause 63 I don't think there's anything there that we seek to cross-examine on.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes. Mr O'Grady, I know I'm making this a little bit of an unusual proceeding, but how - for my benefit and also for Mr Cullinan's - do you say that the statement that Ms Thomas made bears on clause 63? Because I think from memory it did relate only to clause 11, did it not - or 63 rather, sorry.

PN179

MR O'GRADY: Yes. Sorry, your Honour, I wasn't submitting that she gives evidence about clause 63. I was simply drawing a distinction between the evidence that appeared in Dr Doughney's statement which went to his recollection and the evidence that Ms Thomas gives about the negotiations.

PN180

THE SENIOR DEPUTY PRESIDENT: I understand the submission, yes. Ms Thomas' evidence is silent on the interpretation of clause 63.

PN181

MR O'GRADY: It is.

PN182

THE SENIOR DEPUTY PRESIDENT: You say read it on its face, and you'll make a submission about Dr Doughney's evidence?

PN183

MR O'GRADY: Yes, your Honour.

PN184

THE SENIOR DEPUTY PRESIDENT: Well, unless there's anything else the parties want to say I think I'll consider my decision in relation to this jurisdictional matter and adjourn till 2 o'clock. I hope I'll be able to be in a position then to rule on this jurisdictional issue.

<LUNCHEON ADJOURNMENT [12.14PM]
<RESUMED [2.01PM]

PN185

THE SENIOR DEPUTY PRESIDENT: Mr O'Grady, there's one aspect of your submission that I am, on reflection, not certain that I properly understand, and it's desirable that I do so before I make any sort of ruling.

PN186

MR O'GRADY: Yes.

PN187

THE SENIOR DEPUTY PRESIDENT: It may be that I'm just not seeing the wood for the trees, or it might be that I'm just being obtuse, I'm not sure which or both, but I will need to clarify this in my own mind. You don't seem to submit that the Commission lacks jurisdiction to deal with a dispute over the application of clauses 11 and 12 of the agreement, as I read your submission.

PN188

MR O'GRADY: That's the case.

PN189

THE SENIOR DEPUTY PRESIDENT: What effect, if any, does your submission in relation to clause 63 have on the way in which the Commission approaches its task in relation to the dispute over the application of clauses 11 and 12 of the agreement?

PN190

MR O'GRADY: Well, your Honour, with respect to the entirety of the dispute, we do make the point that is in paragraph 13 of the submission, that the Commission must be satisfied that there is a genuine dispute, and to the extent to which the Commission is not satisfied there is a genuine dispute, that there is no jurisdiction. Now, with respect to clause 65, we say that the Commission clearly could not be satisfied that there is a genuine dispute with respect to Mr Doughney because he hasn't purported to institute a dispute.

PN191

THE SENIOR DEPUTY PRESIDENT: Well, he hasn't raised it.

PN192

MR O'GRADY: Sorry, he hasn't raised it.

PN193

THE SENIOR DEPUTY PRESIDENT: No.

PN194

MR O'GRADY: That's right. We also make the point with respect - - -

PN195

THE SENIOR DEPUTY PRESIDENT: Could I confine you to clauses 11 and 12 first, and then by all means go onto 65.

PN196

MR O'GRADY: Yes. Well, with respect to clauses 11 and 12, we don't go beyond the basic proposition that the Commission must be satisfied that there is a genuine dispute with respect to the application of those clauses before it could have jurisdiction.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes, and there seems on its face to be a dispute between somebody in the university about whether clause 11 is a statement of intent, or an aspirational clause, or whether it has effect.

PN198

MR O'GRADY: Yes, and given Dr Doughney's involvement in the negotiation of the agreement and his role in the workplace consultative committee, we don't say that he wouldn't be in a position to generate a dispute with respect to those matters.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes. So is it, in a practical sense, the hearing will proceed in the same way regardless of how I rule on clause 63 in respect of the dispute over clauses 11 and 12?

PN200

MR O'GRADY: Yes. Yes.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I did understand your submission. Now, in relation to clause 65, your submission is that there's no dispute that can come to the Commission because the processes of clause 63.3 and 4 have not been gone through?

PN202

MR O'GRADY: That is one limb of it, and further we say that it is clear that in respect of clause 65, there is no basis upon which the Commission would find that there is a genuine dispute such as to enliven the Commission's jurisdiction on a 170LW with respect to Dr Doughney because - - -

PN203

THE SENIOR DEPUTY PRESIDENT: Because he's not threatened with redundancy?

PN204

MR O'GRADY: Because he's not threatened by it and - precisely, your Honour. That's the nub of it.

PN205

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you.

PN206

MR O'GRADY: And we do make a similar type of submission with respect to clause 47, although your Honour will have seen that already.

PN207

THE SENIOR DEPUTY PRESIDENT: Yes.

PN208

MR O'GRADY: There the matter has been notified, but there is a very real issue about the extent to which Dr Doughney can have a genuine dispute over the application of that clause.

PN209

THE SENIOR DEPUTY PRESIDENT: Because it's integral to the clause 65 matter?

PN210

MR O'GRADY: Well, partly that, and also that he is not the subject of a process with respect to clause 47. Clause 47 deals with the application of the Research Activity Index, and we do make that point. Sorry, your Honour, if your Honour will bear with me?

PN211

THE SENIOR DEPUTY PRESIDENT: Yes.

PN212

MR O'GRADY: Sorry, your Honour. I was in error. I said Mr Doughney was a member of the workplace consultative committee. He was a member of the interim workplace consultative committee. He's not, as I understand it, a member of the current committee. But as I said, we don't take issue with the fact that he can enliven a dispute over the application of that clause.

PN213

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Cullinan or Mr Thomas, do you want to say anything arising from the conversation I've had with Mr O'Grady?

PN214

MR THOMAS: No, your Honour, I think it just clarified what our understanding of what they were putting was, so - - -

PN215

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you. Well, my provisional view is that clause 63 is not limited to disputes between the university and individual staff members. Accordingly, the NTEU, as a party to the agreement, is able to raise a dispute and invoke the provisions of clause 63.3. If the dispute is referred to a disputes committee which is convened, clause 63.4 then operates and once the processes in clauses 63.3 and 63.4 have been exhausted and the matter remains unresolved by those processes, the matter may be referred to the Commission under clause 63.7. Thus, the dispute over the application of clauses 11 and 12 has been dealt with under clause 63.3 and 63.4 and has been properly referred to the Commission.

PN216

Mr O'Grady has made it clear that the manner in which the Commission is to deal with those matters would be the same whichever view I take on that. Insofar as clause 65 is concerned, it seems to me that neither the NTEU nor any of its members employed by the university has raised a dispute about the application of clause 65 in a general sense. Clause 65, as we all know, deals with organisational change and sets out a process where there is to be followed a process of consultation. That's to be followed where the university proposes major changes to workplace arrangements. The union's case in relation to clause 11 is that that clause has an operational effect and what it says are the requirements of clause 11.3 must be gone through by the university before any question of the operation of clause 65 arises.

PN217

So it's not surprising that there has been no reference of a dispute over the operation of clause 65 in accordance with clause 63.3 or 63.4. The NTEU refers to a dispute over the application of clause 65 in its written submissions at paragraphs 1, 5, 25 to 33 and 50 to 33[sic]. It sets out the substance of the clause at paragraph 3 of its submissions. The issue of the RAI was originally raised as a dispute over the application of clause 47 of the agreement, but the university has made it clear that it does not intend to formalise the RAI as a - in the context of clause 47, and accordingly there is no dispute over the application of that clause, at least at this stage. However, the university has maintained what it says is its right to use the RAI as one of the tools it uses in selecting people who may be made redundant.

PN218

To that extent, it seems to me that it's a matter that would arise certainly at the stage of clause 70 coming into play and possibly at the stage of clause 65 where consultation is required and it may well include, and under 63.3.6 does include, consultation in relation to redundancy. If the RAI is used as a tool to assist in determining who will be selected for redundancy, arguably the dispute over that would fall within a dispute over the application of clause 65. It seems clear to me that the processes specified in clause 63.3 and 63.4 have not been invoked in relation to those issues. That is, the issues of organisational change or the use of the RAI as one of the tools for selection for a redundancy.

PN219

Accordingly, particularly having regard to the prohibition in clause 63.6.4 of the disputes settling clause of the agreement, it seems to me that the Commission is unable to deal with those disputes. They have not gone through the processes of 63.3 and 63.4. Mr Deal's dispute does not, it seem to me, to elevate the matter to the extent that it is a dispute generally about the application of either of those clauses. It is a dispute notified to the university by Mr Deal in relation to what he was apparently told, and that was that he might become redundant. He advised his head of school under clause 63.2 and it would appear that a dispute committee was convened under 63.3 of the agreement and I'm told that there was no resolution to that dispute. I'm also told that Mr Deal has not been informed that he is to be made redundant, and is not presently targeted for redundancy.

PN220

Whatever be the dispute between Mr Deal and the university, if there still remains a dispute in light of events subsequent to the notification by him of the dispute to Ms Thomas, the director of human resources, it's not a dispute generally as to the application of clause 65 of the agreement or the use of the RAI as a tool for targeting individuals for possible redundancy. I think, accordingly, in my view Mr Deal's dispute does not enable the Commission to deal with any general dispute over the application of clause 65 of the agreement or the use of the RAI in the sense to which I have referred. In conclusion, the hearing will therefore proceed in relation to the disputes which have been notified over the application of clauses 11 and 12 of the agreement.

PN221

MR O'GRADY: As the Commission pleases.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomas, have you arranged your affairs to deal with the case on that basis, or would you like a few minutes?

PN223

MR THOMAS: I might take - if two minutes would be - - -

PN224

THE SENIOR DEPUTY PRESIDENT: I'll give you five.

<SHORT ADJOURNMENT [2.15PM]
<RESUMED [2.23PM]

PN225

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Thomas.

PN226

MR THOMAS: Thank you, your Honour. If the Commission pleases, Mr Thomas on behalf of the NTEU. I suppose much of the opening submission has been truncated as a result of some proceedings, but certainly in relation to this matter, your Honour, the Commission issued directions for the provision of written submissions, which both parties have made detailed written submissions and for the most part, we would rely upon those written submissions. There is certainly no need to talk to them ad nauseum. The first point to raise, though, is that with the submissions in reply provided by the NTEU, we did seek to vary the order sought. I think it's important to note that, given that is what we are seeking from the Commission. That would be the draft order that begins at page 1 of the original submission, the university retracts the notes as a forced redundancy that have been issued.

PN227

We would seek to incorporate in there the first dot point as found at page 1 of the NTEU's submission in reply. So that the university retracts the notices of redundancy pending the proper application of clauses 11 and 65 of the agreement, also the relevance of clause 65 has just been dealt with.

PN228

THE SENIOR DEPUTY PRESIDENT: Yes.

PN229

MR THOMAS: And also further dot point:

PN230

Any other such order that the Commission deems appropriate to settle this dispute.

PN231

THE SENIOR DEPUTY PRESIDENT: Yes.

PN232

MR THOMAS: Then the rest of the order is as sought in the original submission, your Honour.

PN233

THE SENIOR DEPUTY PRESIDENT: So you want to replace the first part of the order sought after the colon, do you, with what appears in the submissions in reply and retain point numbers 1, 2, 3 and 4?

PN234

MR THOMAS: We do, your Honour, but certainly in the - - -

PN235

THE SENIOR DEPUTY PRESIDENT: And 5.

PN236

MR THOMAS: - - - opening paragraph, obviously the reference to - - -

PN237

THE SENIOR DEPUTY PRESIDENT: To 65 - - -

PN238

MR THOMAS: To fully explore the options as set out in clause 11.3, so that's not lost.

PN239

THE SENIOR DEPUTY PRESIDENT: That's not lost?

PN240

MR THOMAS: No.

PN241

THE SENIOR DEPUTY PRESIDENT: So you want to add them - - -

PN242

MR THOMAS: I suppose the proper application of clause 11 in its entirety would incorporate the specifics proposed by clause 11.3.

PN243

THE SENIOR DEPUTY PRESIDENT: Yes. I'm just trying to understand precisely what it is that you seek, Mr Thomas. The easiest way would be if, tomorrow morning, you present us with a draft order.

PN244

MR THOMAS: We would be happy to do that, your Honour.

PN245

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN246

MR THOMAS: As we said, your Honour, the position of the NTEU is covered comprehensively in the written submissions and we don't wish to trawl through them unnecessarily, but obviously we have two witnesses in this matter.

PN247

THE SENIOR DEPUTY PRESIDENT: Yes.

PN248

MR THOMAS: They are Mr Russel Baader who is an industrial officer of the NTEU and has been heavily involved with matters at VU, and this in particular, and the other witness being Dr James Doughney, an academic member of Victoria University.

PN249

THE SENIOR DEPUTY PRESIDENT: Yes, and do you wish to go straight into their evidence, do you?

PN250

MR THOMAS: We are ready to go straight to those witnesses and call those witnesses, if your Honour pleases.

PN251

THE SENIOR DEPUTY PRESIDENT: Yes. It's a matter for you. If there is something you want to deal with before you call the witnesses by way of further opening, that's a matter for you, but if you want to go straight to the evidence, that's fine by me as well.

PN252

MR THOMAS: Well, as I said, the - - -

PN253

THE SENIOR DEPUTY PRESIDENT: I've read the submissions.

PN254

MR THOMAS: You've read the submissions and I don't think we need to read them out for you, your Honour, so we won't waste any time, so we are ready to call our witnesses.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if you would call your first witness, thank you.

PN256

MR THOMAS: Just one question, though, your Honour. I know there is one witnesses from VU present. What is the situation in relation to the presence of alternate witnesses when a witness is called?

PN257

THE SENIOR DEPUTY PRESIDENT: Well, the situation as far as I'm concerned is that unless somebody asks me to make an order that witnesses be out of court, I make no such order and they may remain. If you want such an order, seek it and I'll hear Mr O'Grady and make whatever order I consider appropriate.

PN258

MR THOMAS: Your Honour, we would like an order that the other witnesses are excluded from the room whilst witnesses are heard.

PN259

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have any difficulty with that, Mr O'Grady?

PN260

MR O'GRADY: The only issue is in respect of Ms Thomas. She is the lady, and indeed the only witness proposed to be called by the respondent, who is present in the precincts of the court. As your Honour would be aware, she's the director of human resources at Victoria University - - -

PN261

THE SENIOR DEPUTY PRESIDENT: And she's instructing you?

PN262

MR O'GRADY: She's actually providing me with instructions. So if she could be excluded from the operation of that order, I don't object to the order being made.

PN263

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Thomas, that's normal. I normally do not exclude people who are providing instructions from such orders, if they are to be witnesses, and unless you have some persuasive argument, that's the course I propose to take.

PN264

MR THOMAS: No, it's all right, your Honour. We will withdraw that application.

PN265

THE SENIOR DEPUTY PRESIDENT: You withdraw the application? Yes. Well, I make no order. Yes. You seek no order, Mr O'Grady?

PN266

MR O'GRADY: No, your Honour.

PN267

THE SENIOR DEPUTY PRESIDENT: Very well. Yes, call your first witness.

PN268

MR THOMAS: Thank you, your Honour. The first witness we would like to call is Mr Russel Baader.

PN269

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

<RUSSEL BAADER, AFFIRMED [2.30PM]
<EXAMINATION-IN-CHIEF BY MR THOMAS

PN270

MR THOMAS: Mr Baader, in your witness statement at paragraph 2, you describe your role on behalf of the NTEU at Victoria University?---Your Honour, could I ask that a copy of my witness statement be handed up for my - - -

PN271

THE SENIOR DEPUTY PRESIDENT: Yes, that might be useful. Do you have a copy to give to Mr Baader? I've marked mine, so I'd rather not use that.

PN272

MR O'GRADY: Your Honour, before Mr Baader is taken to his witness statement, I assume that Mr Thomas intends to tender it at some stage. I have an objection in respect to one of the paragraphs in that statement. I don't know whether your Honour wishes me to deal with that at the time Mr Thomas seeks to tender it or before that. I'm in your Honour's hands.

PN273

THE SENIOR DEPUTY PRESIDENT: Let's just see where Mr Thomas is going. I assume he's taking Mr Baader to some corrections or otherwise, then we'll know what the statement is going to look like that's to be tendered, and that will be the time to make your objection.

PN274

MR O'GRADY: Yes, your Honour.

PN275

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Thomas? Were you taking your witness to some alterations to the statement before you sought to tender it
or - - -

PN276

MR THOMAS: No. I think, your Honour, if - - -

PN277

THE SENIOR DEPUTY PRESIDENT: Mr Baader, just for the record again, your full name, address and occupation?---I am Russel Baader, industrial officer for the National Tertiary Education Union and my address is level 1, 120 Clarendon Street, South Melbourne in the State of Victoria.

PN278

Yes, and you have made a statement for use in these proceedings?---Yes, your Honour.

PN279

And the contents of it are true and correct?---Yes, your Honour.

PN280

Yes, and you wish to tender that statement, do you, Mr Thomas?

**** RUSSEL BAADER XN MR THOMAS
PN281

MR THOMAS: I do, your Honour.

PN282

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr O'Grady has an objection to a portion of it. We'll deal with that now.

PN283

MR O'GRADY: Thank you, your Honour. Your Honour, the paragraph that I object to is paragraph 13 of the statement. In that paragraph, Mr Baader talks about some concerns that were raised with him about the genuineness of the university in pursuing its obligations under clause 11.3 and some inferences that he drew. In my submission, the question of whether or not the university has complied with clause 11.3, and indeed, whether clause 11.3 imposes substantive obligations is a matter for the Commission. Mr Baader's views about those matters are not going to assist the Commission, they're not relevant to the matter before the Commission.

PN284

Similarly, any inference that Mr Baader might have drawn about the processes that the university applied, in my respectful submission, don't add to matters and they shouldn't be admitted. These are questions for your Honour.

PN285

THE SENIOR DEPUTY PRESIDENT: Yes. Your submission is a little like the one you made earlier this morning about something in Dr Doughney's witness statement, that unless there was a communication between the parties about certain matters, any concerns of Mr Baader's were personal to him and not something that will assist me.

PN286

MR O'GRADY: Indeed, your Honour.

PN287

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr Thomas?

PN288

MR THOMAS: We - thank you.

PN289

THE SENIOR DEPUTY PRESIDENT: Do you understand the nature of the objection? Mr O'Grady - - -

PN290

MR THOMAS: Yes.

PN291

THE SENIOR DEPUTY PRESIDENT: - - - is objecting to paragraph 13 remaining in the witness statement.

**** RUSSEL BAADER XN MR THOMAS
PN292

MR THOMAS: In that there is a degree of opinion as opposed to witnessed evidence?

PN293

THE SENIOR DEPUTY PRESIDENT: Yes. The thrust of the submission is that what Mr Baader felt at the time, unless it was conveyed to the university and there's some evidence of the agreement that was reached, does not assist me in determining what the agreement means.

PN294

MR THOMAS: We accept and acknowledge that, your Honour.

PN295

THE SENIOR DEPUTY PRESIDENT: Very well. Paragraph 13 will be excised from the statement, then.

PN296

MR THOMAS: Okay. That's the only paragraph with which there is an objection?

PN297

MR O'GRADY: I don't have any other objections, your Honour.

PN298

THE SENIOR DEPUTY PRESIDENT: Yes. In that case, the witness statement of Mr Baader that extends to now 12 paragraphs - there are some letters attached to it. Do they form part of the witness statement?---Yes, your Honour.

PN299

Yes. We have no exhibits yet in this matter? No.

PN300

MR O'GRADY: Your Honour, if it assists, the copy of Mr Baader's statement that we were provided with actually has been marked with an exhibit number by the NTEU. I don't know whether - - -

PN301

THE SENIOR DEPUTY PRESIDENT: As NTEIU20, yes. I don't know why it has that numbering.

EXHIBIT #NTEIU A1 STATEMENT OF RUSSEL BAADER WITH ATTACHMENTS

PN302

MR O'GRADY: Thank you, your Honour.

PN303

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Thomas?

PN304

MR THOMAS: Thank you, your Honour.

**** RUSSEL BAADER XN MR THOMAS
PN305

Mr Baader, at paragraph 2, you describe your role on behalf of the NTEU with specific reference to being a member of the bargaining team which negotiated and structured the agreement before us?---That's correct.

PN306

And that you've been heavily involved in the disputes relating to the workforce renewal project. As a member of the negotiating team and somebody who has dealt with some disputes that have arisen under the agreement, could you explain for the benefit of the Commission your knowledge of clause 11 in that discussion, around that, that you see - - -

PN307

MR O'GRADY: Well, your Honour, I'd object to that, on two bases.

PN308

THE SENIOR DEPUTY PRESIDENT: Yes?

PN309

MR O'GRADY: Sorry, the first - sorry, I didn't know whether your Honour was going to hear me, but the first basis is the Commission has made orders for the provision of witness statements. The NTEU have filed witness statements in reply. In my submission, this witness should not be allowed to extend beyond the material that's been filed. That's the first basis. The second basis is Mr Baader's understanding of clause 11 - - -

PN310

THE SENIOR DEPUTY PRESIDENT: Well, it's actually his knowledge that he was asked for. I'm not quite sure what that means, but he wasn't asked for his understanding, he was asked for his knowledge.

PN311

MR O'GRADY: Well, you are correct, your Honour, but I took that to mean his understanding because I don't know what else it could mean in the circumstances, but his knowledge or his understanding of the clause, in my respectful submission, isn't a matter that is properly before the Commission. If he wants to be asked about particular conversations, well, I rely upon my first objection, but his understanding, in my submission, doesn't assist the Commission.

PN312

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I'll allow the question. It is my practice to allow the parties a little leeway in amplifying witness statements, although the purpose of them is to avoid the necessity for examination-in-chief. I will give you a bit of leeway, Mr Thomas. In relation to Mr O'Grady's other objection, it's a point well made. I'm not quite sure what your question meant. If the witness understands it, well let him answer it and we'll see how we go.

**** RUSSEL BAADER XN MR THOMAS
PN313

Do you remember the question, Mr Baader?---I believe I do, your Honour, that I think I was being asked to explain as a member of the NTEU bargaining team during the course of the negotiations what clause 11 was meant to achieve and
the - - -

PN314

These are negotiations for the agreement, are they?---Yes, your Honour. I was a member of the NTEU bargaining team throughout the period of the negotiations for this agreement.

PN315

Yes?---It's clear to me and it was clear to the NTEU negotiators at the time that the clause was partly aspirational in the sense that it set ideals or goals for the university to seek to achieve, but at no stage during the negotiations was it our view or understanding of the negotiation that it was solely an aspirational clause. The intent of the clause is to avoid - at 11.3, is to avoid forced redundancies - - -

PN316

MR O'GRADY: Your Honour, I don't mean to be unduly interventional, so I'm happy to let the witness finish and the question and then make the point I suspect you anticipate I'm going to make, or I'll do it now. I'm in your Honour's hands.

PN317

THE SENIOR DEPUTY PRESIDENT: Yes. I think we will let the witness finish and then you make your point.

PN318

MR O'GRADY: Yes, your Honour.

PN319

THE SENIOR DEPUTY PRESIDENT: The intent of the clause is what I have to determine. It's what the parties agreed that I'm interested in hearing.

PN320

MR O'GRADY: Yes, your Honour.

PN321

THE WITNESS: My recollection is that the parties agreed on a clause which was partly aspirational, but which also imposed a series of actions that the university should use in its endeavours to preclude the necessity for forced redundancies.

PN322

MR THOMAS: Mr Baader, I take you to clause 5 of your statement where you say you attended two meetings on 6 July. When those meetings took place, was it articulated to you that those meetings were taking place as a result of the workforce renewal program?---The dean at those meetings referred to the notice of redundancy, which are the attachments, your Honour, to my witness statement. If I refer to one of those letters now, it says in paragraph 2 that the decision about the redundancy arises pursuant to the criteria established under the workforce renewal project.

**** RUSSEL BAADER XN MR THOMAS
PN323

So it was in writing. At those meetings, were there any attempts by the parties to examine options to avoid or mitigate the redundancies?---The dean at that meeting limited herself to referring again to - referring again to one of the notifications of redundancy on page 2, the consultation phase, read through the list of possible options that were open to the employee to be made redundant and encouraged them to put forward any matter that was relevant. The university did not take an active role in saying that they would pursue any of those options, but rather left it to the individual to come forward for a proposal.

PN324

But the individuals in question, they had already been provided with the formal notice of redundancy?---The meetings on 6 July was the meeting at which they were served the notice of redundancy.

PN325

So the letters which are attached dated 29 June were delivered, or on the table, at that meeting?---Sorry. No, you're right. My apologies, your Honour. The letters are dated 29 June. They were tabled with those employees at a meeting on 29 June and at that time a subsequent meeting was arranged, I believe, for 6 July to discuss the matters headed Consultation in those letters. So I did get my dates wrong. I apologise.

PN326

So if we examine those letters and the subject of the meetings on that day, where at clause 11 of the agreement it states that where possible it will pursue the options of retraining, natural attrition, voluntary separations, fixed term and time contracts, leave without pay, voluntary conversion to part-time employment, long service leave or internal transfer, before proceeding with forced redundancies, are you aware of any of those options being considered or suggested prior to those individuals receiving their formal notices of redundancies on 29 June?---Can I ask a question in - - -

PN327

THE SENIOR DEPUTY PRESIDENT: By way of clarification, to have the question clarified?---Yes. Are you referring to the individuals or to - well, globally, it's clear that the university, through the workforce renewal project, had offered voluntary separation to the - and fixed term retirement contracts. So, fixed term retirement contracts and voluntary separation arrangements have been broadly available within the academic community prior to these notices being issued, but I'm not aware that any of the other matters were considered.

PN328

MR THOMAS: I understand those options being offered through the workforce renewal project, but my understanding, and perhaps you can confirm this, is that the workforce renewal project was targeted at senior academics, namely those at levels D and E, with the objective of then placing them with lower level academics, namely As and Bs?---The document, workforce renewal project, had an express goal, as I recall, of turning over senior level staff in the order of 52 levels D and E, to replace with more junior staff at levels A and B, but there was inconsistency in what the university reported as its objectives. The university's budget at 2006 actually referred to turning over 52 Cs, Ds and Es, with the objective of replacing them with level A appointments.

**** RUSSEL BAADER XN MR THOMAS
PN329

But in my reading of these notes that form the applications of redundancy, the people notified are actually - they are level B academics, are they not? Ms Gould, at point 2?---Susan McCauley is a level B academic. Michael Buckley is a level B academic. Dr Samuel Cassidy is in a different faculty, but he's a level B academic.

PN330

So it would seem that those who actually have been notified of redundancy not only fall outside the supposed target of the workforce renewal program, but are in the very cohort of academics who are nominally said to be recruited off or increased?---The workforce renewal project had a primary express goal of turning over senior staff and replacing them with level A and B staff, yes.

PN331

Yes. So it did not seem incredulous to you that - - -

PN332

THE SENIOR DEPUTY PRESIDENT: Mr Thomas, I notice Mr O'Grady's eyebrows being raised. He has not objected to a number of leading questions and I've let it go, but this one seems to be going beyond the pale.

PN333

MR THOMAS: Okay. Thank you, your Honour.

PN334

Mr Baader, at paragraph 11, and this comes into the reasons provided, you say that Ms McCauley advised the dean that her RAI was 1.2. That is, it met the criterion set by the university for a level B academic, and that therefore an invalid decision had been made to declare her redundant on that ground. You also say at paragraph 12, continuing on, that Mr Buckley also raised his concern that his RAI was incorrectly used to determine a redundancy. Did that concern you?

PN335

MR O'GRADY: Well, your Honour, in the light of the ruling that you made earlier - - -

PN336

THE SENIOR DEPUTY PRESIDENT: Yes, I allow the objection. Whether Mr Baader was concerned or not is not - - -

PN337

MR THOMAS: Is irrelevant? Okay.

PN338

Are you aware - - -

PN339

THE SENIOR DEPUTY PRESIDENT: You're entitled to rephrase the question if you want to, but his concerns are not my concern.

**** RUSSEL BAADER XN MR THOMAS
PN340

MR O'GRADY: Well, your Honour, there's a second limb to the objection, and that is that as I understood the ruling you made prior to the break, the issue of the RAI and the operation of clause 47 is not a matter that is before the Commission. Unless the question goes to the operation of clauses 11 or 12 - - -

PN341

THE SENIOR DEPUTY PRESIDENT: Indeed. I'm assuming that somehow the union intends to tie that into the clause 11 and 12. Yes, Mr Thomas?

PN342

MR THOMAS: Were you - you were aware of the workforce renewal project's criteria for identifying which staff may or may not be - may have been in fact redundant?---I am. There were four criteria, criterion. The first and mandatory one was that there for financial exigency. The other three were that one's RAI didn't reach the required level, that an academic was not teaching into an area of core responsibility or was teaching in an area of declining student demand or load, and the fourth was that the person did not have significant administrative responsibilities. A person could be made redundant on the basis of satisfying the establishment of financial exigency and one of the other criteria.

PN343

Did these underpin the stated goal of replacing Ds and Es with As and Bs?---I'm unable to link the two.

PN344

The redundancy notices that were provided to these members of staff, were they in accordance with those criterion? Were they generic or did they identify each individual?---What I was able to identify by looking at all of the redundancy notices that were issued is that they were all in exactly the same terms, notwithstanding that they were for individuals in two different schools and in different faculties. The notices all relied on establishing that the person satisfied all four criteria that was set out as the criteria for determining the redundancy.

PN345

In relation to the criteria raised for making people redundant, at paragraph 12 of your statement, you say that the dean referred to the offshore program in multi-media and implied that that was a reason for determining why Mr Buckley was redundant and also Ms McCauley. Are you able to elucidate those two - you know, was that a genuine reason? As in relation to the criteria that was established for the workforce renewal project?---I'm sorry, can you - I don't understand the question.

PN346

THE SENIOR DEPUTY PRESIDENT: Nor do I, Mr Thomas.

**** RUSSEL BAADER XN MR THOMAS
PN347

MR THOMAS: Okay. To your knowledge, that Mr Buckley and Ms McCauley, do they actually teach in the offshore multi-media program?---As stated at paragraph 12 of my statement, the dean had advised Mr Buckley that a decline
- rather, the words were rather that the offshore program was not as successful as hoped for and that that was a reason why there had to be reductions in staff in the multi-media area. Mr Buckley and McCauley, after the meeting advised me that neither of them were involved in any way in the offshore multi-media program.

PN348

But not during the meeting?---No.

PN349

Okay. Following that, have you expressed any concern about the use of that decline in the particular subject being used as rationale when they don't perform any work in that area?---No, we have not.

PN350

I have no further questions, your Honour.

PN351

THE SENIOR DEPUTY PRESIDENT: I'm sorry?

PN352

MR THOMAS: I have no further questions.

PN353

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Thomas. Mr O'Grady? Cross-examination?

<CROSS-EXAMINATION BY MR O'GRADY [2.55PM]

PN354

MR O'GRADY: Mr Baader, you were asked about your involvement in the negotiating committee and about what was agreed with respect to clause 11. Have you had an opportunity to read the witness statement that's been filed by Ms Thomas on behalf of the university in these proceedings?---I have.

PN355

Now, Ms Thomas, in her witness statement - well, Ms Thomas was also involved in the negotiation of the certified agreement, wasn't she?---She was.

PN356

She describes a conversation that she had with Dr Doughney regarding clause 11 of the agreement. Did you see that there, of her statement?---Yes.

PN357

In particular, she says that when the university - sorry, when the union spoke about putting in clause 11, it raised concerns about the impediments that clause 11 would pose to it being able to implement redundancies, doesn't she?---She does.

**** RUSSEL BAADER XXN MR O'GRADY
PN358

Yes. She gives evidence that in response to that, it was decided to put the clause under the heading, Intent of Agreement. That's what took place, wasn't it?
---That's what Ms Thomas says in her statement, yes.

PN359

Yes. Well, do you take issue with that version of events?---I don't recall of the particular details, but I do recall our understanding at the time of what was intended, and I can address those issues. I do take issue with the statement insofar as it - it might help me if I had a copy in front of me.

PN360

Perhaps if the witness could be provided with a spare copy of Ms Thomas's statement?

PN361

THE SENIOR DEPUTY PRESIDENT: I think we have one, Mr O'Grady.

PN362

MR O'GRADY: I think we have a spare copy as well, your Honour.

PN363

THE SENIOR DEPUTY PRESIDENT: He is being given one by my associate.

PN364

MR O'GRADY: All right. Thank you, your Honour.

PN365

THE SENIOR DEPUTY PRESIDENT: And it's clause 49 you're referring to?

PN366

MR O'GRADY: Yes, I am.

PN367

Please just read clause 49 for me, Mr Baader?---

PN368

In relation to the intent and effect of - - -

PN369

Sorry, no. You don't need to read it out loud. I just wanted you to have an opportunity to read it before I asked you questions about it?---Right.

PN370

So if you could just have a look at it and refresh your memory about what it says?
---Mm.

PN371

Now perhaps firstly, do you accept what Ms Thomas says towards the foot of the paragraph, that Dr Doughney was the NTEU's lead negotiator?---Dr Doughney was the lead negotiator.

PN372

Right. Do you accept what she says, that he agreed that clause 11 would be aspirational?---I don't recall the conversation and I don't recall it particularly happened in front of me. I mean, I just don't know.

**** RUSSEL BAADER XXN MR O'GRADY
PN373

Okay. That's fair enough. Do you accept, or do you recall, Dr Doughney suggesting that the aspirational nature of the clause could be made clear by it coming under the heading of Intent of Agreement?---No, I don't recall that conversation either.

PN374

You see, Ms Thomas will give evidence, and I have to put this to you so you can respond, and it may be you weren't there when this was said, that Dr Doughney said words along the lines of, "It's only an intent clause. What are you worried about?" Do you recall him saying that?---No, I don't.

PN375

The clause was the subject of material that was distributed to the staff of the university prior to the ballot being taken, wasn't it?---The final draft agreement was circulated to staff - was that the question?

PN376

Well, the final draft agreement was circulated to staff. There was also a summary of the agreement that was circulated to staff so that they knew what the various clauses were designed to achieve?---The union didn't circulate any summary.

PN377

Are you aware that the university circulated a summary to staff so that they would know what the agreement - - -?---I believe that's what they did.

PN378

And that that summary was placed on the university's intranet site so that staff could look at the clauses in the agreement and then have a look at the summary that was being provided?---That's the university's usual practice.

PN379

You don't dispute that that took place?---I don't - all I'm saying is that it's likely it took place. I never went to the university's intranet site to investigate.

PN380

I see. Would you have a look at this document for me, please?

PN381

Your Honour, this is a document which is one of the exhibits to the submissions filed by the university. It's document number 2.

PN382

THE SENIOR DEPUTY PRESIDENT: Document number 2? It was filed with your submissions; yes.

PN383

MR O'GRADY: Yes, it should be headed, A Summary of Victoria University Academic and General Staff Enterprise Bargaining Agreement.

**** RUSSEL BAADER XXN MR O'GRADY
PN384

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes.

PN385

MR O'GRADY: Do you accept that that was the explanatory document that was distributed by the university prior to the ballot being taken?---I'll have to take your word for that.

PN386

Okay. That deals with intent of agreement at point 11, doesn't it?---It does.

PN387

Yes. It makes it very clear to anybody reading this summary that it is - that the function of clause 11 is to set out the aspirational objectives of the agreement?
---That's what it says.

PN388

Well, there's no ambiguity about what it says, is there?---No, but it's not the words of the clause either.

PN389

No, no. It purports to summarise the effect of the clause, doesn't it?---It purports to, yes.

PN390

Yes. Do you dispute that staff at the university would have had access to this document prior to voting on whether or not they wished to approve the agreement?

PN391

MR CULLINAN: Your Honour, Mr Baader has already made clear that he didn't even know it was on the website, so although he says it might be their standard practice, it's hardly a relevant question.

PN392

THE SENIOR DEPUTY PRESIDENT: Yes. If he didn't know it was on the website, he can't answer that, can he, Mr O'Grady?

PN393

MR O'GRADY: Yes. Thank you, your Honour.

PN394

When the agreement was - - -

PN395

THE SENIOR DEPUTY PRESIDENT: Well, just before you go any further with that.

PN396

Mr Baader, if it was on the website, I take it that all university staff have access to the website?---Yes, they do, your Honour.

**** RUSSEL BAADER XXN MR O'GRADY
PN397

Yes, thank you. Yes, Mr O'Grady?

PN398

MR O'GRADY: When the agreement was put to the ballot, a valid majority of employees whose employment would be regulated by it voted in favour of the agreement?---They did.

PN399

And then the matter was brought before the Commission for certification?---Yes.

PN400

And in respect of that, both the university and the NTEU filed statutory declarations as they are required to, for certification?---Yes.

PN401

Who signed the statutory declaration that was filed by the NTEU?---I would be assuming, on the basis of our normal practice, but I couldn't tell you for certain. It would normally be the general secretary of the union.

PN402

I see. All right. Are you aware - - -?---Sorry, I didn't make the submission, so I wouldn't like to give you that detail.

PN403

Are you aware of the content of those statutory declarations?---As I've just said, I didn't file the - a statutory declaration, I did not make the application for certification. And I did not make the presentation to his Honour at the time.

PN404

Does it flow from that, that you're not aware of what was said in those statutory declarations?---Yes.

PN405

You are aware that one of the - the questions that were asked in those statutory declarations as to explain the steps taken to explain the agreement to start with?
---Yes.

PN406

All right. Now, you were asked some questions about the workforce renewal project and in particular the objective of replacing level D and E academics with level A and B academics. Do you recall being asked about those issues?---Yes.

PN407

The workforce renewal program wasn't confined to that objective, was it?---No, it was not.

PN408

There were a number of objectives that formed the rationale for that project, do you accept that?---The document that the university published set out a variety of strategies for the achieval - achieving of their goal of workforce renewal.

**** RUSSEL BAADER XXN MR O'GRADY
PN409

Yes, and not only the document that the university published, and just so that I identify the document you're referring to, are you referring to the February 2006 document that set out - - -?---Yes.

PN410

- - - the workforce renewal project?---Yes.

PN411

Do you accept that that was a revision of a document that the university had distributed back in December of 2005?---Yes.

PN412

In addition to that, there were various emails from Mr Nicholson and from the vice chancellor dealing with workforce renewal?---There were certainly emails from David Nicholson subsequent to the release in February of the workforce renewal document.

PN413

Are you aware of there being emails from the vice chancellor in respect of that document?---Yes.

PN414

I put it to you that all of the documents that I have referred to made it clear that workforce renewal was more than simply replacing level D and E academics with level A and B academics? That's right, isn't it?---Without reference to those documents, I would find it hard to give you a useful answer.

PN415

I see. All right. Perhaps if the witness could be provided, as a bundle, with the documents that are the exhibits to the submission, your Honour?

PN416

THE SENIOR DEPUTY PRESIDENT: Yes. The documents numbered 1 through 20?

PN417

MR O'GRADY: Yes. If there is a spare copy the Commission has? If not, we have a spare copy.

PN418

THE SENIOR DEPUTY PRESIDENT: Yes, if you would, Mr O'Grady, thank you.

PN419

MR O'GRADY: If it's convenient, your Honour, I might just hand up the folder which has the submission on the material so that - - -

PN420

THE SENIOR DEPUTY PRESIDENT: Yes.

**** RUSSEL BAADER XXN MR O'GRADY
PN421

THE WITNESS: Thanks.

PN422

MR O'GRADY: Now, Mr Baader, could you turn to the document headed Workforce Renewal Project of 20 December 2005? I think they're in chronological order?---Tab 3, is it?

PN423

No, I think they're all behind that one tab?---Just behind that tab? Sorry. It's number 3.

PN424

THE SENIOR DEPUTY PRESIDENT: Is that the one that is a draft prepared by D Nicholson, 20 December 2005?

PN425

MR O'GRADY: Yes. Yes.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes, I think it is the third document.

PN427

MR O'GRADY: At paragraph 1 of that document, the objectives of the workforce renewal project are set out. Do you see that?---Just give me a moment. Yes.

PN428

Yes. Whilst the objective of increasing the proportion of academics at level A and B, and decreasing the proportion of senior academics at level D and E is dealt with at paragraph 1.6, you see that there?---Mm.

PN429

It appears there are a number of other specific objectives of the project are identified?---There are.

PN430

Yes. Do you accept that the effect of those specific objectives is to move the university so that its academic profile represents a better fit to its student and client demand?---That's the university's spin. I couldn't possibly comment otherwise.

PN431

But do you - well, accepting the description there, of that being the university's spin, do you accept that that is an objective that is a lot more complicated than simply replacing the ratio of academic level D and E with academics at an A and B level?---Those objectives all go to the issue of changing the profile of the staff in one form or another. For example, 1.1 deals with recruitment at level A and the enhancement of those staff. 1.2 deals with - - -

**** RUSSEL BAADER XXN MR O'GRADY
PN432

Well, can I just stop you there, Mr Baader? 1.1 gives an example of recruitment at level A, but it doesn't deal with recruitment at level A, does it?---The - before the example, it does say:

PN433

Recruiting well-qualified staff at junior levels and the retraining of existing staff.

PN434

So it is broader than simply the recruitment of level A, yes.

PN435

Yes?---The principal objective of that, I would say, is to recruit well-qualified staff at junior level and to succession planning.

PN436

I see. 1.2 isn't so confined, is it?---1.2 goes to the nub of the replacement of levels D and E and C academics, to manage projected growth and employee benefits.

PN437

Yes?---Junior staff are clearly cheaper to run.

PN438

Right. So you say that 1.2 can only be given effect through the engagement of cheaper staff?---I suggest that there might be lots of ways of maintaining the long term financial viability of the university, but this document says it's about being done by managing the projected growth in employee benefits and employing cheaper staff is clearly one way to manage the growth in employee benefits.

PN439

Yes. 1.3 isn't all about replacing academic levels D and E with academic levels A and B, is it?---No.

PN440

Indeed, it's about the engagement or recruitment of senior staff?---At strategic positions, yes.

PN441

Yes. 1.4 doesn't have any necessary nexus with D and - - -?---No.

PN442

- - - recruitment of A and B staff? Do you accept that the objectives that are listed in paragraph 1 would involve not just a university-wide focus, but a faculty by faculty, and indeed, school by school focus?---It doesn't say that there.

PN443

I didn't ask you whether it said that there. I said do you accept that that is the reality, that if you are going to meet these objectives, then one would not simply deal with the thing as a university-wide exercise, but you would have to get down to a faculty by faculty, school by school level?

**** RUSSEL BAADER XXN MR O'GRADY
PN444

MR THOMAS: Your Honour, if the witness doesn't know, he doesn't know. He's asking him to - - -

PN445

THE SENIOR DEPUTY PRESIDENT: Well, he hasn't answered it yet. He hasn't said he doesn't know, and I would have thought it's a question that he could answer.

PN446

THE WITNESS: I would say that if the university intended to make that statement, they would have made that statement.

PN447

THE SENIOR DEPUTY PRESIDENT: Well, Mr Baader, how could it achieve its overall objectives without looking at it at a school by school and faculty by faculty basis? Isn't that the minutiae of the overall?---I'm not sure that I'm particularly qualified to answer that question. All I can rely on is the words on the page, your Honour, and they're not that explicit. What I can say is that 1.6 and 1.2 seem to go to the same issue which is about employee benefits and that is articulated as a global rather than a faculty by faculty, school by school problem.

PN448

But the global is composed of the faculty and faculty and school - the faculties and the schools, is it not? That's what constitutes the university? Or have things changed since my day?---They change quite regularly, your Honour, I'm sure.

PN449

I'm sure they do?---There are schools and there are faculties, your Honour, yes. They are the constituent parts of the organisation.

PN450

MR O'GRADY: Perhaps, Mr Baader, if you turn to the next page where it deals with the change imperative, and a new context of workplace planning renewal. Do you see that in bold there in the third paragraph there's a paragraph that reads:

PN451

The strategy involves taking action to address any gaps between the current workforce profile and the profile best suited to the level of long term objectives of the university and introduce new ways to strengthen and support key workforce practices.

PN452

Do you accept that that is an objective that would have to be undertaken or implemented on a school by school/faculty by faculty basis?---I don't know what the long term objective of the university is so I can't answer the question.

PN453

Okay. Well, if you can't answer the question, sir, you can't answer the question. The document also dealt with the generation of something called a school workforce plan, didn't it?---I believe so.

**** RUSSEL BAADER XXN MR O'GRADY
PN454

THE SENIOR DEPUTY PRESIDENT: A school workforce or skill workforce?

PN455

MR O'GRADY: School workforce plan.

PN456

Perhaps if you turn to paragraph 4.9? You see there under the heading of Declaration of Positions as Redundant?---Yes.

PN457

That speaks that it may be in some cases, a school's workforce plan will show that one or more positions are excess to the requirements and that the incumbents of those positions are no longer required?---Yes.

PN458

So to that extent, I put it to you, Mr Baader, it was clear that there would be a school by school approach in ascertaining the need for redundancy, even at this very early stage in December 2005?---It was contemplated that positions might be redundant at school level.

PN459

Yes, and indeed, at page 14 of the document, the steps associated with the completion of the workforce plan are delineated, aren't they?---Sorry, could you say that - - -

PN460

Sorry, page 14, paragraph 6?---Yes.

PN461

You see there the steps to be taken in order to complete a workforce plan?---Yes.

PN462

Yes. That's to enable each individual school to assess its position with respect to workforce renewal?---Yes.

PN463

At page 16, attachment A, the processes that would apply under the enterprise agreement in the event of redundancy are spelt out, aren't they?---Yes.

PN464

Yes. So it was clear, I would have thought, to everybody that from December of 2005, that workforce renewal extended beyond simply replacing level D and E academics with level A and B academics? Would you accept that?---Yes.

PN465

That workforce renewal would involve an assessment on a school by school basis as to the match of the schools' staff profile with each projected needs and demands?---Sorry, could you ask that question again?

PN466

That workforce renewal would involve an assessment on a school by school basis of the match between the current schools' workforce profile and its projected demands?---Yes.

**** RUSSEL BAADER XXN MR O'GRADY
PN467

Yes. That it may be necessary for there to be redundancies on a school by school basis?---The document allows that possibility, yes.

PN468

And that if there were to be redundancies, then they would be dealt with under the mechanisms provided for in the enterprise agreement?---That's what the document says, yes.

PN469

I put it to you, Mr Baader, that the document that was released in February of 2006, the revised version of this document which I think is two documents further on in the bundle that you have, makes the same points with respect to the implementation of the workforce renewal project? I can go through it with you if you like, but do you accept that it substantively makes the same points with respect to those matters that I've just taken you through?---Yes.

PN470

Yes. Could you turn to the document after the February 2006 document, the email from the vice chancellor, 10 March? Do you have that document?---Yes.

PN471

On the second page, there's a heading, Academic Workforce Renewal Project?
---Yes.

PN472

Could you just read the two paragraphs that appear under that heading for me, sir?

PN473

THE SENIOR DEPUTY PRESIDENT: Sorry, which document is that, Mr O'Grady?

PN474

MR O'GRADY: This is the document - it's an email, your Honour. It appears after the February 2006 workforce renewal project.

PN475

THE SENIOR DEPUTY PRESIDENT: I see. Yes. It's the sixth document. Yes.

PN476

MR O'GRADY: It's the heading, Academic Workforce Renewal Project, on the second page. You'll see on the second page of the email at about point 3?---Yes.

PN477

Now, once again, the vice chancellor is making it clear that there is an assessment that's occurring on a school by school basis with respect to the workforce renewal project?---Yes, the second paragraph says heads of schools are in the process of doing workforce plans.

**** RUSSEL BAADER XXN MR O'GRADY
PN478

Yes. She also makes it clear that there may be a program of forced redundancies in or around May?---Yes.

PN479

Yes. Once again I put it to you, Mr Baader, that that's not in any way confined to simply replacing academics levels D and E with academics levels A and B? Do you accept that?---No, it's not.

PN480

Now, were you aware of these emails being circulated at the time, Mr Baader?---I believe at the time I would have seen some, although not all of them. You see in the header it goes to an internal distribution list which I'm not party to.

PN481

All right. Well, if with respect to any of these questions, you were unaware that the email - or don't feel you can comment, then please let me know and I'll address the notice with Dr Doughney. The next document is an email dated 22 March 2006 from Mr Nicholson?---Yes.

PN482

That's to [e-mail]. Do you accept that's the general distribution email list at the university?---I understand announcements to mean the senior management distribution list.

PN483

I see. All right. Once again, that is an update on the workforce renewal project? Do you accept that?---Yes.

PN484

Could you read for me, to yourself, what appears under the heading of Project Objectives?---Yes.

PN485

Do you accept that it's clear from that email that the primary objective of the workforce renewal project is to get the right workforce profile in place to meet the university's education research outcomes in the coming years?---What - what I can say is that the email from David Nicholson sets that as an objective at that point in time.

PN486

Yes, and it also makes it clear, doesn't it, that that's to be undertaken on a school by school basis through the workforce plans that schools were generating at the time?---Yes. That's clear.

PN487

Now, in April of 2006, the university council received a report about a downturn in revenue from international full fee paying students? Are you aware of that?
---I'm not party to council documents or resources committee documents.

**** RUSSEL BAADER XXN MR O'GRADY
PN488

Okay. Could you turn through the bundle until you get to an email dated
1 May 2006?---What's its number? You've got the number - - -

PN489

Yes, I don't have that. I'm sorry, Mr Baader, I'm not sure that I have the same index that you've been provided with?---So what was the date?

PN490

It's 1 May 2006. They should be in chronological order and it should be after
the - - -?---From Elizabeth Harmon?

PN491

THE SENIOR DEPUTY PRESIDENT: I think it's number 11.

PN492

MR O'GRADY: Yes?---Yes, I've got that, your Honour.

PN493

Now, under the heading, DBC Capital and Management Services deals with the departure of Mr Nicholson. Do you see that there?---Yes.

PN494

Do you accept that Mr Nicholson is no longer employed by the university?---I understand that he's not employed by the university.

PN495

Do you dispute the fact that he's currently working up in Papua New Guinea?
---How can I answer? I've been advised that that's where he's working, but - - -

PN496

No, that's all I need you to say, sir.

PN497

THE SENIOR DEPUTY PRESIDENT: You might have known. You might be a good mate of his and correspond. Who knows?---Yes. But it could have been a rumour, your Honour, so I can't accept that he's working in PNG.

PN498

MR O'GRADY: As long as you don't dispute it, that's all I need, Mr Baader. If you turn to the next page, you'll see there there's reference to "tightening our belts"?---Yes.

PN499

And that deals with, among other things, the fall in income flowing from the reduction in international enrolments?---Yes.

PN500

Do you accept that the university did suffer a reduction in international enrolments during the first part of 2006?---I understand that to be the case.

PN501

And do you accept that that would have placed additional pressure on the finances of the university?---I'm not competent to answer that question.

**** RUSSEL BAADER XXN MR O'GRADY
PN502

At page 4 of 7, you'll see there's a heading in the middle of the page of On Staff?
---Yes.

PN503

In that part of the document there's reference to the need for redundancies?---Yes.

PN504

Yes. The vice chancellor, in the last paragraph on the page, says in the second sentence:

PN505

The intention is to ensure that academic staff profiles, particularly in each school, are a good fit with current and future academic needs and are financially sustainable.

PN506

?---That's what it says.

PN507

Yes. She makes the point in the last sentence of that page that the position from school to school could vary?---Yes.

PN508

The next document you should have is an email of 8 May 2006, which is document 12?---Mm.

PN509

This is the move to phase 2 of the project, do you see that?---Yes.

PN510

Phase 2 of the project is the move to compulsory redundancies?---Yes.

PN511

Yes. Thank you, sir. All right. You gave some evidence about the meetings that you attended with respect to a Mr Buckley and Ms McCauley, do you recall giving that evidence?---Yes.

PN512

In particular, you expanded upon what appears in paragraph 12 of your statement, where you talk about the offshore program?---Yes.

PN513

Have you had an opportunity to read the witness statement that's been filed by Ms Finkelstein in these proceedings?---Yes.

PN514

At paragraph 28 of her statement, she says in response to what you say in paragraph 12:

PN515

In paragraph 12 of Mr Baader's witness statement, he states that in my discussions with Mr Buckley I mentioned the offshore multi-media program. The reason I mentioned this program was not because Mr Buckley was involved in the program, but as a further example of the precarious financial position and declining and low enrolments in the School of CCL and in particular the multi-media area of the school in which Mr Buckley and Ms McCauley are employed.

**** RUSSEL BAADER XXN MR O'GRADY
PN516

Do you recall Ms Finkelstein saying that in her witness statement?---Yes.

PN517

Do you take issue with what she says in that paragraph, as to what her motivation was for mentioning the offshore program?---Yes.

PN518

You do?---Yes.

PN519

All right. So Ms Finkelstein is not being honest when she says that in paragraph 28?---During the course of that conversation, we were attempting to determine why Mr Buckley was being made redundant and what criteria were applied to make him redundant. A reference to declining - or inadequate enrolments in the offshore program, where Mr Buckley didn't teach in that, seemed to me to cast doubt on the validity of the university's approach in identifying staff to be made redundant.

PN520

So you took it as reflecting a lack of genuineness as far as the university's processes were concerned?---Yes.

PN521

But Ms Finkelstein has now explained why she mentioned it. Do you accept that the reason why she mentioned it is as stated in paragraph 28 of her witness statement?---I can accept that if there was a decline in enrolments in the offshore program, that that would create a financial problem for the school.

PN522

Yes?---It would not create a criterion by which to select Mr Buckley for redundancy.

PN523

I see. Other than the fact that you suspect that the mention of this decline undermines the genuineness of the university in applying the redundancy criteria, is there any other reason why you don't accept what Ms Finkelstein says in paragraph 28 of her witness statement?---That may be Professor Finkelstein's recollection. It's not mine.

PN524

I have no further questions.

PN525

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr O'Grady. Mr Thomas, any re-examination? Mr Cullinan? A bit of a tag team going on here.

PN526

MR CULLINAN: It's a little bit unusual, I know, but just two very quick matters.

<RE-EXAMINATION BY MR CULLINAN [3.32PM]

PN527

MR CULLINAN: The first one being, Mr Baader, my friend has drawn your attention to a number or a range of documents. One of them was an email of 8 May of this year from David Nicholson in the university's set of documents. It's entitled, Workforce Renewal Project - Phase 2?---Yes.

**** RUSSEL BAADER RXN MR CULLINAN
PN528

THE SENIOR DEPUTY PRESIDENT: Is there a number for that one?
---Twelve, your Honour.

PN529

Thank you.

PN530

MR CULLINAN: I just wanted to - as you read down an email, could you just read out the terms of the italicised section, the first paragraph, the last sentence?
---Yes:

PN531

The criteria will be available shortly for a brief period of community comment before those staff whose positions are redundant are notified.

PN532

Thank you. Now, in terms of the rest of the email, the second-last paragraph makes a reference to consultation in accordance with the provisions of the agreement?---Yes.

PN533

Do you or are you aware of any relevant clause in the agreement which would provide for such consultation?---The agreement provides for consultation about change under clause 65.

PN534

Thank you. So in terms of that, you would understand that that clause is discussing part of the consultation process under clause 65?---On the face of it, it says that the university will use its consultation processes in the EBA.

PN535

Thank you, Mr Baader. The second question goes back to the very beginning of the cross-examination and that was the document that was purported to be on the website of Victoria University at the time of negotiations and it was a summary document, I guess. Well, that's what it's called. Do you have that summary document? You do. Do you have a copy of the certified agreement?---Not with me.

PN536

Could I just hand up, just to draw his attention to one particular clause? Thanks.

PN537

THE WITNESS: Thank you.

PN538

MR CULLINAN: Just in terms of clause 9 under the Summary document, that's got a statement about what is in clause 9. Could you just read that out for us?
---Just the Australian Workplace Agreements?

**** RUSSEL BAADER RXN MR CULLINAN
PN539

Yes?---Yes:

PN540

The university may offer Australian Workplace Agreements to its staff and such AWAs may either exclude all terms of this agreement or prevail over the terms of this agreement to the extent of any inconsistency as required by the Higher Education and Workplace Relations requirements.

PN541

Now, in terms of actually clause 9 in the actual certified agreement, are there any differences from that, and what's in the actual certified agreement?---The summary refers to the HEWRs, which is not in the clause.

PN542

What about the rest of clause 9?---9.2 does - is not present and 9.3 is not present.

PN543

Could you read out 9.2 and 9.3 for us?

PN544

THE SENIOR DEPUTY PRESIDENT: I can read them

PN545

MR CULLINAN: You can read those.

PN546

So do you - I think the point is made. I don't think there's - - -

PN547

THE SENIOR DEPUTY PRESIDENT: Yes. You can make the point in submissions.

PN548

MR CULLINAN: Yes, your Honour.

PN549

THE SENIOR DEPUTY PRESIDENT: You've drawn the witness's attention and mine to those matters.

PN550

MR CULLINAN: Thank you, your Honour. No further questions.

PN551

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Thank you, Mr Baader, you may be excused.

<THE WITNESS WITHDREW [3.36PM]

PN552

THE SENIOR DEPUTY PRESIDENT: You are now calling Dr Doughney, are you?

PN553

MR THOMAS: We are.

PN554

THE SENIOR DEPUTY PRESIDENT: Because of commitments of mine this morning, we started late. How are we going for time, given the manner in which the proceedings have been confined? I'm just trying to think of what time we might adjourn this afternoon. Do you want me to sit longer hours than I normally would? I normally adjourn at around 4.15, depending on where we are with the evidence.

PN555

MR THOMAS: It's nearly quarter to four, so I expect Dr Doughney's time in the box would be longer than Mr Baader's.

PN556

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps we can deal with Dr Doughney in-chief and leave his cross-examination until tomorrow. Let's see how we go, shall we?

<JAMES RICHARD DOUGHNEY, AFFIRMED [3.38PM]
<EXAMINATION-IN-CHIEF BY MR THOMAS

PN557

MR THOMAS: Dr Doughney, did you prepare a witness statement that was included in the NTEU submission?---Yes, I did.

PN558

Your Honour, I would like to table that witness statement.

PN559

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN560

I might just go through some formalities, Dr Doughney. For the record, would you state your name and address again, please, and your occupation?
---James Richard Doughney, academic, Victoria University, Ballarat Road, Footscray.

PN561

Yes, and Dr Doughney, you have made a statement for use in these proceedings that runs to 20 pages and is dated 10 July 2006, have you?---I have, your Honour.

PN562

There are, I think, eight attachments to that statement?---There were, your Honour.

PN563

Are the contents of your statement true and correct?---They are, your Honour.

PN564

Are there any alterations or additions that you wish to make, any corrections?
---No.

PN565

No. Very well.

PN566

Now, Mr Thomas, you wish to tender that statement with its attachments, do you?

PN567

MR THOMAS: Yes, I do.

EXHIBIT #NTEIU A2 STATEMENT OF JAMES RICHARD DOUGHNEY WITH ATTACHMENTS DATED 10/07/2006

PN568

THE SENIOR DEPUTY PRESIDENT: You have no further questions of Dr Doughney?

PN569

MR THOMAS: Pardon?

PN570

THE SENIOR DEPUTY PRESIDENT: You have no further questions of Dr Doughney, Mr Thomas?

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN571

MR THOMAS: I do have some questions.

PN572

THE SENIOR DEPUTY PRESIDENT: I'm sorry, it's just that you sat down. I thought you were making him ready for cross-examination.

PN573

MR THOMAS: Thank you, your Honour.

PN574

Dr Doughney, in paragraph 4 of your statement, you obviously outline some of your current roles beyond your academic work, let's say, specifically your role in being a lead negotiator for EB - for this agreement. What is your recollection of the negotiations around clause 11 and specific to work it's intended to do, given that this was the intent of the agreement?---Clause 11 was designed by the parties to stipulate what the purpose of the agreement would be, what the agreement intended to achieve and to an extent, in some parts, what the agreement aspired to achieve, if we can make that a less binding statement than intent, but intent of agreement I think was the appropriate title to be placed on that clause because it specified the end to which the agreement was intended. Its purpose.

PN575

So in - and you are familiar with that clause, obviously. Do you see any difference in the language used where you have at clause 11.3 it states that the university's committed to exploring all reasonable options to - with the rest of, you know, indicative options, and as opposed to the sentence which stated that the goal of the university is to endeavour that there be no - yes. Do you see any difference in the work of those two sentences?

PN576

THE SENIOR DEPUTY PRESIDENT: Just don't answer that for a moment.
Mr O'Grady, you have an objection?

PN577

MR O'GRADY: Yes, I do, your Honour. Your Honour, in my submission, any difference that Dr Doughney does or does not see between the particular terms used in the agreement is not relevant to the matters in issue in this proceeding. Dr Doughney might give evidence about what he said when this clause was negotiated and what the university said when this clause was negotiated, because that goes to the mutual intention of the parties ascertained objectively. It's the background, in respect, all the background to these words and their insertion into the agreement. But what he understood the words to mean, what his subject of intention was, is in my respectful submission irrelevant, just as the subject of the intention of Ms Thomas is irrelevant.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN578

THE SENIOR DEPUTY PRESIDENT: What if there was no meeting of the minds, Mr O'Grady? We're not dealing with a Codelfa-type situation, are we? I'm settling a dispute over the application of the agreement. If the parties pass like ships in the night, there's nevertheless a role for me, is there not, whereas a court would find that there was no agreement?

PN579

MR O'GRADY: Indeed, your Honour, but the role in my respectful submission is for your Honour to give effect to the mutual intention of the parties ascertained objectively.

PN580

THE SENIOR DEPUTY PRESIDENT: If I can find it. If I can find it.

PN581

MR O'GRADY: Well, it may well be, your Honour, that that is to an extent a legal fiction, that the parties might have intended different things from the words that were used, but in my respectful submission, that doesn't prevent there from being a valid agreement, nor from it being the subject of these processes. But if there was a fly on the wall when the agreement was negotiated and certain things were said or not said to each other, then from that and from the words used, the fly - and in these circumstances the Commission - can ascertain what the mutual intention of the parties is taken to have been. And in my submission - - -

PN582

THE SENIOR DEPUTY PRESIDENT: Yes. We're called all sorts of things, Mr O'Grady. I think it's the first time I've been called a fly.

PN583

MR O'GRADY: Well, I'm attempting to avoid a reference to a man of the platinum omnibus, your Honour. But that's the process, in my respectful submission, that the Commission should apply.

PN584

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomas, can you try it this way first, in any event. See if Dr Doughney can give evidence of what was said at those meetings, rather than what he thought the clause means.

PN585

MR THOMAS: Yes.

PN586

THE SENIOR DEPUTY PRESIDENT: Because ultimately it's a question for me, not for him.

PN587

MR THOMAS: Yes.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN588

Dr Doughney, when it came to the construction of subclause 11.3 and the wording, especially the phrase, "the university is committed", could you please inform the Commission of what was said in the construction of that sentence?
---Mr Thomas, it might help me if I had a copy of the agreement in front of me. I did bring one up, if that's all right with the Commission?

PN589

THE SENIOR DEPUTY PRESIDENT: Yes?---I can reach down and get it off the floor.

PN590

Yes?---Thank you. So, Mr Thomas, if you could repeat the question?

PN591

MR THOMAS: Okay. At subclause 11.3, the start of the third sentence, "The university is committed", when discussions took place around the construction of that sentence, could you convey for the Commission the nature of those discussions? What was said?---Mr Thomas, you're asking a little too much in terms of my memory. However, I can talk generally about the discussions concerning clause 11 as a whole and what prevailed in the - in total in that discussion.

PN592

Yes?---And it might not be a full recollection of all the discussion that took place.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN593

THE SENIOR DEPUTY PRESIDENT: Well, to the best of your memory, Dr Doughney?---Yes. That's the best that I can do. We were in a process in the enterprise bargaining period, an I think this was coming reasonably close to the end of enterprise bargaining, where we were tying up the loose ends of the agreement and the agreement had gone through a rather sudden upheaval towards the end of the process. We'd had a long enterprise bargaining period that extended in total for about two years and then during 2005, the Higher Education and Workplace Relations requirements were presented to universities by the government and that meant that some clauses had to be changed and we were tidying clauses towards the end of the negotiating period. What we were trying to do was make those clauses in the language of the time HEWR compliant which meant was to give - which meant allowing for a certain amount of flexibility. I think that was one of the HEWR requirements. At 11.1, my recollection is that these words are in fact drawn from the Higher Education and Workplace Relations requirements. That is, fair and flexible employment provisions. I think my consideration of the discussions that occurred at the time was that the end for the intention of the agreement was to provide fair and flexible employment provisions and that the agreement itself was the means in order to achieve that, so the clauses in the agreement would give effect to that end of fair and flexible employment agreements. In addition, at 11.2, some general statements were introduced regarding the university's long term viability. I don't recall the genesis of those particular statements and the particular wording for those, although I do see there, and it would have been certainly the case in the discussion, that the final sentence was a throw-back to our previous enterprise bargaining agreement concerning intellectual freedom and respect for intellectual property and so forth. At 11.3, the job security clauses of the previous enterprise bargaining agreement were collapsed into one in an effort to make those clauses compliant with the HEWRs. Now, the discussion that I recall about that was to say to the - was that the university was putting the view that it could not be bound in the first instance to say that it would - that there would be no net reduction in jobs, and that that was regarded most certainly as an intention of the agreement, but more of the variety of an aspiration of the agreement. That is, that we would try to achieve a situation in the university of no net reduction in jobs, but the university could not be bound in any way to stick to that agreement. So in other words, the statement is that the goal of the university is of this - is of this kind. And the next steps, I think, hark back to our previous enterprise bargaining agreement, and that is they stated intention. Now, the end that was intended or what the intention was, in my understanding of the discussion, is this; that the intention was to avoid forced redundancies. That was the intention of the agreement or the particular statement. It could be regarded as an aspiration to avoid forced redundancies. The means to avoid forced redundancies, and I recall this being discussed, were the particular options that are outlined there as ways of achieving the end, the intent. Now, in a previous - examination of the previous witness, this discussion was raised in connection with Ms Thomas's comments. It seems to me that a rather artificial distinction is attempted - is being drawn between what is a goal and intention and aspiration - - -

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN594

MR O'GRADY: Your Honour, the witness - - -

PN595

THE SENIOR DEPUTY PRESIDENT: Yes. You've been asked to comment on what you recall of the conversation, not to venture far past that, if you would?---I understand, your Honour. Yes.

PN596

MR THOMAS: Your recollection of the conversation. So in recalling that conversation, you saw a distinction between a goal and an express commitment for the university be clarified in the agreement?---Well, the important point in our conversation was that the goal that the university might aspire to, the intention which may or may not be achieved, was to avoid forced redundancies. The means that would be employed, and this was the content of the discussion, the means that would be employed to achieve that end, or to endeavour to achieve that end, however you'd want to put it, or to endeavour to achieve the aspiration, and certainly was a word that was used in that discussion at the table, are the items that are outlined there. Namely, pursue the options of retraining, natural attrition, voluntary separations, et cetera, et cetera, before proceeding to forced redundancies. That was the content of the to and fro at the table. I don't recall it being a particularly onerous discussion. I don't recall it being one of intense conflict.

PN597

In your statement, Dr Doughney, at paragraph 8, page 4, you outline a chronology of a process known as the workforce renewal project, there's a table that goes over the next page and a half?---Yes, that's correct.

PN598

That conveys a degree of familiarity with the workplace reform program. Are you familiar with it?---Yes, I am familiar with the workforce renewal project.

PN599

Could you explain for the benefit of the Commission how or why you are familiar with the details of this project?---I'm familiar with it first as a member of the University Council. I'm familiar with it as a member of the University's Resources Committee, which is effectively the University's Finance Committee. I'm familiar with it as a former member of what was then called the Interim Workplace Consultative Committee. I'm familiar with it as the President of the Victoria University branch of the National Tertiary Education Union.

PN600

So your level of familiarity is quite deep?---Yes.

PN601

With what you've outlined in the chronological table there, does that satisfy clause 11.3?

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN602

MR O'GRADY: That's a matter for you at the end of the day.

PN603

THE SENIOR DEPUTY PRESIDENT: Yes, perhaps you can ask another question.

PN604

MR THOMAS: In relation to the workplace reform program, earlier we saw there are two additions of the workplace reform program. There is the document, the December '05 document and then the March '06 document, it's in
the - - -?---Sorry?

PN605

The workforce - - -?---The original workforce renewal document was
presented - - -

PN606

Of December?---Of December, yes, December 20 I think, it was dated. Then there was the February 16 reiteration.

PN607

Okay. Were they consistent documents?---Those two documents were reiterated, or the second document reiterated the first.

PN608

And did those documents take into consideration the obligations required by the agreement?---They did not in that they did not take up - - -

PN609

THE SENIOR DEPUTY PRESIDENT: Well, again, Mr Thomas, that's a matter for submissions and then ultimately a matter for me. You can take me to the parts of the agreement in your submissions where you say the documents didn't comply with the agreement. But I don't know that it's a question for the witness.

PN610

MR THOMAS: In relation to that initial document, Dr Doughney, much was made of the objectives. I think that was - and I refer you to the February '06 document which - of the workforce reform program, do you have a copy of that before you?

PN611

THE SENIOR DEPUTY PRESIDENT: Can you just remind me where I might find it.

PN612

MR THOMAS: Yes. There is a copy in the NTU submission, in the original submission, it's marked NTU2, your Honour.

PN613

THE SENIOR DEPUTY PRESIDENT: Good, thank you.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN614

THE WITNESS: The document dated February '06?

PN615

MR THOMAS: Yes. You're familiar with the objectives of the project, Dr Doughney?---Yes, I am, Mr Thomas.

PN616

Aspirational - - -

PN617

MR O'GRADY: Your Honour, once again that's really a matter that you're going to have to determine if you decide that's a relevant issue - - -

PN618

THE SENIOR DEPUTY PRESIDENT: I'm not sure that I understood that question, quite frankly, Mr Thomas. Were the objectives aspirational, is that your question?

PN619

MR THOMAS: Well, the question, put it this way, your Honour, Dr Doughney, given your familiarity with this project the stated objectives, did you - were they set in stone as in that they were objectives to be achieved?---The objectives to be achieved that were set in stone, Mr Thomas, were not clearly articulated in
this - the workforce renewal program documents of either February, December or later. The real objectives of the workforce renewal project were articulated in the University's budget document which was adopted by the council of the University on 5 December 2005, that's where the actual targets for departures at various levels were presented. They were presented to council, they were adopted by council, but those targets did not appear in the workforce renewal documentation that was given to the University for consultation.

PN620

The targes for consultation?---The targets were not given for consultation. They are already adopted and placed in stone in the University's budget.

PN621

And they were the renewal, the 52 positions which had - - -?---That's correct, that's correct, Mr Thomas.

PN622

Was - you said you're familiar with the project because of your role on council, are you able to inform the Commission of any - was there any internal reporting of the implementation of the rolling out of this project to monitor its delivery?
---There were a number of general emails that reported on aggregate targets that were given to the University. However, the detailed reporting at the level of the particular targets at the various academic levels was to my knowledge only ever reported to the resources committee of the University Council and the progress of the project in meeting the budgeted targets was given to the resources committee in regular updates at its monthly meeting.

PN623

And did those targets, were they online or did you go beyond outside the usual process?---Sorry, Mr Thomas, could you repeat the question?

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN624

Did those reports provide any information to you of how the process was rolled out, and went beyond the targets, that is the renewal aspect of merely replacing Ds and Es with lower level academics?---What was reported, generally by Mr David Nicholson and then later by his replacement, Mr Prana Idheer, to the resources committee of council were a list of academic positions A through to E. That is, from associate lecturer or lecturer A through to professor and numbers were placed against those levels and progress was reported to the resources committee on the numbers of aggregates that were to be achieved at that level. To my knowledge that's the only set of reports that were given to the resources committee on the workforce renewal project. They were aggregate totals only.

PN625

One of the documents referred to earlier, Dr Doughney, was in the submission of the University there was an email dated 1 May from the Vice Chancellor to announcements at VU. I don't know if we have a copy of - - -?---I think I have that with me, Mr Thomas, I'll just check.

PN626

MR O'GRADY: If it's convenient, your Honour, we have the same folder that he handed up to the previous witness.

PN627

THE SENIOR DEPUTY PRESIDENT: Yes. That might be the easiest way Dr Doughney. I think the email dated 1 May is document 11.

PN628

MR THOMAS: Yes?---Yes, it's in this top group.

PN629

Yes?---They're not numbered, so.

PN630

The 1 May one here is VU11?---They're not numbered in the document - - -

PN631

THE SENIOR DEPUTY PRESIDENT: No. I think we all have it now, though.

PN632

MR THOMAS: Yes, we all have it. Can I take you to the paragraph that was referred earlier on page 4 of the seven page document under On Staff?---Yes.

PN633

Now, in your understanding of the target that was set it refers there to, "Unfortunately as is probable that the minimum number that we set as targets for changes will not be achieved." Do you recall what the minimum number was and was it ever expressed as a minimum target in any of the discussions that you had prior to this email going out in May?---The targeted number, the budgeted number sets it as a maximum and a minimum. That is, the targeted number was 52. That was the number that went into that - - -

PN634

It was a stand alone target, it wasn't expressed as a minimum or a maximum or an indicative?---Yes, that was the budgeted target. The budget also indicated that there might be a future roll out over future years of workforce renewal, but the budgeted target was 52.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN635

But in this document here, the preceding paragraph where Mr Nicholson advised in April that there were some 61 staff who had lodged interests and indication of an extra 40 staff now engaged in Stage 2. That would certainly appear to go well beyond the target nominated?---Indeed, it goes nine beyond the target nominated. I understand the total is now 73.

PN636

And was that excessive number of redundancies, were they ever conveyed to you as a requirement of the workforce renewal project - - -?---The workforce renewal project was set in the budget and it provided for 52 voluntary departures.

PN637

At NU level?---It specified some targeted levels and I think there was - the budgeted target, if I recall correctly, was for 16 at level E, which is professor, 16 at level D, which is associate professor, 20 at level C which is senior lecturer. That makes a total of 52 and there was also targeted employment of staff at level A and level B that would have a net result of zero in terms of employment and departure, and that was the budgeted target of workforce. And I should add, the budgeted target was something that managers within the University were required to fulfil and it was written into the performance targets of the managers of the University.

PN638

Could you please familiarise yourself with the next paragraph, Dr Doughney, that's previously one that begins with, "As previously advised"?---Yes, "As previously advised" - - -

PN639

THE SENIOR DEPUTY PRESIDENT: You can read it to yourself?---Sorry. "As previously advised" - - -

PN640

You're too used to lecturing, Dr Doughney.

PN641

MR THOMAS: Now, given that the actual numbers went well beyond what were initially mooted as targets of the workforce renewal project and what seems to be there, a statement by the Vice Chancellor that they are no more than guidelines or benchmarks, did you on behalf of the NTU seek to initiate any discussions or consultation with the University or vice versa, the University seek to consult with you as the representative of the NTEU, about the excessive extra number of positions that may well be caught up in the project and an attempt to explore any alternatives?---The University did not, either at resources committee of council, nor with me as president of the NTEU or with staff of the University or with the workplace consultative committee ever indicate that there were sub-targets beneath the aggregate level that would be applied at the school or faculty level. The workforce renewal project was always or only ever articulated at the level of the aggregate numbers that were provided for in the budget. It did not have an articulation lower than that. Now, of course, here was some suspicion that lower level targets did prevail, but they were never presented to staff for consultation within faculties for consultation or in any other forum of the University such as council or the resources committee of council for comment. Hence the statement here of the Vice Chancellor I guess would go under the category of that's news to me. We did, in response to the other part of this your question, following this, tried - a number of staff members, including myself, approached the chair of the workplace consultative committee to call an extraordinary meeting to try to get from the University a clearer account of its objectives under workforce renewal and how these had changed over time. It was apparent to us that the process was changing before our eyes, but we were not being brought into the consultation process about it.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN642

Given the number of potential redundancies that were then on the table, did you, for the NTU, make - or any other staff - make any attempts to find alternatives to those forced redundancies?---Sorry, could you repeat the question, Mr Thomas?

PN643

If one of the - part of the intent of the agreement was, where possible, to pursue options before proceeding with forced redundancies, did you, as a representative of the NEU or the University seek or explore alternate options outside of the redundancy?---I take clause 11.3 to provide - - -

PN644

THE SENIOR DEPUTY PRESIDENT: No, the answer to the question is, did you do something?---Did I do something?

PN645

Did you or the University do something?---I argued the case in two papers that the University should be exploring natural attrition as an option. Both of those - one paper was presented to the University council. Another paper was presently broadly to the University community.

PN646

MR THOMAS: And the substance of those papers, is that what is included or is that included in your witness statement from paragraph 10 onwards?---The witness statement, paragraph 10 onwards, gives a more sophisticated approach to the modelling of attrition within the University. The earlier papers at the initial targets at levels D and E of the University, rather than more broadly, and the first set of - first paper also argued that the University really needed to do some research on the workforce dynamics of the University including retirement intentions of staff before heading down this road.

PN647

And you said you tabled that paper at University council?---It was - yes, presented through the resources committee to the University council.

PN648

And how did the University council, and in fact its resources committee, respond to that?---It was noted, Mr Thomas. The response went no further.

PN649

And was there any explanation provided by either the resources committee or the council as to why your alternate was merely noted?---No, Mr Thomas.

PN650

No explanation at all?---None whatsoever.

PN651

And there was no provision of reasons why it wasn't possible?---The resources committee and the University did not engage with the papers that I presented.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN652

At all. And did you make or bring to the attention of the resources committee or the University council clause 11.3 of the agreement where it states the University is committed to explore all reasonable measures to avoid forced redundancy where possible, to pursue the options of retraining, natural attrition, et cetera, et cetera?---I brought that to the attention in particular of the workplace consultative committee.

PN653

What about the resources committee or University council?---I can't recall bringing it to the attention of the University council or the resources committee, but I certainly can to the workplace consultative committee and in the minutes of the committee that had been tendered by the University, clear reference is made to that.

PN654

What was the response to that?---If in the University's documents and the minutes I could be taken to that point, I could give you a very clear answer. Perhaps ask Mr O'Grady to direct me to where it is in the materials that I have in front of me.

PN655

MR O'GRADY: It will be document 4, I understand, your Honour.

PN656

THE WITNESS: Thank you, so document 4 within this top set or in the - - -

PN657

MR O'GRADY: Yes, in the top set, I think, your Honour.

PN658

THE WITNESS: So it will be VU4?

PN659

THE SENIOR DEPUTY PRESIDENT: It's headed Interim Workplace Consultative Committed Monday 30 January 2006?---Okay. No, it's not that one. It's - - -

PN660

MR THOMAS: Sorry, I think it's document 13, is the other one, your Honour?
---So it's document 13, okay.

PN661

THE SENIOR DEPUTY PRESIDENT: Being minutes of 16 May?---Yes, that's correct, yes.

PN662

MR THOMAS: Which date, your Honour?

PN663

THE SENIOR DEPUTY PRESIDENT: 16 May?---You'll note at item 1:

PN664

Andrea Brown advised the extraordinary meeting was called by her as chair, many calls and emailed submissions about workplace renewal were received. The main themes included breach of EBA, item B, breach of clause 11.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN665

If I may take a little time to glance through it I might be able to find further reference to it. No, it makes no further reference specifically that I can see here.

PN666

MR THOMAS: To the consideration?---Yes, but it was discussed in that meeting maybe off the record.

PN667

If we stay with that document, Dr Brown, item 1, second paragraph, it refers to consultation, does that consultation refer to the actions of the parties, that is the University and its - through the workplace consultative committee - consultation in relation to avoid forced redundancies at the University?---No, it does not. The consultation refers very specifically to consultation over criteria that would be used in declaring staff involuntarily redundant, and it notes there that the Vice Chancellor also reminded staff of their positions, going to phase 2, I'm looking on that - by David Nicholson, and perhaps if I can refer to the Vice Chancellor's email which is dated, I think, 1 May, that's the document to which we're referring.

PN668

THE SENIOR DEPUTY PRESIDENT: Document 11, I think?---Yes. Yes, it says - the Vice Chancellor notes in the second paragraph of the 1 May document that, "It seems probable that the targets" - - -

PN669

What page is that, Dr Doughney?---That's on page 4, your Honour.

PN670

Yes?---It's the - under the subheading, On Staff, it's the second paragraph.

PN671

Yes?---

PN672

Probable minimum number that we set as targets or changes in the staff profile for the 2006 budget will not be achieved.

PN673

This is the paragraph we've discussed before, Mr Thomas, that indicates that 50 to 61:

PN674

As a result the University will need to initiate some forced redundancies in May. Discussions have been underway with the executive deans about criteria. The criteria will be available shortly for a period of - a brief period of community comment before those staff whose positions are redundant are notified.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN675

There's no reference in that to 11.3 and the University's obligations under it.

PN676

MR THOMAS: Perhaps you can clarify something too, Dr Doughney. In the minutes of the workplace consultative committee from page 2, pages 1 and 2, under "No clear apparent rationale for redundancies", Mr Nicholson, according to the minutes, states that, "The target had always been approximately 52 or around that and that the numbers at the moment, approximately 55," and then - now, that's 55 on 16 May, yet in the Vice Chancellor's email of 1 May Mr Nicholson advises that the figures are in fact above that?---I think that - if I may interpret the University's position, is that 61 had lodged expressions of interest and 55 had been proceeded to application, so that there's a distinction of where they are in the process. So I'm not - I don't think there's any particular problem with the numbers. It's just that they're at different stages of the process. I guess the point is that 55 is greater than 52 and the target was not approximately 52, but 52, and that was then budgeted for and voted upon by council in December of 2005, before any of this process had gone to consultation.

PN677

Was there any discussion at the workplace consultative committee about the number of voluntary departure packages that the University had offered and the scale of the level of appointments, that is, that they went beyond the D and E and that they covered the full B to E spectrum?---Yes. I think if you turn back a page you'll note in the very full minutes of this meeting, under item 1, Breach of EBA, paragraph 1, 2, 3, 4, 5, you will see that I raised the question, why more academic level C, B and As specifically targeted, and Mr Nicholson confirmed that any position can be targeted for redundancies, to which I asked why weren't level Cs included in the main workforce renewal document and you see David Nicholson's response to that. I'd also raised that question at an earlier meeting of the resources committee and was told that at that point, in no uncertain terms, that the decision to target Cs was in the budget. In fact, Mr Nicholson left the room to get the budget, came back and quoted it to me.

PN678

And is the project, the workforce renewal project, is it at an end?---The workforce renewal project is rather a difficult thing to pin down. There was the original workforce renewal project and there's the current workforce renewal project. The original workforce renewal project aimed to re-profile, to use a phrase that was used, the University staffing by encouraging people at higher levels, C, D and E, to leave the University and that that would be supplemented by employing staff at levels A and B. The document stated that I think in the end what was proposed in the budget was re-employment at level A. So that was the original workforce renewal project. It had some reference to forced redundancy if that target, the University's targets were not met. However, phase 2 of the workforce renewal project seemed then to open up a different approach. It was targeted down to the level of particular schools and the particular circumstances of those schools that may well have been cause for the initiation of clause 65 of the EBA were then absorbed into the bigger workforce renewal project. The workforce renewal project has become something of a juggernaut. It certainly has a starting date, although it doesn't seem to have an end date.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN679

THE SENIOR DEPUTY PRESIDENT: Talking of end dates, when's the end date for your examination-in-chief, Mr Thomas? I've given you a great deal of liberty expanding the witness statement. How much longer do you intend to be? I just notice the time. I'm wondering whether we adjourn now or whether we continue. How long do you think you'll be?

PN680

MR THOMAS: Well, we'd be completed very shortly.

PN681

THE SENIOR DEPUTY PRESIDENT: Well, then go on.

PN682

MR THOMAS: Very well. You make reference to a morphing into a workforce renewal program 2?---Phase 2.

PN683

Phase 2, okay. Given what we argue as, you know, the intent of the agreement, are you aware of any academic staff who were potentially notified of
redundancy - who came up with an alternative of redundancy that was rejected by the University?---I'd be taxing my memory on that, Mr Thomas.

PN684

Can I perhaps take you to the - and it hasn't been sworn in yet, but we'll take it as face value - the witness statement provided by the University on - in fact by Ms Sue Thomas, for the University's submissions?---Yes, I have them here somewhere.

PN685

Do you have the University's submissions?---Just bear with me. No, I think you might need to pass it to me, Mr Thomas.

PN686

THE SENIOR DEPUTY PRESIDENT: Yes, it's being given to you now, Dr Doughney.

PN687

MR THOMAS: I take you to paragraph 41?---Paragraph 41?

PN688

Yes. Take two minutes to familiarise yourself with that paragraph, Dr Doughney?---Yes, Mr Thomas.

PN689

Okay. It starts by stating that 44 academic positions have been advertised on the University's web page under Vacancies in the first half of this year. Are you aware of any members of academic staff who were offered transfer or re-deployment into any of those vacant positions?---I'm not, Mr Thomas.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN690

You're not.

PN691

THE SENIOR DEPUTY PRESIDENT: It would be unlikely, would it not, given that Ms Thomas goes on to say that none of those who have been notified of redundancy appear to have the appropriate qualifications or experience.

PN692

MR THOMAS: Yes, well, that may be the blank statement, but I asked the question in the second half of that paragraph, your Honour, where discussion takes place with Professor Finkelstein advised Ms Thomas that there is one staff member who does appear to have the necessary qualifications for one of the advertised positions:

PN693

However that position would not have been suitable for the staff members as the position is at level A, whereas the staff member is currently at level C.

PN694

Given your understanding of the merit based system of academic classification, Dr Doughney, could you explain what circumstances a level C academic was not suitable to fill a position at level A if they had the necessary qualifications?
---There wouldn't be any because of - - -

PN695

THE SENIOR DEPUTY PRESIDENT: Isn't the point simply that that person will be suffering a reduction in salary, or have I missed the point entirely?

PN696

MR THOMAS: Well, that would be the real effect, that would be the - - -

PN697

THE SENIOR DEPUTY PRESIDENT: That's what Ms Thomas is saying, isn't she, there, that that person is not suitable because that person is being paid at level C and the advertised position is at level A?

PN698

MR THOMAS: As an alternative to redundancy it would be a genuine option.

PN699

THE SENIOR DEPUTY PRESIDENT: Well, that's a different issue. But that's what that's saying. Not that the person is not qualified.

PN700

MR THOMAS: Well, it goes to, with respect, your Honour - - -

PN701

THE SENIOR DEPUTY PRESIDENT: So we can leave merit out of it, can't we? It's not a question of merit. It's a matter of classification level.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN702

MR THOMAS: Yes, well, it's on merit by which academic staff are classified, an academic is an academic irrespective, based on merit, experience, qualifications and achievements, determines whether they are then remunerated at A, B, C or D, they are still an academic.

PN703

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I've engaged you in a debate which is better left to submissions. Just ask your next question. Just ignore me. Ask your next question.

PN704

MR THOMAS: All right. I have no further questions for Dr Doughney at this stage.

PN705

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN706

MR O'GRADY: Your Honour, before you adjourn I assume that Mr Thomas intended to tender the witness statement in reply that Dr Doughney has prepared.

PN707

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to do that, Mr Thomas?

PN708

MR THOMAS: I'm sorry, I - - -

PN709

THE SENIOR DEPUTY PRESIDENT: Dr Doughney's witness statement in reply, do you want that tendered?

PN710

MR THOMAS: Yes.

PN711

THE SENIOR DEPUTY PRESIDENT: Do you?

PN712

MR THOMAS: Yes.

PN713

THE SENIOR DEPUTY PRESIDENT: Well, we'll deal with the formalities now and then it will be in evidence. Do you have a statement you made in reply, Dr Doughney, dated 4 August 2006 that goes to 20 paragraphs?---Yes, I do, your Honour.

PN714

Are its contents true and correct?---They are.

PN715

Any changes you want to make?---No, your Honour.

**** JAMES RICHARD DOUGHNEY XN MR THOMAS
PN716

Do you wish to tender that?

PN717

MR THOMAS: Yes, I do, your Honour.

EXHIBIT #A3 STATEMENT IN REPLY OF DR JAMES RICHARD DOUGHNEY DATED 4/08/2006

PN718

THE SENIOR DEPUTY PRESIDENT: Yes. We'll adjourn now until 10.15 and you'll be subject to cross-examination in the morning, Dr Doughney.

<THE WITNESS WITHDREW
<ADJOURNED UNTIL TUESDAY 8 AUGUST 2006 [4.36PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

RUSSEL BAADER, AFFIRMED PN269
EXAMINATION-IN-CHIEF BY MR THOMAS PN269
EXHIBIT #NTEIU A1 STATEMENT OF RUSSEL BAADER WITH ATTACHMENTS PN301
CROSS-EXAMINATION BY MR O'GRADY PN353
RE-EXAMINATION BY MR CULLINAN PN526
THE WITNESS WITHDREW PN551
JAMES RICHARD DOUGHNEY, AFFIRMED PN556
EXAMINATION-IN-CHIEF BY MR THOMAS PN556
EXHIBIT #NTEIU A2 STATEMENT OF JAMES RICHARD DOUGHNEY WITH ATTACHMENTS DATED 10/07/2006 PN567
EXHIBIT #A3 STATEMENT IN REPLY OF DR JAMES RICHARD DOUGHNEY DATED 4/08/2006 PN717
THE WITNESS WITHDREW PN718