C2007/2682, Transcript of Proceedings [2007] AIRCTrans 326 (3 July 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 17043-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER LARKIN

C2007/2682

s.120 - Appeal to Full Bench
Appeal by Charles Sturt University
(C2007/2682)

SYDNEY

10.04AM, TUESDAY, 19 JUNE 2007

PN1

MS C PUGSLEY: I appear for the Australian Higher Education Industrial Association on behalf of Charles Sturt University, which is a member of that association. I appear with a fellow employee of our association MR D WEDGWOOD and MR M WILSON, who is an officer of the university. If the Commission pleases.

PN2

Mr REITANO: I seek leave to appear on behalf of the CPSU.

PN3

JUSTICE GIUDICE: Is there any objection to leave, Ms Pugsley?

PN4

MS PUGSLEY: No, your Honour.

PN5

JUSTICE GIUDICE: Leave is granted.

PN6

MR N QUINN: I appear on behalf of the Liquor, Hospitality and Miscellaneous Union.

PN7

JUSTICE GIUDICE: Yes, Mr Quinn. Ms Pugsley?

PN8

MS PUGSLEY: Thank you, your Honour. This is an application by Charles Sturt University under section 120 of the Workplace Relations Act 1996 for leave to appeal to a Full Bench against a decision made by Commissioner Raffaelli in print PR976625. A copy of that decision I believe appears at tab 2 of the Appeal Book. As members of the Bench would be aware from the material that has been filed this is a dispute about the interpretation of a particular subclause of the certified agreement. It's subclause 42.5 of the Charles Sturt University Enterprise Agreement 2005-2008. A copy of the agreement is the last document that you will find in the Appeal Book.

PN9

Clause 42 is the clause in the agreement which sets out procedures for dealing with allegations of misconduct or serious misconduct against an employee of the university, and in particular subclause 42.5 provides as follows:

PN10

The Vice Chancellor may suspend an employee pending completion of an investigation into possible serious misconduct by an employee.

PN11

As is set out in the first paragraph of Commissioner Raffaelli's decision, the way that this matter has come before the Commission is that a dispute was notified by the CPSU, which is one of the unions party to the agreement, under section 170LW of the pre reform Act, where the university suspended a CPSU member, one Philip Stephens, without pay during an investigation which was being carried out pursuant to clause 42. Commissioner Raffaelli found that on proper interpretation of subclause 42.5 the university was not entitled to suspend Mr Stephens without pay, and it's our respectful submission that the Commissioner erred in so finding.

PN12

We've filed an outline of submissions which I will talk briefly to as well as making some brief comments in relation to the submissions which have been filed by the other parties, if the Commission pleases.

PN13

JUSTICE GIUDICE: Yes, thank you.

PN14

MS PUGSLEY: Our first ground of appeal is that the Commissioner has erred in the principles to be applied in interpreting clause 42. Since I'm going to be referring a great deal to a particular case I just want to confirm that I'm pronouncing it correctly. K-u-c-k-s. I'm not sure if anyone knows what that is Kucks or Kucks case.

PN15

JUSTICE GIUDICE: Kucks sounds good.

PN16

MS PUGSLEY: Kucks sounds good. K-u-c-k-s, and I understand that a copy of the authorities on which we intend to rely has been handed up to members of the Bench. I'll just confirm that it's been handed to the other parties as well.

PN17

JUSTICE GIUDICE: Thank you.

PN18

MS PUGSLEY: The clause that we quote in paragraph 4 of our submissions is the well known clause from that case. And with respect to the Commissioner we say that he gave the clause the kind of narrow, pedantic reading which we say offends that principle of Kucks's case that a narrow or pedantic approach as to the interpretation of the award in this case. Just for completeness - Mr Quinn will have an opportunity of course to respond to this - but I believe at 3.9 of the LHMUs submissions they appear to object to reliance on Kucks's case on the basis that it was a case about award interpretation and not about interpreting a certified agreement.

PN19

Perhaps I've misquoted Mr Quinn's submissions, but be that as it may notwithstanding that in Kucks's case the task is to interpret an award clause. The approach was approved in the Ansett case and the AMIEU case which we have also handed up. In particular on page 212 of the AMIEU case Northrop J - this is at page 212, it's the end of the second full paragraph just before he sets out the same quote from Kucks, and he notes that the principles in Kucks have even stronger application to certified agreements.

PN20

Northrop J also notes at the beginning of the second full paragraph that the increase in the number of certified agreements - he was writing in 1998 - gives rise to an area of possibly greater dispute as to construction provisions contained in agreements. One could almost say that he could have said that again. I think all of us in this room have been involved in a large number of 170LW disputes over the years.

PN21

What we say the Commissioner's unduly narrow reading of the clause has led to is a conclusion where even where an employee has committed the kind of serious misconduct which would ordinarily justify removing the employee from the workplace, I think in the initial proceedings Mr Wedgwood gave the example of employees engaged in a physical fight, or indeed in the present case which involved a very serious misuse of the university computing facilities. Exhibit CSU2 in the previous proceedings - I'm just not sure which tab I can direct you to in the Appeal Book - tab 6 marked CSU2. I beg your pardon, CSU1. I beg your pardon, it's appendix 2 to CSU - CSU1 was the affidavit of Mr Wilson, and the second appendix was the letter of allegations that went to Mr Stephens, the former employee.

PN22

It's a detailed document and runs to some nine pages setting out some allegations ...... So the effect of the Commissioner's decision is that in such cases the only option for the university is that they can remove the employee from the workplace on full pay. And even if it is subsequently found that the employee has engaged in the type of conduct that would ordinarily justify summary dismissal under the Workplace Relations Act, the university would still be bound to pay the employee for the period in which the investigation process set up under clause 42 has taken place.

PN23

As I understand it, ultimately in this case I think it's a question of about three weeks pay now that's in dispute in respect of Mr Stephens. I'll just take instructions on that. I'm instructed it could be between three and six weeks pay. But that in itself is not - Mr Reitano is of the view that it might even be three months, which I think just exemplifies the point that I'm making. This could be a significant amount of money which the university is obliged to pay, only to find at the end of the investigation that really the person has committed the sort of misconduct for which we'd ordinarily not have to pay notice.

PN24

JUSTICE GIUDICE: It's not possible to terminate the employment of a person in the position of Mr Stephens without an investigation, is that the position?

PN25

MS PUGSLEY: No, your Honour. And this is partly where the complexity of the terms of the certified agreement and the complexity of the context of the negotiation for the certified agreement becomes important, because, as I'll come to shortly, and as the evidence of Mr Wilson showed and the submissions of Mr Wedgwood, not only are we negotiating in an environment where we have traditional academic staff awards, which I think your Honour's quite familiar with.

PN26

JUSTICE GIUDICE: Yes.

PN27

MS PUGSLEY: You know, the unique regime that's set up in those awards, it becomes extended in some cases to general staff. This is a situation in which I understand that this particular university had formerly had an academic staff agreement and a general staff agreement they were telescoping into the one agreement, as well as the issue of being required to comply with the new government funding requirements or risk significant - the jeopardising of significant funding. So there is a very big issue about - and this came out in the evidence before Commissioner Raffaelli - a very big issue about the fact that summary dismissal for general staff was a trade off so to speak, or the loss of it, for retaining the ability to suspend without pay.

PN28

Summary dismissal for academic staff has never been possible under the regime that was set up under the award. Of course that award has now been simplified but the provisions have been retained in the certified agreements. I think probably the most celebrated case was Ted Steele v University of Wollongong, where I think in that case the university purported to remove Dr Steele without going through the process in the certified agreement, and the Federal Court found that they were not entitled to do so.

PN29

To return again to the quote from Kucks's case, a principle established in that case is that meanings in certified agreements which avoid inconvenience or injustice may reasonably be strained for. And we say this is one such case. The words in the agreement are may suspend. It doesn't say whether suspend on full pay or suspend without pay. We say that an interpretation which allows the university to suspend without pay is one that may reasonably be strained for in order to avoid injustice for the reasons that I've mentioned before.

PN30

It's also a principle of Kucks's case that you may search for the meaning which was intended by the framers of the document. And here we get into the evidence that was before Commissioner Raffaelli where, on the one hand Ms Thomson of the CPSU had a view about the intention, Mr Wilson had a view about the intention, and that evidence was before the Commissioner. I note that the CPSU, and again they can speak for themselves, but as I understand paragraph 5 of their submissions their view is that we are attempting to ignore the words of the agreement in favour of that email of Mr Wilson's which was attached to his witness statement.

PN31

We say that it's wrong - and of course in that email he made it very clear to Ms Thomson that the university wanted to retain the right to suspend without pay in exceptional circumstances. So on the one hand you've got the agreement which has only the word suspend, no mention of whether it's suspend on full pay or suspend without pay, on the other hand you have the email which explicitly tells the industrial officer who is negotiating the agreement that the university's intention was to be able to retain the right to suspend in exceptional circumstances without pay.

PN32

The LHMUs submissions at paragraph 2.7 suggest that in order to find in our favour for the construction of the agreement it's necessary as they say to elevate the contents of this email to the level of the certified agreement as if they appeared in the certified agreement or, at 2.17 of their submissions, to prevail over the certified agreement. We say, with respect to the LHMU, that that's over stating the case. We say that it's appropriate for the Commission to look at the contents of the email in order to assist in understanding what the parties to the document intended to mean by the word suspend.

PN33

A minor point that I'll raise because it's been raised in submissions by the LHMU is that at 2.15 of the LHMUs submissions they appear to purport to know what the employees who voted on the agreement would have understood by the clause. It seems to me that this is a submission which should be dismissed by the Full Bench for this reason; it's absurd. And to illustrate the absurdity of this it's trying to get into the minds of the employee who voted on the agreement. We only know evidence of the minds of some of the people who may or may not have voted on the agreement, and those are those other four, I think, three or four staff members who had - one academic and three general staff who had previously been suspended without pay in exactly the same circumstances as Mr Stephens, and who had subsequently not raised a dispute over whether or not the university had been entitled to do so.

PN34

I understand there was some cross-examination of Mr Wilson in relation to, I think it was one of the LHMU members who might have taken some issue about their suspension. But this is the first time that it has been raised as a formal dispute under section 170LW, but it was not the first time that employees had been suspended without pay. That evidence by the way appears at paragraph 8 of exhibit CSU1, which is Mr Wilson's affidavit.

PN35

A further principle from Kucks's case is that it is appropriate to have regard to the context of the relevant industry and industrial relations environment. That principle is also enunciated in the ATO case which appears in the materials, and the Hingston case. And in regard to the ATO case I'll refer you in particular to paragraph 57 on page 14, in which a Full Bench of this Commission found that the industrial context in which an agreement is negotiated is relevant to determining the mutual intentions of the parties to the agreement.

PN36

We've already touched on the particular complexities and unique attributes of the industrial environment in which parties are negotiating in the higher education sector, and there are two limbs to that industrial context. There is the history of the clause relating to how universities deal with allegations of misconduct or serious misconduct, and there was also the environment in which the negotiations were taking place, that is, the environment in which the Federal Government had enacted the Higher Education Workplace Relations Requirements, normally known as HEWRRs, at which a great deal of - yes, the HEWRRs from DUA. But sometimes it's difficult - I think all members of the Bench have some familiarity with the higher education sector to a greater or lesser degree, but sometimes I think those of us who operate solely in that sector tend to get stuck in the jargon a bit.

PN37

But the HEWRRs are the Higher Education Workplace Reform Requirements, and they had a profound effect on the content of certified agreements in the most recent bargaining round in the sector, both pre reform agreements and the post reform agreements. As far as the history of the provision is concerned that is set out in exhibit CSU2. It makes it even more complicated in this case, but we have CSU and CPSU, so I'm trying to be clear that CSU2 is Charles Sturt University 2, which is behind tab 6, and paragraph 6 to paragraph 12 set out the history of the disciplinary procedures in the agreement.

PN38

Obviously in many if not most cases like this the history of a clause that's been interpreted is not quite as important as in this case, and it won't necessarily always be important, but this is a unique industrial context. I don't know - to turn to paragraph 6 - I don't know if members of the Bench apart from the President have any familiarity with what was known as the Bryant Award, which was the award which had university conditions in it, known as the Bryant Award.

PN39

JUSTICE GIUDICE: I wouldn't assume I remember too much about it.

PN40

MS PUGSLEY: That award was, as I say, obviously it's since been simplified and of course we've had the Work Choices amendments as well, but in summary the provisions of the award were retained to a greater or lesser degree, or to a more or less exact degree in all certified agreements within the sector, certainly all certified agreements covering academic staff. And as we've set out in paragraph 7, that the award established the procedures for dealing with misconduct and serious misconduct over time including university agreements, and sometimes they were extended to general staff as well as academics.

PN41

Another complicating factor in the negotiating context here, as I've mentioned this, but some universities have historically had separate agreements covering general staff which may or may not have had Bryant style procedures in them. Some universities, as Charles Sturt does now, have agreements covering all staff, and in those cases it's much more likely that the Bryant provisions have been extended, as it were, to general staff on exactly the same basis as they applied to academic staff.

PN42

And a critical component of the misconduct procedures under the Bryant Award was the removal of summary dismissal for academic staff. And the compensatory provision, as we say in paragraph 8, was clause 12(c) of the award, which allowed the CEO to suspend an academic without pay in circumstances where summary dismissal would otherwise be available to the CEO. And at the next paragraph, which is paragraph 9, we set out clause 12(c):

PN43

At the time of notifying the academic of the allegations the CEO may suspend the academic on full pay or may suspend the academic without pay if the CEO is of the view that the alleged conduct amounts to conduct of a kind envisaged in section 170DB(1)(b) of the Act -

PN44

As it was then:

PN45

- such that it would be unreasonable to require the employer to continue employment during the period of notice.

PN46

And just for completeness I add that at that part in the proceedings where the allegations were then referred to an investigation committee, the first task of the investigation committee was to determine if there had been a suspension without pay, was for that committee to determine whether that suspension without pay should be revoked. So in other words it was possible for the university to suspend without pay and subsequently not have to repay the employee if the committee agreed with the CEO.

PN47

We then set out in CSU2 the text of the previous academic staff agreement and previous general staff agreement which apply to Charles Sturt University. As I mentioned there were those two agreements, and now from 2005 there is the one agreement. So 33.5 of the academic staff agreement referred again to suspending the employee on full pay or without pay again if the VC was of a view that it was a serious misconduct, to use a shorthand term, and likewise 41.5 of the general staff agreement was in the same terms. Whereas the clause which is the subject of the dispute in these proceedings, subclause 42.5 of the current agreement, now provides only that the vice chancellor may suspend an employee pending completion of an investigation into possible serious misconduct by an employee. So the words full pay have gone and the words without pay have gone.

PN48

So the second limb of the industrial context is the negotiations taking place in an environment where agreements had to be substantially different from the way that they had been before, in particular in regard to the level of detail, in order to comply with the HEWRRs. And there was also a date by which the agreements had to be certified. I think that was 30 November 2005. As I recall this was the deadline by which date if the universities did not have an agreement in place, well, then they wouldn't get the funding. So I think we had two days before SDP Watson, and one was on 22 November and one was on 29 November, and - I can't remember - Charles Sturt I think was 22 November.

PN49

Exhibit CSU1, which is Mr Wilson's affidavit, describes this environment at paragraphs 3 to 6. As Mr Wilson explained in his affidavit, that the negotiations leading up to the agreement were conducted in a manner to comply with the HEWRRs. HEWRR number 3 states that:

PN50

Workplace agreements must be simple, flexible and principle based documents which avoid excessive detail and prescription.

PN51

"Higher education providers -" this is at paragraph 4:

PN52

- can demonstrate this in one way perhaps by contrasting current and previous collective agreements. For example our current collective agreement is 60 pages long whereas our previous agreement was 200 pages long.

PN53

And in fact I think there are many examples of that. The Charles Sturt agreement I note is 63 pages long. And Mr Wilson goes on to say that:

PN54

Clause 42, which is the misconduct and serious misconduct clause, was one of a number of clauses simplified in order to comply with the HEWRRs. In the old agreement this clause was five pages long, and in the new agreement it was reduced to one and a half pages. This included removing nine paragraphs, ie, one page on excessive detail relating to the suspension from duty and exclusion from campus during suspension. Although excessive detail and prescription was removed from clause 42 it was never the intention of the university to forego the right to suspend an employee without pay during the investigation into allegations of serious misconduct.

PN55

And that's where Mr Wilson says and we submit that his email, which is appendix 1 to the affidavit, comes into consideration by the Commission. At paragraph 7 of the email - appendix 1 is a series of emails between Mr Wilson and Ms Thomson, the negotiator for the CPSU. Mr Wilson's affidavit is beginning at the front of appendix 1, is the last in the chain of emails, and at paragraph 7 Mr Wilson has emailed:

PN56

We are willing to remove the reference to suspension without pay from the EA although we reserve the right to do so in exceptional cases of serious misconduct.

PN57

You can see that the email from Mr Wilson, or the final email from Mr Wilson that appears on the front of appendix 1, was written on Sunday 9 October 2005 at 4.59 pm, and it also refers to, at the third paragraph, the university executive meeting on Monday morning. So here's an email that's written at 4.59 on a Sunday, the university executive is meeting on the Monday morning to determine the final position, and the vice chancellor has advised that he wants the final document posted on the university website on Tuesday morning to represent the start of the 14 day consideration period prior to the opening of the staff ballot period.

PN58

There was a lot of evidence before Commissioner Raffaelli about, well, just whereabouts in the proceedings in terms of the time period does this email occur? We say that when you look at the requirement to have the agreement certified by 13 November, the requirement for the ballot period, the requirement for the university executive to approve it and so on, the 9th of October is really not a very long way away from 30 November. And in fact the email refers to, as I've mentioned, refers to the final position in paragraph 3.

PN59

There is evidence which I will come to later. It's not that Mr Wilson was not cross-examined on this point, and I'll take you to the other parts of the transcript shortly. Now just to touch on the issue of summary dismissal. At paragraph 7 of exhibit CSU1, Mr Wilson's affidavit, he states that:

PN60

Further evidence to support the university's position -

PN61

That is the position set out in the email:

PN62

- was our claim to have a clause on summary dismissal for serious misconduct included in the agreement. The unions would not agree to such a clause, and at one stage the university seriously considered a non union enterprise agreement. In subsequent negotiations it was agreed that the university would withdraw the claim for a summary dismissal clause for serious misconduct if the unions withdrew their claim for no suspension without pay during the investigation into allegations of serious misconduct.

PN63

The submissions of the LHMU at paragraph 3.11 states that:

PN64

The CPSUs aim to remove the reference to suspension without pay was consistent with the prevailing industrial environment where the parties had a long standing agreement that summary dismissal of employees would not occur.

PN65

And it refers to paragraph 7 of CSU1. Again this exemplifies the complexity of the industrial environment. It's not the case that there was a long standing agreement that there would be no summary dismissal of general staff for Charles Sturt University. What our submissions have said, or pointed out, is that the suspension without pay was a trade off in the Bryant Award and the academic environment for the fact that you cannot terminate, summarily terminate an academic employee.

PN66

With regard to general staff it was a question of what was actually in each certified agreement and, in fact, the previous certified agreement - and I'm not sure if it would assist the Commission if I handed up a copy of the relevant clause. Since it's been raised by the LHMU in its submissions, just to demonstrate that there was once a summary dismissal clause in the previous agreement for general staff and there is no more.

PN67

JUSTICE GIUDICE: Is that contested? If it's not contested I don't think there's any need to hand it up.

PN68

MR REITANO: No.

PN69

JUSTICE GIUDICE: Yes, thank you.

PN70

MS PUGSLEY: So if you were to turn to the previous general staff agreement at clause 39 you would find that there is a sentence allowing the vice chancellor to summarily dismiss an employee, notwithstanding the fact that the Bryant style provisions also appeared. But of course summary dismissal was only available in the cases in which it would normally be available under the Workplace Relations Act.

PN71

Much was made in the proceedings and in the union's submissions in these proceedings of the fact that the words without pay have gone out. The LHMU submit at clause 2.6 of their submissions that the words were consciously voted out. Well, for every occasion on which that submission is made the counter argument of course is that the words on full pay were also voted out. So you can't have one without the other. If I can now take you to exhibit CPSU5 which is behind tab 5. CPSU5 is clause 41.5 of the previous general staff agreement. And you will see that under that regime the VC could suspend an employee on full pay in any circumstances once the allegations have been made, but could only suspend the employee without pay if the VC was of the view that the alleged conduct which amounted to essentially conduct justifying summary dismissal.

PN72

If you then look at the current subclause 42.5, as I've said, it removes both the reference to full pay and the reference to without pay, but it limits the circumstances of suspension to those cases which under the previous provision would have allowed for suspension without pay, that is, an investigation into cases of possible serious misconduct. And both misconduct and serious misconduct are defined in the certified agreement. Misconduct is defined at page 4 as conduct which is not serious misconduct as defined, but which is nonetheless conduct which is unsatisfactory. And serious misconduct is defined as serious misbehaviour or improper conduct of a kind that constitutes a serious impediment to the carrying out of an employee's duties or to an employee's colleagues carrying out their duties, or serious dereliction of the duties required of the academic office or position held by an employee, conviction by a court of an offence which constitutes a serious impediment of the kind referred to in the first paragraph and/or theft, bullying, serious assault or sexual harassment.

PN73

So clause 42.5 in itself looks more like that part of the previous clause which referred to suspension for serious misconduct rather than suspension in cases of misconduct. The second issue that we've raised on appeal relates to paragraphs 15 to 17 of the decision of Commissioner Raffaelli, in which he finds:

PN74

The starting point for any issue such as this are the words of the instrument. It provides for suspension ...(reads)... under the contract of employment as to pay.

PN75

While that all may be correct, with due respect to the Commissioner, he has not really explained how he arrives at that conclusion by reference to the particular evidence that was available to him at the time. I think perhaps the CPSU at paragraph 8 might have misunderstood the point that we were making there, or I might not be explaining it very well. It's not we say that there was no evidence available, but we say that in those paragraphs of his decision the Commissioner doesn't seem to have considered it in arriving at that conclusion.

PN76

We also say that, with respect, the Commissioner erred by relying on clause 15.2, which is the payment of salaries clause, and clause 38, which is the abandonment of employment clause, to interpret clause 42 of the agreement. Clearly it's a good principle. The other clauses within a certified agreement may provide assistance in interpreting a particular clause but, with respect, we say in this particular instance it's not of assistance.

PN77

Clause 15.2 is a payment of wages clause, which it's a procedural machinery type clause. It provides for how and when an employee will be paid, that is, an employee will be paid fortnightly and by electronic funds transfer. It's not a clause which provides for the obligation to make payment to the employee and, in fact, I would submit that there is nothing within the whole of Part 2 of the agreement, which is salaries and related matters I think, in which it then agrees - sorry, appears, which provides for, you know, explicitly for that obligation to make payment.

PN78

Not of course that there isn't a common law obligation to make payment of wages, but we submit that 15.2 is not the clause which provides that obligation or which describes that obligation. I think the LHMUs submissions at their paragraph 2.12 actually refer to Part 4 of the agreement rather than Part 2 of the agreement. Part 4 of the agreement talks about types of employment. Again, the unique conditions of this industry, that the probationary employment, the continuing versus fixed term versus casual, and so on and so on, again I would submit that if the LHMU is meaning to refer to Part 4, again that's not the part of the agreement which describes the obligation to pay wages. It just describes the kinds of employment.

PN79

The abandonment of employment clause at 38.3 does contain the words suspension without pay. It's on page 29 of the certified agreement, which is the last document in the Appeal Book. And at 38.3 it sets out the process that happens after the university's made inquiries about whether the employee intends to return. If there is no response to the university's letter within five working days the employee will be suspended without pay. If indeed that actually is suspension, given that the employee has already absented themselves from the workplace, it's clearly of a different kind as to that envisaged under the misconduct regime.

PN80

Under the misconduct regime you're removing the employee from the workplace because you reasonably believe that they have committed serious misconduct of a kind which would justify you removing them on a permanent basis. As I say, with abandonment of employment it's the employee who has already chosen to absent themselves from the workplace so there's no requirement to suspend them. It seems to be rather strange drafting for an abandonment of employment clause, but again if there is infelicitous drafting so to speak, firstly, it exemplifies the complexity of the negotiations and, secondly, it's not just the university drafting this agreement.

PN81

The evidence before Commissioner Raffaelli was that Graham McCulloch, the general secretary of the NTEU was involved, David Carey, the general secretary of the CPSU, David Mendelssohn, the legal officer from the CPSU, and yet in spite of the minds who went into the agreements some infelicitous drafting seems to exist. At paragraph 24 of Commissioner Raffaelli's decision he points out that there is no specific term authorising suspension without pay within the agreement.

PN82

We've already made the point that the evidence of Mr Wilson was that that is so because he believed that the clause of itself entitled the university to suspend without pay.

PN83

SENIOR DEPUTY PRESIDENT HAMBERGER: Isn't the problem that the evidence is that there was in fact no meeting of minds? If you look at transcript reference PN239, Mr Wilson's evidence was that, well, they sort of agreed on the words to put down on paper but they didn't really agree, the parties didn't really agree on what they meant. He said it was a matter of contention. We kept silent on it because both of us could sell it to our respective sides. But there was in fact no real agreement in that sense on what the words meant.

PN84

MS PUGSLEY: I certainly see the point that you're making, your Honour. I guess what we can say about Mr Wilson's email is that we know clearly what was in his mind was that he understood. I certainly understand the point that you're making.

PN85

SENIOR DEPUTY PRESIDENT HAMBERGER: But why don't you need, you know, aren't we trying to find the mutual intent here? And the problem is there seemed to be a mutual intent.

PN86

MS PUGSLEY: Perhaps there was no mutual intent. It may be significant - I guess we don't know. We know Ms Thomson gave evidence, we know her view. There is a difficulty I think in the fact that the other key players, that is Mr Carey, Mr Mendelssohn and Mr McCulloch, chose not to give evidence, so we don't know what their intentions were.

PN87

SENIOR DEPUTY PRESIDENT HAMBERGER: It's just that even on Mr Wilson's own evidence it suggests that accepted that the union didn't certainly accept his interpretation.

PN88

MS PUGSLEY: I accept the point you're making. The Commissioner found, at paragraph 19, that emails from the university setting out its position, as you pointed out, your Honour, was the university's position, is, as Ms Thomson says, a snapshot. Well, with respect, even if that's correct we don't really know the basis on which the Commissioner decided that. It essentially ignores Mr Wilson's evidence in favour of Ms Thomson's evidence, because the explicit evidence of Mr Wilson was that it was not a snapshot. This is at paragraph 227. He explicitly said so twice, it was not a snapshot, he says at paragraph 227. And then in the following paragraph he was cross-examined on it as to whether - he was cross-examined, I beg your pardon, as to whether the positions had moved over time, and he said explicitly not on this matter "Not on this matter, no."

PN89

And as I mentioned earlier, close examination of appendix 1 to CSU1, which is the email, strongly suggests that this was much closer to the end game of the negotiations rather than a snapshot during the negotiations. It may be that the Full Bench considers that nothing turns on that issue. But if the Bench is minded to consider whether or not they should prefer Mr Wilson's evidence or Ms Thomson's evidence, I think it's important to remember, firstly, that Mr Wilson did provide a sworn statement. As is clear from the transcript, Ms Thomson was the advocate as well as the witness for the CPSU and began essentially by giving her evidence as advocate until it was agreed that it was appropriate to have her sworn in.

PN90

Again, nothing may turn on this, but her evidence is internally inconsistent at paragraphs 141 and 146. This is in regard as to who was involved in the negotiations. She refers to Mr Carey and Mr Mendelssohn having been present at teleconferences. And then at paragraph 191 she recalls that - when she's no longer sworn in, and to give credit to Ms Thomson, the Commissioner didn't think it was necessary to re-swear her - but she jumps up and says "Oh I forgot, and Graham McCulloch actually was there," which is not an insignificant inconsistency in my opinion given the status of Graham McCulloch as the general secretary of the major union in the industry.

PN91

I think, your Honour, as you've mentioned, there is a difficulty in understanding just what were the mutual intentions of the parties. We do have Mr Wilson's intention. It is unfortunate that we don't have the NTEUs intention, especially given that the Commissioner essentially invited the NTEU to come along - this is at paragraph 7 in the proceedings - he said after all it is their agreement, they should be here. And Ms Thomson stated that she could provide further evidence but in fact chose not to do so.

PN92

I think the words at paragraph 7 was, well, the NTEU need to be part of this. That's right:

PN93

We need to be part of it because we're interpreting the agreement in their absence.

PN94

Well, the LHMU has chosen to intervene in these proceedings, but the NTEU has not.

PN95

JUSTICE GIUDICE: Ms Pugsley, something that's puzzling me a little bit about what was happening in these discussions, and I've been looking at paragraphs 238 and 239, Mr Wilson expresses this strong view, which he gives evidence about, that the university wouldn't agree to have the words with pay put into the amended provision, new provision. The next question that's asked at 239 is why agree to any change? It's giving me a little bit of difficulty, as Mr Wilson did too apparently, but I suppose it could be said that what was put by the university was to change the clause and to take any reference to pay out might have been conditional on an acceptance by the union that there was still a right to suspend without pay. I mean, the question that arises is, why agree to anything at all? That seems to be the puzzling thing about it.

PN96

MS PUGSLEY: I think you correctly identified, with respect, that it is a difficult question and that Mr Wilson has said as much, it's a little difficult to answer. It might have been in the context of having about three or four weeks in which to reach an agreement and get it certified in the Commission, otherwise it was about $10m of university funding at stake.

PN97

JUSTICE GIUDICE: Yes.

PN98

MS PUGSLEY: I would say that in those circumstances all that the universities knew was that in as much as they could understand what was required of them under the HEWRRs was that they did have to simplify the agreements, and in many cases these agreements went from 200 pages to 60 pages long. I think in those circumstances it would have been difficult to know what to leave in and what to leave out, bearing in mind of course - and this is the final point I will make - that the email from Mr Wilson is clearly not an email from one law firm to another or even from one industrial association to another industrial association. We're not looking at emails between Mr Wilson and Ms Thomson where they just discuss the niceties, well, what legally does suspension with or without pay, or what does suspension legally mean? It has to be seen in that context as set out by Mr Wilson in paragraph 239.

PN99

JUSTICE GIUDICE: Yes.

PN100

MS PUGSLEY: And as in Kucks's case the requirement to not look at these documents in a narrow way. Can I take a moment?

PN101

JUSTICE GIUDICE: Yes, of course.

PN102

MS PUGSLEY: Yes, one might also ask what the purpose of having a suspension clause at all in the agreement is if all it does then is mirror what would be allowable at common law anyway, that is, to simply keep paying the employee but not provide them with any duties. Now, I understand that that might be a bit of a contentious issue, and I know that Commissioner Raffaelli himself turned his mind to that. There may be some circumstances where you can suspend with full pay without a certified agreement specifically empowering it.

PN103

JUSTICE GIUDICE: I think there are some cases that suggest that in some kinds of employment there's an obligation to provide work.

PN104

MS PUGSLEY: Most definitely, yes. I think Commissioner Raffaelli might have been referring to the meat industry case, Ramsay, where the - - -

PN105

JUSTICE GIUDICE: I think there are cases about doctors too.

PN106

MS PUGSLEY: It was a little different I think in that the employee had been reinstated, and it was after the employee had been reinstated that there was a failure to provide duties to them. So it wasn't - well, perhaps it was a species of suspension. But it may or may not be the case that absent explicit words allowing to suspend, an employer may suspend on full pay.

PN107

Of course we accept that we may only appeal if leave is granted to us to appeal. Section 120(2) provides the mandatory requirements to allow leave to appeal if it's in the public interest. We say that to grant leave to appeal would be in the public interest for a couple of reasons. One is that this case is not just about Mr Stephens. Commissioner Raffaelli himself acknowledged as much, that was at paragraph 7. We know that already there are four other employees who had been in the same position as Mr Stephens, and there may be similar circumstances arising during the life of this agreement. So this is not just a case about one employee, Mr Stephens.

PN108

And we also say that it's in the public interest that industrial instruments provide for a degree of fairness and justice, and for the reasons that I outlined at the beginning, that is, the lack of ability to recover money if it's subsequently found that it would have been justified to suspend the person without pay, coupled with the fact that there is no ability to summarily dismiss an employee, those factors put together mean that if 42.5 is interpreted to mean that there is no ability to ever suspend without pay, then substantial injustice would result to the university.

PN109

The final case that we've extracted is the Wan case. That again talks about principles for granting leave to the effect that the mandatory requirement in section 120(2) is not fettered by the traditional principles for granting of leave, that is, if the original decision was attended by sufficient doubt or substantial injustice would result.

PN110

JUSTICE GIUDICE: In this case it's just a pure question of construction isn't it? It's just a question of what the words mean. If we hear everybody's submissions about that then it's either right or wrong I suppose. From our point of view if we decided that the conclusion was wrong, I think you could assume we'd grant leave to appeal.

PN111

MS PUGSLEY: Thank you, your Honour.

PN112

JUSTICE GIUDICE: Subject to anything Mr Reitano might say to dissuade us of course.

PN113

MS PUGSLEY: Loathe as I am to stray into giving evidence from the bar table, which I don't think this quite is, anyone who operates in the industry, and which my colleagues here do, would be aware that Charles Sturt University is in fact the only university who has removed the words without pay from their certified agreement.

PN114

JUSTICE GIUDICE: Not likely to be many others who do.

PN115

MS PUGSLEY: I beg your pardon?

PN116

JUSTICE GIUDICE: Not likely to be any others who do.

PN117

MS PUGSLEY: No. If the Commission pleases, those are my submissions subject to any questions that you may have and subject to being able to respond to any questions that might arise from the submissions of the other parties. If the Commission pleases.

PN118

JUSTICE GIUDICE: Thanks, Ms Pugsley. Mr Reitano.

PN119

MR REITANO: If it please the Commission. I want to provide you with a map of where I intend to go with my submissions, but could I start by making a general observation that is not intended to deprecate my learned friend's submissions, but really addresses the central issue in just about everything that I am going to put to the Commission and that is this. How many emails does this Commission need or does the Federal Court of Australia need or does the Chief Industrial Magistrate at least in New South Wales need when he comes to interpret any provision of this agreement?

PN120

When one asks that question rhetorically, one sees that there is a solid and sound foundation in the law that has developed about interpreting industrial instruments that my learned friend has referred to that seeks to avoid that very silly proposition and the issue arises at least in my learned friend's submissions at least three times in what was said, variously described about infelicities that appear within, for example, the payment of salary provision, within the provision that is central to this appeal, within the abandonment of employment provision of the agreement.

PN121

Apparently each time one goes to understand each of those provisions, it is said one needs to look at the detail and history of each word that was spoken during the course of negotiations and, with respect, that just cannot be right. Indeed, what we say is that the first step on all the authorities, I don't think one of the authorities wavers from this and that is to give the meaning to the clear and unambiguous words of the provision in question and once one sets out with that solid foundation as reflecting the objectively ascertained mutual intention of the parties, this whole case with respect becomes very simple and very transparent.

PN122

The word suspension has an ordinarily understood meaning. It has a common sense meaning. It is clear, it is not ambiguous, it has an industrial meaning. In this case, there are a number of matters that put the proposition for which we advanced and which Commissioner Raffaelli was attracted to that support that clear and unambiguous meaning. I am going to come to those propositions now. The first, as I said, is the ordinary meaning. The second is the other clauses of the agreement, in particular the abandonment provision which specifically refers to suspension without pay.

PN123

One does not need to go to anything else about that clause other than the fact that where the agreement intended that pay be withheld, it said so. The third is the removal of the words from the previous agreement and your Honour the president raised it. One of the witnesses was asked the question and dealt with it clumsily one can put. Why would you remove the words in circumstances where no different outcome was intended, that is the words with or without pay? Why would you interfere with them at all in any circumstances where what you intended to do was to retain that very right itself, to suspend with or without pay in any given circumstances? Why objectively view, what possible rationale can there be for that at all?

PN124

Fourthly, there is nothing in the agreement that would suggest otherwise, that is that would suggest that suspension somehow meant without pay. The indications that there are within the agreement are quite to the contrary. Fifthly, and we raise this in our written submissions, the email that is relied upon is contrary to the position that the university puts here in any event. If I could just spend a brief moment referring to that. It's found at CSU1 which is under tab I think 14 and it's about halfway down the page and it's point number 7:

PN125

We are willing to remove the reference to suspension without pay from the enterprise agreement, although we reserve the right to do so in exceptional cases of serious misconduct.

PN126

There is nothing in the agreement that would support any right to withhold pay in any circumstances, far less exceptional cases than serious misconduct and, indeed, if the university was to succeed in this case and it's the point that I raise, the only point that I raise against the observation of Your Honour the president in respect of leave, if the university was to succeed in this case, it would have to show that this was an exceptional case of serious misconduct and there was nothing before the Commissioner that would have befitted that description, nothing at all.

PN127

There was no evidence that would have allowed him to come to that conclusion and that's why this case is not about four employees. Even if the university were successful, it fails and that's a reason why leave should be refused, but in any event, the point I wish to make here is the email is contrary to an interpretation for which the university is contending. Had the email said we are willing to remove the reference to suspension without pay - sorry, I withdraw that. If the email had said we are willing to remove the reference to suspension with or without pay, full stop, there may have been a debate.

PN128

Had the email said we're willing to remove the reference to suspension without pay full stop, there may have been a debate, or had the email said we're not willing to interfere with it at all, there wouldn't have been any debate, but once it went into we reserve the right to do so in exceptional cases, it was starkly inconsistent with the position that's being advanced here and that was advanced before Commissioner Raffaelli and in that context, it is entirely and completely unsurprising that the Commissioner came to the correct conclusion that this was a snapshot of negotiations.

PN129

This that is found in CSU1 is but the position that was advanced at that point. It was not a position that at any time found its way into the relevant clause of the agreement, 42.5, or anywhere else into the agreement. It was what was being advanced by the university on Sunday, 9 October, more than a month before the conclusion of the negotiations and nearly two months before the certification of the agreement. What happened in the meantime is unclear, but we know that that position never found its way into the agreement.

PN130

Sixthly - sorry, sixthly was the snapshot point which I have dealt with. Seventhly, we adopt the submission of the LHMU in respect of one aspect and take it one step further, I think, and that is the employees who voted on this agreement, who voted to enter into it did not vote on the email dated 9 October. They voted on the words that were in clause 42.5 and it is quite correct to say that it was those words that were placed before them, it was those words that they were asked to give their consent to in voting for the agreement.

PN131

JUSTICE GIUDICE: Is that the relevant test? If you're looking for a mutual intention or mutual understanding from the parties, would you look at the employees or would you look at the union and the employer?

PN132

MR REITANO: You would look at the words of the agreement in the first place, but you'd look at the parties who had agreed which in this case are the organisation and the employer. That is if we were dealing with perhaps ordinary precepts or concepts of contract law or agreement law. It can be irrelevant to an interpretation of a certified agreement that there is a statutory regime that underpins it that requires employees to vote upon the agreement.

PN133

It can't be, for example, that things are put into agreements which aren't intended to be delivered to those who voted in favour of it or that the Commission would countenance such an approach, that is that there be something in the legislation that required an employee to vote upon something, but nonetheless be misled by it and it's in that context that we put forward the fact that the words of the agreement placed before the employees and certified by the Commission, second limb, but what I was going to say, are the words that should be given effect to in favour of and over and above anything that was said in an email dated 9 October.

PN134

I think eighthly and I was going to come back to this, but it might be convenient to deal with it now, eighthly, my learned friend referred to early on in her submissions and I think towards the ends of it she returned to them the concept of the purpose behind such a provision and how horrible it was that an organisation like Charles Sturt University would have to pay an employee whilst it was investigating an allegation of serious misconduct. Of course, there is another side to that, how horrible it is that an employee who's suspended without pay has to sit at home while the university has thorough and complete and utter control over how speedily an investigation is conducted, takes its time to come to a conclusion about whether or not the employee should be removed.

PN135

Morever, even if, even if on my learned friend's submission the employee ultimately as a consequence of any investigation is exonerated, this clause would provide on the construction that my learned friend advances, provide for the very real prospect that the employee remains without pay for the period of any suspension without any recourse, you've been suspended during our two-year investigation into your misconduct, you've been without pay for two years, we've found that you're not guilty, nothing has been proven against you, come back to work and don't ask for pay for the period of two years.

PN136

The purposive construction really is against my friend, not in favour of her, particularly in circumstances where the agreement does not provide for any time frame for the investigation of misconduct and nor in this case does the agreement provide for any redress to the employee in respect of picking up the money after an investigation and I've already said and thirdly where the control over the investigation and its speediness or expedition is entirely in the hands of the university and something over which the employee has no control whatsoever.

PN137

Aligned to that is the purpose whatever are we to do, we can't sack the person was effectively the submission that was put forward by my learned friend. Well, if the concern is with the person being at work, then you can remove the person from work. That's what the clause allows you to do. One might ask why in a case of this kind there wasn't some middle ground, because when one looks at the actual allegations that were pressed against the employee which related to I think broadly speaking internet usage, all of those allegations were matters that were matters that could, as one reads the annexure to CSU1 at tab 14 which is the letter of charge against the employee, appendix 2, when one looks at those allegations, they all relate to computer usage as I recall them.

PN138

Nothing is advanced in the context of this case and in terms of either it falling within extraordinary circumstances of misconduct a la the 9 October email or otherwise as to why it was so essential and fundamentally important to remove the employee from the workplace. Now, that is not the same submission I made earlier in respect of leave. It is a different point and it goes to the purposive construction that's to be afforded to the clause. If there is to be some right to suspend the employee and if the employee is to receive pay during that period and the employer is required to pay the employee, then it places an onus on the employer to only use such power in circumstances where it is absolutely necessary to do so.

PN139

The purposive construction of the clause is quite contrary to in my submission any purpose that favours the employee in the circumstances of this case. Could I then pick up briefly some submissions that my learned friend made to the extent that either the written submissions or what I've said thus far hopefully one hasn't dealt with them and I'm not repeating myself? Firstly, this is just a rerun in our respectful submission of the case before the Commissioner. It probably matters little in the sense that no precise error or specific error has been identified.

PN140

It was said at one time that the error was that the Commissioner gave the clause a narrow or pedantic interpretation and, with respect, the parties draw an issue on that. We say that the interpretation that the Commissioner gave applying cases like - my friend refers to Kuck's case, we refer to cases like City of Wanneroo and perhaps more relevantly the judgment in Short v Hercus, but wherever one picks up the principles from, the starting point is the same and that is the ordinary interpretation of the words. There was nothing narrow or pedantic about looking at other parts of the agreement.

PN141

Indeed, the principles in the cases that are referred to support that approach. There was nothing narrow or pedantic in having regard to what was in the previous form of the agreement as the Commissioner did and nor was there anything narrow or pedantic in the Commissioner having regard in particular to the other part of the agreement that specifically referred to suspension without pay. The second matter that is important in terms of some of the submissions my learned friend made about the industrial context and here her submissions fell into two categories, the first was to do with the funding body's requirements that are found in Mr Wilson's affidavit at CSU1 which is at tab 14 and it was said that the words with or without pay, I think four words, it may be six, but whether it's four or six, were designed to remove excessive detail and prescription from the agreement and this was apparently the circumstance in which the parties were negotiating.

PN142

With respect, those four words which are so vital to the interpretation of the provision are not about removing excessive detail or prescription. They're about removing important rights from the agreement, the entitlement or the qualifying of the entitlement to suspend with or without pay. They do not fall within the descriptions that are afforded in paragraph 3 of Mr Wilson's affidavit of excessive detail and prescription. The second aspect we've dealt with of the negotiations that my learned friend relied upon was the history and I've dealt with that.

PN143

The final matter that needs to be dealt with is the question of claimed ambiguity or infelicitous drafting as it's been referred to was run together, as it were, with references to this Full Bench preferring the evidence of Ms Thompson over I think Mr Wilson and that Ms Thompson's evidence was in some ways inconsistent and the like. A fair reading of the evidence actually discloses that there isn't a great deal of distance between the parties, that the real distance that emerges between the position of the parties was what was in Mr Wilson's mind at the time which Ms Thompson could not have known about.

PN144

There is nothing where, for example, and I just use it as an example, where
Ms Thompson says, well, X happened and Mr Wilson says, no, it was Y. What is said was here is an email, there were further negotiations later on, the agreement was ultimately certified in November and the substance of that was common to both parties. There's no issue of credit that in any way infects or affects the resolution of that issue. The fact, for example, that someone was at a meeting or wasn't at a meeting is neither here nor there in terms of the matters that were at issue.

PN145

The fact that Mr Wilson took the view that it remained mum on the clause at one point in time in the course of the negotiations was not at issue and Ms Thompson couldn't have known that that's what Mr Wilson was doing, if, indeed, that's what he was doing, but nothing turns on anything to do with the actual evidence given by either party, Thompson or Wilson, about what the provision meant. Other than those matters, we say that the position here is clear. It affected one employee, not four, that the Commissioner's reasoning is consistent with the principle and correctly applies those principles to the interpretation of the agreement in manifesting the objectively ascertained mutual intention of the parties when they referred to suspension in clause 14.2. We say that the issue is, as your Honour the president identified solely one of construction and interpretation and that interpretation falls totally in favour of the university not having any right to suspend without pay under clause 42.5 of the agreement. If it pleases the Commission.

PN146

JUSTICE GIUDICE: Mr Reitano, could I just ask you a question about paragraph 239 which I asked Ms Pugsley about?

PN147

MR REITANO: Yes.

PN148

JUSTICE GIUDICE: I don't know whether you've read that recently and if you want to take a moment to read it, by all means do so, but towards the end of that answer, Mr Wilson sets up this contention that there was an exchange, that the claim for summary dismissal was dropped on the understanding that there was still a right to suspend without pay while investigation is occurring. That's his evidence, there was a clear understanding of the position.

PN149

MR REITANO: That is inconsistent - I apologise.

PN150

JUSTICE GIUDICE: I just want your submission on that evidence.

PN151

MR REITANO: The point that your Honour raises is inconsistent as between Wilson's evidence in paragraph 239 - sorry, did your Honour say 239?

PN152

JUSTICE GIUDICE: 239, yes.

PN153

MR REITANO: It's inconsistent between what he says in 239 and the email, once again because what the email says is what's being exchanged is exceptional circumstances if I can put it in a colloquial way. That's not what he's saying at 239, it's different. I think in 239 he's saying you drop the words - sorry, we drop the words - we take the words out and we take out the right to summarily dismiss which is not what the email discloses at all. If you go to the email of 9 October, your Honour will see that there's no trade-off there at all, firstly, and secondly there's no question of a qualified right to suspend without pay in exceptional circumstances in the answer at 239. It rather posits in my submission the potential, it's not essential, but the potential that there were further negotiations at some point.

PN154

JUSTICE GIUDICE: Was there evidence - I understand that this statement isn't particularised and for that reason one looks to what external signs there might be of such an exchange or such an agreement, but was there evidence from the union to say that there was no such understanding?

PN155

MR REITANO: If your Honour would pardon me a moment? My recollection is that there was no evidence given by Ms Thompson who was called by the union, obviously, and nor was anything like that put to her in cross-examination, when she was cross-examined about the issue. I say that with a tiny bit of trepidation, but not a great deal. I am fairly confident it was not put to her.

PN156

JUSTICE GIUDICE: Where does her evidence commence? 141.

PN157

MR REITANO: Does your Honour have it?

PN158

JUSTICE GIUDICE: Yes. That answer from Mr Wilson was in cross-examination, was it not?

PN159

MR REITANO: Yes. The difficulty with that answer, if I can call it that way, is that, putting aside I think the point that your Honour makes about the procedure or in asking did it arise out of cross-examination or the Browne v Dunn consequences and things like that, putting that to one side, the difficulty with that answer is that it merely accords with - I withdraw that. It simply reflects what Mr Wilson had understood. He does not say, I don't think, in that answer that I was at a meeting with - and I am just picking an example, with Mendelssohn - - -

PN160

JUSTICE GIUDICE: Yes, it's not particularised.

PN161

MR REITANO: And Mr Mendelssohn said we want you to give up the right to summarily dismiss people and I said I will only do that and so on and so forth, so one doesn't know whether it was the trade-off in the way that I've just described or it was something that was simply in Mr Wilson's mind, well, they've given that away, we'll give this away. We just don't know and in those circumstances, a much better guide is that which is to be objectively gleaned from the term of the agreement itself, but supported by all those other things I've referred to, in particular the other clauses of the agreement and in particular the previous form of the agreement, in particular the purpose of approach to construction that I've suggested should be taken. All roads point in one direction, except for that observation in the transcript and with respect, had it been particularised and had it been mounted in the way that one would imagine as I've described, it would still be a hurdle, you'd still need to get over all those other things, but one could imagine a case being put in that respect. If it please the Commission.

PN162

JUSTICE GIUDICE: Thanks, Mr Reitano. Yes, Mr Quinn.

PN163

MR QUINN: Your Honours, the LHMU came upon this dispute late in the picture, as it were. Certain submissions were made that by the LHMUs absence, that was the union taking one side or another and that's how the union became involved, in order to clarify that. In the main, the LHMU is not the major union on site and we don't wish to elevate our status in these proceedings either and by that I mean that we have no direct involvement in this dispute other than the outcome and how it may affect current and future employees under this agreement.

PN164

In the main, we are observers to the actual issue in dispute and we were observers to the negotiations that took place. I don't intend to traverse ground already adequately covered by the CPSU in their submissions and I think it worthwhile and necessary to outline where we agree with the CPSU and to talk to those submissions, if that's appropriate to your Honours. We agree with the CPSU in their submissions when they say that the email falls outside the common sense applications of how to construct industrial instruments. We say this is well trodden territory. We agree with the CPSU that in respect to pay and suspension in the agreement, the ordinary meaning of the words ought to apply and we also support the CPSUs submission that the university's intention that they maintain a provision to suspend without pay is not reflected in the terms of the agreement.

PN165

They are also in contrast to the intentions of the CPSU and that provision that existed in former agreements cannot continue undisturbed if the words are consciously removed and they are submissions that we made in our written submissions filed in these proceedings.

PN166

JUSTICE GIUDICE: Did the Commissioner accept those submissions?

PN167

MR QUINN: I beg your pardon, your Honour?

PN168

JUSTICE GIUDICE: Did the Commissioner accept those submissions?

PN169

MR QUINN: At paragraph 24 of Commissioner Raffaelli's decision he says and I will read that paragraph:

PN170

I determine that in the absence of any other specific term in the agreement, the university in exercising its decision to suspend Mr Stevens is unable to deny him the obligation to pay him his usual salary.

PN171

Unquote, and we say that he arrived at that by a simple construction that there is an obligation to pay and suspension doesn't provide otherwise, your Honour. I submit that those submissions were accepted. We say that that is the correct approach. There is sufficient information contained within the agreement to construe how suspension is intended to operate. There is no dispute that suspension was applied by removing the employee from the workplace and suspending him from duties. The second question and the subject of this dispute is whether payment may be withheld and there are extensive submissions made on that and the Commissioner's decision is outlined in paragraph 24.

PN172

The contract of employment which provides for continuity of employment, continuity of service and continuity of payment we say cannot be disturbed by the email that has been referred to and we stand by our submissions where we say that this is an attempt to have the email prevail over the terms of that agreement and in response to the submissions from the university this morning, we stand by our submissions that employees vote on what they read. We do not think that you need to look into the minds of employees to reach that conclusion.

PN173

What is certain in our submission is that if there were to be more meaning given to an email, then the industrial agreement that was voted on, approved, certified by the Commission, employees would surely object if that meaning were not to be read from the plain words of the agreement they voted on. There is a saying, nothing is agreed until everything is agreed and we say the agreement becomes enforceable in the first instance upon approval by the employees who are covered by that agreement and secondly following proceedings in the AIRC on certification and the enforceability of the words in that agreement ought to be supported and were supported in the decision of Commissioner Raffaelli and we submit ought not be set aside in these appeal grounds unless there can be identified clear provisions that are readable, understood and enforceable that set aside payment. Subject to any questions from your Honours, they are the LHMUs submissions.

PN174

JUSTICE GIUDICE: Thank you, Mr Quinn. Ms Pugsley, do you have anything in reply?

PN175

MS PUGSLEY: Your Honour, could I have a moment to take some instructions, please? I think there might be one or two points that we would like to respond to, but I think five or 10 minutes would be sufficient to obtain those instructions.

PN176

JUSTICE GIUDICE: Do you object to that, Mr Reitano?

PN177

MR REITANO: I don't object to that, but could I raise one matter that I was looking at while Mr Quinn was on his feet?

PN178

JUSTICE GIUDICE: Yes.

PN179

MR REITANO: It just relates again to your Honour's question. One has to be very careful to assume that the agreement delivers what paragraph 239 in the mind of Mr Wilson was said to deliver, that is the university dropping its claim that it wanted the right to summarily dismiss employees. If one reads the agreement, I don't think it is a not available construction, but if you read clause 42 together with clause 43.2 and having regard to clause 35.6, the effect of which is that an investigation could be very close in time, that is compliance with the requirements of clause 42 in respect of an investigation, the taking of disciplinary action and dismissing an employee without notice or payment in lieu of notice under 35.6 could well be tantamount to summary dismissal.

PN180

Take, for example, you've been caught with your fingers in the till, what do you say about it, I did it, it would seem that the agreement would then entitle what is in effect summary dismissal to take place, so it's also not clear that what Mr Wilson was saying was dropped in the course of negotiations was in fact dropped. There's certainly a power under the agreement to dismiss for misconduct. It appears to be, at least on some constructions, available to be activated fairly quickly, ie. summary dismissal for misconduct.

PN181

JUSTICE GIUDICE: Doesn't clause 42.3 suggest that all allegations of serious misconduct will go through that procedure?

PN182

MR REITANO: Yes. I don't run away from that and that's why I started saying that I don't think it's an outrageous construction to say that all of that could happen very quickly.

PN183

JUSTICE GIUDICE: I see, yes.

PN184

MR REITANO: Which is tantamount - - -

PN185

JUSTICE GIUDICE: You still go through the 42 procedure.

PN186

MR REITANO: I think 42 is mandatory. I don't run away from that.

PN187

JUSTICE GIUDICE: Yes, I follow.

PN188

MR REITANO: But whether the university in fact gave away the right to summarily dismiss doesn't necessarily follow from the existence of clause 42 itself.

PN189

JUSTICE GIUDICE: I see, yes. We will adjourn until 12 o'clock.

<SHORT ADJOURNMENT [11.45AM]
<RESUMED [12.10PM]

PN190

JUSTICE GIUDICE: Yes, Ms Pugsley.

PN191

MS PUGSLEY: Thank you, your Honour. There are just a couple of points that I will make very briefly in response. As I understood Mr Reitano's submissions, he was saying that we would need to have an email such as Mr Wilson's email to assist us in interpreting any clause which might have been ..... drafted. Perhaps I wasn't making my point clear in respect of the abandonment of employment clause. The point that I was making was that the concept of suspending someone who had abandoned their employment didn't seem to quite make sense.

PN192

That is quite different from the point that we're making about the interpretation of subclause 42.5. We say that that has a word in it which is suspend and we say that it means suspend with or without pay. Mr Reitano asked why would you remove the words without pay if you intended to retain the right to suspend in any circumstances? As I submitted before, if you look at the words of subclause 42.5, it's only in cases of alleged serious misconduct that the university can suspend.

PN193

Mr Reitano said that if the university was to succeed in this case, we would need to show that this was an exceptional case of serious misconduct. We say that there was evidence that this was such a case. At CPSU5 in paragraph 8, it' s uncontentious that the outcome for this particular employee was that ultimately he was terminated without notice. This was an exceptional case. Again, I referred you to that nine page letter of allegations. You can see that they're very serious allegations involving serious use of the university's IT facilities by a person who was actually employed in that area and had control over that area.

PN194

As I understand, Mr Reitano observed with regard to the snapshot issue that the email appeared to have been written approximately one month before the conclusion of negotiations. That can't be quite right. Again, if you look at the requirement for the agreement to have been certified by 30 November and work your way back through the 14-day period and so on, it's probably somewhere closer to a week before the conclusion of negotiations.

PN195

The point that I made before in my submissions, but it came up in a question from your Honour the president about the test with regard to employees voting on the agreement and not voting on the email, the only evidence as I said that we do actually have about what any employees who voted on the agreement or who were eligible to vote on the agreement might have thought 42.5 meant is, well, what did those employees who were actually suspended without pay do about it? Well, we know that one person took issue with it, but the majority of those who have been suspended without pay didn't take issue with it.

PN196

Mr Reitano referred to the fact or asserted that the university has complete and utter control over the misconduct process. 42.13.1 clearly requires the process to be conducted expeditiously. In conducting a formal review, the investigator who is appointed by the university must conduct proceedings as expeditiously as possible and consistent with the need for procedural fairness. The notion that a university could somehow or would somehow string a matter out when, in fact, it's the university who is making the allegations and therefore wants the matter to be investigated just doesn't make sense.

PN197

Mr Reitano also asserted that if the allegations are found not to have been proven and the employee has nevertheless been suspended without pay, well, what is the redress for picking up the money that the person would otherwise have been entitled to, it seems to us that if such allegations were dismissed and it was found that there had been no serious misconduct, then the university would be obliged to pay the person because there would have been no basis at the end of the investigation which would have justified them suspending the employee without pay.

PN198

I realise that's very convoluted. Again, it goes back to the Bryant provisions which had a particular role for the committee to be able to go back and look at whether or not the suspension had been justified and again that's a matter that's been simplified out of this agreement and that's why it doesn't appear. As the parties noted when we went to look back at the transcript, although there was evidence from Mr Wilson about the trade-off between the removal of suspension without pay and the summary dismissal issue, that was at paragraph 239 and also at paragraph 237, there was no contradictory evidence from Ms Thompson.

PN199

Not only was there no contradictory evidence from Ms Thompson, but as I alluded to before, none from the other negotiators, that is Mr Carey,
Mr Mendelssohn, Mr McCulloch, so we have the evidence of Mr Wilson on the one hand, we have no evidence on the other hand - I would submit that the Commission isn't entitled to infer from that that the evidence would not have assisted Ms Thompson's case if she had given it or if she had called those others to give evidence.

PN200

Mr Reitano looked at clause 42 in conjunction I think with clause 43.2 and 35.6 in the context of whether in fact there is a right for the university that is tantamount to summary dismissal. Again, if you go back to look at the provisions for dealing with misconduct or serious misconduct at 42.4(ii), there is a requirement that when the allegations are made, the employee is given 10 working days to submit a written response, so these investigation don't happen overnight. It's certainly not the scenario that one might normally envisage in regard to summary dismissal whereby you call the person in, I've got something serious to talk to you about, I suggest you bring a union official with you, what have you got to say about this, listen to what the person said and then make a decision based on that. It's a much more prescriptive process than that.

PN201

My final point, lest you might have misunderstood something I've said at the end of my submission is in relation to why we say the outcome is unfair, I did submit that Charles Sturt University is the only university which has removed the words on full pay and without pay from the suspension clause. Clearly that then means that it is the only university which does not have either the summary dismissal provisions, we know that that's been removed, or the ability to suspend without pay and that's where we say that there is manifest unfairness looking at Charles Sturt University vis a vis every other university within the higher education sector. If the Commission pleases.

PN202

JUSTICE GIUDICE: Thank you. Mr Reitano.

PN203

MR REITANO: I apologise, your Honour. There was one matter that I should have - I should have risen before my learned friend got up. It related to the matter that I raised right at the end before we adjourned and the question again that fell from your Honour that troubled me over the adjournment. The requirement to investigate that your Honour raised of course only arises if there is a denial in whole or in part of the allegation under 42.8 and I said this, but I didn't refer to 42.8.

PN204

JUSTICE GIUDICE: Yes, I have read that.

PN205

MR REITANO: If it is admitted, then the position is otherwise.

PN206

JUSTICE GIUDICE: Yes, the vice chancellor can make the decision, I think, under 42.7.

PN207

MR REITANO: Yes, that is to summarily dismiss.

PN208

JUSTICE GIUDICE: Yes. We're all agreed about that?

PN209

MS PUGSLEY: Not entirely agreed, your Honour, in that there is still the 10-day period given for the employee to either admit or deny the charges.

PN210

JUSTICE GIUDICE: I see, yes.

PN211

MS PUGSLEY: Thank you, your Honour.

PN212

JUSTICE GIUDICE: We will adjourn for a few moments to consider what has been put. If we can reach a decision, we will announce it then. Otherwise, we will reserve our decision, but we would ask you to wait for a few moments, anyway, while we confer.

<SHORT ADJOURNMENT [12.20PM]
<RESUMED [12.29PM]

PN213

JUSTICE GIUDICE: Thank you for waiting. We've been able to reach a decision on this matter. This is an appeal for which leave is required against a decision given by Commissioner Raffaelli on 30 March 2007 in relation to the settlement of a dispute concerning the application of the Charles Sturt University Enterprise Agreement 2005-2008. The appeal is brought by the university. It is common ground that the Commissioner was exercising a power enabled by section 170LW of the Workplace Relations Act 1996, pre-reform, pursuant to part 2 of schedule 7 of the Workplace Relations Act 1996 as amended by the Workplace Relations Work Choices Act 2005.

PN214

The question before the Commissioner was one of law concerning the interpretation of clause 42.5 of the agreement. That clause permits the university to suspend an employee pending an investigation into possible serious misconduct by the employee. In particular, the question was whether the word suspend should be interpreted to include suspension without pay. The Commissioner's approach to the issue was conventional in that he construed the term suspend in its context including other clauses in the agreement. He rejected submissions based on evidence of the subjective intention of the university during the negotiation of the clause.

PN215

Evidence of what occurred in negotiating an agreement may be taken into account in interpreting the agreement if it demonstrates a relevant common understanding. The evidence in this case did not demonstrate a common understanding at the time clause 42.5 was negotiated that the clause was intended to confer upon the university a right to suspend an employee without pay in the circumstances referred to in the clause. In the circumstances, the Commissioner's conclusion based as it was on the words of the clause and other relevant terms of the agreement appears to us to be correct.

PN216

It does not involve any error of law. Ms Pugsley put all that could reasonably be put on behalf of the university, but in the absence of a demonstrated error, it is not appropriate to grant leave to appeal. The application for leave to appeal is declined and the appeal is dismissed. Because of the conclusion we've reached, it is unnecessary to consider whether as a matter of construction of the terms of the relevant legislation an appeal lies from a decision of the kind the Commissioner made in this case. We shall now adjourn.

<ADJOURNED INDEFINITELY [12.32PM]