C2006/1092, Transcript of Proceedings [2007] AIRCTrans 47 (12 February 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16449-1

DEPUTY PRESIDENT BLAIN

C2006/1092

NATIONAL TERTIARY EDUCATION INDUSTRY UNION
AND
CURTIN UNIVERSITY OF TECHNOLOGY
s.170LW -prereform Act - Appl’n for settlement of dispute (certified agreement)
(C2006/1092)

PERTH

10.06AM, TUESDAY, 30 JANUARY 2007

Hearing continuing

PN1

MR P STOKES: I appear for the National Tertiary Education Union.

PN2

MR I CURLEWIS: I appear for the respondent.

PN3

THE DEPUTY PRESIDENT: Thank you, Mr Curlewis. This is a continuation hearing of what is indeed a long running matter. The application was lodged on
9 August 2006 and it’s now approaching some six months. This indeed may be the ninth proceeding in connection with this application. On 6 December 2006 by facsimile transmission the Commission most strongly recommended private discussions at the highest level specifically with the vice chancellor and the president of the NTEU and this indeed was made prior to 18 December which gave a period of nearly two weeks for those discussions.

PN4

And again on 19 December 2006 I, by way of facsimile transmission, thanked you for your understanding concerning the rescheduling of the hearing due in part to a bereavement in my family. However this rescheduling after discussion with the parties allowed for another six weeks or s for the high level discussions that I had again strongly recommended. In total therefore there has been a period of some eight weeks since the last hearing during which there has been a further opportunity to try and resolve this dispute. As I have previously indicated I am not convinced that the time and resources invested in these lengthy proceedings can be justified in terms of the public interest.

PN5

I am concerned that this matter has become something of a petty fogging dispute and I’m concerned that it may seriously question in whoever’s favour the outcome of this dispute is decided, whether the applicant or the respondent, that any substantial practical benefit from these proceedings would justify the additional time and resources involved in a further two day hearing and this would especially be the case if there is a further delay arising from the need to reserve any decision from these proceedings and to prepare a written decision which is a distinct possibility.

PN6

And as I have previously indicated there is a serious risk of adverse findings against both parties to the dispute. With that background and taking that into account I commence this hearing today by asking both parties is there still a need in the circumstances, as I’ve outlined them, for this arbitration? Mr Stokes?

PN7

MR STOKES: Thank you, your Honour. Your Honour, just to take up on one of the points that you raised to do with the matter that we were aware of with regards to the facsimile on 19 December where you were strongly recommending that the parties, that is the vice chancellor and the NTEU president, try to meet to resolve the matter. Can I just report to you, your Honour, that in fact as a consequence of that facsimile Dr Sinclair-Jones, the president of the NTEU, did communicate or make communication with the vice chancellor in an attempt to very soon after that facsimile came through in an attempt to actually do that, your Honour.

PN8

It’s unfortunate that we have to report to you that the vice chancellor didn’t agree to meet with the NTEU president and in fact referred her to other officers, as I understand it, in terms of human resources. That, from our point of view, is unfortunate, but I do have to say that we took your recommendation quite seriously and we did attempt to pursue that. At all times it would always be our view that we would attempt to resolve these matters. Unfortunately we couldn’t. We were unable to meet with the vice chancellor in an attempt to put further views to her.

PN9

While saying that, your Honour, we were aware and had communication with your associate with regards to questions of the rescheduling and we are always concerned with the length of times of these matters, but we are at a stage now where we’re here, willing and able to proceed with the hearing and have the matter arbitrated and that’s really all we have to say on the matter, your Honour. Thank you.

PN10

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

PN11

MR CURLEWIS: Thank you, your Honour. Your Honour, I believe that is the position and notwithstanding the position I believe it’s appropriate that this matter proceed today.

PN12

THE DEPUTY PRESIDENT: I note that there is agreement between the parties that the applicant did seek pursuant to the strong recommendation that I made twice to set up a meeting with the vice chancellor and that that has not happened and it is of course with regret that I note that is so and with concern. However I also take on board that both parties have come to the hearing today to have this matter progressed and I would ask again whether conciliation might be of assistance to the parties if it could be useful and I’d ask Mr Stokes first your further thought on that.

PN13

MR STOKES: Your Honour, after progressing that course of action over a lengthy period of time it would be our view that matters should progress today and I understand the matter is listed for tomorrow for hearing and to arbitration.

PN14

THE DEPUTY PRESIDENT: Mr Curlewis?

PN15

MR CURLEWIS: My client takes that view as well, your Honour.

PN16

THE DEPUTY PRESIDENT: And I would assume, but I seek your confirmation noting a change in the position of the NTEU since the last hearing on that matter, as I understand it of conciliation whereas I understand there’s no change in the position of the respondent, I’d seek again your latest positions in relation to whether a binding recommendation from the Commission might assist. Mr Stokes first.

PN17

MR STOKES: Sorry, your Honour. Just in terms of questions of clarification it was always our view that to put ourselves in your hands with regard to the question of the binding recommendation coming out of conciliation we had. I put that view to you previously, your Honour. We don’t withdraw from that view, but it’s our understanding that the respondent is in agreement with that and that’s why I said what I said with regards to the matter going to arbitration.

PN18

THE DEPUTY PRESIDENT: Yes. Are you saying that your view is essentially the same as it was previously in relation to conciliation and a binding recommendation, however because of your understanding of the respondent’s position you feel that that is not a viable option? Is that what you’re saying?

PN19

MR STOKES: That's correct, your Honour.

PN20

THE DEPUTY PRESIDENT: Yes. Mr Curlewis, in relation to a binding recommendation?

PN21

MR CURLEWIS: Your Honour, having got this far we believe it’s appropriate the matter be arbitrated and I say no more in that respect. We think it is appropriate having got this far. This is the proper process to follow. Efforts have been made by the parties. They have sadly failed on conciliation and we see on the basis of that that there’s no basis to make recommendations coming out of a conciliation per say at this stage subject until you have arbitrated and given a decision.

PN22

THE DEPUTY PRESIDENT: Yes. So what you’re saying is at this stage you would not favour that, you would favour continuing with the jurisdictional and arbitration hearing?

PN23

MR CURLEWIS: Yes that's right, as was scheduled for today.

PN24

THE DEPUTY PRESIDENT: Having dealt now with those background issues and having issued some warnings to the parties concerning the process of proceeding with this hearing for jurisdiction and arbitration I’m satisfied that they have been heard and understood. We now proceed on that path. I’d like first to indicate the proposed sitting hours for this hearing. I would suggest the Commission sits from 10 am until 12.45 pm, adjourns for an hour, resumes at 1.45 until 4.30. That would give approximately five and a half sitting hours per day and for two days that would be approximately 11 hours and I would also have in mind that there be short refreshment breaks in the interim.

PN25

Perhaps I should say during those two sessions per day. I’d like to ask for your comments on that. First Mr Stokes?

PN26

MR STOKES: That’s acceptable to the NTEU, your Honour.

PN27

THE DEPUTY PRESIDENT: Mr Curlewis?

PN28

MR CURLEWIS: As your Honour pleases. Your Honour, those hours are obviously acceptable. I perhaps would foreshadow that my understanding is that the respondent’s witnesses would in any event be called tomorrow so that being said if we were to finish earlier today a consequence of that would be that we would adjourn before 4.30, but that’s my understanding of the position, no more than that.

PN29

THE DEPUTY PRESIDENT: Thank you. Any comment on that Mr Stokes?

PN30

MR STOKES: No, your Honour.

PN31

THE DEPUTY PRESIDENT: At the previous hearing I did discuss with you the questions that I saw as being before the Commission in this jurisdictional and arbitration hearing, the questions to be addressed. The first question I will repeat since even though it was discussed some time ago is does the Commission have jurisdiction to settle the notified dispute by arbitration? I note there was some discussion about the word settle, but it is the word which the Act uses. So again I’m confirming that the first question before the Commission is does it have jurisdiction to settle the notified dispute by arbitration. Pursuant to that either it does or it doesn’t.

PN32

If it does then the matter presumably can be arbitrated. If it doesn’t it would seem that the application must be dismissed. And in relation to that question there are certain other aspects that it seems that the Commission needs to address in looking at that first question which is have the required steps of the dispute avoidance and resolution procedures been taken. That seems to be one issue that the Commission will need to look carefully at in establishing whether or not there is jurisdiction. I won’t go into the detail of what those steps are, but that appears to be one important aspect.

PN33

Another aspect is whether the dispute is in connection with the matter relating to the conditions of employment contained in the certified agreement and if so which conditions of employment. And importantly another aspect which of course is required by the Act is this dispute over the application of the certified agreement. Those aspects, namely I repeat for clarification the taking of the requires steps of the procedures, the matter of dispute in connection with the conditions of employment contained in the certified agreement and whether the dispute is over the application of the certified agreement, all seem to be things that the Commission will need to be addressed on and take into account in determining whether or not it has jurisdiction.

PN34

As I say I did canvass this question at least in part at the previous hearing and the comments of the parties are of course recorded in the transcript. I would like to ask on that first question for any comments to enable me to ensure that there is an understanding between the parties and the Commission as to what is required to be determined in this dispute. First Mr Stokes.

PN35

MR STOKES: Your Honour, the NTEU have consistently put the view that it was our understanding that questions of jurisdiction and the merits of the matter were going to be determined at the same time. As to these questions that you have raised we are aware of these, your Honour. You have put them to us before. It would be our view that both in terms of written submission but also in terms of submissions today, tomorrow in terms of questions of final address, we’ll certainly go to those sorts of questions, your Honour, but at this stage we don’t have any comments to make - sorry, your Honour, further comments to make.

PN36

THE DEPUTY PRESIDENT: Yes. Mr Curlewis?

PN37

MR CURLEWIS: Thank you, your Honour. Your Honour, those questions are consistent with the pattern of the submissions made by the parties and I wouldn’t say they are acceptable, those are consistent. I would simply say that should other matters come out of it they would not be inconsistent with that. Those are the main line points which we accept.

PN38

THE DEPUTY PRESIDENT: Yes. Mr Stokes, I am concerned that you may not have a clear understanding of the approach that I’m suggesting the Commission should consider following in this hearing. Perhaps I could say that there are two considerations. One consideration is this hearing itself and how it develops and unfolds and I did refer to that on the previous occasion and the second consideration might be what the Commission might be required to determine, for example subsequently, if it was necessary to reserve a decision. On the first point if it became apparent to the Commission during the course of these two days that on the basis of what was put if it was clear to the Commission that if the Commission was able to reach the view that there was no jurisdiction then there would be a serious question as to what would be the point of continuing with a hearing if the Commission had reached that conclusion?

PN39

Now, having said that I have an open mind as to whether or not there is jurisdiction and I have an open mind as to when in a point of time any conclusion will be reached one way or the other. But what concerns me is you haven’t indicated to me that you appreciate the distinction in what I’m saying which is really in part but importantly a procedural question of how the Commission proceeds and how the Commission takes decisions. It would concern me if you didn’t clearly understand the distinction that I’m making and it would concern me if the hearing proceeded on the basis that there was confusion between the parties and as to what the Commission’s duties is and how it is going to proceed.

PN40

So I’d like to give you another opportunity to explain or to assure me that you do understand what I’m saying and if necessary, because it’s such an important point, I’m quite happy to allow a few minutes for you just to ponder what I’ve said and then come back to me if you’d prefer that.

PN41

MR STOKES: Yes, your Honour. A slight adjournment would be fine, thank you.

PN42

THE DEPUTY PRESIDENT: Any objection to that, Mr Curlewis?

PN43

MR CURLEWIS: No, your Honour.

PN44

THE DEPUTY PRESIDENT: Approximately five minutes, Mr Stokes?

PN45

MR STOKES: Thank you, your Honour.

PN46

THE DEPUTY PRESIDENT: Yes. We’ll adjourn for five minutes.

<SHORT ADJOURNMENT [10.31AM]
<RESUMED [10.44AM]

PN47

THE DEPUTY PRESIDENT: The Commission resumes after a brief adjournment to allow Mr Stokes to consider what I said earlier concerning the jurisdiction and arbitration issues and questions. The adjournment was extended a little. I await your report back.

PN48

MR STOKES: Thank you, your Honour. Thank you for your patience. Your Honour, the NTEU’s position has always been that the matter before you is to determine both of the jurisdiction and the merits of the matter and it’s the NTEU’s view that the matter should be determined at the same time. Because the matters are so intertwined and can’t be separated then we believe that the matters should proceed, we go to the case and the evidence of the matter and we just proceed as being previously suggested, your Honour. So beyond that really I can not add anything further, your Honour.

PN49

THE DEPUTY PRESIDENT: Mr Stokes, you understand I take it that if an application is brought before the Commission the Commission hears the parties and then it must exercise its powers and functions under the Act and the Act gives the Commission quite broad powers to determine how proceedings are conducted. But you are well aware of that, aren’t you?

PN50

MR STOKES: Absolutely, your Honour.

PN51

THE DEPUTY PRESIDENT: Yes. And therefore you also understand that what I have said is that I have a duty to conduct this hearing fairly but in a proper manner and one of the considerations in conducting a hearing properly is to run it efficiently so that there is not a waste of time to the parties and to the Commission in terms of resources and if it became clear to me that there was no jurisdiction - and I’m not saying that that is the case, it might be clear to me that there is jurisdiction - but in the event that I concluded that there was not then it would be my duty to say so and not to continue with the hearing if that was the case and that’s what I’ve been asking you to acknowledge which seems to me to be only a sensible way of looking at the conduct of this hearing.

PN52

MR STOKES: I understand what you’re saying, your Honour.

PN53

THE DEPUTY PRESIDENT: Yes. Mr Curlewis?

PN54

MR CURLEWIS: Your Honour, I fully understand what you’re saying and endorse with the greatest respect the approach the Commission has indicated to take. The Commission has very wide spread powers under the Act to conduct its proceedings in accordance with such fairness as it dictates. It’s certainly in the public interest in this matter that were an issue to arise which would indicate with clarity to the Commission that it could hand down an interim order or decision on it such as a jurisdictional issue it does not make sense for the matter to meander on thereafter if it could be brought to an end such that the parties had a line drawn in front of them at that point.

PN55

So therefore from my client’s position we understand and endorse and accept what procedure the Commission wishes to take in this respect.

PN56

THE DEPUTY PRESIDENT: Thank you. Having made those comments I acknowledge of course that there may be a considerable overlap between the two questions and that depends in part upon how the parties present their cases. I’ve raised to you the first question as I see it that the Commission is bound to consider. I now raise the second question, which would seem that if the Commission does have jurisdiction to hear and determine the dispute the question then is should the Commission determine the dispute in the applicant’s favour. In considering that question it would seem that one aspect that the Commission would need to consider further also is whether the Commission is empowered to issue the orders sought by the NTEU.

PN57

And another aspect in relation to this second question would be if it is empowered to issue these orders should it exercise its discretion to issue them. Alternatively if there were different orders that the Commission should exercise discretion to issue what should they be. They would seem to be aspects of what the Commission must address in this hearing. I hope that they were clear. I won’t repeat them, but if you would like me to repeat them I will.

PN58

MR STOKES: No, that’s clear, your Honour.

PN59

THE DEPUTY PRESIDENT: Yes. I’d like your comments in relation to that second question please, Mr Stokes.

PN60

MR STOKES: Sorry, your Honour. What? I missed that.

PN61

THE DEPUTY PRESIDENT: I would like to ask you first do you understand what I’ve said the second question before the Commission should be or is and in relation to the question and the aspects that are associated with it.

PN62

MR STOKES: Yes, your Honour. I have nothing to add. I understand that.

PN63

THE DEPUTY PRESIDENT: And do you have any difficulty, Mr Stokes, with that?

PN64

MR STOKES: No, your Honour.

PN65

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis?

PN66

MR CURLEWIS: Just one small additive if I may, your Honour.

PN67

THE DEPUTY PRESIDENT: Yes.

PN68

MR CURLEWIS: You have said the second question is if there’s jurisdiction should the dispute be determined in the applicant’s favour and the subset of that does the Commission have power to issue the orders sought by the NTEU. My submission is that that also means is indeed the Commission functus officio in the sense that it has already issued the interim order in this matter and I say that’s part of whether the Commission has power to issue the orders sought by the NTEU.

PN69

THE DEPUTY PRESIDENT: Yes. I think I understand what you’ve said, but let me just clarify. In effect are you really adding a further dimension?

PN70

MR CURLEWIS: No. It goes to whether the Commission has power and if one has no power one is functus officio that is one has exhausted such other powers one had. So I would be arguing under that head that the Commission, if we get this far, has exhausted its powers to make any orders.

PN71

THE DEPUTY PRESIDENT: Yes. Aren’t you really saying that the answer to that point is no?

PN72

MR CURLEWIS: I’m saying it’s no.

PN73

THE DEPUTY PRESIDENT: Yes. Aren’t you really saying that the answer to what I’ve raised is no rather than saying it’s not a consideration that I should look at?

PN74

MR CURLEWIS: Well, if you’re going to be looking at it I have simply raised this point functus officio because it fits in with that and I clarify on that point at this stage.

PN75

THE DEPUTY PRESIDENT: Yes. I take that to be you foreshadowing your submission on the answer to that question or that point.

PN76

MR CURLEWIS: No, I don’t go into the detail, I simply say that at least it be said to be a different point I simply highlight it now. It may well be the same point given a different weight.

PN77

THE DEPUTY PRESIDENT: Yes. Do you wish to comment on that,
Mr Stokes?

PN78

MR STOKES: Well, I’d only comment on it to the extent, your Honour, that with regards to the question of the orders before you that you made a previous comment that the powers of the Commission are wide and there was an agreement on that and that it’s our view that you do have the powers obviously to make such orders. That would be our comment, your Honour.

PN79

THE DEPUTY PRESIDENT: Yes. The comment I was seeking was not so much from either parties to what your submission would be in response to the question, but to make sure the Commission was looking at the right question and from what both of you have said I don’t hear either of you to be saying that that is not something that the Commission should be properly addressing. Is that the case?

PN80

MR STOKES: Yes.

PN81

THE DEPUTY PRESIDENT: And also Mr Curlewis? Yes, thank you. That being the case I am satisfied that I have gone to some lengths now to be very clear about what this hearing must address and to consider the options for the way the hearing might proceed to deal with them. That being the case what I would propose to do is to address the sequence of the presentation of the cases. This case may be a bit unusual in one respect, in that because it’s a jurisdiction and an arbitration hearing submissions have been given commencing with the respondent and followed by the applicant.

PN82

The question now is the sequence for the adducing of the evidence. The parties have addressed me previously and it has been agreed before this hearing. I wish to confirm that you are still of the same view that following the presentation of submissions the sequence for the evidence should be applicant first then respondent. I take it that is agreed and that would then lead to a consideration of closing submissions which would presumably be, while I seek your comments, respondent first then applicant. Mr Stokes?

PN83

MR STOKES: Your Honour, it was our understanding that the proceedings are, as you’ve explained with regard to the matters before us today and tomorrow, is that our evidence and our witnesses would be called today. We understand that the respondent’s witnesses were going to be called tomorrow and we have no disagreement, your Honour, with regards to the question of the closing submissions being the respondent’s and then ourselves as the applicant.

PN84

THE DEPUTY PRESIDENT: Thank you.

PN85

MR STOKES: Thank you, your Honour.

PN86

THE DEPUTY PRESIDENT: Mr Curlewis?

PN87

MR CURLEWIS: Yes, your Honour. Just to clarify in my own mind as I understand there are no submissions to be made at this point. As I understand it the applicant will give its evidence, the respondent will follow straight after that and the respondent, being myself on behalf, would then close submissions and the applicant will follow after that with its closing submissions.

PN88

THE DEPUTY PRESIDENT: Yes. On that basis then I confirm that my understanding is that the parties wish to proceed straight into the evidence now and have further submissions in which case on the basis of that sequence discussed I call upon Mr Stokes to present his case in terms of the evidence.

PN89

MR STOKES: Thank you, your Honour. Prior to proceeding we obviously have a number of witnesses in the room and all that I ask is that those witnesses vacate the room for the period of presentation of our evidence with regards to beginning with Dr Sinclair-Jones, your Honour.

PN90

THE DEPUTY PRESIDENT: Yes. Who would you wish to leave the room?

PN91

MR STOKES: I wish to call in the first instance Dr Janet Sinclair-Jones.

PN92

THE DEPUTY PRESIDENT: Yes, but who would you wish to leave the room?

PN93

MR STOKES: The other witnesses that we’re going to call later, your Honour.

PN94

THE DEPUTY PRESIDENT: All of your other witnesses?

PN95

MR STOKES: Yes, yes. I think that’s correct.

PN96

THE DEPUTY PRESIDENT: Mr Curlewis?

PN97

MR CURLEWIS: I was going to ask for that order in any event. I’m indebted to my colleague.

PN98

THE DEPUTY PRESIDENT: Thank you. On that basis I’d ask if witnesses other than Dr Sinclair-Jones would kindly adjourn until required.

<JANET SINCLAIR-JONES, AFFIRMED [10.59AM]
<EXAMINATION-IN-CHIEF BY MR STOKES [11.00AM]

PN99

THE DEPUTY PRESIDENT: Yes, Mr Stokes.

PN100

MR STOKES: Your Honour, if I may in terms of preliminary matters because it was requested to us in terms of communication to ensure that all our witness statements and evidence were tabled today at the hearing, but also so that we can confirm that the prepared witness statements by Dr Jones were in fact a true copy of the witness statements that were submitted. I’d like to present to the witness and we also have copies, your Honour, for yourself but you may in fact have one. I know the respondent does, but we do also have one for the respondent.

PN101

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

PN102

MR STOKES: Yes. Thank you, your Honour. So to assist in terms of procedures this morning I’d just like to put as preliminary comments some clarification with regards to Dr Jones’ witness statements and just put a couple of preliminary questions. So, you have prepared, Dr Jones - - -

PN103

THE DEPUTY PRESIDENT: Before you do that, Mr Stokes, as I understand it there are nine attachments - - -

PN104

MR STOKES: Yes, your Honour.

PN105

THE DEPUTY PRESIDENT: - - - to the witness statement and I have in mind that whilst the statement itself could be accepted into evidence when you’re ready that when it comes to the question of the attachments each one should be addressed at the appropriate time and admitted into evidence as appropriate.

PN106

MR STOKES: Yes, your Honour. So if I could proceed, your Honour, just to put to Dr Sinclair-Jones that - have you prepared a witness statement for evidence you wish to give to the Commission, Dr Jones?---Yes.

PN107

Do you identify the copy that you have before you as a true copy of the witness statement and also a supplementary witness statement you prepared prior to the hearing?---Yes.

PN108

Therefore, your Honour, I wish to tender the witness statement and supplementary witness statement for this hearing.

**** JANET SINCLAIR-JONES XN MR STOKES
PN109

MR CURLEWIS: Your Honour?

PN110

THE DEPUTY PRESIDENT: Mr Curlewis?

PN111

MR CURLEWIS: I object to the submission of the statement in part due to the objections that have been filed by direction of the Commission as to certain parts of the evidence and with your permission I wish to address you as to why certain aspects of this evidence should not be admitted. There has been filed and I’m obviously able to provide you with a further copy of a document which I filed in November last year. Your Honour, that is a ..... compendium. It covers not only this witness, but it covers all witnesses. So you will see it’s headed Objections to Evidence of Prospective NTEU Witnesses and it starts with, on page 1, the objections to this particular witness.

PN112

It is parts of that evidence, your Honour. It is itemised exactly what the aspects are and at the outset I acknowledge this is not a court of law and the Commission has discretion to deal with the matter fairly and the laws of evidence don’t apply. That’s accepted, but there has to be procedural fairness an substantial parts of the objection to this go to procedural fairness. And to that extent I’m not aware, your Honour, if you have had recourse to the notice, whether you wish to peruse it or wish for me to take you through it step by step as to particular aspects and in particular some of the particular aspects, if I can put it that way, which caused angst on the part of the respondent.

PN113

THE DEPUTY PRESIDENT: Yes. Mr Stokes on that?

PN114

MR STOKES: Your Honour, we are aware because we were communicated by the respondent to terms of communications yourself with regards to objections. It’s our view obviously that we don’t agree with a number of the objections that the respondent has put. It’s our view that the Commission has wide powers with regards to questions of evidence and certainly the respondent as it’s already stated that this is not a court of law. It would be our view that we progress with matters with regards to this witness.

PN115

THE DEPUTY PRESIDENT: Yes. I have noted these objections which were indeed submitted to the Commission some time ago dated 16 November. It seems to me that perhaps the most appropriate way of proceeding might be for the Commission to note that these objections have been made and of course the respondent will have the opportunity to cross-examine, but rather than spending time going through a somewhat formal process to address each of the 12 objections as I say it might be perhaps a most appropriate approach for me to reserve the right to give no or whatever weight seems to be appropriate to any of the evidence which is objected to.

**** JANET SINCLAIR-JONES XN MR STOKES
PN116

As I say the Commission has that and the parties have each other’s objections and that might be the most expedient way of proceeding. And indeed I note that other witnesses are referred to in the document. It seems to me as I say that we should proceed on the basis that to repeat that the Commission has noted the objections and reserves the right to give whatever weight, if any, to each objection. Any further comments on that?

PN117

MR CURLEWIS: Yes I would with your permission, your Honour. Your Honour, leaving aside the detail of those objections there are two fundamentals and the first is in relation to prospective evidence by this witness as to discussions with third parties which forms the basis of this dispute. It is probably unfair for such evidence to be admitted if those witnesses, those persons who allegedly had discussions, are not to be called so that this party contest the veracity of what is said. Reference is made to a number of discussions with innominate, unstated, unspecified persons. To this point the names of those persons have not been identified. In fact there is a deliberate decision not to disclose them to any party.

PN118

It is probably procedurally unfair for evidence at least of an innominate party to be admitted when that party is not even named. The respondent is not able to test the veracity of the statements. I make that point on that particular point. It goes to a number of them. The other point I wish to make is in relation to, and it may be premature, a number of the documents, that is the attachments which again I will object to as being minutes of meetings and things like that and perhaps I should leave that until those are particularly tendered and I will address them one by one.

PN119

But as it comes to the question of reference in any proof and in the statement to third parties innominate persons who allegedly made a statement simply saying that that is, in my respectful submission, procedurally unfair. It doesn’t go to a rule of evidence, it goes to procedural fairness, to admit such evidence to the detriment of the respondent when it has no opportunity to test the weight or strength of what is said. So accepting what you say or acknowledging if I could say, your Honour, your position on it I wish to certainly highlight that particular aspect of the respondent’s concern with the witness statement of Janet Anne Sinclair-Jones.

PN120

Without labouring the point and acknowledging what you’ve said I do believe that there is a compelling case for those aspects of the statement not to be received at all unless there’s a basis upon which the applicant, the respondent, could at least know who one is potentially dealing with. It goes to the dispute and the veracity of the dispute and indeed ultimately of whether there’s jurisdiction. So that point is integral to this matter and I raise it without abandoning all the other points as to the objection. That is an integral issue and it relates in particular to paragraph 13 where this issue was and paragraph 15. That would be my point on that, your Honour.

**** JANET SINCLAIR-JONES XN MR STOKES
PN121

THE DEPUTY PRESIDENT: That concludes your comments?

PN122

MR CURLEWIS: Yes thank you, your Honour.

PN123

THE DEPUTY PRESIDENT: Mr Stokes, your comments on that?

PN124

MR STOKES: Nothing more to say, your Honour, except that the Commission is not bound by any rules of evidence which I’ve previously said. Beyond that I have nothing further to add, your Honour.

PN125

THE DEPUTY PRESIDENT: Yes. I’ve noted the points that you’ve made
Mr Curlewis and what Mr Stokes has said and as I’ve said previously you will have the opportunity to cross-examine, the Commission will have an opened mind to hear everything that’s put and then we’ll reflect carefully on the question of weight.

PN126

MR CURLEWIS: As your Honour pleases.

PN127

THE DEPUTY PRESIDENT: Thank you. Mr Stokes?

PN128

MR STOKES: Thank you, your Honour. With regards to Dr Sinclair-Jones, your Honour, I have a number of questions of Dr Sinclair-Jones to clarify and amplify her witness statement. As to the question that you raised, your Honour, of tendering attachments, that is matters that I would intend to address either as we progress or at the end of my examination-in-chief of Dr Sinclair-Jones. If it please your Honour.

PN129

THE DEPUTY PRESIDENT: Yes. If it was convenient to address it as we progressed that might be of assistance.

PN130

MR STOKES: Thank you. So, thank you, as I’d previously said to
Dr Sinclair-Jones we are tendering the witness statements and supplementary witness statements and we understand that you have a copy of that with the written witness statement at the beginning, a series of attachments followed by a further supplementary witness statement from Dr Sinclair-Jones and other attachments. But to assist I'll go to the first question of Dr Sinclair-Jones.
Dr Jones, just with regards to your written witness statement, can I ask you please in the first instance to turn to paragraph 10 of your witness statement.

**** JANET SINCLAIR-JONES XN MR STOKES
PN131

Just under the title there Proposal for Support under the Reshaping Curtin University document, do you see it there, paragraph 10 Dr Jones?---Yes, I do.

PN132

At paragraph 10 of your witness statement you make reference to a meeting that you were present at and it states:

PN133

I was president at an address to staff by Professor Jeanette Hacket who was the interim vice chancellor on 31 May and Professor Hacket referred to the reshaping of Curtin University of Technology.

PN134

Just on that paragraph 10, Dr Jones, what reference to reshaping Curtin did Professor Hacket make at this address please?---Professor Hacket referred to the need for Curtin to be reshaped and that the university would be reshaped, but didn’t go into great detail at that time about how the reshaping might be achieved or the ends to which would be achieved. But she did make specific reference to the point I make at the end of that point 10 where there would be instructions to heads of areas to keep nominal salary budgets fixed for the next two years. It would be an important part of that reshaping.

PN135

Thank you, Dr Jones. At paragraph 11 you refer to a meeting with Professor Hacket and in attendance was also associate Professor Charnock in your written statement. At this meeting which occurred as you’ve stated there on Thursday,
7 June 2006 and that you raised a series of concerned with Professor Hacket in relation to the reshaping announcements, could you please tell us what was Professor Hacket’s response to the concerns you raised?---Professor Hacket, the concerns that were raised were in relation to the need for the university to comply with the conditions of the certified agreement and Professor Hacket at that stage said she understood our concerns and that that would be the case. We also raised the concern about the 10 per cent reduction in relation to the concerns that this would of course have impact upon, staff in terms of job losses and forced redundancies and that as I say later in that statement our view was that those cuts could not be achieved in the way that she had implied and we were concerned that a call for voluntary redundancies being made as the previous vice chancellor had agreed at the beginning of the previous year as a result of attempts to make a number of staff redundant.

PN136

Thank you, Dr Jones. At paragraph 12 you state at paragraph 12 you make reference to where you say the members of the staff liaison committee. Dr Jones, what is the staff liaison committee please?---The staff liaison committee is a committee constituted under the terms of the agreement. It consists of four staff members, two whom are elected by all academic staff, two whom are representatives of the NTEU. I am one of the elective members of that committee and am also the chairperson of that committee.

**** JANET SINCLAIR-JONES XN MR STOKES
PN137

Thank you. And does the staff liaison committee have a relationship with a committee referred to as the Implementation, Monitoring Consultation Committee?---Yes it does. Under the terms of the certified agreement the staff liaison committee provides two of its membership to represent it on the Implementation, Monitoring Consultative Committee which deals with the implementation of the certified agreement.

PN138

So, Dr Jones, you’re on both the staff liaison committee and the implementation committee?---Yes, I’m a nominee of the staff liaison committee to the IMCC.

PN139

Dr Jones, could you please go to attachment 2 and, your Honour, it would be our view with regards to attachment 2 that that be tendered and attachment 2, your Honour - - -

PN140

THE DEPUTY PRESIDENT: Yes. The witness statement itself has not yet been tendered into evidence, has it?

PN141

MR STOKES: Well, your Honour, at the beginning of the proceedings I had sought that the witness statement be tendered.

PN142

THE DEPUTY PRESIDENT: Yes. The procedure would be that the witness statement would be given a number and described as an exhibit in which case it would be exhibit number 1. Mr Curlewis, any comment on that procedure?

PN143

MR CURLEWIS: No. That’s consistent.

PN144

THE DEPUTY PRESIDENT: And you’re proposing that attachment 2 be admitted next? You’re not proposing that attachment 1 - - -

PN145

MR STOKES: Well, your Honour, sorry to interrupt you, your Honour. I was of the understanding that at the beginning of the proceeding with regards to the witness statement for Dr Sinclair-Jones that I was tendering the document. I’m more than happy to do that at this stage and then proceed with regard to the numbering of each of the attachments, your Honour. If that assists.

PN146

THE DEPUTY PRESIDENT: Yes. The question really is the order in which you want to go through these. If convenient to you if they could be admitted into evidence in the sequence that they are numbered that might assist.

**** JANET SINCLAIR-JONES XN MR STOKES
PN147

MR STOKES: Yes, your Honour.

PN148

THE DEPUTY PRESIDENT: But if there’s a problem with that please let me know.

PN149

MR STOKES: No, not at all, your Honour.

PN150

THE DEPUTY PRESIDENT: Does that mean that you would, the exhibit 1 is the witness statement of Dr Sinclair-Jones? Are you now proposing that 1.1 be admitted into evidence?

PN151

MR STOKES: Yes, your Honour.

PN152

THE DEPUTY PRESIDENT: Mr Curlewis, any comment on that?

PN153

MR CURLEWIS: That’s the CV is it? No, there’s no problems there.

PN154

THE DEPUTY PRESIDENT: Yes. If that was numbered exhibit 1.1?

EXHIBIT #1 WITNESS STATEMENT OF DR JANET SINCLAIR-JONES
EXHIBIT #1.1 CURRICULUM VITAE

PN155

THE DEPUTY PRESIDENT: Please continue.

PN156

MR STOKES: Well then, your Honour, we should then perhaps proceed for clarity sake through each of the attachments to assist so that therefore we go to attachment 2 and therefore right through.

PN157

THE DEPUTY PRESIDENT: Mr Curlewis, any comment on 1.2?

PN158

MR CURLEWIS: Yes, your Honour. That is one I do object to. As I indicated in the objections I won’t object to any minutes of meetings be admitted as the correctness of those minutes. I accept they can be tendered as the fact that a meeting took place, but as to their contents it is probably unfair procedurally to allow minutes to go in when they are not proved as correct and indeed the statements purported to be made in the minutes were made. One such person in these minutes is Mr Stokes. His evidence could have been called to test or allow the other or respondent to cross-examine it as an example.

**** JANET SINCLAIR-JONES XN MR STOKES
PN159

Mr Stokes is here, but the applicant has resolved not to call him and now to actually have some evidence in where the witness is actually available is probably unfair hence again on any procedural basis I seek that simply the minutes be admitted simply on the basis as a record of a meeting but not as to the correctness or otherwise of anything said in the minutes. If it would assist I could go through the other attachments to quicken the matter and simply say I object to exhibit 2. The same applies to attachment 3. Attachment 4 - - -

PN160

THE DEPUTY PRESIDENT: Just before you continue, if we deal with them sequentially.

PN161

MR CURLEWIS: Yes.

PN162

THE DEPUTY PRESIDENT: One at a time. Keep it simple. Mr Stokes, you’ve heard the objection to 1.2 being accepted into evidence together with some supplementary remarks. Have you got any comments on that?

PN163

MR STOKES: Well, only that it’s our view with regards to questions of evidence they’re fairly broad, your Honour, and also to the fact that Dr Sinclair-Jones has already indicated that she is a member and certainly that is a matter that could be clarified either in examination-in-chief or in cross-examination. That would be the only comment we’d add there, your Honour.

PN164

THE DEPUTY PRESIDENT: Yes. I do note the objection of the respondent to 1.2 being tendered into evidence and the basis for that however I also note as I’ve said previously that there can be cross-examination of the witness by the respondent and the Commission reserves its right on the question of weight of attachment 1.2 which will be admitted into evidence.

PN165

MR STOKES: So we proceed, your Honour, to attachment 3?

PN166

THE DEPUTY PRESIDENT: What is the most convenient to you, Mr Stokes?

PN167

MR STOKES: Sorry, your Honour, I’m not on the finer point.

PN168

THE DEPUTY PRESIDENT: Yes. Which is the most convenient to you? We’ll proceed on that basis.

PN169

MR STOKES: Sorry, your Honour. I misunderstand what you were saying. Could you please clarify that?

**** JANET SINCLAIR-JONES XN MR STOKES
PN170

THE DEPUTY PRESIDENT: Could you hear me?

PN171

MR STOKES: Well, I am having a slight difficulty hearing, your Honour, to be honest.

PN172

THE DEPUTY PRESIDENT: Yes. Is that better?

PN173

MR STOKES: Slightly, your Honour.

PN174

THE DEPUTY PRESIDENT: I'll just check that this microphone is working properly. I'll ask my associate to check that.

PN175

MR STOKES: That’s clearer, your Honour.

PN176

THE DEPUTY PRESIDENT: Is that better?

PN177

MR STOKES: Yes, thank you.

PN178

THE DEPUTY PRESIDENT: Yes. Whatever is convenient to you in terms of proceeding to deal with all of the other attachments or to conduct your
evidence-in-chief.

PN179

MR STOKES: What I would suggest in terms of clarity sake, your Honour, we proceed as we are with regards to the attachments so we have a notation to each of them. So we’re on to, your Honour, attachment 3 of Dr Sinclair-Jones’ witness statement which is titled Minutes of the Implementation, Monitoring and Consultative Committee of 11 July which could become 1.3.

PN180

THE DEPUTY PRESIDENT: Mr Curlewis?

PN181

MR CURLEWIS: Your Honour, my objection is consistent with the previous one relating to minutes and I minute it simply on the same basis.

PN182

THE DEPUTY PRESIDENT: Yes.

EXHIBIT #1.3 DOCUMENT TITLED MINUTES OF IMPLEMENTATION, MONITORING AND CONSULTATIVE COMMITTEE DATED 11 JULY

PN183

MR STOKES: Thank you, your Honour. We therefore move to what is titled Attachment 4 and the title of the document is Proposal for Support Under the Reshaping Curtin Initiative which we would suggest be 1.4.

**** JANET SINCLAIR-JONES XN MR STOKES
PN184

THE DEPUTY PRESIDENT: Mr Curlewis?

PN185

MR CURLEWIS: No objection, your Honour.

EXHIBIT #1.4 DOCUMENT TITLED PROPOSAL FOR SUPPORT UNDER THE RESHAPING CURTIN INITIATIVE

PN186

MR STOKES: Thank you, your Honour. We therefore move to attachment 5 which is a letter dated 13 July from Dr Sinclair-Jones to Professor Hacket.

PN187

THE DEPUTY PRESIDENT: Mr Curlewis?

PN188

MR CURLEWIS: No objection, your Honour.

EXHIBIT #1.5 LETTER FROM DR JANET SINCLAIR-JONES TO PROFESSOR JEANETTE HACKET DATED 13/07/2006

PN189

MR STOKES: Your Honour, we move therefore to the next page which is a letter dated 18 July 2006 which is titled attachment 6.

PN190

THE DEPUTY PRESIDENT: Mr Curlewis?

PN191

MR CURLEWIS: No objection, your Honour.

EXHIBIT #1.6 LETTER DATED 18/07/2006

PN192

MR STOKES: Over the page, your Honour, a further letter of 20 July from Professor Hacket to Dr Sinclair-Jones, attachment 7.

PN193

THE DEPUTY PRESIDENT: Mr Curlewis?

PN194

MR CURLEWIS: That’s acceptable, your Honour.

EXHIBIT #1.7 LETTER FROM PROFESSOR JEANETTE HACKET TO DR JANET SINCLAIR-JONES DATED 20/07/2006

PN195

MR STOKES: The pages of minutes of the Implementation, Monitoring and Consultative Committee, IMCC, 8 August 2006.

PN196

THE DEPUTY PRESIDENT: Mr Curlewis?

PN197

MR CURLEWIS: Yet again we object on the basis of them being minutes.

**** JANET SINCLAIR-JONES XN MR STOKES
PN198

THE DEPUTY PRESIDENT: I’ve noted the objection and that will be admitted as 1.8 on the previous basis.

EXHIBIT #1.8 MINUTES OF IMPLEMENTATION, MONITORING AND CONSULTATIVE COMMITTEE MEETING DATED 08/08/2006

PN199

MR STOKES: We go to attachment 9, your Honour. It’s a document entitled Minutes of Implementation, Monitoring and Consultative Committee, IMCC, of 12 September 2006 which there are five pages.

PN200

THE DEPUTY PRESIDENT: Mr Curlewis?

PN201

MR CURLEWIS: Yes, your Honour. That’s objected to on an additional basis and it goes to what this dispute is and when it arose and indeed what dispute the Commission has to determine. You will recollect that I have previously sought in conciliation conferences and from the bar table for the applicant to identify with preciseness what the dispute is. There has been a previous indication made by you that the dispute would only deal with your determination with matters that arose to the point of the lodgement of the dispute, at least with the Commission that is to say.

PN202

It was lodged, as I understand the position, by a notice filed with the Commission on 8 August 2006. Based on what you have previously said on this matter anything after that date is irrelevant to this determination. The dispute we’re dealing with as I understand it is all matters such as they are up to 8 August. That’s when the dispute was filed. We’re not dealing with subsequent matters. Such that the minutes of a meeting at least a month after that are irrelevant to the consideration of a dispute that arose on 8 August and was filed here. On that basis in the public interest and not to clutter the Commission’s record with irrelevant documents I simply ask that this document simply just not be admitted.

PN203

It’s irrelevant. It arose after 8 August. Whatever is in the meeting again simply is hearsay, but be that as it may it’s not relevant. And consistent with what you have said previously in a conciliation that the Commission is only concerned with matters that arose to the point of a dispute being raised, not matters that arose subsequent to the dispute. On that basis I seek that this document not being admitted as irrelevant.

PN204

THE DEPUTY PRESIDENT: Mr Stokes, what is the relevance of the document to the matter to be determined by the Commission?

**** JANET SINCLAIR-JONES XN MR STOKES
PN205

MR STOKES: Your Honour, as will be revealed with regards to examination of Dr Sinclair-Jones it is relevant to the settlement of the dispute. The dispute still at this stage has not been settled. There are matters within those minutes that go to questions of clarification of where the dispute was at. It’s always been our view right throughout this process going way back that this dispute has not been resolved and provided the dispute is not settled it can change its course and character and therefore there is relevance.

PN206

THE DEPUTY PRESIDENT: Yes. At this stage I’m unable to understand precisely how it is relevant. I note that you say that it is relevant to the application. Is that what you’re putting?

PN207

MR STOKES: Yes, your Honour.

PN208

THE DEPUTY PRESIDENT: At this stage I don’t intend to admit it into evidence, but I am open to you giving further comments about it during your evidence-in-chief if you wish to revisit the question to establish precisely what its relevance is to the application before the Commission for the questions to be determined by the Commission arising from the application.

PN209

MR STOKES: Thank you, your Honour. We therefore go to the second of
Dr Jones’ witness statement titled Supplementary Witness Statement which we would indicate is exhibit 2 and that’s there to be tendered, your Honour.

PN210

THE DEPUTY PRESIDENT: Mr Curlewis, any comment on that?

PN211

MR CURLEWIS: Your Honour, numerous objections have been raised to that. I repeat them for the record and say no more. I object to parts of it being admitted, but in line with your previous rulings I understand that you admit it subject to weight.

PN212

THE DEPUTY PRESIDENT: Yes, thank you. I note the objection and accept that into evidence as exhibit 2 on the same basis as I’ve outlined previously.

EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF DR JANET SINCLAIR-JONES

PN213

THE DEPUTY PRESIDENT: Mr Stokes?

PN214

MR STOKES: Thank you, your Honour. Therefore I intend to proceed with further examination-in-chief with regards to Dr Sinclair-Jones to clarify and amplify a number of matters.

**** JANET SINCLAIR-JONES XN MR STOKES
PN215

THE DEPUTY PRESIDENT: Yes. Can I ask what is the estimated duration of the examination-in-chief?

PN216

MR STOKES: Your Honour, As an estimate an approximation of approximately an hour, your Honour.

PN217

THE DEPUTY PRESIDENT: Yes. Prior to commencing it may be an appropriate time to have a five minute refreshment break in accordance with the procedure I outlined, it now being almost 20 to 12. If you wish that the Commission will adjourn for about perhaps five, no more than 10, minutes. Would that be convenient?

PN218

MR STOKES: That’s acceptable, your Honour.

PN219

THE DEPUTY PRESIDENT: Mr Curlewis?

PN220

MR CURLEWIS: As your Honour pleases.

PN221

THE DEPUTY PRESIDENT: Yes. The Commission will adjourn for some 10 minutes.

<SHORT ADJOURNMENT [11.38AM]
<RESUMED [11.49AM]

PN222

THE DEPUTY PRESIDENT: Mr Stokes after an adjournment. Please continue.

PN223

MR STOKES: Thank you, your Honour, and thank you for your assistance with regards to the tendering of the documents. Your Honour, for continuity sake and clarity sake perhaps I could not start again or repeat myself, but begin by asking Dr Sinclair-Jones a range of questions to assist in terms of clarifying and amplifying her witness statement.

PN224

Dr Jones, can we just return please to your witness statement and perhaps just so we could begin on your first page and I'll take you firstly before we return to other matters that I had started to discuss with you is paragraph 6 and it states, it’s on the front page so we’ll start there with your assistance, it says:

PN225

I am branch president of the Curtin branch of the National Tertiary Education Industry Union and vice president academic of the WA division of the National Tertiary Education Union.

**** JANET SINCLAIR-JONES XN MR STOKES
PN226

What briefly is your role as branch president, Dr Sinclair-Jones?---As vice president of the Curtin branch at the NTEU I have a formal role as a leadership of that branch, but most particularly I represent all of the members of the NTEU employed at Curtin University in relation to their conditions of employment, in relation to the certified agreement and I in that role I oversee all of the matters that come to me through brought to me by members of the branch as well as by representatives, other representatives, of the organisation.

PN227

Thank you, Dr Jones. So do members speak to you often?---All the time and usually they will come to me as soon as they have a concern about a matter that they think goes to the certified agreement or to other policies and procedures in the university. Where there are any concerns or information that they want to bring to me they will come usually directly to me.

PN228

Thank you, Dr Jones. I now take you to paragraph 9 and previously we were having a discussion or I was asking you a series of questions around the staff liaison committee and it states at paragraph 9:

PN229

I am the chair as one of the two members elected by academic staff on the staff liaison committee and a staff liaison committee representative on the implementation and monitoring consultative committee.

PN230

So you are an elected representative on the staff liaison committee, is that correct?---That's correct, yes, elected by all of the academic staff at the university.

PN231

And is it also correct that as a consequence of your membership of the staff liaison committee that you are also on the implementation and monitoring consultative committee?---Yes, that's correct.

PN232

Now, if we could return please to the second page of your witness statement,
Dr Jones, and just for continuity sake with regards to your evidence I would like to return and just for you to clarify as to paragraph 10, the address to staff by Professor Jeanette Hacket who is the interim vice chancellor on 31 May 2006. Was this meeting to address staff? There was reference you say to reshaping Curtin University. Could you just, what references did Professor Hacket make at this address again please Dr Jones?---By memory of that address was that she referred to the need for Curtin University to undergo some reshaping in the light of the general educational sector nationally and she then went on to specifically refer to instructions to heads of areas that they would be asked to keep nominal salary budgets fixed for the next two years. But it was a general - those points were made within, you know, a longer address to staff about - - -

**** JANET SINCLAIR-JONES XN MR STOKES
PN233

And just to go on to the next paragraph - thank you, Dr Jones - and just to go on to the next paragraph where you refer to a meeting that you had with Professor Hacket and in attendance was also associate Professor Charnock. Why did you request this meeting?---We were concerned at, after the address to staff on
31 May 2006, we were concerned particularly by the reference to the nominal salary budgets being fixed because we were aware that in order to do that there would need to be significant reductions in employment given that there were commitments to 5 per cent on average annual pay rises over the life of the agreement. There was no way in our view that those salary fixes could occur without real employment losses and we were concerned that the university if it were to achieve a reduction of employment to do so in absolute accordance with the agreement that we had struck with the university, our staff and NTEU and that we were wanting to ensure that the university understood that we were committed to ensuring that that agreement be complied with and we were actually quite concerned given that in the previous year there had been attempts at forced redundancies which had caused unrest in the university.

PN234

In the final sentence of paragraph 11, Dr Sinclair-Jones, it states:

PN235

Meetings scheduled for us to meet with the vice chancellor on a monthly basis have all been cancelled at short notice by the vice chancellor’s office.

PN236

Why were these meetings cancelled?---There was no reason given except that there had been a consistent practice for the vice chancellor, the previous vice chancellor, to meet on a regular basis, a monthly basis, with the NTEU president. That practice initially, I understood, would continue with Professor Hacket as the interim vice chancellor so the meetings are actually scheduled in at the beginning of the year. You know, 10 meetings would be scheduled in by the vice chancellor’s PA. Those meetings were subsequently cancelled just electronically at short notice but with no direct explanation at the time.

PN237

Thank you. If you could just move on to paragraph 12 it states - - -

PN238

MR CURLEWIS: Excuse me, your Honour?

PN239

THE DEPUTY PRESIDENT: Yes, Mr Curlewis?

PN240

MR CURLEWIS: I don’t wish to interfere unnecessarily, but you have made directions that the parties be restricted to their proofs of evidence and no further evidence be led other than by leave of the Commission. Now, if we’re to be here for a full hour by way of clarification it’s certainly going to be not by way of clarification, it’s still leading more evidence which could have been put in these proofs. And certainly you spoke earlier about the issue of prolonging these proceedings and cost in the public interest and certainly I can not object to small clarification, but expansion I do object to simply because it’s inconsistent with the way the Commission is looking at this matter, it’s inconsistent with fair procedure and I simply highlight it now.

**** JANET SINCLAIR-JONES XN MR STOKES
PN241

I don’t know how far my colleague wishes to go, but he’s dealing with every paragraph and at least my client is entitled to an explanation why all this stuff was not put in the proofs in chief before so I could have had notice of some of the stuff that is being put up by way of clarification at this stage.

PN242

THE DEPUTY PRESIDENT: Yes. Mr Stokes, your response?

PN243

MR STOKES: Well, your Honour, it was always our understanding and it had been communicated to both the applicant and the respondent that both parties with regards to questions of examination-in-chief will be given the opportunity to clarify and amplify the witness statements that have been tendered. That’s not my intention, your Honour, to go through matters and I have not gone through matters paragraph by paragraph, but it was my intention to amplify and clarify matters to assist the determination of matters and that’s why we are here.

PN244

THE DEPUTY PRESIDENT: Yes. Mr Stokes, please proceed but bear in mind the extent or degree to which you clarify or amplify or you seek the witness to clarify or amplify the witness statement taking into account the time constraints on the hearing.

PN245

MR STOKES: If it please, your Honour. Your Honour, it is my understanding we were to paragraph 12 and there is an attachment to it in terms of paragraph 12. It’s to do with minutes of a meeting, 1.2 in exhibits, and it’s to do with a meeting of the Implementation, Monitoring and Consultative Committee, Dr Jones, and it’s to go to this question in the second sentence where it says:

PN246

As a result of this discussion - - -

PN247

THE DEPUTY PRESIDENT: What page is this?

PN248

MR STOKES: The minutes, your Honour?

PN249

THE DEPUTY PRESIDENT: Yes, the minutes.

PN250

MR STOKES: I’m on paragraph 12 and in the minutes at 1.2 it’s on page 2 under the title and the item number 3, Consultation and Change of Management.

PN251

THE DEPUTY PRESIDENT: Yes, thank you.

**** JANET SINCLAIR-JONES XN MR STOKES
PN252

MR STOKES: And at a number of times but particularly it says at paragraph 3 there, your Honour, Professor den Hollander led a discussion. The question to you, Dr Jones, is what did the committee discuss because I note that you were at this meeting? What did the committee discuss and say in response to the presentation that you refer to?

PN253

MR CURLEWIS: Your Honour, I object to that question.

PN254

THE DEPUTY PRESIDENT: Mr Curlewis?

PN255

MR CURLEWIS: All we’re doing is expanding on the evidence. I’ve objected already to the minutes of minutes of meetings going in. This is an expansion of the evidence. If it was put in the proof I could have had at least prepared for this sort of evidence. What we’re doing here is an application by stealth, asking now the witness to say what was said at the committee meeting when no notice of what was to be said is to be given. This is new evidence, your Honour. It could have been put in the proof. There was ample opportunity for this witness to put it in her proof. She even swore and signed a supplementary statement.

PN256

It is palpably unfair to now say what did the committee, some committee of 10 people, say. It is an unfair question. It is not an evidentiary issue. It is unfairness and procedurally unsound to allow this sort of stuff to come in at this point.

PN257

THE DEPUTY PRESIDENT: Mr Stokes?

PN258

MR STOKES: Your Honour, I go back to my original point. The clarification and amplification of what is there before us in paragraph 12 of Dr Sinclair-Jones refers to as a result of this discussion. The clause, Consultation, Change, Management clause 12 of the Academic Certified Agreement was put on the agenda. It may well assist the Commission. And certainly Dr Jones was at the meeting. She can clarify and amplify that discussion. It goes to the heart of matters in relationship to clause 12, Consultation, Change, Management which is a matter of dispute. It’s relevant to this matter, your Honour.

PN259

THE DEPUTY PRESIDENT: Yes. Mr Stokes, please continue, but please also bear in mind the brevity may be desirable given that it is a clarification or an amplification only of what is put here. If you could continue on that basis.

**** JANET SINCLAIR-JONES XN MR STOKES
PN260

MR STOKES: Thank you, your Honour, and I appreciate your comments.
Dr Jones, what did the committee discuss and say in response to that presentation?---The committee discussed the presentation made by Mr Stokes as industrial officer for the NTEU in relation to how to understand the proper procedures of clause 12 of the certified agreement. It discussed the request by the staff liaison committee to have that put on the agenda and to have the invitee there as an observer and a presenter because it was felt by the staff liaison committee that it was important for there to be clear understanding between the members of that committee about how the clause should be understood and how consultation should occur from the very outset of any changes or proposals.

PN261

Thank you. Thank you for that clarification, Dr Jones. Dr Jones, at paragraph 13 about half way through it says it’s in reference to an NTEU member and I’m reading about the fifth line from the bottom at paragraph 13 where it says:

PN262

The NTEU member had not been shown a copy of the document but came to speak with me as NTEU president and expressed concern that proposals were being developed without proper consultation of the affected staff.

PN263

Dr Jones, what concerns were raised by the member?

PN264

MR CURLEWIS: Your Honour, I again object to this issue. This is a person who is not to be called. This is a ghost. A person is to give evidence of a discussion with a party that is unnamed, unspecified. It is palpably unfair for someone to lead evidence which can not be tested. Having allowed it in chief, your Honour, to expand on it makes it worse for the respondent and I vehemently object to this being expanded upon in the sense that I am told that this witness, this person who’s made these statements, is not to be called.

PN265

THE DEPUTY PRESIDENT: Mr Stokes?

PN266

MR STOKES: Your Honour, it’s extremely relevant to the matter.
Dr Sinclair-Jones was there. She is currently in the witness box. The question I’m asking of Dr Sinclair-Jones has enormous relevance to this matter before you. I am simply seeking that Dr Sinclair-Jones amplifies and clarifies the concerns that were raised and were brought to her.

PN267

THE DEPUTY PRESIDENT: Having heard the objection and your response are you able to identify who this person was or can the witness identify who this person was?---Would you like me to respond, your Honour?

**** JANET SINCLAIR-JONES XN MR STOKES
PN268

I’m in Mr Stokes’ hands. I’m not really asking him a question at this point.

PN269

MR STOKES: Well, I’m more than happy if that be clarified with
Dr Sinclair-Jones.

PN270

THE DEPUTY PRESIDENT: Yes, certainly?---Thank you, your Honour. I am not able to identify for the public record the identification of members that come to me in my role as NTEU president, however I can provide those details to you in confidence. But I also have a statutory declaration that I have made which goes to declaration that I have been approached by a number of staff asking me as the president of the NTEU to represent them in relation to the Reshaping Curtin Initiative document and I have that as a sworn statutory declaration.

PN271

Thank you. Mr Stokes?

PN272

MR STOKES: I hope that has clarified that matter, your Honour. If so I’d like to proceed with the question I previously raised with regards to - - -

PN273

THE DEPUTY PRESIDENT: Mr Curlewis has risen.

PN274

MR CURLEWIS: Your Honour, I seek a ruling on the point of whether this evidence is admissible. We’ve been told now that the witness declines for the public record to identify this person who is referred to. I seek a ruling from you whether this evidence of an innominate third party person is admissible, not from a question of relevance but as to fairness. My colleague, Mr Stokes, misses the point. I’m talking about fairness.

PN275

THE DEPUTY PRESIDENT: Yes. Mr Stokes, in response to that?

PN276

MR STOKES: Your Honour, I very rarely miss points of fairness in my role. But beyond going to responding to questions of that sort Dr Sinclair-Jones was asked to clarify the question of the member, she has indicated that a member has approached her, she’s indicated that in a witness statement, she’s now indicated that as a witness under oath, she has further indicated that she can supply a statutory declaration, your Honour. Beyond that I’m unsure of what more I can say on that matter. But I do say that the question is simply one of attempting to clarify the questions of the concerns that were raised by this member.

PN277

THE DEPUTY PRESIDENT: Thank you, Mr Stokes. Mr Curlewis,
Dr Sinclair-Jones has said that she could provide information in confidence to the Commission. I’d seek your comments on that.

**** JANET SINCLAIR-JONES XN MR STOKES
PN278

MR CURLEWIS: Your Honour, it’s unbelievable that a public body, the applicant, which purports to represent members and it is regulated by a statutory body of this Commission says that it will not put on the public record the name of a person who has made a complaint about that person’s position in relation to that person’s employment. What we have here is a position where it is first said, at least in the witness statement, supplementary I wasn’t obliged therefore I didn’t give the name, it’s now put under a bit of pressure, we’ll tell the Commission but we won’t tell the respondent. It means absolutely nothing.

PN279

One can not understand the approach. This is a transparent Commission and to simply hide the name of the party the unfairness continues. It means nothing to give the name to the Commission. Your Honour, I can not accept in all fairness that such a deliberate act is fair and I simply ask that any expansion of this evidence - I’ve already objected to it being admitted at all - but any expansion of it is compounding the unfairness of a procedure. The Commission is bound to follow a fair procedure and to allow evidence relating to innominate persons is simply unfair, it is oppressive if I can put it as strong as that and it makes absolutely no sense for the applicant’s witness to say I can give you a statutory declaration.

PN280

She’s under oath now. She can give that evidence. A statutory declaration is no better than giving it under oath. She can give that evidence and to tell you, with respect, doesn’t make it any better who this witness is. I simply object again on the basis not of relevance, it’s entirely relevant, that is the very point which goes to jurisdiction, who this affected member is. Who this person is. But we are not entitled to know. It goes to the very point you have to determine. It’s entirely relevant and that’s why it should have been disclosed and should be disclosed now.

PN281

THE DEPUTY PRESIDENT: Yes. In relation to the sworn statutory declaration, Mr Stokes, was it your intention that that be provided to the Commission and to the respondent?

PN282

MR STOKES: Your Honour, We’re in your hands on that matter. What we would say on this matter is, and have continuously said on this matter because it goes to the certified agreement and to the operations of clause 14 dispute avoidance and resolution procedures, it has always been the NTEU’s view that there is no requirement for the name of a person to be provided to the university in the resolution of a dispute. We continue to argue that and we’ll continue to argue that. It is also our view that we have a witness statement before us and we have someone here under oath who has stated both in writing that a member which is stated in paragraph 13 that approached the NTEU president, Dr Sinclair-Jones, in her role as NTEU president and we have received clarification from
Dr Sinclair-Jones on her role as president, further under oath beyond the witness statement Dr Sinclair-Jones stated the person or the member has approached her, but further she’s also stated that she is willing to provide a statutory declaration to that effect.

**** JANET SINCLAIR-JONES XN MR STOKES
PN283

Now, beyond that, your Honour, we feel that there is no obligation in terms of this matter. This matter goes to questions of procedure with regards to what’s before you and we believe that those procedures are being followed. Beyond that what I was seeking to do in terms of my question to Dr Sinclair-Jones was get clarification of these concerns raised by this member. So beyond that we have nothing to say about the statutory declaration.

PN284

THE DEPUTY PRESIDENT: I take it the statutory declaration does not divulge the name of the member. That’s my understanding. Is that the case?

PN285

MR STOKES: Well, that’s something we could clarify with Dr Sinclair-Jones?
---No, it doesn’t. It doesn’t divulge names.

PN286

THE DEPUTY PRESIDENT: Yes. Well, what has been put to me is that there is some evidence now before the Commission which has been provided by the witness, Dr Sinclair-Jones, in particular in relation to paragraph 13 of the witness statement where there is reference to an NTEU member who came to speak with the witness in her capacity as the NTEU president and expressed concern and it seems that in the evidence-in-chief you, Mr Stokes, are seeking to amplify or clarify that matter. I have received an objection from the respondent who has put to me that this is not only unfair but is bordering being on oppressive as I understand what you said, Mr Curlewis.

PN287

MR CURLEWIS: Yes, your Honour.

PN288

THE DEPUTY PRESIDENT: It does seem to be a relevant and indeed perhaps important consideration that is raised here and it’s been put to me that this does raise the relevant clause of the certified agreement, namely clause 14 the dispute avoidance and resolution procedures clause and the consequent obligations upon the parties of that clause. Perhaps it might be 14.2.1 that might be relevant in this regard which refers to in the first instance a staff member and or where the staff member or members and where they choose their representatives together with a representative from staff services shall discuss the dispute and attempt to reach agreement.

PN289

It seems that that provision is now perhaps brought into question as something that should be addressed in conjunction with whether I should rule to allow or not to allow the clarification of the evidence. Mr Stokes, do you have any further comments in relation to what I’ve just said?

**** JANET SINCLAIR-JONES XN MR STOKES
PN290

MR STOKES: Your Honour, the only comment that I would make goes to the comments that I have made with regards to the question that the NTEU have consistently put before the Commission, that is the question of the naming of a staff member or staff members. There is no requirement would be the point that we have consistently made. I would simply be repeating the previous point that we have a witness statement of Dr Sinclair-Jones, we have her here, she’s under oath and she’s made a comment about a statutory declaration. Beyond that I have no comment, your Honour.

PN291

THE DEPUTY PRESIDENT: Mr Curlewis, any further comment on what I’ve just said?

PN292

MR CURLEWIS: Yes, your Honour. Your Honour, what you’re being asked to accept as an industrial procedure is that one party, a party to this agreement, can enter into discussion about innominate, unspecified persons in good faith ostensibly to sort out a dispute about an innominate person. It begs my belief, if I could - - -

PN293

THE DEPUTY PRESIDENT: Can you repeat that word?

PN294

MR CURLEWIS: It begs my belief.

PN295

THE DEPUTY PRESIDENT: No, about the person.

PN296

MR CURLEWIS: Innominate, unnamed person.

PN297

THE DEPUTY PRESIDENT: Yes, thank you.

PN298

MR CURLEWIS: I put it as strongly to say it begs my understanding how that can be procedurally fair. It goes that one is asked to resolve a dispute about an unnamed person. It is rather like coming to this Commission and asking the Commission to deal with an unfair dismissal about somebody who has been dismissed. You’ve got to identify who you’re talking about. It doesn’t say in the Commission’s rules or Act that one must identify that person. It refers to simply the forms. It does say fill out the name of the party concerned. But an application can be brought without reference to the actual form.

PN299

It simply says if it’s brought by the union it brings it and it is obliged to always identify who it’s dealing with. It would be impossible to conciliate. By analogy this is the same situation here and it is accentuated by the fact there are numerous instances, jurisdictionally, within the certified agreement where it requires the individual member to do something, not its so-called agent. I'll address you further jurisdictional on that point, but my point remains the same that we’re dealing now with a procedural fairness, not a relevancy. It’s quite relevant. It’s abundantly relevant who the so-called affected person is.

**** JANET SINCLAIR-JONES XN MR STOKES
PN300

For the Commission to deal with an unspecified so-called affected member is to essentially be a court of star chambers dealing with somebody out there who we say has got a problem. That’s essentially what you’re being asked to do. It doesn’t make sense. It can’t be the basis of a fair dispute.

PN301

THE DEPUTY PRESIDENT: Did you wish to rise, Mr Stokes?

PN302

MR STOKES: Yes. Yes I did, your Honour. This matter to do with the question of naming the staff member in terms of this is not to do with questions of procedural fair, it’s to do with a question of the dispute resolution procedures that is there before us in a certified agreement that the parties to that agreement, including the NTEU and the university, are a party to with all understandings associated with the negotiation process and the certification of this agreement both parties were in agreement to this procedure.

PN303

This procedure categorically states in terms of a procedure that there is no requirement to name people, to name staff members. Are we suggesting, your Honour, that in a witness statement written by Dr Sinclair-Jones, or is there a suggestion I should say because I’m certainly not suggesting it, is there a suggestion that the witness statement written by Dr Sinclair-Jones and what she stated under oath, she has clearly stated that a staff member has come to her which is the correct procedure under 14.2.1 and therefore the proper procedure has been followed. This is a question of procedure and process, your Honour, that’s before you.

PN304

THE DEPUTY PRESIDENT: Mr Curlewis, you were going to rise?

PN305

MR CURLEWIS: Yes. I apologise for that, your Honour. It is probably incorrect for Mr Stokes to say that this certified agreement categorically states there is no obligation to name the affected member. It doesn’t say that. Categorically means expressly says. It does not expressly say anything to that effect. It is silent. That is a big different from saying thou shalt not or may not name the party. It is silent. It is a big step for the union to jump from saying there’s an express authorisation not to name it, to leave it silent.

PN306

The Commission, with respect, has to make sense of this certified agreement, but it goes ultimately to procedural fairness and I will be submitting and cross examining further as I go as to what the effect of the section means in practice, but in the final analysis this is a fundamentally unfair issue for a party to come to this Commission to seek relief without identifying to the Commission and the other party the full basis of its complaint. It is complaining about an issue. It’s got a dispute, but it won’t even say who the dispute is about. That is fundamentally unfair.

**** JANET SINCLAIR-JONES XN MR STOKES
PN307

THE DEPUTY PRESIDENT: Thank you, Mr Curlewis. Mr Stokes, in relation to the evidence that you’re seeking to clarify or amplify from the witness,
Dr Sinclair-Jones, it seems to me having heard at some length now the objection and the response that the Commission might have a difficulty in reaching an informed and considered assessment and conclusion of whether the requirements of clause 14 of the certified agreement have been satisfied without knowing that the identity of the staff member or staff members concerned, if it’s just one staff member perhaps that’s different from a number of staff members, but at least on the assumption that at least one staff member is being relied upon, the identity of that staff member and if the applicant does not allow such clarification or amplification of this evidence then the Commission may have difficulty in attaching significant weight to this evidence.

PN308

So I’m wondering a way around this objection and this issue might be, and I’m going to ask you this, for the Commission to go off the record if necessary in a more private way for this information to be given to the Commission and to the respondent in confidence but not on the public record. Now, if you would wish to have a brief adjournment to consider that, if you think that might be something that you want to give consideration to, I’d be happy to adjourn briefly to allow you to reflect on that, but it seems that it might be a way forward subject to me hearing what Mr Curlewis has got to say about it.

PN309

In other words if this procedure was followed the respondent would be informed together with the Commission but in confidence and not on the public record. Did you wish to comment first on that, Mr Stokes?

PN310

MR STOKES: Not at this stage, your Honour.

PN311

THE DEPUTY PRESIDENT: No. Mr Curlewis?

PN312

MR CURLEWIS: Your Honour, to some extent it would depend on what the NTEU says about that, but I do not think it satisfied with the greatest respect the procedurally unfair aspect of this aspect. One now identifies a person the issue is if that person is identifiable then on any procedural basis the fundamental of any judicial body, arbitral body, is in dealing with a matter to have evidence from that person. Now, it goes to the procedural issue that that person is to be cushioned or protected, so to speak, by the Commission by that person now identified, let’s say, not being called to give evidence to identify their issues.

**** JANET SINCLAIR-JONES XN MR STOKES
PN313

A third party gives evidence. There’s no evidence to say this person’s in a coma, this person is unable to express their own point of view. This person may well be identified even perhaps off the record if you so order, but it doesn’t help the respondent which is precluded from cross examining that person and dealing with the merits of this so-called dispute brought by an affected member. It goes to the integrity and the jurisdictional point of clause 14 whether this dispute in fact is the members or it’s the union’s dispute. That, I may suggest, is the big issue. Whose dispute is this?

PN314

The respondent should be entitled to cross-examine that person. Alternatively that evidence of a third person even now named should not be admissible. So whilst you may, with respect, say this is way through it doesn’t satisfy my client and my position that it still remains procedurally unfair simply to name someone. It doesn’t take the matter much further.

PN315

THE DEPUTY PRESIDENT: In relation to an adjournment, Mr Curlewis, if
Mr Stokes wishes to have one?

PN316

MR CURLEWIS: Yes. No, I don’t object to that.

PN317

THE DEPUTY PRESIDENT: Mr Stokes, you’ve heard what’s been said. Would you wish to take an adjournment?

PN318

MR STOKES: Yes, your Honour.

PN319

THE DEPUTY PRESIDENT: Yes. I note that in accordance with the guidelines I propose it’s approximately 10 minutes before the lunch break. What is your wish, would you like to just take a few minutes and then come back or would you like to take a longer adjournment and make it lunch and then come back perhaps a bit earlier?

PN320

MR STOKES: We’re happy with the latter, your Honour, in terms of lunch and then coming back. It would seem sensible.

PN321

THE DEPUTY PRESIDENT: Yes. Mr Curlewis?

PN322

MR CURLEWIS: That sounds eminently sensible, your Honour.

**** JANET SINCLAIR-JONES XN MR STOKES
PN323

THE DEPUTY PRESIDENT: That sounds sensible. That being the case then the Commission notes that it is a little earlier than foreshadowed, but if it’s not rushing the parties we might try and gain an extra five minutes and resume at 1.30. I will now adjourn.

<LUNCHEON ADJOURNMENT [12.35PM]
<RESUMED [1.33PM]

PN324

THE DEPUTY PRESIDENT: We recommence after the luncheon adjournment and I note that the applicant had an opportunity to consider what the Commission had said and the respondent had said in relation to an objection concerning the application of the evidence of Dr Sinclair-Jones and associated questions. I now invite you, Mr Stokes, to address me on your further thoughts.

PN325

MR STOKES: Thank you, your Honour, and the NTEU have given due consideration to the matter before us just prior to the adjournment lunch. Your Honour, the NTEU’s view on this matter is that the matter before you or the matter that was raised with regards to the identity of the affected staff member or members should be a matter for cross-examination. We’re in the process from our perspective giving examination-in-chief. We want to progress with our case. We are continued to be reminded of the fact that the matter is time consuming so we want to get to our witnesses and to our examination-in-chief.

PN326

So that is the point that we’d make with regards to the identity of the affected staff member. Further we would say that the witness statements and certainly
Dr Sinclair-Jones’ witness statement has indicated that she is an affected staff member, matters that we will put further questions to Dr Sinclair-Jones about in due course and to other witnesses that we will call. And I think that’s an important point with regards to the points that were made with regards to clause 14 of our certified agreement. As to the relevance of the naming of the staff member in our view this is not relevant to our questions and we wish to proceed with our questions because they went to questions of clarification with regards to an issue of concern and that would be our view at this stage, your Honour, and we wish to proceed with examination-in-chief.

PN327

THE DEPUTY PRESIDENT: Yes, thank you. Mr Curlewis?

PN328

MR CURLEWIS: Thank you, your Honour. Your Honour, that is I understand the NTEU’s response to my application that any clarification of this hearsay position of this ghost person be expanded upon and I simply persevere with my application that any expansion of the evidence, particularly with relation to paragraph 13, not be admitted for the reasons that I have previously said and I simply persevere for a ruling in that respect.

**** JANET SINCLAIR-JONES XN MR STOKES
PN329

THE DEPUTY PRESIDENT: Are you persevering in respect to a ruling that there be no further clarification or amplification of the evidence in examination-in-chief in paragraph 13?

PN330

MR CURLEWIS: That in particular. This is dealing with the statements or the discussions or the communications between the union and this innominate person.

PN331

THE DEPUTY PRESIDENT: Yes.

PN332

MR CURLEWIS: I seek that any further clarification or expansion of this evidence which I can’t test not be admitted and that’s the ruling that I seek. That no further expansion of this evidence be allowed for two reasons, one because of the palpable unfairness of the procedure - as I said a precipice - but secondly there was ample opportunity at least at the beginning to put this in this proof, but to expand it now at this stage is contrary to your previous ruling in any event which said give us your proofs, lets try and curtail the time of these proceedings by giving the Commission your evidence-in-chief.

PN333

Now, to come along and say please tell me more about this discussion is going well outside that ruling and it gets even more grotesque, if I may say, given the nature of the evidence that is sought to be put up, as it’s said, by way of clarification. It’s simply an expansion of completely intangible, unfair issue.

PN334

THE DEPUTY PRESIDENT: Yes. Mr Stokes, are you persisting with the amplification of the material in paragraph 13?

PN335

MR STOKES: Yes, your Honour.

PN336

THE DEPUTY PRESIDENT: You do wish to persist?

PN337

MR STOKES: Yes we do, your Honour, and procedurally the only comment that we would add is that if there’s going to be a ruling on that matter is that we believe it would be our view that you rule that when it comes up in cross-examination, your Honour. We are seeking and have gone no more than and through no fault of the NTEUs because we would have thought the examination-in-chief would have been concluded but there’s been many interruptions, but beyond that procedurally we would see that that would be a matter that would come up in cross-examination therefore ruling at that time, your Honour.

**** JANET SINCLAIR-JONES XN MR STOKES
PN338

THE DEPUTY PRESIDENT: Yes. You understand that there is an objection to any further amplification or clarification of paragraph 13 and I’ve been asked to rule on that objection. You are aware of that, aren’t you? You’re clear about that?

PN339

MR STOKES: Yes, I understand that.

PN340

THE DEPUTY PRESIDENT: Yes. So you’re putting to me, are you, that I should not rule on this matter now?

PN341

MR STOKES: Your Honour, it would seem to me that to repeat myself that it would be procedurally that is a matter that the respondent wishes to raise in
cross-examination that would seem procedurally the most appropriate way to progress this, yes at that time in cross-examination.

PN342

THE DEPUTY PRESIDENT: Yes. Mr Curlewis, I’ve heard your other comments, a number of comments from you. I’m asking you specifically on this aspect which is do you accept that it’s appropriate that the ruling be given not now but during cross-examination?

PN343

MR CURLEWIS: Your Honour, I, with respect, can not understand the submission from the other side of the bar table. For you to make a ruling during cross-examination presumes that the evidence-in-chief is on the record. For me to start cross examining on it it’s already on the record, it’s already before you. The bottom line is what is being sought is a cheap way of expanding the evidence and it doesn’t make any sense to say delay your ruling until cross-examination starts. The appropriate, with the greatest respect, time is for the ruling to be made at this point whether the evidence should be admitted at all.

PN344

That will curtail cross-examination and further debate down the track if it were expunged and therefore I can not agree, with respect, to such a submission. I can not frankly understand it in the context of this and would ask that you make a ruling as to the admissibility of this expansion for the two reasons I have said, the unfairness and the expansion of the evidence.

PN345

THE DEPUTY PRESIDENT: Yes. I’m conscious that a significant amount of time has been spent on this question, the question of this objection and there was an opportunity during the adjournment as well for parties to reflect. I have been asked to make a ruling in relation to the amplification of the evidence by the witness in paragraph 13 in relation to an NTEU member who has not been identified. I did raise an option earlier of whether this information be given to the Commission and the respondent in confidence off the record and I note that the respondent has objected to that proposal and the applicant has not pursued that proposal. That is the case isn’t it, Mr Stokes?

**** JANET SINCLAIR-JONES XN MR STOKES
PN346

MR STOKES: Sorry, could you further clarify that point?

PN347

THE DEPUTY PRESIDENT: Yes. I did ask before the adjournment as to whether you might wish to consider the name of the relevant NTEU member being divulged to the respondent and to the Commission in confidence, off the record, and I note that you haven’t requested that I do that. Did you wish to respond to that?

PN348

MR STOKES: Well, only to say and to add that that again would be a matter that it’s not a matter that we have raised, your Honour, in terms of our examination-in-chief which we wish to progress as soon as possible, but it is a matter that is being raised by the respondent. It would seem to me that that be a matter that’s addressed in cross-examination. It is not us as the applicant who are raising these matters. Beyond that we’re in your hands, your Honour, with regards to the matter.

PN349

THE DEPUTY PRESIDENT: Yes.

PN350

MR STOKES: But procedurally again I repeat it would seem reasonable and fair that that matter be dealt with at that time.

PN351

THE DEPUTY PRESIDENT: Yes. The Commission is bound to deal with matters that are raised to it and I have been asked to consider making a ruling which either I must do or refuse to do and in hearing what’s been put to me I have a concern about further evidence being given in relation to an NTEU member who is unknown not only to the Commission but is unknown also to the respondent. The question that has arisen in my mind is whether there would be any prejudice to the unknown NTEU member being named or would there be a risk of persecution of that member.

PN352

I’m having difficulty in seeing that there is any serious risk of prejudice to that person or to the applicant if that person’s identity was revealed. I also have a concern that the spirit of the dispute avoidance and resolution procedure clause does, it seems, to allow some sufficient openness for the parties and the Commission to be satisfied that that has been met. So I’m not inclined at this point to allow any further examination-in-chief on the basis that the person is not identified, but if in fact the applicant would wish to reconsider and to identify the person then certainly that’s something that I would consider further.

**** JANET SINCLAIR-JONES XN MR STOKES
PN353

So at this stage I rule against any further examination-in-chief on the NTEU member referred to in paragraph 13. Mr Stokes.

PN354

MR STOKES: Well, sorry, your Honour. You’ve made your ruling, but I was going to put a point to Dr Sinclair-Jones with regards to the matter prior to the adjournment with regards to the question of going into a private situation, I think your wording was prior to our adjournment, with regards to an in confidence and off the record question with regards to that. Now, my understanding of that matter is that that matter, because it’s not us that have raised that matter, your Honour, that is the identity of the person, but it is a matter that we thought could have been determined in terms of cross-examination, but I would like to seek
Dr Sinclair-Jones’ view on that and would ask if that is appropriate and possible, your Honour.

PN355

THE DEPUTY PRESIDENT: Mr Curlewis?

PN356

MR CURLEWIS: I’m not quite sure where the applicant is coming from, but as I understand it it is seeking for an adjournment to take instructions as I understand it. These matters, if I understand what’s being said, could have been traversed in the last hour. The witness is not under cross-examination yet so there is an ability to consult. Now, in the end if I misunderstand it the NTEU can’t have its cake and eat it. It has not wanted to withdraw leading further evidence or expansion of paragraph 13. I have objected to it and sought a ruling. That ruling has now been made and no further expansion, as I can understand it, or further evidence is admissible from the Commission’s point of view in that paragraph.

PN357

In my point, in my understanding that’s the end of the matter. As to
cross-examination I have liberty to cross-examine, but on that point that paragraph is dead and the applicant should move on and deal with the rest of the proof and however it wishes to deal with its evidence.

PN358

THE DEPUTY PRESIDENT: Mr Stokes, did you wish to comment further on that?

PN359

MR STOKES: No further comment, your Honour. We’re in your hands.

PN360

THE DEPUTY PRESIDENT: Were you in fact seeking an adjournment?

**** JANET SINCLAIR-JONES XN MR STOKES
PN361

MR STOKES: No, your Honour.

PN362

THE DEPUTY PRESIDENT: No. Were you in fact seeking to have further examination-in-chief in relation to whether or not the identity of the NTEU member should be divulged?

PN363

MR STOKES: No, your Honour.

PN364

THE DEPUTY PRESIDENT: No. I am unclear as to whether there’s any question that you want me to address other than to raise the continuation of your examination-in-chief.

PN365

MR STOKES: We’re ready to continue, your Honour.

PN366

THE DEPUTY PRESIDENT: Please do so.

PN367

MR STOKES: Thank you. Dr Jones, I'll take you to paragraph 15 and I apologise for the delay in getting to this, Dr Jones. At paragraph 15 you make reference to a member, an NTEU member, bringing you a copy of a document titles Proposal for Support Under the Reshaping Curtin Initiative which is a document that was in your attachments and now is marked 1.4. Is that correct?
---Yes.

PN368

In terms of that document it was identified as a document and at the document it’s got there at the top, I’m reading from it’s referred to as a template to provide work areas with the opportunity to detail the rationale and impact of proposed workplace change, Dr Jones. When that member brought you that document what did you discuss with the member when they did bring you that document?

PN369

MR CURLEWIS: Your Honour, my objection again applied.

PN370

THE DEPUTY PRESIDENT: Mr Curlewis?

PN371

MR CURLEWIS: I object to that evidence. It is an expansion of evidence which should have been put in the statement at the outset in accordance with your ruling and it again refers its identical position to the previous member such as it’s different. This is an innominate member, unnamed member, to expand on a discussion with a ghost. I have to be as blunt as that. This is a ghost. It is unspecified. There is refusal to put this person up for cross-examination and my objection is the same and I would respectfully suggest your ruling should be the same in relation to this same situation.

**** JANET SINCLAIR-JONES XN MR STOKES
PN372

THE DEPUTY PRESIDENT: Mr Stokes?

PN373

MR STOKES: This goes to direct evidence with regards to Dr Sinclair-Jones’ discussion with the member. It goes nothing to the question of the procedures with regards to the dispute. It goes to questions of clarification of the document and the discussion that occurred. Dr Sinclair-Jones was in attendance at this meeting with this member, your Honour, and therefore it is relevant.

PN374

THE DEPUTY PRESIDENT: Yes. I can understand what you’re putting that it is relevant, but I am confronted again by an objection which is of the nature that we’ve spent some time discussing which is that it relates to evidence from a different member of the NTEU as I understand it who is not identified and the previous objection I’m advised by the respondent has been raised to me on this and there was of course the point made to me that in the event of an unnamed person certainly there would not be the opportunity for the respondent to
cross-examine.

PN375

It appears that from what you’ve said earlier, Mr Stokes, and I'll ask you this, that you have said that Dr Sinclair-Jones is a staff member who could be considered to be relevant to the application of 14.2.1. Is that the case?

PN376

MR STOKES: Yes, your Honour, to the extent that all the witnesses that we are calling today are staff members. Yes, your Honour.

PN377

THE DEPUTY PRESIDENT: Yes. There is the question as you know which I raised at the commencement of the hearing concerning jurisdiction, but that is still a question to be further addressed, but for the same reason that I’ve given earlier I find that to have further evidence-in-chief in relation to an unnamed member of the NTEU should not be allowed pursuant to the directions.

PN378

MR STOKES: That’s your ruling is it, your Honour?

PN379

THE DEPUTY PRESIDENT: Please continue, yes. Yes, that is the ruling which I have arrived at.

PN380

MR STOKES: Dr Sinclair-Jones, we will move on to paragraph 20. At paragraph 20 there is reference there to an attachment 8, Dr Jones, which is now numbered 1.8 and it’s the Implementation, Monitoring and Consultative Committee minutes of a meeting on 8 August 2006, Dr Jones. And at this meeting you make reference to a Mr Bill Ryan, is that correct?---Yes.

**** JANET SINCLAIR-JONES XN MR STOKES
PN381

And in reference to Mr Bill Ryan there you state at paragraph 20 in your witness statement you state that Mr Bill Ryan staff services advised that the proposals for reshaping had been considered by the vice chancellor and given initial approval to proceed with the change processes in accordance with clause 12.4 and 12.5 of the agreement. When this matter, this advice, was provided to Mr Ryan what did you say with regards to that advice Dr Jones?---My response was that prior to the lodgement this is in relation to the proposals - sorry. At that meeting where there was a discussion about the Reshaping Curtin document that there was discussion at that meeting about the lodgement of a dispute and then in particular my reference to it was in relation to the fact that prior to the lodgement for a hearing with the AIRC there had been a meeting with myself and Mr McGinniss, an employee of the university, in services to actually try to discussed and resolve the dispute in accordance with the clauses set out in the certified agreement.

PN382

And when Mr Ryan provided this advice did you make any other further comments with regards to your agreement or otherwise with regards to the advice?---At that meeting?

PN383

Yes?---Well, as the minutes record the meeting we talked about the fact that the meeting with myself and Mr McGinniss had occurred, that I had requested given that the matter could not be resolved at that meeting that there would have been a request for the matter to proceed to the IMCC within 10 days as established by the certified agreement and that the matter was proceeding in that way.

PN384

Thank you. And you also, I understand, were in attendance with regards to a meeting with Mr McGinniss with regards to this matter prior to this meeting?
---Yes, that's right and at that meeting Mr McGinniss and I, as I say, had attempted to resolve the dispute, but the NTEU had put to Mr McGinniss its proposals for how the dispute could be resolved. Mr McGinniss indicated that they would not be acceptable to the university and then endeavoured to have some discussion about the different understanding of what consultation might mean. That was discussions that we’d had at length previously and didn’t actually manage to resolve the matter so it was then referred to the IMCC because members of the NTEU had asked me to seek that referral if it could not be resolved at that meeting.

PN385

Thank you, Dr Jones. Just at paragraph 22 where you state at paragraph 22 throughout August, and that no doubt is in reference to August 2006, you state there that the executive deans of humanities, engineering and science and health sciences announced a number of program reviews then you also go on to make reference to the proposal for support under the Reshaping Curtin Initiative document and you make a number of other comments there with regards to both the reviews and the document. What consultation with regards to the Reshaping Curtin Initiative document, or its full title being Proposals for Support Under the Reshaping Curtin Initiative Document, what consultation had occurred with you as an academic staff member with regards to this document, Dr Jones?---None whatsoever.

**** JANET SINCLAIR-JONES XN MR STOKES
PN386

MR CURLEWIS: May I seek some clarification here?

PN387

THE DEPUTY PRESIDENT: Yes.

PN388

MR CURLEWIS: You had previously made a ruling that issues up to 8 August, being the date of the dispute, were relevant, and that's my understanding of the position. I just need to clarify that in the context this question is not being sought, it's referred to, it said throughout August 2006. I wish to seek clarity that what is being referred to, the question is being posed, prior to 8 August as opposed to anything after that date, so that we don't go down a rabbit warren about expanding this dispute.

PN389

THE DEPUTY PRESIDENT: Mr Stokes?

PN390

MR STOKES: All due respect, your Honour, that's a matter for cross-examination from our perspective.

PN391

THE DEPUTY PRESIDENT: Mr Curlewis, can you clarify for me a little further what you're saying?

PN392

MR CURLEWIS: Yes. So that this matter doesn't become like Ben Hur, there is a need for the dispute to be identified obviously and it to be confined to the dispute. The position has been put by the Commission before that what is relevant to this dispute is what occurred at least up to the time the dispute was lodged, because that is the dispute. Now, what I'm seeking here, this statement seeks to go past the date of the dispute to matters that occurred subsequently. Now, if Mr Stokes is seeking to now expand the dispute or to add matters which occurred after 8 August, which is the date of the dispute and what the Commission is obliged to deal with, I would seek him to make that clear. All he said, he is referring to paragraph 22, which is throughout August. That means indeed from
9 August to 31 August. To the extent the question refers to any days after
8 August it should be disallowed, that's what I am saying.

PN393

THE DEPUTY PRESIDENT: Are you, Mr Stokes, seeking to make any arguments about what happened subsequent to the application being lodged?

**** JANET SINCLAIR-JONES XN MR STOKES
PN394

MR STOKES: Your Honour, the point that we would make in relation to questions of our application is the ones that we have consistently made for a very long period of time. This is the NTEUs application. The respondent continues to redraft our application, continues to attempt to define our application. It is our application. It has always been our view that the so called 8 August definition from the respondent we are not in agreement with. It has been our view that it is a nonsense to argue that matters that go beyond 8 August are not relevant to this dispute. Quite clearly they are. That the dispute has not been resolved, it's not been settled, and of course it can change its course and its character.

PN395

At no time in my question to Dr Sinclair-Jones did I make any relevance to date. I made a relevance to the reshaping document, which is quite clearly an issue before us, and what I would be seeking to do is to progress without any further interruptions on this matter.

PN396

THE DEPUTY PRESIDENT: Mr Curlewis?

PN397

MR CURLEWIS: Thank you, your Honour. I don't wish to be disruptive, but I do have to protect my client's interests. You will recollect that I have argued vehemently before, if not here, also in conciliation conferences that it's up to the applicant to identify what its dispute is, so much so that I wrote a letter which I seek to hand up to remind the applicant, I wrote a letter on 13 November last year in which I recorded, and I quote from it. I will, with your permission, hand you a copy for the minute.

PN398

MR STOKES: Your Honour, I'm unsure of where we're proceeding with regards to this matter. I am in examination-in-chief, your Honour, I am attempting with your assistance, your Honour, since 10 am this morning to progress matters. I am continued to be reminded by all that this has gone on for a long period of time through no fault of the NTEUs. We're attempting to get our evidence heard, we are being constantly interrupted. We now have a letter before us. I am procedurally unsure of what this is to do with. I have stated that there is no reference to a date in my questioning at this stage to Dr Sinclair-Jones.

PN399

I do seek some guidance to procedurally where we're heading, but I do wish to place on record my concerns with regards to the constant interruptions with regards to these matters.

PN400

THE DEPUTY PRESIDENT: Yes, thank you, Mr Stokes, I do understand what you've put. Clearly the hearing today has been listed to allow the applicant first to get his evidence before the Commission, and I note that you are attempting to do that. I'm also, however, mindful that the respondent has raised both before the hearing and again today a number of objections about what evidence can be admitted. What has now I think led to this latest interchange is the objection of the respondent to the clarification of the evidence in relation to paragraph 22, particularly after the date of 8 August 2006.

**** JANET SINCLAIR-JONES XN MR STOKES
PN401

Perhaps the simplest way of proceeding would be for me to allow you to continue but to note that the application before the Commission was received by the Commission on 9 August 2006, it was dated 8 August 2006, and therefore the Commission is, as I've said before, working on the basis that it applies to the events which are detailed in the application, if you just bear that in mind. Please proceed.

PN402

MR STOKES: Thank you, your Honour.

PN403

Dr Sinclair-Jones, to go back to paragraph 22, you make reference to the reshaping document and reviews and questions of consultation. What consultation occurred with you as an affected staff member with regard to the reshaping document?---None.

PN404

What consultation in your mind should have occurred?---In relation to the reshaping document, that where the university had a view that it needed to move towards reshaping there needed to, under the terms of the certified agreement, be consultation with all staff in relation to advice about the need for such reshaping, imperative for such reshaping, and then to seek consultation with staff about how that reshaping might be formed, what kind of reshaping actually would occur, and how that might best be achieved, so that there should actually have been a very clear statement about what the imperatives were and how the university might move forward towards reshaping, and to then seek from all of its staff views about what steps might be taken to achieve that and how that might be achieved. That in my view is what consultation is actually required under the terms of the agreement, that the university needed to actually hear and to talk with its staff about those matters before it then moved towards any proposal for reshaping which this document is actually referring to.

PN405

And that did not occur did you say?---No, there was no consultation in that form.

PN406

Just in terms of what you said there, you made mention of proposals arising out of the reshaping document. Is it also - sorry, let me put that different, Dr Sinclair-Jones. What consultation should have occurred with regards to any proposals arising out of such a document?---Well, once the consultation had occurred the format of that document would have been a document that had resulted out of consultation, and then presumably, I mean, I assume it would have been a very different looking document to the one that actually was developed, and that in doing so proposals or suggestions might have come forward out of further consultation and that those proposals and suggestions would have been able to be considered and discussed in an open and consultative way as has always been the understood practice in the organisation, and certainly understood within the terms of the certified agreement.

**** JANET SINCLAIR-JONES XN MR STOKES
PN407

Did you raise this view or these views of consultation with the vice chancellor?
---We certainly - well, we raised initially in that meeting that we've already discussed, there was in our statement to the vice chancellor when the myself and Associate Professor Charnock, who is the vice president of the organisation, stated to the vice chancellor that we expected any reshaping to occur in accordance with the requirements of the certified agreement, we understood that that would of course be the process. So it was stated, you know, we made a very clear statement about the needs for proper application of the certified agreement. And then of course we would have continued to make those kinds of representations to her if we had been able to have our previously scheduled meetings which had been cancelled. But they were certainly made by us as a group in the staff liaison committee and the representatives of the staff liaison committee that went forward into the IMCC and made those comments constantly to the university representatives on that committee.

PN408

And was Professor Jane den Hollander in attendance at any of these meetings?---I think she was present at all of those meetings.

PN409

So on that basis she certainly would have heard your view?---Yes. And it seemed to be a view that they were not in agreement with.

PN410

What do you base these views of consultation on, Dr Sinclair-Jones?

PN411

MR CURLEWIS: Your Honour, I stand again to object. I don't know where this is going as to clarification of a proof that should have identified this expansion. We're trying to curtail and restrict the time of these proceedings. There is two efforts made providing a statement of evidence. We are expanding it, not clarifying it. This is asking new questions. No explanation is given why this was not put in the statements before. The very purpose, with respect, to your orders was file statements of evidence so that we can move on and at least have it heard in-chief. But we've spent, leaving aside the objections that have taken a fair bit of time today, dealing with expanding with this evidence, and simply its just not fair to go and expand and expand and expand, and expect the respondent to sit there and expand it outside the rules that the Commission itself has set.

PN412

THE DEPUTY PRESIDENT: Yes, Mr Stokes?

PN413

MR STOKES: Your Honour, these are purely questions of amplification and clarification. There is many references to the question of consultation. It goes to the question of the dispute. We have a witness before us today who has put into her witness statement a range of views regarding consultation, there are a range of attachments to her written submission on more than one occasion with regards to meetings of the IMCC, where witnesses that will come before you today on behalf of the applicant and respondent will be discussing questions of consultation. There is the matter of consultation which is in our dispute application. This is no more than seeking clarification and amplification. It is no expansion, your Honour, and we seek to proceed.

**** JANET SINCLAIR-JONES XN MR STOKES
PN414

THE DEPUTY PRESIDENT: Can you tell me specifically which passage in the witness statement that you're seeking to clarify?

PN415

MR STOKES: Paragraph 22, your Honour.

PN416

THE DEPUTY PRESIDENT: And what in particular in 22 are you clarifying at this point?

PN417

MR STOKES: There is reference there in paragraph 22 that the witness, Dr Sinclair-Jones, makes reference in the last paragraph, the reshaping initiative has resulted in a number of program reviews, some of which have a significant impact upon staff in those areas despite the fact that all affected staff are not consulted. So, your Honour, what I was seeking to do was to seek clarification from Dr Sinclair-Jones with regards to, one, she's already indicated she's an affected staff member, two, she was in attendance where the question of consultation was raised with regards to the document quite clearly with the vice chancellor, quite clearly with the pro vice chancellor Jane den Hollander in a number of meetings. And I was seeking what terms of clarification she said with regards to the question of clarification, what she saw as consultation with regards to such a document, either matters leading into, arising out of such a document, and that's what I was seeking to do in examination-in-chief, your Honour.

PN418

THE DEPUTY PRESIDENT: That paragraph 22 seems to - that passage you've taken me to seems to talk about a number of program reviews. Are these ones in which the witness, Dr Sinclair-Jones, was personally involved or has personal knowledge of?

PN419

MR STOKES: Yes, it would be my understanding that that's something we could certainly put to Dr Sinclair-Jones. But, your Honour, just for clarification there, I was only talking at this stage about the reshaping document.

PN420

THE DEPUTY PRESIDENT: Mr Curlewis, what is the difficulty with the witness clarifying the last paragraph under 22?

PN421

MR CURLEWIS: Well, the answer lies in what's been said by the witness already and what Mr Stokes has said. The witness has said that fundamentally the dispute is about the formulation of this template document. Now, we have here that it had been expanded not only from the witness box today but also in paragraph 22, to result of a number of program reviews which have had an impact it is said. Now, whilst the question can be put under cross-examination, it is trite, it is known there are about 10 other disputes raised by the NTEU, each one of them being in respect of these program reviews.

**** JANET SINCLAIR-JONES XN MR STOKES
PN422

So what we've got here is an omnibus application seeking to have heard all the other disputes today. What we're doing, we're simply expanding - - -

PN423

MR STOKES: Your Honour, can I object please?

PN424

THE DEPUTY PRESIDENT: Mr Stokes?

PN425

MR STOKES: Thank you, your Honour. The matters of the other disputes aren't before us, your Honour. I'm not sure why there is any reference to that. We are dealing with an application with regards to the dispute matter that's before the Commission. I'm not sure why there should be procedurally any reference to that, the other disputes that is.

PN426

THE DEPUTY PRESIDENT: Mr Curlewis, did you wish to finish?

PN427

MR CURLEWIS: Well, indeed, that's the very point. The very point is, if the dispute is about the formulation of a template, of a piece of paper, what any other program reviews have as relevant to this dispute is beyond comprehension. The other reviews have nothing to do with the formulation of a template. That is the dispute. I wasn't consulted in formulating the document, the dispute document. Now we have a number of reviews that's quite outside the ambit of this dispute, not only that, it's also sought to expand on that evidence before you. So again, your Honour, it comes back ultimately to the applicant, and I have to say coming completely clean as to what in precise terms the dispute is.

PN428

It's quite clear from the witness, it's simply the formulation of a template document, at least on the witness's evidence today. And now we've sought to expand it. So that is my objection, it just should not be allowed. We're expanding this thing past a simple dispute about a document to all sorts of other program reviews and the whole fundamental operations of Curtin University.

PN429

THE DEPUTY PRESIDENT: Yes, Mr Stokes, the application brought by the applicant is to do with the failure of the university to properly apply clause 12.4 in respect to what I'll call the reshaping document. Now, this does seem to be going beyond the document itself, is that not the case?

PN430

MR STOKES: Your Honour, with regards to the point that you're making, is there reference to questions of program reviews in the witness statement, yes, there are.

**** JANET SINCLAIR-JONES XN MR STOKES
PN431

THE DEPUTY PRESIDENT: Yes. Given that the dispute before the Commission relates to the alleged failure of the university to properly apply clause 12.4 with respect to the reshaping document, I'm having difficulty in seeing how these resultant program reviews cannot be seen as perhaps an additional question. Mr Stokes?

PN432

MR STOKES: Perhaps if it assists, your Honour, to progress matters, because if your concern lies with paragraph 22, it may assist if I turn our attention to future reference in other paragraphs with regards to questions of consultation to overcome that small issue.

PN433

THE DEPUTY PRESIDENT: Please do so.

PN434

MR STOKES: For instance, if we go to - I would ask the same questions of Dr Sinclair-Jones with regards to paragraphs 25, 26 and 27 of her submission, because there is clear and direct reference there to the document in question, and there is clear and direct reference to understandings that Dr Sinclair-Jones has with regards to the question of consultation. And the question that I would put to Dr Sinclair-Jones is still the same. She's already answered the question with regards to her understandings of consultation, and I would just simply further ask her what consultation should have occurred with regards to matters pertained in 25 to 27, your Honour. So perhaps I could progress to that?

PN435

THE DEPUTY PRESIDENT: Please do so.

PN436

MR STOKES: You say in paragraph 26 for instance, Dr Sinclair-Jones, that yourself as affected staff members, other affected staff members have had discussions or no discussions, were not being invited to have discussions, meaningful consultation or input into the proposal for support under the reshaping document. Is it your understanding that that should have occurred?---Yes, indeed, they should have occurred.

PN437

And you would also say that, further into paragraph 27, that you've had discussions with other colleagues and NTEU members. In what capacity did you have those discussions?---I had those discussions at a number of levels. I had them with individual staff members, staff who perceived themselves to be affected staff members. I had those discussions with my fellow executive members of the NTEU, many of whom would also be affected staff members. I had discussions with members at a general meeting about the matter, and again many of those members would have perceived themselves to be affected staff members, and with my fellow senior executive committee members of the NTEU.

**** JANET SINCLAIR-JONES XN MR STOKES
PN438

Thank you. Just to go to the question of paragraph 28, and you've stated there that you've read clause 12, and you then go on to say, and that's clause 12 in relation to consultation and change management of the Curtin University of Technology Academic Staff Certified Agreement, and it is my view that Curtin University of Technology has not provided you with the opportunity for meeting for consultation. Why do you think that's the case, Dr Sinclair-Jones?---Because prior to my being told about the document by - - -

PN439

MR CURLEWIS: Your Honour, I object to this evidence.

PN440

THE DEPUTY PRESIDENT: Mr Curlewis?

PN441

MR CURLEWIS: Asking the witness to speculate is not evidence. Evidence has to be direct evidence of fact, not why you think something happened. It's not in the witness proof, it's not there, it's simply just - I won't put the adjective to it. It is just not proper evidence. It doesn't - to ask a witness to start speculating, we could go for donkeys years on this thing. I ask for such questions to be disallowed, speculative issues.

PN442

THE DEPUTY PRESIDENT: Mr Stokes?

PN443

MR STOKES: Your Honour, it goes to a view that the witness has that's before us. She has expressed a view about consultation with regards to the document. What I'm seeking to do is to clarify why she has that view. She has stated in paragraph 28 that she has read the clause and therefore she is stating that on the basis of that she has not been provided the opportunity for meaningful consultation. What I was trying to seek was her understandings after reading the document what her view was with regards to consultation, and that was simply a question of clarification, your Honour.

PN444

THE DEPUTY PRESIDENT: So if the question is asking the witness to clarify for her personally what is in 28 that she feels, or it's her evidence that the university has not provided her with the opportunity for meaningful consultation, I'm having difficulty, Mr Curlewis, in seeing why the Commission shouldn't admit that as evidence.

PN445

MR CURLEWIS: Your Honour, again the point is, how far is this expanded? There's been ample opportunity to set out the witness statement. Either this case should have been run on the basis, let's come here and hear the evidence viva voce. But to completely expand on it and to give another opinion and another opinion and another opinion is contrary to your rulings. Now, we go on on this basis. A lot of time went into this exercise on both parties to provide statements of evidence. Indeed this is not clarification, this is expanding it, moving the target, and that is the basis of it. It's a question of what latitude do you give, with the greatest respect? And the latitude is going well past the equator at this stage, in my respectful submission. We need to move this on rather than expanding the evidence. It's there, it should be put to cross-examination.

**** JANET SINCLAIR-JONES XN MR STOKES
PN446

THE DEPUTY PRESIDENT: Yes, the Commission did issue directions for written witness statements, and the intention was to have most of the evidence spelt out in the witness statements. The oral hearing was intended to allow for certain limited number of points. It might be important, perhaps to be reinforced for example, to be clarified. So I think this is a question to some extent of a reasonable balance as to how little or how much clarification is sought. And I'd ask Mr Stokes to proceed as briskly as you can.

PN447

MR STOKES: Thank you, your Honour. I will attempt to do so.

PN448

So, Dr Sinclair-Jones, back to paragraph 28. You state it was your view that Curtin University of Technology had not provided you with the opportunity for meaningful consultation, and I was asking you how did you draw this conclusion with regards to your view?---Because as I was saying that I had not - until this document was brought to me I had not had any awareness or had not been consulted in any way about the actual formulation of the proposals for reshaping. And when I saw the document I was concerned to see that, well, (a) that there were guidelines for these proposals which I have not, and still have not seen. But the document actually refers to the rationale and impact of the proposed workplace change. Now, it was - there was no actually this document going to heads of areas as a confidential document which heads of areas were being asked to fill in, submit and return in a confidential manner when it's talking about proposed workplace change, alarmed me as it did those members that raised it with me in relation to - that it had been produced and had certain questions and certain categories which nobody had any input into other than management, senior management at that.

PN449

Just to move on to paragraph 30 briefly, you refer to questions of your concerns with regards to Curtin University of Technology having a poor understanding of the meaning and application of proper and meaningful consultation with staff. Why do you say this?---For all of the reasons that are set out prior to this paragraph in my witness statement, where we had endeavoured to raise concerns with the vice chancellor and her representatives on the IMCC, where we had taken to them the agreement, taken to them our understanding of how consultation would work and should work under the terms of the agreement, and the response of management had been consistently one that management has the right to manage. And it didn't appear to recognise that, whilst we certainly understand that management has the right to manage, that an agreement which sets out a very thorough process of consultation should actually acknowledge that management manages but in consultation with its staff and listens to its staff. We have no sense that consultation means that it is dictated to by its staff, but that in formulating its management strategies at all times abides by the consultation process that we had set out. And we did not believe in any of the discussions we had that that was being appreciated by management, that consultation was a process that it needed to go through.

**** JANET SINCLAIR-JONES XN MR STOKES
PN450

Thank you. And at paragraph 32 of your written statement you state there if you were offered the opportunity for discussion, meaningful consultation, then you could have provided the university with additional information and suggestions in the development and formation of proposals. Were you invited?---No. No, not in any capacity.

PN451

And if you were invited what could have been, or would have been I should say, the types of additional information and suggestions you would have made in your capacity as an affected staff member?---In my capacity as an affected staff member I would have taken firstly from the university, I would have sought to find out exactly what it was that the university saw as the imperatives for reshaping. I would then have asked about the specifics for my particular division and my faculty and how - what the university saw as being the necessary outcomes, and then expected to have had at a general at least divisional level as well as down to the faculty and department levels discussions about how each of those diminishing areas could have actually worked towards those changes in ways that complied with the agreement and actually listened to the very, very important corporate knowledge that all of the staff held collectively in that university.

PN452

Thank you, Dr Sinclair-Jones. What are your current experiences regarding the university's view in relation to the reshaping documents and proposals arising?

PN453

MR CURLEWIS: Your Honour, I object to that question.

PN454

THE DEPUTY PRESIDENT: Yes, Mr Curlewis?

PN455

MR CURLEWIS: It's not relevant, it's not in the statement of evidence. I have to repeat this. What the current view of the matter is, is irrelevant to a dispute that arose prior to 8 August. And if this witness was to be called as an expert, certainly when we given notice of that, this witness is supposedly supporting a dispute that arose in relation to another person, not herself, some other person, an affected member. It is completely irrelevant what her views are. It's simply expanding the evidence. It's not clarification. It's through the back door, through the trap door seeking to give further evidence. I'd ask in all fairness to the respondent the question not be allowed, and we can get on with the main course of this application.

PN456

THE DEPUTY PRESIDENT: Mr Stokes?

**** JANET SINCLAIR-JONES XN MR STOKES
PN457

MR STOKES: Your Honour, we started this morning, if my memory serves me well, regarding the question that you asked which came out in a facsimile, whether in fact there had been attempts by the parties to progress your suggestion or strong recommendation, your words I think, your Honour, with regards to attempts for the parties, including the president of the NTEU, Dr Sinclair-Jones, and the vice chancellor in an attempt to get together to resolve matters, to resolve this dispute, which, as you said, your Honour, went in on 9 August 2006.

PN458

I stated and reported to the Commission at the time that in fact Dr Sinclair-Jones did attempt to do that. Dr Sinclair-Jones has continued to consult. I think this matter does go to the heart of the matter with regards to our application, your Honour. I think it is relevant, and it does assist us with regards to this dispute matter to seek from Dr Sinclair-Jones, who is both an affected staff member, an academic staff member and the president of the NTEU, to respond to that question because it goes to the matters of the university's attitude with regards to consultation, and therefore the matter before the Commission with regards to this dispute. I think it's extremely relevant, your Honour.

PN459

THE DEPUTY PRESIDENT: I understand what you've said. Mr Curlewis, you have submitted that Dr Sinclair-Jones is not an affected member, and Mr Stokes has submitted to me she is an affected member, as I understand it.

PN460

MR CURLEWIS: Yes, your Honour. I have to be as cynical to say that that is a shifting of this application to close the door after the horse has bolted. This application was brought on behalf of an affected member who was not Dr Sinclair-Jones. She did not say I am the affected member, I am the person affected, as required by the procedure. It was an NTEU application. At no stage has she said I am that affected person. She has in her evidence, and the thrust of the evidence is, I became aware of it and as a result I lodged the dispute. She at no stage in the documentation or anywhere else has put herself as the affected member.

PN461

It's never I am affected. To clutch on that as the basis as an out now is an abuse of process, an absolute abuse of process to suggest I'm at the university so I'm the affected person. Cross-examination will deal with it, but in the end result it is noticeable how this application has swung today. We've been talking about the identification of the affected member. That has been refused. And suddenly Dr Sinclair-Jones says I am the affected member. Your Honour, I have to say cynically that that is the very basis of expanding this application in our very eyes to try and expand the evidence when, in fact, it has never been fought upon this basis.

**** JANET SINCLAIR-JONES XN MR STOKES
PN462

It is inappropriate procedurally to expand an application which was, and to some extent defined on the basis a member has complained. Not me, it doesn't say me, my member complained to me. It says a member has complained to the union. It doesn't say me the member, Dr Sinclair-Jones. That's how crass this argument is. And on that basis I simply say all that we're seeking here is an expansion of this argument to try and hang this application on the basis of trying to fit the procedure of the certified agreement. I ask that that expansion be refused.

PN463

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

PN464

MR STOKES: Yes, I do, your Honour. I do on the basis of a number of points. Irrespective of colourful language I'd make the point that the NTEU made the point with regards to the question of identity, that we procedurally felt that that was a matter for cross-examination, and that's what we said on that matter. I do take issue with the respondent with regards to questions of affected staff members and point out that certainly Dr Sinclair-Jones, go to paragraph 26, makes reference to affected staff members. She has certainly stated in her statements today, and it has always been my understanding with regards to what Dr Sinclair-Jones said today, that she was affected.

PN465

Again, your Honour, I wish to proceed, I wish to ask my question for the reasons that I have put to you before, and I do not have many more questions, your Honour.

PN466

THE DEPUTY PRESIDENT: No, I understand that. You've referred to paragraph 26. That doesn't actually say that Dr Sinclair-Jones herself is an affected staff member does it?

PN467

MR STOKES: No, it does not say it in that context. But she makes reference to affected staff member, and she has made reference in her witness statement, and she has made - sorry, in evidence today, your Honour, with regards to the question of being an affected staff member. She has also provided the Commission with a witness statement.

PN468

THE DEPUTY PRESIDENT: Yes. Can you take me to where in the document, either her witness statement or any other documentation that's been provided to the Commission, that Dr Sinclair-Jones says that she is an affected staff member?

PN469

MR STOKES: Not at this stage, your Honour. I'd have to scrutinise the document. But I would also add that I am not sure of the relevance of that matter at this point with regards to the application before you, your Honour, the fact that that's a requirement.

**** JANET SINCLAIR-JONES XN MR STOKES
PN470

THE DEPUTY PRESIDENT: Yes. I'm trying to understand what's being put by the parties. It's my duty to try and make sure that I am abreast of everything. And I have, as I've said - Mr Stokes, you're saying that Dr Sinclair-Jones is an affected staff member, and Mr Curlewis is saying that she's not. Perhaps that's putting it a bit simply, but I think that's the gist of what I understand to be what's being put. Did you wish to clarify that?

PN471

MR STOKES: Yes. Again, I mean, in cross-examination Mr Curlewis could have of course asked the question of Dr Sinclair-Jones. Paragraph 33 in my view clarifies the matter where it says "By denying me the opportunity," that being Dr Sinclair-Jones. I'm quite happy in a moment to ask her if she's an affected staff member. I thought I'd already done that, your Honour. But she says:

PN472

By denying me the opportunity for discussion, meaningful consultation input, I believe the university has not fulfilled their obligations to me and to the provisions of the Curtin University of Technology Academic Staff Certified Agreement. I have been denied the opportunity of a positive contribution as an academic staff member of the Curtin University community.

PN473

THE DEPUTY PRESIDENT: Yes, I understand that very clearly, what's said in paragraph 33. But what I'm asking is, for the purpose of 14.2.2 of the certified agreement, are you saying to me that that means that this is evidence in paragraph 33 that 14.2.2 is satisfied in terms of Dr Sinclair-Jones?

PN474

MR STOKES: In terms of 14.2.1 and 14.2.2, Dr Sinclair-Jones is an affected staff member, yes.

PN475

THE DEPUTY PRESIDENT: Did you say at 14.2.1 and 14.2.2?

PN476

MR STOKES: Yes. But I'm more than happy, your Honour, to seek clarification from Dr Sinclair-Jones with regards to this matter.

PN477

THE DEPUTY PRESIDENT: Before doing that I'll ask Mr Curlewis if you have any comments on what's been said?

PN478

MR CURLEWIS: Yes, your Honour. I could go on a long time, but I'll restrict my comments to the basis that none of what is said from the other side of the bar table in any way corroborates the fact that the so called affected person at the time the dispute was lodged was not Dr Sinclair-Jones. Nothing in this document corroborates what is said. To give you an example, just a simple one, paragraph 13 of her statement, she says:

**** JANET SINCLAIR-JONES XN MR STOKES
PN479

The member requested that I raise the matter with the university as a matter of urgency. I was also approached at around this time by another NTEU member.

PN480

The reality is she approached the university on behalf of that member. She doesn't say in her statement I approached the university on behalf of that member and myself in my personal capacity. She said I approached - I was asked to raise it. The whole motivation is I'm acting on behalf of an affected, so that is the argument. The reality is that there is nothing that is consistent with this statement that is consistent with the process that had to be followed in clause 14.2. We're not dealing with a dispute of Dr Sinclair-Jones. We're dealing with a dispute of an affected member.

PN481

She has never identified herself until she purports to do so today as that affected member. It's really the height of deception to run an argument on behalf of the affected member being yourself and not tell the other party, actually I'm talking about this for my own benefit. That's not what's said, it never was, because it's furthest from the truth.

PN482

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

PN483

MR STOKES: Well, I'll just point out to you, your Honour, that the operations of 14.2.1 and 14.2.2, in 14.2.1 it goes to both the singular and the plural with regards of questions of both the right of the affected staff member going to their representative union, in this case the NTEU, seeking that the matter be progressed as indicated in the witness statement by Dr Sinclair-Jones. Dr Sinclair-Jones and the NTEU progressed the matter pursuant to 14.2.1. Whether it was one, and quite clearly it was more than one because Dr Sinclair-Jones has referred to affected staff members, the question that was put to me, and there seems to me to be a constant attempt by the respondent with regards to this matter to deflect from the heart of the dispute going to, what I dare say are trivialities, pedantic and semantic matters that suit the defining both the dispute and matters before us and not progressing, to me concluding my questioning of the witness before us.

PN484

But I'll reiterate, your Honour, and conclude by saying it says the staff member or members. The question that was put by yourself to me, your Honour, was clarification of Dr Sinclair-Jones, which was paragraph 33. Clearly she's identifying herself there as an affected staff member, she makes reference to other affected staff members at the other paragraphs on 26 and others. I'm happy to clarify with Dr Sinclair-Jones, but I thought I'd done it, is she an affected staff member? She said on more than one occasion. I only have two more questions, your Honour, which I'd like to progress.

**** JANET SINCLAIR-JONES XN MR STOKES
PN485

THE DEPUTY PRESIDENT: Yes, Mr Stokes, you must and will have the opportunity to complete your evidence, the evidence of Dr Sinclair-Jones, your evidence-in-chief, but there have been some matters raised to me. I have an objection which has been raised by the respondent, which I must deal with, to the further questions which you've foreshadowed, and it is important for me to try and be very clear about what is being put, and indeed for the parties to be clear about what is being put.

PN486

There was some dispute, I've just heard, concerning whether or not Dr Sinclair-Jones was an affected member for the purpose of clause 14.2. I'm having difficulty in seeing that paragraph 33 refers to or perhaps defines Dr Sinclair-Jones's role to demonstrate that 14.2 was complied with in terms of herself personally, I'm having difficulty in seeing that. And 33 does specifically that, even though I can see of course that 33 is indeed a statement about meaningful consultation which, of course, is dealt with in 12.4.

PN487

The immediate question is whether in fact you wish to adduce evidence from Dr Sinclair-Jones that she is indeed a staff member or an affected staff member, or both, for 14.2, whether you wish to adduce any further evidence by way of clarification of what is in the witness statement or not, and then if you do, as to whether there is any objection to that from the respondent. So I'd ask you first, you've made submissions very clearly, as I understand it, that Dr Sinclair-Jones is a staff member or an affected staff member for the purpose of 14.2. Do you wish to adduce further evidence in that regard or not?

PN488

MR STOKES: No, your Honour. The objection didn't come from us. It was to do with the matter of the question that I was raising with Dr Sinclair-Jones. It came from the respondent.

PN489

THE DEPUTY PRESIDENT: Indeed.

PN490

MR STOKES: I was actually seeking to finish my examination of Dr Sinclair-Jones, and I asked the question, what are your current experiences or views regarding the university's consultation in relation to the reshaping document?

PN491

THE DEPUTY PRESIDENT: Yes.

PN492

MR STOKES: What I was trying to seek in my question is to see - to go to this question of consultation and in terms of the application of the agreement. That was the question I asked. It was the respondent who objected to my question.

**** JANET SINCLAIR-JONES XN MR STOKES
PN493

THE DEPUTY PRESIDENT: Indeed.

PN494

MR STOKES: I wish to proceed with my question.

PN495

THE DEPUTY PRESIDENT: Yes, indeed, I do understand that to be the case as you've just explained it, Mr Stokes. The objection, as I understand from Mr Curlewis, was that he was questioning or arguing that Dr Sinclair-Jones was not an affected staff member for the purpose of 14.2. Is that the case, Mr Curlewis?

PN496

MR CURLEWIS: Thank you, your Honour. Yes, in part. It also went to the fact that whatever the witness's interpretation or assessment of the position is now, it's after the dispute. The dispute, if you like, started and terminated on 9 August. That is the dispute which we're dealing with today. And what thereafter happened is irrelevant with respect to your consideration. And if any opinion is sought as to what your experience is subsequent to that, it can't be relevant to dealing with a dispute of an affected member who purportedly got the NTEU to lodge a dispute on its behalf, or his or her behalf, this innominate ghost. So again, it's irrelevant, it should not be allowed. That's my basis of what I'm saying.

PN497

THE DEPUTY PRESIDENT: Yes, thank you for that clarification. Mr Stokes, your comment on the point that any comments from the witness about matters subsequent to the lodging of the application are not relevant, and therefore the objection that the further questioning should not be allowed on the basis that it's not relevant. Your comment on that?

PN498

MR STOKES: Well, our comment is it's a nonsense argument, your Honour. The dispute hasn't been resolved. We have consistently said that the dispute has not been settled, it may change its course and character. We have been concerned with regards to where matters have gone with regards to the university's attitude towards a lack of consultation. I am trying to seek from the witness here before you today if the university has changed its attitude. Simply my reference to this morning was we made an attempt to go away and seek a meeting with the vice chancellor.

PN499

I thought it would assist the Commission greatly to see if the witness here before us under oath, who is quite clearly in a particular role within the university, my question went to has the university changed its attitude towards consultation? As to this issue of 8 or 9 August, that is, the respondent on behalf of the university constantly putting on the table that nothing can be heard after 8 August, nothing is relevant after 8 August, you can't ask questions after 8 August, is a blatant nonsense, your Honour.

**** JANET SINCLAIR-JONES XN MR STOKES
PN500

This dispute still has not been settled, it has gone on for far too long, and my question I still wish to ask of my witness. It is immensely relevant. I certainly would think it's relevant to know has the university changed its attitude towards consultation since our application of 8 August?

PN501

THE DEPUTY PRESIDENT: I'm having difficulty in seeing that the application before the Commission which was lodged on the 9th, and refers to the failure of the university to properly apply clause 12.4 with respect to the reshaping document, I'm having quite a bit of difficulty in seeing how the university's current or more recent attitude or behaviour, whether or not that attitude or behaviour is desirable or not, leaving that aside, I'm having difficulty in seeing that that is relevant to the application of the university's alleged failure prior to
9 August.

PN502

MR STOKES: Sorry, your Honour. In short, to assist, that there have been, and we have consistently argued proposals arising out of the document, that the university continue with their attitude and view towards consultation. That is all I was seeking to gain from the witness, is her view on that matter.

PN503

THE DEPUTY PRESIDENT: Yes, I - please continue.

PN504

MR STOKES: Sorry, your Honour. But I am continually aware of time, and I'm in your hands on the matter, your Honour.

PN505

THE DEPUTY PRESIDENT: Yes, I've heard what you've said and I note what you've said, but it is my duty to run a hearing in a way which is relevant to the matters before the Commission, and I have to say at this point I'm not convinced that any further evidence about the university's subsequent alleged failures would actually assist me in determining the application before me, which relates to an earlier point in time. Please continue, Mr Stokes.

PN506

MR STOKES: Your Honour, the only other matter, it goes to a question of attachment 1.9 - I should say exhibit 1.9, where there is reference to the IMCC meeting of 12 September which I wanted to put a question to Dr Sinclair-Jones, and you made the point that at the time you wouldn't admit it into evidence but you were comfortable seeking a view from me in relation to the tendering of 1.9. I was going to ask Dr Sinclair-Jones a question in relationship to point 5 of that document, your Honour, which is on page 4, where it's titled Reshaping Curtin. And Mr McGinniss in that document advises that two conciliation conferences had been held at the AIRC regarding the reshaping dispute and the dispute resolution process would proceed in accordance with the agreement.

**** JANET SINCLAIR-JONES XN MR STOKES
PN507

I was going to ask Dr Sinclair-Jones a question in relation to that, your Honour, and therefore it is our view, that is the NTEUs view, that it is clearly a matter in relationship to our application, it is a matter that Dr Sinclair-Jones has submitted in her original written statement, and we would seek that that document be tendered so that I could progress to asking her one question in regard to comments with regards to - or reference with regards to Mr McGinniss, and seeing that it is titled Reshaping Curtin, it is clearly relevant to the Reshaping Curtin Initiative document, your Honour.

PN508

THE DEPUTY PRESIDENT: Yes. But is it to do with events subsequent to the lodgement of the application?

PN509

MR STOKES: Not necessarily, your Honour. It refers there, has advised that two conciliation conferences had been held, the dates of those that you may remember, your Honour, they have been held at the IRC, and regarding the reshaping dispute. And it goes on to say and the dispute resolution process would proceed in accordance with the agreement. So Mr McGinniss there is advising of matters, and I was just wanting to seek some clarification from Dr Sinclair-Jones seeing she was at that meeting.

PN510

THE DEPUTY PRESIDENT: Mr Curlewis?

PN511

MR CURLEWIS: Your Honour, there are several bases for difficulty with this request. You have already refused receipt of this document which was attachment 9 to the original proof, so it's not before you. Secondly, it is sought now to ask you to countermand that decision on the basis of a question about, as it's put, some conciliation conferences that arose after the lodgement of this application. It was lodged on 9 August. These conciliation conferences, as one knows, are without prejudice and not to be repeated thereafter. They're not on the record. So whatever Mr McGinniss said about them in the end are in confidence as they stand at all. Perhaps he shouldn't have been talking about the conciliation conferences outside.

PN512

But the bottom line is, how on earth a conference can have any relevance to the dispute that arose on 9 August, it only goes to the same point I raised earlier. This is an expansion of what the dispute is about. This is a moving target, your Honour. We're told the dispute may change its course and character. Indeed, it is disrespectful to the Commission to come here with a moving dispute. The Commission was asked to deal with a dispute as lodged on 9 August. How the applicant can come along and now shift it to a dispute that is changing its course and character. It's only got one course, and that's up to 9 August. That's where jurisdiction comes in, that's where, if I may say, the stupidity of this whole proceeding is about.

**** JANET SINCLAIR-JONES XN MR STOKES
PN513

We're dealing with the formulation of a document, not the subsequent issues. We've had an injunction application made, interim orders application about that already, and that's been dealt with. We're dealing with a template. And therefore for the same reasons, with the greatest respect, your Honour, this is simply a wish to expand this dispute from a very simple, in one way, compilation of a template and a dispute about that by a ghost person out there to now the whole spectrum of dissatisfaction on the part of the union, and therefore that said I would object again to this question being put, particularly as this document is not before the Commission.

PN514

THE DEPUTY PRESIDENT: Yes, Mr Stokes?

PN515

MR STOKES: Sorry, your Honour, just a point of clarification. My question to Dr Sinclair-Jones was not going to the two conciliation conferences. I certainly understand the processes with regards to those matters. It goes to the second part of reference when Mr McGinniss, in his capacity in human resources, was on this committee, that is, the IMCC committee, which we have before us here the minutes. I understood that this document hadn't been tendered but your Honour had said that at the time, that was your view at the time, that you would hear from the applicant with regards to the relevance of the matter when we got to it. We have now got to it.

PN516

What I would move to in terms of the question, if given the opportunity, was to the second part, which is extremely relevant. The second part goes to the dispute resolution process would proceed in accordance with the agreement. Now, what Mr McGinniss, and what I'm seeking to ask of the witness, because she was at that, is the understanding of those processes and seek from her a clarification of those processes, because we have already had today the processes, seeing this is an IMCC meeting, the IMCC is the second stage of our dispute resolution procedures, Mr McGinniss on behalf of the employer, that is the university, is saying in this notation before us, the dispute resolution would proceed in accordance with the agreement.

PN517

I would be asking the question of Dr Sinclair-Jones her understanding of the processes in the agreement. That's its relevance, your Honour, not the first part to me, the second part. We would assert that the university - we certainly are of the view - but the university were of the view that the processes were being followed. So that would be the question, your Honour, the final question I'd be asking Dr Sinclair-Jones.

**** JANET SINCLAIR-JONES XN MR STOKES
PN518

THE DEPUTY PRESIDENT: Yes, thank you for that. I do confirm that I said it was open to the applicant to revisit the admittance of 1.9 into evidence as an exhibit, which has not happened. In other words it has not been admitted yet. And I am aware of the reference to that in paragraph 23. But again, on further reflection this does relate to events that transpired as referred to in paragraph 23 at the IMCC meeting of 12 September 2006, and I'm having difficulty in seeing that any further questions relating to that, in other words, any further questions relating to what happened at that meeting on 12 September 2006, can be regarded as relevant to the application which was lodged on 9 August 2006, alleging the university failed to properly apply clause 12.4 in relation to the reshaping document. So therefore I'm not able to conclude on further reflection that this is relevant to the application.

PN519

MR STOKES: Thank you, your Honour. And therefore that's your ruling on the matter is it, with regards to our request for - - -

PN520

THE DEPUTY PRESIDENT: Yes. In relation to a ruling on this matter I note that you've had the opportunity of making on more than one occasion some submissions on this point, even though you have not gone to further evidence on the point you wanted to raise, nevertheless I have noted what you are saying, I can take that on board, and I will give further consideration to that submission. But I cannot rule that further evidence would be appropriate given the constraints upon the Commission of dealing with the application before it. Do you wish to conclude?

PN521

MR STOKES: I do now wish to conclude, your Honour. And I do thank the witness, Dr Sinclair-Jones, for her patience with regards to these matters, they have not been easy. And beyond that, that concludes our examination of Dr Sinclair-Jones, your Honour.

PN522

THE DEPUTY PRESIDENT: Yes. And I also thank Dr Sinclair-Jones for her evidence. It seems that the Commission should now at this point have a brief break. I'd ask Mr Curlewis how long you anticipate your cross-examination will take place?

PN523

MR CURLEWIS: On the present indication I think at least for the rest of the afternoon. I've got a lot of questions to ask, so I would be using up all the time you've allocated today.

**** JANET SINCLAIR-JONES XN MR STOKES
PN524

THE DEPUTY PRESIDENT: Yes. Mr Stokes, do you have any comments concerning the timing of the proceedings?

PN525

MR STOKES: Well, only, your Honour, that we have other witnesses waiting, that we would hopefully be able to go and notify them that they're no longer required, if that was the understanding of the Commission. But we would assume that we would progress with the applicant's witnesses tomorrow morning. If that was the understanding then I certainly wouldn't want the other witnesses to be waiting unnecessarily. They have done that on more than one occasion, your Honour.

PN526

THE DEPUTY PRESIDENT: Yes, indeed, Mr Stokes. The proceedings have taken somewhat longer than the parties have anticipated. Mr Curlewis, in relation to the courtesy of notifying the remaining witnesses that they should not wait for tonight but should appear in the morning, have you got any comments?

PN527

MR CURLEWIS: I think it's appropriate, your Honour. Obviously I endeavour to do things faster, but I don't think we'll be finished by 4.30, and it's fairness to those that, with your permission, they should make themselves unavailable and be ready for tomorrow morning at some stage. I am happy to proceed. If we do happen to finish 15 minutes earlier that might be a boon to all parties. But I don't have a difficulty with what Mr Stokes is suggesting.

PN528

THE DEPUTY PRESIDENT: I'd ask the parties, both of you, how long you would anticipate the evidence would take in the morning for the remaining witnesses for the applicant?

PN529

MR STOKES: I don't think it would be flippant to say that we were hopeful that we would have got there today, your Honour, but depending upon proceedings, I'm really reluctant to say. We had anticipated a day. We have only got through one of out witnesses in examination-in-chief today. Hopefully the morning, your Honour, but I have said that before, your Honour.

PN530

THE DEPUTY PRESIDENT: Yes. You're not making any binding commitment in that estimate. Mr Curlewis, your comment on that?

**** JANET SINCLAIR-JONES XN MR STOKES
PN531

MR CURLEWIS: Your Honour, it does extend to the extent of how much evidence is tendered and to what extent, having narrowed it down, if I may say, to some extent today, efforts are made tomorrow to continue to lead evidence in relation to periods after 9 August. If matters are curtailed we may well have the applicant's witnesses finished by lunchtime. I would endeavour to do that, but again a lot depends on, frankly, how the applicant leads its evidence, and what I'm obliged to, on behalf of my client, to address the Commission on.

PN532

THE DEPUTY PRESIDENT: Yes. And of course the Commission would expect that both parties would cooperate with running a hearing that is not only fair but timely. We'll adjourn for approximately five minutes, or 10 minutes.

<SHORT ADJOURNMENT [3.22PM]
<RESUMED [3.34PM]

PN533

THE DEPUTY PRESIDENT: Mr Curlewis, you wish to cross-examine the witness.

PN534

MR CURLEWIS: Thank you, your Honour.

<CROSS-EXAMINATION BY MR CURLEWIS [3.34PM]

PN535

MR CURLEWIS: Dr Jones, may I call you Dr Jones as opposed to Sinclair-Jones?---Please do.

PN536

It's a mouthful to have both - - -?---It is.

PN537

So I'll just call you Dr Jones, with your permission?---By all means.

PN538

Dr Jones, you're the president of the NTEU Curtin branch, if I put it that way. How does the executive operate in relation to receiving information from its members about dissatisfaction they have in the workplace, how does it respond in that sense? Is it an executive - the question is, is it an executive decision or is it one person who deals with those concerns?---If you are asking how we initially hear about dissatisfaction, members will approach any one of the committee, but most frequently myself, the vice president or the employees of the organisation. But in terms of decisions about pursuit of those concerns in relation to disputes, the executive considers those - takes advice from the industrial staff and will make decisions about whether to lodge disputes as they occur. They're most frequently done at our monthly meetings, but if the disputes arise and need to be dealt with more speedily than that the executive will meet informally from time to time, be called together by myself, and make those decisions.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN539

Right. And when a decision is made to lodge a dispute, as was in this case with the Industrial Relations Commission, who at the NTEU takes that decision to lodge a dispute?---The decision to lodge the dispute is made by myself, by the rest of the executive members either, as I've just stated, in a meeting, in a formal meeting, or in an informal sense by a small group of that executive, or if it's urgent a very small number of the senior executive, myself, the vice president, and that dispute is then lodged through the national office in Victoria.

PN540

And you make a recommendation to the national office that a dispute be lodged do you?---We make a request that that dispute be lodged. We instruct them to lodge the dispute, yes.

PN541

And so perhaps almost invariably if the local branch decides to lodge a dispute, national will lodge it, is that right?---I'm not aware of an instance where a branch has requested that a dispute be lodged and the national office have not done so, but I have only been president of the Curtin branch for two and a half years. It certainly has not been the case where a request to lodge on our behalf has been refused, but I would not be able to speak for the whole organisation.

PN542

All right. Now, you're the president of the branch. Does Professor Charnock act in - Associate, is it, Associate Professor Charnock, does he hold office in the local branch?---Yes. He's the vice president.

PN543

David Charnock is the vice president of the branch?---Yes.

PN544

Does Stephen Errington hold office in the branch?---Yes, he does.

PN545

And what's his capacity?---He is the treasurer and secretary of the branch.

PN546

And does Craig Somerville hold office?---Yes.

PN547

In what capacity does he hold?---He is an ordinary committee member, all of whom are elected by the membership.

PN548

All right. The witnesses, as I understand it, from the NTEU to be called are yourself, that's you there, Charnock, Errington and Somerville. All of those you confirm are all on the executive of the union?---Yes, that's correct.

PN549

Thank you. So essentially people to give evidence before the Commission are all from the committee of the NTEU local branch?---Yes, they're all readily known to be union members in the university.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN550

Now, as I understand it, the dispute the Commission is asked to deal with is about the formulation of what's now commonly called the reshaping document isn't it?
---Yes, the dispute is as notified.

PN551

The dispute as notified was in relation to the formulation of the document?---Lack of consultation in the formation of that document.

PN552

Right. So we're dealing with, you say, the failure of the university to consult with that, with an affected member in relation to the formulation of a document, correct?---The failure of the university to consult with staff who may be affected by the document, proposal for reshaping, yes.

PN553

Now I'm asking you a different question. You're saying a failure to consult with staff in the formulation of that document template. Which particular staff caused the NTEU to start taking up the cudgel, which particular staff, who was that person?---There were a number of staff who raised - caused us. I mean, the information came to the organisation initially by one staff member who requested that I pursue the matter. Immediately following that I discussed it with a number of executive members and other activists, active union members around the university raised it, because, of course, having heard about it from one staff member I then sought from area representatives and other people I knew around the university, to hear whether in fact this was a document that was widely being promulgated or whether it was just a one off situation. In all of the discussions I had with members they were all concerned about the document. A number of them were concerned that, no, they hadn't heard about it, and such a document they should have heard about if it was being promulgated. Others had heard vague whisperings about it.

PN554

All right, if I can stop you there. If I refer you to paragraph 13 of your proof, you said "After this I became aware of Curtin University's reshaping document as a consequence of advice from a member of NTEU." Who was that member?---I am not prepared to divulge the name of that member for the public record. I am concerned that that member and the source from which they heard the information may well be subject to victimisation if the university were to be informed of the identity.

PN555

Now, today you've said you are concerned about victimisation. That's the first time those words have been raised either by yourself or the NTEU isn't it?---In many discussions with the university, no, I frequently raised that concern with the university, frequently.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN556

Why then - you've obviously drawn up a witness statement haven't you? You say you drew it up?---Yes.

PN557

Why then didn't you say we're not prepared to disclose the name because we are afraid that our member will be victimised, why didn't you say that in the witness statement?---Because that was initially not the reason why I didn't identify the person. That's the reason why I am not prepared to do it publicly at this point. But it is not my view that it is a requirement of the certified agreement that I need to identify a staff member who has asked me to pursue a dispute.

PN558

Let me put it to you, is it not just a red herring to suggest that victimisation is an issue? The real issue is, and you have steadfastly said, that you do not believe you have an obligation to disclose the member's name, is that correct?---No, I believe, no, that I do not have an obligation to disclose the member's name. But specifically in relation to 13, not the other affected staff that are mentioned throughout the document, but in relation to that particular paragraph you will see that the member referred to their line manager, and that they were very concerned not to have their line manager identified in the public proceedings, because they came to me having had a discussion with their line manager. They did not - given their line manager had been told by the university that it was a confidential document and that if they refused to comply with it they would be stood down, they were very concerned that that person not actually be identified. And identifying the person who came to me would automatically identify their line manager.

PN559

Why then do you raise that now in cross-examination? You never gave that evidence before. You've put it up as an excuse now that that's the reason why you don't want to give that member up, even when you were given the opportunity earlier today by the Commission to disclose it in confidence to the Commission?
---I'm not - I actually offered to give the member's name to the Commission in confidence initially today under examination. It was my proposal.

PN560

The bottom line is, your representative, the union representative never went ahead with that. The bottom line is, you have never used this question of victimisation to this point. And I put it to you that you're sucking that out of the end of your thumb?---No, I'm not. I am stating to you why in relation to paragraph 13, which was the paragraph which you referred to in your question, why I won't publicly identify that member at this point. That is a particular concern in relation to that matter. It does not detract from the fact that I do not believe the agreement requires me to identify any member who asks me to take out a dispute which I feel is an appropriate dispute to proceed.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN561

Do you detract from, indeed, what is the NTEUs submission, where it's said in paragraph 23 of its written submissions which are before the Commission?---I don't have a copy.

PN562

On a number of occasions the university has requested the NTEU the names of staff members who the NTEU are representing.

PN563

What the submission says:

PN564

There's no requirement in accordance with clause 14 for the representative (S) to provide the names of the staff members to the university, and the NTEU has not done so. The dispute does not require the names of the staff members for the dispute to be characterised or to be resolved.

PN565

Do you detract from that?---Not at all.

PN566

The bottom line is, this is said in the collective isn't it? This is said, we're not obliged to give you any names. It doesn't say we're not obliged to give you any names, any particular one, because that person might be victimised, does it?---No.

PN567

No. I'm putting to you again that this issue is an answer you give which is not credible. What do you say to that?---I'm making this statement under oath, it is absolutely credible. I'm sorry that you find it incredible.

PN568

All right, let's move on from that point. You say the dispute is about a document which an affected person was not consulted about in its formulation, correct?
---There were a large number of staff that were not consulted. Nobody below the level of senior management to my awareness was consulted. Potentially all of the staff in the university are affected staff members.

PN569

That's not the question. If you can listen carefully to my question. You've raised a dispute on behalf of an affected staff member, have you not?---No. The dispute's been raised on behalf of many affected members.

PN570

And have each of them requested you to lodge a dispute. Have each of those innominate persons requested you to lodge a dispute?---There are many members of ours for which we'd lodge a dispute from initial members that approached me who asked me to pursue the matter, and when I explained to them what pursuing the matter entailed and explained to them the processes of dispute, dispute resolution, dispute lodgement, they asked me to proceed in that way, and at every step of that dispute resolution procedure I further consulted with a small number of individual members. I also then spoke to small groups of members who again endorsed that position, I spoke with the executive who asked me to pursue it in that format, and I took it to a general meeting of members who unanimously instructed me and the executive to pursue the dispute through the normal dispute resolution processes.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN571

When did that meeting of members take place?---That meeting of members took place - - -

PN572

Have you got any notes there?---I think it's 9 August was the final general meeting which passed a motion, a unanimous motion, but most of the discussions that I've just mentioned occurred in the weeks leading up to that from the initial contact I had from the staff member referred to at paragraph 13. So the meeting on the 9th was really the culmination of a large number of meetings and instructions from members over a period of weeks.

PN573

So do I understand the meeting you're referring to took place after the dispute had been lodged?---Yes, that's correct.

PN574

So you did not have a meeting's endorsement before you lodged the dispute, correct?---Not a general meeting of members, no, but a number of meetings with areas and members in a number of areas around the university, yes.

PN575

All right. Now, going back to this dispute, you were instructed you say by staff members, unspecified persons, to discuss the dispute were you not?---To raise the matter with management, yes.

PN576

And they asked you to raise with management that they wanted input into a template, is that correct?---No. They wanted me to raise with management their concerns that this document had been produced was being acted on and that managers were being instructed to act upon it without any consultation into the production of that document, and without any consultation about what that document might contain, what kinds of questions might be addressed in the document.

PN577

Well, let's get clear quite what the dispute is. Was the dispute that you say - was the issue that was brought to your attention in your capacity as president of the NTEU local branch in relation to the formulation of the questions in this template or the actual filling out of the document?---There was concern that there had been a document produced that was seeking to develop proposals for reshaping of the university, and that there had been no consultation in the formulation of the approach in that document. There was a concern that for that document to be appropriate to the agreement that staff have with the university and the NTEU has with the university, that there should have been consultation in the formulation of the document and the proposals, the kinds of submissions that the heads of areas were going to be asked to make. There was also concern that heads of areas had been instructed that this was a confidential process and that heads of areas were not to be discussing this broadly with their staff.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN578

Notwithstanding what you say, I'd like to hear what you know personally, not what you repeat from other people, okay? We're dealing with direct evidence here, not third party evidence. So in that sense you have these concerns, and that's as far as it goes. It's correct to say that this dispute could not have had its genesis in relation to the questions until the document itself, that is the reshaping document, had been put together, correct?---The dispute couldn't have been raised until people were aware that there was a document that had been produced without consultation.

PN579

Right. So it's fair to say, and will you accept that the document at the very minimum came to your attention on 12 July 2006?---No.

PN580

No, leave your notes. Can you just try and work something out from your memory. Can you recollect - - -

PN581

THE DEPUTY PRESIDENT: Mr Stokes?

PN582

MR STOKES: Your Honour, just we do want to progress matters, and it's not my intention to object, but at times I believe that the respondent is bordering on argumentative and badgering. I mean, Dr Sinclair-Jones is attempting to answer the respondent's questions, and I would ask that she be allowed to do that. She is referring for her own benefit to matters there before her to assist in that, and I'd ask the respondent to consider that. Thank you.

PN583

THE DEPUTY PRESIDENT: Mr Curlewis?

PN584

MR CURLEWIS: With your permission I'll proceed, your Honour.

PN585

I ask the witness from her own memory, not from the document, when it was first brought to her attention that there was the existence of this document?---I was aware that there was a document well before 12 July, as my witness statement says at paragraph 13. A member came to me and reported to me that there was a document that had gone to the head of area. As I have already stated, I then endeavoured to find out if this was the case, what the document was, and to try to get some clarification because hearsay is always problematic. However, I then on 12 July was given a copy of the template - - -

PN586

Right. So you received - - -?--- - - -and so I only saw the document for the first time on 12 July, but I was aware of its very likely existence which, of course, was shown to be the case, prior to 12 July.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN587

Let's accept for the moment that you saw it for the first time on 12 July. Will you accept also, as is put out in the NTEUs submission, that the document itself only came into existence at all on 29 June 2006, that is paragraph 2 of the NTEU submission, will you accept that as a fact as correct?---I'm not - I mean, I'm not - I haven't looked at the submission for some time, I can't remember why the date of 29 June is given as a date, whether that's a date that was given to the organisation by the university. I think it may well have been something that was given, that the university claimed to be the date of the creation of the document, not a date claimed by the NTEU. I don't think the NTEU has claimed that.

PN588

All right. Let's just move on then from that. On the assumption, and I ask you to make this assumption, on the assumption that it only came into existence as a template on 29 June, do you accept that the dispute did not have any genesis insofar as related to the document before that date?---No, I wouldn't accept that. I would assume that if the document was completed on 29 June as a final document, possibly circulated to heads of areas at that date, that it had some considerable period of formulation, and that I would suspect that from the date of the vice chancellor's address to staff in May that it had been being worked on throughout that time, and that for some weeks the university had had the opportunity to consult with staff.

PN589

That's not the question I put to you of course. Do you accept that the document in final form is the one that you are disputing?---The document that we are disputing is the document, the template that I saw on 12 July. I don't know what was produced on 29 June.

PN590

All right. So we accept that you saw it for the first time on 12 July?---Yes.

PN591

You say at paragraph 16 of your statement that as a result of that, from two different members in two different divisions led you to conclude that there had not been proper consultation, correct?---Yes.

PN592

It is fair to say is it not, that those two persons at best were the two affected persons that led you to start taking this up on behalf of members?---No. The first affected staff member was the person that came to me, as referred to in paragraph 13. Subsequent to that I, as I have explained, had discussions with a number of members across the university, as well as colleagues on the executive, all of whom saw themselves as being affected staff members if these documents were going to all of the university's area managers, senior line managers, 15 of them the university says, and they all, in conversations with me and in meetings with myself and other committee members, asked that we pursue the matter through the terms of the certified agreement.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN593

Dr Jones, that's not what your proof said, doesn't it? You're changing your evidence now aren't you?---I'm not sure what you're saying.

PN594

Well, you've said a number of people caused you to lodge or to confront the university about this document. Paragraph 16 of your proof says as follows:

PN595

These two reports -

PN596

Not any other reports from a number of other people, it's these two reports, and it's referring to the first person in paragraph 13 and it's referring to the one on 12 July. It says:

PN597

These two reports from different members in different divisions of the university led me to conclude.

PN598

Now, are you saying that is in fact vague, incorrect, or what is it?---No.

PN599

It's contradicting what you're saying now isn't it?---No, it's not at all. What I'm saying is that initially I was told verbally by a member that there was such a document, and then I actually was given a copy of that document on 12 July. In between those two times I had conversations with a number of members who were concerned to hear that such a document might exist and such activity might be occurring, and they all asked me to pursue through the processes and to seek any opportunity I had, clarification from the university. On 12 July, when I actually saw the document, was the point at which I concluded that there was clear evidence that this document was in existence and this document had gone to heads of areas, with the instructions to proceed.

PN600

Of course that's not what you've said in your evidence-in-chief is it? Nowhere up to paragraph 17 have you said apart from the two persons, the two different members, nowhere have you said in evidence-in-chief that anyone else gave you wind of the situation have you? You didn't say it in your first evidence did you?
---I haven't said here that anybody else gave me wind of the situation. What I've said is I was informed by two - I was initially informed by one member about the document, I was given a copy of the document by another member, but I also spoke to a number of members about the possibility, asking people if they had heard about this document, and members said various things about, well, they'd heard in rumours or whatever, but nobody else had seen the document. But they were very concerned, when I raised it with them, that such a document might exist and might be being acted upon. So the wind and the reaction to the wind were two separate things.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN601

Let me ask you this. You are the author of your own statement aren't you?---Yes, I am.

PN602

What you're trying to say now is an important component of it isn't it?---I'm not quite sure what you mean. It's all important.

PN603

What you're saying now - well, let me ask you that again, I'll clarify it. What you're saying now is that in addition to these two persons you had support from other persons to you talking to the university about the template, correct?---To try to seek clarification about what was being done and how staff might have input into any kind of proposals that were being put, being promulgated, and concern that a document that was already being acted upon had been formulated, yes.

PN604

Dr Jones, that wasn't my question?---I'm sorry.

PN605

Please listen to the question and answer it, and we'll get on?---I am trying very hard to listen to your questions, Mr Curlewis.

PN606

If you listen to it carefully. Are you saying now that of the proof that you drew up you left out a very important component of it, and that is, you left out a statement that in addition to these two persons you had other discussions prior to seeing the university on the 13th - writing to them on 13 July, with a number of other staff members, is it the fact that you left that out of the proof?---Not for any reason of obfuscation. It just, because I had - nobody else had seen the document it didn't seem that it was something that I should be putting into evidence.

PN607

Not even when Mr Stokes was here to try and expand on your evidence and to add weight and level to your evidence, you didn't think you should put it in then?---I'm sorry, Mr Curlewis, my memory of my ability to give evidence this morning was that every time I tried to give evidence I was stopped from doing so. There were many things that I would have liked to have said but wasn't given the opportunity to do so.

PN608

Let me go straight to the point then. You haven't answered my question. I am putting to you that these other so called discussions never took place. They are not mentioned before. What do you say to that?---I can only conclude that you are accusing me of lying under oath, Mr Curlewis, which would be an astonishing accusation to make.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN609

Is that your answer?---My answer is that of course those discussions took place. I take my role as president of the union very seriously. When members come to me and seek clarification I pursue them absolutely wholeheartedly.

PN610

Well, then you can either only answer it in two ways. One is, either you didn't think it was relevant - - -

PN611

THE DEPUTY PRESIDENT: Mr Stokes?

PN612

MR STOKES: Yes, I am concerned at where we're going with this line of questioning from the point of view that Mr Curlewis is attempting to draw conclusions. I have no objection to Mr Curlewis asking questions, but I do have objection to him suggesting two conclusions to a question he asks. That's the first point. I would ask that he ask the question and give the witness an opportunity to answer the question the way she feels fit to answer the question and in her own time, and be allowed to conclude her question. And the second one is, I am battling and grappling with questions of relevance with regards to this line of questioning.

PN613

THE DEPUTY PRESIDENT: Mr Curlewis?

PN614

MR CURLEWIS: I haven't asked the question I was about to because I was interrupted, and secondly, your Honour, these questions indeed go to the credit of this witness. If material issues are not put in evidence-in-chief and then they come out in cross-examination, I'm entitled to ask where they came from. That's what I'm prodding around to find out, where they came from. They go to the credit of this witness, that's the basis of it.

PN615

THE DEPUTY PRESIDENT: Mr Stokes?

PN616

MR STOKES: Your Honour, I have no argument per se with the asking of the question. I make the point that there was an attempt to ask a question and seek one of two conclusions, was the point I was making.

PN617

THE DEPUTY PRESIDENT: Mr Curlewis, if you could continue, noting the objection that you should ask questions and allow answers to be given to the questions.

PN618

MR CURLEWIS: I certainly shall, thank you, your Honour.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN619

It's correct to say that paragraph 13 of your statement, the prime driver of what your evidence-in-chief at least was that a member requested that you raise the matter with the university as a matter of urgency, I was approached about this time by another NTEU member. So that is - will you accept that those two are the prime drivers of your raising the matter with the university thereafter?---The initial approach from the member referred to in paragraph 13, who was initially spoken to by their line manager, was enough for me to raise it with management in the university. Even if no other member had come to me I would have still pursued it because it was a matter of very real significance.

PN620

Well, if you would answer the question. The question was not that. It said, were those two the prime drivers? Do you agree with that or not?---I'm thinking about your question. They were the two most significant initial drivers.

PN621

Now, 12 July you wrote to Professor Hacket to alert her to what you say are:

PN622

Our concerns about the approaches to line managers by HR consultants, and to express -

PN623

And I'm quoting from paragraph 17:

PN624

- our view that these did not comply with paragraph 12.

PN625

Who is the our, o-u-r, that you're referring to there?---The NTEU.

PN626

NTEU?---Yes.

PN627

Okay. It's correct to say that this dispute is not the NTEUs dispute, it is an affected member's dispute isn't it?---No. This is a dispute in which the NTEU is acting as a representative of affected members.

PN628

When you act as a representative of somebody it means you are their agent doesn't it?---A representative I think is probably the most appropriate term. That's certainly the language that the certified agreement uses, that staff members or their representatives, and that is the process which we use in terms of dispute notification, lodgement and attempts to resolve it. We see ourselves as representatives. We act as representatives when asked by staff to represent them.

PN629

Coming back to the question again because you haven't answered it. This dispute is not the NTEU acting as representative of the NTEU, it's acting as representative of an affected member isn't it?---It is acting as a representative of an affected member, and in that representation the NTEU has a view about the compliance with the clauses of the agreement to which it is a party.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN630

Let's come back to this issue. Whose dispute is this in that sense? You may have a view as the union, I accept that, but whose dispute is this? Is it an individual member's dispute or is it the NTEUs dispute with the university?---The NTEU has lodged this dispute with the Industrial Relations Commission in its representation of members, so the dispute has been lodged by the NTEU.

PN631

Will you accept then that this dispute is not an NTEU dispute, it is the innominate, the unspecified affected member's dispute?---My understanding is that the NTEU is actually a body which consists of its members, and so a dispute of a member of the NTEU is actually an NTEU dispute. The two cannot be separated, that's my understanding, and that's an understanding that I've had after discussions with industrial representatives over these kinds of matters.

PN632

So are you saying that a member of the union equals the union, is that right?---No. I'm saying that the union equals its members, so that the union is actually - when the union, we talk about a dispute being raised by the NTEU it means that the dispute is being raised by the membership of the NTEU, representing that membership.

PN633

Well, then just to take you back. How on earth can your explanation fit in accordance with the certified agreement? Clause 14.2.1 says:

PN634

In the first instance the staff member and/or their representative.

PN635

It doesn't say anything other than their representative shall discuss the dispute. But the representative is the person representing that person, it's their agent isn't it?---No, I don't understand it to be that way. My understanding is that their representative is the NTEU, and any employee or office bearer of the NTEU fits that role, that's my understanding. It's an understanding of which I've actually sought clarification about.

PN636

What standing does the affected member have in this whole issue if the whole process is driven by the union?---The union is the membership. The union doesn't act without instruction from its membership. That instruction comes from individual members and it comes from the collective membership. As you will see, that motion that was passed on 9 August was an endorsement of the action that the union had taken to date. The union does not act with separate identity to its membership.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN637

Are you saying therefore that the member, the individual person is irrelevant to this dispute?---Not at all.

PN638

So in the end result are you saying that this dispute, the issue of who an affected member is or isn't, is not the issue that pertains to this application?---No, I am not saying that at all. I am saying that there are many - in this particular case there are many members of the union who are affected by the document and what the document is seeking to achieve. But if there were one member only in the entire university that would be affected by that it would be pursued if that member sought us to.

PN639

I'll come back to the next point then. You say many people may be affected, but that's not what in fact clause 14 deals with. It is saying not that if you, the union, thinks people are affected you should lodge a dispute. It requires an affected member to deliberately require you to lodge a dispute does it not?

PN640

MR STOKES: Your Honour?

PN641

THE DEPUTY PRESIDENT: Mr Stokes?

PN642

MR STOKES: Yes, thank you. Your Honour, I'm actually again rising simply because I'm grappling with the relevance of where this questioning is going with regards to Mr Curlewis. I understand that Dr Sinclair-Jones has submitted her written statement. Mr Curlewis has asked virtually the same question five different ways. Dr Sinclair-Jones has answered the question consistently. I'm seeking, what's the relevance of the questioning beyond that, and I'm also asking what is the relevance with regards to questions of cross-examination in respect to evidence-in-chief and the witness statement? It seems to be going beyond that.

PN643

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis?

PN644

MR CURLEWIS: Well, I don't understand the position made and I don't think, with respect, there is any response I can give to that. I'd seek leave to simply continue with my cross-examination. I don't understand what has been put from the bar table. I've asked questions, I'm dealing with the application of clause 14.2, which is very germane to this whole exercise, and what indeed is an affected member?

PN645

THE DEPUTY PRESIDENT: Mr Stokes, it's put to me by Mr Curlewis that the relevance is to the application of clause 14.2 and to the question of what is an affected member. Do you have any further comment?

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN646

MR STOKES: Well, I'd only make the comment with regards to Mr Curlewis has asked the same question on a number of different occasions, and Dr Sinclair-Jones has responded. But that's the point I've already made, your Honour.

PN647

THE DEPUTY PRESIDENT: Thank you. Mr Curlewis, do you wish to add anything further?

PN648

MR CURLEWIS: No. I would seek, with your permission, to proceed to ask my question.

PN649

THE DEPUTY PRESIDENT: Yes, please proceed on the basis that the questions are relevant and adding to the evidence that will assist the Commission.

PN650

MR CURLEWIS: Thank you, your Honour.

PN651

Just so we line up the process that was followed here, clause 14.2.1 says that the staff member or their representative, and you say that was the NTEU, shall discuss the dispute and attempt to reach agreement. When, or at what even did you, as the NTEU, as the representative of the staff member discuss the dispute, when or where did you discuss it with the university representatives?---In the meeting referred to in my witness statement, with Mr McGinniss. I can't quite remember the date. It's here in my witness statement, but you don't want me to refer to it so it's difficult.

PN652

No, that's fine. Let's accept you discussed it with Mr McGinniss, correct?---Yes.

PN653

I want to show you two letters. Now, if you look at the first one, it's a letter dated 19 July 2006. Do you recognise that letter?---Yes.

PN654

Did you write it?---Yes.

PN655

And that is the one I understand you to be saying is seeking to discuss the dispute, correct?---Yes, I think so. I don't have my file with me.

PN656

Well, is your answer yes or no, or think so?---My answer is I think so. And without my documentation, my records, I can't swear to that.

PN657

Well, we'll take your answers as they are. I tender that document please, your Honour.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN658

THE DEPUTY PRESIDENT: Has this document been provided to the Commission previously?

PN659

MR CURLEWIS: It has previously been provided to the Commission, and my colleague is aware of that. He was provided with a copy as well.

PN660

THE DEPUTY PRESIDENT: Yes, Mr Stokes?

PN661

MR STOKES: That's what I was going to seek clarification before you asked the question, your Honour. I would just seek clarification that this is new evidence or it has been provided by the respondent.

PN662

THE DEPUTY PRESIDENT: Can you indicate where it was provided to the Commission? Was it an attachment to a witness statement for example?

PN663

MR CURLEWIS: It was not attached to any statement, that is why I am tendering it now. I attached it separately to documents upon which I intended to rely, or the respondent intended to rely, previously.

PN664

MR STOKES: So, your Honour, obviously we would object to the submission at this stage of such a document in relation to this matter. I'm unsure what the intention is here with regards to the matter of new evidence on behalf of the respondent.

PN665

THE DEPUTY PRESIDENT: Yes, Mr Curlewis?

PN666

MR CURLEWIS: I'm indebted to - who, apart from my saying I've also referred to it, it is actually as attachment 3 to the NTEUs own submissions to this Commission, that is, the submissions that were put to this Commission, it's their own document. The document that was filed as NTEU submission in November, October, that should - I beg your pardon, attachment 3 to that contains both this letter and the next which I seek to tender. They are put up there.

PN667

THE DEPUTY PRESIDENT: Yes.

PN668

MR CURLEWIS: So apart from myself also saying I'd rely on it, the NTEU has said it would rely on it.

PN669

THE DEPUTY PRESIDENT: Yes.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN670

MR CURLEWIS: It's no surprise, your Honour.

PN671

THE DEPUTY PRESIDENT: No.

EXHIBIT #3 LETTER DATED 19/07/2006

PN672

THE DEPUTY PRESIDENT: Does that accord with the records of the parties?

PN673

MR CURLEWIS: Yes, I think so.

PN674

THE DEPUTY PRESIDENT: Yes.

EXHIBIT #4 LETTER DATED 25/07/2006

PN675

MR STOKES: The only point, sorry, your Honour - - -

PN676

THE DEPUTY PRESIDENT: Yes, Mr Stokes?

PN677

MR STOKES: A point of clarification, and it's not a pedantic point, but the letter that Mr Curlewis has provided to you today of 19 July is unsigned, whereas in our submission, of course, it is signed.

PN678

THE DEPUTY PRESIDENT: Thank you.

PN679

MR CURLEWIS: I take it from the other side there's no dispute as to the veracity of the letter, whether it's - I can hand up the signed copy if we have to get pedantic. The witness has already acknowledged it's her letter and accepted it. It's a no, no point.

PN680

THE DEPUTY PRESIDENT: Yes. My understanding is it's not disputed that it is the signed letter that will form the evidence before the Commission.

PN681

MR CURLEWIS: As your Honour pleases.

PN682

So to go to exhibit 3 which you have in front of you, Dr Jones, it says there, and this is 19 July:

PN683

Please contact me so we can arrange a mutually convenient time to meet on Thursday, 20 July.

PN684

Does that, as to the process, to meet with Mr McGinniss, in any way refresh your memory about what happened about that time?---Yes. I mean, I'm just - I don't have - I remember the meeting with Mr McGinniss very well, if that's what you're suggesting, or asking.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN685

All right. Do you know, with reference to exhibits 3 and 4, on what day it took place?---The meeting with Mr McGinniss?

PN686

Yes?---The meeting with Mr McGinniss I think did take place on the Thursday, 20 July. It seems to be consistent with my witness statement as well as the date of the letter.

PN687

All right. At what time of the day did it take place?---From memory I think it was around 10 o'clock, but I really would need to check my electronic calendar to be sure.

PN688

So you had a meeting at 10 o'clock. When you were advised, it appears from your statement, that Mr McGinniss said that the reshaping document would not be withdraw, is that correct?---Yes.

PN689

Okay. This meeting didn't take very long did it?---No. Mr McGinniss was quite categoric about - I went to the meeting with proposals about how the dispute could be resolved, and Mr McGinniss's response was quite categoric that that proposed resolution was one the university would not be able to meet, and so he was - the university did not itself come to that meeting with any proposals about the resolution of the dispute. We went to the meeting with a proposed resolution, they came with none, other than to refuse ours.

PN690

To be precise, it wasn't proposals for the resolution. You had one proposal and that was to withdraw the document, correct?---Yes, I think that would be correct, yes.

PN691

Right. And the university said it would not withdraw the document?
---Mr McGinniss advised that the document could not be withdraw.

PN692

Correct. And that was the resolution of it. To be precise, that meeting - - -?---It wasn't resolved.

PN693

It didn't resolve it. And to be precise, that meeting was all of 10 minutes wasn't it?---I don't think I have a record of precisely how long it took. It was a short meeting because there was such a blanket refusal of our resolution. There was really nowhere that we managed to go at that meeting.

PN694

It's correct to say that you took the view that unless the document was withdrawn there was not much more to talk about, correct?---There was, but we took the view that the document had to be withdrawn so that consultation could occur as it should be occurring as set out in the agreement. But for the document not to be withdrawn was a continuing of the university's path to act without consultation, and so it was the only resolution that could comply with the consultation requirements of the agreement.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN695

All right. Now, assuming it was pretty quickly over, you say you're not sure if it was 10 minutes, the outcome of that meeting was your writing then to Bill Ryan saying the matter should be referred to the IMCC, wasn't it?---That's correct, yes.

PN696

And that took place pretty soon afterwards didn't it?---Yes. I think that it occurred, as we see, from the time it was faxed, the top of the letter.

PN697

Faxed at 12.56, 1 o'clock?---Yes.

PN698

So you had a meeting, to give it it's credit, maybe went till half past 10, maybe 11 o'clock, maybe?---We were very keen to get this dispute resolved. We were very anxious that matters were proceeding at a rate that meant the dispute needed to be resolved very quickly, because the further down the track it went the more difficult it would be to pull back.

PN699

But you're saying we, you mean the union, correct?---Yes.

PN700

So you were keen to see it resolved. You as the union came out of the meeting and whipped up this letter and sent it to Bill Ryan, the director of workplace relations, correct?---We came out of the meeting, I came out of the meeting. From memory I met with Mr Stokes with other members of the executive, and members who had approached me, as we've already discussed, because they were by that stage becoming anxious about the process, and those members asked me to therefore refer it to the IMCC as required under the dispute resolution process.

PN701

I see?---And so I then, with the assistance of the industrial officer, wrote this letter and forwarded it to Mr Ryan requesting that the meeting be held as the agreement sets out.

PN702

You wrote this letter and you say you did it after consulting your executive plus?
---Not the entire executive, no. As I say, members of the executive, not all the executive.

PN703

Who was present?---My memory would be Associate Professor Charnock, Associate Professor Errington I think from memory, Mr Stokes. There were other members of the executive, I can't remember exactly who. I have a sense of the room having about four or five of us in it as well as the member that initially approached me about it. I discussed it with him prior to writing this letter. And it may be that the person who also brought me the document was there at the time. I can't remember precisely whether they were there, but I also discussed it with them prior to the request for this to be notified. So there were a number of people, as I say.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN704

None of that of course you said in your evidence-in-chief did you?---It would seem to me to be obvious that this had been a result of affected staff asking me to refer it to the IMCC, because that's a requirement of the dispute resolution clauses, so I didn't think that I needed to state the obvious in this evidence. I mean, we wouldn't have taken it to the - - -

PN705

So if you answer the question?---We wouldn't have sought for it to go to the IMCC without the request of staff.

PN706

Dr Jones, if you will answer the question. I don't need an explanation. I want you to answer the question?---Certainly.

PN707

None of that was put in your evidence-in-chief was it?---I didn't realise that it needed to be.

PN708

I'm not asking for an explanation. Will you concede that none of that, this explanation you are now giving in cross-examination was in your evidence-in-chief, yes or no?---No, it wasn't.

PN709

That's all I'm asking for?---It wasn't seen as being necessary.

PN710

No trap. You just have to say yes or no. Your Honour, I don't wish to delay matters. I see it's 20 to five. I'm happy to go on, but I appreciate you did say half past four. Do you wish to proceed?

PN711

THE DEPUTY PRESIDENT: I would ask for your time estimate of the amount of time that's needed to complete the cross-examination?

PN712

MR CURLEWIS: About an hour, your Honour.

PN713

THE DEPUTY PRESIDENT: Yes, in the light of that it would be my intention to adjourn in accordance with the timeline that I outlined this morning and discussed with the parties. Your views, Mr Stokes?

PN714

MR STOKES: In principle no objection to that, your Honour. I would only make the point that the NTEU has consistently tried to progress this matter. We have been reminded by the respondent on many occasions, but there have been interruptions from our perspective by the respondent. We have tried to be disciplined on our side with regards to these matters. What I don't want is for the respondent to be jumping up left, right and centre tomorrow saying we need to move things on.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN715

I'm more than happy, your Honour, but I want it noted on the record that it was said that the terms of cross-examination would take approximately an hour. We're beyond the hour. We're going into the second day tomorrow. We have heard one witness. We have our other people in terms of the other witnesses tomorrow. I've asked them - they've left. I've asked them to be here at 10. I now understand that there's going to be further cross-examination for an hour, so that's two hours, and I was originally informed it was going to be an hour. So I now have to try and make communication.

PN716

It's not a whinge, your Honour, at this late stage in the day. It's simply a question of, I don't want to be reminded tomorrow by the respondent that things are going on and on and on through no fault of the NTEUs. But all that being said, your Honour, at this late stage in the day, in principle we agree.

PN717

THE DEPUTY PRESIDENT: Thank you.

PN718

MR CURLEWIS: May I add something, your Honour?

PN719

THE DEPUTY PRESIDENT: Yes, Mr Curlewis.

PN720

MR CURLEWIS: I gave no commitment that the cross-examination would take an hour today. I said I would use up all the time today, and that was the extent of what I said. It's absolutely incorrect to suggest that I tighten my cross-examination down for an hour only. Having corrected the record I would ask that the witness be reminded she's under oath and should not be discussing this matter in any respect with anyone whatsoever overnight.

PN721

THE DEPUTY PRESIDENT: Yes, Dr Sinclair-Jones, are you aware of that obligation?---Yes, your Honour.

PN722

Yes, thank you. I am cognisant that this matter is taking some time and perhaps longer than has been anticipated, however, I note that the parties this morning were involved in a number of occasions in relation to objections as to whether questions being put to Dr Sinclair-Jones were in fact clarification or, indeed, alternatively, expansion of the evidence, and also whether the questions put were relevant to the application as lodged. And those were important questions that needed to be worked through without a heavy handed approach and without undue pressure on the parties because of time.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN723

But I'm satisfied that the proceedings today, although somewhat lengthy, have enabled some important matters to be identified and clarified, and I would urge the parties tomorrow to build on the progress that's been achieved in the course of the day, and to keep the hearing moving as close to schedule as can be achieved. Mr Stokes?

PN724

MR STOKES: Sorry, just one clarification, your Honour. I'd like to be able to go back to the other witnesses and request, because we had Associate Professor Errington appearing after Dr Sinclair-Jones, and I'm aware that they're busy people as well.

PN725

THE DEPUTY PRESIDENT: Of course.

PN726

MR STOKES: Would it be reasonable to request that Associate Professor Errington be here at 11? If that's the case, if we're adjourning till 10, with the respondent saying he would need approximately an hour.

PN727

THE DEPUTY PRESIDENT: Yes, that would sound reasonable. What do you think, Mr Curlewis?

PN728

MR CURLEWIS: All things being equal, he can certainly be here at 11. I just would not be tied to that. I'll do my best. A lot depends on the evidence and the answers.

PN729

THE DEPUTY PRESIDENT: Yes.

PN730

MR CURLEWIS: But certainly that's my projection, my estimate.

PN731

THE DEPUTY PRESIDENT: So can I say your goal is to be finished by 11 if possible?

PN732

MR CURLEWIS: My goal would have been to have finished at quarter past three today, but it's not been possible, so I certainly would endeavour to do my best tomorrow morning.

PN733

THE DEPUTY PRESIDENT: Yes, to be finished by 11, is that what you will endeavour?

PN734

MR CURLEWIS: Yes, on my very best to do so. It depends, indeed, on the questions and, indeed, if they are answered.

**** JANET SINCLAIR-JONES XXN MR CURLEWIS
PN735

THE DEPUTY PRESIDENT: Yes. Does that assist, Mr Stokes, in relation to Associate Professor Errington?

PN736

MR STOKES: Thank you, your Honour.

PN737

THE DEPUTY PRESIDENT: Yes. We'll adjourn until 10 o'clock tomorrow.

<ADJOURNED UNTIL WEDNESDAY 31 JANUARY 2007 [4.43PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

JANET SINCLAIR-JONES, AFFIRMED PN98
EXAMINATION-IN-CHIEF BY MR STOKES PN98
EXHIBIT #1 WITNESS STATEMENT OF DR JANET SINCLAIR-JONES PN154
EXHIBIT #1.1 CURRICULUM VITAE PN154
EXHIBIT #1.3 DOCUMENT TITLED MINUTES OF IMPLEMENTATION, MONITORING AND CONSULTATIVE COMMITTEE DATED 11 JULY PN182
EXHIBIT #1.4 DOCUMENT TITLED PROPOSAL FOR SUPPORT UNDER THE RESHAPING CURTIN INITIATIVE PN185
EXHIBIT #1.5 LETTER FROM DR JANET SINCLAIR-JONES TO PROFESSOR JEANETTE HACKET DATED 13/07/2006 PN188
EXHIBIT #1.6 LETTER DATED 18/07/2006 PN191
EXHIBIT #1.7 LETTER FROM PROFESSOR JEANETTE HACKET TO DR JANET SINCLAIR-JONES DATED 20/07/2006 PN194
EXHIBIT #1.8 MINUTES OF IMPLEMENTATION, MONITORING AND CONSULTATIVE COMMITTEE MEETING DATED 08/08/2006 PN198
EXHIBIT #2 SUPPLEMENTARY WITNESS STATEMENT OF DR JANET SINCLAIR-JONES PN212
EXAMINATION-IN-CHIEF BY MR STOKES, CONTINUING PN366
CROSS-EXAMINATION BY MR CURLEWIS PN534
EXHIBIT #3 LETTER DATED 19/07/2006 PN671
EXHIBIT #4 LETTER DATED 25/07/2006 PN674