C2008/2225, Transcript of Proceedings [2008] AIRCTrans 152 (4 April 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18298-1

JUSTICE GIUDICE, PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER LARKIN

C2008/2225

s.120 - Appeal to Full Bench
Appeal by Weston, Rae
(C2008/2225)

SYDNEY

11.00AM, WEDNESDAY, 19 MARCH 2008

Reserved for Decision

PN1

JUSTICE GIUDICE: Yes. Appearances please.

PN2

MR I NEIL: I seek leave to appear with my learned friend, MR T SAUNDERS, for the appellant, Dr Weston.

PN3

MR A MOSES: I appear for the respondent with my learned friend, MR D NAGLE.

PN4

JUSTICE GIUDICE: Yes. Where are we, gentlemen?

PN5

MR NEIL: Where we are is first that we are very grateful for the time that the Commission has already allowed us. During that time the parties have discussed the possibility of resolving the dispute. Those discussions are underway. They have reached a point where we are able to say that we will know within 15 minutes whether a resolution is likely to be achieved or not. We can also say, and we’ve expressly discussed this with our learned friend, we can also say that if the matter were to start at, say, 11.30 it would certainly conclude well within the day allowed for the appeal.

PN6

JUSTICE GIUDICE: Yes. Well, that’s I suppose our main concern. While we’d encourage discussions and resolution of the issues, on the other hand we wouldn’t want to see the day thrown away.

PN7

MR NEIL: No. We are, alike, all at the bar table anxious to finish the matter today. That’s our assessment.

PN8

JUSTICE GIUDICE: Very well. Well, I think in the circumstances the best thing might be if you make contact with my associate in due course - I won’t put a time limit on it - as to how things stand and we will resume one way or another after we have heard from you. Even if it’s only for the purpose of disposing of the matter.

PN9

MR NEIL: If it pleases.

<SHORT ADJOURNMENT [11.02AM]
<RESUMED [11.56AM]

PN10

JUSTICE GIUDICE: Yes, Mr Neil.

PN11

MR NEIL: If the Commission pleases. May I report that our discussions have reached such a point that while they are not definitely concluded, the parties thought best that if it suited the Commission to do so we are to begin.

PN12

JUSTICE GIUDICE: Yes.

PN13

MR NEIL: The applicant, or the appellant I’m sorry, was employed by the respondent, Macquarie University, as a professor of management at its Graduate School of Management. She took up that position on 1 October 1990. On 30 November 2006 she was told that her position had been selected for redundancy. She was retrenched on 31 May 2007. He employment was governed by the Macquarie University Enterprise Agreement 2006-2009. The Commission will find a copy of that enterprise agreement in the appeal book at volume 3 at page 1418 and following.

PN14

JUSTICE GIUDICE: Are the relevant parts set out in the Commissioner’s decision?

PN15

MR NEIL: Not in their entirety. The enterprise agreement included a dispute settling procedure. Its terms are set out at page 1451 of the appeal book and following. It’s to be found in clause 4.18. After Professor Weston had been told on 30 November 2006 that her position had been selected for redundancy, but before she was retrenched on 31 May 2007 she raised a dispute under the dispute settling procedure. In due course that dispute came before the Commission, ultimately for arbitration. The respondent objected to the Commission’s jurisdiction to arbitrate the dispute. That jurisdiction, it was said, had its source in section 709 of the Act, ultimately of course in clause 4.18.

PN16

The objection raised by the university had two grounds. One was successful. That depended on clause 4.18.14, the terms of which can be found at page 1453. By that provision decisions in accordance with the agreement to terminate employment were said not to be subject to further review or dispute. At first instance the Commissioner upheld the objection based on clause 4.18.14. In doing so the Commissioner held that had decision to retrench an employee to whom clause 4.18 applied was by that provision made immune from review or dispute, notwithstanding that it was not a decision taken in accordance with the agreement.

PN17

In doing so, in our submission, he fell into error in misconstruing and misapplying clause 4.18.14. The Commissioner also held that by clause 4.18.14 any decision, however separate or distinct from the decision to retrench an employee it might be, any decision that ultimately turned out to be a step on the way to retrenchment was also, by that provision, made immune from review or dispute. In so holding, in our submission, the Commissioner fell into error. The appellant, after she was retrenched, also invoked the Commission’s jurisdiction under section 643. The respondent objected to that application on the ground that the reason or reasons for which it had retrenched Professor Weston were genuine operational reasons within the meaning of subsection 643(8) with the consequence that her retrenchment was taken outside the Commission’s jurisdiction.

PN18

He did so without any evidence that could satisfy him that there was a genuine operational connection between the asserted reason for the retrenchment, that being the financial position of the university’s Graduate School of Management, on the one hand and the decision to retrench the appellant on the other. In so doing it is our submission that the Commissioner fell into error. May we deal first with so much of the proceedings below as concerned the appellant’s application under section 709. And then secondly - - -

PN19

JUSTICE GIUDICE: In that respect, Mr Neil, what’s the significance, if any, of the secrecy provisions for us sitting on appeal?

PN20

MR NEIL: Below the Commissioner held that those provisions applied not only to the application insofar as it concerned the Commission’s jurisdiction under section 709, but also the proceedings insofar as they concern the application under section 643.

PN21

JUSTICE GIUDICE: Yes.

PN22

MR NEIL: That was a course that was not opposed by the appellant below and we could not suggest that the same result would not apply here, the same course such that the same course would be here appropriate.

PN23

JUSTICE GIUDICE: Well, are you suggesting that the appeal proceedings are part of the dispute resolution process?

PN24

MR NEIL: Yes.

PN25

JUSTICE GIUDICE: And so it’s your submission that the whole of these proceedings should be conducted in private?

PN26

MR NEIL: It’s not my submission that it be so, or our submission that it be so, but we would not oppose such a course.

PN27

JUSTICE GIUDICE: And what do you say about section 712(3)? You base your appeal on section 120(1)(f), is that correct?

PN28

MR NEIL: Yes, your Honour.

PN29

JUSTICE GIUDICE: You might like to consider this, Mr Neil, but I think there has been a decision in which a Full Bench decided an appeal under section 120 from a dispute resolution process is not itself a dispute resolution process. It’s a different proceeding and therefore the appeal would not be required to be conducted in private.

PN30

MR NEIL: May we give some consideration to that?

PN31

JUSTICE GIUDICE: Yes. And to my second issue is the disclosure of materials in the dispute resolution process in the appeal proceeding, which is the issue raised by section 712(3).

PN32

MR NEIL: Yes.

PN33

JUSTICE GIUDICE: Now, in that particular decision it involved Sydney Ferries Corporation. The parties decided that they would waive any rights to privacy for the purpose of the appeal in relation to the dispute resolution proceedings. I’m not suggesting that’s what should happen, but in that case it was a way that the parties decided would remove the issue, at least from the Commission’s point of view, of it being a breach of a statute regulating the proceedings. I raise these matters at this point because they have got some significance in terms of the material you take us to.

PN34

MR NEIL: Yes.

PN35

JUSTICE GIUDICE: I’m not signalling you out, Mr Neil. Mr Moses, you will have to give some thought to these issues as well.

PN36

MR MOSES: Yes, your Honour.

PN37

MR NEIL: Well, perhaps we could take the significance of the Sydney Ferries’ case under consideration.

PN38

JUSTICE GIUDICE: Yes.

PN39

MR NEIL: In doing so we would - - -

PN40

JUSTICE GIUDICE: We can for the moment, if it is a practical way of dealing with it I’m sure, we could for the moment simply regard this proceeding is private and ensure that there’s nobody here who shouldn’t be here.

PN41

MR NEIL: That was the course that we were going to suggest.

PN42

JUSTICE GIUDICE: Yes. That might be a holding position at least.

PN43

MR NEIL: And we can look at that over lunch. But we’d need to give some consideration in that regard to the significance of clause 4.18.13 of the dispute settling procedure. That’s also to be found on page 145(3). And if we reach that point we would need to give some consideration to whether, if we were asking the Full Bench to look at the record of the proceedings at first instance, we would be asking the Full Bench to do something that was not permitted by section 712.

PN44

JUSTICE GIUDICE: Yes.

PN45

MR NEIL: Our preliminary submission in that regard is that section 712, where it applies, precludes the admission of evidence, but that is not something that we would be asking the Full Bench to do. That is we would not be asking the Full Bench to admit the evidence simply to examine the record of the proceedings.

PN46

JUSTICE GIUDICE: You may be taking a technical view of the expression “evidence”. It’s evidence of anything said or done, or any act done.

PN47

MR NEIL: Yes.

PN48

JUSTICE GIUDICE: You can give evidence of about that by pointing to the Commissioner’s decision.

PN49

MR NEIL: Yes. Although, our submission would be - preliminary submission - that by inviting the Full Bench to look at the record of what was said and done before the Commissioner, we would not be seeking to have that record admitted into evidence.

PN50

JUSTICE GIUDICE: Well, not in a technical sense.

PN51

MR NEIL: No. Or indeed, in our submission, in any sense. It simply forms part of the record of the proceedings.

PN52

JUSTICE GIUDICE: Yes, I see. Well, one way of dealing with it is to agree, insofar as it might be necessary, that the record be admitted for the purpose of the appeal pursuant to section 712(3)(d).

PN53

MR NEIL: Yes.

PN54

JUSTICE GIUDICE: But at least at this stage, for no other purpose, so it would be protected from going further, but on the other hand the position in relation to the proceedings would be expedited.

PN55

MR NEIL: Yes. My learned friend would want - if our primary submission were not to be separate, that is that section 717 doesn’t regulate the conduct of an appeal unless during the course of that appeal somebody sought to tender evidence of what was said or done before the Commissioner were not to be accepted then recourse to paragraph 712(3)(d) would resolve any difficulty for our part ..... we would subscribe to such an agreement. But until our learned friend would want to consider his position perhaps for the moment while that happens.

PN56

JUSTICE GIUDICE: Yes.

PN57

MR NEIL: We might go forward on the basis that that is what will happen and if my learned friend during the course of the day announces some other position, then we can deal with that.

PN58

MR MOSES: Your Honour, I have given that issue some thought, though I must admit in respect of the Sydney Ferries decision that was not a decision which I had analysed in the context of section 712(3). And paragraph 4.9 and 10 of our written submissions we allude to that issue and the way in which we were going to develop it was in aid of a submission that any appeal that exists from the dispute resolution process, a part of the matter that was before the learned Commissioner, doesn’t come from the source of power in section 120 because it would have to be predicated upon a party, such as my client having to agree the material to go before the Bench.

PN59

If we took the view that we didn’t agree that, on our view of the section, you don’t have it before you hence the review couldn’t take place. And we were going to point to that as a statutory construction issue as to why section 120 doesn’t assist my friends in respect of giving them some sort of right of appeal concerning the matter. But in order not to frustrate the process that is now being undertaken it is a matter that the respondent would agree to being before your Honours, but we of course will be putting submissions in terms of the statutory construction issue in due course, depending on what my friend says because they, without ..... have dealt with that in the way in which they develop their submissions in this matter.

PN60

JUSTICE GIUDICE: I take it that you have no objection for Mr Neil, at least for the moment, to develop any submissions by reference to what occurred before the Commissioner?

PN61

MR MOSES: No, your Honour.

PN62

JUSTICE GIUDICE: All right. I think that will at least get you started, Mr Neil.

PN63

MR NEIL: Yes.

PN64

SENIOR DEPUTY PRESIDENT HARRISON: Now, could I maybe just raise another matter that concerned me and just perhaps have your assurance that it was considered by you and not seen to be applicable. That is the bar in section 672 on commencing 643 proceedings when prior proceedings in relation to a termination had already been commenced. And it seems to me that whether or not that’s applicable might relate to what section 672 means, 672(3). It’s not referred to anywhere. I’m assuming it was discounted. I’d just like to be satisfied that it was discounted having been considered by both sides.

PN65

Because it’s not referred to in the Commissioner’s decision the key to it will, of course, be 673(2)(3)(b) whether it can be said that the 709 proceedings alleged that the termination was unlawful for any reason. It will be a question then of construction of what 709 is alleging was wrong and whether that could be categories as unlawful.

PN66

MR NEIL: Certainly no one has ever contended on the part of the respondent.

PN67

SENIOR DEPUTY PRESIDENT HARRISON: Well, if it was it would probably be the other side, yes.

PN68

MR NEIL: That that was a ground upon which objection could be taken to the 643 application.

PN69

SENIOR DEPUTY PRESIDENT HARRISON: All right.

PN70

MR MOSES: My learned friend is correct, your Honour.

PN71

SENIOR DEPUTY PRESIDENT HARRISON: The 709 wasn’t said to raise unlawful grounds in the sense of - I’ve just closed my Act - is it subsection (3)?

PN72

MR MOSES: That is correct, your Honour.

PN73

SENIOR DEPUTY PRESIDENT HARRISON: Very good, thanks.

PN74

MR MOSES: We did put a submission concerning what we contended was in essence what was sought to be achieved by the application that’s before the learned Commissioner, but that wasn’t ..... .

PN75

SENIOR DEPUTY PRESIDENT HARRISON: Thank you.

PN76

MR NEIL: So if it please the Commission we’d propose to deal in turn first with so much of the proceedings below as concerned the application under section 709 and then second with so much of those proceedings as concerned the application for relief in relation to the termination of Professor Weston’s employment under section 633. As to the application under section 709 the starting point is, of course, the terms of the certified agreement. A copy of that agreement is reproduced in the appeal book, as we have said, at the beginning of page 1418. There was no question that Professor Weston and the university were relevantly bound by the certified agreement.

PN77

May we draw attention to some of the salient features of that agreement. The starting point is clause 4.14, which is to be found at pages 1448 and 1449 of the appeal book volume 3. May we draw attention to some features of that provision. First, by clause 4.14.1 the university committed itself to what was called a transparent workplace change process. Second, in clause 4.14.2 the university, amongst others, committed itself to what was called a consultative process in circumstances where and when the university was considering the implementation of workplace change that could reasonably be expected to have significant effects on staff.

PN78

Significant effects were said to arise from a number of stipulated circumstances amongst others. Two of those circumstances, identified respectively in paragraphs (b) and (f), were a reduction in the number of positions and changes which invoke clause 6.2. Clause 6.2 begins at page 1465 of the appeal book. It deals with the subjects of redundancy, redeployment and retrenchment. In due course we will return to those if we may. It will be remembered that the process to which the university, amongst others, had committed itself where it was considering the implementation of workplace change that could reasonably be expected to have such effects on staff, was a consultative process.

PN79

That consultative process was one which involved or was to involve discussion. So much appears from clause 4.14.3. That discussion was to be informed by relevant information about the proposed workplace change. Clause 4.14.4, which appears at the top of page 1449, imposed on the university an obligation to provide to all staff affected by the workplace change that was under consideration with relevant information. Information that was said to be relevant is set out in paragraphs (a), (b), (c) and (d). It was all information that is the first sentence that clause 4.14.4 indicates was to be about the proposed workplace changes.

PN80

Clause 4.14.5 allowed to affected staff a reasonable time to provide a response to the proposed changes and to any further recommendations made by the universities a consequence of the consultation. The university was obliged again by clause 4.14.5 to give consideration to such a response and to respond in turn to affected staff or their representatives. The university had that obligation, clause 4.14.5 concluded, before it made any decision whether or not to proceed with the workplace change. Then in clause 4.14.6 the university had a number of obligations which attended upon a decision on its part to proceed with the so called change proposal.

PN81

Clause 4.14.7 imposed a number of additional obligations on the university in circumstances where the implementation of workplace change led to a position becoming redundant. Those additional obligations would have complied with what clause 4.14.7 described as the redundancy provisions of the agreement. Those are the provisions of clause 6.2. They are to be found at page 1465 of the appeal book. May we remind the Full Bench shortly of the salient features of clause 6.2. In a way that is familiar, because it’s common amongst certified agreements of this kind, clause 6.2 provided that the university after it had decided to make one or more positions redundant in any area as a consequence of the so called managing change process regulated by clause 4.14, to first invite staff members to apply for voluntary redundancy.

PN82

That requirement is to be seen in clause 6.2.1. In clauses 6.2.2 to 6.2.4 are to be found a number of requirements bearing upon the consideration by the university of any applications for voluntary redundancy. The scheme of clause 6.2 in our submission is such that before the university could proceed to any of the other steps to which clause 6.2 provides it was required to consider whether it would accept any applications for voluntary redundancy that it received as a consequence of the invitation that it was required by clause 6.2.1 to make. Clause 6.2.7 came into play when after the university had determined top make specific positions redundant as a consequence of the managing change process and it had resolved that it would not accept such applications for voluntary redundancy as would satisfy that determination, in that circumstance the university was required by clause 6.2.7 first to inform affected staff that if redeployment was not possible they would be retrenched.

PN83

The affected staff for the purposes of clause 6.2.7 were, in our submission, those staff who held the positions that the university had determined to make redundancy as a consequence of the managing change process. There follows in clause 6.2.8 and following a number of steps each required by the certified agreement which steps might, but would not necessarily, lead to the final step, a decision to retrench an employee whose position had become redundant. First by clause 6.2.8 a staff member who was notified that their position was to be made redundant had the right to receive six months notice of any intention to retrench them.

PN84

During that period the staff member was given, again by clause 6.2.8, the right to seek a review of the university’s decision. That review was to be undertaken in accordance with clauses 6.2.20 and following. They can be found on pages 1467 and 1468 of the appeal book where it can be seen that provision was made for the constitution of what was called a redundancy review committee and the consideration by that committee of documentation relevant to the decision to declare a position redundant and for a report by the committee as to whether fair and objective criteria were used to identify the redundant position and whether the university had acted fairly and properly in selection of staff against the criteria.

PN85

Those provisions are to be found particularly in clause 6.2.22. Other steps for which the certified agreement provided that might, but would not necessarily, lead to a decision by the university to retrench a member of staff whose position had been declared redundant included an obligation on the part of the university to take all reasonable steps during the period of six months stipulated in clause 6.2.8 to identify positions to which the staff member in question might be redeployed. That requirement is to be found in clause 6.2.10. The content of the university’s obligation if it identified such a position is set out in clause 6.2.11 and the content of the staff member’s obligations if such a position was identified and an offer was made to him or her is set out in clause 6.2.12.

PN86

Clause 6.2.14 provides for or comes into play when after the university had determined to make a position redundant, after it had informed staff affected by that decision that they would be retrenched if redeployment was not possible, after the university were provided six months notice of that intention, after and subject to any review that might be requested by that staff member under clause 6.2.8 and after the university had taken all reasonable steps throughout the period of six months for which clause 6.2.8 provided, to identify other positions for which the staff member might be redeployed, after each of those decisions had been taken then clause 6.2.14 came into play.

PN87

It provides, as the Full Bench will see, that if at the end of the six months notice period the university had been unable to find any position into which the staff member might be redeployed then as a last resort the staff member’s employment would be terminated and a retrenchment payment made. Other provisions of the certified agreement that are relevant include those set out in clause 4.18.

PN88

JUSTICE GIUDICE: Mr Neil, just before you leave 6. The six month notice in 6.2.8 and the provision in 6.2.14 for termination of employment, how do those two things relate to each other?

PN89

MR NEIL: In our submission they do so in this way. The notice that is given pursuant to, or is required to be given pursuant to 6.2.7 must be understood to be subject to at least two other provisions of the certified agreement. One is the staff members - I withdraw that. One is the right of the staff member in question to request a review of that decision by a redundancy review committee, clauses 6.2.8 and 6.2.20 to 6.2.25. And the second is the obligation of the university to take all reasonable steps to identify positions into which the staff member in question might be redeployed, clauses 6.2.10 to 6.2.12.

PN90

Our submission is that the notice must be understood to be subject to at least those two matters arises from first a consideration of clause 6.2 as a whole, giving to each provision in clause 6.2 its full meaning and effect. And second if this be necessary it derives from the use of the words “as a last resort” in clause 6.2.14.

PN91

JUSTICE GIUDICE: But if that were the case surely there’d be a further period of notice required. Well, and I say surely. It seems 6.2.14, at least on one reading, has some internal contradictions.

PN92

MR NEIL: It does. It does.

PN93

JUSTICE GIUDICE: It says:

PN94

If at the end of the six month notice period there’s been no redeployment.

PN95

MR NEIL: We would approach the problem and suggest that, with respect that the Commission might do so, we would approach the problem in this way. The notice that is given pursuant to clause 6.2.7 can not be absolute. If it were then the provisions that follow, particularly insofar as they deal with the work of the redundancy review committee and the obligation of the university to take all reasonable steps to find out a position into which the staff member in question might be redeployed, neither of those provisions would have any meaning or effect.

PN96

JUSTICE GIUDICE: Well, one answer to that proposition might be that neither the review process nor the redeployment process seem to take the matter out of the hands of the head, if that’s the right expression. See, even if the review process finds that there was something wrong ..... well, I may be wrong about that. How do you say the 6.2.25, and I’m not taking it too much out of the pattern of your argument, how does that operate in connection with the notice period? Could the deputy vice chancellor simply under 6.2.25(b) simply override the original notice, giving them notice?

PN97

MR NEIL: Well, in our submission if the deputy vice chancellor did any of the things for which 6.2.25 provides then he or she would not be overriding the notice, but would be making a decision for which the notice had originally provided. The notice that section 6.2.7 requires is conditional, in our submission. It’s a notice, or perhaps we might put it more accurately in this way, it is a notice of a conditional intention rather than one which is absolute. It’s a condition, it’s an intention which is conditioned upon other provisions of the certified agreement and they include the work of the redundancy review committee and anything that might follow from that on the one hand, and on the other hand the obligation on the part of the university to take all reasonable steps to identify the position into which the staff member in question might be redeployed.

PN98

JUSTICE GIUDICE: Yes.

PN99

MR NEIL: So that taking up the circumstances that your Honour the President has raised with us, if the deputy vice chancellor were to do any of the things for which clause 6.2.25 provides, then he or she would be doing something for which the notice had originally allowed.

PN100

JUSTICE GIUDICE: Yes, I follow the argument.

PN101

MR NEIL: And that flows, in our submission, notwithstanding that the deputy vice chancellor is not required to do any of the things for which clause 6.2.25 provides or allows. If it were to be otherwise then in our submission both those matters to which we’ve drawn attention would be, or the provision that is made for both of those matters, that is the work of the redundancy review committee and any consideration that might be given of it and the search for positions into which the staff member might be redeployed, both sets of provisions would be empty, without work to do.

PN102

JUSTICE GIUDICE: Yes. But if neither of those conditions operates does the employment conclude at the end of six months without anything else happening?

PN103

MR NEIL: Under the scheme laid out in the certified agreement then the answer would be yes.

PN104

JUSTICE GIUDICE: Yes.

PN105

MR NEIL: If each of those things were done and produced a result which did not alter the conditions.

PN106

JUSTICE GIUDICE: Yes.

PN107

MR NEIL: And perhaps if we could be a little more explicit. If it were as a matter of fact that a review were undertaken by a redundancy review committee and, whatever the result of that committee, no decision of the kind for which clause 6.2.25 allows had in fact been taken. Or if the university had complied with its obligations under clause 6.2.10, that is it had taken all reasonable steps to identify a position into which the staff member in question had been redeployed and it had taken those steps throughout the notice period and no such position had been found or identified. That in those circumstances the notice would operate according to its terms and the employment would come to an end. That’s the scheme for which the certified agreement provides.

PN108

JUSTICE GIUDICE: So the two conditions are really directed at the decision to terminate employment.

PN109

MR NEIL: They are decisions, they are the involved decision which involve conditions which, depending upon their result, allows a decision to ..... might allow a decision to retrench an employee to take effect. But they are, if we can step forward into a later point in our argument, they are notwithstanding that separate and discrete decisions.

PN110

JUSTICE GIUDICE: I understand there’s an argument about how you characterise.

PN111

MR NEIL: Of course. And our argument is that they have that character and that having that character they are decisions which are not caught by clause 4.18.14 such that notwithstanding that provision they are properly the subject of a dispute under clause 4.18 which in due course could properly be arbitrated by the Commission.

PN112

COMMISSIONER LARKIN: Because you say they’re not decisions to actually terminate employment.

PN113

MR NEIL: That’s so.

PN114

COMMISSIONER LARKIN: They’re decisions to remove a position.

PN115

MR NEIL: Yes, that is one of the decisions involved. But perhaps maybe take a clearer illustration. Suppose we - I withdraw that and start again if I may. We’ve drawn attention to two conditions which under the provisions of clause 6.2 are appended to any notice of an intention to retrench an employee that the university might give under 6.2.7 and that’s the work of a redundancy review committee and an obligation on the part of the university to identify positions into which the staff member might be redeployed. Suppose that a staff member raised a dispute - suppose that a staff member requested that the decision be reviewed by a redundancy review committee and the university declined that request, refused that request.

PN116

Its decision to refuse the request in our submission is a separate and distinct decision from any decision to retrench the staff member and it’s a decision which, again our submission, could properly be the subject of a dispute dealt with under clause 4.18. There could be a dispute lawfully dealt with under clause 4.18 about the university’s decision to refuse to convene a redundancy review committee. Or suppose again that a staff member who’d received a notice understand clause 6.2.7 was aggrieved by the steps that the university had taken to identify alternative positions into which the staff member might be redeployed. Suppose for the purpose of illustration that the staff member thought that the university had taken no such steps or that the steps that it had taken were not all those which were reasonable.

PN117

Then in our submission that too would involve separate and distinct decisions, separate decisions distinct from any decision to retrench the employee, which could properly be the subject of a dispute submitted ultimately to the Commission under clause 4.18. So those are two illustrations of what, in our submission, are decisions that have that character. And they have that character notwithstanding that they are ultimately steps along the way to what might become a decision to retrench a staff member. But they’re not the only such decisions which have that character. For example, it is also our submission that a decision to select a position for redundancy is a separate and distinct decision.

PN118

That is separate from and distinct from any decision to retrench an employee who has such a position, who has a position that has been so selected.

PN119

JUSTICE GIUDICE: Philosophically isn’t there a danger of an infinite multiplicity of decisions here? I mean, at some stage you have to say what’s this dispute about? What’s the issue?

PN120

MR NEIL: Yes.

PN121

JUSTICE GIUDICE: Otherwise, I suppose on a philosophical basis, you could distinguish a whole hierarchy of decisions that go to make up other decisions and so on.

PN122

MR NEIL: Before answering that question might we, with respect, submit that in looking at that question it would be a mistake to look beyond the area of redundancy and retrenchment. Within the area of redundancy and retrenchment then this certified agreement makes express provision for a number of decisions anterior to and, in our submission, separate and distinct from any ultimate decision to retrench an employee. That being so the danger that your Honour the President has raised can be avoided by giving close attention to the terms of the certified agreement and identifying any dispute by reference to the terms of that agreement.

PN123

I may have answered that question in a way that is too oblique. But what we mean to say is this. Here you have a certified agreement which lays out in the provisions to which we’ve drawn attention a number of decisions, decisions each of which is expressly identified and each of which has a stipulated, needs to be taken in a stipulated sequence, in a sequence which is laid out by the certified agreement and a sequence which might end at any point along that progress. It’s a sequence which begins at clause 4.14. It’s a decision, it’s a sequence that begins with a decision on the part of the university to consider the implementation of workplace change of a particular character, clause 4.14.2.

PN124

And then there follows in 4.14, and in due course if one comes to it clause 6.2, a number of other decisions each of which is to be taken in turn, but each of which must be taken in order to proceed to the next step, or for the university to proceed to the next step. And any one of those decisions so identified is, in our submission, capable of falling within clause 4.18 because each of them is a decision which might be or give rise to a dispute of the character identified in clause 4.18.2, page 1451 of the appeal book, because each of them is a decision which is capable of constituting or giving rise to a dispute relating to the certified agreement or to matters relating to a written policy of the university and none of which are caught by clause 4.18.14 other than the final decision, the decision which by clause 6.2.14 is to be a decision taken as a last resort.

PN125

JUSTICE GIUDICE: Yes. Is that a convenient time to adjourn?

PN126

MR NEIL: It is.

PN127

JUSTICE GIUDICE: Perhaps you might give some consideration, Mr Neil and Mr Moses, to the provisions of the Act concerning prohibited content, in particular sections 356 and 358 and regulation 8.55. They may be relevant, that’s all I'll say. Depending, of course, on this characterisation argument. I wouldn’t like to anticipate the significance of them, but I would like to hear submissions from both parties about whether they have any role in this argument.

PN128

MR NEIL: If your Honour pleases.

PN129

JUSTICE GIUDICE: We will adjourn until 2 o'clock.

<LUNCHEON ADJOURNMENT [12.55PM]
<RESUMED [2.00PM]

PN130

MR NEIL: May we very shortly deal with a number of matters that we reserved before the adjournment. First the question of the application, if any, of section 712. In our submission this is an appeal properly brought under section 120 of the Act. In particular, or to be more particular, our submission is that it is an appeal ruled under section 120 and authorised by subsection or paragraph 121(f) in that it is an appeal against a decision of a member of the Commission - I’m sorry - an appeal against a refusal or a failure of a member of the Commission to exercise jurisdiction in a manner arising under the Act. So far as the proceedings before the Commission are concerned an application under section 709 then in our submission that application is a matter that arose under the Act and the decision of the Commissioner that he did not have jurisdiction, or the Commission did not have jurisdiction, satisfied the requirements of paragraph 120(1)(f).

PN131

Our further submission, the submission we next make upon that premise, is that section 712 has no application to these proceedings. In the Sydney Ferries case a full bench of the Commission held that an appeal which had been brought under section 120 was not a dispute resolution process under division 5 of the Act with the result that section 712 had no application. To a similar effect is another decision of a full bench of the Commission in the matter of the Community and Public Sector Union v University of New South Wales, the media neutral citation of which is [2007] AIRC CFB 892. It’s a decision given on 9 November 2007.

PN132

In each of those decisions the Full Bench left open the question of the applicability of section 712 to an appeal of that character. In our submission - - -

PN133

JUSTICE GIUDICE: There are two elements of 712, aren’t there? The first is whether 712(1) applies so that the proceedings must be conducted in private.

PN134

MR NEIL: Yes.

PN135

JUSTICE GIUDICE: I think we decided that a section 120 appeal is not within 712(1).

PN136

MR NEIL: Yes.

PN137

JUSTICE GIUDICE: The next issue though is 712(3), which I don’t think has been decided before.

PN138

MR NEIL: As to section 712(3) we make this submission, all upon the premise that this is an appeal brought, and properly so brought, under section 120. First by inviting the Full Bench to have regard to the record of the proceedings of the arbitration conducted under section 709 neither the appellant nor the respondent is asking the Full Bench to admit any evidence. Section 712(3) applies only when evidence is tendered and precludes the admission of that evidence. There’s a material distinction between the record of proceedings examined by an appellant tribunal for the purpose of exercising its powers on appeal and the admission of evidence.

PN139

Second, if we are wrong about that and the submission is not accepted, that submission is not accepted, then in our submission paragraph 712(3)(d) has already been satisfied. There is an anterior agreement between the parties. That agreement is relevantly embodied in clause 4.18.13 of the certified agreement. That provision is reproduced at page 1453 of the appeal book. By it the parties have agreed that where there is a dispute as here then either party to the dispute may appeal any decision made by the Commission under clause 4.18 to the extent permitted by the Workplace Relations Act. And also that if either party to the dispute elects to make such an appeal then the provisions of the Workplace Relations Act regarding appeals will apply.

PN140

In our submission an appeal under section 120 is an appeal which has always been understood to carry with it the right of either party to the proceedings at first instance to invite the Full Bench to examine the record of the proceedings.

PN141

JUSTICE GIUDICE: There’s a requirement to do so, I think, under the rules.

PN142

MR NEIL: There’s certainly a requirement under the rules that the record of the proceedings be lodged with the Commission and that, in our submission, is a reflection of the right to which we have referred. If it were otherwise then the right of appeal conferred by section 120 would be entirely nugatory. Or absent the exercise by the Full Bench of a power to admit further evidence or fresh evidence then there would be no material upon which a Full Bench could base its decision or the exercise of any of the powers conferred on by section 120. And our third submission is, one made very much in alternative, if none of the submissions that we have so far made on this point are accepted then the appellant indicates her agreement within what would in those circumstances be understood to be the meaning of section 712(3), or paragraph 712(3)(d).

PN143

Those are the submissions we make in relation to that. Next, your Honour the President raised the question of the application of regulation 8.55 and the provisions of the Act that bear upon it. The answer that we give to that question is the same as the answer that we gave to the question raised early by Harrison
SDP, that is that in the application that the appellant made under section 709 she did not allege that the termination of her employment was for a reason that was harsh, unjust or unreasonable and did not ask for a right or remedy in relation to the termination of her employment on that ground.

PN144

The dispute that was the subject of the proceedings under section 709 was not a dispute about the termination of her employment, but a dispute about decisions taken before the decision to terminate her employment and that on the appellant’s case were separate and distinct from any decision to terminate her employment, let alone upon a ground of the kind identified in regulation 8.55. So that in the circumstances of this case at least and, with respect, our submission is that it is not necessary to cover beyond that, that problem does not arise. Now, may we return to the submissions that we’d wish to make in relation to the first part of the proceedings below, the application under section 709.

PN145

We remind the Commission of the provisions of the enterprise agreement that applied to that application. Conciliation under clause 4.18.8, having failed to resolve the matters in dispute between Professor Weston and the university, Professor Weston elected under the same provision to have those matters arbitrated by the Commission. Although in the course of that arbitration the university nodded at a contest on the merits. The only real dispute, the only real issue was as to the Commission’s jurisdiction and powers under section 709 and clause 4.18. As to that there were two questions raised by the objections of the university. The first was whether the dispute that had been submitted to the Commission was one that was excluded from the operation of clause 4.18 of the enterprise agreement by clause 4.18.14.

PN146

The second question was whether the conditions for an arbitration of the kind contemplated by clause 4.18 had been met. The Commissioner answered the second of those questions in favour of Professor Weston. His decision in that regard can be found in volume 1 of the appeal book at page 18 in paragraphs 33 and 34. There is no cross appeal against that aspect of the Commissioner’s decision and no notice of contention or anything of that kind. Therefore in our submission the Full Bench is concerned here only with the first question. We propose, subject to anything that the Commission may have of us, to address that question and then turn to the application under section 643.

PN147

As to the application under section 643, again the only real issue at first instance was as to jurisdiction. In that case the issue properly characterised was whether the university had satisfied the Commission that Professor Weston’s employment was terminated for a genuine operational reason or for reasons that included a genuine operational reason in either case within the meaning of subsection 643(8). Having addressed that question we propose, again subject to anything the Commission may have of us, to turn to the orders that in our submission should be made on appeal.

PN148

We do not propose, unless the Commission wishes us to do so, to say anything this afternoon as to the question of leave. We’ve addressed that in our notice of appeal and the written submissions that we have filed. Turning then to the application under section 709. For the reasons that we’ve submitted the only jurisdiction question that is at issue in this appeal is the first of the jurisdictional questions submitted to and decided by the Commissioner to that part of the proceeding. That is whether the dispute referred to the Commission for arbitration, that had been referred to the Commission for arbitration was one that was excluded from the operation of clause 4.18 by clause 4.18.14.

PN149

The proper starting point, in our submission, is to identify the matters in dispute because it was those matters that were referred to arbitration under clause 4.18.8. In that regard we would respectfully refer the Full Bench to the amended application taken out on 1 June 2007. It is reproduced in the appeal book in volume 1 at page 28. The matters in dispute are identified on pages 28 and 29.

PN150

SENIOR DEPUTY PRESIDENT HARRISON: May I just ask I’m assuming it not being in the appeal book there’s no reason why we should look at the earlier section 709 application? I assume it was in writing.

PN151

MR NEIL: It was. For her part the appellant sees no reason for the Full Bench to do so. And we’re not aware that the respondent wishes the Full Bench to look at it for any purpose.

PN152

SENIOR DEPUTY PRESIDENT HARRISON: Thanks.

PN153

MR NEIL: There was something of an issue as to the terms of the original application in the proceedings before the Commissioner. In the end it didn’t receive any attention from the Commissioner and he appears to have proceeded on the footing that that issue had been resolved in favour of the appellant. The question was simply this. The university submitted that the dispute and the only dispute that could be arbitrated was limited to the dispute that had been conciliated. The appellant agreed with that submission below, and if it is made today does so again, but Professor Weston does not agree that in this case the dispute that was conciliated was limited to the matters set out in the original application.

PN154

JUSTICE GIUDICE: Mr Neil, in paragraph 3 of the Commissioner’s decision some words are set out. I take it they’re the relevant terms of the original notification?

PN155

MR NEIL: They certainly reproduce some of the terms of the original application.

PN156

JUSTICE GIUDICE: Yes, thank you.

PN157

MR NEIL: What happened was, and as the record will show this, that at the conclusion of the conciliation conference directions were made for the amendment of the original application.

PN158

JUSTICE GIUDICE: I see.

PN159

MR NEIL: And that was done expressly to ensure that the dispute that was described in the application that went forward for arbitration conform with the dispute that had been conciliated, including that which had been discussed during the course of the conciliation conference.

PN160

JUSTICE GIUDICE: I see.

PN161

COMMISSIONER LARKIN: Mr Neil, just while you’re on that. Paragraph 28 of the Commissioner’s decision, I presume the date 8 May where the applicant raised a desire to resolve the dispute, I presume that was some internal process in the university and not the application before under 79 - - -

PN162

MR NEIL: Yes. Yes it was.

PN163

COMMISSIONER LARKIN: I thought it was.

PN164

MR NEIL: And in due course, Commissioner, we would propose to draw your attention to the correspondence that bore upon that.

PN165

COMMISSIONER LARKIN: Yes, thank you.

PN166

MR NEIL: Now, turning to the main question which turns on the operation of clause 4.18.14. We begin with the observation that below as here the respondent’s contention was that once it had made a decision that an employee might be retrenched, once it had reached the point or the state of mind described in clause 6.2.7 then clause 4.18.14 operated to make any matter that related to that decision immune from review or dispute and that’s so whether the matter was the subject of a decision made before or after the university had reached the state of mind described in clause 6.2.7 and whether or not in coming to any of those decisions it had acted in accordance with the certified agreement. The Commissioner accepted the respondent’s contention. In our submission he was wrong to do so.

PN167

One of the contentions that was advanced to the Commission on the part of the appellant turned on the language of clause 4.18.14. That’s reproduced on page 1453 of the appeal book or in the Commissioner’s decision.

PN168

JUSTICE GIUDICE: What page is that on?

PN169

MR NEIL: At page 7.

PN170

JUSTICE GIUDICE: Does that mean that the jurisdiction under section 643 is excluded?

PN171

MR NEIL: No. No, at least not as a universal rule. It depends upon the terms of the decision and the application.

PN172

JUSTICE GIUDICE: It seems that parties have agreed there shouldn’t be any review.

PN173

MR NEIL: Well, that would depend upon the characterisation of the construction of the word “review” and whether a proceeding under or an application under section 643 was properly so characterised.

PN174

JUSTICE GIUDICE: You say it’s really confined to the operation of the dispute settling procedure?

PN175

MR NEIL: Yes.

PN176

JUSTICE GIUDICE: Yes. Well, that’s probably the more likely construction, I suppose.

PN177

MR NEIL: It is certainly the construction for which we would contend.

PN178

JUSTICE GIUDICE: Yes. Anyway, you want to focus on the words “in accordance with this agreement”.

PN179

MR NEIL: We do.

PN180

JUSTICE GIUDICE: Yes.

PN181

MR NEIL: At least at this point in our submissions.

PN182

JUSTICE GIUDICE: Yes.

PN183

MR NEIL: In our submission those words have real work to do. They limit the application of clause 4.18.14 to decisions that are taken in accordance with the agreement. That is decisions that are in agreement or in harmony with the certified agreement or in conformity to it. That’s the ordinary and natural meaning of the expression “in accordance with” and that, in our submission, is the meaning that that expression has in the context used in clause 4.18.14 and in the context of the agreement as a whole. Our submission here is, as it was before the Commissioner, was that the university in making any of the decisions which were the subject of the dispute including, if it came to it, the decision to retrench the appellant were not taken in accordance with the certified agreement.

PN184

That is that the university did not relevantly act in accordance with the agreement in making any of the decisions which were the subject matter of the dispute however characterised, even if they be characterised as decisions relating to or decisions to terminate the appellant’s employment. And it did not do so in seven respects. I'll come back to those in a moment if we may. But can we draw attention to the point in the Commissioner’s reasons where he dealt with this argument. It’s to be found in volume 1 of the appeal book, page 18, paragraph 31. The Commissioner appears to have taken the view that the submission made to him on the part of the appellant was one which required words to be read into clause 4.18.14, but required ..... I withdraw that.

PN185

But no such submission was made, just as it is not made here. The submission that is made is that the words that are already in clause 4.18.14 should be given effect according to their ordinary and natural meaning. The Commissioner was not asked to construe clause 4.18.14 as though it included the words taken properly. Although those words appear in inverted commas, our recollection and our examination of the record of the proceedings before the Commissioner indicates that those words were never used in the course of any submissions that were made on the part of the appellant.

PN186

Nor was the Commissioner asked to burden the prohibition agreed by the parties and expressed in clause 4.18.14. He was merely asked to give effect to it in accordance with its terms. May we shortly identify the seven respects in which it was and is submitted that the decisions taken by the university - - -

PN187

SENIOR DEPUTY PRESIDENT HARRISON: May I just ask this, and again it’s really understanding what 4.18.14 means. And assuming you’re right, why would the whole of 4.18 have the commenced words “subject to clause 4.18.14”? There was no need to put that subjection there at all.

PN188

MR NEIL: There is. It doesn’t do any more work than clause 4.18.14 itself.

PN189

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN190

MR NEIL: It may serve as a reminder to the reader to look at clause 4.18.14.

PN191

SENIOR DEPUTY PRESIDENT HARRISON: But on your construction everything within 4.18.2 and 4.18.13 has nothing to do with the determination to terminate employment. Or the things that occur in decisions of some other category.

PN192

MR NEIL: We would put our submission on a slightly narrower basis. It is that none of the matters, none of the disputes which are identified in the amended application on pages 28 and 29 are matters or constitute decisions to terminate employment. But before we get even to that point, and even if we’re wrong about that, it is a quite separate and, in our submission, decisive point. And that is that even if they were decisions to terminate employment, they were not decisions in accordance with the agreement. And if they were not decisions in accordance with the agreement then they do not fall within clause 4.18.14. And that’s the point we’re addressing there, if it please the Full Bench.

PN193

The seven respects in which it was said by the appellant that any decision that was taken was vitiated by departures from the certified agreement are perhaps best identified in the, or most conveniently collected, in the written submissions that the appellant made to the Commissioner. Those written submissions appear in volume 1 of the appeal book at page 483 and following and the relevant passages begin at page 514. Volume 2, I’m sorry. Page 514 is the relevant passage. May we invite attention to that part of the submissions, but summarise their effect as follows. The appellant submitted that the evidence demonstrated that there had been departures from or that the university had departed from its obligations under the certified agreement. The evidence was that - - -

PN194

SENIOR DEPUTY PRESIDENT HARRISON: Are you using those words for any reason at all to avoid using the term the termination was in breach of the EBA?

PN195

MR NEIL: Yes. Because it’s a different question and answer.

PN196

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN197

MR NEIL: On 22 August 2006 the university announced a decision to restructure the Graduate School of Management. No information was given to any of the university’s employees about whether any positions would be made redundant as part of that restructure. That decision was not announced until 19 September 2006. On that day the staff who were affected by that decision were told that the university had, under consideration, the possibility that three academic positions would be made redundant within the Graduate School of Management and explained that salary savings in the amount of $366,000 would be generated by that change. That information was confirmed to the affected staff on 10 October 2006.

PN198

On 24 October 2006 the respondent announced that the proposal that it had under consideration was that the number of academic positions that could be made redundant would be increased from three to four. At first instance the appellant conceded that the respondent had consulted with staff as to each of those decisions. And the Full Bench will recall the obligations in clause 4.14 to consult in circumstances where workplace change that was under consideration involved the reduction of staff numbers or the possibility of redundancies. However, the evidence was, as the appellant submitted, that the respondent did not consult with its employees about a later decision.

PN199

That was a decision that, according to the evidence, had been made by Professor Green, relevantly the decision maker, in early November 2006 to increase from four to five the number of academic positions to be made redundant. The Full Bench will see at page 516 of the appeal book, paragraph 44, the submission that the decision by Professor Green to increase from four to five the number of academic positions to be made redundancy was a decision which triggered the application of those provisions in clause 4.14.2 which required the university to consult with employees about that decision.

PN200

The submission was that it had not done so. Moreover, the submission of this will be seen in paragraph 46 on the same page, the submission was that no information had been provided by the university to any staff affected by that decision. And in paragraph 47 the submission was made that no opportunity was given to any of the staff who might be affected by that decision to provide a response to the decision. And it follows, of course, that no consideration was given by the university to any response that might be made. There’s a particular significance to this decision for as the appellant submitted the sequence of events was such that she, by the time she was retrenched, four other employees within the Graduate School of Management had either been retrenched or had - I withdraw that - had offered and been accepted for voluntary redundancy.

PN201

So that the failure to consult, the failure to provide information, the failure to provide an opportunity to respond all in accordance with clause 4.14 was a failure which touched directly upon the decision to make the appellant’s position redundant and ultimately if it came to retrench her. The sequence of events in that regard is set out in some detail in the same written submissions at paragraph 104 at page 531 and following. And the substance of those submissions is reproduced by the Commissioner at paragraph 35.5 of his decision at page 19 of the appeal book. So they were three respects in which any decision relevantly made by the university touching upon the redundancy of the appellant’s position or ultimately her retrenchment were not decisions in accordance with the agreement and therefore, in our respectful submission, not decisions caught by clause 4.18.14, however it might operate.

PN202

JUSTICE GIUDICE: What’s the link between those alleged breaches and your client’s position?

PN203

MR NEIL: The link was that she was the fifth, the fifth redundancy.

PN204

COMMISSIONER LARKIN: Not on the 30th - sorry, Mr Neil - not on
30 November. There’s been an indication from, I think, Dr Clark - I might mix up the names - there’s been an indication, a possibility that that wasn’t definite on
30 November, was it?

PN205

MR NEIL: That’s so. On 10 November 2006 - I withdraw that. Perhaps I should go forward. By 24 October 2006 two academics within the Graduate School of Management had applied for an been accepted for voluntary redundancy. Professors Selen, S-e-l-e-n, and Buttle, B-u-t-t-l-e, at some point between the 24th and 27 October 2006 another application, this time on the part of Dr Du Four, D-u F-o-u-r, was considered an accepted. Then on 2 November 2006 the evidence was that Professor Green still had an intention to only make four academic positions redundant from within the Graduate School of Management and his evidence was that if another person had come forward and volunteered for redundancy he would have had his fourth position for redundancy.

PN206

COMMISSIONER LARKIN: It also depends on what type of positions the university sought to maintain or keep or restructure. I think that was a part of the material before the Commissioner as well.

PN207

MR NEIL: No. The evidence really is very unsatisfactory so far as the university from the university’s point of view. There really was no evidence until the proceedings of any decision by anybody to increase the number of redundancies from five. Ultimately between the date when the appellant was retrenched she was the tenth person, tenth academic who had left the Graduate School of Management since the date when the university had first announced its intention to make redundant three positions. She was the tenth to leave. There was some evidence of the initial decision in relation to three, then another decision in relation to four, and then beyond that there really was no evidence until Professor Green was cross examined in the course of the proceedings and for the first time he asserted that he had made a decision some time in about early November 2006 he said that he would accept further applications for voluntary redundancies thereby increasing above four the number of positions to be made redundant from the Graduate School of Management.

PN208

But he never gave evidence. He explained that that was because in his appreciation the Graduate School of Management was in a fast moving financial situation which he asserted was a situation of financial melt down. But he never gave evidence of a decision to increase the number of positions that would be lost from the Graduate School of Management above four by any means other than accepting voluntary redundancies and moreover it was submitted by the appellant that the evidence as to the financial position of the Graduate School of Management did not support Professor Green’s assertion as to its state.

PN209

COMMISSIONER LARKIN: I think we’ve moved further than what my point was, but I’ve taken you down another alleyway that you possibly weren’t going down. No, what I was raising was that as of 30 November there had not been four definite acceptance of voluntary redundancy or resignation or secondment or anything.

PN210

MR NEIL: No. On 10 November - - -

PN211

COMMISSIONER LARKIN: And 30 November when the applicant received advice that her position was longer existed and that she would be retrenched, effective date 31 May, pending of course are the circumstances, redeployment or whatever may change that. That was the advice of 30 November. And at that point the university had not achieved the four redundant positions that it sought.

PN212

MR NEIL: They had lost four.

PN213

COMMISSIONER LARKIN: Of the five, yes. Whatever it was.

PN214

MR NEIL: Yes. What had happened, two matters qualify that to some degree. On 10 November 2006 another member of the academic staff, Professor Steen, expressed an interest in taking a voluntary redundancy, which expression of interest he formally confirmed on 24 November. So that he made an application for voluntary redundancy on 24 November 2006.

PN215

COMMISSIONER LARKIN: But that had not been actually actioned.

PN216

MR NEIL: It had not been accepted by the university.

PN217

COMMISSIONER LARKIN: No.

PN218

MR NEIL: On the 30th.

PN219

COMMISSIONER LARKIN: Yes. I think that’s distinguishable in a sense. I mean, it’s gone and been accepted and actioned and what have you. There may be an indication, but there’s no guarantee that it would be accepted. See, my problem is 30 November that numbers had not been reached.

PN220

MR NEIL: It was accepted on 4 December that Professor Steen’s application was accepted on 4 December.

PN221

COMMISSIONER LARKIN: I’m just talking about 30 November.

PN222

MR NEIL: Yes. And by 30 November four positions had been lost from the Graduate School of Management because in addition to the three applications for voluntary redundancy that had been received and accepted by that date, a fourth member of the academic staff, Associate Professor White, had informed Professor Green that she had accepted an offer of a professorial position at the University of Sydney. So that four academic positions had by 30 November been lost from the Graduate School of Management.

PN223

JUSTICE GIUDICE: This is also in your submissions?

PN224

MR NEIL: Yes it is. The fourth respect taking up the argument in the point we’d earlier reached, the fourth respect in which it is submitted that the respondent had relevantly not acted in accordance with the agreement was that - - -

PN225

SENIOR DEPUTY PRESIDENT HARRISON: Just so that I’m not losing this, are you still on 709? I can understand why all of this might be said to go to whether there was a genuine operational reason, all of these, but I’m wondering on 709 is it not the case that accepting everything you say is right that a number of these steps were not attended to in accordance with the terms of the agreement? Does it really matter? Does it still not come back to what does 4.18.14 mean?

PN226

MR NEIL: Yes. But when you come back to 4.18.14 then you must give effect to the words “in accordance with this agreement”. If a decision, any decision, as to the redundancy of the appellant’s position and ultimately her retrenchment was taken in a way that was not in accordance with the agreement, then in our submission it does not fall within clause 4.18.14. Because clause 4.18.14 does not refer to any decision to terminate employment. It only refers to decisions in accordance with the agreement.

PN227

SENIOR DEPUTY PRESIDENT HARRISON: So on your construction you have to have all, make findings on all of these allegations that these decisions have not been made in accordance with the terms of the agreement - each and every one, I can imagine, is a mini series of what’s led us to here - before you can sort out whether 4.18.14 is triggered.

PN228

MR NEIL: Yes.

PN229

SENIOR DEPUTY PRESIDENT HARRISON: It might be right. It’s just alarming, but I understand.

PN230

MR NEIL: Yes. The policy behind it, alarming as perhaps it may be in a particular circumstance, the policy behind it in our submission is perfectly clear. If a decision and a serious decision is to be made immune from review or dispute under the dispute settling procedure then the condition laid down for that is that the decision be taken in accordance with the agreement. That is that the employee affected by that decision have the benefit of the protective provisions laid out elsewhere in the agreement.

PN231

SENIOR DEPUTY PRESIDENT HARRISON: Unless “decisions in accordance” just means the types of decisions that might be made under this agreement, rather than the types of decisions made under this agreement which have been made properly having applied the agreement. Two different things.

PN232

MR NEIL: Yes. The former would not, in our submission, accord with the ordinary and natural meaning of the words in accordance with the agreement.

PN233

COMMISSIONER LARKIN: So therefore any advice of suspension with or without pay because of misconduct, any type of termination of the university would always be caught by 4.18.14 because there’s always an investigation - I presume in universities there’d be always an investigation. The clause would have just no work to do because every single termination or advice pending termination would be caught by the agreement. 4.18.14 would have no work to do on your submission.

PN234

MR NEIL: That’s not the submission we’re making. The university would place with equanimity at this point. The university would place with equanimity the submission we are now making because all that we are submitting is that upon its proper construction 4.18.14 makes immune from review or dispute decisions to terminate employment that have been made in accordance with the agreement, but not otherwise. So if in making that decision the university did not accord with the agreement it would not be entitled to the protection of clause 4.18.14.

PN235

JUSTICE GIUDICE: I think the point the Commission’s making is that it would always be open for argument whether the process was “in accordance with the agreement”.

PN236

MR NEIL: Yes, it would always be open for argument of course, as many jurisdictional questions are. Many jurisdictional questions require investigation and ultimately decision as to whether the facts which either establish or limit jurisdiction have been established.

PN237

COMMISSIONER LARKIN: So therefore it would be subject to dispute.

PN238

MR NEIL: Yes, with the consequence that if a finding were made upon investigation that the decision had been taken in accordance with the agreement and it was a decision that otherwise fell within clause 4.18.14, then it would be found to be without jurisdiction. No orders could be made or no decision could then be made. And in that respect it would be no different from any other investigation into the jurisdictional fact.

PN239

COMMISSIONER LARKIN: Well, it says “shall not be subject to further review or dispute”.

PN240

MR NEIL: In our submission that must be taken to mean once the jurisdictional fact or limitation had been established.

PN241

COMMISSIONER LARKIN: So therefore it could be subject to dispute, notification, internal dispute notification and dispute to the Commission.

PN242

MR NEIL: Yes.

PN243

COMMISSIONER LARKIN: So any form of termination, be it for performance or misconduct or restructuring, would always be caught and could be subject to dispute. At the end of the day the dispute may be resolved that there was an error on the part of the university, or it might be resolved it wasn’t in error. But it would always be subject to dispute.

PN244

MR NEIL: Yes.

PN245

COMMISSIONER LARKIN: So why would the parties put 4.18.14 in then?

PN246

MR NEIL: To make immune from review decisions to terminate employment that had been taken in accordance with the agreement.

PN247

COMMISSIONER LARKIN: Think about that one, Mr Neil.

PN248

MR NEIL: Could we quickly just the other three circumstances in which it was submitted that the decision had not been taken in accordance with the agreement. There was no invitation made by the respondent for voluntary redundancies issued in connection with the decision to increase the number of redundancies from four to five. Paragraph 50 of the submissions at page 517. The appellant made a request for a redundancy review committee to be convened. The certified agreement required that that be done within 10 working days. The university failed to do so. Paragraph 52 on page 518. The respondent was obliged to take all reasonable steps during the six month notice period to identify positions into which the appellant, along with other, might be redeployed. This is at paragraph 59 of the submissions at page 519 and following.

PN249

In fact as the evidence set out on page 519 to 521 shows the only thing that the respondent did in that regard was to invite the appellant to attend a meeting in January 2007 and then to take some steps nine days before 31 May 2007 when the appellant was retrenched, that being on the evidence not time enough to make a proper search for the identification of alternative positions. That’s all dealt with at pages 519 to 520.

PN250

MR MOSES: Your Honours, could I be excused for a moment? Mr Nagle will remain in court.

PN251

JUSTICE GIUDICE: Yes.

PN252

MR NEIL: And there were a number of respects in which the respondent failed to comply with its written policies. That’s dealt with in paragraph 75 and following, page 523. And so that we can do this very quickly we refer in particular to the grievance, appeals and disputes procedure dealt with at paragraph 80 and following and the staff consultative group policy at paragraph 84 and following on pages 524 and 525 respectively. Those are seven respects in which it is said that the decision did not accord with the agreement and thus fell outside clause 4.18.14.

PN253

SENIOR DEPUTY PRESIDENT HARRISON: They are the respects in which you alleged that.

PN254

MR NEIL: Yes.

PN255

SENIOR DEPUTY PRESIDENT HARRISON: Because we haven’t had the many trials that I mentioned earlier.

PN256

MR NEIL: The difficulty is that although submissions to that effect were made to the Commissioner, the Commissioner does not deal with them in his decision and he doesn’t do so because of the construction of clause 4.18.14 that he adopted at paragraph 31 in his decision.

PN257

JUSTICE GIUDICE: But you do say, do you, that the decisions to which you have referred are decisions to terminate employment?

PN258

MR NEIL: This argument is advanced upon the footing that it doesn’t matter. It doesn’t matter how you characterise any of the decisions which were the subject of the dispute notification, if I can put it that way, the amended application. It doesn’t matter. If they were decisions to terminate employment, then they were not made in accordance with the agreement and thus fell outside clause 4.18.14. And that’s the end of it. The question raised for the Commissioner’s, or the first question raised for the Commissioner’s decision in that regard was the construction of clause 4.18.14 in that respect.

PN259

JUSTICE GIUDICE: It does matter because it might be that the termination itself ..... I shouldn’t say does, but it may matter. It may have greater significance than you accord to it. Because if the series of decisions which led to the termination can be somehow disaggregated so that some of them, as you’d earlier submitted, are not part of the employment decision, termination decision, then 4.18.14 might refer simply to the termination itself. So would you not have to exclude the termination decision itself and say that that was not in accordance with the agreement?

PN260

MR NEIL: The primary submission put to the Commissioner was that the decisions which were the subject of the amended application, identified in the amended application, the decisions which had been referred to the Commission for arbitration, were none of them decisions to terminate employment. They were all anterior decisions separate and distinct from the decision to retrench the appellant. And that’s a submission which we would wish to develop shortly. But the Commissioner held no, we were wrong about that and properly characterised all of the decisions which were identified in the amended application as the subject of the dispute, were properly described as decisions to terminate employment.

PN261

Our submission here was that the Commission was wrong in doing so. But let us suppose for the purpose of the argument that he was right and that all of those decisions were wrapped up in a way that could properly be described as that properly makes them decisions to terminate employment, contrary to the primary submission that we made. Well then, we say that does not matter in this case because even if they can so be described, even if contrary to our primary submission the Commissioner was right in characterising them as decisions to terminate employment, then because they were not decisions in accordance with the agreement, then for that reason they are not caught by clause 4.18.14.

PN262

We began with that argument because it was an argument that, if accepted, vaults over any question of the characterisation of the decisions which are identified in the amended application. The Commissioner was wrong in the construction that he gave to the words “in accordance with the agreement”. Because he was wrong about that his decision is attended by an error which would properly attract the appellant, the powers of the Full Bench. And that is a simple and short answer to all of the problems raised by this appeal. We get to the ..... if that submission is not accepted then one comes to the next point and that is the question of whether, quite apart from the meaning that one gives to the words “in accordance with the agreement”, whether the matters that are identified in the amended application are properly characterised, as the Commissioner did wrongly, we submit, as decisions to terminate employment or whether they are properly characterised as anterior decisions separate and distinct from the decision to terminate the appellant’s employment.

PN263

And it’s to that argument that we now turn and we’ll deal with it, we say, at a gallop. In our submission the decision of Lawler VP in the matter of CPSU v CSIRO 23 May 2003 PR931982 demonstrates the decision anterior to and leading to a decision to retrench an employee can be the subject of a dispute arbitrated under a provision such as clause 4.18. In that case, copies of which are in a volume which we might, if it’s convenient to do so, hand up now.

PN264

SENIOR DEPUTY PRESIDENT HARRISON: For myself can I give you back all of the part B cases. I’m not singling you out, it is the lament I express invariably when I am given cases that the applicant relies on but doesn’t intend to take me to. Having been caught out by a Full Bench being so snookered.

PN265

MR NEIL: If that is of no assistance, then I will happily take them back.

PN266

SENIOR DEPUTY PRESIDENT HARRISON: You can have all the part B cases back. Well, the President tells me they’re not in there so I should have looked at that first before you were the subject of my usual chant. We’ll save that for the next time.

PN267

MR NEIL: Well, void by it I shall continue, conscious of having done the right thing. Now, in that case one Dr Hall was told by the CSIRO that her position was potentially surplus to that organisation’s requirements and while that matter was under consideration Dr Hall submitted a grievance to the CSIRO to be dealt with under the grievance resolution provisions of a certified agreement to which she and the CSIRO were party. It can be seen at paragraph 7 of the Vice President’s decision that the certified agreement at clause 43(b), a provision to an effect which, in our submission, is materially similar to clause 4.18.14. It was submitted on behalf of Dr Hall that the CSIRO was not entitled to proceed to implement the redundancy of Dr Hall’s position and retrench her while there remained outstanding a grievance between her and the CSIRO.

PN268

At least so it was said where the grievance went to the factual matters which underpinned any determination that the affected individual is excess to requirements. That can be seen in paragraph 9 of the decision. So the Vice President was faced with a submission that the grievance that was said to interact with the implementation of the redundancy of Dr Hall’s position was a grievance which had a close and intimate connection with the decision to select her position for redundancy. And his Honour held that the dispute as to the interaction of the grievance and the redundancy, the selection of Dr Hall’s provision for redundancy, was a dispute that could properly be the subject of an arbitration under a provision such as clause 4.18.

PN269

Now, the subject matter that was fit was rather different than those which are the subject of the dispute here, but in our submission that different is not material. What’s important for present purposes is that the Vice President held that the Commission could review an aspect of a process that ultimately led to the termination of an employee’s employment, notwithstanding the provisions of a certified agreement to the same effect of clause 4.18.14 where that aspect of the process was held to be intimately related to the decision to select Dr Hall’s position for redundancy. And that’s precisely what Professor Weston said in this case. The Commissioner did not deal with the Vice President’s decision or its significance in Professor Weston’s case.

PN270

The point can be tested, in our submission, in this way. Suppose that Professor Weston had invoked the dispute settling procedure in clause 4.18 to complain about any of the matters that she ultimately complained about in the amended application and that she’d done so before her employment had been terminated. Clause 4.18.14 could not have operated to prevent her from doing so then, and it can not do so now. In fact Professor Weston did seek to invoke the dispute settling procedure well before the termination of her employment. And it’s instructive to see how the university responded.

PN271

It can be traced, the process can be traced by looking respectively at the following pages of the appeal book in volume 2 - 664, 683, 712, 715, 717, 719 and 721. She was told in answer to her attempt to invoke those procedures that the appropriate way in which to resolve her concerns was to request the complication of a redundancy review committee and that’s what she ultimately did. That is confirmed at pages 286 and 282 of the appeal book. We put Professor Weston’s case on this point in these propositions. First the certified agreement draws a careful distinction between decisions to terminate employment on the one hand and decisions as to the redundancy of a position on the other hand.

PN272

That distinction can be seen in clauses 4.14 and 6.2. Retrenchment, as it is used in clause 6.2, is a synonym for termination. In that respect may we remind the Full Bench without going to two authorities, the Queen v Industrial Court ex parte
General Motors Holden’s Limited volume 35 SASR 161, the relevant passage is at page 187 and Hawkins v Commonwealth Bank of Australia volume 70 IR 213, the relevant passage is at page 222. in our submission the distinction between decisions to terminate employment on the one hand address supplied decisions as to the redundancy of a position on the other hand informs the meaning of clause 4.18.14. By its terms it protects decisions to retrench, provided they’re taken in accordance with the agreement, but it says nothing about decisions as to the redundancy of a particular position.

PN273

Decisions as to redundancy, the redundancy of a position that fall outside clause 4.18.14 include those decisions about which Professor Weston has raised a dispute, all of which in our submission are anterior to and distinct from the decision to terminate her employment. The distinction between a decision to terminate employment on the one hand and decisions as to the redundancy of a position on the other was recognised in Smith v Moore paragon Australia Limited, which is a decision handed down on 21 March 2002, PR915674, paragraphs 83 and 84 in particular.

PN274

Now, that distinction, in our submission, stems from the recognition that what is redundancy under this certified agreement, as under many others, is not the employee but the position. That is demonstrated in this case by the language of the certified agreement to which we’ve already drawn attention. It follows a long line of authority. And in that regard may we remind the Commission, the Full Bench, again without taking up time by going to it, to the well known passage in the Termination, Change and Redundancy case, reported in volume 8 IR 34, the passage being at page 56 and to the decision of the High Court in Amcor Limited v CFMEU volume [2005] HCA 10; 222 CLR 241.

PN275

The Commissioner, in our submission, made three errors in dealing with this argument. First he characterised the letter of 30 November 2007 as being a decision to terminate the appellant’s employment. The terms of that letter are set out in the appeal book at page ..... I'll get the reference in just a moment .....

PN276

SENIOR DEPUTY PRESIDENT HARRISON: 64 of volume 2.

PN277

MR NEIL: 64, thank you. It was a notice given in accordance with clause 6.2.7 and in our respectful submission, for all the reasons that we developed earlier, it was not a notice on the part of the university of its decision to terminate Dr Weston’s employment, it was a notice given of her retrenchment subject to at least two conditions, the outcome of which were at that time not known and either of which might have led to the consequence that her employment would not be terminated, that she would not be retrenched. The second respect in which the Commissioner fell into error in dealing with this argument was in finding that decisions anterior to a decision to retrench an employee were within jurisdiction under clause 4.18, then clause 4.18.14 would have no work to do.

PN278

That, for the reasons that we’ve submitted, is an analysis which is productive of error if it is examined outside the area of redundancy and retrenchment. Within that area there are decisions identified in the certified agreement, all of them anterior to and separate and distinct from the ultimate decision taken as a last resort to retrench an employee. And those decisions are all, in our submission, outside clause 4.18.14. The rejoinder made by the respondent below and again here is even in the area of redundancy and retrenchment, what work then is left for clause 4.18 to do.

PN279

Suppose for the purpose of illustrating how that question might be answered, suppose that one had a case where there were no anterior decisions in question or none that could properly be raised. Suppose that a university lost its charter altogether so that it could no longer carry out any of its activities, no longer lawfully carry out any of its activities and that as a consequence of that decision it decided to retrench all of its academic staff, every one of them. Suppose another business lost the contract upon which its existence depended, another employer lost the contract upon which its business depended and as a consequence of that decided that it would cease business altogether and retrench all of its employees.

PN280

None of those decisions would fall within 4.18.14, even upon the widest construction. There is work for clause 4.18.14 to do. If it is confined, as we submit it ought to be, to the ultimate decision to retrench an employee, leaving the balance of clause 4.18 to operate in relation to any other of the decisions identified in the certified agreement and the subject of the dispute which was referred to arbitration here. The third respect in which the Commissioner fell into error, in our submission, in dealing with this aspect of the case was that the Commissioner looked at the relief that was sought, relief which included in effect the reversal of the anterior decisions and the re-employment of the appellant and argued backwards from that relief to characterise the dispute as being one that related to the termination of employment.

PN281

The argument was, as the respondent put it to the Commissioner and the Commissioner accepted, that if some of the orders if made would have the effect of reinstating Professor Weston in her employment for the university then it followed that the dispute was necessarily about the termination of her employment. In our submission that argument wrongly conflated the Commission’s jurisdiction to arbitrate a dispute on the one hand and its powers to make final decisions under clause 4.18.9(i) on the other hand. Clause 4.18.14 imposes a limitation on the Commission’s jurisdiction to arbitrate a dispute. It’s a bar to jurisdiction.

PN282

Once that bar is surmounted and jurisdiction is established, as we say it is in this case, then clause 4.18.14 has no more work to do. Importantly for present purposes, in ours submission, it doesn’t impose any limitation on the final decisions that can be made once jurisdiction is established. The only limitation that is then relevant is in clause 4.18.9(i). The Wollongong University case that we’ve included on our list of authorities demonstrates that that is so. Clause 4.18 requires only that the dispute relates to the certified agreement.

PN283

There is, in our submission, no expression that describes that connection more general or far reaching than that and it’s satisfied, it’s a connection that exists here in relation to each of the matters identified in the amended application. Once the Commission thereby has jurisdiction over the dispute it is at large as to the decisions it makes subject only to the wide and ..... terms of clause 4.18.9(i) which authorises final decisions in respect of the matter to which the proceeding relates, a test that requires only the most general and far reaching connection between the decision and a matter of a dispute.

PN284

Now, if it please the Commission those are the submissions that we’d wish to make in relation to the application under section 709, I’m afraid rather at a gallop or a canter, more latterly. May we turn very shortly to the application under section 643. In this part of the proceedings the main issue was again jurisdictional, that is whether the university had satisfied the Commission that Professor Weston’s employment was terminated for a reason or for reasons that included a genuine operational reason. The Commissioner fell into error by relying as he did on the Village Cinema’s case which, in our submission, had nothing to do with the argument that was put to him.

PN285

What was decided in the Village Cinema’s case, in our submission, was that where an employer satisfied the Commission that the reason that it asserted was a reason for the termination of employment and that that reason had the two qualities identified in subsection 643(a), namely that it was both genuine and operational, then it did not matter that the fact, circumstance which satisfied that test could have been responded, could have been met by the employer with more than one response. Put another way, that the termination of employment was not the only response for that fact, circumstance. That was not the case here.

PN286

What was put here, we’ve set out in our written submissions on appeal in detail the reasons why and in more detail in our submissions below at pages 529 of the appeal book and following, we’ve set out what was really at issue here. What was said was this. In short, if it be accepted that there was evidence upon which the Commission could be satisfied that the financial position of the Graduate School of Management was the reason why up to four academic positions were made redundant, that did not answer the real question here. The question here was whether there was a demonstrated connected between the financial position of the Graduate School of Management on the one hand and the decision to terminate the appellant’s employment on the other hand.

PN287

Having regard in particular to the circumstance to which we drew attention earlier, that the appellant was the tenth academic to leave the Graduate School of Management after the university had first identified its perception that there was a need for some positions to be lost. There’s an additional circumstance here which is that for all the reasons we’ve set out in our written submissions there was no evidence capable of satisfying the Commission that the financial position of the Graduate School of Management required the compulsory redundancy of any member of the academic staff once the four positions that had been initially decided upon had been lost from the Graduate School of Management. None at all. That aspect of the case received no attention in the response.

PN288

JUSTICE GIUDICE: But isn’t it essentially an issue about the credibility of Professor Green’s evidence?

PN289

MR NEIL: No. No, your Honour, it isn’t.

PN290

JUSTICE GIUDICE: Was he not the decision maker?

PN291

MR NEIL: Yes. Yes. There is a requirement if a reason is to be, if the Commission is to be satisfied that a reason is a genuine operational reason, there is a requirement that it be the real reason and that it be a reason that withstands scrutiny. But that scrutiny needn’t entail an examination as to the credibility of a person who says that was the reason upon which I acted. What’s required - - -

PN292

JUSTICE GIUDICE: But Mr Neil, on that analysis if the decision maker didn’t have any genuine operational reasons in his mind but they were objectively available, then the termination would be for genuine operational reasons even though they were in fact not the reasons of the decision maker.

PN293

MR NEIL: We would submit that that would not follow. That’s of course the reverse of the proposition that’s being put.

PN294

JUSTICE GIUDICE: Yes.

PN295

MR NEIL: But it does not follow from the proposition that is being put.

PN296

JUSTICE GIUDICE: Well, reasons don’t exist in some sort of vacuum. The question is the motivation of the person who made the decision, is it not?

PN297

MR NEIL: Yes, that’s the starting point. So there’s a subjective inquiry as
to - - -

PN298

JUSTICE GIUDICE: Perhaps I misunderstood.

PN299

MR NEIL: There’s an object of inquiry as to a subjective state of mind, that is what reason did he, in this case, have and then there’s an objective inquiry into the two questions of which that reason was both genuine and operational. So let us give an illustration. Suppose it were decided by an employer that its products could not properly be manufactured by anyone with blue eyes and as a result of that decision every employee with blue eyes was sacked. Even if the employer satisfied the Commission that the reason upon which it dismissed those employees was that they had blue eyes, that reason would not satisfy the two qualities required to attract subsection 643(8), namely that it be both genuine and operational.

PN300

It would not withstand the scrutiny that the authorities say, in our submission rights, that is required. Now, here what the respondent university would have had to do in order to attract that provision is to labour for the Commission evidence upon which the Commission could have been satisfied that the decision to terminate the appellant’s employment, coming as it did tenth in line, had a genuine and an operational connection with its perception of the financial position of the Graduate School of Management and that financial position as a matter of fact.

PN301

The savings that had been identified and for which the budget has been required and for which the Graduate School of Management budgeted was savings of $366,000. By the time Professor Weston was retrenched the university had saved $1.2 million.

PN302

JUSTICE GIUDICE: But the Commissioner accepted the evidence that there was a potential loss of $2.1 million.

PN303

MR NEIL: Yes.

PN304

JUSTICE GIUDICE: See, there’s no indication that the Commissioner didn’t take all of this into account, is there?

PN305

MR NEIL: There is in our submission.

PN306

JUSTICE GIUDICE: I see.

PN307

MR NEIL: He deals with none of these points. None of the matters to which we are now drawing your attention. The analysis really goes ..... he deals, for example, not at all with the point that at the very same time that the university was pointing to the financial, the need to save money by reducing salaries, the salary cost in the Graduate School of Management. It was adding to that salary cost by renewing the contract of a fixed term employee and indeed by making a substantial redundancy payment to the appellant. The Commissioner didn’t look at any of these matters because he took the view, wrongly in our submission, that what he had been invited to do was to examine alternatives to the decision to dismiss.

PN308

All that he was being asked to do was to consider whether he could properly satisfy himself that the asserted reason for the decision to retrench the appellant could withstand scrutiny.

PN309

COMMISSIONER LARKIN: But the position that the university, you said the put particular people in positions and increased the budget and therefore the argument that they were financial strapped goes away, I mean they’re decisions that any employer makes in regards to the positions that they need to fill and then to save cost of filling that position with the right person. So that’s the decision it makes. It doesn’t necessarily mean that all of a sudden their budgetary problems have gone away. But in regards to your client’s position, that wasn’t filled, was it? So nobody actually took that position.

PN310

MR NEIL: To the extent that it’s ..... the short answer is yes. You are right, yes. But the point is this. The reason that was advanced was not that that position had to go, but that a certain number of positions had to go having regard to the financial circumstances of the Graduate School of Management.

PN311

COMMISSIONER LARKIN: But it was a restructure, was it not?

PN312

MR NEIL: No, it was a cost cutting exercise.

PN313

COMMISSIONER LARKIN: I thought it was change of management and restructure of the whole banking, accounting, banking and finance - - -

PN314

MR NEIL: No. On the evidence it was a quite - however it might have been dressed up the evidence was that, and it was accepted on all sides, that it was an exercise in reducing the number of employees to save money. Academic employees in order to save money. And the Commissioner considered none of these matters, in our submission, because he erroneously thought that he was being asked to consider alternative, whether there were alternatives to redundancy in the circumstances in which the university was presented. That’s to be found in paragraph 59 of the decision. All that he was asked to do was look at the evidence and form a view as to whether on that evidence he could be satisfied that the asserted reason for the termination of the appellant’s employment was both genuine and operational and has found scrutiny in that regard.

PN315

Not a question of second guessing the employer or anything of that kind. Simply of considering whether the employer had discharged the onus of demonstrating that there was some connection and a real, a genuine connection, one of demonstrable substance between the decision and the circumstances that was said to give rise to it, and the Commissioner did not do that. We develop that submission at more length in writing, both below and here on appeal. Could we say something about the orders that in our submission should be made in the event that the appeal is successful in whole or in part.

PN316

Because the only contest below or substantial contest below is as to jurisdiction and the university was successful in that context, there has been no consideration by the Commissioner of any of the evidence relating to the merits of the dispute, either in connection with the application under 709 or 643. But there was a quantity of evidence admitted as to the merits, or all of those disputes. We’ve set out in our notice of appeal and addressed in our written submissions the orders that in our submission should be made as a consequence of that. They are orders which have as their purpose, avoiding any necessity to relitigate matters that have already been litigated at length.

PN317

In our submission the most appropriate course in the event that the appeal were to be upheld and the decision of the Commissioner set aside, the most appropriate course would be to either for this Full Bench to look at that material for itself and come to a view of the merits of the dispute, or perhaps more practicably to remit the matter to a member of the Commission, in our submission a member of this Full Bench, for the purpose of considering what use, if any, ought to be made of the material that has already been admitted in the proceedings below and whether, if at all, it is necessary to supplement that material.

PN318

Now, unless the Full Bench has anything more of us and having regard to the time and the assurance that I gave a little earlier, which I may not have kept, those are the matters we wish to address today by way of supplementing what we’ve already put in writing.

PN319

JUSTICE GIUDICE: Yes. Well, we’ve read your written submissions. Could I ask a question about page 29 of your written submissions, or the submission made on behalf of your client. In the first paragraph on that page it’s said that at the time the applicant’s six month redeployment came to an end on 31 May 2007 no fewer than 10 School of Management employees had left, whether by voluntary redundancy and so on. Are you able to tell me now or at some other time which or the number of those 10 who were in accounting, banking and finance?

PN320

MR NEIL: Standing here now I could not, but I can do so very shortly.

PN321

JUSTICE GIUDICE: Yes, thank you. On the assumption that we were inclined to deal with this matter ourselves having made some decisions about the submissions that have been made, what orders would you seek from the Full Bench?

PN322

MR NEIL: That the orders that were - after the Commissioner’s decision was set aside and the Full Bench embarked upon a consideration of the merits of the orders that were sought below - - -

PN323

COMMISSIONER LARKIN: Which is re-employment, continuity and lost remuneration?

PN324

MR NEIL: They include those orders, yes. They are the orders sought in either the amended application or the application under section 643, the amended application under section 709.

PN325

COMMISSIONER LARKIN: The rest that’s been sought before the Commission was findings of breach and other issues going - - -

PN326

MR NEIL: No so much finding of breach, but finding - - -

PN327

COMMISSIONER LARKIN: It was one that was sort of finding of breach.

PN328

MR NEIL: Findings that the agreement had not been complied with in respects, yes.

PN329

COMMISSIONER LARKIN: But the ultimate relief sought, so to speak for want of a better word, was re-employment, continuity and lost remuneration? That was in the last part.

PN330

MR NEIL: Well, that diminishes the significance of the orders that precede it.

PN331

COMMISSIONER LARKIN: Well no, I’m not diminishing it. I’m just standing there therefore, Mr Neil, are you seeking the finding on all those points raised before the Commissioner?

PN332

MR NEIL: Yes.

PN333

COMMISSIONER LARKIN: That there was a breach, that the grievance wasn’t complied with, that the selection was flawed and all the other points raised?

PN334

MR NEIL: Yes. In relation to the application under section 709 there set out in pages 30 and 31 of the appeal book and we would be seeking all of those.

PN335

COMMISSIONER LARKIN: Thank you.

PN336

JUSTICE GIUDICE: Yes, thanks Mr Neil. Mr Moses, we intend subject to any loud complaints to sit at least until 5 o'clock if necessary, possibly even later, in an effort to give you a reasonable opportunity to make oral submissions in response. But we’ll hear from counsel about any inconvenience that might cause and we can reassess the position then. But we might, before embarking on that, take an adjournment for five minutes or so.

PN337

MR MOSES: Please the Commission.

PN338

JUSTICE GIUDICE: Yes. So we’ll adjourn now for five minutes.

<SHORT ADJOURNMENT [3.40PM]
<RESUMED [3.50PM]

PN339

MR MOSES: Yes, your Honours and Commissioner. If I can just deal with two actual matters that have been raised by the Bench during the course of my learned friend’s submissions. In relation to the issue of the amount of employees that were notified of their redundancy as of 30 November 2006, could I take the Commission to volume 2 of the appeal book at page 564. This is a question that Commissioner Larkin raised in the course of my learned friend’s submissions. Professor Weston, as she then was, was notified of her redundancy and she was the fourth individual notified of her redundancy as of 30 November 2006. This is contained in a chronology prepared by the respondent in the proceedings below which cross references back to the affidavit material. The Commission will see that in the last entry on that page on 4 December - - -

PN340

JUSTICE GIUDICE: I’m sorry, what’s the page Mr Moses?

PN341

MR MOSES: 564, your Honour. I apologise. Volume 2 of the appeal book behind tab 15.

PN342

JUSTICE GIUDICE: Yes, that’s all right. No, I misheard you.

PN343

MR MOSES: The last entry on that page is 4 November 2006 where Professor Steen was notified before that where Professor Green accepted Professor Steen’s application for voluntary redundancy and from that time the number of faculty positions to be made redundant increased from four to five. The second matter that was raised, I think by my learned President, related to those within the banking and finance stream who had been made redundant. If there be any dispute about this we’ll locate the reference for it. The appellant was the only individual selected from that stream for redundancy and if that be in dispute then we will endeavour to provide the Commission with the appeal book reference for that issue.

PN344

JUSTICE GIUDICE: But I think that the number in the passage from the submission that I was asking Mr Neil about included people who had volunteered for redundancy.

PN345

MR MOSES: Yes, your Honour. And I understand that in terms of the banking and finance area, as I understand it the appellant was the only individual who was either forcibly made redundant or who applied for redundancy from that area.

PN346

JUSTICE GIUDICE: I see.

PN347

MR MOSES: As I understand and recall the evidence below, your Honour. But if that be a dispute between the parties then we seek to provide the Commission with the appeal book references to that material.

PN348

JUSTICE GIUDICE: Very well, thank you.

PN349

MR MOSES: Your Honours and learned Commissioner, in terms of the submissions which I wish to advance this afternoon, I don’t intend to read the written submissions. We rely upon the submissions that have been filed in this matter, but there are a number of matters that we wish to emphasise following the submissions put by my learned friends in respect of the appeal before the Commission as presently constituted. The two matters, of course, that arise for consideration concern what are said to be the jurisdictional findings of the learned Commissioner concerning the dispute settlement process which was the subject of an application brought by the appellant pursuant to section 709 of the Act and secondly an application brought pursuant to section 643 of the Act.

PN350

Can I deal firstly with the matter concerning the dispute settlement process. The starting point for ascertaining what was before the Commission is the amended application to have a dispute process conducted, which is to be found at appeal book volume 1 page 28. Page 30 of that appeal book sets out, as we understood it, the matters wish the appellant wished to have dealt with by the Commission. And in particular at page 30 we draw attention to paragraph 2(d), (e), (f) and (i) as setting out the matters which were said to be matters which the appellant wished to have arbitrated. Those matters included an assertion that the criteria used to identify the appellant’s position for redundancy were neither fair nor objective in circumstances of course where there was no provision of the agreement being relied upon to put forward that proposition.

PN351

In respect of (e) that the appellant’s position, as it was on and in all material times before 30 May 2007, was not redundant within the meaning of the agreement. They’re contesting the notification by the respondent of the appellant’s position being made redundant which is to be found at appeal book volume 1 at page 51 which I'll take the Commission to shortly. In (f) that the university should not have decided or determined the appellant or her position - importantly we note the words that the “appellant or her position” - as it was on and at all material times before 30 May should be selected for redundancy within the meaning of the agreement. (g) that the respondent failed to take reasonable steps to redeploy the appellant prior to her dismissal.

PN352

And finally the relief sought, being that the appellant was to be reemployed by the respondent in the position of professor of management or in any other position within the meaning of clause 6.2 of the agreement on the same terms and conditions as she was entitled to prior to her dismissal as if she had continued to be employed by the respondent on and after 31 May 2007. During the course of final submissions before the learned Commissioner my learned friends was asked a series of questions before the learned Commissioner as to exactly what was it that was being sought to be the subject of the dispute process and if I can take the Commission to the transcript of the final day of the proceedings before the learned Commissioner which appears at page 434 of the appeal book and that is to be found in volume 1 behind tab 11.

PN353

A number of exchanges occurred between the learned Commissioner and my learned friends as to this question as to what was it exactly were the matters in dispute which the Commission was being called upon to deal with. If I can first take the Commission to page 437 of the transcript at PN4035.

PN354

COMMISSIONER LARKIN: Sorry, page number?

PN355

MR MOSES: 4037 Commissioner, I apologise. In the course of submissions my learned friends submitted that the appellant did not complaint about the termination of her employment. We’ll come back to that proposition later. What she complains about are matters which are anterior to and distinct from the termination of her employment. The fact that all or some of them were steps that ultimately led to the termination of her employment does not change the character of each of those steps. And then at page 443 of the transcript at PN4072 to PN4073, and I won’t read this out, my friend put a submission there in relation to the way in which clause 4.18.14 ought be construed, which is relevant to a matter that I'll deal with shortly.
And then at page 445 the learned Commissioner asked a question concerning what work, if any, would clause 4.18.14 have if my learned friends was right as to his construction of that provision. And this is what my friend said:

PN356

In a sense that’s the point the respondent makes, of course, in paragraph 16 of its written submissions. There’s a very important distinction between decisions that might be made about ...(reads)... terminated for any reason of that kind. Her employment was terminated because she was retrenched.

PN357

There is not to be found in the certified agreement any indication of a very careful distinction which is drawn in the certified agreement between redundancy and retrenchment where one looks at misconduct or non performance. It’s the existence in the agreement itself as well as in the wider juris prudence in the field of industrial regulation, it’s the existence of that distinction which is the starting point of our submissions and it’s a distinction drawn in the certified agreement. Page 446 the last sentence of the paragraph PN4088 my friend said:

PN358

The decision to terminate relates to the decision to retrench, not to the other decision which are described in ..... dismiss an employee, but it would not catch any of the anterior and distinct decisions about whether an employee’s position was redundant.

PN359

And then the alternate proposition is put by my friend after an exchange with the learned Commissioner at PN4091:

PN360

The only decision that clause 4.18.14 protects are decisions in accordance with the agreement, not any decisions to terminate employment, only decisions to terminate employment in accordance with the agreement.

PN361

And that distinction is repeated at page 447 at PN4094 to PN4095. And this is where the word “proper” creeps into the submissions at PN4095 after putting the submission of a distinction between a decision to terminate concerning making the position redundant as opposed to the person - now, bearing in mind where I took the Commission to earlier where they do attack actually the redundancy of the individual or her position. My friend then goes on to point the distinction that:

PN362

f you’re against us, Commissioner, as to that distinction then the alternative analysis comes into play and that is that a decision to retrench Dr Weston that is taken without having regard to or proper regard to the process or processes required by the certified agreement is not a decision in accordance with the agreement and therefore on that ground falls outside clause 4.18.14.

PN363

And of course we note the separate - I withdraw that. We note the different wording used by my friend at the bottom of page 446, PN4091, where it is asserted that the only decisions that clause protects are decisions in accordance with the agreement. And at page 447 it’s said that there in relation to that matter that where a decision is taken:

PN364

Without regard to or proper regard to the process or processes required by the certified agreement.

PN365

In effect a shifting sands approach being adopted as to what the Commissioner ought to do with clause 4.18.14. And the reason which the appellant has had difficulty in trying to characterise how 4.18.14 should work in the absence of the contention of the respondent and the finding of the learned Commissioner concerned in this point, is that the position contended for by the appellant would make a complete nonsense of the effect of clause 4.18.14 and violate the clear words of the agreement between the parties. Now, it is asserted, I think, that what is being attacked here is the decision to make the position of the appellant redundant, not her actually redundant. The trigger for the dispute is to be found at page 51 of appeal book volume 1.

PN366

Now, that letter notifying the appellant of the fact that the position which she held had been subject of a decision that it would be made redundant clearly informed her that her position was to be made redundant. More importantly that if there were no suitable redeployment options available she would be retrenched from the university with an effective date of 31 May 2007, which of course came to pass following no position to be found for the appellant in the context where she took no steps to action redeployment until days before 31 May 2007. The application of course to seek to have the Commission involved was not made until 29 May 2007.

PN367

On this question of clause 4.18.14 nothing that my learned friends has said during the course of his oral submissions or in writing take away from the force and effect of what the learned Commissioner found at paragraph 29 and 30 of his decision. And that is that the essence of the dispute is also evident from the relief that is sought by the appellant. And this was something I think that was raised by the learned Senior Deputy President during the exchange with my learned friends. If I could just continue with this passage:

PN368

While it is said the dispute concerns a range of anterior decisions there is no suggestion that those anterior decisions ought be the subject of a series of reviews or corrections. Rather it ...(reads)... of the decision to terminate, that is the relief sought points to it being the direct corrector of a decision to terminate and not necessarily the anterior decision.

PN369

Now, the Commissioner was entitled to take that approach. And indeed in paragraph 11 of my learned friend’s submissions on appeal they say that the Commissioner was entitled to look at all of the surrounding circumstances in order to come to a conclusion as to what the proper character of the dispute was between the parties. He was also entitled to look at what relief was being sought in respect of the matter. My friends contend that there is no connection between the dispute and the relief sought. That is once they get through the gate the Commission can make any order in respect of relief to the appellant which has got nothing to do with the actual dispute notified under the dispute settlement process. Again for the reasons that we’ve advanced in our submissions, such an approach would be contrary to a proper reading of the agreement and my friends have cited no authority for the proposition that the relief sought had no connection with the dispute before the Commission.

PN370

To adopt the approach put forward by the appellant, and this is something I think the learned President raised, would have the result that each and every person whose employment was terminated by the respondent could challenge the decision to terminate as long as they allege that there was a defect in the preceding decisions, such that the termination was not justified. A lot of the matters that are complained about by my learned friends in respect of the dispute settlement process in truth assert that the termination was harsh, unjust or unreasonable in respect of matters not being taken into account for the selection of the appellant for redundancy, the very matters which regulation 8.5(5) of the regulation prohibits a term in a certified agreement being directed towards.

PN371

So if the construction that my friend’s put forward is correct then such a term would be void. And again the Commissioner’s finding at paragraph 24 noting that if only the final decision is protected against review this would nullify any real effect of clause 4.18.14 is not the subject of any serious dispute by my learned friends. It’s not disputed in the grounds of appeal nor in their submissions is there any challenge to this finding by the learned Commissioner. Nor do they, with all due respect, say in any content way how the interpretation which they contend would give clause 4.18.14 any substantive operation. The other matter that is the subject of dispute by the appellant relates to the characterisation of the dispute by the learned Commissioner.

PN372

Now, I’ve read the decision, which I must admit I haven’t had regard to, of the Full Bench in the Sydney Ferries Corporation decision, which is a decision delivered on 7 November 2007 in AIRC FV909 where in that decision I note that in paragraphs 22 and 23 the Full Bench had before it argument concerning the proper characterisation of the matter before the Commissioner, but ultimately found that that matter did not need to be dealt with because of the construction of the relevant clause which deprived the Commission of power. Given the way in which the matter has been argued by the appellant, regrettably this is a matter where the Commission will have to determine whether or not the characterisation by the Commissioner of the dispute was correct.

PN373

We have noted in paragraph 5.23 of our written submissions what the amended application set out and noted that it can not have the effect of adding to or amending to the matters that were the subject of the dispute. That is of the original dispute in the application dated 29 May 2007. I note the Senior Deputy President raised an issue about that not being in the appeal book. We have noted that in our submissions. We don’t think that it is necessary for the Commission to have regard to that. But what we do say is that the characterisation of the dispute as concerning decisions anterior to the decision to terminate is belied by the fact that the dispute was only lodged in the Commission well after the appellant had been notified the respondent had made the decision to terminate her employment by reason of redundancy, that is two days before the effective date of the termination of her employment, within the same period that she sought to embark upon what she considered to be steps to be redeployed.

PN374

The relief sought of course is the same relief that is sought in the section 643 application. There can be no doubt that what the appellant was seeking in this matter was to challenge the decision to terminate her employment. Any other matters put forward, with all due respect, is a mere attempt to dress what is in effect the challenge to the termination of her employment effective 31 May. Going to - and I’ve dealt with the decision of the learned Vice President my learned friends relied upon in the written submissions at paragraph 5.24. I don’t wish to say anything further than what we’ve set out there as to why that decision is distinguishable in the present circumstances.

PN375

If I can turn very briefly to section 643(8) which we’ve dealt with commencing at paragraph 6. The only point that we wish tho emphasise here is that the very decision was a decision which the Commission was taken to by my learned friends. That is they relied upon it in their submissions below and, with respect, misconstrued the effect of that decision. Paragraph 6.8 of our written submissions clearly sets out, we say, the ratio of that decision and that is that the Full Bench relevantly found in respect of the proper interpretation of genuine operational reasons the following:

PN376

A reason for the termination of the employment of a particular employee can be genuine in the sense that it is real, true or authentic, not counterfeit, whilst it may not have been valid meaning sound, defensible or well founded.

PN377

Now, the whole gist of the cross examination below of Professor Green was that making the appellant redundant was not the only option that he could have taken. It was disavowed below directly, because we put it squarely during the course of cross-examination of the professor and invited our learned friends to
cross-examine the professor on this basis, that it was not a sham. That is that the selection of the appellant on the grounds of redundancy was not a sham. And they disavowed that it had been a sham. The decision of the learned Commissioner that the decision taken to make redundant the appellant was for a genuine operational reason on any view of the facts can not be disturbed by the Commission.

PN378

And at paragraph 62 of the learned Commissioner’s decision he notes that the submission put by the appellant concerning the reason for the termination of the appellant was rejected on the basis that it was not put to Professor Green and was not contradicted by the appellant - I withdraw that - and was contradicted by the appellant’s submission that Professor Green had no personal animosity towards the appellant. So it’s rather unfair in some ways to assert that Village Cinemas had nothing to do with this decision when it was relied upon by my learned friends, although they misconstrued it, and did not fall within the ratio set out by the Full Bench concerning genuine operational reasons.

PN379

The only other matter that I wanted to address orally was this question of the appeal concerning section 709. I still don’t know, with all due respect, what it is that the appellant seeks in respect of that aspect of the appeal. Nothing has been put forward by my learned friends as to what decision ought properly be made by this Commission concerning that matter other than to quash the decision and remit it to somebody else to determine. But what else do they seek? One would have to assume that they still want the member below to make an order for reemployment or reinstatement in respect of the section 709 matter. They don’t seem to have moved away from that. But more importantly which power do they rely upon pursuant to section 120(1)(f) of the Act in order for the Commission to quash the decision?

PN380

We pointed to the matters that we regard to be relevant concerning the construction of the appeal powers and in particular section 712(3). And what we say in a nutshell about that issue is there is no right of appeal that comes from the certified agreement in respect of section 120 of the Act which is relied upon, we understand, to be section 120(1)(f). There is no right of appeal that the appellant has in respect of such a matter. It must be dealt with in accordance with, we say, the provisions of the Act and more importantly section 712 of the Act. There is no dispute between the parties that what is currently before the Commission is a situation involving subparagraph (3)(b).

PN381

We have noted that we agree to the evidence being put forward by the appellant before this Full Bench, but the difficulty with all of that is where does the appeal power come from to deal with that aspect of the dispute? Where do they say it comes from? If not the certified agreement, which provision of the Act does it come from? Those are the matters that I wish to address, albeit it briefly. I don’t intend to read further submissions. If it please the Commission.

PN382

JUSTICE GIUDICE: Thank you, Mr Moses. Mr Neil?

PN383

MR NEIL: Three very, or four very short matters. The President asked me about the passage that appears at page 29 of the appellant’s written submissions and asked which of the 10 employees there mentioned came from the banking and finance group. There were two. One was the appellant. She was the only one, the only member of the academic staff attached to the banking and finance group which were retrenched, whether compulsorily or voluntarily. Professor Tyrone Carlin, C-a-r-l-i-n, was a member of the ..... of that group and he resigned his employment on 1 February 2007. His position is dealt with in paragraph 51(ee) of our written submissions on page 23.

PN384

He went on a secondment to the faculty of law. Left the Graduate School of Management.

PN385

JUSTICE GIUDICE: I’m sorry, they’re the submissions filed on the appeal?

PN386

MR NEIL: Yes. It’s on page 23.

PN387

JUSTICE GIUDICE: Thank you.

PN388

MR NEIL: So he makes up the second of the 10 people mentioned on page 29 who were attached to the banking and finance group. The second matter that we wish to address by way of reply is the submission that we have not identified any circumstances in which clause 4.18.14 might have work to do. In fact we did. We have conceded that it would relate to - it would operate in relation to any decision to retrench an employee provided that decision were taken in accordance with the agreement. The fact that that might not catch every dispute that the university might wish it did is not to the point. This is, after all, a provision which limits jurisdiction and ought, in accordance with the ordinary principles that determine the construction of a certified agreement, ought to be construed as narrowly as possible, particularly where the jurisdictional question is beneficial.

PN389

There’s another way of looking at precisely the same problem, approaching it from another direction. What decision is it said by the respondent that is taken along the way towards a decision to dismiss would not be caught by clause 4.18.14 if its construction were to be correct? So far as its submissions go and so far as the Commissioner’s decision deals with the matter, then any decision which happened to be a step along the way towards an ultimate decision to dismiss an employee would be caught by 4.18.14? Even if that decision - - -

PN390

SENIOR DEPUTY PRESIDENT HARRISON: When 4.18.14 is triggered one is to bear in mind that there could be months and months and months between the identification of the position for redundancy and the likely retrenchment and the actual time when the termination of employment comes into effect. And universities in particular, that time might be a very, very long period. So during all of that period one assumes that a 709 could be enlivened.

PN391

MR NEIL: Well then, if that’s so, and in our submission it certainly would be, what is it about those earlier decisions that changes so as to attract 4.18.14? It must only be, if the respondent’s submissions are to be correct, it must only be because the quality of those earlier decisions is in some way changed by the ultimate decision to dismiss the employee. And in our submission that is not possible. Let us give another illustration of what we mean about that. Suppose that an employer decided not to promote an employee to a higher grade and then decided - stopping there for a moment, assuming there that promotion was a subject dealt with in a certified agreement and that certified agreement included provisions such as those one finds in 4.18 - then in our submission no one could doubt that that is a matter which could properly be subjected to the dispute settling procedure, properly be referred to arbitration and would not be caught by 4.18.14.

PN392

But suppose then that the employer decided that every employee in the lower grade would be retrenched and al of the employees in the higher grade into which the employee had not been promoted would be kept on. That’s a decision - that would change the quality of the decision, if the respondent would have it, not to promote because that decision would have the consequence, as events had happened, of retrenchment. And precisely the same analysis applies to all of the decisions taken along the way, in our submission. The next point that we’d wish to very quickly address by way of reply was the assertion that that submissions that depended upon the so called challenge to assert that Professor Green’s evidence as to his reason was a sham.

PN393

Now, sham is an expression which has a very particular legal meaning. A decision of the High Court in the ..... case is authority for that proposition. I can’t remember the citation, it not being something that’s before in this matter. But there’s no question here that anything that Professor Green said was asserted to be a deliberate attempt by him to give his decision to retrench the appellant a meaning that an appearance that did not accord with its meaning. What was submitted instead was that the evidence that he gave as to his reason did not withstand the scrutiny that a genuine operational reason must withstand. That is a different point.

PN394

Last, the orders that are sought on appeal are those set out in paragraphs 73 and 74 of our written submissions on the appeal on page 35. And the jurisdiction of the Full Bench on an appeal under section 120 to make those orders is to be found in subsection (7) of section 120 and in particular paragraphs (a), (b) and (c). Unless we be of any further assistance those are the submissions we’d wish to make.

PN395

JUSTICE GIUDICE: Mr Neil, this is a very minor point of deal I suspect, but I’ve been looking at the material concerning the RRC report.

PN396

MR NEIL: Yes.

PN397

JUSTICE GIUDICE: Who is Professor Sachs? S-a-c-h-s?

PN398

MR NEIL: Professor Sachs was the deputy vice chancellor.

PN399

JUSTICE GIUDICE: I see, acting vice chancellor at the time I assume? He was the one that the report went to.

PN400

MR NEIL: Yes. Yes, I think so, yes.

PN401

JUSTICE GIUDICE: Yes. It’s dealt with on page 518 and 519 of the appeal book.

PN402

MR NEIL: Yes.

PN403

JUSTICE GIUDICE: But I wasn’t entirely sure what the process was there.

PN404

MR NEIL: That was the passage that ..... the evidence doesn’t allow us to give you any more assistance than was given on page 518.

PN405

JUSTICE GIUDICE: Yes.

PN406

MR NEIL: Yes.

PN407

JUSTICE GIUDICE: Yes, well I think it clears up my question anyway.

PN408

MR NEIL: So Professor Sachs was the deputy vice chancellor that is referred to relevantly for the purposes of 6.2.25 if that comes to the nub of your Honour’s question.

PN409

JUSTICE GIUDICE: Yes.

PN410

MR NEIL: Yes.

PN411

MR MOSES: And I think the relevant exchange is between her and Professor Green concerning that matter is to be found at page 1118 of volume 3. Just in terms of the reference to the transcript about the sham issue at page 428 to 430 is the exchange that took place during the evidence of Professor Green concerning that issue and the reference to the decision at that time. That’s in appeal book volume 1. I meant to give you the reference to that.

PN412

JUSTICE GIUDICE: What were those two references, Mr Moses?

PN413

MR MOSES: Page 428 to 430 and appeal book volume 1 is the exchange during the course of evidence by Professor Green concerning whether it was being contended that it was a sham in terms of the reasons advanced. And page 1118 is the communication between Professor Green and the deputy vice chancellor, Sachs, concerning the decision to make redundant the appellant.

PN414

JUSTICE GIUDICE: That was the review?

PN415

MR MOSES: Correct.

PN416

JUSTICE GIUDICE: Yes.

PN417

MR MOSES: That is her acceptance of the recommendation that there not be a change to the position. She determined that she would not intervene in that process.

PN418

JUSTICE GIUDICE: Yes, all right. Thank you. Well, thank you for your submissions. It will be necessary to reserve our decision, which we shall do. And we now adjourn.

<ADJOURNED ACCORDINGLY [4.31PM]