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C2002/ 352 , Transcript of Proceedings [2002] AIRCTrans 823 (14 March 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2002/ 352 

UNIVERSITY OF ADELAIDE AUSTRALIA

and

NATIONAL TERTIARY EDUCATION INDUSTRY UNION

Notification pursuant to section 99 of the Act
of a dispute re offer of voluntary redundancies

ADELAIDE

8.38 AM, THURSDAY, 28 FEBRUARY 2002

PN164

THE SENIOR DEPUTY PRESIDENT: Can I have appearances, please?

PN165

MS K. HARRINGTON: Yes, a change of appearance for the NTEU, sir, my name is Ms Harrington.

PN166

MR D. KILDARE: I appear for the University of Adelaide Australia

PN167

THE SENIOR DEPUTY PRESIDENT: Who is going to open the proceedings today?

PN168

MS HARRINGTON: I suggested my friend do so.

PN169

MR KILDARE: Thank you, Ms Harrington.

PN170

THE SENIOR DEPUTY PRESIDENT: Mr Kildare, are you happy doing so, or do you want to have an arbitration on the question of who goes first?

PN171

MR KILDARE: I don't want any more arbitration if we can help it, sir. I guess at this stage, I would have to say that I haven't really got a lot to add. If you have some questions arising out of our written submissions, I would be happy to talk to them if I can. Yes, I really don't want to add anything, except probably to say, as I have said quite clearly, it is the University's view that what is contained in our Enterprise Bargaining Agreement, is an involuntary scheme. And as I said in the latter part of our submission, a written submission, that I think there is something that needs to be looked at there in terms of a voluntary separation or a voluntary redundancy scheme and an involuntary redundancy scheme.

PN172

We actually only use an involuntary redundancy scheme and the custom and practice as I am led to believe at the University and it has been pretty well in my 4 years there, is that it is the exception rather than the rule for people accepting any sort of redundancy that they might take involuntarily, as entering that transition period of 8 weeks. So I guess that is what I am saying, is that our case rests on the fact that it is an involuntary scheme, we think it needs to be looked at for the future, because, as I said, the claim from the NTEU I would suggest is, in fact, out of the ordinary for a large number of people; accepting the voluntary separation.

PN173

THE SENIOR DEPUTY PRESIDENT: Mr Kildare, can I ask a question firstly in relation to your written submission and I refer to the second paragraph on the second page. This is the paragraph that commences with the words: "In the past there have been a number of individual cases". Now can you assist me in reconciling that paragraph with your earlier comment that voluntary redundancies aren't effectively utilised by the university and the university is reliant, or as I understood it, reliant upon the concept of a compulsory redundancy arrangement.

PN174

MR KILDARE: What we are saying is that that 8 weeks transition period, is usually offered to someone, or they enter that 8 weeks transition period, if they are, if I could use the word "targeted" by the university. And quite clearly, it gives them time to have a look at the options that are contained in our enterprise bargaining agreement as it goes to redundancy and that is, number 1; whether they accept it; whether they seek re-deployment or, in fact, whether they ask for a review.

PN175

And so that is when we actually tap someone on the shoulder as it were. Now, if I could go back to the first part of your question.

PN176

THE SENIOR DEPUTY PRESIDENT: But is that what that paragraph is saying, Mr Kildare?

PN177

MR KILDARE: The second paragraph you mean?

PN178

THE SENIOR DEPUTY PRESIDENT: Yes. What it says to me is that there have been individual cases of voluntary redundancy where a payment in lieu of the transition period has been provided for.

PN179

MR KILDARE: We have a number of people in the university over recent times, and I am not au fait with all of the individual cases, but I do know of a couple personally, just lately, whereby the person has - the job has changed to the extent that they have come to the university and have asked the university whether it might be possible to accept or be given a redundancy. And they have come back and said, and to use the word in their submission, we used I think the word "enhanced", they used it as a "sweetener" to go earlier, so that the university might be able to restructure in that particular area.

PN180

Now that is what I am saying quite clearly - individual cases it has happened and in fact, Ms Baldwin in her submissions, does go to that with a particular person in our property services area. So I am saying that when we - as we have done in the sciences, if we put out an all points bulletin to people to say we are looking for expressions of interest for people to go, that is on a voluntary basis. There is no need for them to enter a transition period, because they come back to the university and say: yes, I am happy to go.

PN181

So they don't need to enter that transition period where they have to consider some of their options. And so, we are saying, and the custom and practice has been, to my knowledge, that when you have a large number of redundancies in a restructure of a faculty, that we don't normally ask people to enter that transition period, because that is when it is an involuntary redundancy. And I have to say to you that my colleagues at the other end of the table, or I have suggested that there is a need for us to look at this in the next round of EB, because I think - I personally think, from the university's point of view, those redundancy provisions are somewhat misleading. As I said to you, it is an involuntary scheme.

PN182

THE SENIOR DEPUTY PRESIDENT: Thank you for your answer and that question. Can I then direct your attention on the same specific issue, to the letter from the vice chancellor, dated 13 December 2001. It is attachment 2 in the package that you have provided to me.

PN183

MR KILDARE: Yes.

PN184

THE SENIOR DEPUTY PRESIDENT: And the second paragraph of that letter contains the sentence that says:

PN185

However, if there are insufficient voluntary redundancies, then the university may need to consider other options to achieve an appropriate level of staffing for the amalgamated faculty.

PN186

And I am just wondering whether you can differentiate then, on the basis of that sentence, between this situation and the situations to which you have referred in your answer to my previous question relating to the previous number of individual cases of voluntary redundancy where there have been payments negotiated in lieu of the transition period.

PN187

MR KILDARE: Effectively what the vice chancellor was saying there, that if, for instance, and it probably wouldn't happen, but if for instance no-one put their hand up to accept a voluntary package then the university would seek to target people and say: you are being made involuntarily redundant. Now the person hasn't got the choice, if you like and then the person would enter that 8 week transition period. But what we are saying there, and I think it is quite clear, hopefully the uptake of the voluntary redundancies will reduce the staffing to the levels that we require. But if it didn't, we would then target people.

PN188

THE SENIOR DEPUTY PRESIDENT: If I follow that logic and look at it from the perspective of a person who may have received one of these letters. If there is a different overall payment to be made to a person who is electing to take a voluntary redundancy, to that which would apply to the person who was faced with the possibility of an involuntary redundancy, then what incentive is there to move toward the voluntary redundancy, as distinct from wait for the inevitable and await the letter from the university saying that I have been selected for compulsory redundancy.

PN189

MR KILDARE: That is probably a very good question which I don't think I can answer, other than to say Ms Harrington might like to answer that because - - -

PN190

THE SENIOR DEPUTY PRESIDENT: Well Ms Harrington will have her opportunity in a moment and I will be very happy for her to address me on that question as part of her reply. Very well, look the next question that I had, Mr Kildare, is this dispute arose out of the restructuring of the science faculty.

PN191

MR KILDARE: Yes.

PN192

THE SENIOR DEPUTY PRESIDENT: Can you point me to other major restructuring of recent years under this existing agreement, which has involved voluntary redundancy opportunities?

PN193

MR KILDARE: A number. Not right off the top of my head. But we have had some large numbers of recent times. Property services is an area that was involved with this sort of exercise. But off the top of my head, I can't just list them off for you now, but we have had a number.

PN194

THE SENIOR DEPUTY PRESIDENT: Can I now take you to the actual agreement provisions and my questions are all embedded in the material you have provided to me as attachment 1. Can I just have confirmation from you that you agree that the situation at issue here, in the science faculty, is defined, in terms of the redundancy definition by clause 39.2?

PN195

MR KILDARE: Yes that is right, sir.

PN196

THE SENIOR DEPUTY PRESIDENT: Now clause 39.2 continues to establish a requirement that the university notify the staff members concerned in the relevant unions of firstly; the terminations and the reasons for them, secondly; the number and category of staff likely to be affected and thirdly; the period over which the university intends to carry out the terminations. Was that advice provided in accordance with the agreement in that respect? Or is there some other factor that comes into play?

PN197

MR KILDARE: That is the very point we are here, I think, sir. Why the dispute was originally notified, that there was a lack of timely consultation alleged by and to you on the part of the university.

PN198

THE SENIOR DEPUTY PRESIDENT: Very well. Then can I take you to clause 39.8.

PN199

MR KILDARE: Yes, sir.

PN200

THE SENIOR DEPUTY PRESIDENT: And just to clarify then, in terms of your submission, or should you agree to your submission as differentiating between a voluntary separation offer or option that is available to an employee in accordance with that provision and the offer of voluntary redundancy which was contained in the vice chancellor's letter of 13 December? Is that correct?

PN201

MR KILDARE: I thought you were making a statement there, sir, so I didn't - - -

PN202

THE SENIOR DEPUTY PRESIDENT: No, I am asking a question. Clause 39.8 identifies as option 1.

PN203

MR KILDARE: Yes.

PN204

THE SENIOR DEPUTY PRESIDENT: The option of voluntary separation. 39.8.1 says:

PN205

This option applies to a staff member has been advised that his or her position has been declared redundant.

PN206

And my question is: should I read those in your submission? Should I read that provision of the agreement as being a separate option to that which was given to employees by way of the letter from the vice chancellor dated 13 December?

PN207

MR KILDARE: That is what I am asking, because that goes to a follow-on from 39.6, 7, where it talks about someone's job being declared redundant and they don't have a choice.

PN208

THE SENIOR DEPUTY PRESIDENT: Very well. And finally, Mr Kildare, were you the author or an author of the document which is part of attachment 2, being the explanation of the voluntary separation packages in the combined faculty of sciences?

PN209

MR KILDARE: No, I wasn't.

PN210

THE SENIOR DEPUTY PRESIDENT: Simple. What I am wrestling with there is that under the heading of: You receive, in attachment 2, the value of the redundancy packages is explained and I think it is appropriate that I invite you to comment on the extent to which those words fundamentally reflect the words contained in clause 39.8.1 with the exception that sub-clause 39.8.1(1) has been removed and consequential re-numbering has occurred. But the maximum of the 82 weeks in total has not been altered.

PN211

MR KILDARE: As I said earlier, and in fact it forms part of the submission of the university. If I could just go to the exact words.

PN212

THE SENIOR DEPUTY PRESIDENT: Now this is the comments that you have made in your submission that identify that the words may be a little misleading?

PN213

MR KILDARE: Yes, in hindsight, it would appear that the mention of the maximum entitlement of 82 weeks was unintentionally misleading and it is fair to say that that 82 weeks should not have been put in there. Because it still goes, as I said, to someone who is, I use that word again, "targeted".

PN214

THE SENIOR DEPUTY PRESIDENT: Well that gives rise to a final question then. That is, if I look at the outline in attachment 2 which establishes the method of calculation of the value of the redundancy payment, are you in a position to advise me of what the maximum sum equating to a combination of the payment, which is founded on the person's age, in placitum 1 and the payment founded on the basis of 3 weeks salary for every year of service?

PN215

MR KILDARE: You are asking what the maximum is?

PN216

THE SENIOR DEPUTY PRESIDENT: Thank you. For the people who were affected by the 22 February redundancy round.

PN217

MR KILDARE: I'm sorry, I - - -

PN218

THE SENIOR DEPUTY PRESIDENT: Is it conceivable that someone would have achieved that maximum of 82 weeks in total by way of a payment that would consist of the combination of 1 and 2? Because I can't see by looking at the mathematics that that would be the case. That is, if I looked at someone who was 45 years or over, then they would receive 22 weeks pay. If that person was then also in receipt of the maximum of 56 weeks pay, then we come up with a total amount of 78 weeks pay. And the question that I am asking there is: first of all whether you agree with that summation and secondly; whether you are in a position to comment any further on it?

PN219

MR KILDARE: Number 1, I agree with what you have just said.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes.

PN221

MR KILDARE: And number 2, I am not in a position to comment any further.

PN222

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kildare. Is there any more you wish to add?

PN223

MR KILDARE: No sir. Thank you.

PN224

THE SENIOR DEPUTY PRESIDENT: Ms Harrington.

PN225

MS HARRINGTON: Thank you, sir. I have three issues to discuss. The first goes to the offer that was made in the vice chancellor's letter. And clearly as we say in our submission, it was an offer that was made to staff. Now I have checked with my friend to make sure that I am accurate in my information, but my understanding is that there was no further correspondence sent to staff from the vice chancellor or any person in authority to actually withdraw the 82 week maximum offer.

PN226

I know that in my friend's submission, he says that when people ask for information, they then perhaps received a quote which would have had presumably a maximum of 78 weeks. However, the officers of the university who would have provided that information to staff, would not have been officers in a position who could bind the university in any undertaking, such as the vice chancellor could do. So as we say in our submission, we believe that in relation to this particular offer, leaving aside all the other matters about the interpretation of the clause itself, staff have relied upon the undertaking that they would receive an 82 week maximum and we believe that that undertaking should be honoured in the circumstances, since no contrary advice was subsequently sent.

PN227

Our second point goes to the nature of the redundancy clause in the enterprise agreement. Now in my friend's submission, in his second paragraph on page 1, the clause is characterised as primarily a clause which is intended to target positions that are no longer required. Now with respect, sir, we say that that is rather like starting half way through the clause, perhaps at 39.8. What we say is that there is actually preceding sections to the clause which have to be read in conjunction with 39.8.

PN228

And our submission is this. If the university - I mean it wasn't the case that suddenly all the staff in sciences woke up one morning and decided that they would like to be made redundant. This is a management initiated redundancy round. We say that any management initiated redundancy round comes under clause 39 of the enterprise agreement. There are no other clauses which are applicable. There is nothing outside the agreement. This is an all-encompassing clause. The title of the clause itself is: redundancy. It is not called: involuntary redundancy, it is called redundancy.

PN229

We have heard today, that my friend agrees that the redundancies which are underway, I guess, effective now in science, do in fact fall under 39.2. So we are in agreement on that point. I would point out to your Honour, however, that the union still has not received a letter from the university explaining on what particular ground of 39.2 the university is relying on, although we are extrapolating that it is perhaps a mixture of financial exigency and restructuring but if perhaps we can go through the clause, your Honour certainly has gone to 39.2.

PN230

Now the reason that the union and staff have to be written to is because 39.3 then requires that there is a period of consultation. Well firstly, 39.3 actually allows staff, I should say, to perhaps seek alternative opportunities, but 39.4 is the consultation clause. What that does, is provide the union with an opportunity to meet with the university, to perhaps recommend alternatives to the proposed redundancies the university has underway and this is where - and I think we have failed to mention this in our submission, but certainly I am directing it to your attention today, this is where 39.5 is critical I think to this matter.

PN231

39.5 says: what are those measures that we can look at when we are talking about averting of the adverse affects of redundancies, as it is called. And 39.5 lists a number of options, but the one we direct your attention to is 39.5(v) and it talks about an offer of voluntary separation in accordance with option 1. Now of course, when we go to option 1, option 1 includes the three component parts. The transition period, the payment in lieu of an entitlement period and the years of service. Now if my friend's contention were correct, what it should say is that an offer of voluntary separation would be in accordance with option 1, excluding little roman numeral 39.8.1. But in fact that was not the intent of this particular clause.

PN232

So we say that any management initiated redundancy, which is a voluntary separation, has to be in accordance with option 1 and that is the requirement of the enterprise agreement. Now my third point, sir, goes to the basis of this particular clause. My colleague who prepared this submission, didn't actually - wasn't actually involved in the negotiations, nor my friend at the other end of the table. I have confirmed this with him, just from memory, I believed it to be the case. He was not involved in the basis for negotiating this clause. I, however, was, I was the NTEUs representative at those '97 negotiations.

PN233

What we did in 1997, certainly from the union's perspective, was to effect a change in the redundancy provisions for staff at the University of Adelaide and that came about as a result of what we saw as a fairly, and the staff saw - and I think the university itself saw, as a fairly traumatic experience in October 1996, where the university targeted over 100 staff. As a result of that experience the NTEU decided that, in a practical sense, it would revise the provisions so that we would get into a situation where it was actually an inducement for staff to volunteer rather than wait to be targeted. The very point that you were raising with my friend earlier, sir.

PN234

Previously, and I am not sure if your Honour is familiar with the, what are called generically, the bryant provisions for redundancy for staff in the university sector. Previously the provisions have been based on the bryant provisions, which had separate ways of calculating the voluntary redundancy, which was a years of experience calculation, versus an involuntary calculation which was purely based on age. What arose is, in the '96 round we actually had some people where it was better for them to hang around and wait to be targeted than to volunteer, the very point you were raising. That produced, I think, stress for the staff members and resulted in a lot of undesirable aspects, so the union took a positive decision in '97 that it wouldn't revise those provisions but the basis of those revisions was really that there would be an incentive for staff to volunteer rather than to wait to be targeted. If you read the entirety of the clause, you now see, for instance, that if a staff members seeks a review of the decision to target them for redundancy, they start to use up their transition period and possibly eat into their entitlement period, thereby lessening the package.

PN235

Now it wasn't an easy decision for the union to make but it was a clear decision we made at the time. Unfortunately I couldn't find any correspondence on that, so obviously you have to take the view that this is the union's perspective on what we were doing in '97. Those '97 provisions were then incorporated almost without amendment into the current enterprise agreement before you. So that, sir, is the background to this, as we see this particular situation.

PN236

So again, we would say in summary, any management initiated voluntary separation or voluntary redundancy round, has to be in accordance with the enterprise agreement. That is spelt out in 39.5, which of course refers to 39.8 and that is the basis for our submission that the staff in the offer that was made on 13 December should, in fact, receive the added two weeks maximum. Thank you.

PN237

THE SENIOR DEPUTY PRESIDENT: Ms Harrington, can I just ask you a couple of questions? Does the agreement clearly define the concept of a transition period at any provision?

PN238

MS HARRINGTON: The transition period, I suppose, really comes more into play if people decide perhaps to exercise the option other than voluntary separation, where our claim is it just gets paid out to the person. But if you are seeking review for instance, you can use the transition period to have the review; if you are seeking re-deployment you can use it for that.

PN239

THE SENIOR DEPUTY PRESIDENT: When this matter first came before me, I obtained a copy of the dispute settlement procedure of clauses 37, 38 and 39. Mr Kildare is well aware of my views about the voluminous size of university and tertiary institution certified agreements. In the interests of trying to save a forest, I didn't print the entire agreement but what I am interested in is whether, in the definition clause of the agreement, there is in any way, a definition of the concept of a transition period?

PN240

MS HARRINGTON: No, I don't believe there is, sir.

PN241

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis, I will save yet another tree.

PN242

MS HARRINGTON: Just in defence of the verbosity of the agreement, I think perhaps we would say from the NTEs perspective, as problems arise we try and deal with them in the next enterprise agreement. Perhaps this is an example of the difficult history that perhaps we sometimes encountered at the university.

PN243

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Kildare is also aware of my view that sometimes the longer the agreement, the more scope there is for disputation about the various conditions contained in it.

PN244

MS HARRINGTON: I think today's hearing may well prove that point, sir.

PN245

THE SENIOR DEPUTY PRESIDENT: Thank you. Can I take you to the correspondence that was sent out to employees and is contained at attachment A of your submission. In particular, can I take you to the second page of that which is the page headed, "Voluntary separation packages in the Combined Facility of Sciences". I refer to the very last paragraph. This is the paragraph that reads:

PN246

The final decision as to whether a person can be offered a voluntary redundancy will rest with the university. There is no guarantee of acceptance of expressions of interest. It is a condition of this package that you will not be eligible for re-employment by the university for a period of 2 years from the date you cease employment.

PN247

Can I also refer to the third page of that attachment which is the form that a person interested in an expression of interest needed to submit, the last paragraph of that form reads:

PN248

I acknowledge that the submission of this expression of interest does not obligate the university in any way to approve the voluntary redundancy package. I also acknowledge that the decision of the panel will be final.

PN249

You have referred me at some length to the provisions of clause 39.5 of the agreement and can I ask whether you might comment for me on the extent to which this request for expressions of interest is consistent with the option 1 outlined in clause 39.8 of the agreement.

PN250

MS HARRINGTON: Well, I think as I said, it really comes in terms of the industrial principle of offering the voluntary separation. I think in a way, perhaps it is despite as I said it is verbosity still poor drafting, I think we do intend or the agreement intends in this clause to have like two separate rounds. One is a phase called a voluntary separation round where people in response to a management request can volunteer and I think the industrial ..... there would be that the university would have a prerogative not to accept all comers if for the good of the organisational structure it didn't want some people to leave.

PN251

Then if that fails, we then move to an involuntary phase but what we think the agreement actually says is that if we decide as part of the measures to mitigate the adverse effects of redundancy, there will be a voluntary round. The calculation for that or the amount that is offered has to be in accordance with option 1. So I don't see that as inconsistent.

PN252

THE SENIOR DEPUTY PRESIDENT: But were the redundancy arrangements that we being offered by the university strictly in accordance with the process outlined in clause 39, that is if the university had gone through the notification process, envisaged in 39.2, and an employee was confronted with the various options, amongst those options being option 1, can I ask whether in your view the employee would then be invited to take note of the fact that there would be no guarantee of their request for voluntary separation being accepted by the university, becomes somewhat of a nonsense, does it not?

PN253

MS HARRINGTON: Well, I think the assumption would be that if the university has volunteers, it should favour volunteers over moving to retrenchment, it would have to have a good organisational reason why it didn't want to accept volunteers but I think, as I said, the intent of why that occurs is if we go back to 39.4 to try and mitigate either the terminations or the adverse effects of termination. So what we are trying to do is to clearly for those people who would like to leave in the situation where redundancies have to occur, allow that to happen, to facilitate that and for those who would wish to stay.

PN254

Now, going back to the '96 round which again was another exercise in unpleasantness, we were able to there effect some substitutions, not where someone was targeted and then somebody else volunteered and that was acceptable to the university. So it is really - I think we have to read, as I said, we have to read the whole of the clause as a totality. I would also say just to give support to our view, you have reminded me of not pointing out the 2 year limit on re-employment. That is actually enshrined in 39.13 of the clause which talks about those staffing who is retrenched voluntarily as opposed to 39.12 where someone is retrenched involuntarily.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes. What I'm perhaps focused on here is if someone is provided with option 1 in accordance with clause 39.8, is it your view that the university has any capacity to then reject a request from an employee for voluntary separation pursuant to 39.8?

PN256

MS HARRINGTON: As a person who was involved in negotiating this clause I would say that as the unions negotiated at that time, I would certainly have assumed that there was an ability for management to turn down some volunteers but it would be exceptional rather than the normal so that - - -

PN257

THE SENIOR DEPUTY PRESIDENT: What would happen to those people who were turned down, having made a request for voluntary separation pursuant to clause 39.8?

PN258

MS HARRINGTON: Then that would obviously protect that person from any targeting because if the university had, for instance, refused them as a volunteer, there's no way they could be targeted. Now, the instance that particularly comes to mind would be a professor of a department who, if you like, is the academic leader in a department and I could see that in that circumstance the university may say: no, no, we are not agreeable to you leaving because of your role in the university and we think it is a key role from management's perspective.

PN259

THE SENIOR DEPUTY PRESIDENT: But then, why on earth then would that person have received the notification of redundancy?

PN260

MS HARRINGTON: Well, put it this way, the university have of course constructed their voluntary offer without consultation with the union. I might say that tomorrow I will be at Flinders University where the university through its enterprise agreement which has a role for the NTEIU to play has made an offer of voluntary redundancies which does include professors in humanities and education and that has been a deliberate decision by management that they would accept staff being made redundant at that level. So I mean I can't speak for what was in management's mind but I'm just relying I guess on - - -

PN261

THE SENIOR DEPUTY PRESIDENT: No, I'm not asking you to do that.

PN262

MS HARRINGTON: No.

PN263

THE SENIOR DEPUTY PRESIDENT: I'm simply pointing out that there is an issue that I'm grappling with in that if I work all the way progressively through clause 39, 39.1 simply establishes the principles that would be applied. 39.2 establishes the reasons for redundancy. and it poses that obligation which has been somewhat disputed in this particular case in terms of the terminations and reasons for them, the number and category of staff likely to be effected and the period over which it is intended to carry out those terminations. 39.3 is somewhat critical in terms of the issue that I'm grappling with here and that is, it envisages that a staff member will receive a notification of redundancy.

PN264

MS HARRINGTON: Yes, although I think 39.2, going back, talks about the number and category of staff likely to be effected. So one assumes that at 39.2 that a definite decision has not been made about who was to go and who was to leave.

PN265

THE SENIOR DEPUTY PRESIDENT: Certainly, and that is the issue that I'm grappling with here.

PN266

MS HARRINGTON: Yes.

PN267

THE SENIOR DEPUTY PRESIDENT: There's a concept of a definite number and category of employee that is embedded in clause 39.2. I'm having difficulty - - -

PN268

MS HARRINGTON: But I think I can given this for instance, if for instance the reason for the redundancies was financial exigency which is (iii) in 39.2, in some respects that would depend on which staff in terms of salary put up their hands. If it was all junior staff, then clearly you would need more staff to leave to meet the financial exigency than if it were more senior staff. So I could see that there are some types of situations where the university wouldn't be clear about perhaps who it would accept because it wouldn't know until it actually received the offers as it came in. I mean, if it received a flood of offers which far exceeded the financial exigency, again I think that would be another reason for management to say: well, sorry, we don't need that many people to actually leave and then make a management decision because otherwise I think it would be unworkable.

PN269

I think it would be an encouragement from the union's perspective if we had an alternative interpretation, it would be an encouragement for the university to move immediately to targeting. That wasn't our intent. Our intent was to try and have a situation where it was as pleasant as possible and the circumstances for people to be able to leave voluntarily. So I think because of the diverse nature for redundancies, that is why there has to be flexibility in terms of the solutions that we come up with and if a voluntary offer is made that there is some flexibility there too.

PN270

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Harrington.

PN271

MS HARRINGTON: Thank you.

PN272

THE SENIOR DEPUTY PRESIDENT: Mr Kildare, is there anything you wish to add by way of reply?

PN273

MR KILDARE: No, sir, thank you.

PN274

THE SENIOR DEPUTY PRESIDENT: Well, look, I've noted the effort that has gone into those written submissions and I thank the parties for that. I will endeavour to develop my response over the next 2 weeks and will advise the parties as soon as a decision is available.

PN275

MS HARRINGTON: Thank you, sir.

PN276

MR KILDARE: Could I just add, sir, that I think I can talk on behalf of my colleague that we are making some good progress on the other part of the dispute in terms of how we will move forward and in terms of the template and so forth. We are having some very good talks at the moment.

PN277

THE SENIOR DEPUTY PRESIDENT: Very good. Can I simply indicate to you that the more progress you make the happier I am.

PN278

MS HARRINGTON: Yes, I can say, sir, we are being pleasant to each other.

PN279

THE SENIOR DEPUTY PRESIDENT: That is delightful to hear. Thank you very much. I adjourn the matter on that basis, thank you.

ADJOURNED INDEFINITELY [9.22am]