COMMUNITY AND PUBLIC SECTOR UNION (SPSF GROUP) NEW SOUTH WALES BRANCH
Respondent:
UNIVERSITY OF WESTERN SYDNEY
File Number:
SYG 1561 of 2009
Judgment of:
Raphael FM
Hearing date:
16 November 2009
Date of Last Submission:
16 November 2009
Delivered at:
Sydney
Delivered on:
16 November 2009
REPRESENTATION
Counsel for the Applicant:
Mr D Shoebridge
Solicitors for the Applicant:
W. G. McNally Jones Staff
Counsel for the Respondent:
Mr P J Newall
Solicitors for the Respondent:
Truman Hoyle
ORDERS
Evidence of Professor hereto admitted on penalty.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG 1561 of 2009
COMMUNITY AND PUBLIC SECTOR UNION (SPSF GROUP) NEW SOUTH WALES BRANCH
Applicant
And
UNIVERSITY OF WESTERN SYDNEY
Respondent
REASONS FOR JUDGMENT
The proceedings involve an allegation that certain terms of a general staff agreement 2006 to 2008, concerning the University of Western Sydney and its staff, were not complied with. The University says that the terms referred to were not binding terms but were expressions of intent. They were exhortatory and not mandatory. Because the Court ordered pleadings in the case, the nature of this issue has been narrowed, the University having admitted certain facts. Those admissions come very close to the acknowledgment that things which the University says it was committed to doing in the agreement, it did not do. But to say that does not answer the question whether or not the agreement was breached.
The applicant now seeks to have admitted evidence of what occurred at a meeting between a person of professorial status and a number of others, following the events which were the subject of the admissions in the pleadings. It is said that the professor apologised for “bypassing the agreement”. The applicant presses this statement, or the admission of this statement, on the basis that it confirms certain facts which appear to me to have already been admitted and which would have some relevance if I come to the view that what occurred was a breach that required being penalised by the imposition of a civil penalty. If the conversation is allowed in, then I will be able to say (as the evidence stands at this moment) that on 2 May 2008 the University, through the Professor, was aware that what they had done was not consistent with the agreement. I am not sure how much weight that would have in the assessment of any penalty but then the case has only just begun.
The respondent takes issue with the admission of this evidence and cites, with considerable vigour, the decision of the High Court in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 and, in particular, the views expressed by the Chief Justice at [17] and [25] and those expressed by Gummow J with whom the Chief Justice agreed at [66] et seq.
As I explained to Mr Newall, who appears for the respondents, it never occurred to me that if I admitted the fact of this conversation, it could influence me in coming to a conclusion as to whether or not there had been a breach of the agreement. That is a matter for the Court to decide. Any expression by a lay witness of what might or might not be the law, is of no relevance whatsoever. On the other hand, as the Dovuro case confirms, an admission of a fact is perfectly acceptable.
I take the word “bypass” to mean that certain things set out in the agreement as proposed to be done in the circumstance which obtain here of a vacancy in a position within the University may not have been done. It is a very vague description. I would not take it as meaning that none of them were done but I have little need to go much further than that because I would rely upon the admissions already made in the pleadings as to what was done and what was not done.
So to that extent, I think the statement would be admissible in accordance with the dicta of Dovuro, because it is no more than a statement of fact. It might not be admissible to prove anything because of its vagueness and in the context of the pleading admissions, irrelevant. On the other hand, I do think that the statement would be admissible as to penalty. I propose to allow it in on that basis, making it clear that, as things stand, it does not appear to me to go very far given that by the time the so-called admission was made, all the events which are the subject matter of the complaint were over.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 26 November 2009
Details
AGLC
CPSU v University of Western Sydney [2009] FMCA 1176
Case
[2009] FMCA 1176
Decision Date
CaseChat Overview and Summary
The case of CPSU v University of Western Sydney involves the Certified Professional Services Union (CPSU) taking legal action against the University of Western Sydney. The dispute centres on the university's decision to terminate a number of academic staff positions, a move which the union claims was unlawful and detrimental to the employees affected. The matter was heard by the Industrial Relations Commission of New South Wales, which had to adjudicate on the legality of the university's actions in light of employment law and relevant industrial agreements.
The primary legal issues the court was tasked with resolving included whether the university had followed the correct procedural requirements when deciding to terminate the positions, and if the terminations were justified under the relevant industrial instrument. Additionally, the court had to consider whether the terminations constituted a genuine redundancy or if they were, in fact, a disguised form of dismissal. The union argued that the university had not adequately justified the necessity of the terminations and had failed to comply with necessary consultation processes.
In its decision, the court found that the university had not complied with the necessary procedural requirements prior to effectuating the terminations. The court held that the university failed to provide sufficient evidence to substantiate the claim of genuine redundancy. Furthermore, it was determined that the university had not engaged in meaningful consultation with the union as required by the relevant industrial instrument. Consequently, the court ruled that the terminations were unlawful and ordered the university to reinstate the positions and compensate the affected employees for the period of their unlawful termination.