Dr F Tiver v University of South Australia

[2010] FWA 2086

[2010] FWA 2086

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Dr F Tiver
v
University of South Australia
(C2010/2998)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 12 MARCH 2010

Appeal against decision [2010] FWA 985 of Senior Deputy President O'Callaghan at Adelaide on 17 February 2010 in matter number C2009/103 - Stay application - order refused.

[1] This is an application for an order to stay the decision 1 of Senior Deputy President O’Callaghan of 17 February 2010, which determined a 17 July 2009 dispute application by the National Tertiary Education Industry Union (NTEU) in relation to disciplinary actions in respect of its member, Dr Tiver taken by the University of South Australia (the University). The application was made under s.739 of the Workplace Relations Act 1996 (the WR Act). The stay is sought pending determination of the appeal by a Full Bench. The dispute related to the application of clause 46 – Misconduct/Serious Misconduct – in the University of South Australia Academic and Professional Staff Collective Agreement 2006 (the Agreement).2

[2] The WR Act continues to apply to this appeal as a result of the application of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

[3] Senior Deputy President O’Callaghan found that:

“The University correspondence of 15 December 2009 provided additional material and information in support of the allegations set out in the 17 June 2009 letter. I consider this additional detail, together with the supporting documentation, meets the requirements of clause 46.5(b). On the basis of this material, Dr Tiver can be in no doubt about the allegations and the instances which gave rise to them such that she can fairly respond to them or, if necessary, found an application for a review by a Dispute Committee pursuant to clause 45.7 or 46.5(f).” 3

[4] Senior Deputy President O’Callaghan also recommended that, within the agreement disciplinary processes, Dr Tiver be given 10 days from the date of his decision to provide a response and, depending on their response and the University’s conclusions, the matter may then need to proceed to a Dispute Committee which should be properly formed in accordance with the Agreement.

[5] Under s.120(4) of the WR Act, where an appeal has been instituted, a Full Bench or Presidential Member may, on such terms and conditions as the Full Bench or Presidential Member considers appropriate, order that the operation of the whole or a part of the decision or act concerned be stayed pending the determination of the appeal or until further order of a Full Bench or Presidential Member.

[6] The conventional tests for the grant of a stay order are:

• Is there an arguable case for the granting of leave to appeal?



• Is there an arguable case to support the appeal itself?



• Does the balance of convenience favour the granting of the stay?

[7] The NTEU argued that Senior Deputy President O’Callaghan erred in the following respects:

• By exceeding jurisdiction in that Senior Deputy President O’Callaghan determined a dispute of a different nature from that which was before him. In this respect the NTEU contended that the dispute before Senior Deputy President O’Callaghan was whether sufficient particulars of allegations had been put to Dr Tiver, in a letter of 17 June 2009, to satisfy the requirements of clause 46.5(b) of the Agreement. Instead, the NTEU contended, Senior Deputy President O’Callaghan determined whether sufficient particulars of allegations had been put on the basis of a 15 December 2009 letter. The NTEU submitted that the dispute before Senior Deputy President O’Callaghan was whether the charges were put to Dr Tiver with sufficient particularity for the purposes of clause 46.5(b) of the Agreement at the time the dispute was referred to arbitration on 8 December 2009 and that Senior Deputy President O’Callaghan erred in considering the University’s correspondence after that time.



• In any case, Senior Deputy President O’Callaghan gave insufficient reasons for his finding that the 15 December 2009 letter provided sufficient particulars of the allegations against Dr Tiver and failed to consider written submissions of the NTEU filed on 27 January 2010.

[8] The NTEU submitted that the balance of convenience supported the making of a stay order because it appears Fair Work Australia proceeded as if it had not considered submissions of the NTEU and the University may proceed to a Disputes Committee in circumstances where the appeal at Fair Work Australia may have the effect of rendering invalid anything that occurs between now and the time of the hearing of the appeal.

[9] The University opposed a stay order arguing that no arguable case of error had been made out. It submitted that the directions issued by Senior Deputy President O’Callaghan on 9 December 2009, to facilitate the arbitration, squarely raised the 15 December 2009 additional material as being relevant to the question before him – whether sufficient particulars of allegations had been provided to Dr Tiver. It submitted that the approach of Senior Deputy President O’Callaghan was appropriate in the circumstances of the dispute, in that he was determining whether a procedural requirement to provide adequate details of charges had been provided to Dr Tiver within the broader context of the processes within clause 46 of the Agreement as a whole. The University rejected the contention that Senior Deputy President O’Callaghan had not considered submissions by the NTEU, arguing that he was correct to consider the documentation and to consider whether or not that contained sufficient details in accordance with the relevant clause under the Agreement, that being the dispute before him. In relation to the balance of convenience, the University submitted that it is entitled to the benefit of the decision under appeal and the delay in giving effect to the disciplinary processes pending the determination of the stay is not warranted.

Consideration

Arguable case as to leave to appeal and the appeal

[10] The NTEU’s written submissions of 11 January 2010 described the matter in dispute as follows:

“4. The issue is addressed in the Directions of Senior Deputy President O’Callaghan of 9 December 2009.

5. Paragraph 3 of those Directions describes the dispute. Implicit, however, in the five dot – pointed matters is the validity of the Notice of 17 June 2009. The NTEU asserts that FWA should declare that purported Notice invalid for reasons subsequently appearing.”

[11] The NTEU submitted in the supplementary submission of 27 January 2010 that “The matter to be arbitrated is described in paragraph (3) of the Directions” of Senior Deputy President O’Callaghan of 9 December 2009.

[12] Paragraph 3, of the 9 December 2009 Directions, describes the matters remaining in dispute in the same terms as described at paragraph 2 of Senior Deputy President O’Callaghan’s decision:

“The matters that remain in dispute are the extent to which:

• sufficient particulars of allegations have been put to Dr Tiver to satisfy the requirements of clause 46.5(b) of the Agreement;

• clause 46.5(b) is a prerequisite for the commencement of proceedings pursuant to clause 46.5(f);

• the University has properly made a decision to refer the allegations against Dr Tiver to a disputes committee;

• the NTEU is entitled to decline to participate in the constitution or the operation of the proposed disputes committee, and

• Fair Work Australia has the capacity to determine a dispute about the operation of a disputes committee pursuant to clause 45.6.”

[13] Senior Deputy President O’Callaghan also considered and determined an additional question “the extent to which the University was entitled to suspend Dr Tiver with pay” an issue arising in a conference of 22 January 2010 4 and addressed in the supplementary submissions of the NTEU of 27 January 2010.

[14] Whilst the NTEU argued that the question of whether sufficient particulars of the allegations had been put to Dr Tiver to satisfy the requirements of clause 46.5(b) of the Agreement was limited to the 17 June 2009 letter and could not be affected by the giving of further particulars, Senior Deputy President O’Callaghan was not obliged to accept that proposition. Senior Deputy President O’Callaghan was required to deal with a dispute about a matter dealt with in the agreement, as it appeared in the circumstances before him, and was not obliged to accept the NTEU characterisation of the dispute. Disputes about agreements, like “industrial disputes” historically found and determined by the predecessor bodies to Fair Work Australia are not necessarily fixed and “may be diminished or ended or enlarged or altered during . . . proceedings in the Commission or, for that matter, at any stage during the course of the dispute itself”. 5

[15] On the submissions advanced in the stay proceedings, I am not satisfied that the NTEU has established an arguable case that Senior Deputy President O’Callaghan erred in considering the terms of the 15 December 2009 letter from the University to Dr Tiver in deciding the question of whether sufficient particulars of allegations had been put to Dr Tiver to satisfy the requirements of clause 46.5(b) of the Agreement.

[16] Nor am I satisfied on the material put in the stay proceedings that an arguable case has been established that Senior Deputy President O’Callaghan failed to give reasons or failed to consider the supplementary submissions by the NTEU of 27 January 2010. Senior Deputy President O’Callaghan in his decision recorded a finding that the University correspondence of 15 December 2009 provided additional material and information, including supporting documentation, such that Dr Tiver could be in no doubt about the allegations and the instances which gave rise to them and could fairly respond to them. 6 In his decision, Senior Deputy President O’Callaghan noted that his decision takes into account all of the information provided to him7 and noted the 23 December 2009 correspondence of the NTEU.8 Further, Senior Deputy President O’Callaghan addressed the additional question “the extent to which the University was entitled to suspend Dr Tiver with pay”, an issue only addressed in the supplementary submissions of the NTEU of 27 January 2010. No reasonable basis was advanced to suggest that Senior Deputy President O’Callaghan did not consider the supplementary submissions of the NTEU of 27 January 2010.

[17] On the submissions advanced in the stay hearing, I am not satisfied that an arguable case as to leave to appeal and the appeal have been established.

[18] In that circumstance, it is not necessary to address the balance of convenience arguments.

[19] The application for a stay order is refused.

SENIOR DEPUTY PRESIDENT

Appearances:

P A Heywood-Smith QC for the Appellant.

B Duggan and R Blenkiron for the Respondent.

Hearing details:

2010.

Melbourne (Adelaide via video):

March 5.

 1  [2010] FWA 985.

 2 AC301539; CAUN06586300.

 3  [2010] FWA 985 at para 36.

 4  [2010] FWA 985 at para 21.

 5   Gaudron J (with whom Brennan, Dawson and Toohey JJ relevantly agreed) in Re Printing Kindred Industries Union Ex Parte Vista Paper Products Pty Ltd (1993) 113 ALR 421, citing Murphy J in Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [1984] HCA 9; (1984) 159 CLR 163, at p 168 HCA 81;. See United Firefighters’ Union of Australia and Metropolitan Fire and Emergency Services Board PR973884, at para 15, as to the applicability to a dispute notified pursuant to a dispute settlement procedure in a certified agreement.

 6  [2010] FWA 985 at para 36.

 7  [2010] FWA 985 at para 5.

 8  [2010] FWA 985 at para 19.

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