J v University of Newcastle

[2011] FWA 7615

[2011] FWA 7615

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739—Dispute resolution

J
v
University of Newcastle
(C2011/3787)

VICE PRESIDENT LAWLER MELBOURNE, 4 NOVEMBER 2011

Alleged dispute about any matters arising under the enterprise agreement - jurisdiction - extent of exclusion in dispute resolution procedure.

[1] On 31 October 2001 I heard an application for interim relief in relation to a dispute referred to Fair Work Australia (FWA) in accordance with the dispute resolution procedure in the University of Newcastle Academic Staff Enterprise Agreement 2010 1 (Agreement) and s.739 of the Fair Work Act 2009 (FW Act). At end of the hearing I announced my decision to refuse that application and gave an oral outline of reasons reserving the right to revise those reasons and publish them in writing. These are those revised and written reasons.

[2] The University has established a Committee of Inquiry under clause 49 of the Agreement to investigate allegations that the Applicant made fraudulent claims against research grant monies. The interim relief sought was a determination that would prevent that Committee of Inquiry from proceeding with hearings scheduled to commence on 1 November 2011 and continuing on 7, 8 and 17 November 2011.

[3] The Applicant denies any wrongdoing. The application for interim relief is based on a contention that there are a number of requirements with which the University and the Committee of Inquiry must comply under the terms of clause 49 of the Agreement that have not been complied with. It is on the basis of that non-compliance that Counsel for the Applicant submitted that interim relief ought be granted in the proper exercise of the discretion of the tribunal.

[4] The University’s answer is simple and is contained in clause 50.7 of the Agreement. Clause 50 contains the dispute resolution procedure in the Agreement and provides:

“50.0 DISPUTE RESOLUTION PROCEDURE

50.1 Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed.

50.2 A dispute arising under this clause will in the first instance be discussed by the staff member(s) and their supervisor in an effort to resolve the matter promptly. The staff member(s) may seek the assistance of the relevant Union or other support person (being a staff member) in which case the supervisor may also have a support person.

50.3 Where the steps in Clause 50.2 are unsuccessful, or where the Union raises a dispute, a representative of the relevant Union(s) and a representative of the University will discuss the dispute and attempt to reach an agreement.

50.4 Where the dispute is not resolved under Clause 50.3, at the request of either party a Disputes Committee will be convened within five (5) working days, unless agreed otherwise. The Disputes Committee will consist of two (2) nominees of the University and two (2) nominees of the Union.

50.5 If there is no resolution of the dispute the matter may be referred to Fair Work Australia, or to a person who is a member of the Industrial Relations Commission of New South Wales in accordance with S146B of the New South Wales Industrial Relations Act. In dealing with the dispute the relevant body may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make such dealing effective.

50.6 Should Fair Work Australia or the Industrial Relations Commission of New South Wales proceed with the matter, it will then:

(i) seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation and/or conciliation of the matter in dispute. If these options are unsuccessful, Fair Work Australia or the Commission may arbitrate the matter. The parties to the dispute may be represented by a person(s) of their choice;

(ii) make a recommendation to the parties to the dispute or, if the matter is arbitrated, make a determination. The parties to the dispute will consider any recommendation made. Any determination made will be binding on the parties, subject to a party to the dispute exercising a right of appeal under the Fair Work Act.

50.7 This dispute resolution procedure does not apply where the matter is being dealt with in accordance with the Inquiry Officer – Clause 48 or Committee of Inquiry – Clause 49 process.

50.8 Until the procedures in this clause have been exhausted, work will continue and no industrial action or any other action likely to exacerbate the dispute will be taken by any party to the dispute.”

(underline emphasis added)

[5] I made the assumption that I had power under s.589(1) of the FW Act to make an interim decision and I put to one side any considerations that arise of the sort that were considered by the Full Bench in CEPU v Telstra Corporation 2 because, in all the circumstances, I was not persuaded that I had jurisdiction to make the interim determination sought by the Applicant.

[6] Clauses 49 of the Agreement provides:

“49.0 COMMITTEE OF INQUIRY

49.1 A Committee of Inquiry may be initiated by a staff member writing to the appropriate Deputy Vice-Chancellor to request a review of a recommendation in relation to:

(i) Probation – Clause 7; or

(ii) Unsatisfactory Performance – Clause 10.

49.2 A Committee of Inquiry will also be initiated where required in accordance with the provisions of Misconduct/Serious Misconduct - Clause 11.

49.3 The Committee of Inquiry will comprise:

(i) a staff member employed and chosen by the University;

(ii) a staff member nominated by the relevant union;

(iii) an independent Chairperson.

49.4 Each appointee must satisfy the following criteria:

(i) be without conflict of interest;

(ii) have the capacity to undertake the inquiry within the context of the relevant University policies and procedures;

(iii) be able to apply the principles of procedural fairness.

49.5 The staff member and the University may be assisted before the Committee of Inquiry by a representative, should they choose.

49.6 The Committee of Inquiry will:

(i) provide an opportunity for the staff member to be interviewed and ensure that they have adequate opportunity to respond to any decision/review/report/allegation/recommendation;

(ii) take into account such further materials as the Committee believes appropriate to substantiate (or otherwise) any matters in dispute;

(iii) seek information and advice in relation to policy, practice and procedural matters;

(iv) interview any person it thinks fit, including the staff member concerned, to establish the process, facts and any mitigating circumstances relevant to the particular review/report/allegation/recommendation;

(v) conduct all interviews in the presence of the staff member and/or a representative as specified in Clause 49.4;

(vi) conduct proceedings as expeditiously as possible;

(vii) conduct proceedings in camera unless otherwise agreed;

(viii) ensure that the staff member, or where they choose their representative, and the University or its representative, have the right to ask questions of interviewees, to make submissions and present and challenge evidence, provided that where the committee so determines the staff member, but not their representative, may be excluded from the conduct of the proceedings;

(ix) determine whether an audio recording of the proceedings (but not the Committee’s deliberations) will be made. Where an audio recording is made, it will be available to the staff member and their representative on request.

49.7 Hearings of a Committee of Inquiry will be conducted within 4 weeks of applications being made to it unless the University and the staff member agree otherwise.

49.8 The Committee of Inquiry will provide a written report to the appropriate Deputy Vice-Chancellor and the staff member within 10 working days of the conclusion of proceedings. In its report the Committee may comment on the process, facts or any mitigating circumstances relevant to the case and may make recommendations to the Deputy Vice-Chancellor.

49.9 Having considered the Committee of Inquiry report, any determination of the appropriate Deputy Vice-Chancellor will be final.”

(underline emphasis added)

[7] Clause 11 provides:

“11.0 MISCONDUCT/SERIOUS MISCONDUCT

11.1 For the purpose of this clause:

11.1.1 “Misconduct” means conduct which is not serious misconduct but which is nonetheless conduct which is unsatisfactory.

11.1.2 “Serious Misconduct” means:

(i) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of a staff member’s duties or to a staff member’s colleagues carrying out their duties;

(ii) serious dereliction of the duties required of the staff member’s office;

(iii) conviction by a court of an offence which constitutes a serious impediment of the kind referred to in (i) above.

11.1.3 Serious misconduct shall include:

(i) wilful or deliberate behaviour by a staff member that is inconsistent with the continuation of the contract of employment;

(ii) conduct that causes serious and imminent risk to the health or safety of a person;

(iii) the staff member, in the course of the staff member’s employment, engaging in:

(a) serious theft; or

(b) fraud; or

(c) assault.

(iv) the staff member being intoxicated at work such that, the staff member’s faculties are, by reason of the staff member being under the influence of intoxicating liquor or a drug (except a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the staff member is unfit to be entrusted with the staff member’s duties or with any duty that the staff member may be called upon to perform;

(v) serious and/or repeated bullying or harassment, including sexual harassment.

11.2 Where a matter which may involve misconduct or serious misconduct has been dealt with as if it were a case of Unsatisfactory Performance - Clause 10, it cannot be dealt with under this clause.

11.3 Wherever possible, a staff member’s supervisor will attempt to resolve instances of possible misconduct through guidance, counselling and appropriate staff development or work allocation and/or formal written notification of the University’s expectations.

11.4 Any allegation of misconduct or serious misconduct will be considered by the appropriate Deputy Vice-Chancellor. If the Deputy Vice-Chancellor believes such allegations warrant further investigation they will:

(i) notify the staff member of the allegations in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegations and to properly consider and respond to them; and require the staff member to submit a written response within 10 working days unless, where required, the matter has been referred to an external body; or

(ii) where required, refer the matter to an external body with the appropriate jurisdiction to deal with the matter and in such cases, inform the staff member in writing at the time of such referral.

11.5 At any time after an allegation of misconduct/serious misconduct has been received by the appropriate Deputy Vice-Chancellor, the Deputy Vice-Chancellor may suspend the staff member on full pay, or may suspend the staff member without pay if the Deputy Vice-Chancellor is of the view that the alleged conduct amounts to serious misconduct such that it would be unreasonable to require the University to continue employment during a period of notice. Provided that:

(i) where the suspension without pay occurs at a time when the staff member is on paid leave of absence, the staff member will continue to receive salary for the period of leave of absence;

(ii) the staff member may engage in paid employment or draw on any annual leave or long service leave credits for the duration of the suspension without pay;

(iii) the Deputy Vice-Chancellor may at any time direct that salary be paid on the ground of hardship;

(iv) any lost salary and other entitlements will be reimbursed if it is ultimately determined that dismissal is not warranted.

11.6 During any period of suspension the staff member may be excluded from the University, provided that they shall be permitted reasonable access to the University for the preparation of their case and to collect personal property.

11.7 If the allegations are admitted in full by the staff member, or if the staff member has not responded to the allegations, and the appropriate Deputy Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, the Deputy Vice-Chancellor may decide to take disciplinary action and, if so, will advise the staff member in writing of the decision and the operative date of the disciplinary action.

11.8 If the allegation is denied in part or in full, the appropriate Deputy Vice-Chancellor will refer the matter to a Committee of Inquiry under Clause 49, unless they decide to take no further action, or may counsel or censure the staff member for unsatisfactory behaviour and take no other action.

11.9 Any Committee of Inquiry report or findings of an external body in accordance with Clause 11.4 (ii) will be considered by the Deputy Vice-Chancellor, who will determine:

(i) there is no misconduct/serious misconduct and take appropriate action; or

(ii) to counsel or censure the staff member; or

(iii) that misconduct/serious misconduct has occurred and advise the staff member of the disciplinary action to be taken in accordance with Disciplinary Action - Clause 12.”

(underline emphasis added)

[8] Clause 12 specifies a range of disciplinary sanctions that may be imposed for misconduct/serious misconduct established pursuant to clause 11 (and any Committee of Inquiry process to which the matter is referred pursuant to clause 11.8).

[9] The construction question turns on the meaning of the expression “the matter” in clause 50.7 and whether it should be construed narrowly as referring only to the allegations against a university staff member or more broadly as referring to “the matter” in the sense of including the whole process under clause 49 in relation to allegations against a staff member. Counsel for the Applicant contended that the expression “the matter” in clause 50.7 was confined to the allegations of misconduct the subject of the Committee of Inquiry’s investigation. Counsel for the University submitted that “the matter” refers to the whole process being conducted pursuant to clause 49 in relation to a particular set of allegations.

[10] Neither of the parties sought to call any extrinsic evidence in relation to that construction question. In my view, when one considers the language of clause 50 in the context of the Agreement as a whole (including, in particular, clauses 11 and 12) and in accordance with the principles for the construction of industrial instruments that are laid down in cases like Kucks v CSR Ltd 3 and Short v FW Hercus Pty Ltd4, I am compelled to the conclusion that, objectively determined, clause 50.7 was intended to prevent any dispute being raised under clause 50 in relation to an Inquiry Officer process or Committee of Inquiry process while such process was being conducted and thus intended to prevent an application of the present sort. The exclusion in clause 50.7 operates where the matter “is being dealt with” in accordance with “the ... Committee of Inquiry - Clause 49 process”. The use of the present tense is significant.

[11] This is not to say that there is no remedy for a staff member who is aggrieved by an alleged failure by an Inquiry Officer to conduct him or herself in accordance with the requirements of clause 48 or by an alleged failure by a Committee of Inquiry to conduct itself in accordance with the requirements of clause 49. I note that where a Committee of Inquiry has been established, the process in clause 49 does not result in anything other than a report to the Deputy Vice-Chancellor, possibly with comments or recommendations. The Committee of Inquiry itself has no power to impose a disciplinary sanction on the staff member who is the subject of the allegations that the Committee is required to investigate and report upon. It is clear from clause 12 that once the Deputy Vice-Chancellor is seized of the Committee of Inquiry’s report, he or she may then decide to impose a disciplinary sanction. At that point, any decision of the Deputy Vice-Chancellor under clause 12 is clearly amenable to dispute under the dispute resolution procedure in the Agreement. If the sanction decided upon by the Deputy Vice-Chancellor was termination, the staff member would also be entitled to apply for an unfair dismissal remedy under the FW Act. A failure by the University or the Committee of Inquiry to comply with the requirements of clause 49 may provide a sound basis for successfully challenging such a sanction decision made by the Deputy Vice-Chancellor under clause 12. An aggrieved staff member would also be entitled to seek to enforce the terms of clause 49 in an appropriate court (where the court would not be constrained by clause 50.7).

[12] For those reasons I was unable to conclude that the correct construction was to interpret the expression “the matter” in clause 50.7 in the narrow way for which Counsel for the Applicant contended. Rather, I was satisfied that the intent of subclause 50.7, objectively determined, is to exempt the whole of the clause 48 and clause 49 processes in relation a “matter” from the dispute resolution procedure and, for that reason, the application for interim relief was rejected.

VICE PRESIDENT

Appearances:

T Slevin of Counsel for the Applicant.

RS Warren of Counsel for the University of Newcastle.

Hearing details:

2011.
Melbourne and Sydney (video hearing):
October 31.

 1   AE883720

 2 (2003) 128 IR 385

 3 (1996) 66 IR 182

 4 (1993) 46 IR 128

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