National Tertiary Education Industry Union v Griffith University
[2019] FWC 3488
•24 SEPTEMBER 2019
| [2019] FWC 3488 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Tertiary Education Industry Union
v
Griffith University
(C2019/1936)
COMMISSIONER BOOTH | BRISBANE, 24 SEPTEMBER 2019 |
Alleged dispute about any matters arising under the enterprise agreement; interpretation of disciplinary clauses; intellectual and academic freedom clause.
[1] This decision follows an application made under s.739 of the Fair Work Act 2009 (the Act) on behalf of Dr Campbell Fraser by the National Tertiary Education Industry Union (NTEU/the Applicant). Dr Fraser is a Senior Lecturer at Griffith University (the Employer). The parties are bound by the Griffith University Academic Staff Enterprise Agreement 2017 – 2021 (the Agreement).
[2] Dr Fraser holds a full-time academic position within the Department of International Business and Asian Studies, which is part of the Griffith Business School. Dr Fraser’s research expertise includes issues around human organ trafficking. In 2014, Dr Fraser received University approval for a project entitled “A Study of the Effectiveness of the Declaration of Istanbul in Combating Human Organ Trafficking 2008 -2014” (the project). The dispute is at least in part about whether Dr Fraser’s interviews and conduct were consistent with his ethical research approval.
[3] The NTEU asserts that the University, in investigating the allegations, breached a number of clauses of the Agreement. The University denies any breaches of the Agreement.
[4] The parties are also in dispute about whether the University complied with its obligations under the Intellectual and Academic Freedom clause of the Agreement.
The Dispute
2016 - University raises “issues of concern”
[5] The NTEU says the dispute is about the Employer’s investigation, beginning in August 2016, when allegations about Dr Fraser’s conduct were first raised. It asserts there has been an on-going investigation since August 2016, and that the Employer has not complied with requirements of the Agreement regarding investigations.
[6] Dr Fraser particularly complained that he was not, at that time, provided with a copy of any written notice of concern. Dr Fraser was of the view that the complaints arose from a meeting between Falun Dafa (known also as Falun Gong) members and Dr Fraser.
[7] While the University acknowledges that some concerns were raised in August 2016, they did not form part of any formal investigation. The outcome of an enquiry into the concerns raised with the University at that time was that Dr Fraser had no case to answer. Additionally, on the same day he was advised there was no case to answer, Dr Fraser’s ethics approval for the project was extended for a further two years.
[8] Dr Fraser submitted throughout this time he kept the University cognisant of his activities.
[9] On 13 July 2017, Dr Fraser was notified by Professor David Grant, Pro Vice Chancellor (Business) at the Employer, 1 that the Employer had received a formal complaint from an unnamed member of the public in relation to Dr Fraser’s conduct in January 2016 in undertaking research. Professor Grant invited Dr Fraser to provide a response, which Dr Fraser did the same day. Dr Fraser replied “I am forwarding my response from when exactly the same complaint was made a year ago by the same person”.2
[10] On 21 August 2017, Professor Grant wrote to the Applicant finding the claims against him unsubstantiated. Notwithstanding that finding, Professor Grant sought a further meeting with Dr Fraser.
[11] In January 2018, Professor Grant wrote in relation to Dr Fraser’s representation as a Griffith University academic in the public domain, noting the University had ongoing concerns. The letter points to an agreement that Dr Fraser would restrict his commentary to areas of his expertise and not comment on Falun Gong, and that public declarations concerning Falun Gong should be done as a private citizen. 3
Preliminary investigation into apparent breaches of Australian Code of Responsible Conduct of Research
[12] On 1 May 2018, Dr Fraser received an email from Professor Andrea Bishop, Director, Office of Research stating that Dr Fraser had engaged in research interviews over a period of time that appeared to be outside his ethical research approval in the area of human organ trafficking. The letter stated that the original enquiries were incomplete and new concerns about Dr Fraser’s research conduct required the matter to be reopened.
[13] Professor Bishop also advised Dr Fraser that a preliminary investigation of alleged breaches of the Australian Code for the Responsible Conduct of Research (the Code) had been commenced.
[14] On 26 June 2018, Dr Fraser was informed that a Panel had been established to investigate his conduct and would be meeting on 6 August 2018.
[15] Dr Fraser became ill in July 2018 and remained on leave until February 2019. The Panel was not reconvened until Dr Fraser returned from leave.
[16] The NTEU also became involved in the matter on behalf of Dr Fraser in early June 2018 and began corresponding with the Employer regarding the research misconduct inquiry and Panel.
[17] The NTEU were advised on 5 March 2019 that the Employer intended to reconvene the Panel for 28 March 2019. This prompted the NTEU to file this dispute application on Dr Fraser’s behalf and seek interim orders staying the reconvening of the Panel.
[18] Interim orders were sought by the NTEU on 11 April 2019. Orders were issued in the terms sought by the NTEU following that hearing which, among other things, ordered the Employer to delay in convening its Institutional Research Misconduct Inquiry in respect of Dr Fraser until after a decision was issued regarding the substantive dispute application.
[19] The matter was then the subject of further discussions with a view to resolving the dispute. These discussions did not resolve the dispute and the NTEU sought to have the matter arbitrated.
[20] Ms Noeline Rudland appeared for the NTEU in this hearing. Ms Bianca Rance of the Australian Higher Education Industrial Association and Mr Ashton Welch from Griffith University appeared for the Employer.
Does the Commission have jurisdiction to deal with the dispute?
[21] Section 739 of the Act provides what the Commission can and cannot do in dealing with disputes under the terms of an Enterprise Agreement.
The legislation
[22] Section 739 provides as follows:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
[23] Section 595 of the Act details the Commission’s power to deal with disputes. Section 595, subsection (1) provides the Commission may only deal with a dispute if it is expressly authorised to do so under the Act. For the purposes of s.595(1), s.739(1) expressly authorises the Commission to deal with disputes. 4
Terms of the Enterprise Agreement
[24] Clause 15 of the Agreement is the Disputes Avoidance and Settlement Procedures. This clause is attached at Appendix A.
[25] The NTEU submits that the relevant clauses from the Agreement are:
• Clause 10 – particularly 10.2.11 – Misconduct; 10.2.15 - Procedural Fairness and 10.2.16 Serious Misconduct, and
• Clause 40 – Dealing with Misconduct or Serious Misconduct; and
• Clause 47 – Intellectual and Academic Freedom of the Agreement.
• clauses are attached at Appendix B)
[26] The NTEU submits that the Employer failed to comply with clauses 10, 40 and 47.
[27] The Employer submits its process for investigating the complaint was in accordance with the Agreement.
Submissions of the Applicant
[28] The Applicant submits that the Employer has not complied with clauses 40 and 47 of the Agreement in its investigation into the anonymous complaints it received about Dr Fraser.
[29] The Applicant submits that the dispute first arose under the Griffith University Academic Staff Enterprise Agreement 2012-2016 (“previous Agreement”), which was superseded on 25 September 2018. There are differences between the two Agreements in relation to the provisions for dealing with allegations of research misconduct.
[30] The previous Agreement required that any allegation of misconduct or serious misconduct be dealt with in accordance with the provisions of clause 40 of the previous Agreement. Serious Misconduct included research misconduct in accordance with clause 4.2.12.
[31] The Applicant submits that the investigations of the alleged research misconduct were conducted in three separate investigations over a period from (on or about) 16 August 2016 until 24 September 2018.
[32] The Applicant says further that the investigations were conducted contrary to clause 40 of the previous Agreement because:
a) The investigations spanned a period of over 2 years, not the 15 days stipulated in the previous Agreement;
b) The Union was not consulted at any time regarding the appointment of investigators;
c) The 3 investigations covered the same set of facts each time, where no section of the previous Agreement provided for three different investigative processes into the same set of facts; and
d) Relevant information and documents were withheld from Dr Fraser throughout each investigation.
[33] The Applicant submits that the current Agreement also requires that any allegation of misconduct or serious misconduct be dealt with in accordance with the provisions of clause 40. Clause 40(d) requires procedural fairness to be afforded “at all times” to an employee against whom allegations of misconduct or serious misconduct are made.
[34] Like the previous Agreement, research misconduct is included within the definition of serious misconduct under clause 10.
[35] The Applicant submits that the Employer did not provide procedural fairness to Dr Fraser through each investigation process as it did not provide him with the written complaints.
[36] The Applicant directed the Commission’s attention to clause 40.1.2 which provides that where an assertion of serious misconduct is made, the Director, HR will consider whether the assertion warrants formal action under the procedures of clause 40, and the Director, HR may conduct or initiate a preliminary investigation within a reasonable timeframe from the appointment of the investigator.
[37] The Applicant submits that the Employer failed to act as required by this clause and is therefore in breach of its obligations under the Agreement.
[38] A further breach of clause 40 is alleged to have occurred because the Employer failed to maintain confidentiality. The Applicant refers variously to correspondence made public by the Falun Dafa Association of Australia and by journalists from News Limited in relation to the University’s inquiry into Dr Fraser.
[39] The Applicant also submits that Dr Fraser’s intellectual and academic freedom, protected by clause 47 in each Agreement, has been breached by the University.
[40] The Applicant refers to AMIEU v Golden Cockerel Pty Ltd 5 and AMWU v Berri Pty Ltd6 regarding the principles for the interpretation of Enterprise Agreements. The Applicant submits that Golden Cockerel establishes the correct approach to resolving ambiguity while Berri explains more fundamental issues, such as how to identify common intention and how the nature of an Agreement impacts upon common intention.
[41] The Applicant submits that clause 40(a) of the Agreement requires any assertion or allegation of misconduct or serious misconduct to be dealt with in accordance with clause 40 and the Employer’s policies and procedures, and that the Agreement takes precedence over any policy or procedure of the Employer.
[42] The Applicant’s view is that the Agreement is specific in the process required when assertions or allegations are made, and that clause 40(d) makes it clear that procedural fairness is to be afforded at all times, including in any investigation, when allegations of misconduct or serious misconduct are raised.
[43] The Applicant says that Dr Fraser was not afforded procedural fairness in that he was not informed of the case against him prior to a decision being made, and that he was not provided with all material to be used in the decision-making process (referring to clause 10.2.15(1)): Dr Fraser was not been provided with the written complaints made against him, or particulars of the complaints, prior to 25 September 2018 when the previous Agreement was superseded.
[44] The Applicant refutes any submission by the Employer that Dr Fraser had been informed of the complaints against him. The Applicant says that a review of communications filed in the Commission shows that he was not so informed.
Witness evidence – Dr Campbell Fraser
[45] Dr Fraser provided a witness statement in these proceedings. 7 He was not required for cross-examination.
[46] His evidence is that in 2002, he was diagnosed with chronic end stage renal failure and papillary renal cell carcinoma. He states that he received a kidney transplant in September 2003. Subsequent to his transplant, he became aware of the issues surrounding shortage of organs available for transplant in Australia, including the selling of organs on the black market in countries including Pakistan, India, China and the Philippines. 8 Due to his interest in these issues, his evidence is that he received invitations to speak as a recipient at transplant events throughout the world, which lead to him developing partnerships with human trafficking academics, “in a private citizen capacity”.9
[47] Dr Fraser gives evidence that he developed a reputation in the area of transplantation and organ donation activism; hence he sought to develop a research profile.
[48] Dr Fraser’s evidence is that in 2014, he received ethical clearance for his teaching, research and publications to relate to organ harvesting and trafficking. He states that he has been transparent and open with his Employer about his work in this area and that he has email correspondence to support his applying for and obtaining ethical clearance, including correspondence with Professor Jayne Clapton, Chair of the Employer’s Ethics Committee. 10
[49] Dr Fraser states that he met with Professor Wendy Rogers, an academic from Macquarie University, in November 2015, and that she expressed a desire to work as co-researcher with him and to be named on his ethical clearance. 11 His evidence is that Professor Rogers told him about a group that regularly met at Parliament House in Sydney, and that some of the attendees would be Falun Gong practitioners. His evidence is that he and Professor Rogers “discussed the possibility of [him] addressing a meeting to talk about [his] research”.12
[50] Dr Fraser gives evidence that, subsequent to this discussion, he received an invitation to speak at an event at the New South Wales Parliament House in January 2016, where he intended to meet with individuals for an “exploratory discussion”, which he states was not to be a “data-collection exercise”. 13
[51] Dr Fraser states that he received an email from Mr Rick Williams, Manager, Research Ethics and Integrity, Office of Research at the University, in August 2016 which provided as follows:
“Dr Fraser,
I am Griffith University’s nominated contact for all concerns and complaints related to the ethical conduct of research.
I have received a written notice of concern in regard to the ethical conduct of research under the approved human ethics protocol “A Study of the Effectiveness of the Declaration of Istanbul in Combatting Human Organ Trafficking 2008-2014”…
The notice of concern provides supporting information indicating that people have been recruited as participants and interviewed and their comments form part of the research data collection for this protocol.”
[52] Dr Fraser’s evidence is that he has never been provided a copy of the notice of concern. 14
[53] His evidence is that he was advised by Mr Williams in that same month that he was satisfied there was no case to answer. Further, he was advised that his ethics approval had been extended a further two years.
[54] Dr Fraser maintains that where documents were requested from him, they were provided, and further that he kept his academic supervisor and the Dean informed of his activities. He states that he was supported and encouraged by the Employer in his research and work, including instances of publicity.
[55] However, his evidence is that in July 2017, he received an email from Professor Grant regarding a complaint received from a member of the public. Dr Fraser states that he provided response and further information to Professor Grant, and that the Professor subsequently stated he had “found that the claims made by the complainant to be unsubstantiated”. 15
[56] In November 2017, an Agreement was reached between Professor Grant and Dr Fraser, that Dr Fraser would remove all media links, publications and biographic data from his public Griffith profile and the Griffith Experts page. 16 Dr Fraser gives evidence that he received a letter from Professor Grant in January 2018, “alleging and finding” that he had engaged in activity which was contrary to that Agreement reached in November 2017.
[57] Dr Fraser’s evidence is that in May 2018, a number of correspondences were exchanged between Dr Fraser and Professor Bishop, including the letter from Professor Pankhurst.
Pankhurst Letter
[58] A copy of Professor Pankhurst’s letter was annexed to Dr Fraser’s statement. It outlines that following Professor Pankhurst’s request, Professor Bishop conducted a preliminary investigation of apparent breaches of the Code. The letter indicated the potential breaches related to:
• interviews conducted in January 2016 and a lack of clarity regarding whether misrepresentation occurred in order to obtain access to a vulnerable group; and
• conduct of research interviews and related research activities over an extended period of time allegedly without appropriate ethical approval is in place.
[59] The letter acknowledged Dr Fraser’s response.
[60] Professor Pankhurst concluded in the letter that on the basis of the preliminary investigation, it appears that there is a prima facie case for research misconduct, and that he was establishing a panel to conduct an internal institutional research misconduct inquiry. 17 (emphasis added)
[61] Dr Fraser’s evidence is that in June 2018, 18 he was asked to give evidence before a Parliamentary Inquiry into Human Trafficking in Canberra, and at that inquiry representatives of Falun Gong gave evidence that:
“a) claimed the support of the University and referenced and table a letter received from Professor Pankhurst (SDVC);
b) I was under investigation by the University;
c) gave detailed information about the meetings I had attended in January 2016;
d) made substantial accusations regarding the work I perform with the World Health Organisation and the Pontifical Academy of Sciences…” 19
[62] Dr Fraser was advised that a panel had been established to meet on 6 August 2018. Dr Fraser became ill, and on his return, the process recommenced.
[63] In submissions before the Commission, Ms Rudland noted that the Griffith University website currently lists numerous publications by Dr Fraser dealing with various aspects of human organ trafficking and contains a published article about his work. 20
Submissions of the Employer
[64] The Employer submits that the relief sought by the Applicant appears to go further than the procedural matters dealt with by clauses 40 and 47 of the Agreement, and in effect the Applicant is seeking to have the investigation ceased.
[65] In the Employer’s submission, the dispute must be focused on whether or not it has complied with the Agreement.
Clause 40 of the Agreement
[66] The Employer submits that clause 40 of the Agreement provides that allegations of misconduct will be managed in accordance with the clause “and the University’s policies and procedures” (Employer’s emphasis). The Employer submits that it has a Responsible Conduct of Research Policy (the Research Policy) which outlines the process when there is a “complaint alleging a breach of the National Health and Medical Research Council, Australian Research Council, and Universities Australia’s Australian Code for the Responsible Conduct of Research (which may or may not also constitute Research Misconduct)”. 21 The Employer submits that clause 40(a) enables it to undertake the process as set out in the Research Policy, prior to allegations being referred to the Director, HR in accordance with clause 40.1.1.
[67] The Employer submits that the matter has not yet been referred to the Director, HR.
[68] The Employer disputes any breach of clause 40.7.1 (requiring confidentiality about investigations and inquiries), as no allegations of misconduct have been referred to the Director, HR in accordance with clause 40.1.1.
[69] Further, while the Applicant alleges failure to afford procedural fairness in breach of clause 10.2.15, the Employer submits that the procedures in the Research Policy and the Agreement satisfy the requirements of procedural fairness.
Research investigation process
[70] The Employer submits that it is open to the University’s Office of Research, which is responsible (among other things) for research ethics and integrity, to determine whether it is appropriate for a complaint to be referred to the Director, HR. The Employer submits that, in accordance with the Research Code, if the Employer’s panel (established consistent with the Code) concludes that there are allegations of misconduct that should be referred to the Director, HR for consideration, then this will occur.
[71] However, the Employer submits that it has not completed the threshold investigation as provided for in the Research Code, and therefore it has not progressed to the stage as outlined above.
[72] The Employer submits that it will use the Research Code investigation to determine if the relevant complaint warrants referral to the Director, HR. It submits that if it is found not to warrant a referral, Dr Fraser will be informed accordingly; and, in the instance that the complaints are found to warrant referral, such will be referred to the Director HR, and clause 40.1.1 of the Agreement will be enlivened accordingly.
The complaints
[73] The Employer submits that its present activities are the first formal investigation into Dr Fraser’s research, and the investigation is based on the provision of evidence “that has not previously been available”. 22 It submits that the evidence currently before the Employer was not made available to the Employer until 1 May 2018, and that accordingly Professor Pankhurst proceeded to establish the Panel on 29 May 2018.
[74] As to any breach of clause 47 of the Agreement, the Employer submits that it is open to the Applicant to justify his actions the subject of the complaint on the basis that those actions “constitute his exercise of Intellectual or Academic Freedom”. 23 The Employer submits that the Applicant can put such an argument to the Panel.
[75] The Employer submits that it has acted appropriately in dealing with the matter, having regard to the information available to it.
The current dispute before the Commission
[76] The Employer submits that the relief sought by the Applicant extends beyond what is available through the dispute process under the Agreement. Further, it submits that the materials filed by the Applicant extend beyond a dispute about the process and “shift into a determination of the validity of the concerns and the outcome of any investigation process”. 24
[77] The Employer submits that the Commission should restrict the matter to dealing with the dispute and whether the Employer has misinterpreted, misapplied, or incorrectly implemented clauses 40 and 47 of the Agreement, and not make any determination as to the merits of the complaint.
[78] The Employer submits that it seeks confirmation from the Commission that it has engaged in and followed the appropriate process.
Witness evidence – Professor Andrea Bishop
[79] Professor Bishop, Acting Deputy Vice Chancellor (Research), provided a witness statement in these proceedings. 25 Professor Bishop’s substantive position is as the Pro Vice-Chancellor Research, and she previously held the role of Director, Office of Research.
[80] Professor Bishop’s evidence is that further to the introduction of the Code in 2007, the Employer developed the Griffith University Code for the Responsible Conduct of Research (the University Code), which was approved in November 2015. Professor Bishop states that, in accordance with the University Code, the Employer must comply with the procedures outlined in the Code, to investigate any potential breaches of the Code.
[81] While Professor Bishop notes that the 2007 Code has been replaced by the Australian Code for the Responsible Conduct of Research, 2018 (the 2018 Code), this is only required to be fully implemented by Universities by July 2019, and further any ongoing investigations should follow “existing institutional policies”. 26 She states, accordingly, the Code established in 2007 is relevantly required to be followed in the dealing of the allegations against Dr Fraser.27
[82] Professor Bishop’s evidence is that the Code sets out the framework for establishing inquiries to determine whether or not research misconduct has occurred. She states that, in accordance with the Code, research misconduct is described as a serious breach warranting a formal investigation. She states that if the “formal inquiry panel” forms a view that research misconduct may have taken place, the matter will then be referred to the Director, HR for investigation under the Agreement.
[83] Professor Bishop states that university research is highly specialised and complex, therefore the formal inquiry is an academically-led process guided by the Code, “drawing upon the expertise of specialists in closely related fields and with expertise in the applied methodologies, to provide an expert view about the conduct of research”. 28
[84] Her evidence is that a determination of whether or not a breach of the Code or research misconduct has occurred is the necessary first step “before” (Professor Bishop’s emphasis) any referral to the Director, HR for investigation under the Agreement.
[85] As to the allegations against Dr Fraser, Professor Bishop gives evidence that two previous initial inquiries concluded that the allegations against Dr Fraser of a breach of the Code were not substantiated. However, she says that further evidence was then received which resulted in a “new initial inquiry” follow by a “formal inquiry in line with the Policy and the 2007 Code”. 29
[86] Professor Bishop gives evidence that Dr Fraser was informed of the need to proceed with a formal inquiry, and that the process is awaiting the outcomes of the Commission before progressing. 30
Consideration
Preliminary matters
[87] This dispute was lodged in March 2019 under the Griffith University Academic Staff Enterprise Agreement 2017–2021. The Applicant made submissions about the previous Agreement to provide what the Applicant has referred as “context” to the dispute. No dispute was lodged under the previous Agreement.
[88] Notwithstanding the history and context of the matters raised in the dispute, the Applicant, properly in my view, pursues the dispute in accordance with the current Agreement, noting there are no savings provisions in it for matters that commenced under the previous Agreement. The University similarly seeks that the Commission deal with a dispute under the current Agreement.
The Dispute
[89] The Applicant seeks relief, in broad terms, that the University has breached clauses 10, 40 and 47 of the Agreement. It seeks findings from the Commission that the University:
a) failed to afford Dr Fraser procedural fairness as required and defined in clause 10;
b) has not dealt with the assertions and/or allegations against Dr Fraser in accordance with the requirements in clause 40;
c) has engaged in conduct that breaches Dr Fraser’s intellectual and academic freedom rights. Clause 47 identifies employees’ rights in this regard.
[90] In the event the Commission finds such breaches, the Applicant seeks orders that the University:
a) immediately cease investigation into allegations of research misconduct and not convene the Research Misconduct Investigation Panel;
b) withdraw allegations, however described, of research misconduct against Dr Fraser;
c) take no further action in relation to the allegations of research misconduct;
d) ceases communication with third parties as to Dr Fraser’s academic and research standing;
e) makes a public statement, agreed to by the Applicant, that Dr Fraser is not subject to research or academic misconduct investigations and previous allegations have been substantiated;
f) any other order the Commission deems appropriate.
[91] The University submits that the orders sought are beyond the relief available through the dispute process and amount to the Applicant seeking to have the disciplinary investigation ceased entirely.
[92] In final submissions for Dr Fraser, Ms Rudland explained further what the Applicant seeks, if the Commission was to agree with the Applicant’s interpretation of clause 40: that is, orders that the University cannot proceed with the Misconduct Investigation Panel in the way they are, and if the University wishes to pursue this matter, that the University start again and go through the process properly. 31
[93] In response, Ms Rance noted as follows. While the University is of the view that it is not yet at the point where it should refer a matter to the Director of HR for investigation in accordance with clause 40, should the Commission determine that the University has not correctly applied clause 40(a), the University supports the orders put forward by Ms Rudland for re-commencement of the process. 32
Has the University afforded Dr Fraser procedural fairness as required and defined in clause 10.2.15?
[94] The Applicant submits Dr Fraser was not afforded procedural fairness in accordance with clause 10.2.15. The procedural fairness clause was negotiated and included in the Agreement for the first time in the current Agreement.
[95] The Applicant particularly complains that he has never been provided with a copy of the written complaints against him nor any particulars.
[96] In response, the University submits it has not sought to actively bypass the Agreement or any procedural fairness provisions for Dr Fraser. The University submits that it has been very clear in setting out the process it was going to follow, and providing Dr Fraser with appropriate evidence and time to respond. Further, it has followed the procedures in the Agreement and has satisfied the requirements of procedural fairness.
[97] As to the documentation provided in response to the allegation of Dr Fraser not having been provided with the written complaints nor details, the University relies on:
• correspondence to Dr Fraser including the letter of 1 May 2018; and
• the Professor Pankhurst letter.
[98] Additionally, following a conference at the Commission (convened subsequent to the lodgement of this dispute), the University agreed to provide Dr Fraser with further details. This occurred on 2 April 2019.
[99] In deciding whether there has been compliance with the requirements of procedural fairness as provided for under the Agreement, the two questions to be considered are:
1. Does clause 10.2.15 Procedural Fairness of the Agreement apply: and
2. If it does apply, what is required to ensure compliance with the clause?
[100] Clause 10.2.15 states that the procedural fairness clause is triggered “where an employee whose conduct and/or performance is in question”.
[101] The trigger for the clause is where the University questions an employee’s conduct. There is no requirement, for example, for a finding of misconduct: 33 it will apply when the University questions an employee’s conduct.
[102] The letter of 1 May 2018 from Professor Bishop includes allegations that, over a period of time, Dr Fraser engaged in research interviews which appeared to be outside the ethical research approval. This letter questions Dr Fraser’s conduct. It is clearly “conduct that is questioned by the University”. Having questioned Dr Fraser’s conduct, on 1 May 2018, clause 10.2.15 should have been complied with.
[103] For completeness, it may be that the earlier investigations from 2016 and 2017 similarly trigger the procedural fairness clause. My observation is because clause 10.2.15 does not differentiate between ‘formal’ and ‘informal’ investigations, but applies when the University questions an employee’s conduct. However, given that the earlier allegations were not substantiated, I see little benefit in revisiting these investigations.
What then is required to ensure compliance with clause 10.2.15?
[104] Clause in 10.2.15 sets out certain requirements of procedural fairness, but it does not require the University to provide Dr Fraser all material in its possession. To comply, the University should provide Dr Fraser with all material used in the decision-making process. 34 (my emphasis)
[105] At least prior to lodging this dispute, the University did not provide Dr Fraser with all the material used in the decision-making process. This is certainly the case up to the provision of material on 2 April 2019, when, after the dispute was lodged, the University agreed to provide further details.
[106] As to the material provided on 2 April 2019, clause 10.2.15(1)(b) requires that the employee be provided with all material to be used in the decision-making process. While unnecessary to decide for the purposes of resolving this dispute, the letter of 2 April 2019 should now be reviewed to ensure that it complies with this provision.
[107] The provision of the significantly more detailed letter following dispute notification at the Commission does not address what should have happened in May 2018. In other words, it does not change the failure to provide procedural fairness, as provided for under the Agreement, into a procedurally fair process. This is because it needed to happen in a timely way. The failure to provide the necessary material at the relevant time was (and remains) a breach of the University’s obligation of procedural fairness under the Agreement.
[108] Clause 10.2.15(4) provides an entitlement to representation by a nominated representative at any meeting. Refusal by the University to allow Dr Fraser to be represented is also a breach of the clause.
[109] I find that the University has breached clause 10.2.15 by failing to provide Dr Fraser with procedural fairness as required and defined in that clause, by not providing material in a timely way and by refusing his representation.
Has the University dealt with the assertions and/or allegations against Dr Fraser in accordance with the requirements established in clause 40?
[110] The parties agree that to resolve this dispute, the Commission must decide on the interpretation, application or implementation of clause 40 as it applies to allegations made about Dr Fraser.
[111] In particular, the parties agree that the matters to be decided about clause 40 are as follows.
How should clause 40 be interpreted and are there facts in this matter that trigger the application of clause 40?
[112] Clause 40 is included in Part 7 - Disciplinary and Other Matters in the Agreement. The clause heading is: Clause 40 - Dealing with Misconduct or Serious Misconduct.
[113] Clause 40(a) provides that “allegations and assertions of misconduct or serious misconduct will be managed in accordance with this Clause and the University’s policies and procedures as amended from time to time”. (my emphasis)
[114] Both misconduct and serious misconduct are defined in the Agreement. Serious misconduct, in clause 10.2.16, includes where an employee in the course of their employment engages in “research misconduct”.
[115] It is the Applicant’s case, simply put, that at least the finding by Professor Pankhurst on 18 May 2018, that there appears to be a prima facie case for research misconduct, means that clause 40 applies. Additionally, the Applicant seeks an interpretation that the Agreement takes precedence over the University policy.
[116] The University relies on the Agreement also, but seeks a different interpretation. It says clause 40(a) provides that allegations of misconduct will be managed in accordance with the clause “and the University’s policies and procedures”. It is the University’s submission that clause 40(a) enables it to undertake the process as set out in the research policies prior to allegations being referred to the Director of HR, which is required under clause 40.1.1.
[117] The Applicant submits that the Agreement is specific in the process that is required to be undertaken when assertions or allegations are made. Further, the Agreement provisions are enforceable.
[118] Ms Rudland brought to the Commission’s attention the decision in Berri, where the Full Bench, reviewing other binding decisions, suggests that the beginning point in interpreting Enterprise Agreements is the Agreement’s ordinary meaning:
“The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU, Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’. Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’”. 35
(citations omitted)
[119] What then is the ordinary meaning of clause 40(a) which provides that “Allegations and assertions of misconduct or serious misconduct will be managed in accordance with this clause and the University’s policies and procedures as amended from time to time”?
[120] Its ordinary meaning is that an assertion or an allegation of serious misconduct about an employee will trigger a process established under clause 40.
[121] Once there is such an allegation, how is it to be dealt with?
[122] The language in the Agreement is clear: where there is an allegation or an assertion of serious misconduct then it is managed in accordance with clause 40 (Dealing with Misconduct or Serious Misconduct) and the University’s policies and procedures.
[123] Managing the investigation is to be in accordance with the requirements of clause 40 and the University’s policies and procedures. Clause 40.1 details certain steps that must be taken where there is an assertion of misconduct or serious misconduct. The Applicant points to the requirement to refer to the Director, HR, submitting that this was not complied with by the University; a fact the University concedes.
[124] I agree with the Applicant that the view expressed by Professor Pankhurst that on the basis of a preliminary investigation there appears to be a prima facie case for research misconduct is an expression of an allegation of research misconduct. There is no conclusion reached at this point, but that is not required. It is an assertion that triggers the clause. The finding by the University, communicated in Professor Pankhurst’s letter, is unambiguously an assertion of misconduct. Therefore clause 40 applies.
[125] The University’s view that the Code process applies in such circumstances, so that a Panel’s finding is necessary before there is an assertion for the purposes of clause 40, is misconceived. However, this does not mean that University is required to cease its investigation into allegations of research misconduct under the Code: it is entitled to progress those allegations, but must do so by also complying with the Agreement, in particular clause 40 and the natural justice obligation.
[126] It follows that the University then has not dealt with the assertions or allegations against Dr Fraser in accordance with clause 40 of the Agreement.
[127] In my view, any investigation based on the Pankhurst letter of 29 May 2018 should recommence from the beginning, which seems to me to be the letter from Professor Bishop of 18 April 2018.
[128] In doing so, there should be compliance by the Employer with both clauses 10.2.15 and 40. It plainly follows that having established that clause 40 applies, the requirement for confidentiality in clause 40.7 will also apply to any further investigation or enquiries in relation to the allegations the subject of this dispute.
[129] The practical effect of the application of clause 40 is that:
1. there should be a referral of the matter to the Director, HR or (delegate);
2. timeliness and confidentiality requirements in the Agreement should be complied with; and
3. Dr Fraser be afforded natural justice and his rights to be represented and accompanied in any investigation be respected.
Has the University engaged in conduct that breaches Dr Fraser’s intellectual and academic freedom rights?
[130] The Applicant also seeks a finding that the University has engaged in conduct that breaches Dr Fraser’s intellectual and academic freedom rights as provided for in clause 47.
[131] Under clause 47, academic employees have the right to participate in public debates and express opinions about issues and ideas related to their academic and professional areas, about higher education issues as they affect their institution and about higher education issues generally. Where there is an allegation of a limitation of these rights, in the first instance, academic employees can raise the alleged limitation through the University Individual Grievance Resolution Procedure.
[132] For the present circumstances, the following matters are relevant:
• Dr Fraser has the right to participate in public debates and express opinions about issues and ideas related to his academic and professional areas;
• He has a right to express unpopular and controversial views; but not the right to harass, vilify or intimidate;
• Where there is an allegation of a limitation of these rights, Dr Fraser can, in the first instance, raise this alleged limitation through the University Individual Grievance Resolution Procedure.
Dr Fraser’s Claim that the University breached clause 47
[133] As to allegations that the University has not complied with Dr Fraser’s rights to intellectual and academic freedom, the Applicant alleges the following breaches of clause 47:
1. An on-going investigation for a period of two years;
2. The direction that Dr Fraser not identify himself as an academic, or employee of Griffith University, or an expert before the Parliamentary Inquiry;
3. Professor Pankhurst giving written advice to Falun Dafa that Dr Fraser is under investigation for research misconduct; and
4. The issue of a media release which Dr Fraser asserts lead to attacks on him in the media and Parliamentary Inquiry.
[134] The Applicant submits that the University has placed fetters on Dr Fraser's ability or freedom or right to: firstly, identify himself as an academic; and secondly, identify himself as an expert in relation to the area of work, that is, organ transplantation and trafficking around the world.
[135] Ms Rudland submitted that Dr Fraser is an expert and he continues to be held out as an expert on the University website; 36 but expertise is not required to be established to take advantage of the clause.
[136] The University submits that Dr Fraser can respond to an allegation of potential breach of the Code and that it will be open to Dr Fraser to seek to justify his actions on the basis that those actions constitute an exercise of intellectual and academic freedom.
[137] In response to this argument, Ms Rudland submits that is not a matter for Dr Fraser to seek to justify his actions in a misconduct investigation, but that the University has breached its obligations clause 47.
[138] In my view, neither interpretation of the how the clause applies in the present circumstances is correct.
[139] Clause 47 can be a defence to asserted misconduct on the basis that the alleged misconduct constitutes an exercise of an employee’s intellectual or academic freedom. Additionally, an academic employee can allege that the University has not complied with his rights to intellectual and academic freedom. Clause 47 can therefore be a shield (against allegations of misconduct) or a sword (to protect an academic employee’s rights). However, an assertion of rights to academic freedom under clause 47 requires compliance with that clause (that is, Dr Fraser should advise the University that he intends to rely on his rights under the Agreement and particularly in relation to clause 47).
[140] To date, Dr Fraser has complained only in vague terms. He has not yet pursued his rights under clause 47; that is, Dr Fraser’s correspondence and communication with the University falls short of what is required to establish a contravention of the clause, set out in some detail in the clause.
[141] It is not the complaints by Dr Fraser, even over a period of some years, which triggers the clause. The matters raised in this dispute, detailed above, contained matters that may be the basis of an assertion of limitations on academic freedom.
[142] However, the clause is triggered by an employee’s assertion of their rights pursuant to the Individual Grievance Resolution Procedure in clause 47.4. This process then requires the University to respond to an employee who asserts that the University limited their right in breach of the clause.
[143] In conclusion, the University has not, for the purposes of this dispute, breached clause 47 of the Agreement.
Orders sought by the Applicant
[144] I do not intend to make the Orders as sought by the Applicant, but seek to clarify the practical application of my decision.
[145] Having concluded that the University has breached clauses 10 and 40, I have indicated in this decision that University should recommence its misconduct enquiry, but that it should take into account clauses 10 and 40.
[146] To clarify, clause 40 does not prohibit the University conducting its enquiry according to its policies and procedures. Such policies and procedures clearly include convening a research misconduct investigation panel. It should now do so, but in contemplation of this decision.
COMMISSIONER
Appearances:
Ms N Rudland and Mr R Hilton on behalf of the Applicant.
Ms B Rance of the Australian Higher Education Industrial Association, on behalf of the Employer.
Hearing details:
2019.
12 June.
Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR708505>
Attachment A
15. DISPUTES AVOIDANCE AND SETTLEMENT PROCEDURES
15.1 The objectives of these procedures are the avoidance and resolution of any disputes over matters covered by any part of this Agreement by measures based on the provision of information and explanation, consultation, cooperation and negotiation.
15.2 The procedures in this Clause may be followed in the event that a dispute arises which relates to:
• the interpretation, application or implementation of any provision of this Agreement; or
• the National Employment Standards.
15.3 At any stage of this dispute procedure an employee may choose to be represented by a nominated representative.
15.4 The following procedures shall apply:
15.4.1 In the first instance the matter will be discussed with the relevant supervisor or manager in order to attempt to resolve the dispute. This process should not normally extend beyond 10 working days. During this period the matter may be referred to the ASCC
15.4.2 If the dispute is not resolved through the steps above, it shall be referred to the Director HR (or delegate) who shall attempt to resolve the matter and this should not normally take longer than 15 working days. Any resolution shall be in the form of a written Agreement, subject, if necessary to ratification by either party to the dispute.
15.4.3 If the dispute is not resolved through the steps above the matter may be referred by either party to the dispute to the Fair Work Commission (FWC).
The FWC may settle the dispute by mediation, conciliation, expressing an opinion or making a recommendation. All efforts will be undertaken to resolve the dispute at this stage, with the parties having regard to any recommendation or opinion presented by the FWC.
If the conciliation process does not result in the resolution of the dispute, the FWC may then arbitrate the dispute and make a determination that will be binding.
A decision that the FWC makes when arbitrating a dispute is a decision for the purpose of Division 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.
15.4.4 Without prejudice to the position of either party to the dispute, while the matters in dispute are being dealt with in accordance with this Clause, work shall continue in a normal manner (other than with respect to bona fide health and safety issues) and no industrial action is to be taken by any party to the dispute.
15.4.5 Nothing contained in this procedure shall prevent representatives of the Union or the University from intervening in respect of matters in dispute, should such action be considered conducive to achieving resolution.
15.4.6 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this term.”
Attachment B
Clauses 10, 40 and 47 of the Agreement provide as follows:
“Clause 10 Definitions
10.2.11 Misconduct
Misconduct means conduct that is not serious misconduct but is nonetheless conduct that is unsatisfactory or inappropriate including but not limited to:
a) wrongful or improper conduct of a kind which constitutes an impediment to the carrying out of an employee’s duties or to the employee’s colleagues carrying out their duties;
b) dereliction of the duties required of the employee;
c) refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
10.2.12 Nominated Representative means a person the employee has requested to represent him or her and who can be an employee or an officer or employee of the union and is not currently practicing as a solicitor or barrister.
10.2.15 Procedural Fairness means the following.
1. An employee whose conduct and/or performance is in question:
a) must be informed of the case against them or their interests prior to any decision being made; and
b) be provided with all material to be used in the decision-making process; and
c) be given a reasonable opportunity to be heard (either in writing or orally) including the opportunity to answer any allegations, the material to be considered by the decisionmaker and a reasonable time in which to respond; and
d) be given a reasonable opportunity to provide any relevant material/evidence to be taken into consideration.
2. A decision-maker must not be biased (actual) or could be seen by an informed observer to be biased in any way (apprehended) in dealing with a matter during all stages of the decision-making process.
3. In making a decision, the decision-maker must:
a) only rely on logical and probative evidence;
b) only take into account relevant considerations;
c) not take into account irrelevant considerations
…
10.2.1 Serious Misconduct means:
1. Conduct that is serious misconduct includes both of the following:
a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
i) conduct that causes serious and imminent risk to:
ii) the health or safety of a person; or
iii) the reputation, viability or profitability of the employer's business.
2. For subClause (a), conduct that is serious misconduct includes each of the following:
a) the employee, in the course of the employee's employment, engaging in:
…
iv) research misconduct;
…
“Clause 40. DEALING WITH MISCONDUCT OR SERIOUS MISCONDUCT
a) Allegations and assertions of misconduct or serious misconduct will be managed in accordance with this Clause and the University’s policies and procedures as amended from time to time.
b) Nothing in this Clause will preclude the University from summarily dismissing an employee on the grounds of serious misconduct.
c) For the purposes of this Clause “misconduct” and “serious misconduct” will mean the behaviour described in SubClauses 4.2.10 Misconduct and 4.2.14 Serious Misconduct.
d) An employee against whom there are assertions and/or allegations of misconduct or serious misconduct will at all times be afforded procedural fairness including in any investigation undertaken.
e) All decisions to discipline or terminate the employment of an employee for misconduct or serious misconduct will be in accordance with the provisions of this Clause and the principles of procedural fairness.
f) An employee who is subject to an allegation of misconduct or serious misconduct may be accompanied, should they choose, at any meeting in relation to that allegation by their nominated representative.
40.1 Assertions of Misconduct or Serious Misconduct
40.1.1 Assertions of misconduct or serious misconduct are to be referred to the Director, HR (or delegate). Assertions may be made by any person and may be verbal or in writing.
40.1.2 The Director, HR will consider whether the assertion(s) warrants formal action under these procedures. For the purpose of making that decision, the Director, HR may conduct or initiate a preliminary investigation which will be undertaken within a reasonable timeframe from the appointment of the investigator(s).
40.1.3 The Director, HR will advise the employee who is the subject of the assertion(s) that the assertion(s) has been made and the process to be undertaken within 5 working days of receipt of the assertion(s).
The participation of the employee in a preliminary investigation will be without prejudice to any response or position they may undertake in any subsequent formal process.
40.2 No Further Action
Where the Director, HR determines that no formal action under these procedures is warranted, no further action will be taken and the employee will be advised in writing of the decision.
40.3 Formal Action
40.3.1 If the Director, HR decides to proceed with formal action, they will:
a) notify the employee in writing, setting out the allegation(s).
b) include sufficient detail to enable the employee to understand the nature of the allegation(s), and to properly consider and respond to them including any relevant documents.
c) inform the employee that they are entitled, within 10 working days of receiving a copy of the allegation(s), to submit a written response to the Director, HR.
…
40.3.6 Where the Director, HR determines that there is a case for the employee to answer, a report containing the Director’s findings and recommendation of disciplinary action will be sent to both the employee and the Relevant Senior Officer. The employee, on receipt of the report, has 10 working days to provide a written response.
…
40.7 Other Matters
40.7.1 Once an allegation/assertion(s) of misconduct or serious misconduct has been reported to the Director, HR, all investigations and inquiries in relation to the allegation/assertion(s) will be confidential. However, this will not prevent the employee or representatives of the University from disclosing the allegation/assertion(s) or aspects of it in order to obtain evidence or advice relating to the allegation/assertion(s).
…
47. INTELLECTUAL AND ACADEMIC FREEDOM
47.1 Academic employees, as employees of the University, have the right to:
a) pursue critical and open inquiry;
b) participate in public debates and express opinions about issues and ideas related to their academic and professional areas, about higher education issues as they affect their institution and about higher education issues more generally;
…
f) undertake research and produce publications; and
g) engage in community service without fear of harassment, intimidation or unfair treatment.
47.2 Academic employees have the right to express unpopular or controversial views, but this does not mean that they have a right to harass, vilify or intimidate.
47.3 These rights are linked to the responsibilities of staff to support the role of universities as places of independent learning and thought, where ideas may be put forward and opinion expressed freely; and as institutions which must be accountable for their expenditure of public money.
47.4 Any alleged limitation of these rights can be raised, in the first instance, through the University Individual Grievance Resolution Procedure.”
1 Witness Statement of Dr Campbell Fraser dated 1 May 2019, at [26]; Annexure CF10 to Dr Fraser’s statement.
2 Annexure CF11 to Dr Fraser’s statement.
3 Annexure CF17 to Dr Fraser’s statement.
4 Explanatory Memorandum, Fair Work Bill 2008 (Cth)at [2735].
5 [2014] FWCFB 7446.
6 [2017] FWCFB 3005.
7 Witness Statement of Dr Campbell Fraser dated 1 May 2019.
8 Ibid at [4].
9 Ibid at [7].
10 Ibid at [11].
11 Ibid at [15].
12 Ibid at [16].
13 Ibid at [17].
14 Ibid at [21].
15 Ibid at [28]; Annexure CF13 to Dr Fraser’s statement.
16 Witness Statement of Dr Campbell Fraser dated 1 May 2019, at [29].
17 Ibid at [32]-[34].
18 Ibid at [35].
19 Ibid at [36].
20 “Griffith researcher to address Papal summit on organ trafficking” 13 January 2017:
21 Employer’s Outline of Submissions, filed 20 May 2019, at [10].
22 Ibid at [21].
23 Ibid at [23].
24 Ibid at [28].
25 Witness Statement of Professor Andrea Bishop dated 20 May 2019.
26 Ibid at [7].
27 Ibid at [6]-[7].
28 Ibid at [12].
29 Ibid at [17].
30 Ibid at [18].
31 PN379.
32 PN456.
33 Compare Clause 40.
34 For a general discussion on access to evidence at common law see: JRS Forbes Justice in Tribunals 4th Edition 2014 at 10.13.
35 [2017] FWCFB 3005, at [41].
36 PN324.
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