Note: An appeal pursuant to s.604 (C2010/3658) was lodged against this decision - refer to Full Bench decision dated 18 June 2010 [ FWAFB 4195] for result of appeal.
 FWA 2263
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Tertiary Education Industry Union
MELBOURNE, 17 MARCH 2010
Dispute relating to workloads of Academic Staff
 On 18 February 2010, the National Tertiary Education Industry Union (NTEU) notified a dispute between it and Victoria University (VU) pursuant to section 739 of the Fair Work Act 2009 (FW Act). The dispute was referred to Fair Work Australia (FWA) pursuant to the dispute settlement procedure in the Victoria University (Academic & General Staff) Enterprise Agreement 2009 1 (the 2009 Agreement). The notice of dispute set out the matters in dispute as follows:
1. Clause 47 Workloads Academic Staff requires that the workloads of academic staff be regulated by the academic workloads model as it existed in the Victoria University (Academic & General Staff) Enterprise Bargaining Agreement 2005 [“the existing model”].
2. Clause 47.3.2 states that “No changes will be made to the existing model until agreement is reached on the outstanding matters referred to under point 47.3.”
4. The Victoria University (Academic & General Staff) Enterprise Agreement 2009 was made by the staff of the University on 21 December 2009. In explaining the terms of the proposed Agreement the University advised staff, in respect of academic workloads, that “... the current Academic Workload Model will remain as University Policy for the life of this Agreement, however, [it] will be varied subject to agreement between VU Management and NTEU”.
5. On 12 January 2010, after the Victoria University (Academic & General Staff) Enterprise Agreement 2009 was made and before it was approved, the University changed the terms of the Academic Workloads Model without either negotiation or agreement with the NTEU.
6. The University continued to implement the 12 January changes to academic workloads after the approval of the Victoria University (Academic & General Staff) Enterprise Agreement 2009 on 22 January 2010.
7. On 3 February 2010 the NTEU advised the University that it was in dispute “... over the application of clause 47 Workloads Academic Staff...” and seeking the implementation of the Academic Workloads Model as it existed at the time the Agreement was made on 21 December 2009.
 The file was allocated to me and after conferring with the parties the matter was listed for hearing initially on 4 March 2010 and then relisted for 10 March 2010.
 On 23 February 2010 Mr Hickman the Deputy Vice-Chancellor of Victoria University wrote to my chambers requesting the matter be referred to another member of Fair Work Australia because in their submission there is a reasonable apprehension of bias in respect of my involvement. Mr Hickman advised that they were not suggesting actual bias. In his letter he stated that the basis of the application was:
 I determined that it was appropriate that this application be dealt with at the hearing of the application.
 At the hearing Mr Bandt of counsel appeared for the NTEU and Mr O’Grady appeared for VU. No party opposed counsel being given permission to appear and permission was granted.
 Mr O’Grady advised that VU had sought from the NTEU copies of all letters of advice received by the NTEU from Maurice Blackburn in the conduct of the case brought by the NTEU against Victoria University in 2007 2 and/or in relation to the Victoria University workloads model.
 Mr O’Grady advised that the NTEU had produced a letter signed by me and that he did not require the NTEU to waive privilege in relation to that letter. Mr O’Grady subsequently agreed that that correspondence did not set out any advice given by me to the NTEU relevant to this application 3.
 Both Mr O’Grady and Mr Bandt provided outlines of submissions and supplemented those submissions orally 4.
 The following facts are not in dispute:
1. Prior to my appointment to Fair Work Australia I was a principal with Maurice Blackburn Lawyers. While Mr O’Grady used the term partner the position actually held was principal.
2. Maurice Blackburn has for a number of years acted for and on behalf of the NTEU both in Fair Work Australia and in the Federal Court.
3. Maurice Blackburn had, prior to the filing of the current application, engaged in correspondence with the University’s solicitors about the operation of the work load model. Mr O’Grady tendered copies of the correspondence 5. Mr Bandt submitted that the correspondence related to a dispute under the Victoria University (Academic & General Staff) Enterprise Bargaining Agreement 2005 (the 2005 Agreement) and not the dispute currently before FWA. An examination of the correspondence supports Mr Bandt’s submissions.
4. I was the instructing solicitor for the NTEU in NTEU v Victoria University 6 (the 2008 proceeding). While Mr O’Grady referred to these proceedings as the 2008 proceeding, an examination of the Federal Court website establishes that the application was filed on 16 February 20077 and the matter was heard by Justice Ryan on 10, 11 and 12 September 2007 and his decision was handed down on 3 November 2008. Mr Bandt’s submission was that my involvement was for parts but not all of the proceedings. I do not consider that anything turns on this difference.
5. I appeared in 2007 for the NTEU at the directions hearing and the mediation of the 2008 proceeding.
 Mr O’Grady submitted that the matters canvassed in NTEU v Victoria University involved the ability to generate a dispute under the Disputes Resolution Procedure in the Victoria University (Academic & General Staff Enterprise Bargaining Agreement 2005 8 (the 2005 Agreement) in respect of the workload model and the operation of the workload model9.
 It is clear from the decision of the Ryan J that the operation of the workload model was part of the dispute notified by Dr Jamie Doughney in December 2006. Dr Doughney’s dispute was the foundation of the claim brought by the NTEU in the 2008 proceedings however the amended application of the NTEU 10 did not seek any orders in relation to the operation of the workload model and only sought orders about the operation of the Dispute Resolution Procedure of the 2005 Agreement. There was no consideration by Ryan J of the merits of Dr Doughney’s dispute about the operation of the workload model.
 Mr O’Grady submitted that the there was an overlap in the issues considered as part of the 2008 Proceedings and the issues raised by the current application.
 Mr O’Grady submitted that the current dispute is about changes to the terms of the workload model without either negotiation or agreement with the NTEU. He submitted that the issue raised by the dispute is the extent to which there is a requirement for agreement of the NTEU to affect changes to the workload model. He submitted that involves a consideration of the workload model including the mechanisms for change contemplated by it and the status of the model under the 2009 Agreement and the 2005 Agreement. There is also an issue as to the capacity of the dispute to prevent or impede the implementation of changes made to the workload model. 11
 Mr O’Grady submitted that the overlap would appear to mean that:
(a) advice (both written and oral) proffered as part of the 2008 Proceeding could go to the issues raised by the Application;
(b) persons involved in the 2008 Proceeding may be required to give evidence going to the operation of the workload model;
(c) assertions of fact relayed to me as part of the preparation for the 2008 Proceedings and of which the University is unaware could be relevant to the determination of the Application 12.
 Mr Bandt submitted that the 2008 proceeding raised a question for determination that was different to that in the current proceeding. He submitted that the decision in the 2008 proceeding has limited relevance to the current proceeding and even if the decision of Ryan J was relevant to the current proceeding there can be no suggestion that the Commissioner would do anything other than apply the decision as required by law and that my involvement in that matter does not disqualify me from sitting. 13
 Mr Bandt submitted that in the current matter I am being asked to determine a dispute about the operation of the academic workloads clause in the 2009 Agreement with respect to the implementation of the model by VU from 12 January 2010 and to determine whether that implementation ought to be subject of orders from FWA 14.
 Mr Bandt submitted that I am not being asked to rule upon the correctness or propriety of any advice given to the NTEU. 15
 The principles to be applied in responding to such an application were not in contention between the parties. Both parties provided submissions in which they set out the applicable law and agreed that the test to be applied is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” 16.
 The High Court further said in Re Polites and another; ex parte the Hoyts Corporation Pty Limited that “the test in Livesey cannot be pressed too far when the qualifications for membership of the tribunal are such that the members are likely to have some prior knowledge of the circumstances which give rise to the issues for determination or to have formed an attitude about the way in which such issues should be determined or the tribunal’s powers exercised. Qualification for membership cannot disqualify a member from sitting. 17”
 The FW Act at 627(3) sets out the qualifications for appointment as a Commissioner with FWA.
“Before the Governor-General appoints a person as a Commissioner, the Minister must be satisfied that the person is qualified for appointment because the person has knowledge of, or experience in, one or more of the following fields:
(a) workplace relations;
(c) business, industry or commerce.”
 While the High Court in its decision referred to the qualifications required for appointment to Deputy President the reasoning applies equally to commissioners.
 The High Court in Livesey v New South Wales Bar Association 18 also took the view that “it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whether he was requested by one party to do so on the grounds of a possible appearance of pre-judgement or bias, regardless of whether the other party desired the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practices of the particular court.”19
A prior relationship of legal adviser and client
 The High Court in Re Polites: Ex Parte Hoyts Corporation Pty Ltd and ors 20 said “a prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter) from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori if the advice has gone beyond an exposition of the law and advised the adoption of a course of conduct to advance the client’s interests, the erstwhile legal adviser should not sit in a proceeding in which it may be necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination.” 21
Independent knowledge/ communication with one party
 The High Court in Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd 22 said that “As a general rule, a judge or a member of a tribunal that is bound to act judicially should disclose his or her independent knowledge of factual matters that bear or may bear on the decision to be made. In some cases, it may be that he or she should stand down from the proceedings. However, precisely what should be disclosed and what, if any, other action should be taken may involve a consideration of the nature of the tribunal, its composition and organisation.23”
 Further the High Court in Re JRL; Ex parte CJL 24 has held that it is a central element of our system of justice that it would be inconsistent with basis notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide”25
 Both parties accepted that the mere fact that a tribunal member was a solicitor for one of the parties in the proceedings does not provide a sufficient basis for a finding that there is reasonable apprehension that the tribunal member might not bring an impartial or unprejudiced mind to the proceeding 26. Neither does the fact that the law firm to which the Tribunal once belonged continues to represent a party to a proceeding provide a sufficient basis for the finding27. Mr O’Grady however did submit that those factors when considered with the other factors to be considered do form part of the matrix of factors which should be considered28.
 I have had regard to these principles in this decision.
The current application
 The starting point then is to determine what is in dispute between the parties in the current application and to what there is an overlap between the 2008 proceedings and the current application.
 The dispute notified to FWA arises from the 2009 Agreement. The 2009 Agreement was approved by a valid majority of employees on 21 December 2009 29. The 2009 Agreement was approved by FWA on 22 January 2010 and operated from 29 January 201030. According to the NTEU on 12 January 2010 VU changed the terms of the Academic Workloads Model without negotiation or agreement with the NTEU and continued to implement those changes. On 3 February 2010 the NTEU advised that it was in dispute with VU over the application of clause 47 of the 2009 Agreement.
 Clause 47 of the 2009 Agreement provides as follows:
“47.1 The current Academic Workloads Model will remain as University policy for the life of this Agreement.
47.2 In the model the normal average teaching contact hours per calendar year for each staff member shall be 336 (288 if research active) and the normal numbers of semesters taught shall be two (or four semesters of six).
47.3 The Academic Workloads Model will be subject to ongoing negotiation by a NTEU and management working party with the intent of resolving outstanding matters.
47.3.1 Subject to resolution of these matters the NTEU and the University agree to vary the enterprise agreement as is necessary.
47.3.2 No changes will be made to the existing model until agreement is reached on the outstanding matters referred to under point 47.3.”
 The Dispute Resolution Procedure in the 2009 Agreement provides as follows:
“63.1 It is agreed that the University and all of its staff members have an interest in the proper application of this Agreement, and in minimising and settling disputes about matters arising under this Agreement and the National Employment Standards in a timely manner.
63.2 To facilitate their timely resolution, disputes about matters arising under this Agreement or relating to the National Employment Standards will, as far as is practicable, be raised and resolved at their source, therefore:
63.2.1 in the first instance the affected staff member(s) should discuss the matter with the relevant Supervisor,
63.2.2 where the dispute is not resolved under sub-clause 63.2.1, the affected staff member(s) may request further discussions with the Director Human Resources for resolution. If no such request is made within five working days of the discussions under sub-clause 63.2.1, the matter will be deemed to have been resolved, unless it is agreed to extend the time for discussions. Where a meeting is requested, it will be convened within five working days of the request or at such later time as the parties may agree.
63.2.3 An employee may be represented in these procedures by the Union or by a Representative.
63.3 The University or the Union may also initiate a dispute regarding matter(s) arising under this Agreement by providing written advice detailing the particulars and circumstances upon which the dispute is based. The dispute will be progressed by direct discussions between officials of the Union and senior officers of the University, rather than under the process in sub-clause 63.2.
63.4 Until the procedures described in sub-clauses 63.2, or 63.3 (as applicable) have been exhausted:
63.4.1 work shall continue in the normal manner;
63.4.2 no industrial action shall be taken by either party to the dispute or any party bound by this Agreement;
63.4.3 the University shall not change the work, staffing or the organisation of the work if such is the subject of dispute, nor take any action likely to exacerbate the dispute; and
63.4.4 the subject matter of the dispute shall not be taken to Fair Work Australia by the parties to the dispute.
63.5 If the dispute remains unresolved either party to the dispute may refer the matter to Fair Work Australia. If no party to the dispute refers the matter to Fair Work Australia within ten working days of concluding the discussions referred to under sub-clause 63.2 or 63.3, the matter will be deemed to have been resolved, unless the parties agree to extend the time for discussions.
63.6 Fair Work Australia may exercise any method of dispute resolution permitted by the Act and any recommendation, decision or order of Fair Work Australia will be binding on all parties covered by this Agreement.
63.7 Nothing in this clause prevents the parties to the dispute from agreeing to refer an unresolved dispute to a person or body other than Fair Work Australia for resolution. Any decision or recommendation of the Third Party shall be binding on all parties covered by this Agreement.
63.8 Workplace grievances will be addressed using the process set out in Schedule 6.”
 On 1 February 2010 the NTEU wrote to VU seeking their agreement not to make any changes to the academic workloads model as it stood on 11 January unless “agreement is reached in accordance with the workloads provisions of the Heads of Agreement between the University and the NTEU and the new agreement (Victoria University (Academic & General Staff) Enterprise Agreement 2009).” 31
 On 3 February 2010 the NTEU further advised VU that the NTEU was in dispute with the University over the application of clause 47 of the 2009 Agreement 32.
 On 4 February 2010 VU wrote to the NTEU and set out its response to the matters raised by the NTEU.
“(a) the 2009 Enterprise Agreement did not come into operation until 29 January 2010;
(b) over the course of 2009 the Workload Model Working Group met under the auspices of the Workload Model Review Reference Group (WMRRG) to consider further changes to the Workload Model consistent with the provision in the Model permitting changes to the Model. The negotiations leading to the Heads of Agreement and ultimately the approval of the 2009 Enterprise Agreement operated under a different track and were separate;
(c) prior to 11 January 2010 a document outlining proposed changes to the Workloads Model (and within the architecture of the Model) were distributed for consideration by a meeting of the WMRRG on 11 January 2010;
(d) on 11 January 2010 a number of members of the WMRRG resigned as members of that body. Nevertheless the WMRRG met (there being no quorum requirements in the provisions of the Model establishing the WMRRG) to consider the proposed changes;
(e) as it appeared to the members of the WMRRG who met on 11 January 2010 that there was no clear consensus in relation to the change s, the matter was referred to the Acting Vice-Chancellor. The Acting Vice-Chancellor consulted with the Chair and the remaining members of the WMRRG and determined proposed changes;
(f) consequently by the time the NTEU notified a dispute on 13 January 2010 the changes to the Model had been determined, consistent with the Model;
(g) subsequently a disputes committee was convened and prior to the coming into operation of the 2009 Enterprise Agreement the disputes committee process concluded in accordance with clause 63.5 of the 2005 Enterprise Agreement (the procedures described in clause 63.3 and 63.4 having been exhausted).
Consequently any dispute now initiated by the NTEU over the application of clause 47 of the 2009 Enterprise Agreement and pursuant to clause 63.3 of the 2009 Enterprise Agreement cannot in a jurisdictional sense relate to the matters described in paragraphs (a) to (g) above. The change has been made and implemented prior to the coming into operation of the 2009 Enterprise Agreement.” 33
 On 9 February 2010 the NTEU wrote again to VU advising of the dispute and called on VU not to make any changes to the work staffing or the organisation of the work and not to take any action likely to exacerbate the dispute. 34
 On 11 February 2010 VU again wrote to the NTEU advising their position that any dispute initiated by the NTEU over the application of clause 47 and pursuant to clause 63.3 of the 2009 Enterprise Agreement cannot in a jurisdictional sense relate to the Acting Vice-Chancellor’s determination of 13 January 2010. 35
The 2008 Proceeding
 The 2005 Agreement provided for an academic workload model as follows:
“47.1 During semester 1 2006 the University's Academic Workloads Committee (AWC) will develop an academic workload model for trialling in one faculty during semester 2 2006, with full implementation occurring in semester 1 2007.
47.2 The AWC will base its work on rigorous research and evidence from Victoria University and other universities. The model must be comprehensive, contain quantitative measures and caps, reflect all aspects of academic work (MSALS), allow for leave arrangements and be flexible, transparent, fair and straight forward.
47.3 In the model the normal average teaching contact hours per calendar year for each staff member shall be 336 (288 if research active) and the normal numbers of semesters taught shall be two (or four semesters of six).
47.4 Before implementation the Vice-Chancellor will approve a model recommended by the AWC arrived at with consensus. If consensus is not achieved on aspects of the model the Vice-Chancellor will consult with the Chair and members of the AWC before determining those aspects of the model.
47.5 The approved model will become University policy for the life of this Agreement.
47.6 Clause 18 of the Victoria University of Technology Enterprise Bargaining Agreement 2000 - 2003 will continue to apply until the new model is implemented.
47.7 The AWC will be comprised of the following members:
47.7.1 Three members nominated by the Vice-Chancellor; and
47.7.2 Three members nominated by the Chair of the WCC from the pool of directly elected staff representatives, one of whom will be the committee Chair.
47.8 All members will have the relevant experience and expertise necessary for the development of the model.”
 As can be seen the 2005 Agreement established a process for developing and implementing an academic workload model.
 The Academic Workloads Committee which had developed the Academic Workload Model had been unable to reach agreement on one aspect which concerned the transitional arrangements for 2007 in respect of academic staff who did not have a Research Active Index score which would entitle them to workload points. The Vice Chancellor then, in accordance with clause 47.5 of the 2005 Agreement made a determination in respect of the transitional arrangements. The Vice-Chancellor’s determination was recorded in a memorandum dated 4 December 2006 36.
 On 11 December 2006 Dr Doughney wrote to the Executive Dean of the Faculty of Business and Law at VU and raised a dispute in accordance with clause 63 of the 2005 Agreement. 37
 He alleged that the implementation of the workloads model in Semester 1 2007 was a breach of the 2005 Agreement and outlined the basis of his complaints.
 On 14 December 2006 Mr Hickman wrote to Dr Doughney stating that because Dr Doughney was not directly affected by the new workload model he did not have standing to raise a dispute 38.
 The NTEU on behalf of Dr Doughney then sought to have the Disputes Committee meet to deal with Dr Doughney’s dispute and Mr Hickman advised the NTEU that VU did not believe there was a dispute 39.
 VU declined to nominate two members of the disputes committee and would not convene a meeting of the disputes committee to consider Dr Doughney’s dispute 40.
 VU then implemented the Academic Workload Model with the transitional arrangements which had been determined by the Vice-Chancellor 41.
 The application in the 2008 proceeding is set out in the decision of Ryan J 42.
 The NTEU submitted that the disputes over the Academic Workloads Model could be resolved through clause 63 of the 2005 Agreement.
 Clause 63 of the 2005 Agreement provided as follows:
“63.1 It is agreed that the University and all of its staff members have an interest in the proper application of this Agreement, and in minimising and settling disputes about matters specific to this Agreement in a timely manner.
63.2 Where the dispute involves an individual staff member they may first raise the matter with their supervisor. The staff member shall have the right to be represented at any time during the dispute settling procedure if they so choose.
63.3 Where a dispute is not resolved under clause 63.2 above, at the request of either party to the dispute a Disputes Committee shall be convened within five working days unless agreed otherwise. The Disputes Committee shall consist of, unless otherwise mutually agreed:
63.3.1 two nominees of the University; and
63.3.2 two members nominated by the Chair of the WCC from the pool of elected staff members of the University.
63.4 The Disputes Committee shall attempt to resolve the matter within five working days of its first meeting. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by either party.
63.5 Any staff member involved in the dispute shall be entitled to put their position to the meeting in person, and shall be advised of the outcome of the meeting's deliberations.
63.6 Until the procedures described in clause 63.3 and clause 63.4 have been exhausted:
63.6.1 work shall continue in the normal manner;
63.6.2 no industrial action shall be taken by either party to the dispute or any party to this Agreement;
63.6.3 the University shall not change the work, staffing or the organisation of the work if such is the subject of dispute, nor take any action likely to exacerbate the dispute; and
63.6.4 the subject matter, of the dispute shall not be taken to the Australian Industrial Relations Commission by the parties to the dispute (except in the case of any matter where the time limit of notification would otherwise expire).
63.7 In the event that the dispute remains unresolved by the process specified in clause 63.3 and clause 63.4 the matter may be referred to the Australian Industrial Relations Commission.
63.8 The Australian Industrial Relations Commission can resolve the dispute and any recommendation, decision or order of the Commission will be binding on all parties to the dispute.
63.9 Nothing in this clause prevents the parties to the dispute from agreeing to refer an unresolved dispute to a person or body other than the Australian Industrial Relations Commission for resolution. Any decision or recommendation of the third party shall be binding on all parties to the dispute.
63.10 Workplace grievances will be addressed using the process set out in Schedule 6.”
 VU submitted that the process ordained in clause 47 of the 2005 Agreement had been followed and that the adoption of an Academic Workload Model pursuant to that clause was incapable of giving rise to a dispute which could be referred to a Disputes Committee.
 Ryan J upheld the submissions of VU and found that “a complaint that the Model as formulated was unfair or otherwise an inappropriate resolution, as between VU and its staff, of the issues of workload allocation generally, was incapable of raising a dispute which a Disputes Committee could entertain. 43”
 Ryan J did deal with a number of other submissions raised by the parties about the standing of Dr Doughney to raise the dispute and whether the failure to convene the disputes committee in fact prevented Dr Doughney from taking the dispute to the Australian Industrial Relations Commission. These matters are not relevant to the matters before me as the dispute resolution procedure in clause 63 of the 2009 Agreement is in a different form to that considered by Ryan J.
 I have set out in detail the nature of the 2008 Proceeding and the current application along with the relevant clauses in the agreements to show that while both disputes arise out of the Academic Workload Model, the dispute in 2007 is not the same dispute as the dispute in 2010. The NTEU is not seeking to raise a dispute about the transitional arrangements approved for 2007 by the Vice Chancellor nor is it seeking to raise a dispute about the dispute settlement clause in the 2005 Agreement nor the status of an individual staff member to raise such a dispute.
 When it was put to Mr O’Grady in response to his submission 44 that this dispute was not about the changes considered in the 2008 proceedings he submitted that the “particular issue that was of concern and was determined by his Honour Ryan J in the 2008 dispute is not before you here but, in my submission, there is a high level of overlap between the mechanisms that were there considered and the mechanism that is going to be considered here, and the underlying substrata, or underlying dispute is very much the same, which is , what is the model there to achieve, and the contending views of the university on the one hand and the NTEU on the other in that regard.45”
 While one might assume that the NTEU does not approve of the changes made to the Academic Workload Model made in January 2010 the issue it brings before this tribunal does not go to the merits of such change. Mr Bandt accepted that “the issues agitated before Ryan J have been determined by Ryan J, and that stands for the authority for how the old agreement was to operate.” 46 Mr Bandt submitted that the matter before Ryan J was one of the construction of the 2005 Agreement not the merits of the workload mode, it wasn’t about whether it was fair transparent etc. Now that does not arise under the new clause.”47
 I therefore reject the submissions that there is any relevant overlap between the 2008 proceeding and the current application.
 As such I reject the contention of VU that any advice provide by me to the NTEU in connection with the 2008 proceeding could go to the issues raised by the current application. Whether the changes made to the model in 2007 were appropriate or not, the changes currently in dispute are not those changes.
 Mr O’Grady seeks to rely on the commonality of witnesses in both proceedings. Even if the persons called to give evidence in the current proceeding are the same as gave evidence in the 2008 proceeding their evidence will go to different issues. Further it is difficult to imagine that this will be a matter in which the credit of any witnesses will be challenged. Certainly Mr O’Grady made no such submissions.
 Mr O’Grady seeks to rely upon assertions of facts relayed to me as part of the preparation of the 2008 proceeding and submits that they could be relevant to the determination of the Application 48.
 This submission relies on a proposition that the factual matters in the current application are ones with “may bear” on the decision. No particulars or examples of the types of factual matters that were provided to me in the 2008 proceedings were provided to the Tribunal by Mr O’Grady. It is, in fact difficult to conceive that there are any assertions of facts relayed to me as part of the preparation for the 2008 proceedings that would be relevant to this application or to the decision to be made. In any event I am unable to recall except in the most general terms any discussions I had with representatives of the NTEU or its witnesses at the time.
 In relying on my role as solicitor for the NTEU Mr O’Grady sought to distinguish this application from the circumstances before Senior Deputy President Polites in the Hoyts case 49. In fact there was a greater overlap between the matters Senior Deputy President Polites had provided advice on in that case than in the current application. In that matter one of the courses of action suggested by His Honour was “to have a separate and distinct company employ the labour in such complexes”. While the High Court correctly pointed out that that advice was not acted upon at the time, Hoyts did in fact 2 years latter establish 2 companies to employ labour in all its cinemas. The High Court held that “it must be accepted that the interposition of subsidiary companies for the purpose of “enabling labour to be employed on terms and conditions other than those prescribed by the awards” may be relevant to a number of issues which will fall for decision in the proceedings before the Commission50. Even so the Court decided that “it was difficult to see how a letter of advice of 1 August 1986 could give rise to a reasonable apprehension that Mr Deputy President Polites might not bring an impartial and unprejudiced mind to their resolution”51.
 In this matter no formal advice was given by me to the NTEU 52 though as Mr O’Grady correctly points out advice does not need to be written to enliven the principles. However given the acceptance by the NTEU of the decision of Ryan J 53 no issue will arise about the correctness or appropriateness of any advice given to the NTEU in or in connection with the 2008 proceeding and it is clear that in fact no issue that was live in the 2008 proceeding is in issue in this proceeding.
 Further clause 47 of the 2005 Agreement and the 2009 Agreement are substantially different and the dispute resolution procedure has also changed since the 2005 Agreement. The NTEU is able, under the 2009 Agreement, to raise a dispute in its own right and there is no longer a disputes committee.
 Consequently the substantive issues determined by Ryan J in the 2008 proceeding are not relevant to the matter before me.
 Mr O’Grady also sought to rely on what he described as the combination of factors namely the overlap of these proceedings with the 2008 proceeding, the fact that Maurice Blackburn were and continue to act for the NTEU and that I was the instructing solicitor in the 2008 proceeding.
 However when one removes the overlap from consideration as there is clearly no relevant overlap then Mr O’Grady is left with my previous association with the NTEU and my previous firm’s current association with the NTEU. The authorities clearly establish that these grounds are insufficient reasons for a member of a Tribunal to stand down.
 For the foregoing reasons I decline to disqualify myself from this matter and Victoria University’s application is refused.
A Bandt for the National Tertiary Education Industry Union
C O’Grady for Victoria University
1  FWAA 441
2 NTEU v Victoria University  FCA 1630
3 Transcipt Pn 9 and 102
4 Exhibit VU 5 and NTEU 1
5 Exhibit VU 2
6 NTEU v Victoria University op cit
7 Federal Court of Australia website VID122/2007
8 Print PR 965491
9 Exhibit VU5 at 
10 NTEU v Victoria University op cit 
11 Exhibit VU 5 at  and 
12 Ibid at 
13 Exhibit NTEU 1 at - 
14 Ibid at 
15 Ibid at 
16 Johnson v Johnson 201 CLR 488 at 492
17 Re Polites and another; ex parte the Hoyts Corporation Pty Limited and others 173 CLR 78 at 86
18 Livesey v New South Wales Bar Association (1983) 151 CLR 288
19 Ibid at 294
20 Re Polites:Ex Parte Hoyts Corporation Pty Ltd and ors op cit
21 Ibid at 87 and 88
22 Re Media, Entertainment and Arts Alliance, Ex parte Hoyts Corporation Pty Ltd 119 ALR 206
23 Ibid at 210
24 Re JRL; Ex parte CJL (1986) 161 CLR 342
25 Ibid at 349
26 Exhibit VU 5 at  and NTEU 1 at 
27 Transcript Pn 18 and Exhibit NTEU 1 at 
28 Transcript Pn 41
29 NTEU Form F10
30  FWAA 441
31 Attachment to NTEU Form F10 dated 1/2/2010
32 Ibid dated 3/2/2010
33 Ibid 4/2/2010
34 Ibid 9/2/2010
35 Ibid 11/2/2010
36 NTEU v Victoria University op cit at 
37 Ibid at 
38 Ibid at 
39 Ibid at 
40 Ibid at 
41 Ibid at 
42 Ibid at 
43 Ibid at 
44 Transcript Pn 54
45 Ibid at Pn 59
46 Ibid at Pn 64
47 Ibid at Pn 67
48 Exhibit VU 5
49 Re Polites:Ex Parte Hoyts Corporation Pty Ltd and ors op cit
50 Re Polites:Ex Parte Hoyts Corporation Pty Ltd and ors op cit at page 643
51 Re Polites:Ex Parte Hoyts Corporation Pty Ltd and ors (1991) op cit at page 643
52 Transcript Pn 101-103
53 Ibid Pn 64
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