[2013] FWCFB 5982

Download Word Document

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

National Tertiary Education Industry Union
v
Monash University
(C2013/5357)
Monash University
v
National Tertiary Education Industry Union
(C2013/5409)

VICE PRESIDENT HATCHER
 VICE PRESIDENT CATANZARITI
COMMMISSIONER LEE

SYDNEY, 26 AUGUST 2013

Appeal against decision [[2013] FWC 5124] and Order PR539479 of Vice President Lawler at Melbourne on 27 July 2013 in matter number B2013/1050.

Introduction

[1] On 30 June 2012 the Monash University Enterprise Agreement (Academic and Professional Staff) 2009 reached its nominal expiry date. Monash University (the University) and the National Tertiary Education Industry Union (the NTEU) commenced negotiations for a replacement enterprise agreement in August 2012. After twelve months and many meetings, little progress has been made towards reaching a new agreement. Apparently this is normal in enterprise bargaining between these parties. 1

[2] Things reached a new stage when on 26 April 2013 the NTEU obtained from this Commission an order for a protected action ballot. The ballot was subsequently conducted on 17 May 2013, and the employees of the University who were entitled to and did participate in the ballot approved the taking of various forms of industrial action.

[3] On 7 June 2013 the NTEU sent a “Notice of Intention to Take Protected Industrial Action” to the University (Notice). The Notice stated that, commencing 14 June 2013, members of the NTEU employed by the University would take industrial action in eight different identified forms. The Notice did not identify any cessation date for any of the industrial action, meaning that it was indefinite in nature. One of the forms of industrial action was described in the following terms:

[4] It is this ban (Results Ban) which is the centre of the controversy before us. It has affected the release of results for Semester 1 subjects, which was due to occur on 15 July 2013.

[5] On 22 July 2013 the University applied for an order under s.424(1) of the Fair Work Act 2009 (Act) suspending the Results Ban. Section 424(1) provides:

[6] Under s.424(3), an application for an order under the section must as far as practicable be determined by the Commission within 5 days after it is made; if this is not possible, s.424(4) requires an interim suspension order to be made pending the determination of the application.

[7] The University’s application was heard by Vice President Lawler on 25 and 26 July 2013. On 27 July 2013, his Honour issued an order suspending “protected industrial action” for a period of one hour commencing on midnight on 27 July 2013 (Order) 2. His Honour issued his reasons for the making of this order on 28 July 2013 (Decision)3.

[8] On 29 July 2013, the NTEU filed an appeal, for which permission is required, against the Decision and Order. The NTEU’s appeal notice included an application for a stay of the Order. That application was heard by Vice President Catanzariti on 30 July 2013. On 31 July 2013 the Vice President issued an order staying the Order effective from 27 July 2013. 4 His Honour issued his reasons for making the stay order on the following day.5

[9] On 2 August 2013 the University filed a cross-appeal against the Decision. The parties sought that the appeal and the cross-appeal be heard together on an expedited basis. Accordingly we heard both appeals on 12 August 2013.

[10] On 13 August 2013 we announced that we had determined the appeals as follows:

(2) We refused the NTEU permission to appeal.

[11] In giving the above decision, we indicated that we would give our full reasons for the decision at a later time. This decision sets out those reasons.

The Decision

[12] In the Decision, Vice President Lawler, after setting out the background to the matter, described the system of exemptions from the Results Ban which had been established by the NTEU pursuant to the Notice in the following terms:

[13] The Results Ban having been engaged in since 14 June and continuing since then without any definite end point, his Honour found 7 that the requirement in s.424(1)(a), namely that protected industrial action for a proposed enterprise agreement was “being engaged in”, was satisfied. His Honour then identified the question to be determined by him in the following way:

[14] The critical part of Vice President Lawler’s reasoning in the Decision was as follows:

[15] On the basis that the only threatened endangerment to student health and welfare that he had found had occurred in the past but was no longer occurring, his Honour concluded that he was required by s.424(1) to make an order, but that that order should only be in the nature of a nominal suspension. The terms of the Order reflected this conclusion.

The University’s cross-appeal

[16] It is convenient to deal with the University’s cross-appeal first, since the conclusion we have reached in respect of that appeal significantly affects the utility of the NTEU’s appeal.

[17] In its cross-appeal, the University advanced nine grounds in support of its contention that Vice President Lawler had erred in not granting an effective suspension order. These grounds included a detailed challenge to his Honour’s conclusion that the operation of the NTEU’s exemptions regime was sufficient to abate the threatened endangerment to student health and welfare which would otherwise be caused by the Results Ban. However, we have found it necessary to deal with only one ground of the University’s cross-appeal, namely ground 7. That ground was as follows:

[18] It is apparent from paragraphs [55]-[61] of the Decision, set out earlier, that his Honour:

[19] In taking this approach, we consider with respect that his Honour erred. It is a trite but nonetheless fundamental proposition that the duty of the Commission is to apply the Act, and it is the Act which states the applicable law. 9 There is a danger inherent in using synonyms, paraphrases and re-formulations of statutory language found in previous decisions or extrinsic materials in lieu of the language of the legislation itself, as the High Court recently warned in Baini v The Queen10:

[20] In NTEU v University of South Australia we do not consider that the Full Bench, by its use of the expressions “exceptional circumstances” and “significant harm” in the passages quoted in the Decision, was intending to establish criteria or tests in substitution for or in addition to those found in the language of s.424(1) itself. Rather the Full Bench used those expressions only to characterise the legislative intention that could be gleaned from the Explanatory Memorandum to the Fair Work Bill 2008. It is no doubt the case that the circumstances which would satisfy the criterion in s.424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm. However, that does not mean that in determining any particular case, expressions of that nature not to be found in the actual language of the statute should be determinative of the outcome, and we do not understand the NTEU v University of South Australia to stand for any contrary proposition.

[21] In determining the matter on the basis that the threatened endangerment to health and welfare was not “sufficiently large to attract the description ‘significant’”, his Honour applied an incorrect, exteriorly derived test. It is not mere semantical nitpicking to find error on the basis of his Honour’s use of the word “significant” in this way; his Honour’s own reasoning makes it transparent that his application of the standard of “significant harm”, which he regarded himself as bound to do by NTEU v University of South Australia, altered the outcome of the case.

[22] We therefore grant the University permission to appeal, we uphold the appeal, and we quash the Decision insofar as it rejected the University’s application for a substantive and effective suspension order under s.424(1) of the Act.

Re-determination

[23] In the light of the conclusion we have reached as to the University’s appeal, it is necessary for the University’s application for a suspension order to be determined afresh. We have decided to undertake this task ourselves rather than remitting the University’s application for re-hearing to another member, since this will save time in what has at all times been regarded as an urgent matter. We re-determine the matter on the basis of the evidence adduced at first instance before Vice President Lawler and the additional evidence adduced by the parties at the appeal hearing.

[24] There was no contest that protected industrial action for a proposed enterprise agreement, in the form of (inter alia) the Results Ban, was being engaged in at the time that the appeals were heard. The criterion in s.424(1)(a) is therefore satisfied. The critical issue, as was the case before Vice President Lawler, is whether the criterion in s.424(1)(c) is satisfied. That is, the question (framed in relation to the University’s case) to be determined by us is: are we satisfied that the Results Ban was threatening or would threaten the health or welfare of any group of students capable of being characterised as constituting part of the population?

[25] In its submissions before us, the University identified three principal ways in which it contended that the NTEU’s exemptions regime failed to abate the threatened endangerment to student health and welfare which was otherwise caused by the Results Ban:

[26] We are satisfied that the University has made out its case that, by reason of the above matters, the criterion in s.424(1)(c) of the Act has been made out. We give more detailed reasons for this conclusion in relation to each of the above matters a little later in the decision, but we indicate that there are two general considerations which have assisted in guiding us towards this conclusion.

[27] The first is that a critical feature of the Results Ban is that it is indefinite in nature. Not only does the Notice not define any end point for the Results Ban, but there is currently no sign that it will come to an end by reason of any decision on the part of the NTEU or any resolution of the enterprise agreement negotiations. Indeed, we were advised that the negotiations had ceased since the Results Ban was put into effect. 11

[28] The indefinite nature of the Results Ban will necessarily aggravate its potential and actual effects on students. A results ban with a defined duration, even a relatively long duration, would allow students to adjust their expectations and framework of thinking, knowing as they would that they would eventually receive their results on or about a certain date. Practical accommodations between the University and students concerning matters such as supplementary examinations and pre-requisite courses could be reached on the basis of an identifiable timeframe for the receipt of results. By contrast, an indefinite ban means that students who have not, for whatever reason, been able to access the exemptions regime are left in a position of complete uncertainty as to when they might get their results. This makes both psychological and practical adaptation to the situation difficult. The Results Ban has currently only affected Semester 1 results, but there is no reason to think that if it continues it will not ultimately affect Semester 2 results, with compounding effects on students’ academic progression into 2014 and even beyond. This makes it difficult to avoid the conclusion that there will be at least a future threat of endangerment to student health and/or welfare in respect of the three matters identified by the University.

[29] The second is that the capacity of results bans by the NTEU’s members to detrimentally affect at least the welfare of university students has been recognised in a number of decisions in this Commission and its predecessors. In University of Wollongong v NTEU 12 Vice President McIntyre was satisfied for the purposes of s.170MW(3)(a) of the Workplace Relations Act 1996 that a results ban was threatening to endanger the welfare of a part of the population constituted by the University of Wollongong’s student body. His Honour said:

[30] The NTEU approach to the grant of exemptions from results bans seems to have become more sophisticated over the years, but this was not sufficient to prevent Senior Deputy President O’Callaghan concluding in University of South Australia v NTEU 13 that a results ban would threaten to endanger the welfare of university students:

[31] This decision was affirmed on appeal in the decision in NTEU v University of South Australia to which we have earlier referred.

[32] Very recently, in an ex tempore decision given on 30 July 2013 14, Vice President Lawler concluded that a results ban imposed at Swinburne University of Technology threatened to endanger the welfare of part of the student population in a way which satisfied the s.424(1)(c) criterion. His Honour said in this decision:

[33] Each of these decisions turned on its own facts, and none of the decisions relieves us of our obligation to determine this case on the facts before us. However, the decisions support at least two conclusions which are highly relevant to the outcome of this case:

[34] We also note the more specific conclusion in Swinburne University of Technology that the lack of an exemption for students who had failed a prerequisite course contributed to the Commission’s satisfaction that the s.424(1)(c) criterion had been made out.

Stress and anxiety endangering mental health

[35] The University’s case that the Results Ban threatened to endanger student health and welfare by heightening student stress and anxiety founded upon the evidence of Sally Trembath, a registered psychologist who was employed by the University as its Director, Mental Health and Safer Community Programs. Ms Trembath’s role involves the management of the University’s Counselling Service for students, and she also chairs the University’s Risk Management Group, which seeks to prevent violence, self-injury and self-harm on the University’s campuses. Ms Trembath was first employed in the University’s counselling service in 1985, and directly counselled students from 1985 until approximately 2007, when she assumed her current role. She was the Manager of the Counselling Service at the University’s Clayton campus from 2002 until 2007. She gave the following evidence before Vice President Lawler by way of a statutory declaration:

“Impact of the Results Ban

[36] Ms Trembath’s evidence was not contradicted by any evidence adduced by the NTEU, nor was it suggested that her evidence should not be accepted. However the NTEU before Vice President Lawler and/or at the appeal hearing made the following submissions as to why that evidence was not capable of satisfying the s.424(1)(c) criterion:

[37] We do not consider that these submissions answer the University’s case. It may be accepted that the occasioning of stress and anxiety in the normally understood and experienced sense is not sufficient to constitute an endangerment to health or welfare for the purpose of s.424(1)(c). Stress and anxiety are part of the ordinary travails of human existence, and in the university context it can readily be accepted that anything to do with examinations, including the issuing of results or any delay thereto, is likely to lead to stress and anxiety to some degree on the part of most students. That is not sufficient to attract a finding under s.424(1)(c). However, Ms Trembath’s evidence had a different import. Four main propositions emerge from her evidence: first, university students generally fall into an age cohort which has a peak vulnerability to diagnosable mental health disorders, with university students reporting higher levels of anxiety-related disorders than the norm for their age group; second, the indefinite Results Ban constitutes a significant additional psychological stressor which may either cause a diagnosable mental health disorder or exacerbate an existing one; third, a proportion of students in this position will be unable or unwilling to seek assistance, including accessing the NTEU exemptions system; fourth; the potential adverse consequences for such students include acts of self-harm, threats to suicide and completed suicide. Understood in that way, we consider that her evidence convincingly demonstrates a threatened endangerment to student health and welfare capable of satisfying the s.424(1)(c) criterion.

[38] The NTEU was correct in submitting that there was no evidence adduced of any specific student suffering a mental health disorder as a consequence of the Results Ban (although there was evidence of specific students reporting heightened stress and anxiety). However, at the time of the hearing before Vice President Lawler, Semester 2 had not yet commenced, and on Ms Trembath’s evidence students who might come forward at all with such problems would only do so once the semester had actually started. 15 Furthermore, s.424(1)(c) is concerned with threatened endangerment, so that the fact that no actual detriment to health and welfare has been demonstrated to have yet occurred is not sufficient to avoid a conclusion that the s.424(1)(c) criterion has been satisfied.

[39] The NTEU was also correct in submitting that a number of specific exemptions had been granted to persons who applied for exemptions on the basis of heightened stress and anxiety. However, as the University submitted, that did not mean that the exemptions regime was adequate to deal with students in the category identified by Ms Trembath. As earlier stated, her evidence was that a proportion of affected students would simply not seek assistance, and it seems to us that there is real doubt that a student affected by a mental disorder associated with the Results Ban would be likely to disclose that to a third party such as the NTEU in order to gain an exemption. Additionally, as the University demonstrated, the NTEU’s documents concerning the operation of its exemptions regime showed that there was no general exemption available with respect to stress and anxiety affecting mental health, and neither was there any clear indication that a specific exemption might be available on this basis. The NTEU’s Exemption Committee Guidelines stated that the criterion for the grant of a specific exemption was whether “the student can demonstrate that a ban on the release of their result will have a significantly detrimental impact on their academic or professional progression”. The NTEU’s website did indicate that granting an exemption involved a decision “to relax a ban on the transmission of student results ... where failure to do so is likely to harm the safety, health and welfare of students”, but its application form for an exemption accessible from the same website location identified the need for supporting documentation, and exampled in this regard “evidence of application for course transfer or application for a scholarship or a need for visa renewal or a need for professional registration to commence employment or some other compelling reason”. The NTEU’s explanation of the exemptions system sent to the University on 27 June 2013 only referred to specific exemptions being granted to students who could demonstrate that the Results Ban “will have a significantly detrimental impact on their academic or professional progression”. Thus, although we accept that the NTEU’s Exemption Committee has dealt sympathetically and appropriately with those applications for exemptions based on stress and anxiety which it has received, we do not consider that the exemptions regime has given any clear invitation to students to apply for exemptions on that basis.

[40] We consider that the NTEU’s submission that any individual students whose mental health is affected by the Results Ban could not constitute “part of the population” for the purposes of s.424(1)(c) misconceives the analysis required by s.424(1)(c), which we repeat is concerned with threatened endangerment, not actual harm. It may be correct that, ultimately, any actual harm to mental health caused by the continuation of the Results Ban only occurs to a number of students too small to be characterised as a “part of the population”. However, the import of Ms Trembath’s evidence is that the psychological stress produced by the indefinite Results Ban threatens to endanger - that is, imperils - the mental health and welfare of a significant segment of the student body which has a pre-existing vulnerability to mental health disorders arising from their general mental health condition and/or their current personal circumstances. That segment cannot be quantified with any certainty, but given Ms Trembath’s evidence that one in four young people suffer from a diagnosable mental health disorder in any one year, it may be a reasonably substantial proportion of the 13,000 students who have not received one or more assessment results because of the Results Ban. We consider therefore that such students are sufficient in number and are collectively affected in a way which permits them to be characterised as “part of the population”.

[41] We are satisfied on the basis of Ms Trembath’s evidence that the Results Ban, which is indefinite in nature and lacks any foreseeable endpoint, is threatening or will threaten to endanger the mental health and welfare of a part of the population constituted by a significant segment of the University’s student body. The s.424(1)(c) criterion is made out in this respect.

Supplementary examinations

[42] The issue raised by the University with respect to supplementary examinations has earlier been described. A number of the University’s witnesses described the supplementary examinations issue, but it is best summarised in the evidence of Neville Hiscox, the University’s Director, Business Services. He said in his statement of evidence:

The NTEU’s lack of exemption in respect of supplementary assessments

The timing of deferred and supplementary examinations

[43] Glenda Key, the Academic Manager of the University’s Faculty of Science, described in her statement of evidence the potential consequences of students not being able to sit supplementary examinations:

[44] There was some debate in the course of the proceedings about whether the number of 450 referred to in Mr Hiscox’s evidence provided a usable estimate of the numbers of students who might have their capacity to obtain a supplementary examination affected by the Results Ban. The NTEU submitted that the number of 450 needed to be scaled down very significantly because the evidence demonstrated that approximately 75% of students generally had received all of their examination results. However, we consider that the updated evidence adduced during the appeal hearing provides a more accurate number for the purpose of our consideration. Mr Gerard Peter Toohey, the University’s Executive Director, deposed in an affidavit sworn on 8 August 2013 as follows:

[45] Although Mr Toohey’s evidence by its nature cannot allow us to identify which proportion of the 629 students referred to may actually be eligible for a supplementary examination, it seems to us that it does identify the number potentially affected.

[46] The NTEU submitted that because it had told its members to informally advise students who approached them whether they had passed or failed a course, this would give students sufficient information concerning their results such as to allow them to be considered for a supplementary examination. However, we consider that there are a number of difficulties with this submission. The first is that it appears to be the case, based on the submissions of the parties 16, that official results approved by the Board of Examiners are necessary to obtain a supplementary examination, so that an informal indication from a lecturer as to whether a student has passed or failed may not be sufficient. The second is that it is the Board of Examiners which requires the information concerning any student’s marks across the board in order to determine whether a supplementary examination may be offered, not the student.17 The third, and most critical, is that supplementary examinations are due to be conducted in mid-August 2013, with the results to be released on 28 August 2013. Taking these matters together, and having regard to the fact that affected students need time to prepare for these examinations, we do not consider that the “informal indication” process relied upon by the NTEU will allow for a proper opportunity for students to be considered for, be offered and undertake supplementary examinations if the Results Ban continues.

[47] We accept the evidence of Mr Hiscox, Ms Key and Mr Toohey on this issue. On the basis of that evidence, we conclude the Results Ban threatens to endanger the welfare of that part of the population consisting of students potentially eligible to be offered a supplementary examination. The endangerment to welfare consists of the probability that, if the Results Ban continues, such students will lose the opportunity to sit supplementary examinations, with the potential consequences identified by Ms Key. The s.424(1)(c) criterion is satisfied.

Prerequisite courses

[48] The main evidence adduced by the University in relation to prerequisite courses was that of Ms Key, who said in her statement of evidence:

[49] Ms Key also gave evidence, based upon information and belief, as to the position with prerequisite courses which applied in the University’s Faculty of Business and Economics:

[50] In the evidence adduced at the hearing of the appeals, there was some updating of the position with respect to prerequisite courses. Mr Toohey deposed that there were 9,094 students enrolled in a Semester 2 course who did not have their results for a relevant Semester 1 prerequisite course. The NTEU tendered an email dated 31 July 2013 which was distributed to students generally and which, with respect to prerequisite courses, stated:

“Semester 2 enrolment - Students missing results for prerequisite units

[51] There was no dispute that the NTEU exemptions regime made no provision for the release of results for prerequisite courses, and that applications for exemptions made solely on this basis had been rejected. The NTEU submitted that despite this, the evidence did not justify a finding that the s.424(1)(c) criterion had been satisfied because there was a lack of evidence of significant disadvantage amongst students. It pointed to evidence given by Andrew Picouleau, the University’s Deputy Executive Director, that the University would permit students to enrol and remain enrolled in a Semester 2 course even if it was not clear whether they had passed the prerequisite course. It also submitted that the NTEU’s advice to its members that they should indicate to any student who approached them whether they had passed or failed a prerequisite course (as evidenced by the email of 31 July 2013) meant that no detriment to students should ensue.

[52] We consider that the Results Ban threatens to endanger the welfare of a part of the population consisting of the over 9000 students who have enrolled in Semester 2 courses without having their results for relevant Semester 1 prerequisite courses. Although the University has allowed students to enrol in Semester 2 courses without knowing whether they have passed Semester 1 prerequisite courses, there remains nonetheless a threatened endangerment in one or more of the following forms:

[53] These consequences cannot now wholly be avoided by students approaching their lecturers at some stage during Semester 2 to receive an informal indication as to whether they passed their Semester 1 prerequisites, because on the evidence they have already enrolled in their Semester 2 courses. In any event, the evidence does not create any basis for confidence that informal approaches by individual students to their lecturers will be an effective mechanism by which over 9000 students can be informed of their Semester 1 prerequisite results. We are satisfied that the s.424(1)(c) criterion is made out with respect to the potential consequences flowing from the lack of any exemption to the Results Ban applicable to the release of results for prerequisite courses.

Form of the order

[54] As a result of our conclusion that the s.424(1)(c) criterion has been satisfied in a number of respects, we are required by the Act to make an order suspending or terminating protected industrial action. The only protected industrial action to which the required order may apply is that which we have found satisfies the s.424(1)(c) criterion - that is, the Results Ban only. 18 However, once such an order is made, any other industrial action notified by the NTEU ceases to be protected by reason of s.413(7).19

[55] We have a discretion as to whether to make a suspension or termination order. We initially considered making a termination order, on the basis that negotiations have been occurring for about 12 months with little progress and that a suspension order might simply lead to a later recurrence of the Results Ban during Semester 2 examinations. However both parties expressed a strong preference for a suspension order if any order was required to be made, and we accept the submission of the University that the evidence simply did not go to the issue of the future prospects of the parties reaching an agreement should only a suspension order be issued. We have therefore determined to issue a suspension order.

[56] There remains the issue of the duration of the order which we are required by s.427 to specify. The University asked for an order of eight weeks’ duration in order to ensure that the Results Ban did not recommence before the results of deferred and supplementary examinations yet to take place could be recorded and issued. The NTEU submitted that a two week suspension would be sufficient. In making that submission, the NTEU undertook that that there would be no withholding of results that were “referable to this round of assessments”, which we understood to encompass deferred and supplementary examinations. 20

[57] On the basis of the NTEU’s undertaking, we have determined to make an order suspending protected industrial action in the form of the Results Ban for a period of two weeks commencing at 9.00 am on 14 August 2013.

The NTEU appeal

[58] The NTEU appeal challenged the validity of the Order made by Vice President Lawler. The gravamen of its challenge was that the protected industrial action which had occurred up until 15 July 2013 which his Honour concluded satisfied the s.424(1)(c) criterion was not the same industrial action which was being engaged in at the time his Honour made the Order, because the expansion and refinement of the exemptions regime which occurred after 15 July changed the nature of the industrial action. Therefore, the NTEU submitted, the protected industrial action the subject of the s.424(1)(c) finding was not being engaged in or threatened, impending or probable at the time the Order was made, meaning that neither of the alternative jurisdictional prerequisites for the making of a suspension order in s.424(1)(a) or (b) was satisfied.

[59] The Decision does raise a novel question as to whether s.424(1) requires the making of an order in respect of protected industrial action which at some time in the past has threatened to endanger the life, personal safety, health or welfare of part of the population but no longer does so. Prima facie, we think it unlikely that it was the intention of the legislature that s.424(1) would require or permit the making of orders which, at the time of their  making, are known to have no substantive operative effect.

[60] However, that question will remain one for another day, because we consider that the NTEU’s appeal lacks sufficient utility to justify the grant of permission to appeal. As earlier stated the Order was purely nominal in nature and expired some weeks ago now. Its only practical effect was that, by virtue of s.430, the NTEU was required to issue a new notice of protected industrial action. The issue of the stay order had the practical effect of making this statutory requirement inapplicable pending the hearing of the appeals, and in any event we were informed that the NTEU had, out of more abundant caution, promptly issued a new notice. The order we have made prospectively suspending the Results Ban has rendered these past events irrelevant. No identifiable practical purpose can be served by us determining the NTEU’s appeal.

[61] The NTEU is refused permission to appeal.

Resumption of negotiations

[62] We would add one thing. As earlier stated, we were advised during the course of the appeal hearing that negotiations between the parties for a new enterprise agreement had ceased because of the Results Ban. Given the order we have made, we would expect that such negotiations will now immediately resume and be conducted in good faith. The parties may of course request the assistance of the Commission in that connection at any time.

VICE PRESIDENT

Appearances:

R. Niall SC with C. Dowling of counsel for the National Tertiary Education Industry Union

J. Bourke SC with M. Follett of counsel for Monash University

Hearing details:

2013.

Melbourne:

12, August.

 1   Appeal hearing transcript PN903

 2   PR539479

 3   [2013] FWC 5124

 4   PR539619

 5   [2013] FWC 5256

 6   PR540162

 7   At [13]

 8   [2010] FWAFB 1014, 194 IR 30

 9   See Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 at 460 [135] per Kirby J

 10   (2012) 246 CLR 469 at 476 [14] per French CJ and Hayne, Crennan, Kieffel and Bell JJ

 11   Appeal hearing transcript PN632

 12   [1999] AIRC 1397

 13   [2009] FWA 1535

 14   In B2013/1065

 15   Transcript 26 July 2013 PN759

 16   Appeal hearing transcript, PN 375 (University), PNs 659-660 (NTEU)

 17   Transcript 26 July 2013 PN868

 18   Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [69]-[72] per Lander J, [128]-[130] per Buchanan J, [179]-[180], [182] per Perram J.

 19   Ibid

 20   Appeal hearing transcript PNs 845-847

Printed by authority of the Commonwealth Government Printer

<Price code G, PR540552>