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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

COMMISSIONER LEE

 

C2022/1761

 

s.739 - Application to deal with a dispute

 

Mr Jonathan Dugald Mitchell

 and

University of Tasmania

(C2022/1761)

 

University of Tasmania Staff Agreement 2017 - 2021

 

Melbourne

 

4.30 PM, MONDAY, 21 MARCH 2022

 

Continued from 18/03/2022

 


PN1          

THE ASSOCIATE:  Matter U2022/4761, section 739 application between Jonathan Dugald Mitchell and University for Tasmania, for mention and/or direction hearing.

PN2          

THE COMMISSIONER:  Good afternoon.  So, Mr Mitchell, are you continuing to represent the applicant?

PN3          

MR M MITCHELL:  Yes, if it please the Commission.

PN4          

THE COMMISSIONER:  You were granted permission to appear, at the conference on Friday.

PN5          

Mr Collinson, you're seeking permission to appear to represent the university?

PN6          

MR R COLLINSON:  Yes, I am, thank you, your Honour.

PN7          

THE COMMISSIONER:  Do you have submissions on that point, briefly, Mr Collinson?

PN8          

MR COLLINSON:  I think the efficiency and I would imagine the basis on which you gave my friend permission, on last Friday.

PN9          

THE COMMISSIONER:  Yes.

PN10        

Mr Mitchell, any objections to Mr Collinson being granted permission?

PN11        

MR MITCHELL:  No, Commissioner.

PN12        

THE COMMISSIONER:  All right.  Look, I'm satisfied, having dealt with the file already, that there's some complexity in the matter and granting permission to Mr Collinson the matter will proceed more efficiently, in the circumstances.

PN13        

So I've listed the matter for mention directions.  Mr Mitchell, you've put in some brief submissions and proposed directions and orders, anything else you want to say about what you're asking me to do this afternoon?

PN14        

MR MITCHELL:  Not at this stage, Commissioner.

PN15        

THE COMMISSIONER:  All right.  Can I ask you about 11.1?

PN16        

MR MITCHELL:  Commissioner, the order proposed there would obviously not have any effect on my client's employment, it's simply an attempt to preserve against any further exacerbation of the dispute and I couldn't tell you, off-hand, what that might be.  It may well be that everything can be dealt with at an interim hearing, if that were to occur quickly.  But it was the logical thing to put in, if we say that the status quo, as it is, should be preserved.

PN17        

THE COMMISSIONER:  I mean the (indistinct) that jumped out for me is that clause 15.3(b) of the relevant EBA provides for exactly that, that there are requirements during a dispute, including no party to the dispute to take any other action likely to exacerbate the dispute.

PN18        

So, in the circumstances, I'm not sure why I would make an order that has the same effect, in terms of what the parties are already bound to do.

PN19        

Now, that will turn on whether or not there's been a breach or is going to be a breach of that, or whatever the case may be, but the remedy then is the same for your client, which is to go off to the relevant jurisdiction and say, 'Well, that's been breached and we seek penalty'.  There's no need for me to make an order, it already is there.

PN20        

MR MITCHELL:  Well, Commissioner, I think that actually puts - just excuse me for a moment, please.  Apologies.

PN21        

THE COMMISSIONER:  And just further, so in that sense, let's just say I was minded to make such an order, it doesn't change the position if you form the view that the university has acted in breach of that, well, the same issue, you've got to go off and prosecute.  That's all that that - that's the point.

PN22        

MR MITCHELL:  Commissioner, very well, I'll say three or four things to that.  The first is that clause 15.3, on its terms, only applies during the interim - - -

PN23        

THE COMMISSIONER:  Interim dispute resolution procedure.

PN24        

MR MITCHELL:  Interim dispute resolution.  I would have thought that that clause, in itself, is somewhat prolix, because it reflects the general law that a respondent, or any party, should not take steps to exacerbate when dispute resolution is on.

PN25        

I'd also dispute that it's a matter of going to another jurisdiction.  The Commission has powers to deal with situations like this.  The parties are before it, it may not be a court, but it is an arbitral panel.  It has full powers to make such orders, as are required, to facilitate the hearing and resolution of the matter, by arbitration.  This, in fact, is the correct forum for it.

PN26        

THE COMMISSIONER:  I understand that's your position, Mr Mitchell, I think you're missing the point.  The point is, what is the utility in making an order, as a simple point.  What's the utility in me making an order to bind the university to do something to which they are already bound, by virtue of a term that is in the enterprise agreement, where they've agreed to, and which is an enforceable instrument?  You're asking me to make another enforceable order, which is in exactly the same terms as the instrument which binds the parties, aren't you?

PN27        

MR MITCHELL:  Yes, Commissioner, we are, in circumstances where one party has shown that its not taking any notice of what its obligations are, under the enterprise agreement.  That's one of the purposes for which, I would submit, the Commission exists.

PN28        

THE COMMISSIONER:  All right.  Anything else you want to tell me, at this point?

PN29        

MR MITCHELL:  Nothing more to add to that, Commissioner.

PN30        

THE COMMISSIONER:  All right, thank you.

PN31        

Mr Collinson, your views on all matters before us?

PN32        

MR COLLINSON:  Yes. Commissioner, I sent a letter through, an hour or so ago, setting out the position of the respondent and you'll see, in that letter, that there are some very strongly taken jurisdictional objections to the power of the Commission to arbitrate a dispute, as properly characterised.

PN33        

What I would say, briefly, to address those things, I would oppose any immediate order, in the nature of 11.1.  That really relies upon an exercise of, seems to me, section 589, to make some sort of order.  That's a very vague order, in its terms, which may exacerbate the dispute, by what action is the subject of the order and what action is that which may exacerbate the dispute that warrants the order?  There's a real danger with making generalised orders like that, which, as you're aware, if breached, have real consequences, in terms of their enforcement.  So I strongly oppose the making of a general or vague order like that.

PN34        

In terms of the section 509, it's a facilitative provision and I understand not getting on to the case law today, but there is the decision of Wills Grab Marley v Sydney Trains(?) of the Full Bench, in August of 2020, and it makes a comment about section 589 and it talks about the construction that was contended there.  It was said that:

PN35        

The Commission would have the power to make an order for reinstatement on any interim basis, in the context of an unfair dismissal application, before any finding that the person has been unfairly dismissed and it's highly unlikely that such consequences would have been the result intended by the legislator.

PN36        

I just raise that because I don't know if you intend to program directions for the hearing of an interim order, but I'm not entirely sure what the basis of the power is for actually making any interim reinstatement order, and there can be no dispute whatsoever that the employment has terminated.

PN37        

In my submission, or in any event, your Honour, is that it seems to me that the jurisdictional objections should be dealt with by your Honour first.  It seems to me that they could be dealt with, with a reasonably efficient timetable of a week for parties - a week to lodge the objections and respond and either that takes a short hearing or it can be dealt with in the papers, sir.

PN38        

But it seems to me that those jurisdictional points I've raised, they're narrow issues and they could be determined by yourself efficiently and effectively, before going on and considering any substantive hearing of the matter, or applications for reinstatement.

PN39        

THE COMMISSIONER:  Sure.  All right.

PN40        

Responses to that, Mr Mitchell?

PN41        

MR MITCHELL:  Sorry, I just had to find the mute button, Commissioner.

PN42        

I have no objection to a hearing, with the opportunity for submissions and evidence, of which there's really none before the Commission at the moment, to deal with the jurisdictional objections.  In fact, my submission would be they have to be dealt with that way.  If they're going to raise this point, it can only be by a public hearing.

PN43        

I would just say, also, that the application for reinstatement, which I'm quite happy to expand on the basis for it, in submissions, can also be dealt with at the same time, as it was dealt with in - a similar order, dealt with in fairly short order, in the Mt Arthur case.

PN44        

THE COMMISSIONER:  Well, with respect, the Mt Arthur case was - well, there's two things about the Mt Arthur case, isn't there?  (1) The application wasn't granted, in terms of interim relief.  (2) That was directed at an order that the unvaccinated workers not be restricted from being able to attend work.  So that wasn't a reinstatement issue, was it?

PN45        

MR MITCHELL:  Commissioner, as I said, not entirely the same and as I did expound on, in my submissions, there's some important factual differences between this matter and the Mt Arthur interim matter, which would distinguish why it wasn't granted.  The circumstances are different here.

PN46        

The point I would make is that it demonstrated that the Commission will look at the means of maintaining the status quo, ensuring that the matter is not exacerbated, pending the hearing of the arbitration.

PN47        

THE COMMISSIONER:  Yes.  Well, there's a (indistinct) though, isn't there, where Mt Arthur, those workers were still employed and your client isn't.

PN48        

MR MITCHELL:  Indeed.  Indeed.  And that, we would say, is the point.  The respondent appears to be under the belief that it can change the realities on the ground, simply by sacking people.  Unless that's seen to be a florid way of dealing with it, if one looks at Mr Collinson's letter that he's written, the way he's put it, it appears that any dispute can be disposed of, on his reasoning, by an employer sacking the relevant employees.  This all really works on the same principle.

PN49        

Now, I have to say, as someone who often acts for employees, I am kicking myself that I didn't think of that.  I think it will be a matter of public interest, all over Australia, that proposition.  This is why we are saying that that step that was taken is one that should not have been taken, that it's an attempt to get around the jurisdiction of this tribunal and its in circumstances where the same excuses do not exist.  A mine worker cannot work from home.  There could be no real objection to people being terminated in the interim.  But my client has been effectively working from home, for the last six weeks.  There is no reason to terminate him.  It appears that it was done in order to facilitate this, I would say, heroic argument that a respondent, by its own unilateral actions, can change the jurisdiction.

PN50        

THE COMMISSIONER:  Well, all right.  I mean isn't that - isn't your position that, in terminating his employment, tell me if I've got this wrong, the essence - I'm trying to understand your submission, is that in terminating his employment they have breached the enterprise agreement, is that the position?

PN51        

MR MITCHELL:  No.  I am saying that they, I mean they may have, but that is not the point.  I am saying that the respondent has tried to prevent the consultation issue coming before the Commission and to do it by sacking the applicant and thereby arguing that there is no more any dispute to be dealt with.

PN52        

THE COMMISSIONER:  All right.  Are there any decisions you can point me to, and if you can't do it now then obviously look to do it as part of the proceedings, but any proceedings you can point me to that have been conducted, pursuant to section 739, where the Commission has ordered a reinstatement of the employee?  So I'm not talking about reinstatement, obviously, under part 3(2), because I don't know of any myself.  But if you can point me to any, I'd be grateful, bearing in mind it would need to be a dispute settlement procedure which would be analogous to this one in some way.

PN53        

All right.  Can I just ask, sorry, go back a step, if I understand the position from the F10, your position is that the university has failed to complete, if you like, or even start, perhaps, the internal dispute resolution procedure, in 15.4?

PN54        

MR MITCHELL:  Yes, Commissioner.  We say that we not only commenced it, but we also sent them letters asking them if they would do that.  In fact, I think the applicant sent a letter which, effectively, was about three days into the process saying, 'Look, it appears to me that you're not willing to do this.  If so then we should go straight to the Commission.  Will you please state your position', and never got a reply.

PN55        

There's a clause, at 15.4, I'll just go across to, actually, I think it's 15.5(a), which says that - - -

PN56        

THE COMMISSIONER:  Yes, I understand that, you can go there, if the parties refuse to engage in the process and there might be a dispute about whether they have refused to engage in the process.  But your contention is that they didn't complete the internal dispute resolution procedure?

PN57        

MR MITCHELL:  Yes, Commissioner.

PN58        

THE COMMISSIONER:  All right, thank you for that.

PN59        

Let me deal with, because it's a straightforward point, in terms of what - unless there's anything else you want to tell me, Mr Mitchell, I'll deal with the first point, which is whether or not to make the order that you seek that I make today.  Nothing else?

PN60        

MR MITCHELL:  No, nothing else, Commissioner.

PN61        

THE COMMISSIONER:  All right.  Well, I'll just indicate the following decision, ex tempore.

PN62        

The applicant has sought, from me today, an immediate order forbidding the respondent from taking any action which may exacerbate the dispute, until a resolution of the matter by arbitration.  I decline to make that order.  The reasons are, firstly, it's the applicant's own contention, which they're entitled to prosecute, that the employer has failed to engage in the internal dispute resolution procedure, pursuant to clause 15.2.  It's a requirement of that procedure, in 15.3(b), that:

PN63        

Management shall not change work, staffing or the organisation of work that is subject of the dispute.

PN64        

And, relevantly, for the purposes of this decision:

PN65        

Nor will any party to the dispute take any other action likely to exacerbate the dispute.

PN66        

So there's no utility, in my view, in making the order sought, to the extent that it is identical to the provision which binds the employer, by virtue of the operation of the enterprise agreement.

PN67        

In any event, notwithstanding that it replicates the wording of the provision in clause 15.3(b), that is the order that's sought replicates that, I agree with the submissions of Mr Collinson, to the effect that making such an order, in its own right, is not - is by no means desirable in the circumstances where making determinations as to what action the university might take which would be likely to exacerbate the dispute is extremely vague and would raise more difficulties, in terms of the enforceability of the order, in any event.

PN68        

So, for those reasons, I decline to issue that order and that order will not be made.

PN69        

MR MITCHELL:  May it please the court.

PN70        

THE COMMISSIONER:  In terms of the balance of what's sought, in terms of directions, there seems to be a common view that the jurisdictional point should be determined, save that, as I understood this point, the submission of Mr Collinson, his view is that the jurisdictional point should be determined first and the interim orders second.

PN71        

Mr Mitchell doesn't dispute, as I understood it, the desirability of having the jurisdictional point dealt with, at least at the same time.  I think that's the desirable course.  I'll deal with the whole thing, if you like, in one manoeuvre.

PN72        

So the directions will need to be set such that the applicant will file its materials, in respect of the interim orders sought including, I should say, a copy of the draft orders so I have some idea of what the interim orders need to be, as well as their arguments on jurisdiction.  The respondent can respond to that and then we'd have a hearing subsequently.

PN73        

You talked about, just to digress slightly, for a minute, Mr Mitchell, to evidence.  What evidence are you referring to that you'd need to bring?

PN74        

MR MITCHELL:  Commissioner, if I can answer that, and if I can also make just one comment that I hope will be helpful, about the timetable.  As to that, my concern has been I appreciate that the Commission is not strictly bound by the rules of evidence, however it does seek to adhere to them, wherever that's useful and expedient.  I'm just conscious that there is very little evidence before the Commission, just five or six documents, and everything has been done by way of submissions.  There's a number of things have occurred which I think would be relevant, certainly to the point about dismissals and the reasons for it, and possibly some background also, as to - I appreciate the respondent's arguments are much more strictly blackletter law, but there still may be something there, and I would anticipate putting on - I had expected that we would be required to put on a statement by the applicant, setting out some background.

PN75        

THE COMMISSIONER:  Don't try and run the merits case as part of this.  So this will be about whether or not I've got - whether there's jurisdiction.  And I think it's appropriate that you go first, because part of that really turns on you setting out what is it that you are ultimately going to be asking me to do, in terms of resolving the dispute.  Not just the interim order report, but where does this go in the end, including the question that you say I'm to resolve.  Does that make sense?  I mean you don't have to do that, it's a matter for you how you run your case, but if you don't, then it makes it problematic, to say the least, in terms of trying to understand what the jurisdictional basis is going to be.

PN76        

MR MITCHELL:  Well, yes, I - just on the evidence point, I think that reinforces that some evidence and background is required, with respect, Commissioner.  It's not a matter of trying to run the main point.  I would think we're all capable of understanding the difference between these legal preliminary issues and the case itself.  All I can say is, looking ahead at this, I think the Commission is going to want some evidence before it, as to the background to it.

PN77        

In relation to jurisdiction, I can certainly put forward the basis of jurisdiction.  It will be fairly simple.  I think - I would submit that the points raised by the respondent, particularly in this latest letter, are novel, and it is up to them to expound that.  Now, they could certainly do that after seeing what we say the basis of jurisdiction is.  It may be appropriate then to have a short opportunity for reply to the points they raise.  Because, as I say, I think this argument that you can dispose of the jurisdiction to supervise a dispute simply by sacking the other side is novel.

PN78        

THE COMMISSIONER:  All right.  So right of reply, all right.

PN79        

MR COLLINSON:  Can we just say, if it's of any assistance, I have no issue if you want to build into the directions a reply from the applicant, prior to listing the matter for hearing.

PN80        

THE COMMISSIONER:  I think that will be sensible.  I still thing, subject to what anyone else wants to say, it's still sensible for the applicant to first, because I do think (indistinct) jurisdictional points will turn (indistinct).  My microphone isn't working properly, I'm getting lots of feedback.

PN81        

To a certain extent the jurisdictional point turns on, ultimately, what's the Commission ultimately going to be asked to do.  I don't think, and I'm happy to be told otherwise, that you can determine that, absent some idea of what is being sought to be arbitrated, given the terms of the dispute settlement procedure are framed in a particular way, that is, that it allows for the settlement of disputes - I'll just quote it directly.  Well, there's a couple of things:

PN82        

Procedures can apply to any dispute raised by an employee, union or the university, regarding the application of the terms of the agreement or the National Employment Standards.

PN83        

So it needs to be grounded in that.  So, for example, the ultimate dispute that's to be resolved is, arguably, and, of course, there could be argument on this, not connected to that, in some way, well, that's a jurisdictional point in its own right.  Hopefully that makes some sense.

PN84        

Now, you're proposing to file by Wednesday, 23 March.  I think - just bear with me for a minute?

PN85        

MR MITCHELL:  Can I say something on that?

PN86        

THE COMMISSIONER:  Sure.

PN87        

MR MITCHELL:  In view of the additional issue that we're looking at which, to borrow a phrase from my friend, is rather more vague and widespread than the one I was looking at, I think, I say that with all respect, I think I'd be asking more than just the two days, if it please the court.

PN88        

THE COMMISSIONER:  All right, a week?

PN89        

MR MITCHELL:  That would be sufficient.

PN90        

THE COMMISSIONER:  Fine.  So that takes us through till 28 March for you to file.  We'll frame this that the applicant file and serve its witness statements, submissions and statement of interim orders sought, by 5 pm on Monday, 28 March.  In addition to that we will be including its - we'll include materials relevant to the jurisdictional point.

PN91        

Then, Mr Collinson, for you to file, a week after that?

PN92        

MR COLLINSON:  Yes, thank you, sir.

PN93        

THE COMMISSIONER:  Okay.  So that will be Monday, 4 April.  Another week for reply, Mr Mitchell?

PN94        

MR MITCHELL:  Apologies, Commissioner, I had to find the button.  I would only need a couple of days, it is only a reply, not de novo.

PN95        

THE COMMISSIONER:  Okay.  Well, why don't we say, then, the end of that week, Friday, 8 April for your reply.  And we'll set the hearing on 13 April.  Any difficulties with that, for anyone?

PN96        

MR MITCHELL:  That's fine, thank you, Commissioner.

PN97        

THE COMMISSIONER:  Okay.  Mr Collinson?

PN98        

MR COLLINSON:  Yes, that's fine, your Honour.  Is your Honour proposing to do that via Teams?

PN99        

THE COMMISSIONER:  Yes, I would say so.  I mean at this stage, unless there's some complicated evidence to be led, but I can't see how that's going to be the case, but we'll see.  But, at this stage, yes, I can't see why we wouldn't be able to do it via Teams.  It may be that the parties are able to reach a position where they form a view that a hearing is not required.  That might fall from the fact that to a fair extent I don't think - I would have thought a number of the key factual points, relevant to jurisdiction, wouldn't be in dispute.  That is, when conversations happened and what letters were written and so on and so forth.  So it might be that there's not too much to be determined, in a factual sense, and in a legal sense, I can deal with that on submissions, probably.  But I'll set a hearing date, just to be sure, but we'll see how that goes.

PN100      

MR M NALLY:  Excuse me, Commissioner, it's Martin Nally here, from the university, Commissioner, I've just been an observer and obviously Mr Collison is representing us, the 13th - we're in the throes of renegotiation of our enterprise agreement and we have every Wednesday that is allocated for negotiations, and there's a full day on the 13th.  I'm just wondering whether - I'm more than happy to modify that, or to accommodate, if that's the only time that we could do that, but would the 12th be a possibility, or the 11th?  I know it's shorter days, et cetera, for people, but I do humbly apologise, but we've got these days scheduled in with the unions, on an absolutely regular basis, and I'm really loath to disappoint the parties.  We've got a number of external people involved in that particular day as well.

PN101      

THE COMMISSIONER:  All right.

PN102      

MR COLLINSON:  Your Honour, it's Mr Collinson, I can tell you that the 12th, the 14th or the 15th, if that's of assistance.

PN103      

THE COMMISSIONER:  Okay.

PN104      

MR NALLY:  Thank you so much. Even if you could consider that.  I humbly apologise, but it's just that that one day was a particular day, so apologies.

PN105      

THE COMMISSIONER:  I can't do the 11th, I can do the 12th.  Can you do the 12th, Mr Mitchell?

PN106      

MR MITCHELL:  I can, Commissioner.

PN107      

THE COMMISSIONER:  Okay.  The 12th it is.

PN108      

MR NALLY:  Thank you so much for your forbearance and I appreciate that very much.  Thank you.

PN109      

THE COMMISSIONER:  That's all right.  We'll draft up those directions and send them out and look forward to receiving your materials.  Anything else from anyone?

PN110      

MR MITCHELL:  Commissioner, can I ask one thing?  Assuming this goes on to a hearing, do you know, like a final hearing of arbitration, is there any - I'll explain the reason I'm asking this, is there any idea as to roughly when that may be?

PN111      

THE COMMISSIONER:  No.

PN112      

MR MITCHELL:  Is that too hard to predict?

PN113      

THE COMMISSIONER:  It entirely depends on, first, do you get past this first jurisdictional hurdle.  Secondly, what I'm being asked to determine and what evidence is required in order to enable me to do that.  That could take some time.  My experience, sitting through nine arbitrations, I've done quite a few, can go for many months.

PN114      

MR MITCHELL:  All right.  Thank you, Commissioner.

PN115      

THE COMMISSIONER:  They're all different.  They're all different because they all depend on, almost invariably, very unique circumstances to particular workplaces and people.  Okay?

PN116      

MR MITCHELL:  Okay, thank you, Commissioner.

PN117      

THE COMMISSIONER:  Thank you.  Nothing from you, Mr Collinson?  Happy?

PN118      

MR COLLINSON:  No, thank you, Commissioner.

PN119      

THE COMMISSIONER:  All right.  Thanks everyone, we're adjourned.  Have a good day.

ADJOURNED UNTIL MONDAY, 11 APRIL 2022                             [5.09 PM]