PN120

THE COMMISSIONER: Good morning everyone. Sorry about the late start. I'll just reconfirm the appearances, please.

PN121

MR M MITCHELL: Yes, Commissioner, Michael Mitchell, lawyer, appearing for and with the applicant Jonathan Dugald Mitchell.

PN122

THE COMMISSIONER: Thanks, Mr Mitchell.

PN123

MR R COLLINSON: Collinson, R, Commissioner. With me is Mr Catchpole and Ms Wedlock and Mr Nally from UTas, the respondent.

PN124

THE COMMISSIONER: Just confirming for the record, if I haven't already, that permission has been granted to both the applicant and respondent for legal representation as I was satisfied as to the factors under section 596(2). Today was listed for hearing, consistent with the directions already issued. Mr Mitchell, over to you.

PN125

MR MITCHELL: Thank you, Commissioner. I will address briefly, if I may. A lot of the details have been set out in the submissions in chief and the submissions in reply. There's two distinct issues before the Commission today. The first is, logically, the respondent's contention that the Commission has no jurisdiction, or no longer any jurisdiction, to hear the matter. Only if that is found against the respondent will it then fall to deal with the second matter, which is the applicant's seeking an interim order in the nature of an injunction to reinstate his employment in order to restore the status quo pending the final hearing of the matter by arbitration.

PN126

Just dealing with one factual issue first, because this can have an effect on the various authorities - and I should say I am now turning to deal with the respondent's contention that there is no jurisdiction - the respondent has contended that the applicant was dismissed on 15 March. This can make a difference under the authorities. Our contention is that he was clearly dismissed on 18 March. That is shown, firstly, by the applicant's unchallenged evidence as to what his supervisor said to him on 15 March, which was to the effect that he was going to be terminated by a letter from the university.

PN127

THE COMMISSIONER: Just before we go on, have the parties had any discussions? Is the applicant required for cross-examination, Mr Collinson? You are on mute again.

PN128

MR COLLINSON: I'm sorry. Thank you, Commissioner. We haven't had any discussions, but, look, I can indicate that I don't seek to cross-examine. I have no issue if the applicant just seeks to tender the witness statements and, of course, subject to how your Honour wants to proceed, but it would seem to me that the hearing could be dealt with by way of submissions, oral submissions, and questions from the Bench.

PN129

THE COMMISSIONER: Well, Mr Mitchell is saying that it's unchallenged evidence. I just wanted to check whether or not there was going to be any challenge and, in the event that there isn't, then that's fine. Perhaps if we just deal with that at this point then, Mr Mitchell, if that's the case. Let's just just digress briefly and deal with the tendering of the applicant's two witness statements and various attachments.

PN130

MR MITCHELL: Yes, I stand corrected and my friend is quite right. The first step is to tender those statements. The first is a witness statement dated, I believe, 28 March 2022, a statement of Jonathan Dugald Mitchell, and a series of, I believe, 31 attachments to that statement.

PN131

THE COMMISSIONER: They are in the court book from pages 33 - is where this witness statement starts - through to 159, which is where JM31, the last attachment, starts. Presuming there is no objection to that, that witness statement and various attachments will be marked as A1 and accepted into the evidence.

EXHIBIT #A1 WITNESS STATEMENT OF JONATHAN DUGALD MITCHELL WITH ATTACHMENTS DATED 28/03/2022

PN132

And the second statement?

PN133

MR MITCHELL: May it please the Commission, I also tender the second witness statement of the applicant, which I believe is dated 8 April 2022. It has one attachment which, for convenience, has been numbered document 32, following in sequence from the previous statement.

PN134

THE COMMISSIONER: All right. Again presuming there's no objection, the applicant's supplementary witness statement, which starts on page 198 and has one attachment that starts at page 204, that will be accepted as the applicant's evidence and marked as A2. Thanks.

EXHIBIT #A2 SUPPLEMENTARY WITNESS STATEMENT OF JONATHAN DUGALD MITCHELL WITH ONE ATTACHMENT DATED 08/04/2022

PN135

Back to you, Mr Mitchell.

PN136

MR MITCHELL: Yes, thank you, Commissioner. Our contention is that he was in fact terminated on the 18th. Now, there's a series of Full Bench decisions of the Australian Industrial Relations Commission, or Fair Work Australia, and of the Fair Work Commission. A number of those hold that so long as an applicant is employed at the time that he initiates the dispute, it does not make any difference to the Commission's jurisdiction to arbitrate it if he is later terminated, and they include ING v Jajoo, Telstra - I'm using the abbreviations used by both parties in their submissions - Kentz and Deakin University.

PN137

There are some other cases, Full Bench, which affirm those earlier cases, but say that so long as an applicant was employed at the time that he referred the decision to the Commission, it does not matter if he is later terminated; it does not change the Commission's jurisdiction to hear the dispute.

PN138

Now, we say that because he was terminated on 18 March that the applicant in this case satisfies either criteria.

PN139

The respondent has pointed to a passage from one decision in particular, which is Vendrig v Ausgrid, where a Full Bench of the Commission did indicate an opinion that if the plaintiff was terminated at any stage before a final arbitration hearing that the Commission would lose jurisdiction. We would respectfully submit that that decision should not be followed. There is no indication in that decision that the parties there drew the Full Bench's attention to the various line of other Full Bench cases from Jajoo through to North Goonyella, or that it considered them, and, from memory, it wasn't the deciding ratio of the case anyway.

PN140

The respondent has also submitted that the terms of the enterprise agreement in this case would somehow exclude the Commission's continuing jurisdiction. Our contrary submission to that is that the terms of the relevant dispute resolution clause do not assist the respondent. It refers to 'employee' earlier, it refers to 'parties' later. Similar clauses were involved in many of those six or seven Full Bench decisions and in none of them was there a finding that there was an implied exclusion of the Commission's authority.

PN141

I think that is the entirety of what I wanted to say concerning the respondent's application. There appears to be no other basis that they have come up with.

PN142

I should add one more. It also comes up in relation to the applicant's application. There is a suggestion that an arbitration can have no utility because the applicant is no longer employed, that, therefore, he can't engage in consultation. In fact, I don't believe this is covered in our written submissions, but I would draw the attention of the Commissioner to the case of Deakin University v Rametta at paragraph 34 - I apologise if I did cover this in written submissions, but I don't think I did - where the Commission said:

PN143

We are not persuaded the principle contained in the decisions in the ING Administration case or the Telstra case is dependent on the nature of the term of the Agreement in dispute as suggested by Deakin University.

PN144

The rest of that paragraph speaks for itself.

PN145

Now, it's important, in our submission, in this case to consider the reason for the termination of the applicant. It was entirely on the basis of his failure to comply with the very direction, the reasonableness of which is in issue in these proceedings. I believe that circumstance makes it unique among other cases, with the exception, perhaps, of Mt Arthur, and I will return further on to the decision of Saunders DP in that case.

PN146

When the applicant gave his written - I think by email, written notice that he was raising a dispute on 15 February, the response of the respondent showed that it clearly understood what the basis of the dispute was. It, itself, referred to the move to reinforce the lawfulness and reasonableness of its decision. It understood that by the applicant raising this dispute, it would - it sustained attack the reasonableness of it in the sense meant by Mr Justice Dixon in the Darling Island Stevedoring case, and that it understood that the basis on which it was challenging it in the dispute, was an alleged failure to provide adequate consultation.

PN147

As I say, in Deakin University, the Full Bench did not consider the fact that an employee had been dismissed in the first - in the meantime, prevented it from making a finding that adequate consultation hadn't occurred and with the implications that followed. We would submit that in this case that it's not open to the University to rely on a lack of utility in the proceedings, when it itself, has brought that about by an action to exacerbate the dispute.

PN148

I will move on to the applicant's application for a venturing order under section 589, in the nature of an injunction to restore the status quo. In this, we rely on the decision of Saunders DP in the Mt Arthur case, I believe it was on 9 November 2021 in which he heard the application by the applicants in that case for a similar order. Not in exactly the same terms, for reasons which will illumination this case.

PN149

I've also referred in the submissions to the case of Navvy, where also they considered a similar application and followed and approved - when I say they, I mean one Commissioner - these were both single Commissioner decisions - approved of Saunder DP's holding that in such cases, the decision of the High Court of Australia in Australian Broadcasting Corporation v O'Neill and a related decision of (indistinct) Meats, also of the High Court, are the principles that apply.

PN150

We would submit that the interim orders that are available to be made depend on the nature of the case and in a section 739 application, they depend upon the dispute clause from which the jurisdiction depends and in turn, the clause of the enterprise agreement which that dispute clause is dealing with. It depends on the nature and the factual circumstances as to the type of orders that may be appropriate.

PN151

One of the objections raised by the respondent has been that an order for reinstatement could not be made at the final hearing, has not been properly incidental. We have noted in the written submissions a reference in, I believe it's the Full Bench decision of Telstra where they say that such an order can indeed be appropriate, even though not required in the circumstances of that case.

PN152

THE COMMISSIONER: In that decision, they weren't contemplating that as an incidental use of the power, were they? They were contemplating that in the context of it being final relief.

PN153

MR MITCHELL: I had thought that they were saying, yes, in final relief, but - - -

PN154

THE COMMISSIONER: That's a different matter. I don't think there's any contest between you that if you get past today, that it's open to the Commission - if we're at a point where you've jumped these jurisdictional hurdles, and then I'm determining the final resolution of the matter, which might be an order that he be reinstated and the consultation commenced, for example. But I understood the Telstra Bench to be correctly in my view, saying that that is something that, depending on the circumstances, including the particular dispute resolution power, and so on and so forth, that that's a possibility, but tell me if I'm wrong, but I thought that that was - they were contemplating it in that context, rather than the use of the incidental power for us to do what's necessary in terms of running the dispute, conducting the hearing of the dispute and so on.

PN155

MR MITCHELL: Look, as I sit here, I'm not in a position to comment.

PN156

THE COMMISSIONER: Well, have a look at that and deal with that on reply.

PN157

MR MITCHELL: Yes, well I'm on that. But in any case, our submission is that an order for reinstatement would be appropriate as an incidental power on - - -

PN158

THE COMMISSIONER: Point me to any decision of the Commission where an order for reinstatement has been made by way of use of - well, relying on that particular - it's 589, isn't it that we're talking about? Just let me check.

PN159

MR MITCHELL: Yes, I believe it's subsection (2).

PN160

THE COMMISSIONER: Yes, so we're talking about 589(2). So, anywhere that - as opposed to a decision and order under 739, as an outcome of a final determination in the matter, which as I say, is what I think is what Telstra was talking about, I just don't know of any - and there may be, but it would be helpful for you to take me to them, but I don't know of any occasion where the Commission has made an interim decision to reinstate someone in respect of them using the power in section 589(2) as an incidental power to do that.

PN161

MR MITCHELL: Yes, thank you, Commissioner. I'm not aware of any decision where it has been ordered. I'm aware of two where it was considered, that being Navvee and Mt Arthur. In the case of Navvee, the essential issue there was that the determination of the employee was in fulfilment of a government mandate which is a factor that doesn't apply here.

PN162

In the case of Mt Arthur, we would submit that the reasons why Saunders DP found against the applicants in that case, are illustrative of why such an order should be granted here. Now, the order sought in that case was not exactly the same as here, because it that case, the employer had not terminated anyone at that stage on the basis of their failure to comply with a decision. Saunders DP referred to O'Neill's case and to the two criteria for issuing an injunction to restore the status quo. That was from O'Neill's case, and I'll note in passing, because it will be important later, but in fact, in paragraph 2 of O'Neill's case, which I haven't referred to in the written submissions, the court noted that there was really a third criteria, which is the overriding interests of justice, and I'll return to that later.

PN163

In relation to a prima facie case, he found that particularly, in relation to the failure to consult under the enterprise agreement, that that criteria was satisfied, which is perhaps somewhat ironic, because at the final hearing, the Full Bench found that the applicants failed to approve lack of consultation under the enterprise agreement because the particular clause in that enterprise agreement, allowed for consultation to occur after the final decision had been made, which the enterprise agreement consultation clause in this case, does not do. But nevertheless, he found the criteria of a prima facie case was satisfied.

PN164

In relation to the balance of convenience, he noted three factors in particular, that told against the applicants in that case. The first was that the respondent employer had given an undertaking that it would not take any disciplinary action against any employee for failing to obey the direction until the final hearing. Now, that's a factor far removed from the present case, where not only is no such undertaking being given, but it's gone the other way that they have proceeded to terminate the application. They have terminated the applicant in circumstances where there was no pressing need for them to do so. The applicant wasn't on campus; he was working from home, nor was he an unproductive employee. He was able to do a full day of productive work, every day that he was employed whilst working from home. There was no need to terminate him.

PN165

A second factor - I'm sorry, I've just lost the - - -

PN166

THE COMMISSIONER: Just while you're looking for that, has the applicant lodged any other applications challenging the fairness or lawfulness of termination?

PN167

MR MITCHELL: No, he has not and there is authority to the effect, I believe, that multiple applications concerning the same facts should be avoided. That's been part of his motivation there.

PN168

THE COMMISSIONER: I'm not sure if that applies to section 739, but - okay. Nevertheless, that's - there's been no general protections claim lodged, or unfair dismissal claim lodged?

PN169

MR MITCHELL: That's correct, Mr Commissioner. I just can't offhand recall what the second factor was, it may come to me in a minute. The third factor was the - actually the second factor was the one that I've just referred to, that possible effects of the interim orders sought by the applicants in that case could be either to force the admission of unvaccinated persons to the workplace, in particular a crowded workplace, being a mine; or to require them to be kept on the books when they could not work. That's a very strong point of difference with this case.

PN170

Mining work, of its nature, is not something one can do remotely, whereas the applicant's evidence is that he was doing a great deal of work of different sorts, he's a very flexible employee, and was fulfilling a number of functions successfully.

PN171

The third reason was a failure to - or refusal to give an undertaking as to damages when the applicants were invited to do so by the court. I would submit in this case it's difficult to see why there would be a need for an undertaking as to damages. If the applicant is restored - is reinstated, it's clear from the evidence that he's going to be working productively. There's not going to be any loss to the respondent in reinstating him. Having said that, if invited to do so, I will take instructions.

PN172

THE COMMISSIONER: What is the applicant doing now? Has he secured other employment?

PN173

MR MITCHELL: Not at this stage.

PN174

THE COMMISSIONER: All right. And has he been vaccinated against COVID‑19?

PN175

MR MITCHELL: No, he has not been, if it please the Commission. Thank you, Commissioner, your question has actually jogged my memory on another point. If I just might interpolate it here.

PN176

THE COMMISSIONER: Happy to help.

PN177

MR MITCHELL: There has been a suggestion in the respondent's submissions; I don't think it's said in quite these terms, but a suggestion that there's no point in holding consultation because nothing would change. I may be doing my friend a dis-service there, but just saying to the extent that an implication may be there, I have referred to statements by the Full Bench, in particular in the Mount Arthur case, pointing out that one cannot presume that events will work out differently - will be the same if consultation is conducted.

PN178

It may be that when receiving the applicant's comments on the basis of consultation, as opposed to his previous comments on a show cause notice, it may be that the applicant, after considering them, sees the need to perhaps alter the basis on which the direction is issued. It may also be that when the applicant considers the responses to the points he raises, his reaction to a new direction may be different. Yes, so they were just the - that point there. Now, going back ‑ ‑ ‑

PN179

THE COMMISSIONER: I'm struggling with that submission because the position is that the university has resolved on way or the other that they're mandating vaccination for COVID‑19 for its employees; and the position of your client is that, as he's entitled to do, has formed a view that he doesn't think that they're safe, and he doesn't want to get one. So they can consult, as my father used to say, until the cows come home, but what's going to change?

PN180

MR MITCHELL: Well, in our submission, Commissioner, that's not a position that's open to the university to adopt. The cases make it quite clear that consultation must proceed, there must be ‑ ‑ ‑

PN181

THE COMMISSIONER: No, no, that's a different question. This is going to the utility of, well, this entire application, frankly. What comes of it? I mean, there are two big issues.

PN182

Leaving aside the jurisdictional point, one is: well, what is likely to change; I mean, if there was some cogent position that one could see that could be reached as a result of consultation which would lead to the applicant's employment continuing, but the only position on that is that presumably that the university agree with the applicant's view that he has proposed in the extensive material that he has put to the university, including through the show cause process, as to his views about the lack of safety involved in vaccines, and so on and so forth.

PN183

He writes extensively about his views as to why COVID vaccinations are undesirable, at least as far as they pertain to him. So his views on that are pretty clear; and the views of the university are pretty clear that they think that there's a benefit to the university staff and community of vaccinating. It's not an unusual position. It has been adopted by numerous large employers across the country.

PN184

So it's not a case where - I mean, look, there have been cases where vaccine-hesitant, if I perhaps put them in that category - people have sort of said they've changed their minds last minute and, you know, they're here at the Commission, and, 'Look, I got vaccinated, my first vax a couple of days after I got sacked, Commissioner,' you know, et cetera. And there's something to kind of get your teeth into there, if I put it that way, Mr Mitchell. I'm just wondering what's going to change. But that's one issue.

PN185

Even if, leaving that aside, I'm just not sure - the view is put in any case that there was no - I mean, your primary position was that there was no consultation consistent with the EBA. Now, there was this survey where employees were asked their view. Your client didn't hold back on his view.

PN186

He says, and I'm looking at page 13 of the court book, 'Do I have any safety concerns relating to vaccination?' He goes on there about risk-benefit ratios, matched wage groups, comorbidity, so on; calls the MRNA technology a completely experimental technology; is concerned about the university opening itself up to long-term litigation and so on. So he has put all those views.

PN187

And then the universities no doubt would have received responses from staff that would be the same as that; would have received responses from staff which are different from that, saying presumably, you know, 'No problem, implement it,' or saying nothing; then they've gone and implemented the policy.

PN188

I should say I'm not with Mr Collinson that this was not a significant change, I think it is; consultation clause applies. I don't think it would be fair to say that it didn't, because ultimately, and your client is a case in point, led to his termination of employment, so on any view it's a significant change, consultation should have occurred. But it occurred anyway, didn't it? They're the two big issues, I think one needs to grapple with.

PN189

MR MITCHELL: Commissioner, thank you for the feedback. In relation to the first point, I would again submit that it's simply not a submission - I don't think it's what the evidence shows. I don't think the evidence shows that either party is locked into their views here. The applicant in particular put his views on certain points, on the very limited points that were asked in the survey. That didn't indicate that he wasn't prepared to listen, but he put some points there which were never responded to.

PN190

In relation to the show cause letter, that occurred after the decision had been made. That's not consultation within the meaning of the clause; and again, it was a show cause letter, he was invited to show cause as to why his employment should not be terminated. He covered everything, but that doesn't mean it's consultation. In fact, it quite clearly wasn't because it wasn't directed as to: let's hold consultation with the employees as to whether this direction should be implemented in the first place.

PN191

I don't think, on the evidence - I say 'I don't think' as in off the top of my head I can't think of anything in the evidence which shows that the university will not consider any points made in consultation. And I don't think, again in the sense of I can't think offhand of anything in the applicant's material which shows that he will not consider any points made validly in response to the issues he raises. At this point it just hasn't happened.

PN192

As the Full Bench in Mount Arthur makes the point, I think it's round about paragraph 110, the issue that applies in consultation is not the likelihood of there being a different result, but as the High Court put it, the possibility of there being a different result. That different result may not - doesn't have to be deciding not to remake the direction, but it may be a difference in terms of how the direction is made.

PN193

And again it cannot be said that having had his concerns listened to and appropriately responded to, the applicant himself may make a different decision to what he has now. And I would submit also the evidence shows that the applicant has never adopted an iron-clad view that he would never get vaccinated; rather, I believe my recollection is that he makes the opposite clear.

PN194

THE COMMISSIONER: I would say that if you look at page 106 of the court book - can't hear you. Have you got that?

PN195

MR MITCHELL: I'm just getting to it now, if it please.

PN196

THE COMMISSIONER: Yes, that's all right. So it's JM25. You're muted again. Can't hear you.

PN197

MR MITCHELL: Hello?

PN198

THE COMMISSIONER: Hello, you're back, yes.

PN199

MR MITCHELL: Yes, I've found page 106.

PN200

THE COMMISSIONER: Okay. So if you look at the third paragraph, starts with 'I intend to set out below'.

PN201

MR MITCHELL: Yes.

PN202

THE COMMISSIONER: Continuing:

PN203

The reasons I've arrived at these decision. I may still yet be vaccinated, but it will be on my time, and a decision between me and my doctor. If I felt at any time that the evidence supported the idea of me being a danger to my fellow colleagues or students, or any vulnerable person on such a basis, I would not have the same objection, but there is not information available to prove this.

PN204

That is the state of the evidence, isn't it, that your client will determine when he thinks the state of the evidence is such that it's safe to be vaccinated, and I can presume that given he still remains unvaccinated that at the present time he still remains of the view that it's not safe and therefore he will not be vaccinated.

PN205

MR MITCHELL: Well, Commissioner, I submit that what that shows is that he still hasn't received a response from the university to his concerns. It's an open invitation to them to respond to his concerns, which they've never done.

PN206

THE COMMISSIONER: And his concerns being this extensive submission that he's made where he talks about the safety of the vaccines and risk assessment, 'spike proteins code 4 and the vaccines is pathogenic,' 'the risk of myocarditis and pericarditis, particularly in young people, Pfizer trial, (indistinct) and uncontrolled for four months,' et cetera, et cetera, and his conclusion about the safety of the vaccines. He's wanting the university to respond on all those issues, is he?

PN207

MR MITCHELL: Well, this letter that we're looking at is an answer to a show cause letter. It's not an answer to consultation.

PN208

THE COMMISSIONER: No, just follow me on this, Mr Mitchell. If I'm to reinstate him, and we go back to have consultation, well this is presumably what he wants to consult about, is it?

PN209

MR MITCHELL: Well, I'm not in a position to say that at present, because the first step is that the university has got to follow what it should have done in the first place: issue an appropriate notice as required under 12.2(c) of the enterprise agreement, and then for him to put his points as to why the university should not make that direction, or should not make that direction in the same terms.

PN210

Now, I can't say whether it would be as voluminous as this. I think it can probably be got down to a lot shorter. And of course in one sense it has to be longer, because what the university never invited consultation from for anyone was the industrial effects of the proposed direction. That's just absent, even from the email that was sent out. He's got to be given the chance to make that.

PN211

The university has to read it, has to consider it; it can make points in response, if it wishes, but that's the process that has got to occur. Making the final decision and then issuing a show cause, which says tell us any reason why we shouldn't terminate you, I mean so we can use that as a substitute for consultation, I would submit is not a course open to the university.

PN212

THE COMMISSIONER: What are the rest of your submissions?

PN213

MR MITCHELL: Yes. In relation to Saunders DP's decision, the three reasons that he found why the balance of convenience did not favour granting the order in the nature of injunction in that case are all different from my client's case. This is the only case that I'm aware of where a respondent employer has terminated an applicant on the very basis which is at issue in the dispute, and the balance of convenience, we would say, in this case clearly favours the applicant.

PN214

As I said above, the respondent suffers no prejudice by reinstating him. He's able to work productively from home. He's not on campus. The applicant on the other hand is not merely – I've cited some cases in the submissions, and I expect they're well‑known to both the Commission and my friend, in relation to the reason why loss of employment can be quite devastating to a worker, quite apart from loss of pay and entitlements. Excuse me, Commissioner. That concludes the submissions, if it please the Commission.

PN215

THE COMMISSIONER: Would you agree that Part 3‑2 of the Act, which is the unfair dismissal provisions, that an application made under that provision would provide (indistinct) unambiguously power for essentially all the relief that you seek, that is, reinstatement, orders for lost pay, which is essentially what's sought here, a finding that the direction was not lawful and reasonable?

PN216

MR MITCHELL: It could do that, Commissioner, but it would not provide for consultation to take place, as it should have originally.

PN217

THE COMMISSIONER: All right. Anything else?

PN218

MR MITCHELL: No, Commissioner.

PN219

THE COMMISSIONER: Thanks for that. Mr Collinson.

PN220

MR COLLINSON: Thank you, Commissioner. If you can please bear with me if there's internet issues. I'm having some slight issues. Unfortunately I'm in isolation and working from home, and the internet quality isn't the same as in the office.

PN221

THE COMMISSIONER: Okay. That's all right.

PN222

MR COLLINSON: I apologise for that. That why intermittently it turned my camera off due to the quality of the connection.

PN223

THE COMMISSIONER: Yes.

PN224

MR COLLINSON: Commissioner, it's a very, very simple jurisdictional point to determine as a preliminary matter, and that is that, as you're well‑aware, you first look at characterising the dispute, what actually is the dispute, and then once characterised, the second part is does the Commission have the jurisdiction under the powers granted to it by the DSP to determinate that dispute.

PN225

We say the dispute, properly characterised, is as to the lawfulness and reasonableness of the direction to vaccinate under the procedure, and I would suggest that the applicant has been very careful to avoid acknowledging that, and the reason for that is that once that's acknowledge, unlike the Mt Arthur case, there's no jurisdiction to determine that dispute, and that's because it turns on the words of the DSP, and in clause 15.1 it quite clearly states that the Commission has the power to determine disputes as to the application of the terms of the agreement.

PN226

Now, that's very different to the Mt Arthur case where at paragraph 256 the Full Bench sets out some concluding remarks and they say they want to emphasise in particular features of the matter, and at point 3 they say:

PN227

The dispute resolution procedure in the agreement is not limited to disputes about matters arising under the agreement and extends to any dispute arising in the course of the employment.

PN228

That particular clause in the DSP is the key difference between these two matters, and I raise that because it's quite clear the applicant's very much hitched his wagon to the Mt Arthur case. If you look at the relief that's been sought in form 10, the wording is identical to the characterisation of the dispute in the Mt Arthur case, and the applicant has extensively referred to and keeps coming back to the Mt Arthur case.

PN229

In the Mt Arthur case, the characterisation of the dispute, quite properly, wasn't whether there was adequate consultation. The characterisation of the dispute was whether the site access requirement to have had at that stage the first vaccine dose, whether that was a lawful and reasonable direction.

PN230

The hearing involved a whole number of factors including expert opinion evidence, Privacy Act, bodily integrity, existing practices; looked at the particular employment circumstances on the site, so it took into account a whole range of things, and then, as you know, all of that kind of got knocked down, and the applicant – the union in the end just got up on one small point, which was the consultation. And I don't say 'small point' to – I don't mean that to, you know, denigrate consultation, but what I mean is, out of all of the factors that were raised, that was the only one that they got up on, and as we're aware, there's since been a consultation process and the site access requirement has been implemented on that site.

PN231

So that's the characterisation of the dispute, and clearly under that enterprise agreement the Commission had the power to determine that dispute, and as I say, I think the issue is the minute the applicant acknowledges that is the dispute then there is no power to determine it.

PN232

You've got clause 15, also bolstered by clause 7 of the agreement, Commissioner, where clause 7 expressly excludes – it expressly excludes the policies and procedures from the agreement. 7.8 says, 'Other than as outlined at 7(b) below,' which is not relevant for these purposes, 'university policies, procedures and guidelines do not form part of this agreement.'

PN233

Once you find that what is in dispute between the parties is the application of the procedure as a lawful and reasonable direction, then that's the end of the matter, and dismiss the application for want of jurisdiction. Factually, sir, that is the case. It's how the relief has been squarely put, and it's consistent with the steps that were taken whilst the dispute – sorry, it was consistent with how the dispute was initially lodged, and by that I think it's worth just taking you briefly to page 64 of the court book. Because I want to acknowledge, Commissioner, that yes, during the consultation process the applicant had expressed some strong views and had followed up to say, you know, 'I don't believe you're adequately responding to them.' So there is this issue of, 'I'm not happy with the consultation.

PN234

But that evolves, as disputes often do evolve, where on 11 February, page 64, the applicant sent a letter to say that effective 15 January the procedure was implemented and requires him to respond to that. And this is a paragraph that states that 'The failure to comply or noncompliance may result in termination of your employment.' So he's been sent a mandatory vaccination requirement as per the subject heading of that letter with the clear potential consequences.

PN235

And, sir, at page 66 that's what - when the applicant initiates the DSP for the first time - the internal process - activates clause 15 or purports to - we say it's not a valid dispute, but the applicant activates clause 15, he sends at 9 o'clock on 15 February, a response to that letter to again point out the consultation concerns in clause 12 and that I am raising a dispute. So that's when the DSP has been utilised in direct response to a show cause letter that consists of a requirement to vaccinate or proof of exemption. And a potential consequence.

PN236

And then, your Honour, if you go to page 69 of the court book, three minutes later, the applicant sends a response to say, you know, 'I'm responding to this direction to comply and I was very surprised at its terms and I do not believe it is reasonable for you to issue this direction for the following reasons.'

PN237

Now, I don't know if that was deliberately separated, in my submission, there's no triumph of form over substance. You look at the substance of what is actually in dispute with the parties and what we say is that when the DSP is first utilised, it's in direct response to a requirement to vaccinate or show exemption with certain consequences.

PN238

So, you know, factually that's the case and it's consistent with the submissions that have been made as well, and I do want to make one point about the submissions that demonstrates that.

PN239

THE COMMISSIONER: In that letter, before you go on with that, at 69 and 70, you're right, the first part of the letter does support your view of the evolution of the dispute to being one where he's indicating it's not reasonable for them to issue the direction. But he then again refers to, over the page, to raising a dispute concerning the application of the UTAS staff agreement in terms of consultation. So he is still squarely saying, 'You haven't complied with that.'

PN240

MR COLLINSON: Yes. He acknowledged that, your Honour. He acknowledged that the applicant has a concern with the consultation which he maintains throughout. Fully acknowledge that.

PN241

THE COMMISSIONER: Yes.

PN242

MR COLLINSON: But as I say, when you are looking at the true characterisation of the dispute, it evolves to a dispute as to the lawful and reasonableness of the direction and really, you know, it does continue to evolve to a dispute as to the termination of the employment, following the noncompliance of the direction on the basis that it's not lawful and reasonable.

PN243

In the submissions, it's put in various terms. At page 189, so I'm looking at the reply submissions at page 189 and paragraph 4.11. Halfway down it states that:

PN244

If the arbitrator -

PN245

being you,

PN246

finds that the respondent did not adequately consult, as required by clause 12, that two findings must follow. That the direction was therefore not lawful and reasonable and that any actions based solely on the lawful and reasonableness of the direction must be void. Therefore the appropriate incidental orders to make are to reinstate.

PN247

And I think therein lies the difficulty of the textual gymnastics at play to try and retain some form of jurisdiction, is that it's actually not correct at all, sir, that if you found there was a noncompliance with clause 12, you may say, 'Well, on the materials it seems to me clause 12(c) wasn't complied with, because what was put out wasn't in the form of 12(c).'

PN248

So it doesn't automatically follow that the direction to vaccinate was there for not lawful and reasonable and it further doesn't follow that the termination for that failure was void. Now, the use of the word 'void' is contrary to the High Court authority of Byrne v Frew, a 1995 High Court case where a termination may be unlawful; it may be unfair. It doesn't make it void. The use of the word 'void' is to say that the termination is of no legal effect.

PN249

And, of course, that doesn't - they're non sequiturs. And the reason for that is because you actually do have to determine, if you were going to hear this matter, you would actually need to determine first whether there was a noncompliance with clause 12. But then you would have to go on to determine that, as a consequence of what you found, whether or not the direction to vaccinate was lawful and reasonable in the circumstances. And so, if you go back to the Mount Arthur case with these concluding remarks that the Full Bench made, they're very helpful. They say at paragraph 260, down the bottom:

PN250

Absent a consideration of all the relevant circumstances it is not appropriate to make general statements about whether a direction of a particular character is a lawful and reasonable direction. That said; we think there is some utility in making some broad observations.

PN251

Then they say,

PN252

That said; we think there is some utility in making some broad observations.

PN253

So what's they're actually saying is, 'Look, we've got to decide each of these on their own circumstances, but we are going to make some broad observations to be helpful,' and they really just quote from some of the key authorities there that were upheld. And one of those at 262 is to say:

PN254

The determination of whether an employer direction is lawful and reasonable can only be made by reference to the subject matter and context; it cannot be made 'in vacuo'. The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis.

PN255

And so the point I want to make there is that dealing with whether a failure to consult as required by the Work Health and Safety Act provisions (indistinct) the EA in Mount Arthur in the context of a mine site that had a union what was heavily involved in that mine site and that union had raised that dispute on behalf of a number of members. So looking at the reasonableness of the direction in that context is not the same thing as looking at consultation in relation to one individual in the context where the relevant unions have not taken issue - the NTEU have not taken issue with the implementation of this procedure and the potential consequence on that person's employment.

PN256

Now, that's not to say that you don't go through and determine whether there's been breaches or inadequacies, but you have to look at all of the circumstances in that particular case and then determine whether the direction to vaccinate is reasonable or not in those circumstances. And so that's not just simply grabbing what happened in Mount Arthur and saying, 'Well, look, that applies with equal force. I don't need to determine anything. It's just axiomatic. It just follows.' You actually have to determine that for yourself. And, of course, you may say in determining such a dispute, 'Well, I find that, yes, there were some issues with the consultation, but overall I don't find the direction to be unreasonable.' Because for example at page 7 of the court book, paragraph 14 of the form 10 dispute the applicant says, 'On 4 March, the applicant sent the respondent a summary of reasons why his employment should not be terminated. Relevantly, this included numerous reasons and reputable research which the applicant would have put forward in consultations prior to the decision to mandate 100 per cent vaccination, if the respondent had actually engaged in such consultations.

PN257

So you might find in the evidence, 'Well, everything got said that needed to be said. And so in the circumstances, whilst I find that clause 12(c) wasn't complied with and whilst I may make some other findings, in these particular circumstances, in the particular case, the direction is not unlawful and unreasonable.' And to give you another example, an employee may have their first vaccination. They may contract COVID and they may decide that they don't wish to have their second vaccination. And you might be six months down the track, and the policy has been in place for six months and been applied, and an employee says, 'Well, you didn't properly follow the consultation provision in the EA six months ago. Therefore it automatically follows the direction is not lawful and reasonable.'

PN258

Of course, that's not the case. And my point in raising all this today, your Honour, is not that I'm urging you to, in fact, actually find that. But the point of me raising it is that if you were to determine the dispute, that is what you are actually determining; the lawful reasonableness of the direction applied to Mr Mitchell. And under the Mount Arthur Enterprise Agreement there would be jurisdiction for the Commission to do that. Under this staff agreement, there is not .

PN259

So what if you then just acquiesce to the applicant's wishes and say, 'Well, look, I will just determine the dispute about the consultation. Just the consultation. ' that's where the argument has very strong force, is that there is no utility. There is no utility, because if you are just determining whether or not the - if I can use the words from the Full Bench - I'm turning to the Deakin University v Rametta decision. So the Full Bench at paragraph 41 usefully quote from an earlier Full Bench decision and this seems to get quoted over and over again in the authorities, about a dispute over the application of the agreement. 'It involves whether the action and conduct accords with the terms of the provision of the agreement. In other words has the provision been applied according to its terms?'

PN260

So if you were to determine a dispute about the application of clause 12, you are going to hear evidence on all the past events and then your job is to determine, well, has clause 12 been applied according to its terms. And you may say 'Yes, it has,' or you may say, 'No, it hasn't been applied according to its terms.' Okay. So you say, 'I don't think it has been applied according to it's terms.' Then what? Then what do you do? Because you can't say, 'And therefore the direction that the applicant comply with the procedure is unreasonable. You can't say that. It's not the dispute. You're not being asked to determine that and it doesn't automatically flow.

PN261

You certainly can't say, 'And then I also find that the termination of his employment was unfair. It was harsh, unjust, unreasonable.' There's no jurisdiction to do any of that, but that's clearly the provenance of an unfair dismissal claim, and, yes, I would agree with your observations that all of these issues can properly be ventilated.

PN262

THE COMMISSIONER: All of the remedies sought really.

PN263

MR COLLINSON: I agree, all of the remedies and all of the issues of unfair dismissal would have jurisdiction to consider the reasonableness of the direction and the application of his particular circumstances and have power to make those remedies. If you agree that the true characterisation of the dispute is whether the direction under the procedure is lawful and reasonable as per the Mt Arthur case, then there's no jurisdiction here to do it, and if you do acquiesce to say, well I'm just going to determine the dispute about whether the past consultation complied with clause 12 or not, terms of remedy gets the applicant nowhere. To get to the remedy that the applicant seeks you have to make other determinations that then stray outside of what the enterprise agreement has provided for, unlike Mt Arthur.

PN264

To move along, and I only really want to touch upon this really briefly, there's another issue as to whether the dispute survives termination of employment. My submission is you just don't need to go there. If you accept what I have put to you so far that actually determines the matter and there's no need to make any findings at all as to whether the dispute is capable of surviving the termination of employment, and the reason why I would suggest that's desirable is that it seems to me you have say three - there's probably three competing contentions here, or three aspects.

PN265

The first is you've got Jajoo and further Full Benches like Kentz saying that if you utilise the DSP whilst employed and the words permitting it then there's jurisdiction to continue to deal with the dispute after termination of the employment. And so if you were to follow that authority then in this particular case that's met, I would concede that, and what I would concede, your Honour, is that it's irrelevant whether the termination date is the 15th or the 18th, is irrelevant because the DSP was utilised prior to both of those dates.

PN266

So if you follow Jajoo then the fact that the employment is now terminated, which is not disputed, Jajoo allows you to have jurisdiction to continue to deal with it. Now, I'm going to make a submission around the powers again, because the difficulty with all of those decisions is being able to find in Jajoo or other decisions where the Commission then went on and gave any relief in the nature of reinstatement, have been able to find a single decision dealing with the Fair Work Act over the last 13 years or the predecessor Act. So you may have jurisdiction, but so what, it may not get you the relief, or it may get you the relief if the dispute was whether I'm entitled to a particular allowance or not, or whether I was classified correctly or not.

PN267

Now, there may well be utility determining that dispute, even though a person is an ex employee, because the Commission says, well to determine that dispute I have the power to determine that a proper application of this clause would result in you coming within its provisions, and then obviously an employee had something they can take off to the Federal Court if need be. But without any case at all where part of the relief that was sought was a reinstatement of employment, and the Commission held that it had power to do that. So that's the first scenario.

PN268

The second scenario you've got North Goonyella, Full Bench, that says that when you look at the interpretation of the EEA DSP employee just means current employee, that can't mean past employee. They then distinguish Jajoo on the reading of that DSP. So I say the second point seems to be - and that was followed in Ensign Drilling. So in Ensign Drilling the Commissioner sort of jumped on North Goonyella and said, 'Look, if I look at the words of the DSP in Ensign Drilling step 4 says a party can conciliate before FWC, and step 5 says an employee can arbitrate before FWC, therefore I find if you were conciliating as an ex employee that's okay because it uses the word 'party', but if you're arbitrating as an ex employee that's not okay. I struggle greatly with the logic of that, and I would have difficulty in maintaining a submission on those lines myself, but it seems to be, the second aspect of this, sir, is let's look at the actual words of the DSP and they may mean that you have to be a current employee and therefore that's how we get around Jajoo.

PN269

Then the third authority is Ausgrid, and that's the most recent authority, [2021] Full Bench, and that seems to me to take a polar opposite approach to Jajoo. So without any sort of textual linguistics around the DSP it makes it very clear that paragraph 40, the employee is no longer employed, the agreement doesn't apply because they're no longer employed, section 52 of the Act. (Indistinct) an agreement applies to an employee you have to be an employee to have the agreement apply to you, and it doesn't give any entitlement unless it applies. She's no longer able to invoke or use the DSP procedure in the agreement. It goes on to say that there can't be a dispute over the application of the agreement in respect of a person who is not an employee covered by the agreement.

PN270

Now, in that case, your Honour, the applicant ticked all the Jajoo boxes and she actually even went and had an arbitration as an employee. Then wanted to run it up on appeal, wasn't an employee, and the Full Bench went, well, look, it doesn't matter. At the point you're asking the Commission to do something you ask the question are they employed or not, and if they're not then the agreement can't apply to them and there's no power.

PN271

Now, as my friend rightly points out there doesn't seem to have been an application of, or consideration of Jajoo and the Full Bench hasn't sort of said, look, we've considered that and we actually - whilst we sympathise with the fairness of jurisdiction being lost once employment ends unfortunately that's the way it goes and that's why you have unfair dismissal provisions. So that's why I say, sir, that's an unhappy state of affairs, but that clearly a Full Bench at some point needs to grapple with those three scenarios and provide the guidance.

PN272

In this case my submission is you don't need to go there, because the dispute properly characterised isn't one as to the application of the agreement. If you took a very narrow approach to give yourself the jurisdiction of just limiting it to clause 12 then there's no utility because you can't go on and make the findings that are necessary to give the relief that's sought, because the minute you do that you're outside of your jurisdiction. And separate to that, so this is a separate argument to that, there's no power under 739 to reinstate.

PN273

THE COMMISSIONER: At all? Even at the end of - - -

PN274

MR COLLINSON: Yes, I make that submission.

PN275

THE COMMISSIONER: - - - separate to any incidental section 509 power?

PN276

MR COLLINSON: Yes.

PN277

THE COMMISSIONER: Okay. Just before you go to that though, just on the point you were just dealing with Ausgrid refers to parity of reasoning with Simplot v AMWU, and you talked about a Bench will have to deal with it. I mean to a certain extent Simplot did perhaps at 34 - if you want to just turn that up.

PN278

MR COLLINSON: Sorry, bear with me for a moment.

PN279

THE COMMISSIONER: Yes, just while you're finding it. So it looks like they go back to, I think it's North Goonyella, where they have as you were saying made reference to the terms of the DSP, and at 34 the Full Bench, paragraph 34 of Simplot they make the similar observation there.

PN280

It is not necessary for us to consider the extent to which our decision in this appeal has implications for the Commission's case law that has recognised the authority of the Commission to continue to deal with an application of an employee under section 749 after their employment under the agreement has ceased. The Commission's jurisdiction in such cases will depend on the terms of the enterprise agreement. In many cases there may be an enduring interpretative dispute about the operation of a provision in the agreement which will survive the dismissal of individual employees.

PN281

And I think it's that paragraph that the Bench in Vendrig v Ausgrid pick up on in para 40. I mean accepting this is arguably obiter they have expressly said they're not dealing with it. They then go on to say relevantly at 36:

PN282

The scheme of the Act is not one which rationally supports the contention that there is an accrued right of dispute resolution under the terms of an inoperative enterprise agreement.

PN283

Now, of course they were dealing with circumstances where a successor enterprise agreement had by virtue of the operation of the Act displaced the agreement that this matter was determined under. But of course what's happened here is in a sense in respect of the individual applicant an analogous circumstance has arguably occurred in that it no longer covers or applies to him, because he's not an employee as of 18 March, and they make the further point that if there's contentions that there's been a breach of course there are remedies for that.

PN284

MR COLLINSON: Yes, I agree, sir. Sorry, I had looked at that and it seems to be beyond a shadow of a doubt now that once the EA is replaced with another one that dealing with any dispute under the former EA is gone. I think the Full Bench is crystal clear on that. And you're right, they sort of leave that open and the argument is, well unless there's something in the DSP that would expressly preserve a dispute the argument is, well once you're an ex employee it's exactly the same scenario as if the EA had been replaced. It's the same reasoning that applies. But I acknowledge that the Full Bench hasn't actually come out determining a 739 and actually expressly stated that - - -

PN285

THE COMMISSIONER: That's right.

PN286

MR COLLINSON: - - - but that's where Ausgrid seems to be going with it. My submission is, well it needs to be resolved. I mean you don't need to yourself do that unless you want to of course, but in terms of determining this particular matter you can do that without having to go there. But you may want to go there, and if you do I think you have all the relevant submissions before you to make that determination. In terms of the no power to order reinstatement, generally speaking - on the substantive relief, not the 589 - I do want to refer you to the Telstra decision that my friend raised in his opening. In that case, look, again there's a bit of an avoidance of dealing with some of this, so, in that case, it's quite correct that the Full Bench said, 'Look, it wouldn't be appropriate to reinstate in these particular circumstances', but what you haven't been referred to is paragraph 58. So, if you go down two paragraphs of that decision of Telstra, the Full Bench says:

PN287

Because we have decided that the remedies granted were inappropriate, it is unnecessary to deal with Telstra's submission that the Commission did not have power under the dispute resolution provision to do other than determine whether Telstra had complied with its obligation under clause 7.3.

PN288

And they go on and say they hadn't complied with their obligation.

PN289

I think that's important to raise that particular paragraph because you don't have any decisions of the Fair Work Commission that expressly says there's no power to order reinstatement, and nor does Telstra go there either in relation to the predecessor Act.

PN290

You are then left with having to work it out yourself, and I think the starting point of that is that it's not a case of saying, 'Well, I don't have an authority to say that you can't do something, so therefore you can do it.' This isn't even an onus issue; it's not a matter of the onus being on the applicant or the respondent. You have to be positively satisfied that you have a power to order reinstatement on a section 739 dispute. You have to be positively satisfied yourself that there is a provision in the Fair Work Act that enables you to do that, or the enterprise agreement itself.

PN291

The Commission is not a court, it doesn't have an inherent jurisdiction. So, unlike a court, there's no inherent jurisdiction, and that's relevant for the interim aspect of it, but there is no inherent jurisdiction of a court here, so there must be an express power provided by one of the sections in the Fair Work Act or the enterprise agreement.

PN292

As I said, not a single authority to say that there's any provision of the Fair Work Act that operates in that way in relation to DSPs, nor is there a single case where a Commission has found that the particular wording of a DSP empowers a Commission to order reinstatement as part of dealing with a dispute.

PN293

In terms of working it out yourself, where I think Deakin University v Rametta is helpful is that, looking at the predecessor Act at paragraphs 44 to 46, it says that there is nothing in section 170LW of the pre-reform Act or the EA that makes reference, either explicitly or implicitly, to the proper application of clauses 18 and 17 of the agreement involving an apology or award of compensation. I think that's an easy one to say, 'Look, there's nothing in the university staff agreement that does that either' or provides for reinstatement, so nothing in the university staff agreement that would give you any power to order reinstatement on a private arbitration.

PN294

It then went on to say:

PN295

As a result the Commissioner, in making the order for Deakin University to provide a written apology to Ms Rametta and to pay her $30,000 in compensation, exceeded her jurisdiction by going beyond her power to settle the disputes over the application of the agreement.

PN296

Now, my friend's kind of said, 'Well, it's different here because reinstatement is the very thing that's being sought to resolve the dispute.' Again, the problem with that is, once you're saying that, you are characterising the dispute as one involving the termination of the employment, and you have got no jurisdiction to do that, to deal with that, and doesn't it apply with equal force that, if it's not reasonably incidental to go ordering compensation or an apology, it's exactly the same reason with reinstatement because if you come back to what you're being asked to do by the EA, you are being asked to, put simply from the Full Bench authority, you are being asked to determine: has clause 12, the consultation provision of the staff EA, has it been applied according to its terms?

PN297

Clearly, if you said 'No', the type of orders that would be reasonably incidental to then the compliance with that clause would be exactly the type of things that occurred in the Mt Arthur, and your Honour yourself would have issued hundreds of these orders over the years, you know, the parties meet at certain times, certain proposals are provided, there's detailed reasons given for the rejection of a proposal, et cetera, et cetera. They are the orders that would be incidental to whether or not the provision has been applied according to its terms.

PN298

That's why we have the unfair dismissal jurisdiction, and that's exactly why a lot of the state industrial tribunals - the Tasmanian one is no exception - there have been specific provisions inserted into the legislation that empowers a Commission to reinstate a former employee because that was recognised as not being an industrial dispute.

PN299

The last point we very briefly make is that the reinstatement on the basis of 589, it's difficult to go past the Full Bench recent decision of - is it Wills v Marley and The Government of New South Wales, Sydney Trains? We refer to it in the authorities. My friend doesn't refer to it in his reply, but there it looked at making interim orders to deal with a bullying application. In this particular case, this context dealt with a bullying application, not a section 739.

PN300

The Full Bench helpfully set out that this doesn't give an independent source of power to do anything; it's to facilitate dealing with a matter and making a decision, and it made the really good point that the adoption of the construction advanced for by the applicant would have the Commission have power to make an order for reinstatement on an interim basis in the context of an unfair dismissal before any finding that the person has been unfairly dismissed, so someone lobs in an unfair dismissal claim and then says, 'Section 589, I want you to make an interim order reinstating my employment' but that's the very relief that you're after.

PN301

I would say the same applies here, that, one, I say you don't have the power. Section 589 doesn't give you the power to do it. And, even if it did - - -

PN302

THE COMMISSIONER: What is that paragraph that you are referring to in Sydney Trains?

PN303

MR COLLINSON: Sorry?

PN304

THE COMMISSIONER: What was that paragraph you were referring to in Sydney Trains?

PN305

MR COLLINSON: Paragraphs 51 and 52. It says:

PN306

It is highly unlikely that such consequences would have been the result intended by the legislature.

PN307

It doesn't deal with a section 739, but my submission, sir, is that when you read that decision, it applies with equal force to a section 739.

PN308

So, you don't have the power under 589 to order an interim reinstatement of employment and, if you did, it wouldn't be appropriate to make such an order where you are, in effect, giving final relief prior to actually hearing the dispute and determining whether or not the dispute has merit and, if so, whether reinstatement would be an appropriate remedy.

PN309

The point I'm making here, though, is that you are only getting to that consideration at 589 if the applicant convinces you that you should hear a dispute about consultation only and not the lawfulness and reasonableness of the direction, and then you would need to also make a finding that you actually do have power to grant final relief, because if you agree you don't have power under section 739 or the staff agreement, the university staff agreement, if you agree that you don't have the power to order reinstatement, then I don't think anyone would disagree that it wouldn't be an appropriate exercise of section 589.

PN310

So, you would have to find, 'I have the power to hear this dispute, I have the power to order reinstatement', but even if you have the power to do all of those things, it wouldn't be appropriate to effectively grant final relief and then have a potential situation that, well, what if the university is successful, or partly successful, in that you decide, 'Yes, there was some consultation, but the direction was still reasonable' - even though I'm strongly submitting you don't have the power to decide that because of the DSP - 'but, in the circumstances of some of the reasons that have been agitated today in discourse, it's not appropriate for me to order reinstatement.' Let's say that's the outcome, but the university is sitting there now with a reinstated employee.

PN311

That's why it doesn't happen and that's why there is no authority for it, and that's why my friend hasn't been able to point to one authority where that has occurred. Most of the submissions my friend made were in relation to the Mt Arthur decision, and the orders, interim orders to prevent a dismissal, is an entirely different thing. He's been calling it a distinction. There's a massive distinction between preserving a status quo, or maintaining a status quo, and restoring a status quo, because the restoration of the status quo is, in effect, giving the relief, whereas the maintenance of the status quo, in my submission, the reason why the Commission quite often does make those interim orders preventing an employee from being further subjected to a disciplinary process is because, if that order wasn't made and the employer then went and terminated the employment, that would deprive the employee of the benefit of the disputes process.

PN312

Can you hear me, Commissioner?

PN313

THE COMMISSIONER: Yes, I can.

PN314

MR COLLINSON: Thank you. It's just that you've frozen on my screen.

PN315

THE COMMISSIONER: Yes, you're doing the same from time to time, but I can still hear you.

PN316

MR COLLINSON: Yes, okay, thank you. In my submission, that's why those orders are made, because it is consistent with my earlier submission that, absent that interim order preventing the employer from continuing to deal with the process, that once the employee was terminated, there would be no power under section 739 or, I would submit, pretty much any enterprise agreement I've seen that would give the power to reinstate somebody.

PN317

Unless there's anything further, sir, they are my submissions.

PN318

THE COMMISSIONER: No, that's fine. Thank you. Thanks for that, Mr Collinson. Anything in reply, Mr Mitchell?

PN319

MR MITCHELL: Excuse me, Commissioner. Yes, if it please the Commission. In relation to the case of Wills, we would refer to paragraphs 65 and 68 of that case as indicating the Commission wasn't excluding that interim orders were available in section 739 cases. The issue there was the particular - the anti-bullying provisions, which require the Commission to be satisfied that bullying has occurred before taking any action, and that can include orders in the nature of interim orders.

PN320

In relation to the submission about Mt Arthur, we would say that it's not just a matter of finding that clause 12 has been - whether or not it's been applied according to its terms, and if not then orders reasonably incidental to those in Mt Arthur follow. We say that there was in fact an intermediary step that the Full Bench in Mt Arthur found that there had not been adequate consultation. It then followed that the order was not lawful and reasonable, and then the reasonably incidental orders followed.

PN321

In relation to Deakin University, paragraphs 44 to 46, I submit that the problem there was that the Commissioner below had purported to exercise judicial power to punish for a breach rather than to correct it. And your earlier question to me about Telstra, I agree with you with respect, what was being sought there was final relief rather than incidental whereas the applicant here is definitely seeking reinstatement on the final hearing as incidental relief.

PN322

In relation to one factual point made by my friend I've got a note here that the letter of termination at page 161 of the digital court book refers to the issue of whether the direction was lawful and reasonable, showing that the respondent was aware that that was an issue. That is the submissions in response, Commissioner.

PN323

THE COMMISSIONER: All right, thank you for that. Thanks for your submissions, everyone. I'll reserve the decision and I will issue it when I can. It will be in the queue, and have a good day.

PN324

MR COLLINSON: Thank you, Commissioner.

PN325

THE COMMISSIONER: We're adjourned.

PN326

MR MITCHELL: Thank you, Commissioner.

ADJOURNED INDEFINITELY [12.02 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 WITNESS STATEMENT OF JONATHAN DUGALD MITCHELL WITH ATTACHMENTS DATED 28/03/2022................... PN131

EXHIBIT #A2 SUPPLEMENTARY WITNESS STATEMENT OF JONATHAN DUGALD MITCHELL WITH ONE ATTACHMENT DATED 08/04/2022...................................................................................................... PN134