FEDERAL COURT OF AUSTRALIA
Soliman v University of Technology, Sydney [2008] FCA 1512
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
The University of Technology, Sydney, Act 1987 (NSW)
University of Technology, Sydney, Act 1989 (NSW)
Workplace Relations Act 1996 (Cth)
ACTEW Corporation Ltd v Pangallo (2002) 127 FCR 1; [2002] FCAFC 325
Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality & Miscellaneous Workers Union (1998) 80 IR 275
Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457
Bruce v Cole (1998) 45 NSWLR 163
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645; [2001] HCA 16
Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120
Grindley v Barker (1798) 1 B&P 229; 126 ER 875
Kucks v CSR Limited (1996) 66 IR 18
McAleer v University of Western Australia (2007) 159 IR 96; [2007] FCA 52
McAleer v The University of Western Australia (No 3) [2008] FCA 1490
McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689; [1999] FCA 1640
NTEIU (National Tertiary Education Industry Union) v University of Wollongong [2002] FCA 31
Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30
Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444
Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889
Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834
Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444
Short v F W Hercus Pty Limited (1993) 40 FCR 511
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Transport Workers Union v Lee (1998) 84 FCR 60
NSD 452 of 2008
JAGOT J
10 October 2008
SYDNEY
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| NEW SOUTH WALES DISTRICT REGISTRY | NSD 452 of 2008 |
| BETWEEN: | DR FAWZY IBRAHIM SOLIMAN Applicant
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| AND: | UNIVERSITY OF TECHNOLOGY, SYDNEY First Respondent
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| AUSTRALIAN HIGHER EDUCATION INDUSTRIAL ASSOCIATION Intervener
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| JAGOT J | |
| DATE OF ORDER: | 10 October 2008 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The exhibits may be returned.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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| NEW SOUTH WALES DISTRICT REGISTRY | NSD 452 of 2008 |
| BETWEEN: | DR FAWZY IBRAHIM SOLIMAN Applicant
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| AND: | UNIVERSITY OF TECHNOLOGY, SYDNEY First Respondent
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| AUSTRALIAN HIGHER EDUCATION INDUSTRIAL ASSOCIATION Intervener
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| JUDGE: | JAGOT J |
| DATE: | 10 October 2008 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 These proceedings arise out of disciplinary action taken by the University of Technology, Sydney (the University) against Dr Soliman (the applicant) on 3 January 2008. As a result of that action the applicant was demoted from a Level C (Senior Lecturer) Step 6 to a Level B (Lecturer) Step 6.
2 The applicant claimed that the taking of the disciplinary action was in breach of the University of Technology, Sydney Academic Staff Agreement 2006 (the agreement). The applicant claimed breach on five grounds, one of which the University admitted. The five grounds on which the applicant relied were as follows:
(1) A committee was not established within 10 working days after referral of the matter of the applicant’s conduct as required by cl 46.9.1 of the agreement (the establishment of the committee issue). The University admitted that the committee was not established within the nominated period in breach of cl 46.9.1.
(2) A chairperson of the committee was not appointed in accordance with cl 47.1(a) of the agreement (the chairperson issue). The University denied this claim.
(3) The committee did not conclude its proceedings within 10 working days of its appointment in accordance with cl 47.2(i) of the agreement (the conclusion of the committee’s proceedings issue). The University denied this claim.
(4) The committee did not make unanimous findings of fact with the consequence that the Vice-Chancellor of the University could not take disciplinary action in accordance with the agreement (the lack of unanimity issue). The University denied that the committee was required to make unanimous findings of fact or that the Vice-Chancellor’s power was dependent on the committee so doing.
(5) In circumstances where one Vice-Chancellor (Professor Milbourne) referred the matter of the applicant’s conduct to a committee, received and considered the committee’s reports, and evinced an intention to decide what if any disciplinary action should be taken, the agreement did not permit the Acting Vice-Chancellor (Professor Peter Booth) to take disciplinary action (the Vice-Chancellor issue). The University denied that the agreement operated as the applicant claimed.
3 By leave (including leave to re-open) granted on 25 September 2008 the applicant also claimed that the breaches of the agreement constituted a breach of the contract of employment between the University and the applicant. This was said to result from the proposition that the contract of employment incorporated the agreement by two means. First, by reference in the terms of the contract. Secondly, by the operation of the Workplace Relations Act 1996 (Cth) and the terms of the agreement.
4 The applicant claimed a series of declarations, including declarations to the effect that: - (i) the appointment of the chairperson to the committee was void and of no effect, (ii) the committee had no power to make findings of fact after the expiry of 10 working days from its appointment, (iii) disciplinary action taken against the applicant was void and of no effect, (iv) the applicant was entitled to be paid with interest all arrears of wages since his purported demotion, and (v) the University was bound to pay into the applicant’s superannuation fund the difference between contributions that would have been paid but for the purported demotion and those paid by reason of the purported demotion. The applicant also claimed an order requiring the University to do all things necessary to restore him to the position he occupied together with all benefits to which he was entitled before the taking of the purported disciplinary action against him.
5 These claims require resolution of the following questions:
(1) Whether the remedies the applicant claimed are available. This in turn raises issues about the proper construction of and relationship between the agreement and contract of employment, as well as the Workplace Relations Act.
(2) Whether, on the basis of the proper construction of the agreement, the facts and circumstances underlying the chairperson issue, the conclusion of the committee’s proceedings issue, the lack of unanimity issue, and the Vice-Chancellor issue constituted a breach of the agreement (noting that the University conceded that the facts and circumstances underlying the establishment of the committee issue did constitute such a breach). Depending on the resolution of issue (1) above any such breach might also constitute a breach of the contract of employment.
(3) Whether the power to take disciplinary action in the agreement against the applicant was conditional on compliance with the agreement’s requirements (assuming the applicant’s construction of its provisions) with respect to the time for establishment of the committee, the appointment of a chairperson, the time for conclusion of the committee’s proceedings, unanimity of the committee’s findings of fact, and the indivisible functions of the Vice-Chancellor. Putting it another way, what are the consequences of the admitted breach of the certified agreement and any other breach found.
6 Resolving these questions requires consideration of the factual and statutory context.
STATUTORY PROVISIONS
7 The agreement is a type of workplace agreement known as a union collective agreement in accordance with s 328 of the Workplace Relations Act. Section 328 is as follows:
An employer may make an agreement (a union collective agreement) in writing with one or more organisations of employees if, when the agreement is made, each organisation:
(a) has at least one member whose employment in a single business (or part of a single business) of the employer will be subject to the agreement; and
(b) is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement.
8 Under s 347(1) of the Workplace Relations Act (as in force at the relevant time) a workplace agreement comes into operation on the day the agreement is lodged with the Workplace Authority Director. The agreement was in operation at all relevant times.
9 By s 349(1) any award ceases to have effect while the agreement operates.
10 Section 351 provides:
A workplace agreement that is in operation binds:
(a) the employer in relation to the agreement; and
(b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement; and
(c) if the agreement is a union collective agreement or a union greenfields agreement--the organisation or organisations of employees with which the employer made the agreement.
11 Under s 353 a workplace agreement must include a dispute settlement procedure about matters arising under the agreement. If it does not, the agreement is taken to include the model dispute resolution process in Pt 13 of the Workplace Relations Act.
12 Pt 14 of the Workplace Relations Act deals with compliance. Its provisions are central to the dispute between the parties about the relief available to the applicant. Section 717 in Div 1 of Pt 14 contains definitions as follows:
In this Part:
applicable provision, in relation to a person, means:
(a) a term of one of these that applies to the person:
…
(iv) a collective agreement;
…
eligible court means:
(a) the Court; or
…
13 The Court is defined in s 4(1) to mean the Federal Court of Australia.
14 Division 2 of Pt 14 deals with penalties and other remedies for contravention of applicable provisions. Section 718 contains a table setting out the persons who may apply for a penalty or other remedy under Div 2 of Pt 14 in relation to a breach of an applicable provision. Item 4 of the table deals with collective agreements and identifies the relevant persons as an employer bound by an agreement, an employee bound by an agreement, an organisation of employees and an inspector.
15 Section 719 provides for the imposition and recovery of penalties as follows:
(1) An eligible court may impose a penalty in accordance with this Division on a person if:
(a) the person is bound by an applicable provision; and
(b) the person breaches the provision.
…
(4) The maximum penalty that may be imposed under subsection (1) for a breach of an applicable provision is:
(a) 60 penalty units for an individual; or
(b) 300 penalty units for a body corporate.
…
(6) Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision (except a term of an ITEA), the court may order the employer to pay to the employee the amount of the underpayment.
(7) Where, in a proceeding against an employer under this section, it appears to the eligible court that the employer has not paid an amount to a superannuation fund that the employer was required, under an applicable provision (except a term of an ITEA), to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund.
(8) Without limiting the generality of subsection (7), the eligible court may order that the employer pay to the superannuation fund referred to in subsection (7), or another superannuation fund, an amount equal to the amount (in this subsection called the unpaid amount) that the employer failed to pay together with such additional amount as, in the opinion of the court, represents the return that would have accrued in respect of the unpaid amount had it been duly paid by the employer.
16 A penalty unit is $110 (s 4AA of the Crimes Act 1914 (Cth)).
17 Section 720 provides for the recovery of wages as follows:
If an employer is required by an applicable provision (except a term of an ITEA) to pay an amount to an employee or to pay an amount to a superannuation fund on behalf of an employee, the employee, or an inspector on behalf of the employee, may, not later than 6 years after the employer was required to make the payment to the employee or fund, sue for the amount of the payment in an eligible court.
18 Part 19 of the Workplace Relations Act contains miscellaneous provisions. Section 840, in Pt 19, is as follows:
A provision of this Act conferring a power on a court does not affect any other power of the court conferred by this Act or otherwise.
19 Section 841 contains a power about the person to whom a penalty should be paid and provides that:
A court that imposes a pecuniary penalty under this Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid:
(a) to the Commonwealth; or
(b) to a particular organisation or person.
20 Section 847(1) is in these terms:
(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:
(a) applications may be made to it under this Act; or
(b) actions may be brought in it under this Act; or
(c) questions may be referred to it under this Act; or
(d) appeals lie to it under section 853; or
(e) penalties may be sued for and recovered under this Act; or
(f) prosecutions may be instituted for offences against this Act.
21 Section 849 concerns the interpretation of certified agreements as follows:
(1) The Court or the Federal Magistrates Court may give an interpretation of a collective agreement on application by:
(a) the Minister; or
(b) an organisation or person bound by the agreement; or
(c) an employee whose employment is subject to the agreement.
(2) The decision of the Court or the Federal Magistrates Court is final and conclusive and is binding on:
(a) the organisations and persons bound by the agreement; and
(b) the employees whose employment is subject to the agreement;
who have been given an opportunity of being heard by the Court or the Federal Magistrates Court.
22 The applicant’s claims also relied on s 39B(1A)(c) of the Judiciary Act 1903 (Cth), and Pt III of the Federal Court of Australia Act 1976 (Cth) (specifically, ss 21, 22, 23 and 32). Section 39B(1A)(c) gives the Court original jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Sections 21, 22 and 23 of the Federal Court of Australia Act are as follows:
21
(1) The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
(2) ….
22
The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.
23
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
23 Section 32(1), relating to the Court’s associated jurisdiction, is in these terms:
(1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.
THE AGREEMENT
24 Clause 5 of the agreement deals with its relationship to awards and other agreements. Clauses 5.1 and 5.2 provide that:
5 RELATIONSHIP WITH AWARDS AND CERTIFIED AGREEMENTS
5.1 This Agreement constitutes a closed agreement between the parties and comprehensively regulates the relationship between the University and those staff whose employment is subject to the Agreement.
5.2 This Agreement is a Union Collective Workplace Agreement pursuant to Section 328 of the Workplace Relations Act 1996 (as amended) and rescinds and replaces the University of Technology Sydney Enterprise Agreement (Academic Staff) 2004. To remove any uncertainty, this Agreement wholly displaces and operates to the exclusion of all awards and other agreements that would otherwise apply to staff whose employment is regulated by the provisions of this Agreement.
25 Clause 9.1 is as follows:
9 APPLICATION
9.1 This Agreement will be binding according to its terms upon:
(a) National Tertiary Education Industry Union; and
(b) University of Technology, Sydney; and
(c) Academic staff, including research only academic staff.
26 Clause 10 contains the procedure for resolving disputes under the agreement. This procedure includes the capacity to refer any unresolved dispute to the Australian Industrial Relations Commission (AIRC) for resolution by mediation, conciliation or arbitration.
27 Part G of the agreement relates to discipline. Clause 45 concerns the management of unsatisfactory performance. Clause 46 deals with disciplinary action for misconduct and serious misconduct. Clause 46 applies to all staff (other than casual staff) employed by the University (cl 46.1). Clause 46.4 defines “disciplinary action” as any action by the University to discipline a staff member for misconduct or serious misconduct (which are also defined terms) including, relevantly, by demotion of one or more classification levels or increments.
28 The balance of cl 46 is critical to the applicant’s claims. The relevant provisions are as follows:
Procedures
46.5 The following procedures apply where disciplinary action is to be taken against a staff member for misconduct or serious misconduct. However, where a matter that may involve misconduct or serious misconduct has been dealt with in good faith as if it were a case of unsatisfactory performance under Clause 45, the procedures of this Clause are not required, but the procedures of Clause 45 apply, including notice periods and review procedures.
46.6 The Vice-Chancellor will consider any allegation/s of misconduct and/or serious misconduct. If the Vice-Chancellor believes the allegation/s warrant further investigation then the Vice-Chancellor will:
(a) notify the staff member in writing and in sufficient detail to enable the staff member to understand the precise nature of the allegation/s, and to properly consider and respond to them; and
(b) require the staff member of submit a written response within ten working days.
46.7 If the staff member denies in part or full the allegation/s, or fails to submit a written response to any allegations, the Vice-Chancellor will:
(a) refer the matter to a Committee for investigation; or
(b) counsel and/or censure the staff member for unsatisfactory behaviour and take no other action; or
(c) take no further action.
46.8 If the staff member admits in full the allegation/s, and the Vice-Chancellor is of the view that the conduct amounts to misconduct or serious misconduct, then the Vice-Chancellor may take disciplinary action.
46.9 Investigation of misconduct/ serious misconduct
46.9.1 Where a matter is referred to investigation in accordance with sub-clause 46.7(a), a Committee will be established within ten working days in accordance with Clause 47.
46.9.2 The Committee will investigate the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.
46.9.3 The terms of reference of the Committee is to report solely on the facts relating to the alleged misconduct or serious misconduct, including whether any mitigating circumstances are evident.
46.9.4 If, having considered the Committee’s findings on the facts, the Vice-Chancellor is of the view that there has been no misconduct or serious misconduct the Vice-Chancellor will immediately advise the staff member in writing. The Vice-Chancellor may, by agreement with the staff member, publish the advice in an appropriate manner.
46.9.5 On receipt of the report of the Committee and having considered the findings on the facts related to the alleged misconduct or serious misconduct, including any findings as to whether any mitigating circumstances are evident, the Vice-Chancellor may take disciplinary action.
46.10 Before deciding to take disciplinary action, the Vice-Chancellor will:
(a) invite the staff member to advise within five working days, in writing, any matters that he or she may wish the Vice-Chancellor to take into account at the time a decision as to disciplinary action is considered
(b) have regard to any such matters brought to attention by the staff member when deciding whether any disciplinary action should be taken; and
(c) advise the staff member of that decision and of the operative date of any disciplinary action to be taken.
29 Clauses 46.16 and 46.17 are relevant. They state:
Other Matters
46.16 This Clause in no way constrains the University from carrying out other or further investigations relating to the consequences of conduct of a staff member or former staff member when required in the public interest, eg inquiring into the truth of research results.
46.17 The action of the Vice-Chancellor under this Clause will be final. However, this Clause does not exclude the jurisdiction of any external tribunal that would be competent to deal with the matter.
30 Clause 47 is also critical to the applicant’s claims. It is in the following terms:
47 REVIEW/ INVESTIGATION COMMITTEES
47.1 Where a Committee is established in accordance with sub-clauses 29.11.2, 45.11, or 46.7 it will comprise the following membership:
(a) one person independent of the University who has relevant knowledge and experience, agreed by the Vice-Chancellor and the affected staff member, and who will be the Chair. If agreement cannot be reached with [sic] ten working days, then the Vice-Chancellor may ask a member of the Higher Education Panel of the AIRC to nominate a person to act as Chair
(b) one person from within the University selected by the Vice-Chancellor; and
(c) a person chosen by the staff member from the pool of elected staff representatives.
47.2 The Committee will:
(a) conduct proceedings as expeditiously as possible consistent with the need for fairness
(b) allow the staff member and the Deputy Vice-Chancellor (in relation to Clause 45) or Vice-Chancellor (in relation to Clauses 29 and 46) to be assisted or represented by a representative of his/her choice if they so choose, and in the case of the Deputy Vice-Chancellor / Vice-Chancellor this may be by the University’s relevant association
(c) give the staff member adequate opportunity to put his/her case and to make submissions
(d) provide an opportunity for the staff member to be interviewed
(e) interview any person the Committee thinks fit to establish the facts of the particular case
(f) conduct all interviews in the presence of the staff member (or the staff member’s representative) and the Deputy Vice-Chancellor / Vice-Chancellor (or the Deputy Vice-Chancellor / Vice Chancellor’s representative)
(g) take into account other material the Committee believes appropriate to the case
(h) keep a record of the interviews and proceedings
(i) conclude proceedings within ten working days of the appointment of the Committee unless otherwise agreed between the Committee Chair, the Vice-Chancellor and the staff member.
31 The agreement contains definitions including the following:
3.14 ‘Representative’ means a person who is chosen by the staff member to assist or represent them, who may be a staff member or a union but who is not a barrister or solicitor in private practice.
3.19 ‘Vice-Chancellor’ means the person appointed as such to be the Vice-Chancellor of the University or equivalent position, and includes anyone fulfilling that role on a temporary basis, or any nominee of the Vice-Chancellor.
THE CONTRACT OF EMPLOYMENT
32 On or about 2 February 1990 the University and the applicant entered into a contract of employment involving a probationary period of three years after which (if he satisfied the University’s criteria for tenure) the applicant would be offered a tenured appointment (cl (a) of the contract of employment).
33 Clauses (e), (g) and (h) of the contract of employment are as follows:
e) The appointment will be subject to and governed by the relevant provisions (as in force from time to time) of:-
(i) The University of Technology, Sydney, Act 1987.
(ii) The University of Technology, Sydney, By-Law.
(iii) Conditions of Employment determined by the University under the above Act.
(iv) The Australian Universities Academic Staff (Salaries) Award 1987.
(v) The Australian Universities Academic Staff (Conditions of Employment) Award 1987.
…
g) No one other than the Vice-Chancellor or Deputy Vice-Chancellor is authorised by the University to establish or vary the conditions of this appointment.
h) This letter supersedes all prior discussions and communications and represents the entire conditions of appointment.
34 The applicant’s probationary period expired on 4 February 1993. He was offered and accepted indefinite appointment in August 1993, being promoted to senior lecturer in July 1999.
FACTS
35 The University is a body corporate established by the University of Technology, Sydney, Act 1989 (NSW).
36 At all relevant times before 3 January 2008 the University employed the applicant as a Level C (Senior Lecturer) Step 6. His employment was covered by the agreement.
37 On 11 June 2007 a student lodged a complaint about alleged academic misconduct against the applicant with respect to an examination in one of his courses. The Dean of the relevant faculty informed the applicant about the complaint by letter dated 14 June 2007. The Dean wrote to the applicant again on 20 June 2007 requesting an explanation. The applicant responded on 26 and 29 June 2007, in part to the effect that he was obtaining legal advice.
38 On 3 July 2007 the Dean advised the applicant that he had referred the matter to the Vice-Chancellor in accordance with cl 46 of the agreement. In the interim, on 6 July 2007, the applicant’s solicitors wrote to the Dean requesting further details of the allegations. The applicant’s solicitors wrote again on 16 July 2007 seeking a response to their earlier correspondence. Mr Peter Fox, the University’s Workplace Relations and Policy Manager, responded on 17 July 2007. The Dean referred the matter to the Vice-Chancellor on 17 July 2007. Further correspondence ensued from the applicant’s solicitors seeking a substantive response to their correspondence.
39 On 3 August 2007 the Vice-Chancellor (Professor Milbourne) sent a letter to the applicant advising that he had determined that further investigation was warranted under cl 46.6 of the agreement. The letter provided details of the allegations. The letter required the applicant’s written response within 10 working days as referred to in cl 46.6(b) of the agreement (that is, by 17 August 2007).
40 On 17 August 2007 the applicant wrote to the Vice-Chancellor advising that due to printer problems his response would be provided on 20 August 2007. On 20 August 2007 the applicant wrote to the Vice-Chancellor setting out his reply to the allegations. The Vice-Chancellor received this letter on 23 August 2007.
41 The Vice-Chancellor wrote to the applicant on 24 August 2007 advising that he had “determined that these matters be referred to a Committee for investigation as provided for under sub-clause 46.7(a) of the Agreement”. The letter said that, in accordance with cl 47.1(a) of the agreement, the committee was to be chaired by a person independent of the University who has relevant knowledge and experience and agreed by the Vice-Chancellor and staff member, and the Vice-Chancellor would contact the applicant with his nomination shortly. The letter also enclosed a list of elected staff representatives for the applicant to select his representative.
42 The applicant wrote to the Vice-Chancellor on 3 September 2007 (with the Vice-Chancellor receiving the letter on 5 September 2007). The applicant asked for some information (including the agreement) and said he was contacting Mr Patrick Healy to see if he would accept nomination to the committee and would confirm his nomination. On the same day Mr Frank Young, from the University’s Human Resources Unit, sent the applicant an email with a link to the agreement.
43 On 10 September 2007 the Vice-Chancellor wrote to the applicant. Amongst other things the Vice-Chancellor proposed that the committee be chaired by Commissioner Peter Lawson, a member of the Higher Education Panel of the AIRC and asked the applicant to advise by close of business on the following day whether he agreed to this nomination or to provide his own nomination for chair. The letter noted that if no agreement on the chair was reached the Vice-Chancellor may ask a member of the Higher Education Panel of the AIRC to nominate a person to be the chair. The letter also noted the nomination by the applicant of Mr Healy as a member of the committee and that arrangements would be made through the Human Resources Unit to ensure Mr Healy would be available to assist.
44 On 25 September 2007 Mr Fox wrote to the applicant advising that the committee would meet on 10 and 11 October 2007 with the committee to be chaired by Commissioner Lawson of the AIRC.
45 The Vice-Chancellor received a letter from the applicant on 26 September 2007 (dated 18 September 2007) providing further information that he considered relevant and asking for copies of all information the University intended to put before the committee. The applicant also said he had chosen Commissioner Raffaelli (a Commissioner and member of the Higher Education Review Panel of the AIRC) as the chair of the committee and would advise the name of his representative. The applicant, by letter dated 27 September 2007 to Mr Fox, repeated his nomination of Commissioner Raffaelli as the chair and that he was “in the process of nominating my representative” on the committee. Mr Fox advised the applicant, by letter dated 28 September 2007, that because the applicant’s letter of 18 September 2007 was not received until 26 September, it had been assumed he agreed to the nomination of Commissioner Lawson as the chair of the committee. Nevertheless, on receipt of the letter, the University contacted Commissioner Raffaelli on 27 September to ascertain his availability to act as chair (that is, on 10 and 11 October 2007) but he was unavailable. In accordance with cl 47.1(a) of the agreement, Commissioner Raffaelli had nominated Commissioner Lawson as the chair. Hence, the committee would consist of Commissioner Lawson as chair, Mr Healy as the person selected by the applicant, and Associate Professor Didar Zowghi as the person selected by the Vice-Chancellor.
46 On 28 September 2007 Associate Professor Zowghi advised Mr Young that she would not be able to take part in the committee due to over-commitments on 10 and 11 October 2007.
47 On 2 October 2007 Mr Young forwarded all of the papers for the committee to the applicant.
48 On 3 October 2007 Mr Fox forwarded a memorandum to the Vice-Chancellor advising that Associate Professor Zowghi (whom Mr Fox had proposed to the Vice-Chancellor as his nominee on the committee in a memorandum of 24 September 2007) had become unavailable. Mr Fox had contacted Associate Dean Bronwyn Oliffe and proposed that she be the Vice-Chancellor’s nominee instead. The Vice-Chancellor accepted this proposal on 4 October 2007.
49 The committee (comprised of Commissioner Lawson as the chair, Mr Healy as the applicant’s nominee and Ms Oliffe as the Vice-Chancellor’s nominee) met on 10 and 11 October 2007.
50 Mr Healy went overseas for a period of four to five weeks some time after 11 October 2007.
51 On 6 December 2007 Commissioner Lawson forwarded to the Vice-Chancellor “the report of the Majority of the Committee and Minority Report for your consideration”. The covering letter said:
I regret that finalisation of the report has been delayed due in part to work and leave commitments of the Members, and to some extent by some irreconcilable differences between the views of the Majority of the Committee and its other Member.
52 The enclosed documents included a document styled “Majority Report” signed by Commissioner Lawson as chair and Ms Oliffe as member of the committee and a document styled “Minority Report by Mr Patrick Healy” signed by Mr Healy as a member of the committee.
53 On 13 December 2007 the Vice-Chancellor wrote to the applicant noting that he had received the reports of the committee and attaching copies for the applicant’s information. The Vice-Chancellor said he had given the reports careful consideration, particularly the findings in the reports concerning the applicant’s conduct. The letter continued:
Before deciding to take disciplinary action, in accordance with sub-clause 46.10(a) I invite you to advise me in writing, within five working days of the date of this letter, of any matters that you may wish me to take into account at the time a decision is as to disciplinary action is [sic] considered. Having regard to those matters, I will then advise you of my decision and the date of effect of any disciplinary action to be taken.
54 The Vice-Chancellor (Professor Milbourne) forwarded a memorandum to Professor Booth on 17 December 2007 in which, pursuant to Rule 13(1) of the University Rules relating to Council, the Chancellor, Deputy Chancellor and Vice-Chancellor, he appointed Professor Booth as Acting Vice-Chancellor during Professor Milbourne’s leave between 2 and 21 January 2008. The rules, made pursuant to the University of Technology, Sydney, Act, provide as follows in rule 13:
13 Acting Vice Chancellor
(1) In the event of the absence on leave of the Vice-Chancellor from the University…, an Acting Vice-Chancellor is to be appointed:
(a) by the Vice-Chancellor, if the Vice-Chancellor has no reason to believe that the absence…will exceed four weeks; or
…
55 Also on 17 December 2007 the University gave the applicant a further five working days to respond to the Vice-Chancellor’s letter of 13 December 2007.
56 Professor Milbourne and Professor Booth met on 24 December 2007 as the applicant’s response was due on 24 December 2007. Professor Milbourne briefed Professor Booth about the matter and informed Professor Booth of his views.
57 The University closed between 25 December 2007 and 2 January 2008.
58 On 3 January 2008 Professor Booth, Vice-Chancellor (Acting), wrote to the applicant noting that the five working days provided in the Vice-Chancellor’s letter of 17 December 2007 had elapsed. The letter continued:
Having considered the reports of the Misconduct Investigation Committee and the associated documentation including the explanations you provided, it is my decision that:
1. You be demoted by one classification Level, to Step 6 Level B, to take effect from the first full pay period commencing on or after 14 January 2008…
59 The applicant wrote to Professor Booth on 4 January 2008 saying he was disappointed action had been taken without reading his reply dated 24 December 2007. The letter enclosed a letter in reply to Professor Milbourne dated 24 December 2007. Professor Booth considered the letter and enclosure but did not consider they required a different decision from that he had taken. The applicant wrote to Professor Booth again on 8 January 2008 to which Professor Booth responded on 9 January 2008.
DISCUSSION
Preliminary observations
60 The applicant’s case altered over time. The applicant initially submitted that the declarations and orders sought were available under ss 720, 847 and 849 of the Workplace Relations Act(as in force at the relevant time), s 39B(1A)(c) of the Judiciary Act, and Pt III of the Federal Court of Australia Act (specifically, ss 21, 22 , 23 and 32) on the basis that the agreement itself operated as a contract (indeed, a contract exclusive of any other agreement or contract) between the University and the applicant. In support of these submissions the applicant observed that: - (i) ss 719 and 720 of the Workplace Relations Act could not be a code as they were scant in the extreme, (ii) s 840 of the Workplace Relations Act preserved all other powers of the Court, (iii) the general powers of the Court are available in a matter arising under an Act unless the Act constitutes a code (Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [27]) and are always available in the associated jurisdiction under s 32, (iv) older decisions, such as Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, have to be considered with care in the context of the current statutory regime, and (v) the decision in ACTEW Corporation Ltd v Pangallo (2002) 127 FCR 1; [2002] FCAFC 325 has to be considered in light of the terms of the agreement as a whole, particularly cll 5.1, 5.2 and 9.
61 In consequence of the grant of leave on 25 September 2008 to amend the statement of claim and to re-open to tender the contract of employment the submissions altered (but the initial submissions were not abandoned). The applicant submitted that the contract of employment incorporated the whole (or at least, as I understand it, the disciplinary provisions) in the agreement. The contract of employment did so by reference, by operation of the Workplace Relations Act and by operation of the provisions of the agreement. Hence, it was said, the breaches of the agreement were also breaches of the contract, founding the declaratory relief sought.
62 The University and the intervener, the Australian Higher Education Industrial Association (AHEIA), submitted that the Workplace Relations Act (relevantly, ss 719, 720 and 849) identified the relief that could be granted to remedy a breach of an agreement under the statute. The relief sought was not available under those provisions. The agreement was not a contract between the University and the applicant and general law remedies for breach of contract were not available. The contract of employment did not incorporate the agreement by any of the methods relied on by the applicant. Hence, any breach of the agreement could not be a breach of the contract of employment.
Does the contract of employment incorporate the agreement?
63 The first way in which the applicant submitted that the contract of employment incorporated the whole of the agreement (or at least its disciplinary provisions) was by reference.
64 Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193; [2000] FCA 889 (North and Mansfield JJ) confirmed the principles applying to incorporation of documents by reference into employment contracts (adopting the principles identified by Weinberg J in McCormick v Riverwood International (Australia) Pty Ltd (1999) 167 ALR 689; [1999] FCA 1640 at [70] to [78]). First, it must be assumed that the contract of employment was made in good faith with the object of at least potential mutual benefit by due performance. Secondly, the meaning of the contract is to be determined objectively, the essential question being what reasonable business people in the position of the parties would have taken the clause to mean (citing Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840). Thirdly, parties may be bound by the meaning to be reasonably inferred in the circumstances even if that meaning is not advanced by either party. Fourthly, the meaning of contractual terms is ascertained by considering them in context (including the “objective background of the transaction…its factual matrix, genesis and aim, and the common assumption of the parties” (citing Chesire & Fifoot’s Law of Contract, 7th Aust ed, 1997). Fifthly, the terms of the contract are those the parties intended to incorporate including express terms, inferred terms based on actual intention, and implied terms based on presumed intention. Sixthly, “it is not enough that it is reasonable to imply a term; it must be necessary to do so to give business efficacy to the contract” (citing Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 346). Seventhly, “evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning” (citing Codelfa at 352).
65 In Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120 at [287] Jessup J described the approach in Riverwood as one where “all the facts and circumstances surrounding the making of the contract in question” should be considered in ascertaining whether any terms should be inferred based on intention. Black CJ, also in Goldman Sachs at [23], observed that:
The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 179, the Court said:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
66 The applicant submitted that cll (e)(iv) and (v) of the contract of employment expressly incorporated the agreement into the contract by reference. This submission involves the following steps: - (i) the preamble in cl (e) provided that the applicant’s appointment was subject to and governed by relevant provisions of certain documents, (ii) the preamble also described those relevant provisions of certain documents as “relevant provisions (as in force from time to time)”, (iii) two of the nominated documents are the Australian Universities Academic Staff (Salaries) Award 1987 and the Australian Universities Academic Staff (Conditions of Employment) Award 1987, (iv) the agreement replaced and was a successor instrument to those awards, (v) hence, by the force of cl (e) of the contract, the applicant’s appointment was subject to and governed by the relevant provisions of the agreement.
67 This submission confronts a number of difficulties.
(1) The awards referred to in cll (e)(iv) and (v) of the contract of employment have long since ceased to apply to the applicant’s employment. The agreement is not the immediate successor of the awards. According to the evidence the Australian Post Compulsory and Higher Education Academic Staff (Conditions of Employment) Award 1988 applied to academic staff at universities from October 1988. The 1988 award was replaced in 1995 by the Universities and Post Compulsory Academic Conditions Award 1995 (known as the Bryant Award). The agreement is dated 2006. The agreement displaces and operates to the exclusion of any award (cl 5.2).
(2) The agreement is a type of workplace agreement regulated by Pt 8 of the Workplace Relations Act. Awards are a different type of industrial instrument regulated by Pt 10 of the Act.
(3) The reference to “relevant provisions (as in force from time to time)” in the preamble to clause (e) is not apt to include the provisions of an instrument different in kind and made some 16 years after the date of the contract. That result is not what a “reasonable person would understand by the language in which the parties have expressed their agreement” (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at 179).
(4) In any event, the preamble to cl (e) has to be considered in context. The preamble refers to the appointment being “subject to and governed by the relevant provisions (as in force from time to time)” of the nominated documents. The nominated documents could not reasonably have been intended to represent obligations that were contractually binding. The first two documents are The University of Technology, Sydney, Act 1987 (NSW) and The University of Technology, Sydney, By-Law. These are legislative instruments capable of alteration from time to time without any involvement of the applicant. This indicates, as the respondents submitted, that cl (e) identifies relevant information capable of affecting the parties’ contractual relations rather than documents intended to be binding and enforceable as part of their contractual relations.
(5) Clause (g) reinforces this conclusion. Clause (g) provides that no one other than the Vice-Chancellor or Deputy Vice-Chancellor is authorised by the University to establish or vary the conditions of the appointment. If cl (e) constituted the relevant provisions of the nominated documents as part of the contract then there would be inconsistency with cl (g) because those documents are capable of variation other than by the Vice-Chancellor or Deputy Vice-Chancellor.
68 For these reasons the contract of employment does not incorporate the agreement by reference.
69 The second and third ways in which the applicant submitted that the contract of employment incorporated the agreement were by operation of the Workplace Relations Act and by operation of the provisions of the agreement. This was said to flow from those provisions of the Act giving the agreement force and effect as an instrument binding on the University and the applicant (particularly, ss 347 and 351). It was also said to result from the provisions of the agreement particularly cl 5.1 (which says the agreement is a closed agreement comprehensively regulating the relationship between the University and staff the subject of the agreement), cl 5.2 (which excludes all awards that would otherwise apply) and cl 9.1 (which makes the agreement binding on the National Tertiary Education Industry Union, the University and academic staff).
70 The difficulty with these submissions is that nothing in the Workplace Relations Act or the agreement (including the provisions referred to by the applicant) supports the conclusion that their effect is contractual or that they operate to incorporate the agreement into the contract. The conclusion is also inconsistent with authority. Byrne & Frew (1995) 185 CLR 410 established that awards operate by force of the statute. Pangallo (2002) 127 FCR 1; [2002] FCAFC 325 held that the same position applies to certified agreements. The observation of Whitlam and Gyles JJ at [33] in Pangallo is on point.
A certified agreement now may be rather more like an award was at the time of that decision than it might be now. However, the trend towards consensual arrangements has not resulted in any fundamental change to the nature and effect of a certified agreement. The submission for the appellant that a certified agreement is solely a creature of statute having force by virtue of the statute remains correct. In a sense, the term "agreement" is a misnomer because it will bind individuals whether or not they authorise it or are in favour of it. There is no scope for private law concepts of contract or equity in such circumstances.
71 These observations are irreconcilable with the applicant’s submissions. Whitlam and Gyles JJ also dealt with the argument (put by the applicant in the present case) that contractual remedies must be available because the remedies provided by the Workplace Relations Act are inadequate. At [34], they said:
The argument that the remedies provided by the Act are inadequate to ensure compliance with a certified agreement and that there should be means for enforcing obligations beyond those specifically provided by this statute is contrary to the history of enforcement of industrial obligations, as explained by Madgwick J in Wattyl [Wattyl Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union (1995) 134 ALR 203]. The Act has, for some time, reflected the policy of not specifically enforcing industrial obligations, except insofar as express remedies are provided.
72 Their Honours concluded at [35]:
All in all, we accept the submission that the Act has created the concept of a certified agreement, has given it statutory force and has also regulated the means by which it may be construed and enforced in accordance with the principle in Josephson v Walker [Josephson v Walker (1914) 18 CLR 691].
73 For these reasons the contract of employment does not incorporate the agreement by operation of the Workplace Relations Act or the agreement. Further the agreement itself is not a contract (or, at least, is not a contract as between the University and the applicant).
What remedies are available for breach of the agreement?
74 The conclusions in Pangallo are also relevant to the question of remedies for breach of the agreement. As the applicant submitted Pangallo concerned the jurisdiction of State courts. The applicant said that, in light of s 840 of the Workplace Relations Act and the decisions in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645; [2001] HCA 16 and McAleer v University of Western Australia (2007) 159 IR 96; [2007] FCA 52, it was evident that the Federal Court could grant all remedies necessary to quell the controversy between the parties and was not limited to the remedies specified in Pt 14 of the Act.
75 This submission also confronts a number of difficulties. First, it appears to conflate the issue of the Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act to determine whether the Workplace Relations Act “confers the rights” claimed in the proceedings (Transport Workers Union v Lee (1998) 84 FCR 60) with the issue of the existence or substance of the rights. The same observation applies to the applicant’s submissions about ss 21, 22, 23 and 32(2) of the Federal Court Act and s 840 of the Workplace Relations Act. The existence of these provisions does not provide an answer to the question of the existence or substance of any right vested in the applicant. Nor, for that matter, does the generalised submission (relied on by the applicant) that every right must have a remedy. All propositions assume the existence of some right. In this case, the relevant rights and obligations of the applicant and the University are contained in the agreement and the related provisions in the Workplace Relations Act. They do not arise from the contract of employment because the agreement does not form part of that contract. They also do not arise from the law of contract because the agreement is not a contract (at least as between the University and the applicant).
76 Secondly, and consistent with the respondents’ submission, Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645; [2001] HCA 16 does not assist the applicant. In that case the CFMEU was a party to the certified agreement in question (see the decision at [1]). It was in that particular context that the High Court observed as follows at [34]:
The parties to an industrial situation are free to agree between themselves as to the terms on which they will conduct their affairs. Their agreement has effect according to the general law. If their agreement is certified, it also has effect as an award. To the extent that an agreement provides in a manner that exceeds what is permitted either by the Constitution or by the legislation which gives the agreement effect as an award, it cannot operate with that effect. But the underlying agreement remains and the validity of that agreement depends on the general law, not the legislative provisions which give it effect as an award.
77 In that case the High Court did not refer to Byrne & Frew (1995) 185 CLR 410. Nothing in the observation at [34], when considered in the context of the issues the High Court had to decide, suggests that the High Court should be understood as saying anything to the contrary of Byrne & Frew.
78 In this case, the applicant is not a party to the agreement. He is bound by the agreement by operation of ss 347 and 351 of the Workplace Relations Act and cl 9.1(c) of the agreement. The applicant, however, did not negotiate or sign the agreement. The facts are thus different from those underlying the observation in Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (2000) 203 CLR 645; [2001] HCA 16 at [34].
79 Thirdly, McAleer (2007) 159 IR 96; [2007] FCA 52 is also of no real assistance on this issue. Siopis J was careful to observe that both parties had conducted the trial on the basis of an apparent assumption that the certified agreement in that case was enforceable as a matter of general law. His Honour did not endorse that view but decided the case on the basis of the common position adopted by the parties. Siopis J also observed, at [54], that the declaration sought should not be made because:
In granting relief under the Act in respect of breaches of a certified agreement, the Court is confined to granting the remedies provided for under the Act. The declaration sought by the University goes beyond a declaration of breach as an incident to imposing a penalty under the Act. The Act does not provide the Court with the power to make declarations of nullity or to set aside actions carried out in breach of a certified agreement.
80 Subsequently, in McAleer v The University of Western Australia (No 3) [2008] FCA 1490 at [75] Siopis J observed as follows:
The Workplace Relations Act does not contemplate relief in the nature of judicial review in respect of decisions made, or acts undertaken, by an employer or indeed any person, bound by the terms of the certified agreement.
81 The weight of authority establishes that the remedies available for contravention of a certified agreement (at least for a person who is bound by, but is not a party to the agreement) are those provided for by the Workplace Relations Act (presently, in Pt 14). This conclusion does not detract from the fact that the Court has jurisdiction to determine all questions in any matter arising under the Act. Other remedies are dependent on proof of the infringement of some other right enforceable by law. In circumstances where, as here, the agreement has force as a certified agreement under the Workplace Relations Act and not as part of the contract of employment as between the University and the applicant, there is no such other right on which the applicant can rely to found the declaratory and injunctive relief sought.
Construction of the agreement and alleged contraventions
General principles
82 The principles relating to the construction of industrial instruments (both awards and certified agreements) are well settled. Provisions are to be read in the context of the agreement as a whole “having regard to the nature and purpose of certified agreements” under the Workplace Relations Act (NTEIU (National Tertiary Education Industry Union) v University of Wollongong [2002] FCA 31 at [28]). In this regard it has been said that (Kucks v CSR Limited (1996) 66 IR 182 at 184):
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
83 Further, in the task of construction “consideration is had to the general, not to any particular individual whether an employer or employee” (Ambulance Service Victoria (South Western Region) v Australian Liquor, Hospitality and Miscellaneous Workers Union (1998) 80 IR 275 at 280).
84 In this case the respondents sought to rely on evidence of earlier agreements and understandings of persons involved in their negotiation as aids to construction. The applicant objected to this evidence (which was admitted subject to relevance). The extent to which extrinsic material may be used is not settled. The decision in Short v F W Hercus Pty Limited (1993) 40 FCR 511 involved a more liberal approach to extrinsic material than certain earlier decisions (for example, Seamen’s Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 and Printing & Kindred Industries Union v Davies Bros Ltd (1986) 18 IR 444). It is not necessary to enter into that debate because there is no need to refer to the extrinsic material in order to resolve the dispute in the present case.
The establishment of the committee issue
85 The University admitted that the committee was not established within 10 working days as required by cl 46.9.1 of the agreement. The facts underlying this admission are as follows. The Vice-Chancellor determined that the matter should be referred for investigation under cl 46.7(a) on 24 August 2007. Clause 46.9.1 says that where a matter is referred for investigation in accordance with cl 46.7(a) a committee will be established within 10 working days in accordance with cl 47. Clause 47.1 says that where a committee is established in accordance with cl 46.7 (amongst other clauses) it will comprise a membership as set out therein. The period of 10 working days from 24 August 2007 expired on 7 September 2007. By that date the Vice-Chancellor had informed the applicant that he would notify his nomination shortly. The Vice-Chancellor had also provided the applicant with a list of representatives from which the applicant could choose his representative. The applicant had informed the Vice-Chancellor that he would be contacting Mr Healy to see if he would accept the applicant’s nomination but had not in fact nominated Mr Healy.
86 It is apparent from these facts that the University’s admission assumed that a committee is not established until its membership is determined (although the language of cl 47.1(a) arguably suggests to the contrary). Be that as it may, the fact that membership of the committee was not determined as at 7 September 2007 cannot have the consequence for which the applicant contended (namely, invalidity of all that followed). The agreement does not specify invalidity as a consequence of the failure to identify the membership of the committee within 10 working days. Nor can any such consequence be implied. Clauses 46 and 47 of the agreement prescribe procedures for disciplinary action for misconduct or serious misconduct. The effect of the applicant’s case is that if the Vice-Chancellor decides to refer a matter to a committee for investigation and the committee is not established within 10 working days a committee can never be established and the matter may never be investigated in accordance with cll 46 and 47. That construction of cl 46.9.1 is unreasonable. The parties could not have intended cl 46.9.1 to have that effect. Clause 47.1(a) shows this to be the case. If, as the University’s admission acknowledged, establishment of the committee required identification of its members within 10 working days, then cl 47.1(a) is meaningless. That clause provides that if the chair is not agreed within the period of 10 working days, the Vice-Chancellor may ask a member of the Higher Education Panel of the AIRC to nominate a person to act as chair. Yet, according to the applicant, on expiry of the period of 10 working days without the membership of the committee being identified the process is invalidated and thereby stultified.
87 In these circumstances, failure to fulfil the time stipulation in cl 46.9.1 as admitted by the University does not found the declarations of invalidity and consequential orders sought. Accordingly, it also cannot assist the applicant in the argument that the applicant has been underpaid (in terms of both wages and superannuation contributions). As the contravention of cl 46.9.1 (admitted by the University) does not have the consequence of invalidity, the applicant is not entitled to declarations and orders, in effect, undoing what has been done. The University might have been exposed to a penalty claim for this admitted contravention (but the applicant undertook not to seek any such penalty). In that respect, however, it must be remembered that membership of the committee under cl 47.1(a) involved mutual nomination obligations. Neither the University nor the applicant had nominated their representatives within 10 working days of 24 August 2007. The applicant, for his part, was still “in the process of nominating my representative” as at 27 September 2007.
The chairperson issue
88 The applicant’s position with respect to the chairperson issue is also unpersuasive. Again, neither the University nor the applicant nominated their chair within 10 working days of 24 August 2007. After that period of 10 working days the Vice-Chancellor nominated Commissioner Lawson (on 10 September 2007). The applicant nominated Commissioner Rafaelli (on 18 September 2007, but this nomination was not communicated until the Vice-Chancellor received the letter on 26 September 2007). Commissioner Rafaelli said he was not available on 10 and 11 October 2007 (the days scheduled for the committee to meet) and nominated Commissioner Lawson. In other words, the parties had not agreed on the chair and thus the Vice-Chancellor, in accordance with cl 47.1(a), was entitled to ask a member of the Higher Education Panel of the AIRC to nominate a chair. Commissioner Rafaelli is a member of this panel and nominated Commissioner Lawson. Accordingly, there was no contravention of cl 47.1(a) of the agreement.
89 The applicant’s submissions about the University not being entitled to require the applicant to respond to its nomination within 24 hours or to assume agreement from silence overlook the fact that, if agreement cannot be reached, cl 47.1(a) enables the Vice-Chancellor to break the deadlock by requesting a nomination from a member of the panel. The Vice-Chancellor did so in this case. The fact that the panel member’s nomination was the same as the Vice-Chancellor’s does not undermine the conclusion that the appointment of Commissioner Lawson as the chair accorded with the requirements of cl 47.1(a). In any event, and for the reasons already given about the nature and enforceability of the agreement, the consequence of breach of cl 47.1(a) would not be invalidity of the committee’s investigation or the Vice-Chancellor’s decision to take disciplinary action.
The conclusion of the committee’s proceedings issue
90 The committee membership was settled on 4 October 2007 (with the nomination of Ms Oliffe as Dr Zowghi’s replacement). The committee met on 10 and 11 October 2007. Mr Healy, committee member, went overseas for four or five weeks. The committee delivered its report on 6 December 2007. The applicant submitted that this involved a contravention of cl 47.2(i) which provides that the committee will conclude proceedings within 10 working days of the appointment of the committee unless otherwise agreed between the committee chair, the Vice-Chancellor and the staff member. The applicant said that the clause required the whole “proceedings”, including the report, to be completed within 10 working days. Further, that failure to comply invalidated the committee’s actions and meant that the Vice-Chancellor had no power to take disciplinary action against the applicant.
91 I do not accept these submissions. Clause 45.14 (although relating to unsatisfactory performance rather than misconduct) indicates that the agreement treats a committee’s process of investigation separately from its factual findings. This is reinforced by the structure of cll 46 and 47. The committee’s sole function is to investigate and report on the facts relating to the alleged misconduct (cll 46.9.2 and 46.9.3). It is clear from cl 46.9.5 that the committee’s factual findings are to be in the form of a report. The membership and processes of the committee are separately regulated by cl 47.1 and 47.2 respectively. The word “proceedings” is used in cl 47.2(a) and (h) as well as cl 47.2(i). In cl 47.2)(a) and (h) the word is being used to refer to the committee’s investigative process and not the committee’s report on its factual findings. For example, a report on factual findings is not “conducted” within the meaning of cl 47.2(a). Similarly, it is not possible to “keep a record” of the report on factual findings within the meaning of cl 47.2(h). The structure and content of cll 46 and 47 and of cl 47.2 thus indicates that the “proceedings” contemplated by cl 47.2(i) is the process by which the committee carries out its investigation rather than the report of the committee’s factual findings. On this basis, the committee complied with cl 47.2(i) because it was appointed on 4 October 2007 and concluded its proceedings on 11 October 2007.
92 It is also significant that cl 47.2(a) requires the committee to “conduct proceedings as expeditiously as possible consistent with the need for fairness”. The applicant assumed that this provision supported the argument that the time stipulations were essential with breach spelling invalidity. To the contrary, the provision indicates that the committee’s overriding obligation in conducting its investigation is to act as expeditiously as the need for fairness allows. If the need for fairness dictates that the investigation cannot be concluded within 10 working days then a committee that concludes its investigation within 10 working days irrespective of the unfairness will breach cl 47.2(a) yet comply with cl 47.2(i). This potential inconsistency in the agreement needs to be resolved. It is resolved by recognising that the requirement for fairness is the committee’s leading or overriding obligation. A committee that extends its investigation beyond 10 working days in order to ensure fairness cannot, in my view, be in breach of the agreement.
93 In this case, the committee did not complete its report on factual findings until 6 December 2007 for two reasons, work and leave commitments of members and irreconcilable differences in views. One of the work or leave commitments was the fact that the applicant’s representative went overseas for four or five weeks after the committee concluded its investigation. It would not have been consistent with fairness for the other committee members to complete and submit their report about factual findings without the input of the applicant’s representative. Similarly, it would not be fair for them to have done other than engage with and at least attempt to reach common ground with the applicant’s representative. Both reasons are consistent with the requirements of fairness. They indicate that even if the committee was required to complete and submit its report on factual findings within 10 working days (which I do not accept as a matter of construction of the agreement) the circumstances of the particular case did not involve any breach of the agreement. Clause 47.2(i) had to yield to the overriding obligation for fairness in cl 47.2(a).
94 If, contrary to these conclusions, I had found breach of cl 47.2(i) the consequence would not be the invalidity of the committee’s factual findings or the Vice-Chancellor’s decision to take disciplinary action against the applicant. The agreement does not identify the consequences of breach of cl 47.2(i). When considering the potential consequences it must be kept in mind that, in common with cl 46.9.1, cl 47.2(i) is a time stipulation. Moreover, it is a time stipulation in a particular context (the taking of disciplinary action against academic staff). As the respondents submitted, there are a many reasons that might make it practically impossible for a committee to conclude its investigation within 10 working days of its appointment (including illness or unavailability of the staff member, witness or committee member). The idea that these circumstances could have the effect of stultifying the work of a committee or the Vice-Chancellor’s power to take disciplinary action is unpersuasive. Other factors support this conclusion. First, neither the Vice-Chancellor nor the staff member controls the committee. The committee is comprised of an independent chair and two nominees. It is responsible for managing its own processes. Secondly, the function of the committee is limited to making factual findings relating to the alleged misconduct (cll 46.9.2 and 46.9.3). The Vice-Chancellor’s obligation is to consider those factual findings (cl 46.9.5). Both of these circumstances weigh against the conclusion that a breach of the time stipulation in cl 47.2(i) can have the invalidating effect for which the applicant contended.
95 There is one further matter weighing against the applicant’s position. The applicant assumed that once the committee’s process had been invalidated by reason of one or more of the grounds upon which the applicant relied the Vice-Chancellor was thereafter precluded (permanently) from taking disciplinary action. I do not agree. Assume that a committee could not conclude its proceedings because a member became unavailable. The applicant’s approach to the agreement would mean that the process had miscarried with the consequence that no disciplinary action could be taken. However, nothing in the agreement suggests that an investigative process which has miscarried for some reason cannot be recommenced. In fact, cll 46.16 and 46.17 indicate to the contrary. Read together, and in context, those clauses provide that any decision of the Vice-Chancellor to take disciplinary action is intended to be final unless some public interest consideration requires the re-opening of a conduct matter. In other words, even where the process has been completed by the Vice-Chancellor making a decision on a disciplinary matter, there is some capacity for the matter to be re-opened. For cases where the disciplinary process has miscarried or has had to be abandoned before the Vice-Chancellor has made any decision about taking disciplinary action the agreement imposes no restriction on re-commencing the process (although an obligation to act in good faith presumably would be implied).
96 These considerations also tend to undermine the applicant’s construction of the agreement. Where a time stipulation such as that in cll 46.9.1 or 47.2(i) has been exceeded no practical purpose is served by invalidating the process because the process (assuming it has terminated before the Vice-Chancellor makes a decision on disciplinary action) can be re-commenced. This serves the evident purpose or object of the disciplinary provisions, namely, to ensure a process that is as expeditious as possible consistent with the need for fairness to both the staff member and the University. The applicant’s construction would undermine that purpose by effectively excluding any possibility of disciplinary action (irrespective of the seriousness of the alleged misconduct) merely because membership of the committee cannot be finalised within 10 working days or the committee cannot conclude its proceedings within 10 working days of appointment.
97 The fact that cl 47.2(i) contemplates that the parties may agree to the contrary does not require a different construction to be adopted. If that were so the staff member being investigated could ensure that no disciplinary action could be taken (for example, by being unavailable for interview by the committee and refusing to agree to extend the time).
98 For these reasons the agreement should not be construed as invalidating the committee’s investigation or disciplinary action taken by the Vice-Chancellor. The committee concluded its proceedings within 10 working days of its appointment. If (contrary to this conclusion) the committee did not then its reasons for not doing so engaged the overriding fairness obligation in cl 47.2(a). In any event, breach of the time stipulation in cl 47.2(i) does not have the effect of invalidating subsequent actions.
The lack of unanimity issue
99 The applicant submitted that the committee was required to make unanimous factual findings (relying on the discussion about the rule in Grindley v Barker (1798) 1 B&P 229; 126 ER 875 in Bruce v Cole (1998) 45 NSWLR 163 at 205E – 206). As the committee had not made unanimous factual findings there were no findings of the committee and no capacity of the Vice-Chancellor to take disciplinary action.
100 Grindley v Barker held that, where a power of a public nature was being exercised (namely, the sale of leather that had not been duly dried as required by statute), the opinion of the majority bound the minority. Priestley JA described Grindley v Barker as “not in itself a particularly persuasive decision” although followed from time to time by courts of high authority (Bruce v Cole (1998) 45 NSWLR 163 at 205G). The rule has been said to be one of convenience and apply where the powers are “not of mere private confidence, but in some respects of a general nature” (Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457 at 463E).
101 If the disciplinary provisions of the agreement are merely private in nature then it does not automatically follow that the rule in Grindley v Barker applies. The issue is to be resolved as one of construction having regard to the nature and purpose of the agreement as an industrial agreement. There are a number of factors weighing against the applicant’s approach to the issue.
102 First, the committee is constituted by an independent chair and two nominees (one for the Vice-Chancellor and one for the staff member). Given that constitution it must have been within the contemplation of the parties to the agreement that the committee would not make unanimous factual findings because two of its members are nominees. The parties could not reasonably have intended that the process would be stultified merely because members of the committee disagreed about the factual findings that should be made.
103 Secondly, the committee’s function is limited to the making of factual findings about the alleged misconduct. The committee has no function in determining whether or what disciplinary action should be taken. This is a point of distinction from Grindley v Barker and subsequent decisions applying it. The distinction is important because it discloses the limited function of the committee as an investigatory body. The making of separate (and irreconcilable) factual findings by the committee does not undermine its function in the scheme of the agreement. It might be as relevant for the Vice-Chancellor to know that the committee members disagreed about their factual findings as it is to know what those findings were.
104 Thirdly, the Vice-Chancellor is bound to consider the committee’s factual findings but is not bound by them. The Vice-Chancellor can take a different view from the committee about the facts. This is evident from the terms of cll 46.9.4, 46.9.5 and 46.9.6. A divergence in factual findings by committee members does not prevent the Vice-Chancellor from considering the findings and, as noted, disagreement between committee members may itself be relevant to the Vice-Chancellor’s consideration.
105 Fourthly, none of the provisions relating to the committee require the committee’s findings on the facts to be unanimous. The committee’s findings on the facts may be unanimous, involve majority and minority findings or involve individual and separate findings by each of the three members. Nothing in the agreement suggests that these findings will not be the findings of fact and report of the committee.
106 For these reasons I do not accept that the agreement required the committee to make unanimous findings of fact. The committee made factual findings as set out in the report submitted to the Vice-Chancellor on 6 December 2007. It was a matter for the Vice-Chancellor to consider those findings, including the differences between the majority and the minority, and to decide what if any action to take after inviting any further response in accordance with cl 46.10.
The Vice-Chancellor issue
107 This aspect of the applicant’s case turned on the fact that Professor Milbourne (the Vice-Chancellor) referred the matter to a committee, received and considered the committee’s report, and invited a further submission from the applicant in accordance with cl 46.10. However, Professor Booth (the Acting Vice-Chancellor) decided on the disciplinary action to be taken against the applicant. The applicant submitted that the functions in cll 46.9.4, 46.9.5 and 46.10 were indivisible.
108 Clause 3.19 of the agreement defines the Vice-Chancellor as including any person fulfilling that role on a temporary basis and the Vice-Chancellor’s nominee. The Vice-Chancellor (Professor Milbourne) appointed Professor Booth as the Acting Vice-Chancellor from 2 until 21 January 2008. For the purposes of the agreement Professor Booth was thus the Vice-Chancellor for the nominated period. The agreement empowered the Vice-Chancellor (whoever that person was at the relevant time) to take disciplinary action in accordance with cll 46.9.5 and 46.10. There is no suggestion that Professor Booth failed to consider the committee’s report as required by cl 46.9.5. I do not accept that Professor Booth was precluded from taking into consideration the views expressed by Professor Milbourne before he took leave. Clause 46.9.5 specifies that which the Vice-Chancellor must take into consideration. Subject to fairness considerations the agreement does not prevent the Vice-Chancellor from taking into consideration other matters. In the circumstances of this case it was proper for the Vice-Chancellor to brief the Acting Vice-Chancellor on the matter including his views on the committee’s factual findings.
109 For these reasons I do not accept that the agreement prevented Professor Booth (as the Acting Vice-Chancellor) from taking the disciplinary action merely because Professor Milbourne (the Vice-Chancellor) had taken all steps precedent to that action.
CONCLUSION
110 It follows from the discussion above that, apart from the University’s concession of breach of cl 46.9.1, the applicant has not established any breach of the agreement. Further, the agreement does not form part of the contract of employment and is not itself a contract between the applicant and the University. The consequence of the admitted breach is not invalidity of the actions of the committee or the Vice-Chancellor. As the actions of the committee and the Vice-Chancellor were valid the remedies sought by the applicant are not available.
111 Given the applicant’s undertaking not to institute penalty proceedings under s 719 the only other remedy available (as the applicant originally sought under s 849) is an interpretation of the agreement. In the circumstances of this case, particularly the focus on the applicant’s individual position, I do not consider it appropriate to make any consequential declarations. The proceedings should be dismissed.
| I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. |
Associate:
Dated: 10 October 2008
| Counsel for the Applicant: | Mr B W Rayment QC with Mr D W Rayment |
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| Solicitor for the Applicant: | John McEncroe & Company |
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| Counsel for the Respondent: | Mr A Britt |
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| Solicitor for the Respondent: | Colin Biggers & Paisley |
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| Counsel for the Intervener: | Mr M Moir |
| Date of Hearing: | 8, 9 and 25 September 2008 |
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| Date of Judgment: | 10 October 2008 |
