PR953722 AG801760 PR953722 Download Word Document The attached document replaces the document previously issued with the above code on 26 November 2004. Kaye Meschiati Associate to Commissioner Thatcher Dated 29 November 2004 AG801760 PR953722 AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute National Tertiary Education Industry Union and University of Western Australia (C2003/6820) Educational services COMMISSIONER THATCHER PERTH, 26 NOVEMBER 2004 Dispute settling procedures - dispute lodged after termination of employment - whether Commission can arbitrate a dispute about former employee - principles for characterisation of dispute - doctrine of frustration - termination in breach of provision - harsh, unjust or unreasonable - creation of new rights. DECISION [1] Jurisdictional objections have been raised by the University of Western Australia (the university) to the Commission exercising powers of private arbitration to settle a dispute that has been referred by the National Tertiary Industry Union (the union) under the dispute settling procedures of the University of Western Australia Academic Staff Agreement 2000 1 (the Agreement). [2] The dispute relates to the termination of employment on 28 November 2003 of William Daly Reed, professor of medicine, as the Eric Saint Chair in the university whose duties included teaching undergraduate and postgraduate students at the university's faculty of medicine and dentistry for which he was located at the Sir Charles Gairdner Hospital (the hospital), which is a teaching hospital (in doing so he carried out clinical responsibilities with patients). [3] Details of the union's application are: " 1. The characterisation of the dispute that is to be the subject of the arbitration hearing The dispute is characterised in Form 47 lodged with the Commission (in)(sic) 2003, which stated: "The matter in dispute relates to the failure of the University in terminating the employment of Professor WD Reed to apply the disciplinary procedures as contained in the University of Western Australia Academic Staff Agreement 2000. Without limiting the generality of the forgoing, the dispute concerns the proper interpretation and application to Professor Reed's employment of clause 16 and Schedule E." 2. The remedies being sought by the union under s.170LW The remedy is discretionary and should be determined on its merits. The union is seeking an order from the Commission in the following terms: i) Professor Reed is to be reinstated to his position as the Eric Saint Chair in Medicine as at 28 November 2003. ii) Professor Reed is to be paid his salary as if his employment had been continuous with the university as at 28 November 2003. iii) A direction that any future steps to terminate Professor Reed be taken in accordance with clause 16 of the agreement. " 2 [4] Clause 16 is central to this dispute and states: " 16. TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION (a) Termination of employment at the initiative of the employer is governed exhaustively by Schedule D Unsatisfactory Performance, Schedule E Misconduct, Schedule F Redundancy Provisions and Clause 18 Termination of Employment on the Grounds of Ill Health. (b) All decisions to discipline or terminate the employment of an academic for reasons of unsatisfactory performance, misconduct, redundancy, termination on the grounds of ill health must be in accordance with this clause. Disciplinary action may take one of several forms as defined in Schedules D and E and will be determined by the Deputy Vice-Chancellor or the Vice-Chancellor as prescribed by these schedules. (c) Except as specifically provided herein to the contrary the terms of this Agreement shall cover exhaustively the subject matter concerned, and are to the exclusion of: (i) State and Territory law in respect of any matter subject to this Agreement; and (ii) any law of the Commonwealth or an internal Territory of the Commonwealth, in respect of which the Australian Industrial Relations Commission has power to make an award which is not consistent with that law by reason of section 121 of the Act in respect of any matter subject to this Agreement to the extent that this Agreement is not consistent with that law. Provided that the provisions in this Agreement shall be subject to and shall not affect the operation of: (1) any law empowering a State or Commonwealth industrial tribunal to order reinstatement of or compensation to an employee or to otherwise deal with the dismissal of that employee; (2 any other law empowering any court or tribunal external to an employer which has jurisdiction to deal with any causes of action or claims arising from actions taken by the University pursuant to this Agreement. (d) Any procedural requirements imposed by laws referred to in subclause (ii) above are entirely displaced and extinguished by force of this Agreement. (e) The University must not terminate the employment of an employee unless the academic has been given notice and/or compensation as required by 170CM of the Act provided that: (i) the University may terminate without notice the employment of an academic found to have engaged in conduct of a kind envisaged in section 170CM(l)(c) of the Act such that it would be unreasonable to require the University to continue employment during a period of notice; and (ii) greater notice and/or compensation specified in the employee's contract of employment or in this Agreement shall prevail over section 170CM of the Act. (f) This Agreement is to be read in conjunction with Division 3 of Part VIA of the Act provided that an employee shall be entitled to the benefit of: (i) any provision in this Agreement which is more favourable to the academic than any corresponding provision in the Act; or (ii) any procedural step required by the Agreement in addition to the required procedural steps of the Act. (g) Nothing in this clause shall be construed as excluding the jurisdiction of any external court or tribunal which, but for this clause, would be competent to deal with the matter. " [5] Schedule E, which is referred to in sub-clauses 16(a) and (b), is set out in Appendix A of this decision. Those provisions include: Termination of employment may only result from a determination that the conduct of the employee amounts to serious misconduct (as defined). (clause 7(e)) The deputy vice-chancellor shall make the final determination of whether serious misconduct has occurred. (clause 7(c)) Where the deputy vice-chancellor makes such a determination and is of the view that the serious misconduct warrants disciplinary action of demotion, suspension or termination the matter must be referred to the vice-chancellor. (clause 7(c)) A comprehensive process for the investigation of allegations of misconduct/serious misconduct which includes, if the allegations are denied, the referral of the matter to a misconduct investigation committee (clause 2(i)(ii)) (which includes a nominee of the deputy vice-chancellor and a nominee of the president of the WA branch of the union (clause 3(a)) which shall report to the deputy vice-chancellor on the facts relating to the allegations and whether there is sufficient evidence to support the allegations. (clause 4(c)(i)) That committee may request an agreed investigating officer to report to it in accordance with terms of reference it determines.(clause 5) The facts [6] On 1 April 1991, Professor Reed was employed by the university as the Eric Saint Chair in medicine pursuant to a contract of employment. Professor Reed had previously been granted clinical privileges in general medicine and gastroenterology at the hospital. Professor Reed's clinical status and privileges at the hospital continued uninterrupted. [7] Prior to this, Professor Reed held the following positions at the university: (a) From 1988 to 1991, he was an associate professor in medicine and the head of the department of medicine. (b) From 1974 to 1988, he was a senior lecturer in medicine whilst holding the position of head of the gastroenterology/liver unit of the hospital between 1983 to 1986. (c) From 1971 to 1974 he was a temporary lecturer in medicine with the university whilst working as a relieving clinical assistant physician at the Royal Perth Hospital. [8] Professor Reed's duties as the Eric Saint Chair in medicine included the following essential and substantial duties: (d) teaching and supervising undergraduate and postgraduate students and staff at the university's Faculty of Medicine and Dentistry. [Whether or not that is located at the hospital and in doing so, Professor Reed carried out clinical responsibilities with patients is not agreed by the parties]; and (e) engaging in research at the professorial level, using laboratory facilities. [Whether or not those facilities were provided by the hospital or the university is not agreed by the parties]. [9] The university says that in order to perform these duties, Professor Reed needed to be able to exercise clinical privileges at the hospital. The union says that he needed to be able to exercise clinical privileges at a teaching hospital of Western Australia. The parties disagree on whether or not it is a requirement that the holder of the Eric Saint Chair in medicine must be able to exercise clinical privileges at the hospital. [10] Professor Reed was disciplined by the university on a number of occasions over the period of 1998 to 2001. Various allegations were either investigated by the misconduct investigation committee or were the subject of less formal internal investigation processes. The vice-chancellor took the following disciplinary action: Date Decision of vice-chancellor 6 May 1998 Censure 21 April 1999 Censure 12 May 1999 3 month suspension without pay 2 June 1999 Censure 31 August 1999 3 month suspension without pay 19 December 2000 9 month suspension without pay [The union says that with the exception of the matters that were the subject of the decision of 19 December 2000, all these matters were first raised and dealt with by the hospital. The university does not agree.] [11] On 30 September 1999, Professor Reed petitioned the visitor of the university, the Governor of Western Australia, for a review of the disciplinary action taken against him. [12] On 10 October 2001, the visitor quashed the 9 month suspension without pay imposed on 19 December 2000 and substituted in its place a 3 month suspension without pay. [The parties do not agree on whether or not the visitor upheld the 7 other decisions of the vice-chancellor or whether the visitor acted on the advice of the Honourable A J Barblett AO.] [13] Independent of the investigations and disciplinary action instigated by the university, the Metropolitan Health Services Board (the board) investigated Professor Reed's use of the hospital's trust accounts. On 18 September 2000, the board revoked Professor Reed's clinical privileges at the hospital. [The parties do not agree on whether or not the revocation was "indefinitely".] In reaching its decision, the board concluded that Professor Reed had used certain trust accounts on twelve occasions for improper purposes, being purposes other than those for which he requested the hospital to open the accounts. [14] On 23 January 2001 the board notified the university that the effect of its decision to revoke Professor Reed's clinical privileges was that he could not undertake any clinical practice at "... any of the Metropolitan Health Services hospitals ". [15] Professor Reed applied to the Supreme Court of Western Australia for an order quashing the board's decision. He obtained an order nisi for certiorari on 9 April 2001. However, on 18 June 2003, a Full Court of the Supreme Court discharged that order nisi for reasons that it then published. 3 An earlier application for trial of preliminary issues was dismissed on 21 March 2000. 4 Other proceedings before the Western Australian Information Commissioner in 2001 resulted in a finding that two documents of the university were not exempt under the Freedom of Information Act 1992 . 5 [16] The last period of Professor Reed's suspension ended on 18 September 2001. However, at that time, as Professor Reed's clinical privileges at the hospital had not been reinstated and, therefore, Professor Reed could not perform his duties, the vice-chancellor directed him not to attend work. Professor Reed continued to receive full salary plus certain loadings. [17] In about October 2001, the university advised Professor Reed that, as he was not performing any clinical duties, the university would stop paying him a clinical loading and a supplementary clinical loading in addition to his salary. [18] The union, on Professor Reed's behalf, disputed the university's decision and notified the Commission of an industrial dispute in accordance with s.99 of the Act. A conciliation conference was held before Deputy President McCarthy who did not make any recommendations about the resolution of the dispute. Upon considering the matters raised by the union at the conference, the university decided to reinstate the payment of the clinical loading to Professor Reed but at the para-clinical level. The university did not reinstate the payment of the supplementary clinical loading. No further action was taken in relation to this issue by the union or Professor Reed. [19] In about April 2002, the union notified the university of a dispute it had about the meaning of clause 16 of the Agreement. The union asserted that all decisions by the university to terminate the employment of an academic staff member must be carried out in accordance with the terms of clause 16 of the Agreement. [20] On 16 May 2002, a Disputes Committee was convened in accordance with the dispute settling procedures (clause 38) of the Agreement. The Disputes Committee comprised two representatives from the union and two representatives from the university. The university and the union could not agree on the meaning of clause 16 of the Agreement. [21] On 29 January 2003, the university applied to the Federal Court of Australia for a declaration as to the meaning of clause 16. On 6 November 2003, the Federal Court made a declaration that clause 16 does not apply to the termination of a contract of employment by frustration or other means not at the initiative of the employer. [22] After the period for appealing this decision expired, the university wrote to Professor Reed on 28 November 2003 informing him that, due to his inability to perform the fundamental duties of his position, his employment had come to an end. The letter included: " As you continue to be without clinical privileges at the public teaching hospitals, you are unable to fulfil the fundamental requirements of your position - the Eric Saint Chair of Medicine. Specifically, you are unable to undertake work that requires you to access the facilities at public teaching hospitals, including clinical teaching (undergraduate and postgraduate), clinical trials in support of research work, staff supervision and patient care responsibilities. Your inability to perform these fundamental duties leads me to the conclusion that your contract of employment has been frustrated and, therefore, your employment with the university has come to an end. ... Even though your employment came to an end on 10 July 2003, you will be paid your salary and accrued entitlements up to 28 November 2003. " [23] On 15 December 2003 Professor Reed made application pursuant to s.170CE (1)(c) of the Act for reinstatement to his employment on the grounds: that the termination of his employment by the university was harsh, unjust or unreasonable; and of an alleged contravention of s.170CM (Failure to give notice of termination). The university did not move for the dismissal of the application on grounds that it was outside the jurisdiction of the Commission. Following a conference before Mr Negus on 3 March 2004, on 17 March 2004 Professor Reed discontinued those proceedings. [24] On 18 March 2004, Professor Reed wrote to the Western Australian Minister for Health requesting that the Minister overturn the decision of the board. [25] On 25 June 2004, the Minister wrote to Professor Reed stating that he was not prepared to intervene and would not restore Professor Reed's clinical privileges. [26] Since this s.170LW matter was lodged on 22 December 2003 a series of hearings and conferences have been convened by the Commission on 22 January 2004, 1 April 2004 and 11 May 2004 for the purpose of seeking to resolve the dispute. After Professor Reed received the response from the Minister I convened a further conference with the parties on 24 September 2004. I am satisfied that further attempts to resolve the matter through conciliation are likely to be unsuccessful. I raised with the parties during the conciliation process whether they were interested in jointly agreeing to be bound by any recommendation to resolve the dispute. Communication has occurred with the university and the union on whether Professor Reed would undertake to be bound by any decision of the Commission, however the university and Professor Reed could not agree on the terms of an undertaking. Federal Court proceedings [27] In the proceedings referred to in paragraph 21 the university applied for an interpretation, under s.413A of the Act, of clause 16. The union was the respondent and raised no objection to the application. At the time the disagreement between the union and the university was whether: " (a) assuming (without deciding) that the doctrine of frustration has brought Professor Reed's employment contract to an end, the university may lawfully treat Professor Reed's employment as terminated without complying with the procedure set out in clause 16 of the Agreement; and (b) the applicant may terminate Professor Reed's employment (or, for that matter, the employment of any other member of its academic staff) on grounds which fall outside the four grounds referred to in clause 16. ". 6 [28] That application was limited to matters of law. 7 As Carr J stated in his decision: " In this application the Court is not required to make findings of fact relating to the merits or demerits of the dispute between the University and Professor Reed. Nor does the Court have to decide the degree to which Professor Reed may or may not be able to carry out his duties. That is not an issue raised for decision in this application. The issues in this application have been determined by the pleadings. " 8 [29] Further, Carr J stated: " The applicant filed a statement of claim with its application. I think that it is fair to say that the statement of claim pleads facts of a background and procedural nature designed to demonstrate the existence of an industrial dispute which may be more readily resolved by an interpretation under section 413A. For example, in paragraph 13 (which is expressly admitted in the defence), the applicant pleads as a fact that the respondent maintains that the applicant may not lawfully terminate or treat as terminated Professor Reed's employment, or the employment of any academic staff under any circumstances unless it complies with the procedure set out in clause 16 of the Agreement. In those circumstances, in my view, the Court should exercise its power under s.413A. The questions raised are not hypothetical. There is plainly a controversy between the applicant and the respondent about the meaning of clause 16. That controversy is set in the context of a dispute about whether Professor Reed's contract of employment with the University has automatically come to an end under the doctrine of frustration, a dispute which this Court is not required to determine. There is also the dispute about the possible termination by the University of that contract, which falls into the same category (i.e. one which this Court is not required to determine). " 9 [30] In its decision of 6 November 2003, the Federal Court ordered and declared (which I will refer to as the Federal Court order) that: "1. On a proper interpretation of clause 16 of an agreement known as the University of Western Australia Academic Staff Agreement 2000, that clause: (a) applies only to a termination of employment at the initiative of the employer, and does not apply to the termination of a contract of employment by frustration or other means not at the initiative of the employer; and (b) when read with clauses 17 and 18 and Schedules D, E and F of that agreement (including all references therein to the operation of Commonwealth, State and other laws), governs exhaustively the procedures to be followed in relation to termination of employment at the initiative of the employer." 10 [31] By force of the Act 11 the decision of the Court is final and conclusive and binding on the organisations and persons bound by the agreement and the employees whose employment is subject to the agreement who were given an opportunity of being heard by the Court. There can be no doubt that clause 16 has no effect in respect of a termination that is not at the initiative of the employer. [32] The Commission is now asked to resolve a further dispute. The further dispute is stated in the union's application (and restated in correspondence to the Commission on 27 September 2004) as the failure of the university in terminating Professor Reed's employment (i.e., at the initiative of the employer) to apply the disciplinary provisions in the Agreement. 12 [33] Whilst the union's application does not limit the basis of such failure, its submissions have not extended beyond clause 16 and schedule E. Therefore I will limit my consideration to those provisions. Private arbitration [34] Following the decision of the High Court in the Private Arbitration Case 13 it is clear that s.89(b) of the Act authorises the Commission to exercise its functions under a dispute settlement procedure in a certified agreement which the Commission derives from s.170LW of the Act. The Commission's jurisdiction for the purpose of settling disputes is conferred by the parties through their agreement, rather than a power directly conferred on the Commission by the Act. Where private arbitration is the function of the Commission it is the terms of the certified agreement of the parties and the law that operates with respect to it that makes that arbitration binding on the parties. 14 [35] The starting point is to consider the terms of the dispute settlement procedure in the Agreement to determine what functions (if any) the agreement of the parties empowers the Commission to perform. However, for the Commission to perform those functions, they must not extend beyond the Commission's jurisdiction as prescribed by s.170LW. The Agreement cannot empower the Commission beyond the statutory functions and powers invested by legislation. [36] The Commission's private arbitration powers are dependent on the following: What sorts of disputes the parties have agreed the Commission may determine. Any prerequisite processes in the Agreement for resolving the dispute prior to it being forwarded to the Commission must have been completed; If the preconditions of the Agreement are satisfied, whether the nature of the dispute is such that the Commission has jurisdiction under s.170LW to arbitrate. [37] In undertaking private arbitration the Commission has a discretion to exercise its powers. Of course, the Commission does not have discretion to make orders outside its powers. Therefore a further jurisdictional question is whether the Commission has powers to make the remedies sought (as provided by the Act to the extent that these may be limited by the Agreement). Dispute settlement clause of the Agreement [38] Clause 38 (Dispute Settling Procedures) of the Agreement relevantly provides: " (a) Where any dispute arises as to the meaning and application of this agreement (i) in the first instance an accredited representatives of the union and the appropriate representatives of management of the University shall discuss the dispute and attempt to reach written agreement, subject to ratification by the parties; (ii) where a dispute is not resolved under (i) above, at the request of either party a Disputes Committee shall be convened within one working week, unless agreed otherwise. The Disputes Committee shall consist of (a) two nominees of management of the University (b) two nominees of the union; (iii) the Disputes Committee shall attempt to resolve the matter within one working week of its first meeting. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by the parties. Industrial Action (b) Until the procedures described above have been exhausted : (i) work shall continue in the normal manner; (ii) no industrial action shall be taken by management of the University or the union; (iii) management of the University shall not change work, staffing or the Organisation of work if such is the subject of the dispute, nor take any other action likely to exacerbate the dispute; and (iv ) the subject matter of the dispute shall not be taken to the Australian Industrial Relations Commission by the union or the management of the University. (c) Should the dispute not be resolved by the processes referred to in sub-clause (a) the matter may be referred to the Australian Industrial Relations Commission for conciliation and/or arbitration. (d) It is acknowledged that if the dispute relates to an alleged ambiguity or uncertainty in this agreement any party may at any time apply for variation of the agreement to eliminate the alleged uncertainty or ambiguity or the Commission may act of its own motion to take steps to vary the agreement. (e) Where the Commission determines that it does not have jurisdiction to arbitrate on a matter nothing in this clause prevents the parties from agreeing to being bound by any recommendation during conciliation to resolve the dispute. " (emphasis added) [39] The dispute did not become the subject of the processes referred to in sub-clause (a) as the university did not believe that the dispute was over the " meaning and application " of the Agreement. However in its submissions the university did not take issue with the dispute being before the Commission without the earlier steps. 15 [40] The university submits that the dispute has not arisen as to the "meaning and application " of the Agreement because the word " and " should be given its conjunctive meaning. This is not an unreasonable interpretation, as most disputes over the application of the Agreement would also involve some element of disputation over the meaning of a provision of the Agreement. However in this particular case, the Federal Court has interpreted clause 16 and there is no dispute about its meaning . The union's application is limited to the application of the Agreement to Professor Reed's termination of employment. [41] The principles 16 that are relevant in resolving the proper application of the provisions of s.38 include: Weight should be given to the ordinary and natural sense of the words used in the relevant clause(s) in the agreement and within the context of the agreement taken as a whole. Words should be given their plain and ordinary meaning unless the contrary is shown. Words used should not be interpreted in a strict, technical fashion because those who framed the agreement are often non-lawyers who draft words in the context of custom and practice in the industry or enterprise. The Commission should strive to give effect to the mutual intention of the parties at the time of making the agreement. Similar principles apply to the interpretation of certified agreements as apply to the construction of awards. 17 [42] It is well established that in interpreting legislation a court will not readily depart from the normal usage of words to give the word " and " anything but a conjunctive meaning. 18 Notwithstanding this, there are limited occasions when the word " and " is also read as " or " (also a disjunctive meaning). Certain circumstances were canvassed in the unanimous decision of the High Court in Victims Compensation Fund Corporation v Brown 19 and by Blackburn J in Re the Licensing Ordinance. 20 Those circumstances include where there is a convincing textual reason emerging from the rest of the Act for departing from the ordinary meaning or the result of the conjunctive meaning was an absurdity. [43] I must consider the difference between interpreting a statute and an agreement where the words are drafted by laypersons in the context of custom and practice in the industry or enterprise. 21 During the hearing, it became obvious that provisions of the Agreement on which I questioned the advocates had been drafted in less than precise terms. Also, I must consider the meaning of the word " and " within the context that it was used and adopt a meaning that will avoid consequences that appear irrational or unjust. As stated in Stroud's Judicial Dictionary : " (1) "And" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the anthesis of OR. Sometimes, however, even in such a connection, it is, by force of a context, read as "or". Thus where a lessee underlet, with a proviso, on breach of covenant, enabling him and his lessor to re-enter: held, that he or his lessor might re-enter on breach ... " 22 [44] The union submitted that the term " meaning and application of this agreement " must be read within the context of, and for the purpose of satisfying, s.170LT(8) of the Act. The Commission must certify an agreement if, and must not certify the agreement unless, it is satisfied that the requirements of s.170LT(8) are met. 23 That subsection provides that an agreement must include procedures for preventing and settling disputes between the employer and the employees whose employment would be subject to the Agreement about " matters arising under the agreement ." That expression is not unduly restrictive and would not be satisfied if the restricted meaning of " meaning and application of the agreement " suggested by the university was accepted. [45] I have considerable sympathy for the union's argument, when one considers that the term appears in clause 38(a) and therefore, because of paragraph (i) thereof, it applies in the first instance to disputes that accredited representatives of the union and the appropriate representatives of management of the university shall discuss and attempt to reach agreement, subject to the ratification by the parties. I can understand why the parties to the Agreement might have intended to limit the types of disputes that can be referred to the Commission 24 or the powers that the Commission can utilize to settle such disputes. 25 [46] However it seems almost irrational to suggest that the mutual intention of the parties was to prevent disputes that were only about the application of a term in the Agreement becoming the subject of the discussions between the representatives of the union and management or the deliberations of the Disputes Committee. Certainly it would be unlikely that such meaning would be the intention of the employer, as that would exclude those disputes from sub-clause 38(b), which prevents industrial action being taken and provides for work to continue in the normal manner until the procedures in clause 38(a) have been exhausted. Without access to extrinsic evidentiary material, common sense seems to suggest that the wider meaning was the mutual intention of the parties. [47] The term " meaning and application " was not included in the University of Western Australia Academic, Academic Research and Related Staff Agreement 1997, which was superseded and replaced by the Agreement. The dispute settling procedures in that former agreement related to circumstances: " Where any dispute arises as to the procedural requirements established by this agreement ". 26 Neither party provided the Commission with any explanation for the alteration in wording. [48] An argument in favour of giving the term " and " only a conjunctive meaning and not both conjunctive and disjunctive meanings is that the term " and/or " is used in sub-clause 38(c). As Hodges J said in Craig Williamson Pty Ltd v Barrowcliff : " I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document ... " 27 [49] There are arguments for either approach. Having applied relevant principles I am satisfied, on balance, that the proper application of the term " meaning and application of this agreement " where it appears in sub-clause 38(a) is arrived at by giving " and " both a subjective and disjunctive meaning. Because the Agreement provides that the category of disputes that are to be referred to the Commission under sub-clause 38(c) are the same as referred to in sub-clause 38(a), it follows that the functions of the Commission that are referred to in clause 38(c) are those that arise as to the meaning or application of the Agreement or both the meaning and the application of the Agreement. [50] Therefore, if this dispute arises because of the application of clause 16 or schedule E, I am satisfied that it may be referred to the Commission for conciliation and arbitration pursuant to clause 38(c) of the Agreement. I will return to the question of whether or not the dispute is over the application of clause 16 or schedule E. Also I will not, at this stage, consider whether the clause permits a dispute over the application of the Agreement to a person who is not an employee at the time that the dispute is referred to the Commission to be dealt with under clause 38. 28 S.170LW of the Act [51] Section 170LW of the Act relevantly provides: " Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement may, if the Commission so approves, empower the Commission to do either or both of the following: (a) to settle disputes over the application of the agreement ; (b) ...." [52] As indicated earlier, 29 the Commission cannot exercise its functions under the dispute settlement procedure in the Agreement (i.e., to conciliate or arbitrate) unless the Commission can derive the jurisdiction from s.170LW. Therefore I will consider the limitations of the term " disputes over the application of the agreement. " I will not, at this stage, consider whether s.170LW permits a dispute over the application of the Agreement to a person who is not an employee at the time that the dispute is referred to the Commission under that section. 30 [53] The practice of the Commission is to ascribe to the subject matter of the dispute before it the correct characterisation of the dispute. The Commission then determines whether the dispute, as correctly characterised, is a dispute over the application of the agreement. As was observed by Lacy SDP in MUA and Australian Plant Services ; " An important limitation on the Commission's powers under s.170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement `to settle disputes over the application of the agreement' and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. [Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union, Print T0301, [24]. " 31 [54] Before characterising the subject matter of the dispute before the Commission it is instructive to consider case law on the meaning of the term " disputes over the application of the agreement " as it appears within s.170LW. That term has not been judicially considered. 32 Some members of the Commission have sought to describe the width of the term, although no uniform approach seems to have been adopted. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Vice President Lawler stated: " [13] Whatever else the expression "disputes over the application of the agreement" in s.170LW of the Act and its predecessors may denote, in my opinion it must certainly include: (i) disputes over whether the agreement applies in particular circumstances; and (ii) disputes over how the agreement applies in particular circumstances." 33 [55] Some guidance on the meaning of the term can be gleaned from similar procedures in awards. 34 Of course, there is a significant difference between the range of matters that can be arbitrated by the Commission under dispute resolution procedures in awards and under dispute settlement procedures in certified agreements that, like the Agreement, are made under Division 2 of Part VIB of the Act. 35 [56] The majority of the Full Bench in Re Automated Meter Reading Services (AMRS) 36 , when considering the term " disputes over the application of the agreement " stated that " the expression can be construed by analogy to cover a similar, albeit narrower, range of matters to those that were accepted as coming within the expression ` dispute or claim arising out of the operation of the Award. ' That and similar expressions in industrial instruments have been judicially construed to require a relationship between the dispute and the provisions of the award itself " . [57] The majority concluded: " A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. " [58] A similar approach was adopted by the Full Bench in CPSU v Seven Network (Operations) Limited which stated: " There is a need to characterise the dispute and then to decide whether the dispute, thus characterised, has nexus or sufficient nexus to the provisions of the agreement itself. " 37 [59] R v Hegarty: Ex parte City of Salisbury 38 the High Court held that procedures and machinery prescribed in the Act for the resolution of disputes by a Board of Reference were to ensure that the settlement of the dispute " was effective and enduring ". 39 [60] The character of a dispute is distinguishable from the orders that may be made in settlement of the dispute. 40 In Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union 41 the Full Bench stated: " 25] The characterisation of the subject matter of any determination, order or award that might be made in settlement of the claim or subject matter in dispute is conceptually distinct from the characterisation of the dispute or claim itself. Generally the subject matter of the determination must pertain to or be within the ambit of the claim or dispute. ... " [61] Another source of guidance on the meaning of the term has come from commercial law. In Re Automated Meter Reading Services (AMRS) the Full Bench stated that it appears " that the emphasis upon relating the dispute to the provisions of the instrument, the requirement to demonstrate nexus, has a foundation in and is enforceable from a line of authority about construction of similar phrases in commercial arbitration agreements ." 42 [62] The Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores ("Big W") 43 built on that approach and stated that because the Commission was exercising the powers of private arbitration, cases of an arbitrator exercising powers of private arbitration are of assistance in determining what is a dispute over the application of an agreement. The Full Bench referred to Heyman v Darwins Ltd 44 ( Heyman) which stated: " The answer to the question whether a dispute falls within an arbitration clause in a contract must depend on (a) what is the dispute and (b) what disputes the arbitration clause covers. " [63] The actual determination in Heyman of what was the subject matter of the dispute is of limited assistance to the Commission as in that case, House of Lords was construing an arbitration clause that the Lord Chancellor noted was " as broad as could be imagined ". Whilst Heyman was endorsed by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales 45 Mason, J found that the relevant clause contained the expression " all disputes arising out of the Contract " was even wider that the comparable expression in Heyman which was " disputes under the Contract ." 46 The Full Bench also referred to QH Tours Limited and Sazalo Pty Ltd v Ship Design Management (Aust) Pty Limited and Charles Russell Gibbons 47 which referred to the width of the ambit of a clause with the phrase " related to this agreement ". In that case, in considering the powers of the arbitrator having regard to the width of the relevant clause, Foster J took into account the context of the whole of the purchaser agreement when he stated: " I should add that when clause 16 is considered in the context of the whole of the purchaser agreement, further assistance is found for concluding that it is wide enough to give the arbitrator this power. " 48 [64] In its decision, the Full Bench then stated: "Although the referral of a dispute over the application of an agreement is narrower than the referral considered in Heyman v Darwins, what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement." 49 [65] It is clear from these authorities that the private arbitration of a dispute over the application of an agreement cannot extend the terms of the dispute settlement procedure of the agreement. As Lord Porter said in Heyman " the question of the arbitrator's jurisdiction must, therefore, ultimately depend on the wording of the arbitration clause ." 50 The jurisdiction of the private arbitrator will depend on the particular wording of the dispute settlement clause in the agreement within the context of the whole of the agreement and whether there is sufficient nexus or relationship between the dispute and that provision. [66] In its submissions the union emphasised that part of the decision of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores ("Big W") which stated that a dispute over the application of an agreement " should not be narrowly construed ". 51 However those words should be considered in the context of the Full Bench's discussion of Heyman, which contained a disputes settlement clause as wide as could be imagined. It is not the role of the arbitrator to extend the jurisdiction of the Commission beyond the function that Parliament intended public resources be expended without cost to the parties of certified agreements, when those parties choose not to assign the private arbitration function to another body or person. Characterisation of the dispute [67] The identification of the true characterisation of a dispute according to its subject matter is not a scientific process and each case is dependent on its own particular circumstances. In the real world of workplace relations the facts of a situation can be contorted, packaged or shoehorned in order to assist an industrial party best present their case to the Commission to obtain a benefit or entitlement. My role is to review all of the facts and the overall circumstances and submissions and to formulate a proper characterisation of the dispute. [68] After taking account of the facts and material available to me, I have limited the options for characterising the dispute to the following: (i) A dispute over the terms of the contract of employment between Professor Reed and the university and whether his contract ended in accordance with the doctrine of frustration. (ii) Whether Professor Reed was, in truth, terminated by the employer for reason of misconduct and in contravention of the applicable provisions of the Agreement. (iii) Whether the termination of Professor Reed was harsh, unjust or unreasonable. 52 (iv) Because the university found that Professor Reed's contract of employment had ceased other than at the initiative of the employer without going through procedures for the termination of his employment. [69] The Commission must be positively satisfied of the proper characterisation of the dispute, which is a finding as to jurisdictional fact. I will consider each of these options and determine which is the proper characterisation and whether the Commission has jurisdiction to arbitrate such a dispute. Option (i) - A dispute over the terms of the contract of employment between Professor Reed and the university and whether the contract ended in accordance with the doctrine of frustration. [70] The terms of Professor Reed's contract are at the very core of the difference between the parties. The university says it is a requirement that the holder of the Eric Saint Chair in medicine be able to exercise clinical privileges at the Sir Charles Gairdner Hospital. The union says this is not a requirement. The university says that in order to perform essential and substantial duties he must be able to exercise clinical privileges at the hospital. The union says he can perform these duties at another teaching hospital. 53 [71] The resolution of these differences between the parties will turn on the terms of Professor Reed's contract of employment, and possibly any effect on his employment of the University of Western Australia Act 1911 (WA) and other laws. [72] The written submissions of the union include: " WAS THE CONTRACT FRUSTRATED? 25. The question of frustration is central to this case. While the Commission cannot declare as a question of law that the contract was not frustrated, the Commission can form an opinion on this question." [73] Plainly, the union wants the Commission to consider whether in its opinion the terms of Professor Reed's contract of employment are such that the revocation of his clinical privileges at the hospital, with the effect that he cannot undertake any clinical practice at any of the Metropolitan Health Services hospitals, has freed the parties to that contract and brought the contract to an end. [74] This has the appearance of asking the Commission to review the circumstances and indicate whether, in the Commission's opinion, the university could have correctly taken Professor Reed's employment to have ended according to the doctrine of frustration. If that was the basis of the university's actions, what the union is seeking is tantamount to some form of non-enforceable administrative review of the decision it believes the university has taken. [75] It is the practice of the Commission to " form an opinion " in circumstances where the Commission is called on to exercise its general arbitration powers. In those circumstances an opinion is formed as a stepping-stone towards the arbitration because the Commission cannot exercise a judicial power. As the High Court stated in Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd : " Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties ... Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights. " 54 [76] Similarly, in unfair dismissal proceedings, as stated by the Full Court of the Federal Court in Miller v University of New South Wales : " 17 This analysis demonstrates that any finding the Commission may make as to the contractual rights of the parties, the meaning of any award or other collective instrument, and the entitlement or otherwise of the employer to exercise a right to terminate the employment, by notice or by summary dismissal, is merely an opinion as to such rights and obligations, as a step to the determination of future rights. ... " 55 [77] However the Commission's participation in agreed dispute resolution procedures does not raise the same issues that arise when a party to an industrial dispute seeks the Commission to make an arbitrated award or a person whose employment has been terminated makes application to the Commission under Division 3 (Termination of employment) of Part VIA of the Act. Where the Commission exercises a power of private arbitration it may make a binding decision as to the legal rights and the liabilities of the parties to the certified agreement under that agreement. [78] By seeking a recommendation, in effect the union is acknowledging that the Commission does not have the power to make a decision on whether Professor Reed's contract of employment was frustrated in accordance with the doctrine of frustration. [79] Even if the Commission has the power to express an opinion as sought by the union, it falls short of private arbitration and would not bind anyone, including the parties and Professor Reed. In response to my query to the union advocate about what would be the status of such an opinion of the Commission in any other proceedings that either of the parties or Professor Reed might initiate, I was advised that it would " inform other proceedings ". 56 There is nothing before the Commission to suggest that there will be other proceedings and the Commission must proceed on that basis. [80] The Commission cannot express an opinion as sought by the union without addressing the core issue, i.e.,, the dispute over the terms of Professor Reed's contract of employment. [81] A dispute over the terms of Professor Reed's contract and, possibly any legislation that might have affected or effected his employment, is not a dispute over the application of the Agreement. The disputed terms are not terms of the Agreement. Those terms do not have a relationship or sufficient nexus with the Agreement. [82] Similarly, a dispute over whether Professor Reed's contract has been brought to an end by the doctrine of frustration does not, without more, have sufficient connection to the Agreement to be a dispute over the application of the Agreement. The Agreement is silent on the cessation of employment based on grounds not at the initiative of the employer. [83] If this option is the correct characterisation of the dispute, the Commission does not derive jurisdiction under s.170LW of the Act to settle the dispute. As the submissions by the parties were not confined to this characterisation, I will consider the other options. Option (ii) - Whether Professor Reed was, in truth, terminated by the employer for reason of misconduct and in contravention of the applicable provisions of the Agreement. [84] Option (ii) is an acceptance of the union's application and represents a characterisation that was opposed by the university. [85] Generally speaking a dispute between the parties to a certified agreement over whether a provision of the agreement should operate to one or more employees is a dispute over the application of the agreement. In this case, there is a dispute between the union and the university over whether clause 16 applied because there is a disagreement over whether or not Professor Reed was terminated at the initiative of the employer. Therefore at one level a dispute over whether the termination of Professor Reed was, in truth, at the initiative of the university is a disagreement over whether clause 16 applied in relation to the decision to terminate a particular employee and is thus a dispute over the application of clause 16. However that is not enough if nothing in clause 16 should have been applied to him or was not correctly applied to him. [86] In this case, the union submits that: " ... if the contract was not frustrated: THEN (a) The termination was at the initiative of the University: THEREFORE (b) Clause 16 applies and the University has failed to apply the procedures in clause 16 in terminating the employment of Professor Reed." [87] In seeking to argue that Professor Reed's employment was terminated contrary to the terms of clause 16 of the Agreement the union intends (in the further proceedings) to convince the Commission that the university got it wrong in its conclusion that Professor Reed's employment ended for reasons of frustration. [88] But the union's application is not just that the university was wrong about that conclusion. If that were so, the union would have submitted (which it did not) that, (a) The university's letter of 28 November 2003 had the effect of terminating his employment at the initiative of the employer; and (b) Because the Federal Court order has declared that the Agreement governs exhaustively the procedures to be followed in relation to termination at the initiative of the employer, 57 the university would breach the Agreement if it terminated Professor Reed's employment on grounds other than those prescribed therein, namely unsatisfactory performance, misconduct, redundancy or ill heath. [89] Rather, the union's application and its submissions are that Professor Reed's employment was terminated at the initiative of the employer for reason of misconduct. That is, notwithstanding what the university stated to be the reason for Professor Reed's termination, the truth is that it terminated his employment for reason of misconduct or serious misconduct - in breach of the disciplinary procedures in the Agreement. That is the basis of its application that there is a dispute over the application of the Agreement. [90] The union advocate explained that it was not suggested that the university had determined that Professor Reed had committed misconduct additional to that for which the university had previously taken disciplinary action (which is referred to in paragraph 10). Also, it was not suggested that all allegations of misconduct by Professor Reed had not followed the processes in the Agreement (or its predecessor) in the university arriving at that previous disciplinary action. Therefore it seems that the union is suggesting that the university, in addition to taking the previous disciplinary action for the misconduct that it determined had occurred, some 3 years later terminated Professor Reed's employment by reason of that same misconduct. 58 [91] The union did not submit that the basis of the university's termination of Professor Reed's employment for reason of misconduct was the grounds on which the hospital revoked his clinical privileges. 59 The university's advocate explained that the hospital revoked Professor Reed's clinical privileges for its own reasons, not following on from the university's reasons for taking disciplinary action. The university is not entirely sure of all of the matters that may have been taken into account by the hospital in arriving at its decision. 60 [92] Even if I assume for the moment that the union will be able to prove its assertion, the union must still explain how and why the termination of Professor Reed's employment by the university in such circumstances is in breach of clause 16 or schedule E. The union's submissions did not give this explanation. During my questioning of the union advocate, reference was made to the requirement in clause 7(e) of schedule E that: " Termination of employment may only result from a determination that the conduct of the employee amounts to serious misconduct ". Also it was submitted that the reports of the misconduct investigation committee had only found that there was sufficient evidence to support allegations of misconduct, not serious misconduct. [93] However even if the Committee's findings were of misconduct, that may not of itself amount to a breach of the Agreement. That is because clause 7 of schedule E does not require the university to adopt a committee's finding or recommendation. Clause 7 includes: " (b) The Deputy Vice-Chancellor shall consider any matter raised by the employee with him/her and the Report of the Misconduct Investigation Committee or the investigating officer before making a final determination as to whether misconduct/serious misconduct has occurred. (c) If the Deputy Vice-Chancellor determines that misconduct/serious misconduct has occurred he/she may decide to take disciplinary action in accordance with the definition of Disciplinary Action at clause 1. ... Where he/she is of the view that the misconduct is such that it warrants other disciplinary action as listed in the definition, the matter must be referred to the Vice-Chancellor. " [94] Without hearing from the union or the university on any other provisions in clause 16 that have been breached, I am reluctant to rely on other provisions of the clause to justify the union's application. There may be grounds for finding that clause 7 of schedule E does not allow further disciplinary action to be taken in relation to misconduct/misconduct subsequent to disciplinary action already having been taken in respect of that misconduct/serious misconduct (based on the general rule at common law against a person being placed in double jeopardy). Also, there may be grounds for finding that if the union's assertion that Professor Reed's termination was for reason of conduct/serious misconduct there was a breach of sub-clause 7(f) of the Agreement which states: "( f) If the disciplinary action as per sub-clause (c) above takes the form of termination the staff member shall be afforded an opportunity to explain why termination is not appropriate in the circumstances." [95] In determining whether or not the Commission has jurisdiction to arbitrate this dispute, I cannot prejudge what evidence may or may not be presented at a hearing on the merits of the application. However I wish to signal my concern that, without some admission by the university, it is likely that, for the reason explained below, I will not be in a position to express the opinion sought by the union or be in a position to accept the leap of faith submitted by the union, namely that if the contract did not end according to the doctrine of frustration Professor Reed was terminated at the initiative of the employer for reason of misconduct. [96] It seems that the union intends to prove that Professor Reed's employment was terminated at the initiative of the employer by proving that the university did not have sufficient grounds to support a decision that it could be terminated according to the doctrine of frustration. 61 However, whilst the university's letter of 28 November 2003 to Professor Reed stated that " your contract of employment has been frustrated ", during the hearing the representative of the university did not concede that it relied on Professor Reed's contract of employment being terminated according to that doctrine. 62 [97] Without that concession by the university, the union should not expect the Commission to determine that Professor Reed's termination of employment was at the initiative of the employer for reason of misconduct by convincing the Commission only that the doctrine of frustration did not support the termination of his employment. There may be grounds other than that doctrine that the university relies on for Professor Reed's employment to terminate other than at the initiative of the employer. 63 [98] Of course, the application to the Commission in its role as arbitrator under a dispute settlement procedure is significantly different to an application by an employee whose employment has been terminated at the initiative of the employer for relief on grounds that the termination either contravened certain provisions of the Act or was harsh, unjust or unreasonable. In such cases, the respondent may move for the dismissal of the application on the ground that the termination was not at the initiative of the employer. That is, it is the employer who has carriage of satisfying the Commission of that jurisdictional fact. [99] That "reverse onus" does not apply in these proceedings, for which the union has carriage. The benefit of such an onus on the employer was stated by Smithers and Evatt JJ in Bowling v General Motors-Holden Pty Ltd 64 as: " It proceeds upon the basis that the real reason for a dismissal may well be locked up in the employer's breast and impossible, or nearly impossible, of demonstration through ordinary forensic processes. " [100] Another difficulty I have with the matter before the Commission is that in order to find that clause 16 and schedule E were contravened I must find that Professor Reed's employment was terminated because of misconduct. Therefore to resolve the matter in favour of the union I must find that Professor Reed's employment was terminated at the initiative of the employer and for reason of misconduct, without having the option of finding that such termination was harsh, unjust or unreasonable. The proceedings may affect how the "black mark" that has been recorded (by virtue of the disciplinary action that was taken against him - refer paragraph 10) is viewed by others - without Professor Reed being a party to the proceedings. [101] Clause 16 does not apply to the termination of a contract of employment by frustration or other means not at the initiative of the employer. There is nothing in the Agreement requiring the employer to give reasons for a termination of employment, whether or not it is as the initiative of the employer. There is no machinery to dispute those grounds. 65 [102] For the above reasons, I am not convinced that this option is a dispute that is, or can be proven by the union to be, over the application of the Agreement. [103] I might record that in arriving at that conclusion I have not considered whether there is a dispute about any unpaid entitlement to payment in lieu of notice under sub-clause 16(e). The union did not suggest that there was a breach of that provision of the Agreement. 66 Proving such a breach would also face the same evidentiary hurdle to which I have referred. Option (iii) Whether the termination of Professor Reed was harsh, unjust or unreasonable. [104] This option reflects the union's submission that Professor Reed's employment was terminated at the initiative of the employer for an invalid reason and according to a process that did not provide him with procedural fairness. It seeks an order from the Commission that he be reinstated and paid lost remuneration. Whilst the Commission has stated that the character of a dispute is distinguishable from the orders that may be made in settlement of the dispute, 67 it has not been suggested that the terms of the relief sought by the union should not assist in informing the characterisation of the dispute. [105] The union's submission is similar to grounds for an application to be made under the legislative regime contained in Division 3 of Part VIA of the Act - action taken by Professor Reed and which he discontinued. However there are significant differences between the applications, apart from one being made by Professor Reed and the other by the union. In unfair dismissal proceedings because an employer did not have a valid right to terminate the employment is not the issue. The Commission forms an opinion as to those rights as a step towards its assessment (along with other relevant circumstances) as to whether there is a valid reason for the termination (refer s.170CG(3)(a) of the Act), which is a further step towards determining whether the termination is harsh, unjust or unreasonable, having regard to the existence or otherwise of the valid reason and the other mandatory factors in s.170CG(3). 68 Even if the Commission forms the view that a termination was harsh, unjust or unreasonable, it may consider that it is inappropriate either to order the reinstatement of the employee or to order the employer to pay a sum of money. " Whatever order it makes, the Commission will be regulating the future relations of the parties, not enforcing their past legal rights and obligations ". 69 [106] This option is a less narrow characterisation than options (i) and (ii) and in that respect finds some favour over those options, given that the Full Bench in Shop Distributive and Allied Employees Association v Big W Discount Department Stores stated that " what comprises a dispute over the application of the agreement should not be narrowly construed ." 70 [107] The private arbitration of a dispute over the application of the Agreement cannot extend the terms of the dispute settlement procedure of the Agreement. What then are the provisions of the Agreement, the application of which provides the essential element of the necessary relationship or nexus with this characterisation of the dispute? [108] Clause 16 of the Agreement does not, in itself, protect employees from termination of employment for an invalid reason. It makes no mention of any right to have a termination of employment reviewed on grounds that the termination was harsh, unjust, unreasonable or was contrary to the provisions of the Agreement. In fact it recognises the machinery that exists elsewhere, including in the Act, for relief from terminations of employment that are harsh, unjust or unreasonable or unlawful. [109] Sub-clause 16(c) states: " Provided that the provisions in this Agreement shall be subject to and shall not affect the operation of: (1) any law empowering a State or Commonwealth industrial tribunal to order reinstatement of or compensation to an employee or to otherwise deal with the dismissal of that employee; ... " [110] According to rules of interpretation, the effect of the term " subject to " is correctly described in Harding v Coburn as being " a standard way of making clear which provision is to govern in the event of conflict. It throws no light, however, on whether there would in truth be a conflict without it ." 71 Further, in C & J Clark Ltd v IR Commrs it is stated: " Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal application ." 72 [111] Whilst the Agreement recognises those other laws, the provision does not somehow incorporate those arrangements into the Agreement or seek to displace those laws. In this latter respect, s.170LU(2) of the Act prescribes: " (2) Despite section 170LT, the Commission must refuse to certify an agreement if the Commission thinks that a provision of the Agreement is inconsistent with: (a) a provision of Division 3 of Part VIA; or (b) an order by the Commission under that Division; or (c) an injunction granted, or any other order made, by a court under that Division." [112] Other provisions in clause 16 of some relevance to this characterisation of the dispute are: " (f) This Agreement is to be read in conjunction with Division 3 of Part VIA of the Act provided that an employee shall be entitled to the benefit of: (i) any provision in this Agreement which is more favourable to the academic than any corresponding provision in the Act; or (ii) any procedural step required by the Agreement in addition to the required procedural steps of the Act. (g) Nothing in this clause shall be construed as excluding the jurisdiction of any external court or tribunal which, but for this clause, would be competent to deal with the matter." [113] These provisions indicate that the mutual intention of the parties was that clause 16 not circumvent Division 3 of Part VIA of the Act in circumstances where an employee can pursue an unfair or unlawful dismissal application under that division. [114] If this characterisation of the dispute was accepted (which I do not favour) it must fail to be a dispute over the application of the Agreement because of the absence of the essential element, namely its necessary relationship or nexus with relevant provisions of the Agreement. Option (iv) - Because the university found that Professor Reed's contract of employment had ceased other than at the initiative of the employer without going through procedures for the termination of his employment. [115] In my opinion this is the correct characterisation of the dispute. In its written submissions, the union stated: " The union cannot sit back and be silent on the actions of the university and allow them to prejudge that the agreement does not apply if they come to a view that frustration of contract has occurred therefore they do not need to engage in the disciplinary procedures of the Agreement. " 73 [116] During the hearing the union advocate, when referring to procedures taken by the university stated: " It came to a view of its own. It didn't convene a misconduct investigation - it didn't convene a committee to discover, or to have put the assertions that it was making on the - of frustration of contract ". 74 [117] During an earlier hearing of the matter the union advocate stated: " In our view ...Carr J was being asked to deal with the question of if there was a frustration then the agreement would not apply. That is not - we wouldn't disagree with that, what we are saying is that the University has pre-judged the situation and come to its own view, without the merits of the frustration of contract being determined. " 75 [118] When explaining why the dispute has relevance for future employees, the union advocate expressed concern about the implications for the academic profession if, when an academic's employment terminates other than at the initiative of the employer, rigorous procedures are not followed. 76 [119] Processes to be followed in arriving at decisions that contracts of employment have ended for reasons other than at the initiative of the employer could be agreed between parties in an agreement that is certified by the Commission. However, because of the Federal Court order, there can be no doubt that no such process has been included in the Agreement by the parties. Clause 16 of the Agreement has no application in those circumstances. If the union wishes to secure such a process it can seek the university to agree to arrangements. [120] Even if I am somehow wrong about the effect of the Federal Court decision, no evidence was provided to the Commission that, in agreeing to the terms of the Agreement, the parties intended that the university could not lawfully terminate the employment of an employee for reasons not at the initiative of the employer without adhering to some agreed process. Indeed, in the absence of extrinsic evidentiary material to that effect such a possibility seems highly unlikely. [121] The University of Western Australia Act 1911 (WA) provides that the university Senate may from time to time appoint professors and other officers and servants of the university, shall have the entire control and management of the management of the affairs and concerns of the university and may act in all matters as appears to it best calculated to promote the interests of the university. 77 The vice-chancellor is the executive officer and possesses such powers and performs such duties as may be prescribed. 78 That Act provides the powers to make statutes on matters that include the management, good government and discipline of the university and the appointment and dismissal of professors. 79 Given those legislative provisions, it would require an express inclusion in the Agreement to displace any legislative powers of the university to cease the employment of staff on grounds other than at the initiative of the employer. [122] The private arbitration of a dispute over the application of the Agreement cannot extend the terms of the dispute settlement procedure of the Agreement such that the Commission can arbitrate on a matter that does not have the essential element, i.e., a direct relationship with a provision of the Agreement or sufficient nexus to a clause thereof. Put another way, in settling a dispute over the application of the Agreement the Commission cannot create the new rights sought by the union. It arbitrates to have the existing rights applied properly in accordance with the terms of the Agreement. [123] The Agreement does not provide for procedures that must be complied with before an employee's contract of employment is terminated on grounds other than at the initiative of the employer. The failure to comply with non-existent procedures cannot be a dispute over the application of the Agreement. [124] If this option is the correct characterisation of the dispute, the Commission does not derive jurisdiction under s.170LW of the Act to settle the dispute. Former Employee [125] One of the objections of the university to the union's application is that the dispute settlement provisions in the Agreement do not apply to a dispute about a former employee who is not bound by the private arbitration of the dispute. 80 [126] Professor Reed's employment with the university ended either on 10 July 2003 or 28 November 2003. In either case, he ceased to be an employee prior to the union's lodgement of a dispute over the application of the Agreement on 22 December 2003. [127] The Commission is authorised to exercise its functions under clause 38 of the Agreement which the Commission derives from s.170LW. Whilst a focus in s.170LW cases is whether the Commission's authority to settle the dispute is dependent on the dispute being appropriately characterised as one " over the application of the Agreement ", that is not the only relevant consideration. Section 170LW commences with the words: " Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement ..." (emphasis added) [128] As Professor Reed had ceased employment at the time that the dispute was lodged with the Commission, at that time he was not subject to the Agreement. He was a former employee. [129] The circumstances of Professor Reed's cessation of employment are unique to him. If the Commission did consider the terms of his contract of employment and express an opinion on whether his contract of employment ended according to the doctrine of frustration by reason of the revocation of his clinical privileges at the hospital, that is of little consequence for existing or future employees. The union has not made a sufficient case for why the Commission's determination of his unique circumstances would have a direct impact on the employer/employee relationship of employees or future employees. [130] The Commission participates in dispute resolution procedures in Agreements for the purpose of maintaining the integrity of the relevant agreement. 81 Whilst there is nothing unremarkable about a dispute over the application of an agreement directly affecting only one employee, to be relevant to the maintenance of a certified agreement, the issue in dispute has to have, at the least, the potential to have some implications for an existing employee or for future employees. [131] Does the dispute settlement procedure in the Agreement apply to a dispute concerning a former employee? If the agreement does not apply to a former employee it could hardly be held that a dispute about a former employee could be a dispute over the application of the agreement to that person. [132] The Agreement does not bind a former employee by reason of the following: (a) Clause 4 of the Agreement provides: " 4. Parties Bound This Agreement shall be binding according to its terms upon: * The University of Western Australia, * The National Tertiary Education Industry Union; and * All persons whose employment is subject to this Agreement." (b) Section 170M (Persons bound in Division 2 cases) of the Act prescribes: "(1) If the application for certification states that the application is made under Division 2, the certified agreement binds: (a) the employer; and (b) all persons whose employment is, at any time when the agreement is in operation, subject to the agreement." [133] As the Agreement was made under Division 2 of Part VIB of the Act, for an application to have been made to the Commission for the certification of the agreement of the parties it must be about matters pertaining to the relationship between the university and " all persons who, at any time when the agreement is in operation, are employed ... ". 82 [134] In its decision of 2 September 2004 in Electrolux Home Products Pty Ltd v Australian Workers' Union & Ors 83 the High Court applied to the expression " an agreement in writing about matters pertaining to the [employment] relationship " where it appears in s.170LI of the Act, the judicially settled meaning of the term where it appears in the definition of " industrial dispute " in the Act. Gleeson CJ said: " And the introduction into industrial legislation of the concept of certified agreements does not create a new context in which it can be said, with any degree of conviction, that the expression takes on a new and different meaning. " 84 [135] The decision of the High Court in The Queen v. Staples; Ex parte Australian Telecommunications Commission is authority for finding that definitions of industrial dispute or industrial matter must pertain to the relations of employers and employees and not merely to the relationship between an individual former employee or former employees and his/her or their employer. 85 [136] I find that the dispute that was lodged with the Commission was about a former employee and there is no direct impact on the employer/employee relationship in respect of other employees or future employees. The combination of the terms of the dispute settlement procedure in the Agreement and the functions of the Commission under s.170LW of the Act do not provide the Commission with jurisdiction to arbitrate the dispute. 86 [137] This does not, of course, imply that Professor Reed was not entitled to the rights under the Agreement whilst he was employed. Nor does it imply that he cannot seek to recover any entitlements owing to him under the Agreement, that he cannot sue for and recover a penalty for breach of a term of a certified agreement or he was not entitled to make application for his reinstatement under laws other than s.170LW on grounds that there was no valid reason for his termination of employment or that the process did not provide him with procedural fairness. Conclusion The proper characterisation of the dispute is either option (i) or option (iv). In either case the Commission does not derive jurisdiction under s.170LW of the Act to settle the dispute. Further, by reason that Professor Reed was not an employee at the time that the dispute was lodged, the Commission does not have jurisdiction to settle the dispute. Relief [138] The Commission's Directions to the parties did not require them in these proceedings to address the question of whether the Commission has jurisdiction to grant the orders sought. It was stated that should the Commission find that the Agreement had application to the dispute, there would be a further hearing by the Commission to determine the union's application for relief, including consideration of any jurisdictional objections by the university to the Commission exercising powers. 87 [139] Notwithstanding this, to some extent both parties addressed the Commission on its jurisdiction to grant relief, although the representative of the university indicated that further submissions on the Commission's powers in relation to remedy would be made should the further proceedings occur. 88 [140] Having regard to the conclusion to which I have come, it is unnecessary to deal with this matter. Order [141] The application is dismissed. BY THE COMMISSION: COMMISSIONER Appearances: T Borwick of the National Tertiary Education Industry Union D Parker of Blake Dawson Waldron for the University of Western Australia Hearing details: 2004. Perth: January 22 April 1 May 11 November 16. Printed by authority of the Commonwealth Government Printer <Price code G> APPENDIX A THE UNIVERSITY OF WESTERN AUSTRALIA ACADEMIC STAFF AGREEMENT 2000 SCHEDULE E - MISCONDUCT Definitions (a) "Disciplinary action" means action by the University to discipline an employee for unsatisfactory performance, misconduct or serious misconduct and is limited to: (i) counselling; (ii) formal censure; (iii) withholding of an increment; (iv) demotion by one or more classification levels or increments; (v) suspension with or without pay; or (vi) termination of employment. (b) "Misconduct" shall mean: wilful conduct by a staff member which is unsatisfactory. (c) "Serious misconduct" shall mean (i) serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an employee's duties or to an academic's colleagues carrying out their duties; (ii) serious dereliction of the duties required of the academic office; (iii) conviction by a court for an offence which constitutes an impediment to the carrying out of an employee's duties; (iv) serious misbehaviour or dereliction of duty in a performance of a role within an institution which has recognised formal links to the University where such a role is undertaken as a result of the employee's appointment to the staff of the University. (d) Examples of "serious misconduct" include theft, fraud, misappropriation of funds, assault, serious harassment (including sexual harassment); wilfully disobeying a regulation, order, or lawful instruction made or given, or repeated actions of misconduct. 2. Process for Dealing With Misconduct/Serious Misconduct (a) Disciplinary action should normally be used as a last resort. An allegation(s) of misconduct should, where practical and reasonable, be resolved by the academic supervisor through guidance, counselling, conciliation, or other appropriate action that may include staff development. (b) Where it is not appropriate for an allegation of misconduct to be resolved in accordance with clause 2(a) or where an allegation has not been resolved in accordance with clause 2(a) then a report of the allegation shall be made to the Deputy Vice-Chancellor. The report shall provide information about the nature and details of the misconduct allegations), and what steps were taken to resolve the issue, if any. (c) Allegations Which Warrant Investigation (i) Subject to sub-clause 2(a) any allegations(s) of misconduct will be reported to the Deputy Vice-Chancellor. The Deputy Vice Chancellor shall consider if the allegations) warrants further investigation. He/she shall initiate procedures in accordance with this schedule. (d) Allegations Which Do Not Warrant Immediate Investigation (i) The Deputy Vice-Chancellor may refer a matter of alleged misconduct back to the employee's supervisor or other appropriate University employee to attempt to resolve the matter through guidance, counselling, conciliation or appropriate staff development or appropriate work allocation. (e) Suspension (i) If a report of an allegation of serious misconduct is such that it would be unreasonable for the University to continue the employment of the employee, the Vice-Chancellor may suspend the employee about whom an allegation(s) has been made on full pay, or without pay. Provided that: (1) where suspension without pay occurs at a time when the employee is on pal id leave of absence the employee shall continue to receive a salary for the period of leave of absence; (2) the employee may engage in paid employment or draw on any recreation leave or long service leave credits for the duration of the suspension without pay; and (3) the Vice-Chancellor may at any time direct that salary be paid on the ground of hardship. (4) where a suspension without pay has been imposed and the matter is subsequently referred to Misconduct Investigation Committee, the Vice-Chancellor shall ensure that a Misconduct Investigation Committee at its first meeting determine whether suspension without pay should continue and that committee shall have the power to revoke such a suspension from its date of effect. (ii) During any period of suspension the employee may be excluded from the University or workplace, provided that he/she shall be permitted reasonable access for the preparation of his/her case and to collect personal property. (iii) Where an employee has been suspended without pay pending a determination on disciplinary action by the Vice-Chancellor, then any lost income shall be reimbursed if there is found to be no misconduct. However, a decision taken by the Vice-Chancellor at his/her discretion not to dismiss or impose another penalty shall not be construed as an admission that there was no conduct justifying suspension without pay. Letter to Academic and Reply (i) If the Deputy Vice-Chancellor believes the report referred to in clause 2(b) warrants further investigation, he/she shall: (1) notify the employee in writing and in sufficient detail to enable the employee to understand the precise nature of the allegation(s), and to properly consider and respond to them. A copy of this schedule shall accompany this letter, and (2) require the employee to submit a written response within 10 working days. (g) Preliminary Enquiry (i) In order to assist the Deputy Vice-Chancellor in determining the appropriate action as per paragraph (f)(1), nothing in the subclause will restrict the University asking for information or questions, seeking answers or conducting a preliminary inquiry to determine if there is a prima facie case of misconduct. (h) Allegation(s) Admitted (i) If an allegation(s) is admitted by the employee or if the employee has not responded to the allegation(s) within 10 working days or any longer period that has been agreed to by the Deputy-Vice Chancellor,, and the Deputy Vice-Chancellor is of the view that the admitted conduct amounts to misconduct, the Deputy Vice-Chancellor may counsel or censure the employee for the conduct, or withhold an increment for a period not exceeding twelve months. Where the Deputy Vice-Chancellor is of the view that the misconduct is such that it warrants other disciplinary action as listed in the definition in this schedule, the matter must be referred to the Vice-Chancellor. Disciplinary action in the form of termination of employment may only occur if the Vice-Chancellor determines that the conduct of the employee amounts to serious misconduct. (ii) Before determining the penalty, the Deputy Vice-Chancellor or the Vice-Chancellor, as appropriate, shall offer the employee the opportunity to provide any mitigating circumstances or facts which should be taken into consideration. The employee may request a meeting with either the Deputy Vice-Chancellor or Vice-Chancellor, as appropriate, to discuss the matter. (iii) The employee will be advised in writing of the disciplinary action. (i) Allegation(s) Denied (i) If the employee denies the allegation(s) and subsequent to any investigation in accordance with this Schedule the Deputy Vice-Chancellor is of the view that there has been no misconduct, the Deputy Vice-Chancellor will advise the employee in writing of that decision and may, by agreement with the employee, publish the advice in an appropriate manner. (ii) If the employee denies the allegation(s) and the Deputy Vice-Chancellor is of the view that the conduct at issue could constitute misconduct/serious misconduct then he/she may choose to refer the matter to a Misconduct Investigation Committee. 3. Composition of the Misconduct Investigation Committee (a) The Committee shall comprise: * a nominee of the Deputy Vice-Chancellor; * the President of the UWA Branch of the NTEU or nominee; and * a Chairperson appointed from a list of chairpersons agreed between the University and the President of the UWA Branch of the NTEU. 4. Misconduct Investigation Committee (a) In accordance with the provisions of subclause 5, the Misconduct Investigation Committee may appoint an investigating officer to conduct further inquiries as the Misconduct Investigation Committee considers reasonable and appropriate. (b) The Committee shall report its findings to the Deputy Vice-Chancellor and the employee within 28 days from the date on which the matter was referred to it by the Deputy Vice-Chancellor. If the Committee does not complete its deliberations within the timeframe referred to above, it must make application to the Deputy Vice-Chancellor for an extension of time. (c) The terms of reference of the Committee shall be to report to the Deputy Vice-Chancellor on- (i) the facts relating to the allegations and whether there is sufficient evidence to support the allegations) of misconduct and/or serious misconduct; (ii) whether the procedures of clause 2 have been followed; and (iii) whether there are any mitigating circumstances. (d) The employee will be provided with a copy of the Committee's report at the time the report is provided to the Deputy Vice-Chancellor. (e) The employee will be invited to provide comments on the report, which he/she believes should be considered prior to determining the penalty. 5. Investigating Officer (a) The parties will develop a list of agreed positions within the University the occupants of whom may be requested by the Misconduct Investigation Committee to undertake further inquiries in accordance with subclause (e). (b) The terms of reference for the investigating officer shall be as determined by the Misconduct Investigation Committee. The Investigating Officer shall investigate matters only in accordance with the terms of reference as determined by the Misconduct Investigation Committee. (c) The Investigating Officer will, subject to any directions provided by the Misconduct Investigation Committee, determine his/her procedure for conducting inquiries and will explain those procedures to the employee. The guiding principles for a misconduct investigation will be the desire to determine the true facts in relation to the allegation, and the desire to ensure fairness to the staff member. Provided that in any circumstance where the Investigating Officer seeks to interview any person, other than a person who can provide technical or specialist advice on matters related to the allegations, the Investigating Officer shall notify the employee and the University representative of such interviews. The employee, the employee's representative (where employee is represented) and the University representative shall be able to request such interviews are conducted in their presence. Should the employee, the employee's representative or the University representative make such a request all interviews must be conducted in the presence of all parties who will be entitled to ask questions of interviewees related to information being provided to the Investigating Officer. (d) Allow the employee and the Deputy Vice-Chancellor each to be assisted or represented by an agent of his or her choice who is a staff member of the University (but not if such a person is a currently practising solicitor or barrister) or staff member or representative of the union, or by an officer of an industrial association of which the University is a member. (e) The Investigating Officer will provide the Misconduct Investigation Committee with a report on his/her inquiry. (f) The Misconduct Investigation Committee shall provide the employee and the University's advocate with a copy of the Investigating Officer's report which shall include an outline of any specialist and technical advice relied upon and the sources of that advice. (g) The employee and the University's Advocate shall be invited to provide comments on the report of the Investigating Officer within 10 working days including any comments on technical advice and sources of that advice. (h) Where any member of the Misconduct Investigation Committee believes it to be desirable that the committee conduct further investigation of the relevant facts such further investigation shall be in accordance with clause 6 of this Schedule. (i) Having considered all the relevant evidence, including the investigating officer's report and the comments thereon of the staff member and University's advocate, the Misconduct Investigation Committee shall prepare and provide its report to the Vice-Chancellor as soon as is practicable on the conclusion of its deliberations. 6. Procedure and Responsibilities of the Misconduct Investigation Committee A Committee established in accordance with clause 3 shall: (a) at its first meeting, where a suspension without pay has been imposed determine whether suspension without pay should continue and make a recommendation to the Vice-Chancellor; (b) provide an opportunity for the employee to be interviewed by it and ensure that he/she has adequate opportunity to answer any allegations). The Committee may take into account such further materials as it believes appropriate to substantiate or otherwise the facts in dispute; (c) interview any person or seek further material that it requires to establish the merits or facts of the particular case; (d) allow the employee and the Deputy Vice-Chancellor each to be assisted or represented by an agent of his or her choice who is a staff member of the University (but not if such a person is a currently practising solicitor or barrister) or staff member or representative of the union, or by an officer of an industrial association of which the University is a member; (e) conduct all interviews in the presence of the employee, the employee's advocate where the employee is represented, and the University's advocate; (f) conduct proceedings as expeditiously as possible so as to comply with the requirements of subclause 4(a) and with the need for fairness; (g) conduct proceedings in camera unless otherwise agreed by the employee and the University; (h) ensure that the employee or his/her representative and the University's advocate have the right to ask questions of interviewees, and to make submissions. The employee shall have the right to present and challenge evidence; and (i) keep a full record of the proceedings (but not its own deliberations), which shall be available on request to either party. 7. Final Determination (a) If, having considered the Committee's report, the Deputy Vice-Chancellor is of the view that there has been no misconduct he/she shall without delay advise the employee in writing, and may, by agreement with the employee, publish the advice in an appropriate manner. (b) The Deputy Vice-Chancellor shall consider any matter raised by the employee with him/her and the Report of the Misconduct Investigation Committee or the investigating officer before making a final determination as to whether misconduct/serious misconduct has occurred. (c) If the Deputy Vice-Chancellor's determines that misconduct/serious misconduct has occurred he/she may decide to take disciplinary action in accordance with the definition of Disciplinary Action at clause 1. The Deputy Vice-Chancellor has the power to counsel or censure the employee or withhold an increment for a period not exceeding twelve months. Where he/she is of the view that the misconduct is such that it warrants other disciplinary action as listed in the definition, the matter must be referred to the Vice-Chancellor. (d) The Vice-Chancellor or Deputy Vice-Chancellor, as appropriate shall advise the employee and the supervisor in writing of any determination made in accordance with sub-clause (c) above. (e) Termination of employment may only result from a determination that the conduct of the employee amounts to serious misconduct. (f) If the disciplinary action as per sub-clause (c) above take the form of termination the staff member shall be afforded an opportunity to explain why termination is not appropriate in the circumstances. (g) This clause in no way constrains the University from carrying out other investigations relating to the consequences of conduct of an employee or former employee when required in the public interest (e.g. inquiring into the truth of research results). 1 An agreement made under Division 2 (Making agreements with constitutional corporations or the Commonwealth) of Part VIB of the Act. 2 Letter dated 27 September 2004 from the union to the Commission. 3 Re Metropolitan Health Service Board; Ex Parte Reed , [2003] WASCA 123, per Malcolm CJ and Wallwork and Murray JJ. 4 Reed v Metropolitan Health Service Board [2000] WASC 70 (21 March 2000), per Master Sanderson. 5 Reed and The University of Western Australia, Re [2001] WAICmr 30 (23 August 2001), per B Keighley-Gerardy. 6 Re Metropolitan Health Service Board; Ex Parte Reed , [2003], op cit, at paragraph 18. 7 The Federal Court proceedings were instituted prior to the Full Court of the Supreme Court making its decision on whether the revocation of Professor Reed's clinical privileges should be quashed. 8 Op cit, at paragraph 16. 9 Op cit, at paragraphs 17 & 21. 10 The University of Western Australia v The National Tertiary Education Industry Union [2003] FCA 1264 (6 November 2003), per Carr J. 11 S.413A(2). 12 The university submitted that "... in form they are essentially the same, albeit the context of the first dispute was looking forward concerning the potential termination of Professor Reed's employment, and of course, the second dispute is looking backward after the termination of employment has occurred ." - statement of Mr Parker in transcript of proceedings on 16 November 2004 at PN620. 13 CFMEU v AIRC 178 ALR 61. 14 Ibid, at paragraph 31. 15 Statement by Mr Parker in transcript of proceedings on 16 November 2004 at PN618. 16 A number of principles of interpretation are included in the decision of Ives DP in National Union of Workers v Grain Corp Operations Limited, PR9l 8161, 11 June 2002 at paragraphs 46 and 47. Also in the decision of Whelan C in National Union of Workers v Ricegrowers Co-operative Limited , PR931209, 8 May 2003 at paragraph 46. 17 Refer to decision of Northrop J of Federal Court of Australia in Ambulance Service Victoria (South Western Region) v ALHMWU , 10 March 1998, 275 at 281. 18 Colon Peaks Mining Co NL v Council of the Wollondilly Shire (1911) 13 CLR 438. 19 [2003] HCA 54 (30 September 2003), per McHugh CJ and Gummow, Kirby, Hayne and Heydon JJ. 20 (1968) 13 FLR 143 at 146-147. 21 Refer Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR 499. 22 Sweet and Maxwell Limited London (1971), Fourth Edition, Volume 1 A-C, page 131. 23 S.170LT(1) of the Act. 24 A disputes procedure in a certified agreement that complies with s.170LT(8) will not necessarily have within it a role for the Commission and, where such a procedure does provide a role for the Commission, s.170LT(8) does not prescribe what that role will or should be. [ CFMEU v Warkworth Mining Limited, PR916526, 8 April 2002, per Harrison SDP, Cartwright SDP and Cargill C, at paragraph 18. Also, Australian Municipal, Administrative, Clerical and Services Union - NSW and ACT (Services) Branch v Qantas Flight Catering Limited , PR939695, 22 October 2003, per Ross VP, Duncan SDP and Roberts C, at paragraph 78.] 25 No such limitations appear in sub-clause (c). 26 Clause 31(a). 27 [1915] VLR 450 at 452; (F: Registrar of Titles (WA) v Franzon (1976) 50 ALJR 4 at 6, per Mason J). 28 Refer to paragraphs 131 and 136. 29 Refer paragraph 34. 30 Refer to paragraph s 127 and 136. 31 Maritime Union of Australia v Australian Plant Services Pty Ltd , PR908236, 3 September 2001, paragraph 57. 32 NTEU v University of Wollongong, PR930177, 9 April 2003, per Harrison SDP, Drake SDP and Harrison C, at paragraph 19 (which adopted the majority decision in Automated Meter Reading Services (AMRS) v ASU at paragraph 72). 33 PR933892, 2 July 2003. Compare with the decision of McCarthy DP in Australian Nursing Federation - Western Australian Branch v Honourable Minister for Health Western Australia [PR918916, 14 June 2002, at paragraph 23] which stated " So in the context of s.170LW, I see that the meaning of ` the application of the agreement' generally relates to issues such as who the agreement applies to, when it is to apply, the terms that the agreement applies, and the manner in which those terms are to be applied." 34 In Re Automated Meter Reading Services (AMRS) , Print PR922053, 3 September 2002, at Footnote 47, the majority of the Full Bench stated: " For a discussion of the use of such expressions in dispute settling provisions in awards, see generally Co-operative Bulk Handling v AWU (1993) 47 IR 361 at 379-381. Recently cases decided in the Commission applying the expression include Ansett Pilots Association v Ansett Australia Print S1467 at [9] and [10], per Ross VP; MUA v Australian Plant Services PR908236 at [57] - [61]; Re Warkworth Mining Ltd PR916526 per Harrison and Cartwright SDPP and Cargill C; NTEU v University of Newcastle PR914889 at [36] per Duncan SDP. " 35 Including that an award is subject to s.89A of the Act and a Division 2 agreement is not because it is founded on s.51(xx) of the Constitution and not s.51(xxxv). 36 Op cit, at paragraphs 73 & 75. 37 PR933766, 1 July 2003, per Marsh SDP, Cartwright SDP and Redmond C, at paragraph 32. 38 Gibbs CJ, Stephen, Mason, Murphy, Wilson JJ (1980-1981) 147 CLR at 617. 39 Ibid, at page 618. 40 Maritime Union of Australia v Australian Plant Services Pty Ltd , Lacy SDP, PR908236, 3 September 2001, at paragraph 57. 41 T0301, 7 September 2000, per Munro J, Polites SDP and Cribb C. 42 Op cit, at paragraph 74. 43 Print PR924554, 12 November 2002, per Watson SDP, Kaufman SDP, Foggo C, at paragraph 21. 44 [142] A.C. 356, Viscount Simon LC, at 360. 45 (1981-1982) 149 CLR 337 at 365. 46 Ibid at 366. 47 (1991) 33 FCR, per Foster J at 227. 48 At paragraph 48. 49 Op cit, at paragraph 23. 50 Op cit at 393. 51 Op cit. 52 It would be incorrect to characterise this as whether or not Professor Reed should be reinstated or paid back-pay during his absence, as the character of a dispute is distinguishable from the orders that may be made in settlement of the dispute. - Qantas Airways Limited v Australian Municipal, Administrative, Clerical and Services Union , Print T0301, 7 September 2000, at paragraph 24, per Munro J, Polites SDP and Cribb C. 53 Refer paragraphs 8 and 9. 54 (1987) 163 CLR, per Mason CJ, Brennan, Deane, Dawson and Toohey JJ, 140 at 149. 55 Gray, Ryan and Gyles JJ, [2003] FCAFC 180 (14 August 2003). 56 Statement of Ms Borwick for the union in transcript of proceedings of 16 November 2004 at PN520. 57 When referring to clauses 16, 17 and 18 when read in conjunction with schedules D, E and F respectively. 58 Statements of Ms Borwick in transcript of proceedings on 16 November 2004 at PN369, PN395 and PN918. 59 Even though this possibility was raised by the university's advocate - statement of Mr Parker in transcript of proceedings on 16 November 2004 at PN686. 60 Statements of Mr Parker in transcript of proceedings on 16 November 2004 at PN646 - PN652. 61 Frustration operates to relieve one party from his or her obligations under a contract, and therefore, by reason of the interdependence of the parties' promises, to free both and bring the contract to an end. [ The Law of Contract , DW Greig and JLR Davis, The Law Book Company, 1987, at page 1314.] The leading authority on frustration is Codelfa Construction Pty Limited v State Rail Authority of New South Wales .[ (1982) 149 CLR 337, per Stephen, Mason, Aickin, Wilson and Brennan JJ.] Generally speaking, frustration occurs when a contractual obligation cannot be performed through no fault of either party. Where a frustrating event occurs as a result of the fault or inducement by one of the parties to the contract, that party cannot rely on the doctrine of frustration. It is arguable, that an employee imprisoned for a lengthy period as a result of his or her own activities could rely on the doctrine of frustration with respect to any employment contract. On the other hand, a lengthy prison sentence might be characterised as a frustration on the contract in that the frustrating event is the sentence imposed by the court and not the fault or unlawful conduct of the employee. [ Australian Law Reporter , CCH, Volume 1, at paragraphs 1-550 and 1-560.] 62 Statements of Mr Parker in transcript of proceedings of 16 November 2004 at PN671 and PN907. He stated: " Sir, I don't have instructions to make a concession that the university would not also, or would not subsequently seek to say that there had been a repudiation by virtue of assumed circumstances... ." 63 And I have noted that the Federal Court order states that clause 16 of the Agreement does not apply to termination of a contract of employment by frustration or other means not at the initiative of the employer . 64 (1975) 8 ALR 197 at 204. 65 Other than the reference in sub-clause 16(c) to the operation of certain laws which do not form part of the Agreement. 66 Also it was not submitting that Professor Reed was dismissed in an unlawful manner - Statement of Ms Borwick in transcript of proceedings of 16 November 2004 at PN447. 67 Lacy SDP in Maritime Union of Australia v Australian Plant Services Pty Ltd, PR908236, op cit. 68 Refer to Miller v University of New South Wales , op cit, at paragraph 14. 69 Ibid, at paragraph 16. 70 Op cit, at paragraph 23. 71 Cooke J, [1976] 2 NZLR 577 at 582 - as referred in Statutory Interpretation in Australia , Pearce DC and Geddes RS, Butterworths 5 th Edition, 2001, at paragraph 12.4. 72 [1973] 1 WLR 905 at 911 - as referred to in Statutory Interpretation in Australia , op cit, at paragraph 12.4. 73 At paragraph 24.1. 74 Statement of Ms Borwick at PN371. 75 Statement of Ms Borwick in transcript of proceedings on 1 April 2004 at PN128. 76 Transcript of proceedings on 16 November 2004 at PN566 - PN571. 77 Section 13. 78 Section 27. 79 Section 31(1). 80 Also, the university raised the issue of whether private arbitration by the Commission of a dispute between the parties to a s.170LJ certified agreement would, without a specific provision in the agreement to this effect, bind employees to the Commission's decision. It has not been necessary for me to consider that issue. 81 Private Arbitration Case , op cit, at paragraph 29 and 32. Whilst the High Court's decision applied to an agreement certified under the forerunner of Division 3 of Part VIB they have relevance to an agreement that is certified under Division 2. 82 S.170LI(1) of the Act. 83 Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ [2004] HCA 40. 84 At paragraph 11. 85 (1980) 143 CLR 614. Whilst the matter referred to definitions under the Telecommunications Act 1975 (C'th) that Act prescribed that expressions had the same meanings as defined by s.4 of the Conciliation and Arbitration Act 1904-1974. 86 There is some support for this finding in R Pugsley and C Hunt v United Energy Limited , PR9455579, 7 April 2004, Cribb C, at paragraphs 50 and 54. [In that case the individuals made application to the Commission.] 87 The existence of jurisdiction says nothing of course about whether the Commission will, in its discretion, consider it appropriate to exercise the jurisdiction. 88 Statement of Mr Parker in transcript of proceedings at PN878.