Boashash & Ors v Queensland University of Technology [1996] QIRC 694 (1996) 153 QGIG 552

1 552 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1 November, I 99 6 ########################################################## AUSTRALIAN INDUS TRIAL RELAT IONS COMMISSION QUEENSLAND INDUSTR I AL RELATIONS COMMISSION lndttstrial Relmions Act /988 s. I 04 - arbitration lnd11slrial Re/a/ions Act 1990 s. 319 - action on industrial dispute Professor Boashash and Others AND Queen.sland University of Technology (No D355 o/1996) COMMISS IONER NUTTER 2 1 October 1996 Dispute - Federal Award - Jurisdiction - Title - No Federal Ju risdiction Enlivened - Not Interstate Dispute - State Jurisdictfon - Conci li ation Failed - Not in Pubhc Interest to Direct Arbitration. DECISION The letter of notification indicated that ce nain academic employee., of the Quee1Lsland University of Technology (QUT) opposed recommendati ons of the Deputy Vice Chancellors Committee of Review into the School of Electrical and Electronic Systems Engineering (E ESE), which they said contr.ivencd both expressed and implied conditions of their contracLs of employment with the Univers ity. The recommendations which were said to contravene the conditioM of employment i ncluded:- (a) T he managerial responsibi li1ies for 1he operation of the School rest unambiguously with t he HOS (Head of School) and other academic staff members in accordance with 1he provisions of the MOPP (Manual of Practices and Procedures of the QUT) : and (b) T he position of AHOS (Associate Head of School, one of Professor Boashash's appointed positions) be discontinued and that the nom1al university research s1 ru e1ure of ce ntres and concentration be reinforced. Essen1ially 1he matter revolved around the responsibilities ru,d designation of Professor Boashash . The c;ise for the other applic.ims wa, predi cated on the basis that implementation of those recommendations would downgrade the School and affec.1 their pnvi leges. righLS and du1ies. As the employees concerned were covered by I.he Australian Universities Academic S1aff (Conditions of Employment) Award 1988 , and therefore Federal A ward employees. approval was sought and granted by 1he President of the Federal Commi$$iOn pursuant to s. 36 of the lndustnal Relarions Act 19111/ for me to exercise 1he powers of 1he Commission in dealing with the abovemen1ioned maner. I November, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 55 3 A con ference wa, held on Friday, 27 September, 19 96 in relation to this matter. Some detailed in fonnation was put to the Commission. The pani es to the conference were advised thai they were to provide all w ritten infonnation I.hey wished the Commission to consider in res pe ct to this matter by the following Monday . A funher conference was held on Friday, 4 October, 1996. A brief summation of the evenl, are as follows. Th ese were gathered from the infomiation and documents provided. T hey do not cover every m.iner raised. However. all matters were considered. Boashash (herei n referred 10 as the applicanl) was appoimed by the QUT to the position of Professor in Signal Processing in th e School of Electrical and Electronic Systems Engineering. Hi s duties included responsibilities for all aspec1s in th e area of Sig nal processing including re.,ponsibi lit y for research of post gra duate srudenl~ in the School. His letter of appointment indicated 1hat his supervisor wa~ the H ead of Sc hool, Professor Moody. This followed negotiations berween the applicant and QUT m regard to that appointmen t. Maners peninent to the appoin tm en t were documented in written lene rs c larifying i ss ues. Somct.ime after the appointme nt. at the request of the app licant. Moody had discussions with the applicant ( at the appl icant 's req ue st) for 1he use of a title to assist the app li cant to deputise for Professor Moody in h is ab se nce. Professor Moody in agreeing 10 the title of A ssoci at e Head of School. informed the applicant it was an i nfonn al title only and th ai there was no change in 1h e applicant's responsibility. The applicant, on the other hand. indicated that the c hange of tit le was to enable him 10 upgrade th e Sch oo l. The nmation of the arpli cant a, Associate Head of School was li sted in QUT publications. The Deputy Vice Chan cellor ( DV C) at QUT received a letter from H. Guille. Queensland Divisional Secretary of the National Teniary Ed ucation Industrial Union (TEU) dated 22 September 1990 bringi ng to not ice what he said were compl ain1s f rom a substantial number of members in 1he EESE Schoo l in relation to a ran ge of issues including intimidation. employmem practices, academic problems. financial matters, and act iviti es regarding the A.ssociate Head of School. He sought to di scu ss at a meeting on 23 September 1994 a fonnat for an inqu iry to addres..s their con ce rn s. By memo to the DVC dated 18 October. 1994. the app lic ant exp ressed conce rn over eve nt s in the School and recommended ime r alia "an independent committee made up of suitable personnel from outside the School be formed to in ves t igate current problems" . In November 1994, following discussions wit h the Union and academic staff. the DVC constituted a Committee 10 inquire imo the administration and management of the Schoo l. Two members of the Committee of four were from the Union. The 01hers were a Professor of Law. and a Professor of Research who previously had involv ement with th e EESE School. On 8 Nov~mber, 1994, a letter wa, sent 10 all academics in the Sc hool by the Chairperson of the Committee ad visi ng of the tenn s of reference. the panel members and the procedure for su bmi ssions to be made to the Commiuee. Following receip1 of submiss ion s, the Committee. on 15 June 1995. wrote a letter to the applicant advising of iss ues of conce rn whi ch had bee n identified involving the applicant and seeking his comments in writing w i1 h respcc1 to some of those concerns. In response to th is, a letter was written 10 1he Chairpe rso n of the Commit1ee sugges ting that the T EU representatives were biased. No wrinen documentation was provided to me to indica te th:u su ch claims were made p1ior to the June 1995. although the applicant indicated that he had r aised the matter befo rehand. Neven hel ess. in a meeting of the DVC , the Chairperson of the Committee and the app li can t. the applicant agr eed to respond to allegations which had been made. Howev er. later in th e same day, a lener was forwarded from the applicant to th e DVC see king th at 1he DVC take immediate action 10 stop the Panel on the basis of bias and discrimination. He referred to the P.inel compositio n, equity. issue, raised. l eachi ng and research. The Comm ittee repon was rece i ved by the DVC on 24 October. 1995. The DVC spoke 10 the Head of School ru,d the applicant on 3 November on a confidential b.'lsis, providing them with a copy of the repon. He agreed 1h a1 he repon would be circu la1ed to ot he r academic sm ff in the Sc hool and 1his was done on 10 November, 1995. 162644-42 On 5 November, the DVC received a communication from the applican1 indicating that the recommendat ions overall we re reasonable in a nonnal University env ironment except that the issue of har assment and discrimination was not adequately dealt wit h and that incotTect and derogatory sta tements were made i n th e repon. He indicated th at it had been a flawed process. He soug ht that the r epo n nm be im plemented at 1ha1 stage and proposed that he prepare an action plan for the new School s1ruc ture. On 14 November. 1995 the DVC advised the applicarn 1hat he supp0ned the recommendati on that the Associate H ead of School title tx: discontinued bu 1 supponed 1hat the applicant shou ld be on 1he School Ex ecuti ve. At a meeting of all academic staff (including the applicant). the app licant allegedly said at 1he meeting t hat the recommendation that 1he Associate H ead of School 1itle be di sco ntinued wa, acceptable provided tha1 his role and contributi ons made, be ac knowledged an d that he remain on the Executive of the Schoo l. On 17 November, the appl icant circulated the implementation plan 10 all sta ff which. he said, was agreed with the DVC. The DVC said it w a., never agreed . On the basis of what transpired, it would be in comprehensi ble to me th at the DVC would have agreed to it. The DVC said 1hat the applicant mid him 1ha1 perhaps he ( the appl ic.int) used a poor choice of words . In a memorandum 10 all staff of th e School, the Dean of the Fac ulty advised of the implementation of the Committee repon. This included i111er alia "the position of Head of School discontinue from 5 pm Mond ay, 18 March, 1996". Reference wa, also made to the role of the fonner Associate H ead of School a~ Director of Signal Proce ssing and in re se arch and in continuing 10 build the centres reputa tion a.~ well a, his appointment to 1he Fac ul1y E xe cutive . By memo dated I Apri l, 19 96. 1he DV C told the applicant that he not ed rhe applicant conti nu ed to u se the title of Associate Head of Sc hool and told him to desist from 1he u se of that tenn. An offer w as made by the Reg i mar subsequen tly 10 appoin t a mediawr acce p table to both parties. to medi ate the quest i on of discrimination and intimida1ion in the School. This was based on both si des agree ing to abide by the decision of the mediator. h can fairly be said th at the th en unsatisfactory sit ua 1ion funher dc1eriora 1ed. An injunc1ion was sough 1 by rhe ap plicant in the Supreme Co un before Mackenzie J. to rest rai n the QUT from implementing the repon of t he DCV 's Committee of Review insofar as such im pl emen tat ion wou ld breach the 1enns and conditions of t he applicant ·, appointment a, Professor in Signal Processing in the EESE School. QUT gave cenain a.,sur.:rn ccs before Mackenzie J. that the responsibilities and role of 1he applicant would be maintai ned a, per his Contract of EmploymenL On th ose un denakings Mackenzie J. star ed tha t he wa, 1101 convinced that circums1 an ces would necessari ly arise where a b reach of co ntr.ict will occur. He said he would n o1 grant the injunc 1ion and al so stated 1ha1 in his view the re wa., no demonstrat ed rea~on 10 order mediation of the issue . There was some argument for the applicant before me 1ha1 the contract had in fact been varied sin ce the initial cont ract had been ente red m10. but this wa, a mailer which shou ld have be en put before M ac kenzie J. a1 the lime. Havi ng outlin ed the details of this matter I now come down 10 the ques 1i on of jurisdiction. For a matter to be an indusuial dispute. it mu st be a m atte r co nnecled with ··1h e re larionship be twee n an employer in his capacity a.s an employe r and an employee in his capacity a.s an employee in a way which is direct and not me rely conseq uent ial for it to be an indu$trial marter capa ble of be ing the subject of an i ndustrial dispute:· (re R. M. Crum n11wi1rt1i11g Lnn,/ Coal A111Jwri1.1-. Northern Di.<rrict & Ors: Er pune N. S. W ColliP1~· Proprietor., A.uociation Lid. & Or.<). In my view this is the case here. Also an industrial matter is not li1ni1cd to matters listed in the Contrac1 of Service. Many of t he conditions affecting the righ1s of employers and employees arise outside that contract.(See Dixon C. J. i11 The Queen ,·. Findla y : Ex pa rre Tire CommaflH·ea/Jh Steamship 0H 'ltt'r!i · A.uod,11w11 ( 195~) 90 CLR 62 1a1 629-630). In the matter to be considered, the Commission would 1101 be inhibitt'd in dealing wi1h the matter because the subject matter cou ld generally be 1em1ed the prerogative of management. Mruiy management decisions once vkwed 21-189_ I.DOC -- 1 of 2 -- 554 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE I November, 1996 as the sole prerogative of management are now correctly seen as directly affecting the relationship of employer and employee and constituting an "industrial mailer" .(See Cram) Its fullher stated in that decision in regard to the exerci se of discretion:- "Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlernem of a dispute where the award amounts to a subs tantial interference with the autonomy of management 10 decide how the business enterprise should be efficiently conducted. The evident importance of am1ing such tribunals with power to senle industrial disputes capable of disrupting industry is a powerful reason for refusing to read down the wide and general definition of ' indus1nal matters' in the Conunonwealth alld Staie Acts by reference ro any notion of managerial prerogatives as such .".( The High Co ull was refening 10 objections by O'Co nn or J. in Clancy) II 1s evident from 1h e above, if these were the only considerations. would have held that 1had jurisdiction under the Federal Act to deal wit h the mailer. The representative for the applicant and the QUT represent ative at the conference on I I Septembe r, 1996. stated thal there was no hkelihood th al conciliation was possible and the Commission was asked by the applicant's Counsel 10 refer the mailer to arbitration pursuant 10 s.104 of 1he Federal Act. I reserved my decision. I now give a decision on that maner. For Federal jurisdiction to be invoked, the maner to be dealt with must have 1he quality of an interstare dispute i.e. i1 has to have the requisite quality of interstateness. In Reg v. Gm,,:h; Ex pt1rte Cairn.< Meut Export Co. Pry. /.Jd - the High Coull said: - "The question w ill remain a,; to how Mr Commissioner Gough could bring his two informal orders within the con ce ption of the senlemem of an industrial dispute extending beyond the limits of one Stale or withi n any conception of whar was incidental thereto or consequential thereon. ... one kind of 'industrial maner' is • the right to dismiss or to refuse to employ, or the duty 10 re-instate in employment a particular person or cla,;s of persons'. Be it so. You still must have all industrial dispute about that mailer extending beyond one Stare. It would have required great foresight 10 make a dispute about these events, events which occurred three years late r or at l east 2 1/2 years later. If you go fullher and look at what Mr Commissioner Gough did. it wi ll be seen that he wa,; dealing with four individuals; he dealt with them in relation to something which affected them ind ivi dually and their conduct. His real authority was 10 se1tle any industrial dispute extending beyond any one State, but this matter was something which was not of that character and wa,; not incidental to the se1tlement oi a two-state industrial dispute . . .". The majority of the High Coull in the course of its decision in the Collieries Ca<;e (No I) ( 193 0) 42 CLR 527 held that :- " Alth ough the dis pute only existed locally in one State, if viewed in isolation. it nevertheless did extend beyond one State hav ing regard to the previous history of dispute.,; between the two unions ru1d the fact that it could be seen a.<; the manifestation of a continuing industrial dispute which extended to major construction si te.,; throughout Austral ia and involved employers in various States and Temtorie.s." . The present matter concerns a grievance between 1he applicant and three others with QUT in relntion 10 a single position in the structure of one School at QUT. It affects them individuall y and their conduct. The disagreement i.s over the implementation of a report in relatio n to the operation of that Schoo l. The dispute is part ic ularly concerned with a .. local.. title bestowed on the applicant by the School which is now 10 be discontinued. The tit le does not affect the position to which he wa< in itially appointed . T he title is no1 in the Award or an agreed title for use by other Universities. The TEU had 001 advised the Commission of the likelihood of t he di spute extending beyond QUT The QUT in tran~cript, a principal party 10 the original dispute, submined tha t the pre.se nt mailer was not re l ated to that dispute finding. The TEU , the Union party to the original dispute finding, who would have been aware of the con ferences, did not seek 10 intervene on the basis that the dispute was related to th e original finding. J have formed the view that such a matter was not related to the original dispute finding. I am satisfied that the matter does not have the qual ity of interstateness to bring the matter within the meaning of an " ind ustrial dispute" under 1he Industrial Relation., Act 1988. I therefore decline to exercise jurisdiction in the maner. Having established that this mailer is 1101 an " in dus trial dispute" within the meaning of 1he Indu st ria l Relations Act 1988. I will deal with the manner under the Queensland Industrial Relwion.< Ac/ 1990. S. 319 dealing with the prevention and se1tlement of industrial disput es states: - " (I) An Industrial Commissioner is not to take action under this section unless - (a) notification of an industrial dispute ha~ been received by 1he Industrial Registrar under .subsection (2) or (8); or (b) the Commissioner is of the opinion tha1 taking such action is in the public interest. ". ( the underlining is mine} Paragraphs (a) and (h) confer two separate powers. either of which the Commission is able to exercise at any time when confronted with all industrial dispute. Counsel for the Applicant (pursuant to subsection (4) of s. 319) sought the Commission take steps to refer the matter to arbitration, concil iation in the first instance having failed . The pallies to the di spute had agreed there was no likelihood of conciliation being successful. In cons idering this matter, based on the extensive infomiation in ex hibits given to me during the conference.s, I have fonned the view - ( I) That the i ssue is one which clearly falls within the area of management prerogativ es and that I should no1 interfere unl ess sound and compelli ng rea,ons are furni.shed. (See Crum) (2) That QUT hi.s taken all reasonable steps that th ey could be expec ted to take to resolve 1he overall is.sue dealing with problems in the EESA School - a Commillee was fomied comprising TEU and employer representatives; • advice was prepared 10 all staff in the Sc hool regarding that Committee; • the Committee gave all members of staff the opportun ity 10 make submissions; • in respect to submissions involving the app licant , the Committee gave the applicant an oppollu nity to respond; discu ss ions then 100k place between the DCV, the Comminee Chairpe rson and the applicant in respect 10 those mauers: • the details of the Commitlee recomme nda11 ons we re provided 10 all staff in the School; a meeting of all staff took place in relation to the Repoll and its implementation; • the applicant agreed to the imp lementa110n of the Repon: and foll owi ng discussions, the applicant changed his mind and took 01her action to prevent 1he Repoll being implemented. 11 also seemed to me on the in formation given t hat lhe appl icant ch;u1ged his position in re lation to this mailer on a number of occasion,; ~ J November, 1996 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE QUT, on the information available to me has bent over backwards in its artempts to resolve problems nssociated with the management of the EESE Schoo l. They are entitled to make such d ec isions a.,; wi ll enable them 10 have the School run in an effective and efficient manner. They are entitl ed to impl ement the recommendations of the Committee of Review appointed by the DCV. They are within their rights 10 require the applicant to desi st from 1he use of the term "Associate Head of School" (one of the Comminee's recommendations) and if the app li cant continue.s to use this tenn he leaves himself open to disciplinary action. The temi or title "Associate Head of School " is ru1 internal one and not one negotiated with the applicant as pan of h is contract of employment. This wa.,; found to be the ca.<e in the action by the app li cant against QUT before Mc Kenzie J. when a restraining order was sought, but was refused. In relation to ce ll ai n allegations made concerning discrimination and harassment, QUT have suggested a mechanism to r e.,;olve the issue . They have suggested an independent outside mediator, provided all panies agree to abide by the findings of the mediator. I would recommend that this be taken up by the applicant as this seems to be a satisfactory manner of resol ving that i ssue. It is my view that referral of the mat ter to arbitration would not be in the public interes t and I decline to do so . It would mere ly conti nue the fe.stering of this long continuing sore and would serve no u sefu l purpose. It would result in continuing instabil it y in !he School. The Commission exercises its righL<; pur.suant 10 s. 3 I 9( I) no1 to refer the mailer to arbitration. The Commission is of the opinion that ~uch referral would not be in the public interest. Order accordi ngl y B. J. NUTTER, Commissioner. Appe arances :- Mr. M . Amerana (instruct ed by Boe & Callaghan) for the applicants. Mr E. Scuderi (inst ructed by Corrs Chambers Westgarth ), with him Mr T. tovaa.<; , Mr G. Mac Aulay and Ms M. Wedmaier for the Queens l and University of Technology. Opern1ive Date: NIA Decision - Jurisdiction Relea~: 2 1 October 1996 ########################################################## 555 21489_1.DOC -- 2 of 2 --