Y v The University of Western Australia [2006] FCA 403

FEDERAL COURT OF AUSTRALIA

Y v The University of Western Australia [2006] FCA 403

PRACTICE AND PROCEDURE – interlocutory injunction INDUSTRIAL LAW – construction of terms of certified agreement

Workplace Relations Act 1996 (Cth) s 413A, s 178 Y v THE UNIVERSITY OF WESTERN AUSTRALIA WAD 71 OF 2006 SIOPIS J 21 MARCH 2006 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 71 OF 2006

BETWEEN: Y

APPLICANT

AND: THE UNIVERSITY OF WESTERN AUSTRALIA

RESPONDENT

JUDGE: SIOPIS J

DATE OF ORDER: 21 MARCH 2006

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Until the hearing of this application or until further order: (a) the Misconduct Investigation Committee established by the respondent in relation to the applicant be prohibited from further proceeding; (b) that the Vice-Chancellor and or Professor Belinda Probert, the Academic Member of Executive of the respondent be prohibited from acting on any repost of the Misconduct Investigation Committee established by the respondent in relation to the applicant. 2. The respondent is to pay the applicant's costs of today in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 71 OF 2006

BETWEEN: Y

APPLICANT

AND: THE UNIVERSITY OF WESTERN AUSTRALIA

RESPONDENT

JUDGE: SIOPIS J

DATE: 21 MARCH 2006

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application for an interlocutory injunction. The applicant seeks the orders that, until the hearing of this application or further order, the Misconduct Investigation Committee, established by the respondent ('the University') in relation to the applicant, be prohibited from further proceeding; and that the Vice Chancellor and/or Professor Belinda Probert, the Academic Member of Executive of the respondent, be prohibited from acting on any report of the Misconduct Investigation Committee. The applicant relies upon his affidavits of 16 and 17 March 2006. At the commencement of the hearing of this application I made orders suppressing publication of the names of the applicant and the two deponents to the affidavits referred to below until 27 March 2006. 2 The substantive application seeks declarations pursuant to s 413A of the Workplace Relations Act 1996 (Cth) ('the Act') relating to the proper interpretation of cl 6 of Sched D of a certified agreement, known as 'The University of Western Australia Academic Staff Agreement 2004' ('the certified agreement'). The application also seeks pursuant to s 178 of the Act an order for the imposition of a penalty against the University for breach of the certified agreement. 3 Schedule D of the certified agreement sets out the investigative and disciplinary process to be followed when there are allegations of serious misconduct made against members of the academic staff of the University. It provides, inter alia, for the establishment of a Misconduct Investigation Committee. 4 The applicant, who is a member of the academic staff of the University, alleges that by reason of the manner in which the University proceeded in establishing the Misconduct Investigation Committee, the University has acted in breach of cl 6 of Sched D to the certified agreement. It follows, so the applicant says, that as the Misconduct Investigation Committee was established in breach of the agreement, its subsequent proceedings are, therefore, unlawful. 5 The applicant also says, alternatively, that on a proper construction of cll 6, 11 and 13 of Sched D of the certified agreement, that even if the Misconduct Investigation Committee was lawfully established, the manner in which it has subsequently conducted its proceedings was unlawful because the Misconduct Investigation Committee has acted in breach of those terms of the certified agreement. 6 In essence, the applicant has the following complaints. Firstly, the University established the Misconduct Investigation Committee, without having first provided him with sufficient particulars of the allegations made against him. Secondly, the Misconduct Investigation Committee has proceeded with an investigation of the applicant's conduct under Sched D without the applicant having been supplied with sufficient particulars of the allegations against him. Thirdly, the Misconduct Investigation Committee has failed to direct that the deponents to two affidavits on which the allegations that are made against the applicant are founded, appear before the Misconduct Investigation Committee for questioning. Fourthly, the Misconduct Investigation Committee has failed to direct that notes of discussions between the deponents to the affidavits and Ms Hill be made available to the applicant and to the Misconduct Investigation Committee. Ms Hill is an employee of the University who first investigated the affairs of the department of the University in which the applicant and the two deponents work. 7 The application and the declarations sought in the application, therefore, call into question, for the purposes of interpretation and construction, certain clauses of Sched D of the certified agreement.