2018 WAIRC 00390
WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT


CITATION : 2018 WAIRC 00390

CORAM
: INDUSTRIAL MAGISTRATE M. FLYNN

HEARD
:
WEDNESDAY, 18 APRIL 2018

DELIVERED : THURSDAY, 28 JUNE 2018

FILE NO. : M 213 OF 2017

BETWEEN
:
MR LESLIE GEORGE MAGYAR
CLAIMANT

AND

DIRECTOR GENERAL OF EDUCATION
RESPONDENT

CatchWords : INDUSTRIAL LAW (WA) – Summary judgment application by employer – Employee alleging contravention of grievance procedure in industrial agreement – Grievance procedure to be ‘dealt with in accordance with the principles of natural justice and due process’ – Claim has no reasonable prospects of success
Legislation : Industrial Magistrates Court (General Jurisdiction) Regulation 2005 (WA)
School Education Act 1999 (WA)
School Curriculum and Standards Authority Act 1997 (WA)
Industrial Relations Act 1979 (WA)
Instruments : School Education Act Employees’ (Teachers and Administrators) General Agreement 2014
Case(s) referred to
in reasons : Pannell v Pannell [2017] WAIRComm 834
Richard James Quinlivan v Austral Ships Pty Ltd [2003] WAIRComm 9633
United Voice v Minister for Health [2012] WAIRComm 312 SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Casella v Hewitt [2008] WASCA 13
Department of Education and Training v Peter Hans Weygers [2009] WAIRComm 41
Tiver v University of South Australia [2014] FCA 1114
National Tertiary Education Union v La Trobe University [2015] FCAFC 142
Construction, Forestry, Mining and Energy Union v Hay Point Services [2018] FCA 417
Result : Summary judgment for the respondent
REPRESENTATION:
1

CLAIMANT : MR MAGYAR (IN PERSON)
RESPONDENT : MR J. CARROLL INSTRUCTED BY THE STATE SOLICITOR OF WA

REASONS FOR DECISION
1 Mr Magyar is a school teacher at Kent Street State High School. He teaches information technology. He contends that the computer facilities available to him are inadequate to prepare his students undertaking a Certificate II or Certificate III in information technology. On 30 May 2017, Mr Magyar repeated his belief in an email to his supervisor, Mr Brian Gould, and requested that particular equipment be purchased. Mr Gould did not agree to the request. Mr Magyar immediately invoked the procedure covering ‘grievances about worksite matters affecting employees’ in cl 41 of the School Education Act Employees’ (Teachers and Administrators) General Agreement 2014 (the School Agreement). A committee, purportedly following the procedure set out in cl 41 of the School Agreement (the Clause 41 Procedure) and for reasons set out in a letter dated 9 June 2017, determined that Mr Magyar’s grievance ‘was not upheld’ (the 9 June 2017 Committee Decision). On 7 July 2017, Mr Magyar commenced proceedings in this Court (the 7 July 2017 Case) alleging that the process leading to the 9 June 2017 Committee Decision contravened the School Agreement insofar as his grievance was not ‘dealt with in accordance with the principles of natural justice and due process’ in cl 41.3(c) (the Natural Justice Clause). Specifically, Mr Magyar alleged in the 7 July 2017 Case that he was not afforded an opportunity to address the committee on relevant matters. By consent, the 7 July 2017 Case was discontinued in anticipation of a rehearing of Mr Magyar’s grievance by a reconvened committee. The reconvened committee, purportedly following the Clause 41 Procedure and for reasons set out in a letter dated 28 November 2017, determined not to uphold Mr Magyar’s grievance (the 28 November 2017 Committee Decision). On 11 December 2017, Mr Magyar commenced the present claim, alleging that the process leading to the 28 November 2017 Committee Decision had contravened the Natural Justice Clause. Specifically, he claims that the committee ‘relied upon evidence from a person who was not impartial (Ms Rachel Hu), thus bias cannot be ruled out’.1 For the reasons set out below, I agree with the respondent that Mr Magyar’s claim has no reasonable prospects of success and must be dismissed.
2 The Industrial Magistrates Court has the power to dismiss a claim upon an application for summary judgment.2 It is an implied power of the court3 or it is an incident of the specific powers conferred on the court by reg 5 of the Industrial Magistrates Court (General Jurisdiction) Regulation 2005 (WA) to make orders for the ‘efficient, economical and expeditious dealing with cases’.4 It is for the respondent to persuade the court that there is no issue to be tried. Although there is an evidentiary burden on Mr Magyar to show a valid claim, the overall legal burden is upon the respondent. The application for summary judgment will not be granted unless the court is satisfied that this case is ‘one of the clearest of cases, when there is (such) a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment (dismissing the case) ought properly be granted’.5 If the ultimate outcome of the case may be affected by unresolved questions of fact or difficult questions of law or any other factor, including the filling of the current evidential vacuum, then a trial is required and the application for summary judgment will be dismissed.6 The power to order summary judgment must be exercised with great care. If relevant facts are in dispute or if an application raises difficult or substantial questions of law, summary judgment should not be given.7
3 The text of cl 41 of the School Agreement is set out in an endnote to these reasons.8 The Natural Justice Clause is located in cl 41.3(c). It provides that one of the (six) objectives of the grievous resolution procedure is that ‘grievances are dealt with in accordance with the principles of natural justice and due process’. The issue for me on this application is whether the respondent has satisfied me that summary judgment should be granted because of the high degree of certainty that Mr Magyar will fail to prove that there was a contravention of the Natural Justice Clause in the process leading to the 28 November 2017 Committee Decision.
Natural Justice: the Principles
4 The legal principles to be applied when assessing whether a decision maker has discharged an obligation to accord ‘natural justice’ are well known. What follows in this paragraph is an adaption of what was said in Department of Education and Training v Peter Hans Weygers [2009] WAIRComm 41; [30] – [39] (omitting quotations and citations). The onus of establishing that the requisite standard of fairness has not been met will lie upon the party who seeks to prove breach of natural justice. It must be shown that the procedures adopted by the decision maker were unfair in the circumstances. It is important to emphasise that it is insufficient for a party alleging a breach of natural justice to prove that better or fairer procedures could have been adopted by the decision maker. It must be shown that the adopted procedures were unfair in the circumstances. In a case where an expectation has been disappointed, the question remains whether there has been unfairness. The concern of the law is to avoid practical injustice. The precise content of the requirements of natural justice in any particular case depends critically on the legal framework within which the relevant power falls to be exercised and the facts and circumstances of the particular case. Because of the large variety of legal frameworks in which the obligation to provide natural justice arises and the infinite variety of factual circumstances in which the determination of the precise content of the requirements of natural justice might arise, it is impossible to lay down a universally valid test which can be applied to determine whether natural justice has been provided in each and every case. A court required to determine whether a decision maker has departed from the requirements of natural justice must therefore analyse all facts and circumstances relevant to the purported exercise of the power viewed in the context of the legal framework confirming the relevant power for the purposes of ascertaining whether there has been practical injustice in the particular case.
Legal Framework of the Natural Justice Clause
5 The School Agreement is expressed to ‘apply to employees who are employed’ by the respondent.
6 The School Agreement must be read subject to any relevant statute, including the School Education Act 1999 (WA) (the Act). The Act provides for the establishment of government schools by the Minister (s 55). The functions of the chief executive officer (CEO) (s 61), principals (s 63) and teachers (s 64) are proscribed by the Act. The CEO determines the standard of educational instruction in government schools. The functions of the principal include responsibility for day to day management and control of the school. The functions of a teacher include the giving of competent instruction to students in accordance with the curriculum. The functions of a teacher are subject to the direction and control of the principal (s 64(2)(c)). The curriculum in a government school is determined by the CEO in accordance with the requirement of the School Curriculum and Standards Authority Act 1997 (WA) (the Curriculum Act).
7 The Curriculum Act provides for the establishment of the School Curriculum and Standards Authority (s 5) and a Curriculum and Assessment Committee (s 7D) whose role is to provide advice to the Authority. The advice will concern certain functions of the Authority, including: establishing curriculum; issuing guidelines on courses; developing courses; and the recognition and accreditation of courses (s 7E; s 9).
8 The School Agreement contains provisions on: a teacher’s responsibilities (cl 9 – 15 in Part 2); salary and associated allowances (Part 6); leave (Part 7); country and remote teaching (Parts 8 and 9); consultation and dispute resolution (cl 40 – 43 in Part 11); performance management (Part 12) and the functions of an Employee Relations Executive Committee (EREC) (Part 13). The functions of the EREC include monitoring the matters identified in Part 13. Those matters include implications of the growth of vocational education training in schools (cl 49).
9 The Clause 41 Procedure applies to ‘grievances about worksite matters affecting employees’ (cl 41.1). The following may be noted about the Clause 41 Procedure.
· The procedure has six stated objectives. One objective is that stated in the Natural Justice Clause (‘grievances are dealt with in accordance with the principles of natural justice and due process’ (cl 41.3(c)). Other objectives include that: ‘there is a proper consideration of the facts and circumstances relating to the grievance’ (cl 41.3(e)); ‘decisions are impartial, transparent and capable of review’ (cl 41.3(f)).
· The ‘fundamental principles in dealing with grievances’ are stated, including: ‘all employees involved in the grievance must act in good faith with a genuine desire to resolve any grievance at the lowest possible level if possible’ (cl 41.5(c)); ‘resolution of grievances should occur as quickly as possible and be completed as soon as practicable (cl 41.5(d)).
· A grievance with a person other than the principal is dealt with as a ‘Level One – Worksite/School’ grievance and is resolved by a consultative committee of two persons, the principal (or line manager) and a local union representative (cl 41.7, 41.8) . The procedure for resolution is proscribed in so far as certain procedures are set out in cl 41.6 - 41.8. Clause 41.6 provides that an aggrieved employee must lodge a written grievance ‘in a clear and concise manner and include the relief sought’; the grievance must be lodged ‘within three weeks of the circumstances occurring from the grievance arises’ (unless extended); a grievance that raises issues that ‘may have system-wide ramifications’ may be referred to the EREC. Clause 41.8 provides that the consultative committee must formally consider the grievance within five working days of being lodged before issuing an agreed resolution in writing which is binding on all employees; or informing the parties that agreement was not reached and the aggrieved employee may refer the grievance to a Regional Grievance Committee.
· A grievance with a principal (or referred by the aggrieved employee under cl 41.8) is dealt with as a ‘Level Two – Regional Grievance Committee’ grievance and is resolved by Regional Grievance Committee of two persons, a senior employee nominated by the Director General and a union member nominated by the President of the Union (cl 41.6, 41.9). The procedure for resolution is proscribed in so far as certain procedures are set out in cl 41.9. The Regional Grievance Committee must be constituted ‘within 10 working days for each grievance’. Agreed resolutions are referred to the school for implementation. Clause 41.11 provides that if the Regional Grievance Committee is unable to reach agreement, the issue may be raised at the EREC.
Facts and Circumstances of the Consultative Committee Process
10 The following facts, alleged in Mr Magyar’s originating claim of 11 December 2017 will, for present purposes, be assumed to be correct:
a. On 30 May 2017, Mr Magyar send an email to Mr Gould (and a copy to School Principal, Ms Ward) requesting the purchase of specified items that he considered necessary to deliver the relevant curriculum. The request was informed by a published training package that had been ratified by Government in 2012. The training package referred to the need to ensure students had access to industry current equipment, facilities and training resources. Mr Magyar’s view was that to teach the relevant curriculum it was necessary to create a computer network for training purposes that was isolated from other networks. The items he required and requested were: ‘1 desktop computer ($900), 5 laptops ($2500) and miscellaneous items ($1000)’ (the Requested Equipment). Mr Magyar’s view was informed by advice he received in a letter of 29 July 2013 from Eugene Geldenhuys of TFX Pty Ltd to the effect that relevant curriculum could not ‘be taught in full [unless] an isolated network is configured’. Mr Geldenhuys recommended the creation of ‘a sandbox network which is isolated from the school network’.
b. On 2 June 2017, Mr Gould orally refused Mr Magyar’s request. Mr Gould referred Mr Magyar to a memorandum of agreement between Kent Street Senior High School and Hands On Computer Training International Pty Ltd trading as ‘Australian Institute of Commerce + Technology’ (AICT) in which mention is made of the school supplying ‘two ‘dead’ computers’ in connection with the delivery of relevant curriculum.
c. On 6 June 2017, Mr Magyar wrote to School Principal, Ms Ward, lodging ‘a grievance against Mr Gould’ following the conversation of 2 June 2017. Mr Magyar identified three ‘desired outcomes’: (1) purchase of the Requested Equipment; (2) establish a ‘sandbox network’; (3) obtain a report from a suitably qualified person to confirm compliance with the training package.
d. By letter dated 9 June 2017, a consultative committee comprising school principal, Ms Ward and union representative, Mr Spittle, determined that Mr Magyar’s grievance ‘was not upheld’. On 7 July 2017, Mr Magyar commenced proceedings in this court alleging that the process leading to the 9 June 2017 Committee Decision contravened the School Agreement insofar as his grievance was not dealt with in accordance with the Natural Justice Clause. Specifically, Mr Magyar alleged in the 7 July 2017 Case that he was not afforded an opportunity to address the committee on relevant matters. By consent, the 7 July 2017 Case was discontinued in anticipation of a rehearing of Mr Magyar’s grievance by a reconvened committee.
e. By letter dated 28 November 2017, a reconvened consultative committee, comprising school principal, Ms Ward and union representative, Ms Lees, purportedly following the Clause 41 Procedure, determined (again) not to uphold Mr Magyar’s grievance. The letter referred to matters taken into account by the reconvened consultative committee. It did not accept a submission by Mr Magyar that ‘a suitably qualified person’ to confirm compliance with the training package was the (named) manager of regulatory operations of the WA Australian Skills Quality Authority. The reconvened consultative committee had taken advice from Ms Hu of AICT in preference to the manager of regulatory operations of the WA Australian Skills Quality Authority. The reason for this preference was stated to be the fact that, pursuant to a memorandum of agreement between them, AICT was responsible for ensuring that the school complied with relevant standards. The 28 November 2017 Committee Decision was to the effect that, relying upon the advice of Ms Hu, the curriculum co-ordinator at AICT responsible for ensuring that approximately twenty schools comply with relevant standards in the delivery of information technology courses: (1) the Requested Equipment was not necessary to comply with relevant standards; (2) the establishing of a sandbox network was not necessary to comply with relevant standards.
Reasons Why Summary Judgment Against Mr Magyar’s Claim Will be Granted.
11 For the reasons set out below, no arguable contravention of the Natural Justice Clause arises from the decisions of the reconvened consultative committee: (1) not to take advice from the expert recommended by Mr Magyar (i.e. the manager of regulatory operations of the WA Australian Skills Quality Authority); (2) to rely upon the advice of Ms Hu, notwithstanding the existence of a commercial relationship between her employer, AICT, and the school.
12 Two features of the legal framework in which the Clause 41 Procedure was to be administered by the reconvened consultative committee should be noted. Firstly, the procedure should occur as quickly as possible and be completed as soon as practicable: cl 41.5(d). Secondly, the effect of the Act is that ultimate responsibility for resource allocation decisions within the school is upon the principal and the CEO.
13 Resource allocation decisions will necessarily excite the interest of any teacher when the result is an impact upon the capacity or the manner in which that teacher is to deliver curriculum to students. The Clause 41 Procedure must reflect the subject matter of the decision. If the Clause 41 Procedure is available as a means of review of each resource allocation decision, then it may be expected for advice to be sought by the consultative committee from a convenient trusted source that, apparently, has relevant technical knowledge or experience.
14 The decision to take advice from Ms Hu was not irrational and involved no unfairness to Mr Magyar. It may be inferred that the reconvened consultative committee assessed her technical advice in light of any commercial advantage to herself or to her employer that may have followed from her advice and in light of evidence that she offered in support of her conclusions. This inference is supported by the contents of the letter setting out the reasons for the 28 November 2017 Committee Decision. If it is assumed (in favour of Mr Magyar), that the use of Mr Magyar’s preferred expert was conducive to a ‘better’ decision and would have resulted in a ‘fairer’ process, it does not follow that there has been an arguable contravention of the Natural Justice Clause: Department of Education and Training v Peter Hans Weygers [2009] WAIRComm 41; [30] – [39]. No practical injustice resulted from the reconvened consultative committee relying upon Ms Hu in preference to the manager nominated by Mr Magyar. Mr Magyar put his case to the reconvened consultative committee. The reconvened consultative committee considered the case in light of technical advice from a source that was not inappropriate in the circumstances. The reconvened consultative committee offered cogent written reasons for not agreeing to the desired outcomes of Mr Magyar.
Conclusion
15 In view of my conclusion above, it has not been necessary to address three further questions that have occurred to me but which the respondent has not raised in this summary judgment application. First, there may be a question about whether Mr Magyar’s claim is misconceived because it concerns the conduct of a committee (comprising the principal and a local union representative) and does not concern the conduct of his employer, the respondent: see Tiver v University of South Australia [2014] FCA 1114 (White J).9 Secondly, there may be a question about whether Mr Magyar’s claim is better characterised as a dispute about a matter provided for in the Act rather than a worksite matter. Of significance is that cl 42 of the School Agreement contains a different procedure (the Clause 42 Procedure) to the Clause 41 Procedure and is expressed to apply to ‘questions, difficulties or disputes that are not the subject of individual grievances’.10 The Clause 42 Procedure is stated to be ‘intended to address questions, difficulties or disputes’ that include ‘matters provided for in Acts and Regulations’. Thirdly, there may be a question about whether the Natural Justice Clause is aspirational and not amenable to enforcement in the manner provided by Part III of the Industrial Relations Act 1979 (WA): see National Tertiary Education Union v La Trobe University [2015] FCAFC 142; Construction, Forestry, Mining and Energy Union v Hay Point Services [2018] FCA 417.
16 This is a case where there is such a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment (dismissing the case) ought properly be granted’. There are no unresolved questions of fact or difficult questions of law that require a trial. I will hear from the parties on what consequential orders, including orders as to costs, ought to be made.




M. FLYNN
INDUSTRIAL MAGISTRATE
1 Paragraph 25 of the statement of particulars attached to the originating claim.
2 I addressed the same issue in Pannell v Pannell [2017] WAIRComm 83 [3] and the contents of this paragraph are an adaption of my stated reasons in Pannell.
3 Richard James Quinlivan v Austral Ships Pty Ltd [2003] WAIRComm 9633 [31].
4 United Voice v Minister for Health [2012] WAIRComm 312, [20 – 22] (Smith AP); [100] (Kenner C).
5 SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138 [20].
6 SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [20 – 25].
7 Casella v Hewitt [2008] WASCA 13 [36] (McLure JA).
8 41 GRIEVANCE RFSOLUTION PROCEDURE
41.1 The grievance resolution procedure covers grievances about worksite matters affecting employees that are within the control or responsibility of the employer or its employees. Any resolution of a grievance under these procedures must be capable of being implemented at the workplace/worksite. This clause does not bind swimming instructors, whose procedure is outlined in clause 39.5 of this Agreement.
41.2 This grievance resolution procedure excludes those grievances more appropriately dealt with by legislation or policy involving such matters including: (a) sexual harassment; (b) equal opportunity; (c) occupational safety and health; (d) Public Sector Commission Commission's Code of Ethics; Commissioner's Instructions or the Public Sector (e) performance and disciplinary matters; and (f) criminal behaviour.
41.3 This grievance resolution procedure has been developed to achieve the following objectives: (a) resolution of grievances at the workplace level; (b) the right of employees to approach the employer or the Union for advice or assistance without any repercussions; (c) grievances are dealt with in accordance with the principles of natural justice and due process; (d) employees are informed of their rights and responsibilities in the grievance resolution process; (e) there is a proper consideration of the facts and circumstances relating to the grievance; and (f) decisions are impartial, transparent and capable of review. Whilst the grievance is the subject of this grievance resolution process, the status quo prevailing before the grievance was lodged will remain, unless otherwise agreed between the parties, or where the maintenance of the status quo is impractical.
41.4 Where a representative of the Union or the employer provides an employee with assistance in formulating a grievance, that person must exclude themselves from the Consultative Committee hearing the grievance where there is a conflict of interest or they cannot act without bias.
41.5 Fundamental principles in dealing with grievances are as follows: (a) discussion and resolution should be within a general framework of co-operation, which emphasises prevention of further grievances rather than just a resolution of the immediate matter; (b) as far as possible, grievances should be handled using the normal line management structure; (c) all employees involved in the grievance and their representatives must act in good faith, with a genuine desire to resolve any grievance at the lowest possible level if possible, and to maintain communications at all levels with a view to resolving the issue or issues; (d) resolution of grievances should occur as quickly as possible and be completed as soon as practicable; (e) employees have the right to raise legitimate grievances without threat of repercussion; (f) confidentiality must be maintained at all times in the resolution of a grievance, including the outcome, unless otherwise agreed to by all the employees involved in the grievance; and (g) employees who are not party to the grievance cannot be compelled to become involved in the grievance resolution process.
41.6 The procedures to be followed when an employee wishes to lodge a grievance are: (a) Where a grievance arises at a worksite, in the first instance the matter should be dealt with in an informal manner. The aggrieved employee should attempt to resolve the grievance with the other employee. Consultation with other officers or the Union office may take place as a normal line management process in order to attempt to resolve the matter prior to the commencement of the formal grievance procedures set out below. Employees are committed to resolving grievances cooperatively. Every effort should be made to resolve the issue informally. If a grievance cannot be resolved informally, it can be considered under the formal grievance procedure. (b) The formal grievance resolution procedure is instigated as follows: (i) The instigation of the grievance procedure in the first instance is the responsibility of the aggrieved employee and such employee must act within three weeks of the circumstances occurring from which the grievance arises. (ii) Where a grievance is lodged after three weeks, the Consultative Committee has the discretion to accept a late grievance on such grounds as the party being on sick leave or because of failed attempts to resolve the issue informally or through other processes such as mediation. The onus is on the aggrieved employee(s) to provide written reasons of the cause of the delay at the time of lodging their grievance. The Consultative Committee must provide written reasons for its decision to reject an application lodged out of the three week time limit. (iii) The grievance must be written in a clear and concise manner and include the relief sought. The response acknowledging the grievance and advice of the outcome of consideration of the grievance will also be in writing. (iv) Where an employee has a grievance with his or her principal or line manager, the employee must notify him or her. If the matter is not resolved informally between the principal or line manager and the employee, the employee is entitled to go straight to Level Two of the procedure. (v) In circumstances where the grievance relates to a School Administrator or the Regional Executive Director, the resolution process may require the grievance to be considered by another Regional Grievance Committee. (vi) In circumstances where the issues raised by the grievance may have system-wide ramifications, and are not able to be resolved at the workplace level, the matters can be referred to EREC for determination and action.
41.7 The formal grievance resolution procedure has two levels: Level One - Worksite/School and Level Two - Regional Grievance Committee.
41.8 Level One - Worksite/School (a) At this stage, the grievance should be considered formally by the Worksite/School Consultative Committee within five working days of its receipt. The committee is made up of the principal or line manager and the local Union representative. (b) In the case where there is no school site Union representative or where that person is the principal or line manager, another Union member from that school or workplace should take the position who is nominated by the President of the Union or his or her nominee. (c) The aggrieved employee may nominate and be accompanied by a support person at this and any subsequent stage. This support person can advise but not represent the aggrieved employee at any stage of the grievance. Both members of the committee may nominate a deputy member to attend in their stead. (d) A person who has initiated a grievance or who is the subject of a grievance is not to be a member of a Consultative Committee dealing with that grievance, even if they would normally be a member under the preceding provisions. If it is not possible, as a result of this, to form a Worksite/School Consultative Committee the grievance will be referred to Level Two. (e) The Worksite/School Consultative Committee will attempt to reach an agreed resolution to the grievance. These resolution(s) will be provided in writing to the employees involved in the grievance and will be binding on all employees involved in the grievance. (f) Where the Worksite/School Consultative Committee is unable to reach an agreed resolution to the grievance they will inform all employees to the grievance of this fact. The aggrieved employee has a period of five working days in which they may take the grievance to Level Two. The aggrieved employee is required to inform the Union and the Regional Executive Director.
41.9 Level Two - Regional Grievance Committee (a) At this stage, the matter should be considered formally by the Regional Grievance Committee. (b) A Regional Grievance Committee is constituted within ten working days for each grievance at this level. The Regional Grievance Committee is made up of a senior employee nominated by the Director General and one Union member nominated by the President of the Union. A person who has initiated a grievance or is the subject of a grievance is not to be a member of an Regional Grievance Committee dealing with that grievance, even if he or she would normally be a member under the preceding provisions. (c) At this stage, the Regional Grievance Committee should attempt to resolve the issue so that it can be referred back to the school for implementation. (d) If the Regional Grievance Committee believes the issues raised by the grievance have system-wide ramifications, the committee may seek advice from the Director General and the President of the Union or their nominees and take such advice into consideration in determining the grievance.
41.10 Resolutions of the Regional Grievance Committee are binding on all employees to the grievance.
41.11 Where the Regional Grievance Committee is unable to reach an agreed resolution, the issue may be raised at a formal meeting of the EREC-ICG.
9 At [33]: ‘[The employer’s] first submission was that, at least on its express terms and in particular its opening sentence, cl 46.5(h) imposes obligations on a Dispute Committee, but not on [the Employer] itself. [The employer], like the staff member in respect of whom disciplinary action is contemplated, is a participant in the proceedings before the Committee. It does not control the activities of the Committee or the manner of conduct of its proceedings. Other provisions in the Collective Agreement relating to the establishment of Dispute Committees, which it is unnecessary to quote presently, indicate that they are to operate with some degree of independence of [the employer]. I accept this submission.’
10 42 DISPUTE SETTLEMENT PROCEDURE
This dispute settlement procedure is for the purpose of resolving any questions, difficulties or disputes that are not the subject of individual grievances, which are to be dealt with according to Clause 41 - Grievance Resolution Procedure of this Agreement. This dispute settlement procedure is intended to address questions, difficulties or disputes that include such matters as: (a) the interpretation or application of this Agreement; or (b) the application of system-wide policies or decisions; or (c) conditions of employment (including entitlements to salary, leave and the like); or (d) equal employment opportunity and occupational safety and health matters or other matters provided for in Acts and Regulations.