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VIC Interpret Conflicting Clauses in EBA?

Discussion in 'Employment Law Forum' started by saratoga, 19 October 2014.

  1. saratoga

    saratoga Member

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    Hi. I'm after some insight into what appear to be somewhat conflicting clauses in an enterprise agreement ( EBA).

    It revolves around who can represent a staff member in a review of a redundancy decision before a review committee at a University.

    On the one hand in clause 47.10 the staff member may choose to be assisted or represented by an agent of their choosing who is a staff member of the university

    On the other hand in clause 11.2 it states that the Committee shall: allow the staff member to the represented by the Union or other Representative of their choice.
    (my emphasis with the underlining)

    The term "agent" is not defined under the definitions in the Enterprise Agreement.

    The term "Representative" is defined under the definitions as: "Representative"means a person chosen by the staff member but not a practising barrister or solicitor.

    I have put some more details of the clauses below. Apologies the post is so long for a newcomer.

    cheers

    saratoga


    Review Committee

    Under clause 47.9 it states: An application for a review will be referred to a Review Committee convened in accordance with clause 11, within 10 days.

    Under clause 47.10 it states: The staff member and the Vice-Chancellor may choose to be assisted or represented by an agent of his/her choosing who is a staff member of the University (but not if such a person is a currently practising solicitor or barrister).

    When we refer to Clause 11

    11. COMMITTEES AND CHAIRPERSONS
    11.1 The review or appeal committees specified in clauses 47, 53, and 54 of this Agreement shall consist of three members as follows:
    (a) A nominee of the Vice-Chancellor;
    (b) A nominee of the President of the Monash University NTEU Branch; and
    (c) An independent Chair appointed in accordance with this clause.

    11.2 Each committee in undertaking its role shall:
    (a) allow the staff member to be represented by NTEU or other Representative of his/her choice;
    (b) allow the University to be represented by an agent of its choice, but not a practising barrister or solicitor;
    (c) provide an opportunity for the staff member, NTEU or other representative of the staff member and the University representative to make submissions, and present and respond to written or oral evidence in relation to the matter before the committee, and take into account such further materials as it believes appropriate to determine the facts in dispute;
    e) ensure that the staff member, NTEU or other representative of the staff member, and the University or its representative has the right to ask questions of witnesses, where appropriate;
    (f) conduct all interviews in the presence of the staff member, NTEU or other Representative of the staff member, and the University representative and/or the Divisional Director, Human Resources or his or her representative;
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Saratoga,

    This is my understanding:

    If agent and representative take the same meaning:
    1. a person can elect to be represented by any representative of their choice, including a union (clause 11.2).
    2. Further, this representative can be an agent who is a staff member of the university (clause 47.10).

    If agent and representative take difference meanings, then you will need to ascertain:
    1. What is the definition of an "agent" and what is its authority?
    2. What is the definition of a "representative" what what is its authority?
    To ascertain this, try and find out where "agent" and "representative" was first mentioned and see what the context surrounding each word is. In law, agent and representative take the same meaning. In business, for example, they have vastly different meanings and legal ramifications. Therefore, it may be the case that in the context of your contract, agent and representative mean different things, or perhaps agent is a subset of representative. Or perhaps representatives have limited power to represent, while agents act as if the staff member was acting.

    I cannot comment on whether it is meaning one or meaning two without knowing the other provisions of the contract and the contract as a whole. Unfortunately, definitions in a contract often turn on the construction of the full contract and the contract as a whole.
     
  3. saratoga

    saratoga Member

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    Hi Sarah and thank you for your reply.

    The term agent is only used twice in the whole Enterprise Agreement and it is in those clauses referred to above. It is not defined anywhere. Representative is clearly defined under the definitions of the EA and is used on numerous occasions.
    Note that in Clause 11.2 (a) and (b) above the two terms are used in consecutive lines.
    Basically by trying to enforce 47.10, the University is saying we must be represented by an agent.As stated this clause is permissive as in may choose.
    I have since been advised that clause 11.2 is mandatory in that it states shall allow and there is no question that the staff member can be represented by the Representative of their choice.
     
  4. Sarah J

    Sarah J Well-Known Member

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    Hi Saratoga,

    Unfortunately, this appears to be the product of poor drafting.

    I do agree that shall allow is mandatory while may choose is permissive.

    Best of luck with this. Hope the negotiations/review work out.
     

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