s.739 - Dispute resolution

Application under s 739 - application dismissed

• [1] The following is an edited version of a decision delivered ex tempore on transcript earlier today, to which I have added a brief introduction.

• [2] Jenny Zhang has made an application under s 739 of the Fair Work Act 2009 (Act) and the dispute resolution procedure in clause 1.42 of the University of Melbourne Enterprise Agreement 2024 (2024 Agreement) by which she refers to the Commission for arbitration a dispute that exists between her and her employer, the University of Melbourne (University). In her application, Ms Zhang states that the dispute is about clause 2.6.2 of the 2024 Agreement, which prescribes conditions that must be met before the University can engage an academic employee on a fixed-term basis. One of these is that the relevant work 'is not required on an ongoing basis' (clause 2.6.2.4(a)). Ms Zhang refers to this as the 'work requirement'. Another condition is that the 'position' must not require the same or similar work to be performed for a period in excess of five years (clause 2.6.2.4(b)).

• [3] Ms Zhang was employed by the University in late 2021 on a fixed-term contract that expired on 3 January 2025. The term was later extended to 8 June 2025. At the time of her engagement, Ms Zhang became covered by the University of Melbourne Enterprise Agreement 2018 (2018 Agreement), which was relevantly in the same terms as the 2024 Agreement. In late 2023 and early 2024, Ms Zhang and a number of other fixed-term academics were told that their fixed-term contracts would not be extended, and that when their contracts expired, their duties would be absorbed by two different cohorts of employees, one comprised of lecturers and the other of research associates. Ms Zhang and various other fixed-term academics objected to this. They consulted the National Tertiary Education Union (NTEU), which in November 2024 made an application under s 739 of the Act in terms similar to the one Ms Zhang now brings in her own right. The NTEU's application was discontinued after a settlement agreement was reached between the union and the University. By that time however, Ms Zhang had advised the NTEU that it no longer represented her. She was therefore not bound by the terms of the settlement agreement.

• [4] By her application, Ms Zhang seeks a determination from the Commission that the University's engagement of her on a fixed-term contract contravened clause 2.6 of the 2024 Agreement because it engaged her to perform work that is required on an ongoing basis. The application also appears to allege a contravention of the 2018 Agreement. Ms Zhang seeks an order that, to cure its contravention or contraventions, the University must now convert or appoint her to an ongoing academic position. Alternatively, if the Commission concludes that it does not have jurisdiction to do these things, Ms Zhang seeks a recommendation in the terms of her proposed determination and order.

• [5] Ms Zhang's application is beyond the Commission's jurisdiction. Any contravention of the work requirement or the 5 year requirement could only have occurred at the time of Ms Zhang's engagement in 2021, when the 2018 Agreement applied. The 2018 Agreement ceased to operate when the 2024 Agreement was made. Ms Zhang brings her application under the dispute settlement procedure in clause 1.42 of the 2024 Agreement, which applies to 'employment grievances and disputes arising from the application of this Agreement and the relevant provisions of the NES'. Her dispute relates to the 2018 Agreement and to events that occurred before the 2024 Agreement was made. The 2024 Agreement does not authorise the Commission to determine disputes of this kind.

• [6] Even if the dispute were to be regarded as one somehow arising under the 2024 Agreement, it would be misconceived. Clause 2.6.2.4 of the 2024 Agreement, and its equivalent in the 2018 Agreement, stipulate that in order for the University to be able to engage an academic on a fixed-term basis, it must be the case that the 'work is not required on an ongoing basis', and that the position 'requires the same or similar work to be performed for a period not in excess of five years'. In my view, the question of what work is 'required' is determined by the University's subjective but genuine assessment of its own operational needs. But let us assume, favourably to Ms Zhang, that it contemplates an objective assessment of whether the University needs the work to be done on an ongoing basis and for less than five years. It is obvious in my view that any such assessment is to be conducted as at the time of the relevant fixed-term engagement. Ms Zhang's argument is that years later, it has transpired that her duties will be subsumed by other staff, and that therefore the work is needed on an ongoing basis. This argument is of dubious validity for other reasons (if Ms Zhang's various duties are disaggregated and distributed among two other groups of employees, then it is no longer the same or similar work. But more fundamentally, the argument is illogical because it adopts the wrong standpoint in time. To establish a contravention of clause 2.6.2.4 of the 2024 Agreement or its equivalent in the 2018 Agreement, it is necessary to show that when the academic was employed on a fixed-term basis, the work was required on an ongoing basis, or for a period exceeding 5 years, as at that time. Ms Zhang does not make this contention, nor is there anything before the Commission to suggest that there is any basis for such a contention. Plainly in this case, when Ms Zhang was engaged on the fixed-term contract, the relevant work was not needed on an ongoing basis, nor did the position require the same or similar work for a period in excess of 5 years.

• [7] For this reason, even if I had concluded that the Commission had jurisdiction to determine this matter under the dispute resolution procedure in the 2024 Agreement, I would have determined that the University had not contravened clause 2.6.2.4 of the 2024 Agreement or its equivalent in the 2018 Agreement.

• [8] Moreover, I decline to make the recommendation sought by Ms Zhang, because it would be contrary to the terms of the 2024 Agreement. More generally, I consider that the University has done nothing wrong, and that Ms Zhang's case lacks merit. Ms Zhang agreed to a fixed-term contract in 2021. She wants the University to offer her a new contract of employment as a permanent academic. But there is no reason why it should do so. Ms Zhang believes that it is unfair that her old duties are to be distributed to other employees. In my view, it is fair that the parties abide by the agreement that they freely entered into in 2021. That agreement was a fixed-term contract.

• [9] The dispute is determined accordingly.

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