Fair Work Act 2009

s.615 - the President may direct a Full Bench to perform a function etc.

Request for referral of application under Fair Work Act 2009 (Cth) s 217 to a Full Bench - Fair Work Act 2009 (Cth) s 615 - request refused.

[1] On 10 October 2022, Monash University (Monash) filed an application under s 217(1) of the Fair Work Act 2009 (Cth) (FW Act), seeking that the Commission vary the terms of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (Agreement) to remove ambiguity or uncertainty (s 217 application). In the s 217 application, Monash seeks to add further text into Schedule 3 of the Agreement which is titled "Teaching Associate Sessional Rates Descriptors". Specifically, Monash seeks that the following underlined phrases be added:

For the purposes of payment of a tutorial or repeat tutorial rate, "associated work" may encompass the following activities:

contemporaneous consultation with students involving face-to-face and email consultation prior to and following a tutorial. For the avoidance of doubt, "contemporaneous consultation" means consultation associated with a tutorial that occurs proximate in time to the tutorial, for example, within a week before or after the relevant tutorial but prior to the next tutorial, and may be scheduled by either the Teaching Associate or the University.; and

For the purposes of payment of a lecture or repeat lecture rate, "associated work" may encompass the following activities:

contemporaneous consultation with students involving face-to-face and email consultation prior to and following a lecture. For the avoidance of doubt, "contemporaneous consultation" means consultation associated with a lecture that occurs proximate in time to the lecture, for example, within a week before or after the relevant lecture but prior to the next lecture, and may be scheduled by either the Teaching Associate or the University.

[2] Monash contends that these variations would clarify the meaning of "contemporaneous consultation" in Schedule 3 of the Agreement such that it would include consultation that occurs proximate in time to a lecture or tutorial but is not immediately before or after, and also includes consultation that has been scheduled by Monash. If made, Monash sought that its proposed variations to the Agreement operate retrospectively from the date the Agreement came into operation i.e. 12 February 2020.

• [3] The s 217 application is currently allocated to Deputy President Bell and is opposed by the National Tertiary Education Industry Union (NTEU). Separately, the NTEU has commenced a proceeding against Monash in the Federal Court of Australia alleging contraventions of s 50 of the FW Act arising from non-compliance with the consultation requirements of the above provisions (Federal Court proceeding). The Federal Court proceeding has been stayed pending the determination of the s 217 application.[1]

[4] On 3 March 2023, the NTEU applied for the s 217 application to be referred to a Full Bench of the Commission pursuant to s 615 of the FW Act.

[5] Section 615 of the FW Act provides that I may direct a Full Bench to perform a function or exercise a power:

1. The President may direct a Full Bench to perform function etc.

• (1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

• (2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

• (3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

[6] It is well-settled that s 615 of the FW Act confers a broad discretion upon the President to direct that a function or power be exercised by a Full Bench. I note that the NTEU has not suggested that the public interest would require me to refer the matter under s 615A.

[7] The NTEU submits that the s 217 application should be referred to a Full Bench for the following four reasons:

1. Contested applications under s 217 of the FW Act are relatively rare and the principles governing the Commission's discretion in this area are not well‑established. The s 217 application raises significant questions of law, the resolution of which will have an impact beyond the application itself.

1. In the event that ambiguity or uncertainty is found, the Commission should decline to exercise its discretion to vary the Agreement on the basis that the variations would operate to destroy all or part of the subject matter of the Federal Court proceeding. Whether the effect on the Federal Court proceeding is relevant context for the exercise of the Commission's discretion under s 217 of the FW Act should uncertainty or ambiguity be found to exist is to be determined by the proper construction of that section.

1. Underpayment of casual academics in the higher education sector is an endemic problem. The Fair Work Ombudsman has indicated that universities will be a compliance and enforcement priority in this regard, and has already commenced proceedings against the University of Melbourne for alleged underpayment of casual academics. In this context, the application and its determination have the potential to affect decisions made by parties involved in separate underpayment proceedings or investigations, and may attract a high level of attention.

1. The terms in issue in the s 217 application are similar to those used in other enterprise agreements in the higher education sector and the outcome of the matter would therefore have implications for a wider group of casual employees beyond those covered by the Agreement.

[8] Monash filed submissions on 10 March 2023 opposing the referral of the s 217 matter to a Full Bench. In response to the four matters raised by the NTEU, it submits:

1. The task of how the Commission is to determine a s 217 application is well settled and has been comprehensively articulated by a Full Court of the Federal Court.

1. The existence of a concurrent proceeding is not novel and is a matter that can be dealt with by the Deputy President pursuant to s 578 of the FW Act.

1. The s 217 application does not involve allegations of underpayment. If the Commission declines to exercise the discretion in s 217 of the FW Act, it would not result in a finding that there has been underpayment of any Monash employee.

1. There is diversity in the wording of enterprise agreements in the higher education sector as they relate to student consultation. Accordingly, whether ambiguity or uncertainty is found to exist in the Agreement is unlikely to have any bearing on these other universities and their employees.

[9] Monash also notes in its submissions that the hearing of the s 217 application is likely to involve a significant amount of evidentiary material as well as contested evidence from multiple witnesses based on its progress to date before Deputy President Bell. It submits that there would be no barrier to either party applying to the Commission for permission to appeal any decision of the Deputy President pursuant to s 604 of the FW Act. If this eventuated, it would mean the Full Bench could determine any questions of law with the assistance of the Deputy President's factual findings.

[10] For the following reasons, I decline to exercise my discretion to refer the s 217 application to a Full Bench.

• [11] First, I do not accept that the principles applicable to the determination of the s 217 application are other than well-established. As Monash submits, the principles concerning the proper construction and application of s 217 were comprehensively stated by a Full Court of the Federal Court in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union,[2] in part by reference to previous decisions of this Commission and its predecessor tribunal. Accordingly, I do not consider that the matter is likely to give rise to any novel question of law or general principle.

• [12] Second, while there is no reason why a Full Bench cannot deal efficiently with a matter involving a significant amount of contested evidence, the Deputy President will nonetheless be in a position to hear the matter sooner than a Full Bench would be. The Deputy President has listed the matter for hearing on 18 and 19 May 2023, but it is unlikely that a Full Bench could be constituted which can hear the case nearly as early as this. Further, it must be taken into account that the constitution of a Full Bench of three or more members to hear a matter of any length will necessarily diminish the Commission's capacity to allocate such members to hear other cases as quickly as possible (see s 577(1)(b) of the FW Act).[3]

[13] Third, whether or not underpayment of casual academics is "endemic", as submitted by the NTEU, the s 217 application is not itself directly concerned with any such issue and, as such, that issue does not provide a justification for a Full Bench referral. I accept that it is likely that the outcome of the s 217 application will have important implications for the Federal Court proceeding, but this is the case because the Court has stayed that proceeding pending the determination of the s 217 application. Whether any effect upon the Federal Court proceeding should be taken into account and given weight in the exercise of the discretion under s 217, should ambiguity or uncertainty be found, is not itself an issue of sufficient importance or novelty to require Full Bench determination in the first instance. Further, the issue may not arise for consideration at all if the requisite ambiguity or uncertainty is not found.

[14] Fourth, the material before me does not satisfy me that the outcome of the s 217 application is likely to have significant consequences for other enterprise agreements in the university sector.

[15] The s 217 application will not be referred to a Full Bench and will remain with the Deputy President for hearing and determination.

[1] NTEU v Monash University [2022] FCA 1368

[2] [2020] FCAFC 50, 275 FCR 385

[3] Case management must take into account effects upon the overall convenience of the court/tribunal and other cases and litigants: see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175 at [93]- [95].

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