Fair Work Act 2009

s.739 - Application to deal with a dispute

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 7 February 2025 Dr Yifei Ren (Dr Ren) filed an application (Application) pursuant to section 739 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) to deal with a dispute with Curtin University (Curtin) pursuant to the dispute resolution procedure contained in clause 65 of the Curtin University Enterprise Bargaining Agreement 2022-2025 (Agreement).

[2] The dispute concerns Dr Ren's entitlement to apply for conversion to continuing employment pursuant to clause 12.5 of the Agreement.

[3] On 5 March 2025 and 10 April 2025 the parties participated in a conciliation, but the issues in dispute could not be resolved.

[4] Directions for the filing of materials in advance of a hearing were issued to the parties on 6 March 2025 and amended directions on 2 July 2025 (Directions). The Application was listed for hearing in person in Perth on 15 September 2025 (Hearing).

• [5] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

[6] Curtin sought permission to be represented at the Hearing.

[7] Having considered the submissions of the parties, leave was granted to Curtin to be represented pursuant to section 596(2)(a) of the FW Act on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[8] At the Hearing, Mr Tom Ledger of Pragma Lawyers (Mr Ledger) appeared on behalf of Curtin and Dr Ren appeared on his own behalf.

• [9] Dr Ren filed a witness statement setting out his own evidence in chief[2] and a witness statement setting out the evidence in chief of Professor Iain Murray (Professor Murray).[3] Professor Murray is the Deputy Head of School within the School of Electrical Engineering, Computing and Mathematical Sciences (EECMS). Professor Murray was Dr Ren's supervisor during Dr Ren's employment with Curtin.

[10] Dr Ren and Professor Murray were cross examined by Mr Ledger at the Hearing.

• [11] Curtin filed two witness statements setting out the evidence in chief of Professor Kate Brooks (Professor Brooks).[4] Professor Brooks is the Head of School within EECMS. Professor Brooks was cross examined by Dr Ren at the Hearing.

• [12] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties which was admitted at the Hearing and marked as an exhibit (DCB).[5]

[13] Written closing submissions were filed by Dr Ren on 15 October 2025 and by Curtin on 29 October 2025.

[14] In reaching my decision I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for my decision.

[15] Curtin is a public university based in Western Australia with a number of overseas campuses.

• [16] Dr Ren holds a doctoral degree of philosophy from the University of Wollongong.[6]

• [17] Dr Ren commenced employment with Curtin in the EECMS on 10 August 2020. He was engaged pursuant to a fixed term contract dated 10 July 2020[7] expiring on 4 February 2022. Dr Ren was engaged in the position of Teaching Focused Academic Level B to fill a temporary teaching vacancy in EECMS (First Contract).[8] Dr Ren was appointed to the role following an internal competitive merit based recruitment process. The First Contract was funded by student fees.[9]

• [18] On 10 February 2021, Curtin advertised for two "Research Associate" positions within a new "Cisco - Curtin Centre for Networks" (CFN), based within EECMS.[10]

• [19] Cisco is a multinational technology company that develops, manufactures and sells networking hardware, software and telecommunications equipment. Cisco has funded different projects and schools within Curtin for approximately 20 years.[11]

• [20] The CFN was established in 2019 pursuant to the Cisco-Curtin Research Collaboration Agreement (Collaboration Agreement).[12] Co-funded by both Curtin and Cisco, the goal of the CFN was to create a Digital Network Architecture Centre development and test environment available to Curtin, Cisco and channel partners. The funding was intended to cover activities in training, research and promotion and cover the salaries of a new Professorial appointment and two new postdoctoral fellow appointments.[13]

[21] In June 2021, Cisco and Curtin appointed two interim co-chairs to establish the CFN;

these were Cisco-visiting Professor Reza Nejabati from the University of Bristol in the United Kingdom (Professor Nejabati) and Professor Murray from EECMS. There were several challenges in relation to Professor Nejabati's appointment and he never relocated to Perth to take on the appointment. This put a strain on the Cisco-Curtin relationship.[14]

• [22] On 23 September 2021, Dr Ren attended an interview for the position of Research Associate - Network Orchestration (Centre for Networks Postdoctoral Fellow). Dr Ren was subsequently recommended for the position. As part of creating a new appointment, Curtin's administrative processes require a "Request for Occupancy" (RFO) to be generated and approved, which captured the business case for Dr Ren's employment. In that document the 'funding details' outline that the role Dr Ren was recommended for was 100% externally funded by Cisco, and in terms of appointment rationale, it stated "Conduct research for the Centre for Networks".[15]

• [23] After a merit based selection process Dr Ren was subsequently offered a contract dated 20 December 2021 for a fixed term full-time position in the role of Research Academic (Second Contract). The Second Contract commenced on 4 February 2022 and expired on 7 February 2025. Under the terms of the Second Contract Dr Ren reported to Professor Murray.[16]

• [24] From 19 March 2019 to 7 November 2023, Cisco provided funding of $1,800,000 to the CFN. This funded, in addition to Dr Ren's salary, the salaries of Mr Himanshu Himanshu, Professor Murray (in part) and Mr Prabath Rupasinghe, and other direct research costs.[17]

• [25] After the first three years of the Collaboration Agreement, it was extended for an additional year to 31 July 2022. The budget was significantly underspent, largely because of the unsuccessful hiring of the Centre's Professorial Chair. After 31 July 2022, the Collaboration Agreement lapsed. During this period, Curtin continued to operate the CFN with an interim Chair (Professor Murray) and utilising the remaining Cisco funds.[18]

• [26] In November 2022, Cisco engaged Vector Consulting to identify ways to improve the effectiveness of the Cisco-Curtin funding relationship.[19]

• [27] On 27 September 2023, Professor Brooks attended a Microsoft Teams meeting with Cisco and Curtin representatives. Cisco indicated at this meeting that they were disappointed with the impacts and deliverables that the CFN had produced thus far. Cisco indicated that it was interested in becoming involved instead with Curtin's new Trailblazer initiative and had started conversations with Curtin's Trailblazer team. The Trailblazer team is the leadership and operational staff involved in the Resources Technology and Critical Minerals Initiative, which is a collaborative effort with the University of Queensland and James Cook University. The team works to drive the commercialisation of university research and the development of innovative solutions for the critical minerals sector.[20]

• [28] On 12 March 2024, a meeting was held between the Cisco-Curtin Governance Board. At that meeting, it was decided that Cisco would discontinue its funding for the CFN and instead redirect its funding to Curtin's Trailblazer initiative. The decision to close the CFN was made by the Cisco-Curtin Board, of which Professor Brooks is not a member.[21]

• [29] The decision to close the CFN impacted three staff members whose employment was externally funded by Cisco, one of those being Dr Ren. On 13 March 2024, the EECMS Business Manager Ms Denise Capes and Professor Brooks met with all affected staff together in person and notified them of the closure of the CFN. The affected CFN staff were told that alternate funding within the EECMS school budget and alternate duties would be found until the expiry of their fixed term contracts. Professor Brooks is adamant that at no stage did she make any representation that the roles would be continuing beyond the expiry of the fixed term contracts.[22]

• [30] The CFN was subsequently closed in April 2024. At the time that Cisco made the decision to close the CFN, the total funds carried forward at 30 June 2023 were $1,577,919.37. The Board had agreed to a Cisco-Curtin split of $802,709.69 (Cisco) and $775,209.69 (Curtin). Cisco have since re-directed their share ($802,709.69) to other initiatives across Curtin including the Trailblazer initiative and Curtin Singapore. The Curtin share was returned to the Curtin Research Office.[23]

• [31] After the in-person meeting, each staff member was instructed to work with Deputy Head of School, Professor Tele Tan (Professor Tan). Professor Tan was to become their new line manager and was to manage the shift from a role within the CFN to a role within the EECMS for the balance of their fixed term contracts.[24]

• [32] To facilitate funding for the three impacted staff members until the expiry of their fixed term contracts, Professor Brooks sourced around $600,000 in funding out of the EECMS budget to pay for their salaries for the balance of their fixed term contracts.[25]

• [33] It took approximately six weeks after the CFN was closed to document contract variations for the three affected staff and finalise the funding arrangements using the EECMS teaching budget. All three staff were given the opportunity to gain additional teaching experience and become involved in delivering degree units.[26]

[34] To facilitate Dr Ren performing different duties Dr Ren's contract was required to be varied from a "research only" role (a type of role that is contingent on external funding and has limitations regarding teaching) to a role that required both teaching and research.

• [35] On 18 June 2024, the variation to Dr Ren's contract was finalised (Varied Contract). The notes to the Varied Contract relevantly state that:[27]

"Yifie had a 3-year contract with the Cisco Centre for Networks. The Centre closed in June 2023 and Cisco took the decision to not renew funding for the Centre in early 2024. Curtin will honour the full term of Yifie's contract (to Feb 2025). His contract will vary from a research academic to teaching and research academic for the remainder of his contract".

• [36] The rationale for the academic role change is described in the Varied Contract as follows:[28]

"Yifei was originally employed as a Research Associate on a three year fixed term Research Only contract with the position sitting in the Centre for Networks. When reviewing Agreement renewal with CISCO, it was agreed that the Centre would no longer continue after the initial agreement ended which was 29.6.23. With Yifei still having some time to go to complete his contract, the school then agreed to support him to move across into a teaching and research project within the school. This VTC is to formalise this support and move him from a research only to a research and teaching salary, with the school supporting Yifei's salary commitment from 30.6.23 onwards through its Operational Teaching Budget. His position has already been moved out of Centre for Networks c-level and into the School."

• [37] While the notation seems to suggest that the varied contract provided for ongoing employment this appears to be an error as both parties proceeded on the basis that Dr Ren was only employed under the Varied Contract until the original expiry of the Second Contract. This was evidenced in subsequent correspondence authored by Dr Ren[29] and acknowledged by Dr Ren in cross examination [30]and Professor Murray.[31]

• [38] The Varied Contract described Dr Ren's role as "Teaching and Research Academic".[32] During the term of the Varied Contract, Dr Ren taught the following units:[33]

a. CMPE3001Embedded Systems Engineering (Semester 2 2024); and

• [39] This teaching was to backfill for EECMS staff Dr Siavash Khaksar (who was on secondment in 2024) and Dr Anuradhi Welhenge (who was on a study tour in 2024). Curtin say that this teaching gap does not exist in 2025.[34]

• [40] It is clear that Dr Ren understood that his employment under the Varied Contract was for a finite period of time because between July 2024 and February 2025, Dr Ren made a number of requests for conversion from a fixed term appointment to a continuing appointment pursuant to clause 12.5 of the Agreement. [35] There is no dispute that the Agreement, which commenced operation on 19 October 2023, covered Dr Ren's employment.[36]

[41] Clause 12.5 of the Agreement provides as follows:

"12.5 Conversion of Fixed Term Appointment to Continuing Appointment

(a) This clause will not apply to an Employee appointed in accordance with:

(i) clause 14 (Curtin Research Contracts);

(ii) clause 15 (Aboriginal and Torres Strait Islander Employment).

(b) Where an Employee has been engaged on 2 or more consecutive Fixed Term Appointments and those Appointments were in the same Faculty or area for a combined period of at least 2 years, the Employee is eligible to apply for Continuing Appointment status.

(c) Where an Employee is eligible to apply for a Continuing Appointment, the University will offer the Employee a Continuing Appointment, provided that:

(i) they are undertaking work of a continuing nature;

(ii) they were appointed through a merit selection process for at least one of the Fixed Term Appointments; and

(iii) they are meeting and maintaining University work performance expectations and have demonstrated the capacity to meet the performance expectations required in the continuing role.

• (d) The University may refuse to appoint an Employee to a Continuing Appointment in accordance with clause 12.5(c)on reasonable grounds. Where the University does so refuse the reason(s) for the refusal will be provided to the Employee in writing."[37]

• [42] On 2 July 2024, Dr Ren made a written request by email to Professor Tan, to apply for a conversion to a continuing role. In the request Dr Ren set out the courses he had developed and/or delivered over the previous four years, described the research papers he had published, outlined the student supervision he had undertaken, identified the courses he was currently delivering and explained how he could contribute to projects which the University was or might sponsor. [38]

• [43] On 2 September 2024, Professor Tan provided a written response via email, informing Dr Ren that his request was denied due to an anticipated lack of growth in new units and the availability of current staff to fulfil the University's teaching, research and supervision requirements.[39]

• [44] Dr Ren disputes this response asserting that EECMS lecturers, including himself were experiencing excessive workloads[40]. Professor Brook acknowledges that during the academic year some lecturers may experience heavier workloads however the University works with them to manage their workloads. Her evidence is that the additional workload was not sufficient to justify the creation of a new continuing teaching role for Dr Ren.[41]

• [45] On 13 September 2024, a representative of the National Tertiary Education Union (NTEU), made a further written request to Professor Tan on behalf of Dr Ren. [42] Dr Ren asserts that:

"No response was received by the union by the nominated deadline of 20 September 2024. This email was not replied or contested."

• [46] However the evidence is that on 27 September 2024, Professor Tan responded to the NTEU via email, advising that Dr Ren's conversion request had been denied, due to current ongoing staff covering the teaching load that Dr Ren had previously been backfilling. [43]

• [47] On 25 October 2024, an all-staff email from Professor Murray announced that he had been seconded to the WA School of Mines (WASM) and foreshadowed that Dr Ren would join him to work on the Trailblazer Digital Stack and Open Process Control Lab projects.[44] The WASM sits within a different School to EECMS. Professor Brooks has no authority over and is unable to make appointments to WASM.[45]

• [48] On 13 December 2024, EECMS circulated a job advertisement for two new academic positions: Lecturer/Senior Lecturer in Power Systems Engineering, and Associate Lecturer - Capstone Project Academic Lead. Dr Ren says that these positions clearly fell within his expertise and demonstrated a need for staff in the areas he was already actively teaching and supervising.[46]

• [49] On 16 December 2024, Dr Ren met with Professor Tan to discuss what Dr Ren believed was a contradiction between the recruitment campaign and Professor Tan's earlier justification for denying his conversion. [47]

• [50] The evidence is that while EECMS had recruited for new roles these roles did not align with Dr Ren's expertise or the other two redundant staff from the CFN and that it was not appropriate to appoint Dr Ren or the other redundant employees to these roles. However, Dr Ren was encouraged to apply for the roles if he believed he was appropriately qualified.[48]

• [51] The same day, Dr Ren sent an email to Professor Tan requesting that Professor Tan provide further information about the operational reasons why his request for conversion had been denied and querying how his honours students projects would be managed in his absence.[49] On the same day, Professor Tan responded to Dr Ren's request, again denying the request on the same basis as his 2 September 2024 response. [50]

• [52] On 17 December 2024, Professor Tele sent an email to Dr Ren referring to Professor Murray's email of 25 October 2025 and asking Dr Ren to confirm what arrangements Professor Murray had made to move Dr Ren's employment to the WASM. Dr Ren replied the same day. In the email Dr Ren acknowledges that retaining him within EECMS in the absence of Dr Ren's involvement in these two projects would impose a financial burden on EECMS of the cost of a 'new hire'. In the same email Dr Ren stated that in the absence of a continuing appointment by EECMS that he anticipated being offered a contract for a new position at the WASM.[51]

• [53] On 17 December 2024, Dr Ren emailed Professors Tan and Brooks setting out the contributions he had made to ECCMS and requesting that they again consider converting his current fixed term position.[52]

• [54] Professor Tan responded by email on 20 December 2024 explaining that the EECMS were unable to offer him continuing employment but that he would be more than happy to assist in Dr Ren's transfer to WASM if they identified a position for him.[53]

• [55] On 6 January 2024, Dr Ren emailed Professors Tan and Brooks again, highlighting the inconsistency between the refusal and the active recruitment for academic positions in areas which he asserted aligned with his work.[54]

• [56] Professor Brooks gave evidence that as a result of Dr Ren's various conversion requests, that she and Professor Tan consulted with the relevant Discipline leads to consider Dr Ren's request considering the type of work Dr Ren was employed to complete under the Second Contract, the work he was undertaking on a temporary basis under the Varied Contract, and the operational requirements of Curtin moving forward. [55]

• [57] The work Dr Ren had been performing under the Second Contract ceased when Cisco withdrew its funding. Professor Tan and Professor Brooks concluded that there was not a continuing need for Dr Ren to perform the work that he had been performing under the Varied Contract, because the temporary teaching gap he was filling was expected to be fully resourced moving forward.[56]

• [58] In relation to the future operational requirements of EECMS Professor Brooks explained that EECMS covers a wide range of teaching and research capabilities across engineering computing, mathematical sciences, physics and astronomy. She says that the School's strategy for recruitment reflects the anticipated growth in student enrolments as a result of the job market. According to Professor Brooks, in Perth this is in Power Engineering, Software Engineering, Data Science, Machine Learning and AI. According to Professor Brooks since February 2025, EECMS has been recruiting for five roles in these areas. She says that as these roles did not align with Dr Ren's expertise or the other two redundant staff from the CFN it was not appropriate to appoint Dr Ren or the other redundant employees to these roles. However, it was open for Dr Ren and the other two staff to apply for these roles. However, Dr Ren was encouraged to do so if he believed he was suitable for the roles.[57]

• [59] For Dr Ren to continue as a staff member in the EECMS, Professor Brooks says she would have had to create a new continuing position for Dr Ren to move into. Her evidence is that all new positions require a business case detailing the teaching need for a new role and confirm funding availability. Professor Brooks says that she did not do so because there was no business need for a new role in the area that Dr Ren is specialised in. No new teaching units were planned and there was no anticipated growth in student numbers.[58]

• [60] She says that there was no ongoing need for an additional teaching role within Dr Ren's speciality for a variety of operational reasons, primarily because of the direction the Faculty took in 2024 to move away from delivering a course in Computer Engineering (Dr Ren's area) and all of 2025 units were adequately taught by existing staff.[59]

• [61] Consequently, on 14 January 2025, Professor Brooks responded via email to Dr Ren stating that his request for conversion was denied because his role was not of a "continuing nature" and that the recruitment of new staff was unrelated to his position.[60]

• [62] On or around 17 January 2025, Dr Ren commenced a dispute under clause 65 of the Agreement by emailing Professors Tan and Brooks, and other senior Curtin executives, including the Provost and Chief People Officer.[61]

• [63] On or around 22 January 2025 Professor Tan advised Dr Ren that his conversion request was denied and that all attempts to resolve the dispute at a local level had been exhausted, in accordance with clause 65.4 and 65.5 of the Agreement allowing Dr Ren to escalate the dispute.[62]

• [64] On 23 January 2025, Dr Ren escalated the matter to Ms Melisa Kaharevic (Head of People and Culture) in writing, in accordance with clause 65.4 and 65.5 of the Agreement. In his correspondence he asserted that his role was continuing because he was the only person holding a security clearance for a defence project, units he had previously delivered remained on the curriculum, various ongoing projects required his skill sets and the University was recruiting for roles for the same position as his current role. [63]

[65] On 3 February 2025 a representative of Ms Kaharevic informed Dr Ren that his conversion request had been denied and provided reasons as to why this decision had been made, in accordance with clause 65.4 and 65.5 of the Agreement.[64]

"As per clause 12.5 (d) of the Agreement your request to convert your Fixed Term appointment to a Continuing appointment was refused on reasonable grounds. "This is due to the lack of anticipated growth in new units and the availability of current staff to fulfil teaching requirements."

I confirm that the School's position has not changed. No new units are being introduced in 2025 that require a new continuing appointment with your area of expertise. In 2024, you were covering a temporary teaching gap created by two other staff members. They have since returned and are ready, willing and able to resume their duties in 2025.

You have alleged that the University cannot rely on business grounds to reduce to offer you continuing employment because of current recruitment in EECMS and core units you taught in 2024. We note that recruitment occurs frequently across various disciplines and research areas within the school. Recruitment is conducted on an as needed basis, driven by teaching and research requirements. None of the roles that are currently advertised seem to relate to your academic and research capability. However, you are welcome to apply for any vacant positions and it will be the role of the panel to determine suitability for such appointments.

In relation to the units referenced in your dispute, you were assigned teaching of these units to provide temporary coverage for 2 other employees. They have since retuned and will recommence teaching. The school hold meetings in November of each year with Discipline and Course Major Leads to allocate teaching for the following year to available staff. The 2025 teaching requirements are being filled by current continuing and fixed term staff plus sessional staff to meet short-term teaching demands. In 2024, you were filling a gap that no longer exists. You were not allocated teaching for 2025 as your contract was due to come to its natural end on 4 February 2025.

With regards to our defence security clearance, the classification held is not of sufficient seniority to impact any of the University's current projects or grants. In addition, any clearances approved for you do not extend beyond your contract end date.

In relation to the Coalition of Open Process Automation (unique in Australia), and grants by Cisco and Optus we confirm that the project arrangements and external funding in the School of Mines are not yet finalised. Beyond existing contracts, there is no new funded roles currently planned. At this time, no commitment has been made from other areas in the University to take on additional staff on this project".

• [66] On 7 February 2025, the date the Variation Contract expired, Dr Ren filed the Application.[65]

• [67] On 7 February 2025, Dr Ren's employment came to an end pursuant to the Varied Contract.[66]

• [68] The parties agree that the relevant steps in the dispute resolution procedure set out in the Agreement have been satisfied and that the FWC has jurisdiction to deal with the dispute.[67]

[69] The power of the FWC to deal with disputes is set out in section 595 of the FW Act. Section 595 provides that the FWC may only deal with a dispute if it is expressly authorised to do so under, or in accordance with, a provision of the FW Act.

[70] The Application was made pursuant to section 739 of the FW Act.

[71] Section 739 of the FW Act allows the FWC to deal with a dispute about an agreement if the agreement includes a term containing a dispute resolution procedure.

[72] The Agreement was approved on 18 January 2024. The nominal expiry date of the Agreement is 1 August 2027.

• [73] The Agreement contains a dispute resolution procedure of the nature contemplated by section 739 at clause 65. Clause 65 provides as follows:[68]

this clause sets out procedures to resolve the dispute (Dispute).

65.2 All Employees or other parties covered by the Agreement are able to raise a Dispute as per this clause.

65.3 For the purposes of the procedures in this clause, an Employee may be represented by a Union or Nominated Representative, as chosen by the Employee.

65.4 In the first instance, the parties to the Dispute must try to resolve the Dispute at the workplace level.

65.5 If the Dispute cannot be resolved locally, it must be escalated in writing to the Head of People and Culture or the appropriate representative of senior management within 5 working days otherwise the Dispute lapses.

65.6 Upon receipt of a written notice of escalation, an appropriate representative of the parties will discuss the Dispute and attempt to reach agreement within 5 working days, unless a different timeline is agreed in writing.

65.7 If the Dispute is not resolved as provided by 65.4 or 65.6, a party to the Dispute may refer the matter, within 10 working days, to the FWC or by agreement to another person or body for resolution. If the Dispute is not referred for resolution within the specified timeframe, then the Dispute lapses.

(a) The FWC, the FWC may deal with the Dispute through conciliation and/or arbitration, in order to resolve the Dispute the outcome of which will be binding on the parties, subject to either party to the dispute exercising a right of appeal, or

(b) Another person or body, then that person or body may deal with the Dispute in a manner as agreed by the parties.

65.9 Until the earlier resolution of the Dispute or 5 working days after the internal procedures described in clauses 65.5 and 65.6 have concluded:

(a) An Employee must continue to perform any work as lawfully directed by the University unless:

(i) the Employee has a reasonable concern about an imminent risk to their health and safety; or,

(ii) there are other lawful grounds to refuse to comply with a direction.

(b) The University, subject to clause 65.11 will not make any significant change directly related to the Employee(s) and the Dispute raised under this clause.

65.10 Where a Dispute relates to clause 66 (Change and Consultation) and the matter is referred to the FWC as per clause 65.7, the University will not implement significant workplace change relating to matters under Dispute while an application for an interim order by the FWC is pending, subject to the Employee and/or Nominated Representative using their best endeavours to expedite the FWC process.

(a) the termination of an Employee's employment during or at the end of a probation or confirmation period or on grounds of unsatisfactory performance, Serious Misconduct, redundancy or ill health or the cessation of a Fixed Term contract; and/or

(b) the University proceeding with the implementation of significant workplace change where the implementation of that change does not have a direct and significant effect on the Employee(s) subject to the notice of Dispute.

65.12 If, at the time this Agreement commences operation, the Commission or another body is dealing with a dispute (Old Dispute) arising under the Curtin University Academic, Professional and General Staff Agreement 2017-2021 (Former Agreement), the Commission or the other body shall continue to hear and determine the Old Dispute in accordance with clause 65 of the Former Agreement and the Commission/other body shall accept the record of the Old Dispute, including any applications, evidence, submissions etc., as steps already taken under clause 65 of the Former Agreement and shall determine the matter in accordance with the substantive law, including the terms of the Former Agreement. This applies to matters only just commenced, to those which are part heard, where there is a decision reserved, and to appeals."

• [74] The FWC may deal with a dispute only on application by a party to the dispute.[69]

• [75] Dr Ren's employment is covered by the Agreement.[70]

• [76] There is no dispute, and I am satisfied, that the issues in dispute between the parties fall within the scope of clause 65 of the Agreement. [71]

• [77] There is no dispute, and I am satisfied that Dr Ren has complied with the procedural steps contained in clause 65 of the Agreement. [72]

[78] I am satisfied that Dr Ren has standing to make the Application and that I have the jurisdiction to determine the dispute.

[79] In the Form F10 and his written submissions filed in accordance with the Directions, Dr Ren sought as a remedy an order for reinstatement to a continuing position at Curtin. In his closing submissions Dr Ren appears to have abandoned this relief and instead now seeks a financial remedy.

• [80] In dealing with the dispute the FWC cannot exercise powers limited by the term.[73] If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. The FWC must not make a decision that is inconsistent with the FW Act or the Agreement.[74]

• [81] When arbitrating a dispute under the dispute settlement procedure, the FWC is not exercising judicial power, but a power of private arbitration.[75] As a private arbitrator the FWC is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies.[76]

• [82] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd,[77] the Full Federal Court said at [70] to [71] that the powers and functions of the FWC identified in sections 577, 578, 590, 593, 595, 677 and 678 of the FW Act are available to the FWC when conducting a private arbitration.

[83] Relevantly sections 577 and 578 of the FW Act provide as follows:

The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations."

"s.578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; ..."

[84] To the extent that this decision relies on contested facts I have preferred the evidence of Professor Brooks who I found to be a credible and honest witness.

[85] Professor Murray's evidence appeared to be coloured by the breakdown in his relationship with Professor Brooks given he blamed her for the closure of the CFN and his friendship with Dr Ren. In cross examination he appeared to avoid providing evidence he perceived as potentially detrimental to Dr Ren's case.

[86] Dr Ren was prone in written evidence, oral evidence and submission to forcefully assert certain facts were untrue without any apparent basis for doing so or in direct contradiction to evidence to the contrary.

[87] For example, Dr Ren asserted in his written evidence in chief that his union representative wrote to Curtin on 13 September 2024 and that Curtin did not reply to the union or contest the content of the email sent by his representative.

"No reply or contest was ever provided to the NTEU's formal inquiry of 13 September 2024, effectively breaching the procedural obligations under the EBA."[78]

[88] The evidence is that the University did in fact reply.

• [89] Dr Ren also disputed Curtin's assertion that the Second Contract was externally funded notwithstanding that the Second Contract expressly states the role is in fact externally funded.[79]

"The university repeatedly asserted that my role was externally funded and that the cessation of Cisco funding nullified the basis of my employment. This is false. Neither of my contracts made reference to external funding as a condition of employment."

• [90] It was not until he was cross examined that Dr Ren eventually conceded that the Second Contract was externally funded.[80]

[91] Dr Ren also appeared to misapprehend communications:

"Professor Kate Brooks asserted that my role was not of a continuing nature,

despite not being my direct line manager. This was procedurally inappropriate, as

my actual line manager, Professor Tele Tan, had previously confirmed that I met

the eligibility criteria for conversion and had invited me to resubmit a second

[92] By virtue of Dr Ren's activation of the DSP and Professor Brooks role at clause 65 of the DSP and separately in the discharge of her duties as the Head of School, Professor Brooks was responsible for determining whether or not Dr Ren was undertaking work of a continuing nature.

[93] Professor Tan did not confirm Dr Ren had met the eligibility criteria for conversion. Professor Tan merely confirmed that Dr Ren was eligible to apply for conversion by virtue of the fact he had been engaged on two or more consecutive Fixed Term Appointments and those Appointments were in the same Faculty or area for a combined period of at least two years. There is no evidence that Professor Brooks or another Curtin employee has suggested otherwise. The dispute has always related to whether Dr Ren was undertaking work of a continuing nature and whether Curtin had business grounds not to offer him permanent employment if his work was of a continuing nature.

[94] Clause 12.5 of the Agreement provides as follows:

"12.5 Conversion of Fixed Term Appointment to Continuing Appointment

(e) This clause will not apply to an Employee appointed in accordance with:

(iii) clause 14 (Curtin Research Contracts);

(iv) clause 15 (Aboriginal and Torres Strait Islander Employment).

(f) Where an Employee has been engaged on 2 or more consecutive Fixed Term Appointments and those Appointments were in the same Faculty or area for a combined period of at least 2 years, the Employee is eligible to apply for Continuing Appointment status.

(g) Where an Employee is eligible to apply for a Continuing Appointment, the University will offer the Employee a Continuing Appointment, provided that:

(iv) they are undertaking work of a continuing nature;

(v) they were appointed through a merit selection process for at least one of the Fixed Term Appointments; and

(vi) they are meeting and maintaining University work performance expectations and have demonstrated the capacity to meet the performance expectations required in the continuing role.

(h) The University may refuse to appoint an Employee to a Continuing Appointment in accordance with clause 12.5(c)on reasonable grounds. Where the University does so refuse the reason(s) for the refusal will be provided to the Employee in writing."

[95] There is no dispute that Dr Ren was engaged on two or more consecutive Fixed Term Appointments in the same Faculty or area for a combined period of at least two years.

[96] Dr Ren was therefore eligible to apply for continuing employment status.

[97] There is no dispute that Dr Ren was appointed through a merit selection process for at least one of his fixed term appointments.

[98] Curtin have not disputed that Dr Ren was meeting and maintaining its work performance expectations.

[99] The parties are in dispute as to whether Dr Ren was undertaking work of a 'continuing nature'.

[100] The evidence does not support Dr Ren's assertion that he was undertaking work of a continuing nature. The fact that Dr Ren's work was not of continuing nature is ironically most clearly evident from his remedy request that he:

"be reinstated into a continuing academic position consistent with my qualifications, experience, and prior contributions to the University"[81]

which does not identify any specific ongoing role to which he might be appointed and in the alternative seeks redundancy if a role does not exist.

[101] Dr Ren's employment under the Second Contract was tied to external funding from Cisco, which prematurely came to an end. The work Dr Ren had been performing under the Second Contract ceased when Cisco withdrew its funding.

[102] Dr Ren's employment under the Second Contract was varied by the Varied Contract, to be 'teaching focused'. The variation was for the balance of the term of Second Contract and was a gesture of goodwill by the University to honour the term of Second Contract. The evidence is that the intention of the variation was to allow Dr Ren to perform work of a temporary nature backfilling the roles of two absent permanent employees by teaching their courses until the expiry of the term of the Varied Contract.

• [103] Dr Ren asserted that his teaching obligations constituted work of a continuing nature however he failed to provide sufficient evidence to support his assertion. Professor Murrays evidence on this point was at best equivocal. [82] Dr Ren has provided no evidence that the units he taught during the term of the Varied Contract were not allocated back to permanent employees previously delivering those courses. Nor did he identify other units that he had continuously delivered which are not being delivered by permanent employees.

[104] Dr Ren's evidence that some employees had heavy teaching loads did not demonstrate that he was performing continuing work or go as far as to suggest that there was in fact sufficient continuing excess teaching work to support the existence of a permanent role he might fill.

[105] Dr Ren has failed to establish that the new teaching roles which were advertised could in any way be characterised as continuing work he had been performing. In fact the evidence is that these were new roles in areas of practise different from Dr Ren's areas of expertise.

[106] Dr Ren led evidence of other activities he engaged in while employed by Curtin in addition to the teaching roles he was allocated to backfill which he asserts are ongoing. However, while these activities, such as the supervision of students, no doubt have some value to the University the evidence is that these tasks were ancillary to his teaching duties. There is no evidence that these duties of themselves constitute a role. Rather these are tasks which supplement a substantive position which is either research based or teaching based.

• [107] Similarly, Dr Ren was unable to identify continuing work in projects with which he was involved which attracted sufficient funding to sustain continuing employment.[83]

• [108] Professor Murray conceded in cross examination that Dr Ren's research obligations were not ongoing:[84]

"So did you understand, when he was doing these research roles, that that would end when the fixed term contract ended, at the end of February 2025? Yes"

• [109] Dr Ren acknowledges that the role at the WASM which he had foreshadowed accepting was a new role which did not exist and was being created by Professor Murray for him.[85] Professor Murray's evidence is that the role he anticipated Dr Ren performing in the WASM was a new role involving different work which was never ultimately established. [86]

"Would you accept that the position you were wanting to be filled was not the work Dr Ren was performing, under his varied contract? It really had nothing to do with the varied contract.

Can you explain that? It's a new research area. So the work that he would be doing is different again."

[110] Dr Ren understood that offering him continuing employment would require EECMS to create a new role for him is clear from his correspondence to Professor Tan on 17 December 2024 in which Dr Ren acknowledges that retaining him within EECMS in the absence of Dr Ren's being offered a contract by the WASM would impose a financial burden on EECMS of the cost of a 'new hire'.

[111] Given that Dr Ren has been unable to establish that he was performing work of a continuing nature the University is not required to offer him continuing appointment.

[112] In these circumstances it is not necessary for me to consider whether Curtin had a reasonable business ground for refusing the request.

• [113] An Order[87] to this effect will be issued with this Decision.

[1] Warrell v Walton [2013] FCA 291; (2013) 233 IR 335, 341 [22].

[5] FWC Transcript of Proceedings (Transcript), 15 September 2025, [PN40] (Binet DP).

[33] DCB (n2) at 880, Transcript (n5) at PN277-281.

[55] DCB (n2) at 881, Transcript (n5) at PN1005.

[57] DCB (n2) at 882, Transcript (n5) at PN1005.

[59] DCB (n2) at 882, Transcript (n5) at PN1005.

[69] Ibid; Fair Work Act 2009 (Cth) (FW Act) s.739(6).

[70] See Agreement at clause 4 - Coverage,.AE523154 PR770339, [2024] FWCA 197 at [8]

[75] Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [38]; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 [75] to [79]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]- [36].

[76] CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU (n 23) at [19]-[24]; AMWU v ALS Industrial Australia (n 38).

[77] [2015] FCAFC 123; 235 FCR 305.

[79] Ibid at 9, Transcript (n5) at PN105.

[86] DCB (n2) at 8, Transcript (n5) at PN558-538.

[87] PR794449

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