//
[2020] FWC 4013
General information, not legal advice.
Fair Work Commission
2020-07-30
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 30 July 2020.
The first paragraph of the Decision was not numbered. This has been corrected.
s.739 - Application to deal with a dispute
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] The National Tertiary Education Industry Union (NTEU) has made an application for the Fair Work Commission to deal with a dispute arising under the Deakin University Enterprise Agreement 2017 [1] (Agreement) . The dispute relates to the consultation requirements in clause 58 of the Agreement as they apply to change occurring at Deakin University (University).
[2] On 30 June 2020 I issued an interim Order[2] and Decision[3] in response to an application by the NTEU. On 2 July 202 I issued my reasons for that decision[4].
[3] This decision concerns the final application of the NTEU.
[4] The dispute concerns the proper application of the consultation clause in the Agreement in circumstances confronting the University brought about by the COVID-19 pandemic and its impact in the higher education sector.
[5] Clause 58 of the Agreement deals with consultation on workplace change. It states:
58.1 Management of major workplace change is enhanced by genuine consultation between the University, the NTEU and staff members affected by the change prior to the University implementing major workplace change.
58.2 Major workplace change means changes in organisation, structure or technology that are likely to have significant effects on staff members.
58.3 Significant effects include, but are not limited to:
(a) terminating the employment of staff members as a result of redundancy;
(b) major changes in the composition of the University's workforce;
(c) major reduction in the size of the University's workforce;
(d) eliminating job opportunities, promotion opportunities or job tenure;
(e) major changes to average hours of work required to be performed by professional staff members outside the span of hours set out in clause 43 of this Agreement;
(f) transferring staff members to another work location which is more than 15kms from a staff member's existing work location;
(g) restructuring jobs in situations involving more than two staff members within the same organisational unit; or
(h) proposals to outsource key services or contract out key services currently provided by staff members.
58.4 For the avoidance of doubt, major workplace change does not include:
(a) the creation of or appointment to a new senior position within the University or change of reporting lines, unless the change results in significant effects on staff members within the meaning of clause 58.3; and
(b) termination of employment of a single staff member.
58.5 Where the University has developed a formal proposal to introduce major workplace change, the University will consult affected staff members and the NTEU prior to finalising a decision to proceed with the major workplace change.
58.6 The affected staff members and the NTEU will be provided with relevant material and documentation to inform them of the purpose and substance of the change. Consultation will provide sufficient opportunity for the parties to discuss the proposed major workplace change and will include an outline of the likely timeframe for change, implementation arrangements and details of the likely impacts on staff members. Unless otherwise agreed, the period of consultation with the affected staff members and the NTEU at this stage of consultation will normally not exceed two weeks...
[6] There was little debate as to the intention of clause 58 of the Agreement. It is apparent from the clause that, on the development of a formal proposal for workplace change, the University will consult with the NTEU and staff.
[7] Whilst it was not agreed on what form such a formal proposal should take it seems apparent by clause 58.6 that, to facilitate the consultation, "relevant material and documentation" needs to be provided to staff and the NTEU to ensure the opportunity is there for consultation.
[8] The controversy between the NTEU and the University goes to the issue of when it was_,_ in the current environment, the University had "developed a formal proposal to introduce major workplace change" as specified in clause 58.5 of the Agreement such that the obligation to consult arose.
[9] The NTEU says that the University developed a formal proposal for change by 19 March 2020 when "the University Council endorsed a series of 'principles and actions underpinning the University's response' to the pandemic, which included 'pausing all recruitment not critical to the University' and 'considering how to reduce employment costs'."
[10] In the alternative, the NTEU submits that the University had developed a formal proposal for change "by 7 May 2020, when the Council met and endorsed the Budget Sustainability Program which was reported as a 'cogent and coordinated whole of University approach' to dealing with the response to the pandemic."
[11] The University on the other hand says that it is not required to consult with affected staff and the NTEU in relation to a formal proposal to introduce change prior to finalising a decision to proceed with the major workplace change. It submits that it had not finalised a decision when it commenced consultation on 25 May 2020 (and is yet still to occur).
[12] When the obligation to consult arose and at what level (University wide or at some organisational unit level) is dependent on when the formal proposal for change was made, and what the "proposal" was.
[13] It should be noted that there is no dispute that the change being contemplated by the University is major workplace change and that consultation is necessary. It is the when and who with that is not agreed.
[14] I am satisfied that the matter in dispute is a matter that arises under the Agreement. Further, I am satisfied that the dispute settlement procedure in the Agreement has been complied with.
[15] The dispute is characterised as one relating to the point in time the University developed a formal proposal for major workplace change such that the consultation obligation under clause 58 was enlivened.
[16] Whilst there is some disagreement between the parties as to the question to be answered by the Commission I do not consider that the questions posed by either party is significantly different. I would suggest that the question posed by the University actually provides greater scope for consideration of the matter and does not preclude a consideration of the more specifically focussed NTEU question. The answer to the question posed by the University may well encompass the answer to the question of the NTEU.
[17] The question to be answered therefore is:
Was the University required by clause 58 of the Agreement to consult affected staff members and the NTEU in relation to a formal proposal to introduce major workplace change prior to 25 May 2020?
[18] The answer to this question involves a determination of when the University had a "formal proposal to introduce major workplace change". This involves a consideration of the decision-making for the University and what it is they actually decided.
[19] I am of the view that the answer to the question posed also allows a consideration of who should be consulted.
[20] Evidence was given for the NTEU by Dr Joanne Elliott, Mr Eric Stacey and Dr Kerrie Saville, President of the Deakin Branch of the NTEU.
[21] Evidence was given in these proceedings for the University by Mr Bryan Gillis, Workplace Relations Manager, Human Resources Division and Mr Kean Selway, Chief Operating Officer.
[22] I do not set out the evidence of the witnesses here but I have had regard to their evidence in reaching my decision.
[23] The decisions of the University were made against a background of COVID-19 and its impact on University revenue. This background is set out in the Reasons for Decision for the interim Orders and is repeated here:
The University Council met and considered the Budget and Sustainability Program (BSP) measures to manage the COVID-19 pandemic. The elements of the BSP are, in summary:
The Vice Chancellor requested the University Executive members to prepare proposals on how to reduce employment costs (the Major Workplace Change (MWC) Proposals) guided by 'universal principals'.
The Vice Chancellor sent an email to all staff regarding the impact of COVID-19 and outlined the steps that the University was going to have to make:
We have already made changes to reduce expenditure such as stopping new project investments, minimising new appointments and cutting non-essential spending. These have helped, but we are going to have to make more significant changes to navigate the next 12-18 months successfully.
We will be very substantially reducing or delaying our capital and project investments. These reductions will impact on several significant investments we have been planning, and I know this will be disappointing for many.
We will also continue to minimise all non-essential expenditure wherever possible and focus on those activities that speak the most strongly to our core activities - education and employability, and ideas and innovation.
Although we will be doing so with a heavy heart, it will be impossible to avoid redundancies given that employment costs are more than half of our total expenditure. These decisions will be shaped so that we ensure focus on our core activities of Education, Research and Innovation.
A special University Council meeting was held. A reported outcome of that meeting was that:
Council noted that 55% of the University's total revenue goes towards staff salaries. Inevitably the Budget Sustainability Program involves the potential displacement of staff. Council discussed the need for the University to ensure that staff facing redundancy receive strong support not only in terms of their financial entitlements but also their mental health and general wellbeing.
15 MWC proposals were provided to the Vice Chancellor covering 4 faculties and 11 professional areas of the University.
The Vice Chancellor held a Town Hall meeting with staff of the University via Zoom. The speaking notes of the Vice Chancellor indicate that he said that:
As a University we spend 55% of our total revenue on our staff, and whilst we want to minimise staff impacts, it is not possible to adjust to where we need to be for the next few years without looking at our employment costs as well as curtailing expenditure, as I have already described.
Over the past weeks we have been looking at the options available to us to manage these challenges. As I committed to you in my earlier email, we have continued to examine all options available to us, including cost avoidance and containment, in addition to considering staffing reductions, with the overriding principle that any decisions will be made on the basis of what is best for Deakin as a whole.
We are taking a staged approach regarding the changes that we will need to make. We recognise that there is still considerable uncertainty in what will happen in the coming 12-24 months and Phase II must take account of both that uncertainty and our new Strategy...
I had planned to present to you today the outline of the Phase I changes that we were proposing, but, in light of yesterday's information, it is now our view that we cannot proceed with this without carefully considering the National Framework and the implications for Deakin.
The Vice Chancellor sent an email to staff that covered most of that said at the Town Hall meeting the day before. That email said, in part:
There are two phases to the actions that I believe we need to implement. Phase I is based on the immediate actions we need to take to manage the issues we currently face, and Phase II looks to more medium‐term changes. Phase II will focus on how we shape the University in the context of both a changed external environment and a new University Strategic Plan.
A further Special University Council meeting was held.
The Vice Chancellor again held a Town Hall meeting with staff via Zoom. In that meeting he said:
You know that, over the past month or so, we have been looking at the options available to us to manage these challenges. This includes cost avoidance and containment, staff reductions and, most recently the Australian Universities Job Protection Framework I talked to you about at the last briefing.
...Today I am presenting to you the 2020 components or Phase 1 of our approach.
The proposals that I have now received from the Executive and approved for putting to you, our staff, anticipate a possible reduction of around 400 positions - not FTE. Of these about 100 are vacancies that are currently unfilled, leaving around 300 positions that the consultation process will consider...
We prepared...proposals for major workplace change across all faculties and portfolios and now intend commencing consultation with you later this week and into next week.
The release of these documents to you will commence consultation in accordance with clause 58 of the Deakin University Enterprise Agreement 2017.
[24] Further detailed information was provided to the Commission in the form of appendices to various witness statements in the proceedings. Much of this material is confidential in nature and is not disclosed in this decision although the following information can be taken from that material.
[25] In March 2020 the University Executive took a decision to pause recruitment. A panel was established to determine whether positions put forward for recruitment are essential positions and if approval would be given to continue with recruitment. At this time the Executive was also developing proposals arising from the Budget and Sustainability Program (BSP).
[26] The University Council meeting of 19 March 2020 noted that COVID-19 would have a significant financial impact on the University although the extent of the impact was unknown. Decisions had already been taken by the University at this stage to cut discretionary expenditure and place major projects on hold.
[27] On 7 May 2020 a Special Meeting of University Council was held. That meeting was to consider the University's response to COVID-19. Council heard a report on the BSP which was being led by "experienced existing staff members" that would "deliver lasting savings in operational costs through staff reductions, process efficiencies and productivity measures." Council noted that the program would "involve a significant number of redundancies. The first phase is expected to involve an estimated 300-400 redundancies."
[28] Council noted that the Vice Chancellor would address staff on 11 May 2020 which would be followed by a phased series of consultation on changes to particular areas. This address to staff was subsequently held but not with the detail originally proposed and without rolling out the proposals for change. This was because of the emergence of the Australian Universities Job Protection Framework (Job Protection Framework) negotiated between a number of Universities and the NTEU. The 15 Major Workplace Change (MWC) proposals were subsequently released on 25 May 2020. They were released only to staff within the specified area and staff were not given access to the MWC proposals outside their confined area. The NTEU was given access to each of the 15 MWC proposals.
[29] At the Council meeting of 21 May 202 the Council determined to continue with implementation of the University's response to the impact of COVID-19 approved by Council on 7 May 2020 and to not sign the proposed Job Protection Framework.
[30] The concept and real application of the principles of consultation in an industrial context are well settled. These were considered by the Full Bench considering consultation clauses in Modern Awards[5] where it was said:
[28] The obligation in s.145A(1)(a) [of the Fair Work Act 2009] is 'to consult [with] employees'. In this context the word 'consult' is used as a verb and is defined in the Oxford Dictionary in these terms:
"Consult with. To take counsel with; to seek advice from."
[29] The definition in the Macquarie Dictionary (5th Edition) is in similar terms:
"1. To seek counsel from; ask advice of. 2. to refer to for information. 3. to have regard for (a person's interest, convenience, etc.) in making plans. - v.i 4. (sometimes fol. by with) to consider or deliberate; take counsel; confer [L. Deliberate, take counsel]"
[30] The word 'consult' means more than the mere exchange of information. As Young J said in Dixon v Roy:
"The word 'consult' means more than one party telling another party what it is that he or she is going to do. The word involves at the very least the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response." [citations omitted]
[31] The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (QR):
"... A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to "consultation" has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
To elaborate further on the ordinary meaning and import of a requirement to "consult" may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, "this is what is going to be done" and saying to that person "I'm thinking of doing this; what have you got to say about that?". Only in the latter case is there "consultation. ..."
[32] We respectfully adopt his Honour's observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.
[31] The principles of consultation were applied by the Commission in National Tertiary Education Industry Union v La Trobe University[6] (La Trobe University) where Deputy President Smith considered the question of when a proposal for change had been developed and how the proposal interacted with the level at which such consultation occurred. Whilst that decision stands on its own, the issues are not dissimilar to those confronted in this case.
[32] In considering clause 58 of the Agreement in this case it seems that the provisions of clause 58.6 of the Agreement assist in understanding what is required to enable meaningful consultation to occur. By requiring the provision of "relevant material and documentation to inform them of the purpose and substance of the change" to the NTEU and staff, substance is given to the matters subject to consultation.
[33] The University submits that a formal proposal for change was not formulated until the MWC proposals were developed and that these have, properly, formed the basis of consultation with staff and the NTEU. Further, the University says that the MWC proposals are just that and no final decision has been made by the University as to what will be implemented. The University submits that it is only required to consult prior to finalising a decision to proceed with major workplace change. It submits that, at the time of promulgating the MWC proposals, it had not made such a decision.
[34] The NTEU, on the other hand, says that a formal proposal for change was developed by the University prior to the release of the MWC proposals and that the MWC proposals are, in effect, the implementation plans for that proposal. This earlier proposal constitutes major workplace change and should have been subject to consultation with the NTEU and affected staff pursuant to the Agreement.
[35] The NTEU submits that the following matters, as decided by the University Council or the University Executive are, individually or collectively, a formal proposal to introduce workplace change:
1. the decision to minimise appointments to vacant or new positions;
2. the decision that a large number of redundancies would be necessary;
3. the decision to endorse the staffing elements of the Budget Sustainability Plan
[36] The NTEU in particular says that the first proposal to implement workplace change was the decision by the University to not fill vacant non-essential positions. This decision it says was taken by the University Executive in March 2020 and has not been and is currently not subject to consultation. The NTEU relies on the following statement from the presentation of the Vice Chancellor to staff on 25 May 2020:
The proposals that I have now received from the Executive and approved for putting to you, our staff, anticipate a possible reduction of around 400 positions - not FTE. Of these about 100 are vacancies that are currently unfilled, leaving around 300 positions that the consultation process will consider... [emphasis added]
[37] The NTEU submits that the second proposal was the decision taken in April 2020 to achieve savings by redundancies. The NTEU submits that this decision is evident in an email from the Vice Chancellor to staff where he said "...Although we will be doing so with a heavy heart, it will be impossible to avoid redundancies...". It says that this decision was endorsed by the Council at its meeting of 7 May 2020 with the minutes of that meeting indicating that "[t]he program will be phased and will cost $XXX million over the three years..." [my emphasis].
[38] Further the NTEU says that the decision was made to move directly to redundancies without conducting a call for expressions of interest in a voluntary separation.
[39] Thirdly the NTEU submits that the University made a decision in May 2020 to reject the Job Protection Framework, that this was a definite decision of the Council made at its meeting of 7 May 2020 and announced by the Vice Chancellor on 25 May 2020 and while it agrees that this was not major workplace change it submits that the decision is evidence of decisions being made without consultation with the NTEU or staff.
[40] The NTEU submits that each of these decisions was made prior to the issue of the MWC proposals and each constitutes "major workplace change" on which staff and the NTEU should have been consulted in accordance with clause 58 of the Agreement.
[41] The NTEU says that these matters - taken either individually or collectively - constitute a formal proposal for workplace change and they should have been subject to consultation.
[42] The University submits that what the NTEU seeks is the right to be consulted about the decisions that were made as to the content of the MWC proposals prior to those decisions being made. The University says that this is not the stage at which any proposal has been finalised and that staff and the NTEU have the opportunity to influence the decisions in the consultations on each of the MWC proposals.
[43] The University says that it is entitled to determine what should or should not be in a proposal prior to that proposal being put out for consultation and it is not required to consult at each step prior to the finalisation of a proposal.
[44] The University submits that establishing a panel to consider any requests to fill vacant positions is not major workplace change. To the extent any vacant position might be declared redundant, these are considered to be made redundant, they will be considered as part of the 15 MWC proposals.
[45] The University submits that the advice to staff from the Vice Chancellor that redundancies were inevitable and that it may be in the order of 300-400 was not a concrete proposal but rather an honest assessment by the Vice Chancellor of the challenges facing the University. It is not indicative of a decision having been made by the University that should have been subject to consultation.
[46] That the University Council was kept appraised of the development of the WMC proposals is not evidence of firm decisions having been made by the University that should have been subject to consultation with the NTEU or staff. At no stage were plans put forward as a fait accompli by the Vice Chancellor but rather were put forward for consultation with the affected staff.
[47] On the Job Protection Framework the University submits that the decision not to pursue that Framework cannot be seen as major workplace change and it cannot be that it was required to consult on a decision to not adopt a model negotiated by the NTEU and other Universities.
[48] The University submits that the formal proposal that attracted the obligations in clause 58 of the Agreement came about only at the time the Vice Chancellor endorsed the 15 MWC proposals. These proposals were being developed through April and May and the University was entitled to "put meat on the bones" of the proposals prior to proceeding to consult. Putting more detail into the proposals does not amount to implementing any change and the University has not implemented any change.
[49] To the extent it might be otherwise argued the University submits that it has consulted on each of these 15 MWC proposals and the University is taking on board the feedback from that consultation.
[50] The University contends that it has been open to the NTEU on various occasions through specific invitation to put forward any alternatives to the broad strategy adopted by the University and, to the extent that the NTEU has done so, its proposals have/will be considered. The University says that it has discharged its obligation to the NTEU and staff pursuant to clause 58 of the Agreement to consult.
[51] I would observe that just because the University has recognised the need to respond to the challenges confronting it (whether by COVID-19 or otherwise) does not mean there is a proposal for change on which it is required to consult. In fact, the University and the University Council would be recalcitrant in their duties not to consider how they might respond to these times. In this respect the observation of Deputy President Smith in La Trobe University that "[s]imply because an enterprise adopts a budget does not necessarily mean that there is a proposal for change. A proposal must have substance to it" is apposite in these circumstances. That the University adopted a strategy is not, in and of itself, a proposal for change.
[52] The University clearly recognised what was confronting it in budgetary terms but that is not a proposal for change - it is merely acknowledgement that change is necessary. What was then required of the University was to determine how it proposed to respond to the challenge. It was required to put "meat on the bones" of any proposal so that the "purpose and substance" of the change could be put before the NTEU and staff to enable consultation to be meaningful. It is the proposal for change, incorporating "relevant material and documentation to inform...of the purpose and substance" that must be subject to consultation as required by clause 58 of the Agreement. This is how meaningful consultation can be engaged.
[53] It is never black and white as to when a "formal proposal" is made but there is no apparent requirement to consult prior to the making of the formal proposal. A formal proposal does not have a particular layout or need to be presented in a particular template but clause 58.6 does require that it have enough detail to enable consultation to be meaningful. A bald statement of we need to find $x million of savings or we need to cut 300 staff are not proposals for change on which meaningful consultation can occur under the Agreement as the detail necessary by clause 58.6 is clearly missing.
[54] A decision to include in the proposal compulsory redundancies (or to not include in the proposals voluntary separations) is not a proposal for workplace change but rather the preferred option for the University on which it seeks to consult. What to include or not include in a proposal is not change itself. The willingness or otherwise to engage in discussion on the change and how that change will be achieved, including consideration of alternative proposals put forward (e.g. voluntary separation v compulsory redundancies), will be a measure of the extent to which the University is engaged in meaningful consultation and hence meet the requirements of clause 58.
[55] In these circumstances I am not convinced that the University or the University Council had made a decision or determined a proposal of the kind contemplated by the Agreement such that consultation was required to occur prior to 25 May 2020. Until 25 May 2020 the University was still considering the proposal to be put to staff and the NTEU. This consideration included whether the Framework would be part of that put forward. The test of the truth of the proposal as just that is in the consultation and willingness of the University to consider the views and alternatives put forward by the NTEU and affected staff. If matters are rejected because the Council has previously considered and rejected the idea then that is not genuine consultation as there has not been a consideration of the alternatives put forward. It remains the responsibility of the University to demonstrate that it has genuinely engaged in meaningful consultation.
[56] The second major issue raised by the NTEU is whether the University is engaged in genuine consultation with respect to the 15 MWC proposals "carving up" the University into 15 discrete groups and inviting staff in each of these groups to consult only on that part of the organisation in which their position exists. This, it submits has led to a compartmentalisation of consultation. The division into the 15 MWC proposals has been arbitrary to an extent evidenced by the actions taken by Mr Selway in breaking down his portfolio area of the office of Chief Operating Officer into 5 separate MWC proposals with each being consulted separately and individually. The NTEU submits that it is not possible to carve up the significant effects of the changes proposed by the University into 15 distinct groups.
[57] The NTEU submits that there is one, overarching change proposal, and whether this manifests in one or 15 individual proposals is an artificial construct. The individual proposals stem from one decision developed pursuant to a directive of the Vice Chancellor in response to a single problem (COVID-19).
[58] The NTEU submits that it has not been possible for it to consult with its members either about the 15 proposals collectively or about some of the underlying bases for the decision.
[59] The NTEU agrees that it has been provided with each of the change proposals. It says however that the email/s containing the proposals all contained a footer which read:
Important Notice: The contents of this email are intended solely for the named addressee and are confidential; any unauthorised use, reproduction or storage of the contents is expressly prohibited. If you have received this email in error, please delete it and any attachments immediately and advise the sender by return email or telephone.
[60] The NTEU officials took this seriously and did not distribute the material beyond the addressee. For this reason it has not been able to consult members beyond any individual group as to other changes at the University that may have wider effect. Further, the NTEU says that the University has not made any of the 15 MWC proposals available more widely than the immediate group to whom they are addressed. This means that affected staff of the University have not been consulted about the major workplace change (i.e. the reduction in 300 occupied positions and100 vacant positions, the effect of non-filling of casual positions and non-continuation of fixed term positions and so on) and its effect nor on how these effects might be mitigated or how the proposed change might otherwise be achieved.
[61] The University submits on this question of whether it was required to consult staff of changes in areas other than their own is not a matter encompassed by the dispute but, in any event, the Commission cannot grant a remedy in relation to a failure to consult in accordance with the Agreement. Furthermore however, the University submits that it is not required to provide staff with all details of all of the MWC proposals. It was enough, it submits, that the Vice Chancellor provided a broad overview of the job losses and that the detail of the proposals be otherwise subject to consultation at the local level.
[62] I am satisfied that the 15 MWC proposals all arise from one issue and one decision of the University - that is, how to contain costs in the COVID-19 environment where income for the University is adversely affected. The proposal put out by the University is a single proposal broken down into convenient portfolios within the University but done in such a way that there is, realistically, no opportunity for meaningful consultation on the overarching aspects of the proposal - the number of positions lost, how to manage vacancies, how to manage staffing reductions and so on.
[63] The single proposal is the agglomeration of the 15 MWC proposals and the decision to not fill non-essential positions. How the University proposes to spread the load of this proposal is reflected in the individual proposals it has put out but the requirement to consult exists at both the accumulated level and at the local level. But how the proposal might be given some detailed consideration at the local level (should a position be a HEW 8 or HEW 9 or what functions should be included in the new job description) may well be affected by consultation at the University wide level with staff and the NTEU.
[64] The ability of affected staff and the NTEU to have any meaningful consultation has been severely curtailed by the approach adopted by the University. Manipulation of a single issue into 15 portfolios is not necessarily wrong - it makes dealing with a large issue more manageable - but there is force in the submissions of the NTEU that there is one proposal in response to one issue and it arises from a single set of considerations by the University Council - that is, the response to COVID-19.
[65] To be clear I am not suggesting that the University was required to consult the NTEU or affected staff on what it decided should be in the proposals (e.g. targeted redundancies v voluntary separation) prior to putting the proposal out (although these aspects of the proposal are real matters for consultation) but, to the extent there are common elements and a common driver in each proposal - and this clearly is the case - consultation should occur at the University wide level.
[66] I would observe that, whilst the decision to have a panel consider requests to fill vacant positions might not be a major workplace change (although I do not decide this one way or the other - it is a matter to be considered in context of past practice), the decision to not fill vacancies may be regarded as a major workplace change. Such a decision has an effect on the composition of the workforce, the size of the workforce and job opportunities and hence may fall well within major workplace change that has a significant effect on employees.
[67] The University cannot be engaged in consultation with the NTEU on the broad strategy at the same time it is consulting with portfolio staff on how that broad strategy is reflected in the minutiae of the proposal at the portfolio level. In any event, the failure to consult with the NTEU and staff at the University level suggests that the University has not complied with its obligations under clause 58 of the Agreement. I would observe that for such consultation to be meaningful there is some information currently before the Commission which the relevant officials of the NTEU engaged in that consultation should have access to (in particular the presentation to the University Council of 7 May 2020) albeit it may be on a restricted and/or limited basis with appropriate undertakings.
[68] For the reasons outlined in this decision I am satisfied that the University was not required to consult with the NTEU or affected staff prior to 25 May 2020.
[69] I am however satisfied that, because of the nature of the proposal and its implications for staff University-wide, the University should embark on consultation with the NTEU and affected staff at the University wide level. This requires that all staff and the NTEU have access to the 15 MWC proposals and that some limited information as described above be accessible to the relevant NTEU officials.
[70] A matter did arise in proceedings with respect to the footer contained on the University emails. I would observe that if it is not intended that this be observed by staff or the NTEU it should be removed from the email. To the extent it remains on emails it suggests the imposition of an obligation on the recipient of the email. If it is not intended to impose such an obligation it is highly misleading.
[71] The University has sought that I should vary my Order issued on 30 June 2020 to allow staff who have indicated they wish to take redundancy - their position having been targeted - be allowed to depart. Whilst I am sympathetic to the stress experienced by employees as a result of the MWC proposals I see no basis to pre-empt the outcome of the consultation required under clause 58 of the Agreement. To the extent the University is prepared to allow such employees to voluntarily depart that is a matter for the University. To the extent that the University may seek some accommodation with the NTEU I would encourage the parties to do so.
[72] The Order I issued on 30 June 2020 is hereby set aside. It is replaced by this decision. In this regard I note certain timelines within the Agreement and expect that these will be met. Until the consultation process is complete implementation of any change proposals obviously cannot occur.
L. Gale for the National Tertiary Education Industry Union.
[5] Consultation clause in modern awards, [2013] FWCFB 10165.
Printed by authority of the Commonwealth Government Printer
National Tertiary Education Industry Union
Deakin University [2020] FWC 4013