Fair Work Act 2009

s.739 - Application to deal with a dispute

Application to deal with a dispute; Alleged dispute concerning consultation prior to the implementation of a change proposal; obligations of employees to engage in consultation; jurisdictional objection.

[1] James Cook University published a Change Management Proposal on 18 April 2018. The proposal is required under the James Cook University Enterprise Agreement 2016 (the Agreement) where the University proposes to introduce change that is likely to have a significant effect on staff.

[2] The National Tertiary Education Industry Union (NTEU) has applied under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute as to whether the University, in proposing to introduce the change, has complied with clause 42.1(b) of the Agreement which describes the Formal Change process requirements under the Agreement. In submissions prepared for the hearing, it submits that the University has not complied with clause 42.1(b)(ii)(A) and (D).

[3] In response the University asserts it has complied with the requirements of the Agreement and raises a jurisdictional objection.

[4] Clause 42 deals with the change management process and clause 9, representation. They provide as follows:

(i) The University will develop a formal change proposal where change is likely to have a 'Significant effect on Staff as it is likely to lead to one or more of the following:

B. Major change in the composition, operation or size of the workforce, or the skills required by Staff;

C. The elimination or diminution of job opportunities (including opportunities for promotion or tenure);

D. The alteration of hours of work for a Work Unit;

E. The need to retrain more than one (1) Staff Member within a Work Unit;

F. The need to relocate Staff to another workplace; or

(ii) Where there is a specific change proposal, the University will issue documentation to directly affected Staff and where they choose, their representative where nominated as defined in Clause 9, outlining the change. The documentation will include:

A. The extent and nature of the change proposed, including where possible identifying what work is no longer to be done by anyone and what work will be transferred to other Staff;

E. The impact of the change on casual Staffing; and

(iv) Following consultation with affected Staff, and representative as defined in Clause 9, the University will circulate the change proposal to members of the JCC." (Emphasis added)

(a) The University recognises that Staff may be assisted, accompanied and supported by a representative that may be:

(ii) A delegate or Staff Member of a union that negotiated this Agreement; and

(b) Staff will inform their Supervisor and/or relevant level of management that they will be represented prior to any discussions."

[5] The University is currently consulting about the formal change. As a result, an expedited hearing was held on 24 May 2018. At the hearing, Mr Smith appeared for the NTEU, Ms Cray appeared with leave for the University. Statements were made on behalf of the NTEU by Robert Rule and Peter Whalley-Thompson of the NTEU, who were not required for cross-examination. Mrs Belinda Pope gave evidence on behalf of the University and was cross-examined. The hearing dealt with both the jurisdictional objection and the substantive dispute.

[6] The University's jurisdictional objection is that the Union has no standing to bring a dispute because it has not been appointed 'representative', and there is no valid dispute under clause 44 of the Agreement that deals with dispute resolution. If correct, the Commission does not have the power to arbitrate the dispute under s.739(6) of the Act.

[7] The NTEU initially submitted that:

1. as the NTEU is covered by the agreement and has a genuine interest in the application of the agreement it is able to bring a dispute to the Fair Work Commission in relation to the proper application of an agreement in its own right; and alternatively

2. it raises the dispute as a representative of affected staff.

[8] The NTEU at hearing indicated it would not rely on ground (a). This decision deals with the alternative argument, namely whether the NTEU can raise a dispute as a representative of staff.

[9] The University argued that the NTEU was not acting as a 'representative' when it raised the dispute.

[10] The NTEU provided two statements from officers of the Union. Each describes the officer's participation in discussions about the change proposal.

[11] Mr Whalley-Thompson attended the joint consultative committee ("JCC") representing the NTEU. On his evidence, the NTEU Queensland Divisional Secretary, Mr Michael McNally, asked questions about the change proposal. He said:

_"_It became clear from answers to those questions provided by Professor Gordon and Professor Wronski that further information was held by management in relation to the rationales for making various positions redundant and the proposed redistribution of work within work areas, that was not included in the Change Proposal."[1]

[12] Although the NTEU had represented its members among the University's staff in relation to general discussions about the Change Proposal, the University submitted that did not mean that those staff members had brought the dispute or that the NTEU was acting as representative of those members when it brought the dispute.

[13] The University argued that the NTEU have not demonstrated any factual basis for their claim to be acting as a representative, and that there can be no such claim to be a representative for an unspecified group of staff. The University relied on the dispute resolution clause in the enterprise agreement. It provides as follows:

(b) A dispute may be raised by a Staff Member or their representative (as defined in Clause 9), with Director HRM who will attempt to resolve the issues with the parties to the dispute.

(c) The University or a Staff Member who is a party to the dispute may appoint another person, organisation or association to accompany and/or represent them for the purposes of this term."

[14] In addition, both the University and the NTEU make reference to the meaning of clause 9, extracted above.

[15] The University submitted a representative must be 'appointed' by a staff member to act on their behalf in relation to a particular dispute or disputes, but that the provision does not extend to a general authority for the representative to widen its actions on behalf of the staff member beyond the specific purposes for which it was appointed. The University noted the words, 'for the purposes of this term', in clause 44(c). The University urged on the Commission that the NTEU's evidence, being from organisers rather than staff, supported this contention.

[16] The NTEU submitted that it may raise the dispute as a representative of a staff member, per clause 44(b) of the Agreement. The NTEU said, in response to the University's contentions that they had not confirmed their status as a representative, that the University had not raised this question in any prior, internal meetings or correspondence until it engaged legal representation.

[17] The NTEU relied on the Full Bench decision in Asciano Services[2] as authority for the proposition that there was no general requirement that employees represented by the Union be named in order for the dispute to be referred to the Commission:

"[15] As to the second reason, in order for the Commission to have jurisdiction to deal with a dispute pursuant to s.739 of the FW Act, the dispute, properly characterised, must fall within the scope of disputes that the applicable enterprise agreement "requires or allows" the Commission to deal with 10 and the parties must comply with any mandatory pre-filing steps set out in the enterprise agreement. However, there is no requirement in the FW Act for every s.739 application filed in the Commission to identify by name each employee who was a party to the dispute at the time the application was filed. In some circumstances the employee parties to the dispute may be identified with sufficient particularity by reference to a class of employees. Further, in the event that there is some uncertainty about who belongs to the class of employees or further information is required to enable the employer, as a matter of natural justice, to understand the case it has to meet in dealing with the dispute, including the names and circumstances of employee parties to the dispute, then directions can be sought from, and made by the member of the Commission dealing with the dispute. In the event that a party to a dispute is directed to provide such additional information and refuses to do so, it may provide a foundation for the Commission to exercise its discretion to dismiss the application, decline to grant any relief, or take some other course." [3]

[18] Although the Full Bench noted that some circumstances may require disclosure of the names of the represented employees, the NTEU submitted that those circumstances do not extend to the present matter, and that the notice of the class of employees being represented - those affected by the Change Proposal - is sufficient for clause 9(b) of the Agreement.

[19] The University also cited Asciano. Ms Cray argued that rather than being a representative of a class, the NTEU under this enterprise agreement is required to identify the employee or that an employee has requested a representative, so there is sufficient particularity to allow the employer to able to understand the case it has to answer. Ms Cray argued that is the absence of such information, individual circumstances including names and circumstances of employees is required so that there is natural justice for an employer in understanding the matters in dispute.

[20] It is agreed that NTEU did represent at least one employee during the dispute before the application. In addition, the NTEU has sought to resolve the issues as a representative as indicated in the statements of the NTEU witnesses.

[21] The University's counter is that general discussions about the change proposal do not mean those staff members have brought this dispute or that the NTEU is acting as a representative of a member of staff in relation to the dispute.

[22] Ms Cray submitted that Mr Wally Thompson's participation in precursor meetings (preceding the change proposal) does not touch on the matters of work to be distributed. Therefore the University cannot respond to the substance of the dispute because the actual individual circumstances affected by the dispute are not stated.

[23] Further, according to JCU, the Agreement does not allow a representative appointed by staff member for one purpose to claim for themselves a general authority to make decisions for that staff member or to participate in other processes under the Agreement as a representative. Further specific appointment or authorisation from relevant staff member is needed. It argued that the Agreement requires representatives to be appointed for a particular purpose referring to:

1. Clause 9 - staff members may be assisted, or supported by representative subject to requirements of the staff member inform their supervisor they will be represented prior to any discussions;

2. Clause 42.1(b)(ii) - re issuing documentation about proposed changes to directly affected staff and where they choose their representative when nominated as defined in clause 9; and

3. Clause 42.1(c) - detailing consultation about a specific change proposal.

[24] Ms Cray submits that clause 42.1(b)(ii) requires the issuing of documentation about proposed changes to directly affected staff is a requirement under the enterprise agreement of the University.

[25] Is it sufficient for the NTEU when bringing a dispute concerning clause 42.1(b)(ii), in particular sub-clauses A and D to identify the class of employees the subject of the dispute, or is it necessary to identify directly affected staff in order to enable the employer to understand the case it has to meet?

[26] Both the NTEU and the University properly identify that any dispute must comply with the clause 44 being the dispute resolution clause in the enterprise agreement.

[27] Clause 44(b) provides that a dispute may be raised by a representative.

[28] Clause 9 then recognises that staff may be supported by our various types of representatives.

[29] That recognition of the representatives occurred in April 2018 during discussions which included specifically raising the issues that are now in dispute. Ms Pope noting in oral evidence that NTEU had been asked to go to meetings.[4]

[30] I also consider that the NTEU can properly rely, in these circumstances, on the decision in Asciano in that it has properly identified that it represents a class of employees, being those that are affected by the change management proposal. It follows that I do not agree with the University submissions that it cannot understand the case it has to meet without names and circumstances of employees said to be represented.

[31] While this may be the case in some matters, the issues that are in dispute are only within the knowledge of the employer. Having identified the class of persons being those the subject of the change management proposal, only the University who can identify the extent and nature of the change proposed.

[32] Given that a dispute may be raised by a representative under clause 44(b), I conclude that the NTEU had been and continued to represent staff in the change process. It is clear from the evidence that the University was aware of the representation. The mere fact that at some discussions staff were not represented but attended only in person cannot be taken to mean the staff member no longer wished to be represented. On that basis the NTEU was a representative for the purposes of clause 9.

[33] The jurisdictional objection is dismissed.

[34] The dispute arose when the University commenced the initial stages of restructuring, by circulating a Change Proposal and holding meetings with potentially affected employees. The Change Proposal cited declining enrolment figures and a decrease in funding amongst various other factors and notified employees this would necessitate major changes including the cancellation of certain programs and services, and redundancies associated with those cancellations.

[35] The NTEU raised the dispute with the University's Human Resources Director and the parties attempted unsuccessfully to resolve the dispute between themselves on a number of occasions. The NTEU then escalated the dispute to the Commission in accordance with the Agreement's dispute resolution procedure.

[36] The NTEU considers the University has not complied with Clause 42.1(b)(ii)(A) and (D):

(ii) Where there is a specific change proposal, the University will issue documentation to directly affected Staff and where they choose, their representative where nominated as defined in Clause 9, outlining the change. The documentation will include:

A. The extent and nature of the change proposed, including where possible identifying what work is no longer to be done by anyone and what work will be transferred to other Staff;

[37] The NTEU submits that the change proposal released by the University fails to comply with Clause 42.1(b)(ii)(A) as it fails to contain the substance which is required by that clause.

[38] In particular that the change proposal does not identify what work is no longer required to be done by anyone and what work will be transferred to other staff.

[39] Further that at no time has the Respondent claimed that it was not possible to do so and made statements that suggest this information was available to the respondent.

[40] As to when this information is required, Mr Smith submitted as follows:

"On the issue of what work is no longer to be done or transferred to other staff, the respondent's case is that the small nature of the teams involved means that affected staff can infer what work will no longer be required. This position is not consistent with the requirements of the clause. On the University's evidence they do have an idea of what work will no longer be done but submit that this is information will trickle out as the plans are formulated and confirmed.

The NTEU's position is that this is not what the clause requires and the appropriate time for this information to be provided, where possible, is in the initial change proposal that signifies the commencement of the formal change process, where there is a specific proposal that will have significant impact on staff as required by clause 42.1(b)(ii)(A)."[5]

[41] That is, where possible the information should have been provided on 18 April 2018 - on the date the change proposal was released.

[42] The NTEU confirmed that it understood that as a result of staff feedback the position may change, as a result of consultation.

[43] NTEU submits that there is a new obligation under the Agreement compared with the earlier agreement by the inclusion of the words 'where possible identifying what work is no longer to be done by anyone and what work will be transferred to other staff'.

[44] The NTEU explains these words put a deliberate emphasis on identification of the work which would either disappear following redundancy, or will be reallocated to other staff. It allows affected staff an opportunity to contribute to and influence the decision-making process in so far as what work can reasonably disappear and whether allocation of the remaining work falls within the requirement of the Agreement.

[45] As to the University's reference to 'where possible' it is the NTEU's argument that the University has not sought to argue that it was not possible with respect to this change proposal.

[46] In particular at a JCC meeting on 26 April 2018 the University indicated that it had examined what work could be transferred to other staff but this information was not provided in the change proposal.

[47] The Union submits that the change proposal details under the headings 'staff impact' with its references to workload does not sufficiently identify work but simply restates the University's obligation with respect to a proper workload management.

[48] Further Ms Pope's evidence indicates that the University had further detail about the work that was no longer to be done by anyone and this should have been provided in the change proposal.[6]

[49] The NTEU seeks a reissue of the change proposal in accordance with the terms of clause 42 of the Agreement.

[50] The NTEU argues that the change proposal does not include information on the timeframe for the change, only an anticipated timeframe for the consultation period. This timeframe would need to include implementation of proposed changes including the 'teachout' periods and propose dates for redundancies.

[51] The University submits it has provided information about the extent and nature of the proposed changes. This includes specific information under the headings 'staff impact'. Examples include the teacher plans and specific proposals for duties of particular positions to be redistributed to other staff.

[52] Reference is made to the decision in NTEU v Victoria University[7] that any work transferred will be consistent with work guidelines.

[53] The University rejects that any more information is to be included in the change proposal, or that the information provided is insufficient for affected staff in the work areas with expertise and skills in the relevant areas to address workload distribution.

[54] The University emphasises the words 'where possible' in the clause.

[55] The University submits the change proposal complies with the requirement that it include information about the "Timeframe for the change."

[56] It further submits the change proposal contains an estimated date for a decision on the proposed changes as well as outlining the schedule for the consultation process. Implementation plans should be included in the change plan document, not the change proposal under clause 42.1(c)(vi).

[57] The NTEU refers to established principles in interpreting industrial instruments[8] - the avoidance of narrow or pedantic approach and the necessity to read any clause in context. It notes the insertion of a new clause in the Agreement and essentially states that it must have some work to do.

[58] The question then is what obligations does the clause place on the University and when can those requirements be met?

[59] Clause 42.1(b)(ii)(A) requires the University, to the extent it is possible, to identify work that is no longer to be done by anyone and what work will be transferred to other staff.

[60] The identification and obligation to communicate about that work rests with the University. It is the University's obligation to identify the work no longer to be done and the work to be transferred. Consultation then occurs after the University has met its obligation to issue documentation to directly affected staff. While the University should respond to any enquiries from staff as it indicated it would do so,[9] it is separate from the obligation in clause 42.1(b)(ii)(A).

[61] As to the timing of the obligation identified above, the University submits that the words in the Agreement support a process of identifying what work will cease or transferred to other staff as ongoing process and makes reference to the similar words in the change plan. The NTEU submits had sufficient evidence about work that would be transferred but chose not to include this information in the change proposal when it was released on 18 April 2018.

[62] For the following reasons I conclude that this information can be identified and documentation issued throughout the consultation period.

[63] Given the change proposal document is the first step in the formal consultation process where there is a specific change proposal, the University is required to itemise how it will redistribute particular tasks to particular members of staff as part of the documentation issued as part of the change proposal. Such documentation can, to the extent it is known, be provided on 18 April or throughout the consultation period. It is relevant to note that the 2016 agreement expanded on the words in this clause from that in the 2013 agreement. However, the obligation on the University is not time dependent. The documentation to affected staff may be issued during consultation. The words added in the 2016 agreement do not change the timeframes; they affect, and expand, the detail to be provided.

[64] Clause 42.1(b)(ii) contemplates an iterative and ongoing process of change management, but the obligation is on the University to provide the documentation, and not on affected staff members or their representative to initiate or request information exchange.

[65] The NTEU argued that the University must provide a timetable for consultation on the provision of the change proposal under clause 42.1(b)(ii)(D).

[66] I do not agree. As noted, the change management process under the Agreement is iterative and ongoing, even if there are two major triggers in the change proposal and the change plan. The Agreement does not prescribe a process such as that urged by the Union. I accept the University's submissions that following consultation, a change plan will be prepared including responses to issues raised in the consultation. I also note that the University is not precluded from revising the change proposal should that be prudent. However the University is obliged under the Agreement to advise staff of the timetable for change.

[67] I do not intend to issue orders arising from my decision at this stage but I would expect:

1. Throughout the consultation period, the University issue documentation to affected staff and their representatives that details the work the University has identified is no longer to be done by anyone or that will be transferred to other staff, noting that it is not necessary for an employee or the employee's representative to first raise with the University their concerns about being possibly affected by any change;

2. During consultation, the University provide documentation to directly affected staff and their representatives about the timeframe for proposed change.

[68] I have not provided for a further period for consultation and invite the parties to negotiate a suitable reasonably short extension for consultation on the change proposal.

[69] Should this approach not resolve the matters, either party is at liberty to apply for orders to be issued or a further conference of the matter be convened.

[1] Witness Statement of Peter Walley-Thompson dated 15 May 2018, at [9].

[2] Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd T/A Pacific National [2017] FWCFB 1702.

[5] Transcript 24 May 2018 at PN152-153.

[7] [2017] FWC 3479 at [88]

[8] Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182; Amcor v Construction, Forestry, Mining, and Energy Union [2005] HCA 10 at [30].

[9] See Witness Statement of Belinda Pope dated 22 May 2018, at [26].

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