National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 | Case summary

Jessup J 1 In this proceeding, the applicant, the National Tertiary Education Industry Union ("the Union"), seeks certiorari and mandamus in relation to a decision of the second respondent, the Fair Work Commission ("the Commission") made on 16 December 2014, wherein the Commission granted an application made under s 185(1) of the Fair Work Act 2009 (Cth) ("the FW Act") by the first respondent, Swinburne University of Technology ("the University") for the approval of an enterprise agreement said to have been made under Div 4 of Pt 2-4 of the FW Act. The Union's case is that the Commission misapprehended the statutory task in which it was involved, and, as a separate point, denied it natural justice. 2 For reasons which follow, I consider that the Union's first ground of jurisdictional challenge should be upheld. The Commission did misapprehend its task. 3 Negotiations commenced for a new enterprise agreement to cover the academic, general and executive staff of the University in February 2013. The Union was a bargaining representative for employees under the proposed agreement. In February 2014, the University provided access to a copy of a proposed agreement to its staff, ostensibly in compliance with s 180(2) of the FW Act. Pursuant to s 181(1) of the FW Act, the staff were requested to approve the agreement by voting for it. 2005 persons who received such a request cast a vote which was considered valid, and 1031 of these voted to approve the agreement. It was this process of approval which was endorsed by the Commission in its decision of 16 December 2014, and which is now challenged by the Union. 4 Division 4 of Pt 2-4 of the FW Act provides for the approval of enterprise agreements. An agreement must be approved by the employees to whom it will apply, in the manner specified by the FW Act, and by the Commission. The provisions of the FW Act under which these steps must be taken are of central importance in the present proceeding. 5 Section 181(1) of the FW Act provides as follows: An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it. The procedure available to an employer under s 181(1) is, however, subject to s 180, subs (1), (2), (3) and (4) of which are as follows: (1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section. (2) The employer must take all reasonable steps to ensure that: (a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials: (i) the written text of the agreement; (ii) any other material incorporated by reference in the agreement; or (b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials. (3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement: (a) the time and place at which the vote will occur; (b) the voting method that will be used. (4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1). The terms of s 180(2)(a) and of s 181(1) are critical in the present case, and I shall return to them. For the present, it should be noted that each uses the expression "the employees employed at the time who will be covered by the agreement". 6 Section 182(1) of the FW Act provides as follows: If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement. Relevantly to the facts of the present case, one then passes to s 185(1), which provides as follows: If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement. In the facts of the present case, it was the University which applied to the Commission for approval of the agreement which it had put to its staff in February 2014. 7 The Commission's obligation upon receipt of the University's application under s 185(1) was the subject of s 186(1) as follows: If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met. Although the requirements of ss 186 and 187 are detailed, that which is relevant in the present case is the subject of s 186(2)(a), as follows: The FWC must be satisfied that: (a) if the agreement is not a greenfields agreement - the agreement has been genuinely agreed to by the employees covered by the agreement…. 8 What constitutes genuine agreement by the employees covered by the agreement, as required by s 186(2)(a), is the subject of s 188, as follows: An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that: (a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement: (i) subsections 180(2), (3) and (5) (which deal with pre-approval steps); (ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and (b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and (c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. Of particular relevance in the facts of the present case is para (b) of this section. 9 In the present proceeding, the Union's main contention is that the Commission misdirected itself when considering whether it should be satisfied that the agreement proposed by the University had been made in accordance with s 182(1) of the FW Act. Specifically, it is said that the Commission asked the wrong question when considering whether a majority of the University's employees "employed at the time" cast a valid vote to approve the agreement. 10 On the facts as found by the Commission, the persons to whom the agreement was made available under s 180(2), and the persons requested to vote under s 181(1), included all those who were, in February 2014, employed by the University on any view. But, in the case of sessional academic staff, they included also every person who had been engaged at any time in the 2013 academic year. Before the Commission, the Union contended that this would necessarily have included a number of persons who were not employed "at the time" apropos the steps which the University took in February 2014 to secure approval of the agreement. As the Commission pointed out in its decision of 16 December 2014, the sending of voting papers to persons not entitled to vote under s 181(1) would not be fatal: regardless of who was asked to vote - and, indeed, of who did vote - the question would always be whether a valid majority of those who were entitled to vote and did vote had approved the agreement. Notwithstanding that distinction, the Union had a point insofar as it proposed that the extension of the opportunity to vote to those who were not entitled to vote made the provision of the correct answer to the statutory question a more problematic one, in that it was no longer sufficient to treat the votes of a majority of those who voted as sufficient to provide that answer. 11 In its decision of 16 December 2014, the Commission identified the task before it as follows: [19] The central question is how casual or sessional employees of Swinburne are treated for the purposes of these provisions. Sessional academic staff at Swinburne are engaged under standard contractual terms comprising an application for sessional academic engagement, the terms of the enterprise agreement and supplementary documentation regarding specific appointments. Under the standard terms, payment is made on the basis of timesheets authorised by the nominated supervisor/manager or a signed sessional work schedule. The standard terms provide that "where possible, the sessional employee is required to give the University 24 hours notification of casual hours that they are unable to undertake teaching or if terminating the engagement." Later in its reasons, the Commission said: [28] … The 2014 academic year commenced on 3 March 2014. Sessional academic staff are commonly engaged in the first week of the academic year. The sessional staff engaged in the first week of the academic year would be likely to have included staff who had been employed as sessional employees the previous year and those who were not. [29] In contrast, the voter roll for the ballot to approve the 2014 Agreement was compiled having regard to whether a sessional employee had performed any work for Swinburne in the previous 12 months before the closing of the ballot to approve the 2014 Agreement. This list will probably have included some sessional employees who did not seek to work as sessional employees in 2014 and some employees who Swinburne did not ultimately engage to perform sessional work during the course of 2014. 12 Having referred to the provisions of the FW Act that dealt with enterprise agreements in certain respects, the Commission continued: [31] In our view, these provisions require the adoption of a practical approach to the determination of "employees employed at the time" of the request who may be requested by an employer to approve an agreement under s. 181. It is entirely appropriate in our view to include casual or sessional employees in the request. The question becomes how to determine which casual or sessional employees are to be included in the request, and which employees should be excluded. The question needs to be determined by reference to the nature of the employment and the employment patterns in the industry and the employer's enterprise. Considerations such as the timing of the ballot will also be relevant. The employer will also need to determine whether persons identified by it as "employees employed at the time" are also persons who "will be covered by the agreement", that is, whether the agreement purports to cover those persons (without the notion of futurity). [32] An employer should adopt an objective, transparent and logical approach designed to ensure that employees who will be covered by the agreement will be requested to vote to approve the agreement, but that employees who will not be covered by the agreement because the employee will not be employed or engaged by the employer when the agreement is approved or is outside the coverage of the agreement are not requested to approve it. We therefore reject the notion that only casual employees actually working on the day or days of the ballot or on the day of the request are eligible to vote. In our view the relevant test is whether the person is employed, or usually employed having regard to the matters set out above, not whether the person was working or attending work when the request was made or when the ballot took place. For the purposes of Part 2-4 of the Act "employee" means a "national system employee". The test we propose accords with the definition of ["]national system employee". [33] In the present context, for an approval vote that is undertaken prior to the commencement of the academic year, it is appropriate to include sessional academic employees who were engaged during the previous academic year unless there is a basis for the employer to believe that a particular sessional employee is not likely to be engaged in the ensuing year. A person who, though employed as a sessional employee in the previous academic year, is not likely to be employed in the subsequent academic year cannot in our view be said to be employed or usually employed, and is therefore not "employed at the time" within the meaning of s. 181(1). This approach is consistent with the approach adopted by North J in AMIEU v Belandra Pty Ltd [(2003) 126 IR 165]to the meaning of the phrase "usually an employer" found in s. 4(1) of the [Workplace Relations Act 1996] and we see no sound reason for departing from it. [34] In our view, it would be prudent for Swinburne to make reasonable and diligent enquiries so as to exclude any sessional employees who have communicated their unavailability for engagement in the ensuing academic year and any sessional employees who Swinburne has decided it will not engage as a sessional employee in the ensuing academic year. [35] For a ballot held during the course of an academic year a different approach may be warranted. In such a case, the inclusion of a sessional employee engaged during the previous academic year, but who has not been engaged in the current academic year may only be appropriate if there is a sound basis for believing that the person is likely to be engaged at a subsequent time in the academic year, for example as a tutor in a unit to be offered only in the second semester. [36] It is nevertheless possible that a person who cannot be said to be employed or usually employed might be requested to vote to approve an agreement. The significance of this will vary according to the circumstances. Voting to approve an agreement is voluntary and the level of participation in the vote may vary considerably. If a sessional employee obtains full time employment elsewhere, and is therefore unlikely to be employed again as a sessional employee in the next academic year, there is a lesser likelihood of that employee casting a vote than if the employee was seeking ongoing sessional work at Swinburne. This is a consideration in determining the legitimacy of Swinburne's approach to the determination of the sessional employees requested to approve the agreement and in determining whether there are no other reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees. [footnotes omitted] 13 In one of the paragraphs set out above, the Commission referred to a person being "employed or usually employed" by the employer in question. The significance of that was that, in Pt 2-4 of the FW Act, an "employee" is a "national system employee", and "employer" is a "national system employer". By s 13 of the FW Act: A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement. Under s 14, a "national system employer" can be any one of a number of listed persons or entities (eg "a constitutional corporation"), "so far as it employs, or usually employs, an individual". That is to say, an individual will be a national system employee as defined if he or she is usually employed by a national system employer, even if he or she is not in employment at the time to which the inquiry relates (eg he or she may be between jobs). 14 The Commission did not require the University to establish how many of the 2005 voting employees were employed "at the time" apropos either s 180(2)(a) or s 181(1) of the FW Act. Neither was it known how many of the 1031 voting in favour were so employed. But these two statistics were necessary, in my view, before the Commission could have satisfied itself that, of those who were employed at the time and voted, a valid majority voted in favour. What the Commission did was to accept the University's "cohort" - as it was described by its counsel in this proceeding - of those eligible to vote, to record the number who did vote (2005) and, after taking account of a number of individuals to whose particular circumstances the Union had drawn attention, to find that, on any view, a majority of those who voted approved the agreement. 15 As mentioned, the University's cohort included all sessional academic staff who had been employed at any time in 2013, that is to say, over a period of 12 months before the s 181 request was made. In the Full Court, counsel for the University invited us to hold that every person who completed an "application for sessional academic engagement" of the kind referred to by the Commission in the passage set out in para 19 of its reasons (see para 11 above), and whose application was accepted, remained in the employ of the University until he or she informed the University of his or her intention to undertake no further work there. We were also invited, in effect, to take it as a given that the cohort to whom the s 181 request was addressed was made up of individuals in this category. Those invitations should not be accepted. Although a pro-forma for an application of the kind referred to was in evidence before the Commission, the case before it was not decided by reference either to the legal nature of the relationship brought about the execution, and acceptance, of a form in those terms or to a finding as to how many of those to whom the s 181 request was addressed had in fact executed such a form and had not subsequently indicated that they desired to have no further work from the University. 16 As the Commission made clear in para 32 of its reasons, the case before it was decided by reference to the view that s 181 both permitted and required the University to address its request to all individuals who were then "usually employed" by it. As the Commission said, this was the "relevant test". Furthermore, it is apparent that the Commission treated anyone who had been sessionally engaged at any time in 2013, and who had not been shown (eg by the Union's evidence) to have left the employ of the University, as being "usually employed" in February 2014. Whether the Commission was correct in so identifying the task which lay before it requires me to return to the applicable provisions of the FW Act. 17 The foundational provision is s 172(2), which authorises an employer to make a single-enterprise agreement "with the employees who are employed at the time the agreement is made …." An "employee" is "an individual so far as he or she is employed, or usually employed" by a national system employer (s 13). Reading this definition into s 172(2), the employer may make the agreement with the individuals who are employed, or usually employed, by the employer, but only to the extent that they are actually employed at the time the agreement is made. So to read s 172(2) does not have the effect of ignoring so much of the definition of "national system employee" as refers to an individual who is usually, but not immediately, employed by the employer. Rather, it recognises the legislative intention of confining, from within a broad class which include individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made. 18 By s 182(1), the agreement is "made" when a majority of the employees who have been asked to approve the agreement under s 181(1), and who cast a "valid vote", approve the agreement. This fixes the point in time at which the agreement is made for the purposes of s 172(2). It is a point, however, which comes at the end of a process mandated by other provisions of Pt 2-4 of the FW Act, and it is necessary to take them into account also. 19 By s 173(1), the employer "must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who … will be covered by the agreement; and … is employed at the notification time for the agreement." As with s 172(2), there is here a preoccupation with the employment status of the individual at a particular time. What constitutes the "notification time" is the subject of detailed attention in s 173(2): it is when the employer agrees to bargain, or initiates bargaining. By s 173(3), the notice must be given as soon as practicable after the notification time, and in any case not more than 14 days after that time. The remaining provisions of Div 3 of Pt 2-4 are concerned with bargaining, and do not require further consideration here. 20 By s 181(1), the employer may "request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it". By s 181(3), the vote may be "by ballot or by an electronic method". However, by s 181(2), this request may not be made until at least 21 days after the last notice under s 173(1) in relation to the agreement has been given. This shows that s 173(1) allows for representational rights notices to be given to employees at different times: they must, however, be given within the 14-day period referred to in s 173(3). 21 Section 180 refers to an "access period for the agreement", being "the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1)". This, presumably, is the point in time at which the employer makes the request there referred to. By s 180(2), the employer must take all reasonable steps to ensure that, during this "access period", "the employees … employed at the time who will be covered by the agreement" are given a copy of the agreement and of the other materials referred to. These employees are, by way of shorthand, referred to as "the relevant employees", and, by subs (3), the employer must also, by "the start of the access period", take all reasonable steps to notify them of the time and place at which the vote will occur and of the voting method that will be used. 22 Putting these provisions together in the chronological order which is implied by their terms, the following is the scheme contemplated. First, the employer agrees to bargain or initiates bargaining. Secondly, there is then a period of 14 days during which the employer gives the representational rights notices to the employees who were employed when the employer agreed to bargain. Thirdly, bargaining takes place. Although that process is not directly relevant to the subject here being considered, it should be noted that at least 21 days must pass after the giving of the last representational rights notification and the employer's request under s 181(1). But there appears to be no outer limit to that period. Fourthly, the employer gives a copy of the agreement upon which it is proposed that the employees should vote, and other required materials, to the employees employed at that time. Fifthly, no more than seven days later, the employer requests the employees who are employed at that time to approve the agreement by voting for it. Sixthly, when a majority of those employees who cast a valid vote approve the agreement, the agreement is made. 23 It will be seen that, broadly, this scheme of things is divided into three stages: pre-bargaining steps, bargaining, and the making of the agreement. As noted above, although there are specific time limits for the taking of some of the required, or permitted, steps, there is no time limit on bargaining. There is no reason why bargaining may not take many months, and we may, I consider, take judicial notice of the fact that it sometimes does. The legislature must have contemplated that employees would, in the normal course of labour turnover, come and go during an extended bargaining period. There should, therefore, be no assumption that the employees employed at the notification time for the agreement under s 173 would be the same employees as those employed "at the time" of the provision of a copy of the agreement under s 180, or as those employed "at the time" of the employer's request under s 181. 24 Indeed, in my view, the legislature must be taken to have made the contrary assumption. The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme. 25 It is not necessary to consider whether employees to whom a copy of the proposed agreement was given under s 180 should, or may, be included within the requested group under s 181. The present case does not depend on such fine distinctions. However, and although the question was not argued, I would be disposed to the view that the "time" referred to in s 180(2)(a) is the whole of the "access period". Since that period is, at its later boundary, contiguous with the time of the request under s 181, the better view may be that such employees should be so included. 26 The provisions to which I have referred bespeak the giving of such detailed attention to the rights and obligations of the parties concerned, and to the means by which an agreement is approved and thus made, that it would be, in my view, a distraction to decide issues such as that arising in the present case by reference to the high-level truism that an employee includes an individual who is usually employed by the employer concerned. If a purely grammatical justification is needed for that view, it may be found by treating the words "employed at the time" in s 181(1) as limiting apropos "employees". Not only is that a satisfying grammatical reading of the whole phrase, it accords strongly with the purpose of this provision, and those associated with it. 27 Returning to the facts of the present case, the University included in those to whom requests were addressed ostensibly under s 181(1) everyone who had been employed, to any extent, in 2013. At the general level, the Commission endorsed that approach because it read the provision as including those who were "usually employed" as being within the expression "employees employed at the time". For reasons I have given, that was a misreading of s 181(1). In the course of what became an adversarial proceeding under s 186, and largely as a result of the intervention of the Union, the "cohort", as it was called, endorsed by the Commission underwent some excisions. But the Commission's misapprehension of the requirements of s 181(1) affected the process at a more fundamental level than could be rectified by these excisions. Because of the wrong test which the Commission applied, it could not have been satisfied of the answer to the correct question, namely, whether a majority of those who were employed by the University at the time when it made its s 181 request, and who cast a valid vote, approved the agreement. 28 For the above reasons, I regard this as a case in which the Commission misapprehended its function, and thus as a proper case for the grant of mandamus. I would also grant certiorari to quash the order made by the Commission on 16 December 2014. 29 In the circumstances, it is not necessary to consider the Union's natural justice point. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

REASONS FOR JUDGMENT PAGONE J 30 I have had the benefit of reading a draft of the reasons of Jessup J and agree with the orders he proposes but have a different view about the Commission's construction of the relevant provision. 31 The Union contended in this appeal that the Commission's decision was affected by five jurisdictional errors. The first error was said to be the adoption of an erroneous construction of the words "employees" and "employees employed at the time" in s 181(1) of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). Section 181(1) permits an employer that will be covered by a proposed enterprise agreement to request the employees to approve the agreement by vote. The class of employees whose approval may be sought by vote is described in the section as "the employees employed at the time who will be covered by the agreement". The section provides: An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it. The persons who were requested by Swinburne to vote included sessional teachers employed in the previous year. The Union contended that the sessional teachers employed in the previous year did not fall within the statutory class of employees eligible to vote because they were not "employees employed at the time". 32 The construction of the words "employees employed at the time who will be covered by the agreement" which was adopted by Swinburne, and accepted by the Commission, was one that included persons who might not actually be engaged in employment at the time of the vote but who were argued to come within the broader meaning of employees, namely as persons who were "usually employed" at that time. That construction was not, in my view, erroneous. The word "employees" in s 181 has its ordinary meaning extended by s 15 of the Fair Work Act to a person who is usually such an employee. Section 15 provides: 15 Ordinary meanings of employee and employer (1) A reference in this Act to an employee with its ordinary meaning: (a) includes a reference to a person who is usually such an employee; and (b) does not include a person on a vocational placement. Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State. (2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer. Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State. The express inclusion of a person who is "usually" an employee into the ordinary meaning of the word "employee" extends the class of persons treated as employees. The class of persons treated as employees is thus made to include those, to adopt the words in Re National Wine Centre Certified Agreement (PR910912, AIRC, Adelaide, 8 November 2011) at [40], where there is "a level of regularity and connection between [the] employee and the employer". The words "employed at the time", which follow the word "employees" in s 181(1), do not undo the extension of the category of employees effected by s 15 but, rather, ensure that there is a temporal connection between the time of voting and the circumstances required to exist to come within the extended meaning given to "employees". Thus a person will be entitled to vote under s 181(1) if that person is (at the time of voting) an employee in the extended sense effected by s 15, namely, that the person is "usually" such an employee at the time albeit not an employee in the ordinary (unextended) meaning. 33 The Union accepted that the class of people eligible to vote under s 181 was not restricted to those within the ordinary (unextended) meaning of the word "employee"; that is, that it was not restricted only to those persons who had an existing employment relationship at that time but extended also to persons who were usually employed at the time of the vote. In that regard the Union, in my view, correctly accepted that the applicable principles had been set out by the Commission in its reasons at [23]-[25], and accepted that the identification of those employees who were eligible to vote required finding an "ongoing relationship involving an engagement regarding future work to exist 'at the time'". The Union's contention, however, was that the Commission erred in the application of those principles by accepting Swinburne's approach of including within the class of persons "usually" employed those who had been employed in the preceding academic year unless they were shown not to be usual employees. 34 The extension of the class of employees to those who are "usually" employees requires a factual inquiry into the nature of the relationship between the putative usual employer and the putative usual employee. The factual inquiry called for will vary with the circumstances and need to accommodate some uncertainty and be applied with some latitude. The employees, for example, considered in National Wine Centre at [40] included both casual members and those who "were part of a relatively small pool of casuals who [were] a necessary and integral part of the operations of the" workplace. The same description might be given to the sessional academics included by Swinburne in the ballot. A workplace may depend upon a more or less regular pool of persons who are regularly drawn from for sessional or casual employment. A person may fall within the statutory description of being usually employed if that person is part of a pool of persons regularly drawn from for employment by an employer. Whether or not a person comes within the statutory criterion depends upon the facts and the basis upon which the statutory criterion is applied to the facts. In Australian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165, North J said at [42]-[43]: 42 The issue, then, is whether the facts of the present case demonstrate that Belandra was "usually an employer"? Mr Parry argued that in order to qualify as "usually an employer" there must be some proximity of employment. The person must have either been an actual employer just prior to the time in question, or must have employment of workers in prospect. He contended that Belandra had not been an actual employer since the fire in June 2001, and therefore, at the time of the alleged breach in September 2001, it had not been an actual employer for about two and a half months. Further, Belandra did not intend to be an employer in the future. It had no managers or supervisors, and it did not have any premises. In that sense, he submitted, Belandra had no operation in which it could employ people. 43 Whether a person is usually an employer is a question of fact to be determined in the light of all the circumstances in each case. There is no formula appropriate in all cases which can be used to answer the question. As to a past employment relationship, it may be relevant to know how long ago the person ceased to be an actual employer or to understand why the person ceased to be an actual employer. As to future employment, it may be relevant to know when such employment is to commence or resume, and the circumstances of any delay in commencing or resuming employment. The factual inquiry for the application of the statutory criterion is an inquiry into the existence of a "level of regularity and connection" between employee and employer. That inquiry, as the Union accepted as needing to be undertaken, will vary with the different circumstances in which the inquiry is undertaken. The relevant people must be usual employees "at the time" of the ballot but they need not actually be employed at that time. What must exist at the time is the arrangement or relationship that warrants the conclusion that the people, although not at that time employed, are, nonetheless, usually employed. 35 The Commission's consideration of these issues was directed to satisfying itself that those who were asked to vote had the relevant relationship in that sense at that time. In that exercise it needed to take into account the specific workplace existing at Swinburne. In that regard, the Commission said at [26]-[35]: [26] In our view it is necessary and appropriate to adopt an interpretation of the phrase "the employees employed at the time" that is grounded in the practical reality of the employment circumstances taking into account the statutory purpose and context of the bargaining and agreement making provisions of the Act. In this regard, the nature of the employment in the enterprise in which an agreement will operate is clearly relevant. Swinburne is a large multi campus tertiary institution employing more than 3,000 employees. The 2014 Agreement put to employees for approval covers academic and general staff employed on a full time, part-time and casual basis. Casual academic staff are professional employees, often undertaking post graduate study, and usually employed as tutors in a field in which they have particular expertise. It may be that they are engaged in particular teaching units that are not offered in every semester throughout the year. It may be that they are engaged on a sporadic basis. Casual general staff are usually not professional employees. They perform clerical or manual work on a casual basis. The need for engagement of casual general staff may vary from time to time. [27] Pursuant to clause 65 of the 2009 Agreement, Swinburne provided the NTEU with a list of casual employees. It produced a list on 21 March 2014, about three weeks after the ballot to approve the 2014 Agreement closed. The list was compiled in accordance with clause 65 which provides: "65 STAFF LISTS (1) Subject to clause 65.4: (a) Every March and September, the University shall provide to the NTEU a list of the name, job title, category (general/academic), work location, work address and email address of each employee in a format which allows the list to be sorted by any of these categories; (2) The NTEU shall only use the information provided for contacting employees on legitimate union business. It shall ensure that no one apart from paid union officials or elected senior officers of the Union Branch (President and Secretary) have access to the information. The University shall not be required to continue to provide the information specified in this clause if the Union materially breaches these obligations. (3) The NTEU shall not use this information to contact an employee if the employee has requested the Union directly in writing that the employee does not wish to be contacted, and shall include advice of this from time to time in material provided to employees. (4) The University: (a) will notify staff of this clause and will offer employees the option of requesting that information not be provided to the NTEU; and (b) will suspend the provision of any information under clause 65.1 if there is on foot a bona fide challenge or complaint from an employee in relation to the compliance of the clause with privacy legislation to: - the University's privacy officer or a State or Federal privacy office, in which case the suspension shall be for a maximum period of 3 months but no more than the period until the matter is dismissed by the relevant privacy office(r); or - a tribunal or court, in which case the suspension shall be until the matter is determined in which case the determination will be implemented by the parties where the parties have had the opportunity to participate in those proceedings." [28] The requirements under clause 65 do not include taking into account the number of hours worked by employees in the previous 12 months. The list is compiled having regard to whether Swinburne has information falling within all of the criteria specified in clause 65(1)(a). Employees are able to opt out of being included in the list under clause 65(1)(4)(a) [sic]. The 2014 academic year commenced on 3 March 2014. Sessional academic staff are commonly engaged in the first week of the academic year. The sessional staff engaged in the first week of the academic year would be likely to have included staff who had been employed as sessional employees the previous year and those who were not. [29] In contrast, the voter roll for the ballot to approve the 2014 Agreement was compiled having regard to whether a sessional employee had performed any work for Swinburne in the previous 12 months before the closing of the ballot to approve the 2014 Agreement. This list will probably have included some sessional employees who did not seek to work as sessional employees in 2014 and some employees who Swinburne did not ultimately engage to perform sessional work during the course of 2014. [30] It is also important to note the nature of an enterprise agreement under the Act. An enterprise agreement while in operation imposes obligations on employers and employees covered by the agreement. An agreement applies to employees expressed to be covered by it when the agreement is in operation, unless excluded by a provision of the Act. Hence an enterprise agreement applies to the class of employees described in the coverage clause of the agreement, regardless of whether they voted in the ballot for the agreement, whether they supported the making of the agreement, or whether they were employed at the time the agreement was made. Similarly, an employee who voted to approve an agreement may leave the employment and cease to be covered by it. [31] In our view, these provisions require the adoption of a practical approach to the determination of "employees employed at the time" of the request who may be requested by an employer to approve an agreement under s. 181. It is entirely appropriate in our view to include casual or sessional employees in the request. The question becomes how to determine which casual or sessional employees are to be included in the request, and which employees should be excluded. The question needs to be determined by reference to the nature of the employment and the employment patterns in the industry and the employer's enterprise. Considerations such as the timing of the ballot will also be relevant. The employer will also need to determine whether persons identified by it as "employees employed at the time" are also persons who "will be covered by the agreement", that is, whether the agreement purports to cover those persons (without the notion of futurity). [32] An employer should adopt an objective, transparent and logical approach designed to ensure that employees who will be covered by the agreement will be requested to vote to approve the agreement, but that employees who will not be covered by the agreement because the employee will not be employed or engaged by the employer when the agreement is approved or is outside the coverage of the agreement are not requested to approve it. We therefore reject the notion that only casual employees actually working on the day or days of the ballot or on the day of the request are eligible to vote. In our view the relevant test is whether the person is employed, or usually employed having regard to the matters set out above, not whether the person was working or attending work when the request was made or when the ballot took place. For the purposes of Part 2-4 of the Act "employee" means a "national system employee". The test we propose accords with the definition of national system employee". [33] In the present context, for an approval vote that is undertaken prior to the commencement of the academic year, it is appropriate to include sessional academic employees who were engaged during the previous academic year unless there is a basis for the employer to believe that a particular sessional employee is not likely to be engaged in the ensuing year. A person who, though employed as a sessional employee in the previous academic year, is not likely to be employed in the subsequent academic year cannot in our view be said to be employed or usually employed, and is therefore not "employed at the time" within the meaning of s. 181(1). This approach is consistent with the approach adopted by North J in AMIEU v Belandra Pty Ltd to the meaning of the phrase "usually an employer" found in s. 4(1) of the WR Act and we see no sound reason for departing from it. [34] In our view, it would be prudent for Swinburne to make reasonable and diligent enquiries so as to exclude any sessional employees who have communicated their unavailability for engagement in the ensuing academic year and any sessional employees who Swinburne has decided it will not engage as a sessional employee in the ensuing academic year. [35] For a ballot held during the course of an academic year a different approach may be warranted. In such a case, the inclusion of a sessional employee engaged during the previous academic year, but who has not been engaged in the current academic year may only be appropriate if there is a sound basis for believing that the person is likely to be engaged at a subsequent time in the academic year, for example as a tutor in a unit to be offered only in the second semester. [Footnotes omitted] The Commission's approach accords with the evidence and with the approach that had been taken by Swinburne. Sessional staff at Swinburne formed, to some extent, a pool from which was to be drawn its employees as the needs and dictates of the enterprise requires from time to time. The process for engagement of sessional staff involved the receipt by prospective sessional academics of a form for their completion. The form is described as an appointment letter and purported to effect a contract with the prospective employee upon acceptance by the prospective employee of the engagement and was subject to the terms and conditions in the form. Acceptance of the engagement letter did not guarantee any casual engagement but obliged the casual employee to comply with the terms and conditions of the contract and required the sessional academic, where possible, to give to Swinburne 24 hours notification "of casual hours that [the sessional employee was] unable to undertake teaching or if terminating the engagement" (emphasis added). The arrangement effected between casual employees and Swinburne was, therefore, that the sessional employees had been assumed for allocation to teach as and when needed by Swinburne and governed the parties unless the arrangement was itself terminated. The sessional employees were, therefore, apt to fall within the statutory description of employees in the sense extended by s 15. 36 A potential difficulty with the approach taken by Swinburne was, however, as the Commission acknowledged, that those requested to vote by reference to having performed work in the preceding academic year did not exclude sessional employees who did not come within the definition of employee (as extended) nor did it capture all who would. The approach adopted by Swinburne was in part based upon the time of the ballot in relation to the commencement of an academic year. The ballot was being held close to, but before, the commencement of an academic year and the Commission considered it appropriate in those circumstances to include in the ballot the sessional academic employees who had been engaged during the previous academic year unless there was a basis for Swinburne to believe that a particular sessional employee was not likely to be engaged in the subsequent year. In other words, the Commission accepted that all those who had been employed as sessional staff in the preceding year fell within the class of usual employees without further inquiry. The selection of persons who had been engaged as sessional employees in the previous academic year is some guide to whether they are usual employees at the time of the ballot but the adoption of that group of people as usual employees without Swinburne having made "reasonable and diligent inquiries" of the kind referred to by the Commission at [34] meant that those voting included some who could not be regarded as usually employed by Swinburne and excluded some who were. 37 The reason Swinburne took the approach it did may be explained by the history of past dealings between itself, its employees and the Union. It was the approach which had been advocated by, and which had been taken, by the Union in the protected action ballot in respect of the 2014 agreement and which was taken in relation to a number of agreements in the tertiary education sector before the 2014 agreement, including the predecessor to the 2014 agreement at Swinburne. The Union was aware of the approval ballot which Swinburne was conducting before it took place and did not take issue with the cohort selected to participate in the approval ballot. These, however, are matters which may be relevant in deciding whether to grant relief rather than to whether the provisions when properly construed have been correctly applied. The convenient approach taken by Swinburne, and endorsed by the Commission, however, had an embedded defect, namely, that it identified those falling within the relevant statutory description without undertaking the factual inquiry which was called for. The Commission said at [36] of its reasons: [36] It is nevertheless possible that a person who cannot be said to be employed or usually employed might be requested to vote to approve an agreement. The significance of this will vary according to the circumstances. Voting to approve an agreement is voluntary and the level of participation in the vote may vary considerably. If a sessional employee obtains full time employment elsewhere, and is therefore unlikely to be employed again as a sessional employee in the next academic year, there is a lesser likelihood of that employee casting a vote than if the employee was seeking ongoing sessional work at Swinburne. This is a consideration in determining the legitimacy of Swinburne's approach to the determination of the sessional employees requested to approve the agreement and in determining whether there are no other reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees. The failure by Swinburne to have made "reasonable and diligent enquiries so as to exclude any sessional employees" who could no longer be regarded as usual employees resulted in the application of an erroneous test because the factual inquiry which ought to have been undertaken was not undertaken. The Commission's acceptance of Swinburne's approach was similarly erroneous. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

National Tertiary Education Industry Union v Swinburne University of Technology

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Judgment (9 paragraphs)

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