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[2021] FWC 5150
General information, not legal advice.
Fair Work Commission
2021-08-19
Original judgment source is linked above.
s.739 - Dispute resolution
Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure in an enterprise agreement - jurisdiction - arbitration.
[1] On 7 July 2021, the National Tertiary Education Industry Union (NTEIU) filed an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure under the University of Newcastle Academic Staff and Teachers Enterprise Agreement 2018 (Academic Staff and Teachers Agreement) and the University of Newcastle Professional Staff Enterprise Agreement 2018 (Professional Staff Agreement) (together, the Agreements).
[2] The application filed by the NTEIU concerns the basis on which termination payments to be made to various employees of the University of Newcastle (University) are required to be calculated under the Agreements. In particular, there is a dispute about the proper construction of the expression "staff member's substantive salary level at the date of separation" and its application in particular circumstances.
[3] On 19 July 2021, I conducted a conciliation conference, by telephone, in an attempt to resolve the dispute. It became apparent during the conciliation conference that there is no dispute between the parties as to how the termination payments of employees in some particular situations will be treated, while in other situations the parties disagree on the approach that is required to be taken in accordance with the Agreements.
[4] On 19 July 2021, following the conciliation conference earlier that day, a communication in the following terms was sent by my Associate to the parties:
"I refer to the conciliation conference in this matter before Deputy President Saunders earlier today.
I confirm that the Commission's file in relation to this matter will be kept open for the time being. The agreed process to move forward is as follows:
[5] The NTEIU elected not to raise the circumstances pertaining to any particular employee with the University. Instead, on 22 July 2021, the NTEIU filed and served submissions in which it requested that the dispute be listed for arbitration and proposed the following question for determination in the arbitration:
"When applying clause 23.5 of the Professional Staff Agreement, and clauses 52.5 and 63.5 of the Academic Staff and Teachers Agreement respectively, in circumstances where, by agreement with the employer, an employee has entered into an alteration to their employment contract, which alteration has the effect of changing their salary level for a temporary or set period, is the substantive salary level
i. the salary level they are receiving at the date of separation; or
ii. the salary level that they were being paid immediately prior to that temporary alteration (i.e. the salary level that is associated with their continuing position)?"
[6] On 29 July 2021, the University filed and served submissions on the question of jurisdiction.
[7] On 4 August 2021, the NTEIU filed and served submissions in response to the submissions filed by the University.
[8] The following provisions of the Academic Staff and Teachers Agreement are relevant to the dispute:
48.1 Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed.
48.2 A dispute resolution procedure may be initiated by:
48.3 At any stage in the procedure under this clause, a staff member may nominate a Representative from whom they may seek advice, assistance or representation.
48.4 Where a dispute is raised by a staff member, the staff member in the first instance must attempt to resolve the matter informally through discussion with their supervisor, unless it is not practicable to do so.
48.5 If informal discussions are unsuccessful or impracticable the staff member must formally notify a dispute in writing to the relevant Director I PVC of the staff member's organisational unit.
48.6 Where the Union(s) initiates a dispute, the Union(s) will notify the appropriate representative of the University Human Resource Services unit.
48.7 Within 5 working days of the notification in Clauses 48.5 or 48.6, unless otherwise agreed, a formal dispute meeting will be held between:
(i) the staff member and the relevant Director I PVC; or
(ii) a Representative of the relevant Union(s) and a representative of the University; to discuss the dispute and attempt to reach an agreement.
48.8 If the above procedure is followed and the issue continues to remain unresolved, the matter will be referred to the Associate Director, Employee Relations and HR Partnering or equivalent for further discussion and resolution. The parties will make a genuine attempt to promptly resolve the matter within 5 working days. To assist resolution, the parties may agree to nominate other staff member(s) to participate in this discussion.
48.9 Where the University initiates a dispute, the University will notify the staff member and/or relevant Union(s) in writing and meet to discuss the matter and any options for resolution.
48.10 Should the dispute not be resolved by the procedures referred to above, the matter may be referred to the Fair Work Commission. In circumstances where the Fair Work Commission is unlikely to be able to hear the matter within a reasonable timeframe the parties may then agree to refer the dispute to a person who is a member of the Industrial Relations Commission of New South Wales in accordance with S 1468 of the New South Wales Industrial Relations Act.
48.11 Should the Fair Work Commission or the Industrial Relations Commission of New South Wales proceed with the matter, it will then:
(i) seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation and/or conciliation of the matter in dispute. If these options are unsuccessful, the Fair Work Commission or the Industrial Relations Commission may arbitrate the matter. The parties to the dispute may be represented by a person(s) of their choice;
(ii) make a recommendation to the parties to the dispute or, if the matter is arbitrated, make a determination. The parties to the dispute will consider any recommendation made. Any determination made will be binding on the parties, subject to a party to the dispute exercising a right of appeal under the Fair Work Act.
48.12 This dispute resolution procedure does not apply where the matter is being dealt with in accordance with the Inquiry Officer- Clause 45, Independent Reviewer- Clause 46 or Committee of Inquiry - Clause 47 process.
48.13 Until the procedures in this clause have been exhausted, work will continue as directed unless there is a reasonable concern about the health and safety of staff and no industrial action or any other action likely to exacerbate the dispute will be taken by any party to the dispute.
52.0 VOLUNTARY SEPARATION, REDEPLOYMENT AND RETRENCHMENT- ACADEMIC STAFF
(i) fair and objective criteria are used to identify positions that are no longer required and staff members who are excess; and
52.1.2 Where a position is no longer required the incumbent may be declared a detached staff member. The staff member will be notified in writing and be provided with the criteria and process used to identify excess positions.
52.1.3 The staff member will have a period of 4 weeks from the date of the notice in Clause 52.1.2 within which to elect to do one of the following:
(i) accept a voluntary separation package, to be taken up within a period of 2 weeks, comprising:
(b) 2 weeks' salary for each completed year of service at the University to a maximum of 52 weeks; and
(ii) seek redeployment within the University and remain as a detached staff member for a period of up to 52 weeks. The date of commencement of the 52 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support as described in Clause 52.2. The staff member will not be eligible for the career development support described in Clause 52.3; or
(iii) seek employment outside the University and remain as a detached staff member for a period of up to 16 weeks. The date of commencement of the 16 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support, including an externally sourced career development program described in Clause 52.3.
52.1.4 If the staff member has not taken one of the options outlined in Clause 52.1 .3 above they will be deemed to have chosen the option in Clause 52.1.3 (ii).
52.2 Redeployment within the University [Option in Clause 52.1.3.ii)]
52.2.1 A staff member who has elected the option in Clause 52.1.3 (ii) will have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
52.2.2 The salary of a detached staff member will be maintained during the period of redeployment.
52.2.3 Wherever possible, the University will endeavour to redeploy staff into a position equal to the staff member's substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 52.1.3 (ii), they will receive salary maintenance for a period of 52 weeks from the date of detachment.
52.2.4 The University will allocate suitable work to the detached staff member during the displacement period. Wherever possible, a detached staff member will continue to work at the same work value level during the period of displacement I redeployment.
52.2.5 Staff members who elect to be redeployed in accordance with Clause 52.1 .3 (ii) may at a later date elect to separate at any time during the 52 week period mentioned in Clause 52.1.3 (ii) above. Such staff members will receive a separation payment comprising:
(ii) 2 weeks' salary for each completed year of service at the University to a maximum of 52 weeks; and
52.2.6 During the redeployment period, the staff member will be provided with training and development where additional skills are required, subject to approval by the Director, People and Workforce Strategy, and:
(i) may take reasonable time to attend job interviews and undertake job search; and/or
(ii) may have reasonable time to attend and be provided with financial and personal counselling; and/or
(iii) be provided with assistance, wherever practical, by Human Resource Services.
52.2.7 Where a staff member has chosen to exercise the right of preference of employment in Clause 52.2.1 and applies for a position, a Selection Committee will determine the suitability of the applicant for redeployment to the position on the basis of the selection criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant where more than 1 detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to adapt skills to the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The line manager will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the manager or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants are not suitable for redeployment to the available position.
52.2.8 In relation to Clause 52.2.7 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure- Clause 45.
52.3 Seek Employment Outside the University and Career Development Support [Option in Clause 52.1.3 (iii)]
52.3.1 A staff member who has elected the option in Clause 52.1 .3 (iii) will still have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
52.3.2 The salary of a detached staff member will be maintained during the period of detachment.
52.3.3 Wherever possible, the University will endeavour to redeploy staff into a position equal to the staff member's substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 52.1.3 (iii), they will receive salary maintenance for a period of 52 weeks from the date of detachment.
52.3.4 The University will allocate suitable temporary work to the detached staff member. Wherever possible, the staff member will continue to work at the same work value I classification level during the period of detachment.
52.3.5 If a staff member elects to seek employment outside the University in accordance with Clause 52.1.3 (iii), they may, at a later date elect to be made redundant at any time during the 16 week period mentioned in Clause 52.1.3 (iii) above. Such staff members will receive a separation payment comprising:
(ii) 2 weeks' salary for each completed year of service at the University to a maximum of 52 weeks; and
For the avoidance of doubt, this entitlement is not affected by employment external to the University.
52.3.6 Where a staff member has chosen to exercise the right of preference of employment for a particular position in reference to Clause 52.3.1 , a Selection Committee will determine the suitability of any applicant for redeployment to the position on the basis of fair and objective criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant, where more than one detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to acquire skills for the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The manager will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the manager or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants are not suitable for redeployment to the available position.
52.3.7 In relation to Clause 52.3.6 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure - Clause 45.
52.3.8 During the detachment period, the staff member:
(i) may, subject to approval by the Director, People and Workforce Strategy, take reasonable time to attend job interviews and undertake job search; and
(ii) will be offered an externally sourced career development program to support the detached staff member to obtain employment either with the University or another employer. The career development program will include:
(b) job search plan I skills, including resume development and interview skills;
52.3.9 The career development program will be developed within the following guidelines:
(i) all elements of the program will realistically contribute to improved likelihood of the individual achieving their career objective;
(ii) all costs associated with the program will be incurred within 52 weeks of the staff member becoming detached (i.e. any development activities will only be supported for 52 weeks but this may include costs after the staff member has left the University's employment);
(iii) the total cost of the career development program supported by the University will be the equivalent of up to 36 weeks' base salary of the staff member;
(iv) where the staff member is successfully redeployed into another position, the career development program will cease;
(v) the career development program and the associated costs will be approved by the Director, People and Workforce Strategy prior to implementation.
52.4.1 If separation or successful redeployment has not occurred within the redeployment period, the staff member will receive notice, or payment in lieu of notice, together with a severance payment as follows:
(a) the period of notice will be increased by 1 week if the staff member is over 45 years old and has completed at least 2 years of continuous service with the University; and
(b) a greater period of notice, or payment instead of notice, will be given if specified in the staff member's contract of employment.
52.4.2 Where reasonable offers of redeployment, and training and development are refused by a detached staff member, the Director, People and Workforce Strategy will review each case with a view to recommending:
(i) a further offer of redeployment and/or training and development; or
(ii) the immediate provision of a separation package as outlined in Clause 52.4.1.
52.5 Payments made under this clause will be calculated at the staff member's substantive salary level at the date of separation.
(i) fair and objective criteria are used to identify positions that are no longer required and staff members who are excess; and
63.1.2 Where a position is no longer required the incumbent may become a detached staff member. The detached staff member will be notified in writing as soon as possible.
63.1.3 The staff member will have a period of 4 weeks from the date of the notice in Clause 63.1.2 within which to elect to do one of the following:
(i) accept a voluntary separation package to be taken up within a period of 2 weeks comprising:
(b) 2 weeks' salary for each completed year of service at the University up to a combined maximum of 52 weeks; and
(ii) seek redeployment within the University and remain as a detached staff member for a period of up to 26 weeks. The date of commencement of the 26 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support as described in Clause 63.2. The staff member will not be eligible for the career development support described in Clause 63.3; or
(iii) seek employment outside the University and remain as a detached staff member for a period of up to 8 weeks. The date of commencement of the 8 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support, including an externally sourced career development program described in Clause 63.3.
63.1.4 If the staff member has not taken one of the options outlined in Clause 63.1.3 above they will be deemed to have chosen the option in Clause 63.1.3 (ii).
63.2 Redeployment within the University [Option in Clause 63.1.3 (ii))
63.2.1 A staff member who has elected the option in Clause 63.1 .3 (ii) will have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
63.2.2 The salary of detached staff will be maintained during the period of redeployment.
63.2.3 Wherever possible, the University will endeavour to redeploy staff into a position equal to the staff member's substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 63.1.3 (ii), they will receive salary maintenance for a period of 26 weeks from the date of detachment.
63.2.4 The University will allocate suitable temporary work to the detached staff member. Wherever possible, the staff member will continue to work at the same work value / classification level during the period of detachment.
63.2.5 If a staff member elects to be redeployed in accordance with Clause 63.1 .3 (ii), they may, at a later date elect to be made redundant at any time during the 26 week period mentioned in Clause 63.1.3 (ii) above. Should this occur they will receive a payment in accordance with Clause 63.4.1.
63.2.6 During the redeployment period of 26 weeks, the staff member will be provided with training and development where additional skills are required, subject to approval by the Director, People and Workforce Strategy, and:
(i) may take reasonable time to attend job interviews and undertake job search; and/or
(ii) may have reasonable time to attend and be provided with financial and personal counselling; and/or
(iii) be provided with assistance, wherever practical, by Human Resource Services.
63.2.7 Where a staff member has chosen to exercise the right of preference of employment for a particular position in reference to Clause 63.2.1, a Selection Committee will determine the suitability of the applicant for redeployment to the position on the basis of the selection criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant where more than 1 detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to acquire skills for the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The Director will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the Director or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants for redeployment are not suitable for redeployment to the available position.
63.2.8 In relation to Clause 63.2.7 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure- Clause 45.
63.3 Seek Employment Outside the University and Career Development Support [Option in Clause 63.1.3 (iii)]
63.3.1 A staff member who has elected the option in Clause 63.1.3 (iii) will still have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
63.3.2 The salary of a detached staff member will be maintained during the period of redeployment.
63.3.3 Wherever possible, the University will endeavour to redeploy staff into a position equal to the staff member's substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 63.1.3 (iii), they will receive salary maintenance for a period of 26 weeks from the date of detachment.
63.3.4 The University will allocate suitable temporary work to the detached staff member. Wherever possible, the staff member will continue to work at the same work value/classification level during the period of detachment I redeployment.
63.3.5 If a staff member elects to be redeployed in accordance with Clause 63.1.3 (iii), they may, at a later date elect to be made redundant at any time during the 8 week period mentioned in Clause 63.1.3 (iii) above. Should this occur they will receive a payment in accordance with Clause 63.4.1. For the avoidance of doubt, this entitlement is not affected by employment external to the University.
63.3.6 Where a staff member has chosen to exercise the right of preference of employment for a particular position in reference to Clause 63.3.1, a Selection Committee will determine the suitability of any applicant for redeployment to the position on the basis of the selection criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant, where more than one detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to acquire skills for the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The Director will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the Director or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants are not suitable for redeployment to the available position.
63.3.7 In relation to Clause 63.3.6 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure - Clause 45.
63.3.8 During the redeployment period, the staff member:
(i) may, subject to approval by the Director, People and Workforce Strategy, take reasonable time to attend job interviews and undertake job search; and
(ii) will be offered an externally sourced career development program to support the detached staff member to obtain employment either with the University or another employer. The career development program will include:
(b) job search plan I skills, including resume development and interview skills;
63.3.9 The career development program will be developed within the following guidelines:
(i) all elements of the program will realistically contribute to improved likelihood of the individual achieving their career objective;
(ii) all costs associated with the program will be incurred within 6 months of the staff member becoming detached (i.e. any development activities will only be supported for 6 months but this may include costs after the staff member has left the University's employment);
(iii) the total cost of the career development program supported by the University will be the equivalent of up to 18 weeks' base salary of the staff member;
(iv) where the staff member is successfully redeployed into another position, the career development program will cease;
(v) the career development program and the associated costs will be approved by the Director, People and Workforce Strategy prior to implementation.
63.4.1 If separation or successful redeployment has not occurred within the redeployment period the staff member will become redundant and be provided with a redundancy package which comprises:
(ii) 2 weeks salary for each year of service completed at the University, up to a combined maximum of 52 weeks; and
63.4.2 Where reasonable offers of redeployment at the same level, and training and development are refused by a detached staff member, the Director, People and Workforce Strategy will review each case with a view to recommending:
(i) a further offer of redeployment and/or training and development; or
(ii) the immediate provision of a redundancy package as outlined in Clause 63.4.1.
63.5 Payments made under this clause will be calculated at the staff member's substantive salary level at the date of separation."
[9] The following provisions of the Professional Staff Agreement are relevant to the dispute:
(i) fair and objective criteria are used to identify positions that are no longer required and staff members who are excess; and
23.1.2 Where a position is no longer required the incumbent may become a detached staff member. The detached staff member will be notified in writing as soon as possible.
23.1.3 The staff member will have a period of 4 weeks from the date of the notice in Clause 23.1.2 within which to elect to do one of the following:
(i) accept a voluntary separation package, to be taken up within a period of 2 weeks, comprising:
(b) 2 weeks salary for each completed year of service at the University up to a combined maximum of 52 weeks; and
(ii) seek redeployment within the University and remain as a detached staff member for a period of up to 26 weeks. The date of commencement of the 26 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support as described in Clause 23.2. The staff member will not be eligible for the career development support described in Clause 23.3; or
(iii) seek employment outside the University and remain as a detached staff member for a period of up to 8 weeks. The date of commencement of the 8 week period is the date of notification of becoming a detached staff member. The staff member will be provided with support, including an externally sourced career development program as described in Clause 23.3.
23.1.4 If the staff member has not taken one of the options outlined in Clause 23.1.3 above they will be deemed to have chosen the option in Clause 23.1.3 (ii).
23.2 Redeployment within the University [Option in Clause 23.1.3 (ii)]
23.2.1 A staff member who has elected the option in Clause 23.1.3 (ii) will have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
23.2.2 The salary of a detached staff member will be maintained during the period of redeployment.
23.2.3 Wherever possible, the University will endeavour to redeploy staff into a position equal to the staff member's substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 23.1.3 (ii), they will receive salary maintenance for a period of 26 weeks from the date of detachment.
23.2.4 The University will allocate suitable temporary work to the detached staff member. Wherever possible, the staff member will continue to work at the same work value / classification level during the period of detachment / redeployment.
23.2.5 If a staff member elects to be redeployed in accordance with Clause 23.1.3 (ii), they may, at a later date elect to be made redundant at any time during the 26 week period mentioned in Clause 23.1.3 (ii) above. Should this occur they will receive a payment in accordance with Clause 23.4.1.
23.2.6 During the redeployment period of 26 weeks, the staff member will be provided with training and development where additional skills are required, subject to approval by the Director, People and Workforce Strategy, and:
(i) may take reasonable time to attend job interviews and undertake job search; and/or
(ii) may have reasonable time to attend and be provided with financial and personal counselling; and/or
(iii) be provided with assistance, wherever practical, by Human Resource Services.
23.2.7 Where a staff member has chosen to exercise the right of preference of employment for a particular position in reference to Clause 23.2.1, a Selection Committee will determine the suitability of any applicant for redeployment to the position on the basis of fair and objective criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant, where more than one detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to acquire skills for the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The manager will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the manager or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants are not suitable for redeployment to the available position.
23.2.8 In relation to Clause 23.2.7 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure - Clause 72.
23.3 Seek Employment outside the University and Career Development Support [Option in Clause 23.1.3 (iii)]
23.3.1 A staff member who has elected the option in Clause 23.1.3 (iii) will still have preference of appointment to suitable alternative positions within the University where vacancies exist or are expected to exist in a reasonable period of time. Preference will include employment and/or training and development for positions at their classification level and within the ambit of their skills and experience.
23.3.2 The salary of a detached staff member will be maintained during the 8 week period in Clause 23.1.3 (iii).
23.3.3 Wherever possible, the University will endeavour to redeploy staff into a position within the University equal to the staff member's substantive position at the time they were declared detached. Where a staff member accepts redeployment to a lower level position prior to the conclusion of the redeployment period in Clause 23.1.3 (iii), they will receive salary maintenance for a period of 26 weeks from the date of detachment.
23.3.4 The University will allocate suitable temporary work to the detached staff member. Wherever possible, the staff member will continue to work at the same work value/classification level during the period of detachment.
23.3.5 If a staff member elects to seek employment outside the University in accordance with Clause 23.1.3 (iii), they may, at a later date elect to be made redundant at any time during the 8 week period mentioned in Clause 23.1.3 (iii) above. Should this occur they will receive a payment in accordance with Clause 23.4.1. For the avoidance of doubt, this entitlement is not affected by employment external to the University.
23.3.6 Where a staff member has chosen to exercise the right of preference of employment for a particular position in reference to Clause 23.3.1, a Selection Committee will determine the suitability of any applicant for redeployment to the position on the basis of fair and objective criteria. The Committee will recommend one of the following options:
(i) that the position be offered to the staff member (or the preferred applicant, where more than one detached staff member applies). The Committee may decide the applicant should be given 3 months appropriate training to acquire skills for the position;
(ii) redeployment for a trial period of 3 months, with training where the applicant lacks relevant and related experience in a similar work field. The manager will review the redeployment at the end of 3 months and either confirm the appointment (with further training if deemed necessary) or, if either the manager or the staff member considers the trial is unsuccessful, discuss further options for redeployment with the staff member; and/or
(iii) that any or all of the applicants are not suitable for redeployment to the available position.
23.3.7 In relation to Clause 23.3.6 (iii), staff not successful in being redeployed to an available position will have access to the Inquiry Officer procedure - Clause 72.
23.3.8 During the detachment period, the staff member:
(i) may, subject to approval by the Director, People and Workforce Strategy, take reasonable time to attend job interviews and undertake job search; and
(ii) will be offered an externally sourced career development program to support the detached staff member to obtain employment either with the University or another employer. The career development program will include:
(b) job search plan / skills, including resume development and interview skills;
23.3.9 The career development program will be developed within the following guidelines:
(i) all elements of the program will realistically contribute to improved likelihood of the individual achieving their career objective;
(ii) all costs associated with the program will be incurred within 6 months of the staff member becoming detached (i.e. any development activities will only be supported for 6 months but this may include costs after the staff member has left the University's employment);
(iii) the total cost of the career development program supported by the University will be the equivalent of up to 18 weeks' base salary of the staff member;
(iv) where the staff member is successfully redeployed into another position, the career development program will cease;
(v) the career development program and the associated costs will be approved by the Director, People and Workforce Strategy prior to implementation.
23.4.1 If separation or successful redeployment has not occurred within the redeployment period, the staff member will become redundant and be provided with a redundancy package which comprises:
(ii) 2 weeks salary for each year of service completed at the University, up to a combined maximum of 52 weeks; and
23.4.2 Where reasonable offers of redeployment at the same HEW level, and training and development are refused by a detached staff member, the Director, People and Workforce Strategy will review each case with a view to recommending:
(i) a further offer of redeployment and/or training and development; or
(ii) the immediate provision of a redundancy package as outlined in Clause 23.4.1.
23.5 Payments made under this clause will be calculated at the staff member's substantive salary level at the date of separation.
75.1 Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed.
75.2 A dispute resolution procedure may be initiated by:
75.3 At any stage in the procedure under this clause, a staff member may nominate a Representative from whom they may seek advice, assistance or representation.
75.4 Where a dispute is raised by a staff member, the staff member in the first instance must attempt to resolve the matter informally through discussion with their supervisor, unless it is not practicable to do so.
75.5 If informal discussions are unsuccessful or impracticable the staff member must formally notify a dispute in writing to the relevant Director / PVC of the staff member's organisational unit.
75.6 Where the Union(s) initiates a dispute, the Union(s) will notify the appropriate representative of the University Human Resource Services unit.
75.7 Within 5 working days of the notification in Clauses 75.5 or 75.6, unless otherwise agreed, a formal dispute meeting will be held between:
(i) the staff member and the relevant Director / PVC; or
(ii) a Representative of the relevant Union(s) and a representative of the University;
to discuss the dispute and attempt to reach an agreement.
75.8 If the above procedure is followed and the issue continues to remain unresolved, the matter will be referred to the Associate Director, Employee Relations and HR Partnering or equivalent for further discussion and resolution. The parties will make a genuine attempt to promptly resolve the matter within 5 working days. To assist resolution, the parties may agree to nominate other staff member(s) to participate in this discussion.
75.9 Where the University initiates a dispute, the University will notify the staff member and/or relevant Union(s) in writing and meet to discuss the matter and any options for resolution.
75.10 Should the dispute not be resolved by the procedures referred to above, the matter may be referred to the Fair Work Commission. In circumstances where the Fair Work Commission is unlikely to be able to hear the matter within a reasonable timeframe the parties may then agree to refer the dispute to a person who is a member of the Industrial Relations Commission of New South Wales in accordance with S146B of the New South Wales Industrial Relations Act.
75.11 Should the Fair Work Commission or the Industrial Relations Commission of New South Wales proceed with the matter, it will then:
(i) seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation and/or conciliation of the matter in dispute. If these options are unsuccessful, the Fair Work Commission or the Industrial Relations Commission may arbitrate the matter. The parties to the dispute may be represented by a person(s) of their choice;
(ii) make a recommendation to the parties to the dispute or, if the matter is arbitrated, make a determination. The parties to the dispute will consider any recommendation made. Any determination made will be binding on the parties, subject to a party to the dispute exercising a right of appeal under the Fair Work Act.
75.12 This dispute resolution procedure does not apply where the matter is being dealt with in accordance with the Inquiry Officer - Clause 72, Independent Reviewer - Clause 73 or Committee of Inquiry - Clause 74 process.
75.13 Until the procedures in this clause have been exhausted, work will continue as directed unless there is a reasonable concern about the health and safety of staff and no industrial action or any other action likely to exacerbate the dispute will be taken by any party to the dispute."
[10] The NTEIU submitted in chief that there is a dispute between the NTEIU and the University over the application of the Agreements.[1] It contended that the dispute is about how termination payments should be calculated under clauses 52 and 63 of the Academic Staff and Teachers Agreement and clause 23 of the Professional Staff Agreement where there has been a temporary change to a staff member's employment that impacts their salary level. In its reply submissions, the NTEIU characterised the dispute as one about the meaning or effect of clauses 52 and 63 of the Academic Staff and Teachers Agreement and clause 23 of the Professional Staff Agreement, not about the application of certain provisions to a specific set of facts.[2]
[11] The NTEIU submits that both Agreements permit it to notify a dispute as a representative of employees or in its own right, without being the representative of any particular employee.
[12] It is contended by the NTEIU that any determination that will ultimately be made by the Commission in this matter will be about the interpretation of the relevant clauses in the Agreements, not necessarily the specific circumstances, although the Commission may choose to be guided by specific circumstances. The NTEIU also submits that it has always been its intention to "lead evidence about actual staff members who the University's apparent misrepresentation of workplace rights is impacting".
[13] The NTEIU submits that it did not agree in conciliation to bring each individual matter to the University for resolution prior to returning to the Commission if matters could not be resolved.
[14] Further, the NTEIU submits that the Commission's proposal that cases must be brought to the University management and then potentially the Commission for conciliation before moving to arbitration on a one-by-one basis may not be an efficient use of the Commission's or the parties' resources.
[15] The University submits that the Commission does not have jurisdiction to deal with this matter by mediation and/or conciliation, and further or alternatively, that the Commission does not have jurisdiction to arbitrate.
[16] The University contends that the Commission does not have jurisdiction to deal with a dispute that "is considered likely to arise". It also contends that no actual dispute has arisen.
[17] It is submitted by the University that the NTEIU's case does not reveal any dispute, which is grounded in facts, regarding the interpretation, application or operation of any provision of the Agreements.
[18] In response to the NTEIU's submission that it always intended to lead evidence about actual staff members, it is contended by the University that this misconceives the dispute resolution procedure. It is not open, so the University contends, for the NTEIU to raise afresh any factual matters that it says are in dispute in an arbitration before the Commission, because those factual matters have never been able to be disputed and dealt with in accordance with the procedure.
[19] The University submits that the NTEIU is misconceived in its view that the Commission has jurisdiction to issue a determination, really in the nature of an advisory opinion, on the interpretation of the Agreements, without reference to any specific factual circumstances.
[20] In the alternative, the University submits that if the Commission has jurisdiction to consider the NTEIU's case, the Commission's jurisdiction remains limited to conducting mediation and/or conciliation (not arbitration). Pursuant to the dispute settlement procedure in each Agreement, the Commission only has jurisdiction to arbitrate where the options of mediation and/or conciliation are unsuccessful. The University contends that it cannot be said that the options of the Commission to mediate and/or conciliate have been unsuccessful in circumstances where the Commission's involvement in this matter has been limited to seeking to understand the scope of any dispute and whether it has jurisdiction to deal with any dispute.
[21] The University submits that if the Commission finds that it does have jurisdiction to deal with the NTEIU's case, the Commission should list the mater for conciliation, at which time the University will again seek to understand the NTEIU's concerns by reference to specific and tangible examples.
[22] In the further alternative, the University submits that if the Commission finds that it has jurisdiction to proceed to arbitration then it wishes to have an opportunity to be heard on the scope of any arbitration. In that regard, the University submits that the question posed by the NTEIU for arbitration is "open-ended, ill-defined, framed by reference to a broad hypothetical circumstance presented in a factual vacuum, and divorced from any proper question of construction of the issue purportedly in dispute, being the quantum of retrenchments payments".
Legal principles concerning the proper characterisation of the dispute
[23] The NTEIU's application for the Commission to deal with a dispute has been made under section 739 of the Act. The test under section 739 of the Act is whether the dispute resolution clause "requires or allows" the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute resolution clause, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.[3]
[24] The scope of a dispute settlement clause in an enterprise agreement should not be narrowly construed; "to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."[4]
[25] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.[5] The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.[6] Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.[7]
[26] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.[8] However, the relief sought may cast light on the true nature of the dispute in some cases.[9]
[27] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.[10]
What is the scope of disputes which may be dealt with under the dispute resolution clauses in the Agreements?
[28] Clause 48 of the Academic Staff and Teachers Agreement and clause 75 of the Professional Staff Agreement are in materially the same terms. They commence as follows:
"Where a dispute arises, or is considered likely to arise, regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards, the procedures contained in this clause will be followed."
[29] The dispute settlement procedure in each Agreement is plainly intended to have operation in a wide range of circumstances, but its reach is not unlimited.[11] It prescribes procedures designed to resolve disputes which arise, or are considered likely to arise, "regarding the interpretation, application or operation of any provision of this Agreement or the National Employment Standards". However, not all disputes and grievances which might conceivably occur at, or in connection with, the workplace will be subject to the dispute resolution procedure in the Agreement. The operation of the dispute settlement procedure will only be attracted if the dispute can be linked in the requisite way to "the interpretation, application or operation" of the Agreement or the National Employment Standards.[12]
[30] The word "regarding" in the dispute settlement procedure is of wide import.[13] The use of the word "arises" implies "a sense of consequence".[14] It suggests "a less immediate association than a direct causal relationship between the dispute ... on the one hand and the application, interpretation [or operation] of the agreement on the other".[15]
[31] There is no suggestion in this case that the dispute the subject of the NTEIU's application is in any way concerned with the National Employment Standards. The issue is whether the dispute "arises, or is considered likely to arise, regarding the ... interpretation, application or operation of any provision of" the Agreement.
[32] The phrase "application ... of any provision of this Agreement" in the dispute settlement procedure[16] means to make use of, implement or apply a provision of the Agreement, such as a decision by the employer, under a clause of the Agreement, to make some change in the workplace[17] or a dispute as to whether a particular employee should be classified under one or another category in the Agreement.[18]
[33] A dispute cannot "arise ... regarding the ... operation ... of any provision of this Agreement" within the meaning of the dispute settlement clause unless the dispute has a relationship with the provisions of the Agreement itself.[19] The nature of the relationship which is necessary to meet the test may be in issue in particular cases.[20]
Has a dispute arisen or is there a dispute that is considered likely to arise?
[34] It is clear from the correspondence between the NTEIU and the University prior to the application being lodged in the Commission, to which reference is made in the application and a copy of which is attached to the application, that the NTEIU and the University are in dispute in relation to the proper construction of the expression "staff member's substantive salary level at the date of separation" in the relevant provisions of the Agreements and how that expression applies in particular circumstances in which there has been a change to an employee's "salary level". The existence and continuation of that dispute was also apparent during the conciliation conference where the parties gave different answers to my questions concerning a "staff member's substantive salary level" in various hypothetical or example scenarios. Accordingly, I am satisfied that a dispute has arisen between the NTIEU and the University. It is therefore unnecessary to deal with the University's submission that a dispute is not considered likely to arise.
What is the proper characterisation of the dispute between the NTIEU and the University?
[35] The dispute concerns the proper interpretation of the expression "staff member's substantive salary level at the date of separation" and its application in particular circumstances. It follows that a dispute has arisen regarding the interpretation, application or operation of provisions in the Agreements.
[36] There is no question that the NTIEU has the right to initiate the dispute resolution procedure under the Agreements and to refer an unresolved dispute to the Commission. However, the existence of those rights does not mean that the Commission can, or should be required to, arbitrate a dispute in a factual vacuum. If mediation and/or conciliation of the matter in dispute is unsuccessful, the Agreements provide that the Commission "may arbitrate the matter".[21] Arbitration is not compulsory. It is clear from the word "may" that the Commission has a discretion as to whether or not to arbitrate the matter in dispute.
[37] In the present case, the proper construction of the expression "staff member's substantive salary level at the date of separation" in the relevant provisions of the Agreements and how that expression applies in particular circumstances in which there has been a change to an employee's "salary level" cannot be determined in a factual vacuum.[22] In order to determine a dispute of this character by way of arbitration, answers to the following types of questions may be relevant to the outcome:
(a) What was the employee's salary before and after the change? Is the salary change a change to the employee's "salary level" within the meaning of the relevant Agreement?
(b) When was the change made?
(c) Is the change permanent or temporary?
(d) If the change is temporary, when and on what terms does it end?
(e) Was the change made by consent or was it imposed unilaterally?
(f) If the change was made by consent, what are the relevant terms of the agreement and does it constitute a variation to the employee's contract of employment or the replacement of the old contract with a new contract of employment?
(g) If the change was imposed unilaterally, what was communicated to the employee in relation to the change?
(h) Was the change authorised by a contract, policy or industrial instrument? If so, what are the relevant terms and what was communicated to the employee?
(i) Does the employee have the right to return to their previous salary level? If so, when and on what terms?
[38] Other facts may also be relevant to an assessment of a particular employee's "substantive salary level at the date of separation", which may have some connection to the employee's "substantive position".[23] There may be a question as to whether there has been any change to a particular employee's position.
[39] Further, evidence of relevant facts should be adduced so that any private arbitration by the Commission under a dispute settlement procedure in an enterprise agreement will determine the dispute to finality (subject, of course, to any appeal), as opposed to the expression of a mere advisory opinion.[24]
[40] It may be that the relevant facts pertaining to a dispute concerning a particular employee's "substantive salary level" are not in dispute and can be dealt with by way of an agreed statement of facts. In other cases, there may be some factual or legal dispute relating to a change to a particular employee's salary level. For example, it may be in dispute whether there has been a change to the employee's salary level, whether the change was authorised by a contract or industrial instrument, whether the change was made by consent, the terms of any such agreement etc.
[41] The question posed by the NTEIU in its submissions dated 22 July 2021 has embedded within it a number of assumptions which require further information in order for the question to be determined by way of arbitration. For example:
(a) What are the terms of the agreement whereby the employee agreed to alter their employment contract?
(b) How has the employment contract been altered? Is the only alteration to the employee's salary level? Has there been any change to the employee's position?
(c) How has the employee's salary changed? Is that a change to the employee's "salary level" within the meaning of the relevant Agreement?
(d) Is the change to the employee's salary level for a temporary period or alternatively a set period? What is the period, or expected period, of the change? When and on what terms will the employee's salary level revert back to its previous level?
(e) What is the employee's "continuing position" to which reference is made in the final sentence of the question? How does the employee's "continuing position" differ from their temporary position? How did the change in the employee' s position come about?
[42] For these reasons, the broad question posed by the NTEIU would not be appropriate for arbitration. Subject to hearing further from the parties in relation to any precise question(s) for arbitration, it is difficult to see how a question for arbitration could be wider than a question along the following lines:
"What is/was [insert staff member's name] "substantive salary level at the date of separation" within the meaning of clause [52.5 or 63.5 of the Academic Staff and Teachers Agreement or clause 23.5 of the Professional Staff Agreement]?"
[43] It is likely to be the case that the present dispute can be divided into a discrete number of subcategories where the facts underlying each dispute within the subcategory are so similar that the result of each dispute within that subcategory is likely to be the same. If that is so, the NTEIU may ask the Commission to arbitrate one or two cases within each subcategory. Although the outcome of the arbitration of each case within a subcategory will not bind other employees within the same subcategory or the University in relation to such other employees, it is common in industrial disputes of this kind for the parties to take a pragmatic approach and reach agreement on the other cases within the same subcategory on the same terms as the arbitrated case, unless of course there is a proper basis to distinguish the arbitrated case or it is challenged successfully on appeal.
[44] For the reasons given, I am satisfied that I have jurisdiction to deal with the dispute which is the subject of the application lodged by the NTEIU in the Commission. To the extent that the NTEIU has requested that I arbitrate the dispute on the basis of the question posed in the NTEIU's submissions dated 22 July 2021, I exercise my discretion to decline to arbitrate such a dispute. The question posed for arbitration is not appropriate for the reasons I have already explained. Further, for the reasons given below, I do not, at this stage, consider the options of "mediation and/or conciliation of the matter in dispute" to have been "unsuccessful". That is a jurisdictional barrier to arbitration at this point in time.
[45] It will be necessary for the relevant facts relating to the dispute insofar as it pertains to a particular employee to be put before the Commission in an arbitration. Such facts may be agreed or in dispute. The preferable starting point is for the circumstances pertaining to one or more such employees to be identified by the NTEIU and communicated to the University. That has not yet happened. Once it does, the outcome for that employee may be agreed, or the outcome may be in dispute but the underlying facts may be agreed. If any matter remains in dispute, I will make myself available at short notice to mediate and/or conciliate the matter(s) in dispute. If mediation and/or conciliation is unsuccessful and I am requested to arbitrate, I will do so provided the relevant facts pertaining to the matter(s) in dispute are put before me. The arbitration may involve the circumstances pertaining to one particular employee or a number of particular employees. Further, there may be additional arbitrations involving the circumstances of other particular employees.
[46] Although I have conducted one fairly brief conciliation conference, by telephone, in relation to the dispute in its broad terms, I have not had the opportunity to conciliate and/or mediate the dispute insofar as it applies to any particular employees. The Commission is obliged by the terms of the Agreement to "seek to facilitate a fair and reasonable conclusion to the dispute, as promptly as possible, via mediation and/or conciliation of the matter in dispute". The Commission has the power under the Agreements to make a recommendation as part of a mediation and/or conciliation, and the parties to the dispute must "consider any recommendation made" by the Commission. I have not had a real opportunity to consider whether a recommendation should be made because I have been provided with very limited information concerning the dispute and no information pertaining to the particular circumstances of individual employees. In those circumstances, I do not, at this stage, consider the options of "mediation and/or conciliation of the matter in dispute" to have been "unsuccessful" within the meaning of clauses 48.11(i) of the Academic Staff and Teachers Agreement and clause 75.11(i) of the Professional Staff Agreement. That is why I have proposed the pre-arbitration steps in the previous paragraph.
[1] NTEIU's submissions dated 22 July 2021 at [2]
[2] NTEIU's reply submissions dated 4 August 2021 at [9]
[3] CEPU v Thiess Pty Ltd (2011) 212 IR 327 (CEPU v Thiess) at [42] & [47]; see too CFMEU v AIRC [2001] HCA 16
[5] AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd [2015] FWC 4523 (ASP) at [23]
[10] MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32]
[11] AMWU v Thiess Degremont Joint Venture (2012) 226 IR 390 (AMWU v Thiess) at [10] & [21]
[12] CEPU v Thiess at [47]; AMWU v Thiess at [21]
[19] Australian Municipal, Administrative, Clerical and Services Union v Automated Meter Reading Services PR922053 at [73]-[74]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [29]-[31]
[20] Alcoa of Australia Pty Ltd v Amalgamated Engineering Union (1965) 7 FLR 180 at 183
[21] Clause 75.11(i) of the Professional Staff Agreement and clause 48.11(i) of the Academic Staff and Teachers Agreement
[22] Farstad Shipping (Indian Pacific) Pty Ltd v MUA [2017] FWCFB 3317 at [24]
[23] See, for example, clauses 52.2.3 and 52.3.3 of the Academic Staff and Teachers Agreement and clause 23.3.3 of the Professional Staff Agreement
[24] See, by analogy in relation to an application to a court for a declaration, Application by the Restaurant and Catering Association of Victoria [2013] FWC 6705 per Ross J at [17]-[19]
Printed by authority of the Commonwealth Government Printer
National Tertiary Education Industry Union
University of Newcastle [2021] FWC 5150
(2011) 212 IR 327
(2003) 122 IR 97
(2012) 226 IR 390
(1965) 7 FLR 180