Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute arising under the Victoria University Enterprise Agreement 2013.

[1] Victoria University (the University) is proposing to establish a First Year College to support first year university students. The aim is to maximise student success, retention and progression, reduce reliance on sessional academics and improve the financial position of the University.[1]

[2] The National Tertiary Education Industrial Union (NTEU) has concerns about the proposal and has applied to the Fair Work Commission under section 739 of the Fair Work Act 2009 (FW Act) alleging a dispute over the proposal to establish a First Year College.

[3] At the heart of the dispute is the NTEU's concern that the First Year College may lead to substantially different working arrangements for a number of academic staff, and possible redundancy for others.

[4] The matter was initially allocated to Deputy President Hamilton on 11 April 2017. The parties agreed to conciliation, and if necessary, arbitration.[2] A number of conciliation conferences were conducted. Interim orders were sought in the matter and refused by the Deputy President in a decision on 9 May 2017. The decision was appealed. The appeal was subsequently withdrawn and the matter was referred for expedited arbitration and determination by 1 July 2017. The parties filed comprehensive submissions and witness evidence in the proceedings and the matter was heard on 16 and 19 June 2017. [3] This decision deals with the substantive dispute.

[5] The following matters were either common ground between the parties or not in dispute:

a) The University issued a Formal Change and Implementation Plan relating to the establishment of the First Year College on 10 March 2017 (the Plan).[4]

1. The parties are covered by the Victoria University Enterprise Agreement 2013 (the Agreement). The Agreement was approved by the Commission on 14 January 2014 and has a nominal expiry date of 31 December 2017.

c) The Agreement will cover academic staff in the First Year College.

1. The Agreement deals with work allocations for academic staff and provides for the development of "Academic Workload Frameworks" for each College of the University.

2. Until an Academic Workload Framework is confirmed for the First Year College, a document known as "the 2012 Academic Workload Model" will apply to work allocations for academic staff of the College.

[6] After some considerable discussion and with the assistance of the Commission, the parties agreed on the issues in dispute. That agreement was conveniently summarised by Commissioner Harper-Greenwell in directions issued on 2 June 2016.

[7] Submissions subsequently filed by the NTEU expanded on the issues in dispute and the University objected. Many of the additional questions identified by the NTEU are subsets of the issues agreed and summarised by the Commission on 2 June 2016.

[8] The questions for determination are these:

1. Under the Agreement, can the University engage academic staff in an education-focussed role other than the Academic Teaching and Scholar role?

2. Under the Agreement, are workload allocations for First Year College staff to be determined in accordance with the Academic Workload Model until an Academic Workload Framework for the First Year College is confirmed?

3. Can the University require First Year College staff to work a fourteen hour teaching load, and on what basis?

4. Can the University determine the research allocation for First Year College staff, and on what basis?

5. Has the University complied with its obligations under clause 65 of the Agreement in relation to internal transfers and seeking wherever possible to avoid forced redundancies?

6. Has the University complied with its obligations to provide information to academic staff under clause 66.3 of the Agreement?

[9] I will consider each of these questions in turn.

Principles applicable to the construction of agreements

[10] In The Australian Meat Industry Employees Union v Golden Cockerel Pty Limited[5], a Full Bench of this Commission set out the relevant principles to be applied in the construction of agreements. These principles were recently revised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[6].

[11] I respectfully adopt and apply these principles in this decision.

[12] The Agreement applies to the University, the NTEU and all academic and professional staff of the University, with some limited exceptions. Clause 5 of the Agreement provides as follows:

5.1 The parties to this Agreement are Victoria University and the National Tertiary Education Union (NTEU).

5.2.2 The National Tertiary Education Union (NTEU), and

5.2.3 All academic and professional staff of the University other than:

1. The Vice-Chancellor, Deputy Vice-Chancellors, Pro Vice-Chancellors and Vice Presidents; and

2. Any employee of Victoria University employed in a position of equivalent or higher level to those positions described above in sub-clause 5.2.3a); and

1. TAFE Teaching staff and staff engaged on a TAFE Executive Contract of Employment.

5.3 All the terms and conditions of this Agreement will apply to staff members engaged in Children's Services, except as provided in Schedule 3. If Schedule 3 terms conflict with provisions in the body of the Agreement, Schedule 3 terms will prevail for Children's Services staff.

5.4 All the terms and conditions of this Agreement will apply to casual staff members and sessional instructors engaged by the University to work in the Aquatic and Fitness Centre, except as provided in Schedule 4. If Schedule 4 terms conflict with provisions in the body of the Agreement, Schedule 4 terms will prevail for casual staff members and sessional instructors engaged to work in the Aquatic and Fitness Centre.

5.5 All the terms and conditions of this Agreement will apply to staff members engaged in Foundation Studies, except as provided in Schedule 5. If Schedule 5 terms conflict with provisions in the body of the Agreement, Schedule 5 terms will prevail for Foundation Studies staff.

[13] Employment categories for academic staff under the Agreement are set out in clauses 28, 29 and 30 of the Agreement:

The Minimum Standards for Academic Levels (MSALs) at Schedule 9 of this Agreement shall be used as an indicator of the type and level of work expected of academic staff.

29 Academic Teaching Scholar Classification Structure

Academic Teaching Scholars will be classified in accordance with clause 46 of this Agreement.

The classification structure adopted by the University for Research positions is set out in the following table. The MSALs at Schedule 9 of this Agreement shall be indicative of the type and level of work expected of research staff.

[14] The Agreement also provides for "Foundation Studies academic teachers" (Schedule 5), defined as follows:

Foundation Studies academic teacher means an employee engaged to teach students, where a majority of the employee's teaching work is in the delivery of foundation studies programmes or bridging courses where the programme or course is preparatory to or articulates with programmes leading to higher education qualifications or higher education programmes.

[15] Clause 45 deals with the allocation of work for academic staff. Academic work is defined as follows:

45.1(a) Academic work encompasses teaching (including supervision), research and scholarship, and leadership and service to the University.

[16] Clause 46 of the Agreement defines the term "Academic Teaching Scholar", as follows:

46.1.1 Academic Teaching Scholar (ATS) refers to a staff member who is principally engaged to teach, lecture, manage, coordinate and/or develop educational programs across the AQF levels in accordance with the teaching/scholarship aspects of the relevant MSALs.

46.6.1 The University will appoint a minimum of 40 FTE continuing ATS positions by the nominal expiry date of this Agreement. To achieve this requirement, the University will aim to appoint not less than 10 FTE continuing ATS positions in each year of this Agreement. These positions will be established with the objective of replacing sessional teaching work. These positions will predominantly perform teaching work that would otherwise have been undertaken by sessional academic teaching staff.

[17] Relevantly, clause 3 defines "academic sessional" as follows:

"Academic Sessional" shall mean an academic staff member who is employed on a casual basis and paid in accordance with Schedule 2 of this Agreement.

[18] Clause 46 contains a range of terms dealing with the engagement of Academic Teaching Scholars, including the appointment process, work allocations, career review, terms and conditions of employment as well as limits on the use of Academic Teaching Scholars.

[19] Key features of the Academic Teaching Scholar role include:

a) employment on a full time, part-time or fixed term (but not casual) basis;[7]

b) classification in the range from Academic Level A3 to B2;[8]

c) maximum 1710 annual hours for full time staff;[9]

d) maximum teaching contact hours of 18 per week, or 540 per calendar year (AQF levels 7 and above);[10]

e) maximum teaching contact hours of 720 per calendar year (AQF levels 6 or lower);[11]

f) less beneficial conditions under the Agreement (for example, in relation to academic redundancy provisions).[12]

[20] Under clause 46.4.1, Academic Teaching Scholars may have the opportunity to transition into a 'non-Academic Teaching Scholar academic position'. By contrast, clause 46.2.1 prevents continuing academic staff of the University from applying for Academic Teaching Scholar roles:

46.2.1 Appointment to an ATS position will be through a competitive process on the basis of merit. To be eligible to apply a person must have the required qualification (as per sub-clause 46.1.2) and at least one year's employment in total in Australian universities. A person who holds a continuing higher education academic position will be excluded from applying for an ATS position.

[21] Schedule 9 contains the Minimum Standards for Academic Levels (Minimum Standards) referred to in clauses 28 and 30 of the Agreement. These Minimum Standards are divided into two categories: Teaching and Research Academic Staff (Levels A-E) and Research academic staff (Levels A-E). The Minimum Standards do not apply to academic sessional staff. In relation to Academic Teaching Scholars, it appears that only the teaching/scholarship requirements of the Minimum Standards apply.[13]

[22] The minimum standards for levels of Teaching and Research Academic Staff encompass a range of work, which may include teaching, at every level. Minimum standards for levels of research academic staff, by contrast, do not contemplate the activity of teaching except in Level A which provides for 'limited teaching' in addition to other activities.

[23] Under Schedule 9:

The responsibilities of academic staff may vary according to the specific requirements of the employer to meet its objectives, to different discipline requirements and/or to individual staff development.

An academic appointed to a particular level may be assigned and may be expected to undertake responsibilities and functions of any level up to and including the level of to which the academic is appointed or promoted. In addition, an academic may undertake elements of the work of a higher level in order to gain experience and expertise consistent with the requirements of an institution's promotion processes.

[24] Schedule 10 of the Agreement is headed "Components of Academic Work". Its purpose is explained in clause 45.1(j) of the Agreement:

1. Schedule 10 of this Agreement shows how, with particular allocations of research, allocated service and leadership, maximum teaching contact hours (including equivalent supervision) are determined for individual academics.

[25] Schedule 10 sets out a table defining the maximum contact teaching hours for academic staff, by reference to their individual "basic service & scholarship"; "research, allocated service and leadership"; and "teaching or supervision" allocation. Under the table, the higher the teaching or supervision allocation, the greater the number of contact teaching hours per week. A high research, allocated service and leadership allocation corresponds with a much lower number of contact teaching hours per week.

[26] Schedule 10 does not apply to Academic Teaching Scholars.[14] Work allocations and workload conditions for Academic Teaching Scholars are those contained in clause 46 of the Agreement.

Can the University engage academic staff 'with an education focus' other than as Academic Teaching Scholars under the Agreement?

[27] The University has invited "College based academic staff to submit an expression of interest for recruitment into an academic role with an education focus" within the First Year College.[15] There is no obligation to take up the invitation, which was made to staff when the Plan was issued on 10 March 2017. The role is separate and distinct from the role of Academic Teaching Scholars who will also be employed in the First Year College.

[28] The NTEU says that the University cannot offer academic staff roles with an 'education focus' in the First Year College. It says that:

1. the Agreement operates as a code, at least insofar as it regulates the engagement of employees into academic roles;

2. the issue of teaching intensive roles was the subject of bargaining for the Agreement. This led to the creation of a new Academic Teaching Scholar role;

3. the Agreement does not provide for any other academic role that is "teaching intensive"; and

d) to allow the University to create a different 'teaching intensive' role subverts the intention of clause 46 of the Agreement.

[29] The University agrees with the NTEU that the Agreement "covers the field" in respect of the employment of academic staff by the University. However, it says:

1. the University can prioritise teaching and education in the allocation of work to academics;

2. new positions created in the First Year College are academic positions contemplated in the Agreement; and

3. academics employed in the First Year College may undertake a full range of academic duties as provided in the Agreement.

What is "an academic role with an education focus"?

[30] The Plan includes position descriptions for the new First Year College roles[16]. These set out what are referred to as the "core attributes and criteria for selection" of Level A-E academics into the new "academic role with an education focus".

[31] The Position Description for an "Academic with an education focus - Level A" provides as follows:

Level A academic staff with an education focus in the First Year College will work collaboratively and with the support and guidance of other FYC staff to teach the new first year curriculum in their discipline/field of study. They will be responsible for creating an intellectually challenging learning environment that stretches, motivates and encourages students. They will also work collaboratively with their FYC disciplinary colleagues, as well as their colleagues in the relevant Senior College, to ensure coherent disciplinary pathways into second and subsequent years of study.

Level A academics with an education focus will contribute to the development, coordination and management of units and participate in, processes for the continuous review and evaluation of the first year curriculum, focused on the primary objective of student success. They will have a substantial knowledge of their discipline/field and a rich understanding of how it is taught and learnt, along with a disciplinary passion that engages students.

Level A academics with an education focus will have or develop an agreed scholarly program of research or practice around the teaching of their discipline and the scholarships of teaching, integration or application.

[32] Key responsibilities of the position are identified in the Position Description and include:

• teaching the new curriculum, including development of unit/course materials, defined learning outcomes, engaging teaching and learning activities and assessment requirements;

• teaching and supporting student learning;

• providing academic guidance and timely feedback to students;

• contributing to collaborative curriculum development with programs in the relevant Senior College;

• unit leadership as required;

• participating in scholarly, collaborative discipline level curriculum review and evaluation processes.

[33] Similar Position Descriptions are provided for Level B-E 'academics with an education focus', with incrementally increasing levels of responsibility for the delivery of 'high impact educational practices' at the First Year College.

[34] The Position Description for an "Academic with an education focus - Level E" provides as follows:

Level E academic staff with an education focus in the First Year College will lead the development of the first year curriculum in their discipline/field as well as exercising leadership and fostering excellence more broadly within the FYC and senior HE Colleges. They will be responsible for creating an intellectually challenging learning environment that stretches, motivates and encourages students.

They will be responsible for leading and overseeing constructive collaboration with all other FYC staff as well as their colleagues in the relevant Senior College to ensure coherent disciplinary pathways into second and subsequent years of study. Making significant contributions to the governance of the FYC and related quality assurance and enhancement, they will also develop and lead processes for the continuous review and evaluation of the first year curriculum, focused on the primary objective of student success.

Level E academics with an education focus will be accountable for unit and program management and coordination, including leadership of and support for relevant College staff. They will have overall responsibilities for academic staff supervision and professional development.

Level E academics with an education focus will have a deep knowledge of their discipline/field, and a rich understanding of how it is taught and learnt, along with a disciplinary passion that engages students. They will also have a distinguished scholarly program of research or practice around the teaching of their discipline, the scholarships or integration and application, and educational leadership.

[35] Key responsibilities of the position are identified in the Position Description and include:

• Making original, innovative and distinguished contributions to the ongoing collaborative development of the First Year College pedagogical model;

• Providing leadership in innovative curriculum design and associated quality assurance and enhancement;

• Leading collaborative curriculum development and driving coherence with relevant discipline/professional programs in second and later years of study;

• Undertaking unit, program or organisational coordination as required;

• Leading and coordinating the effective and supportive supervision of academic staff;

• Teaching and supporting student learning through high impact educational practices;

• Overseeing and providing academic guidance and timely feedback to students, and directing them to support/professional services where needed;

• Leading collaborative discipline level curriculum review and evaluation processes;

• Managing, coordinating and supporting teaching teams; and

• Maintaining and continuing to deepen disciplinary expertise and pedagogical knowledge.

[36] The proposed Academic Teaching Scholar role in the First Year College is described in a separate Position Description for that role as follows:

Academic Teaching Scholars are critical to the success of the First Year College, embodying its commitment to high impact educational practices. They are key student-facing staff members of the FYC, with high visibility in the College's learning spaces. They will know and empathise with their students, understanding and responding to their needs, offering timely interventions to support learning. In collaboration with the other academic staff in the FYC, they will create an intellectually challenging learning environment that stretches students and makes them think in different ways about their subject.

ATS staff will have an excellent knowledge of their discipline, and a rich understanding of how it is taught and learnt, along with a disciplinary passion and curiosity that engages students. They will understand and contribute to the development and evolution of the FWC pedagogical model.

[37] Key responsibilities of the Academic Teaching Scholar position at the First Year College are identified in the Position Description and include:

• collaborating on the development of unit materials, unit outlines, required learning outcomes, learning activities and assessment requirements;

• responsibility for classes/seminars/labs classes with First Year College students including academic guidance and timely feedback;

• identifying individual student learning difficulties and directing students to appropriate support and services;

• availability to provide consistent and timely advice and support as needed;

• collaborating with other College staff to develop and implement unit and course reviews;

• undertaking continual professional development in scholarly teaching and learning and disciplinary knowledge.

[38] As these descriptions make clear, there are a number of overlapping features of the 'academic with an education focus' role and the Academic Teaching Scholar role, particularly at the lower academic levels. Teaching and supporting students is a common theme. The key difference appears to be the requirement that an 'academic with an education focus' has (or develops) a "scholarly program of research or practice around the teaching of their discipline and the scholarships of teaching, integration or application". At the higher levels, leadership is also an expectation of the role.

Can academics with an education focus be employed under the Agreement?

[39] All academic staff employed by the University in the First Year College are covered by the Agreement.[17]

[40] Teaching and Research Academic Staff are employed under clause 28 of the Agreement and their indicative "type and level of work" is set out in Schedule 9. They contribute in a range of ways to the University, including through teaching, scholarship, research and/or professional activities and related administration.

[41] I find no ambiguity in the Agreement on the issue of whether academics with an education focus can be employed under the Agreement. The Agreement does not prescribe the particular focus of individual academics. Instead, it recognises in Schedule 9 that individual responsibilities may vary according to the specific requirements of the employer, different discipline requirements and/or individual staff development. The allocation of work for each academic staff member varies according to the individual, as contemplated by clause 45 and Schedule 10 of the Agreement (discussed further below).

[42] Schedule 9 is expansive in its language, and operates as a guide. Schedule 10 clearly contemplates arrangements where the predominant focus of an academic is on teaching or supervision, just as it contemplates arrangements where the predominant focus of an academic is on research, allocated service and leadership.

[43] The Agreement is more prescriptive in relation to Academic Teaching Scholars. It is expected that these staff will focus on the delivery of educational programs, because of the way their role is defined in clause 46.1.1. Foundation Studies teachers also have an expected focus on teaching, as set out in Schedule 5, although they do not appear to be 'academic staff' for the purposes of the agreement.[18]

[44] As the Agreement makes plain, the Academic Teaching Scholar role was created for a specific purpose; that is, to replace sessional teaching work. During the term of the Agreement (and in accordance with its terms), a number of Academic Teaching Scholars will be appointed to "predominantly perform teaching work that would otherwise have been done by sessional academic" (casual) teaching staff.[19]

[45] A number of agreement terms address the relationship between the role of academic staff and Academic Teaching Scholars. Academic Teaching Scholars are themselves 'academic staff' in the broader context in which that term is used under the Agreement.[20] Most terms of the Agreement relevant to academic staff also apply to the employment of Academic Teaching Scholars. However, a number of those terms do not apply, including terms dealing with Academic Staff Supervision[21] and most terms of clause 45, which deals with work allocations. Academic Teaching Scholars have a limited classification range, from Academic Level A3 to B2. Persons who hold a "continuing higher education academic position" cannot apply for Academic Teaching Scholar roles.[22]

[46] The fact that an Academic Teaching Scholar can only be appointed up to level B2 is significant. If, from commencement of the Agreement, academic staff with an education focus could only be employed as Academic Teaching Scholars under the Agreement, their prospects for career development would have been seriously constrained. Continuing academic staff cannot even apply to become Academic Teaching Scholars. Once at level B2, Academic Teaching Scholars are at the top of their classification, with only the promise of a "discussion on a possible career path" at a point in time during their employment.[23]

[47] The restriction on "continuing" academic staff applying for Academic Teaching Scholar roles is consistent with the stated intention to replace sessional (casual) teaching work in clause 46.2.1. It reserves the Academic Teaching Scholar role for employees other than continuing full-time and part-time employees (that is, for casual employees). "Continuing employment" is defined at clause 13.2 of the Agreement, and excludes casual employment:

Continuing employment means all full-time and part-time employment but excludes employment on either a fixed-term, contingent funded, or casual basis. Continuing employment may contain a reasonable probationary period that is directly related to the nature of the work to be carried out under the contract. As a condition incidental to employment on probation, an employee must be advised of, and given an opportunity to make response to, any adverse material about the employee which the University intends to take into account in a decision to terminate the employment upon or before the expiry of the period of probation.

[48] I am satisfied that the Academic Teaching Scholar role was intended, and only intended, to specifically address the use of sessional teaching staff in the University. It was not intended to narrow the scope of work available to academic staff generally under the Agreement.

[49] Construing the terms of the Agreement as a whole, I find that academic staff of the University (including, but not limited to Academic Teaching Scholars) can be engaged in roles with an education focus under the Agreement.

Are workload allocations for First Year College staff to be determined in accordance with the Academic Workload Model until an Academic Workload Framework for the First Year College is confirmed?

[50] The NTEU says that on a proper reading of the Agreement, teaching workloads for academic staff in the First Year College are to be determined in accordance with the Academic Workload Model referred to in clause 45.5 of the Agreement.

[51] The University agrees that the Academic Workload Model applies to academics employed in the First Year College pending confirmation of an Academic Workload Framework for the College. [24]

[52] As is clear, the Commission is being asked to resolve a question that is not in dispute. I am not persuaded that there is any utility in doing so and I make no finding on this issue.

Can the University require First Year College staff to work a fourteen hour teaching load, and on what basis?

[53] The NTEU says that academic teaching loads are to be determined individually, and in the case of academic staff in the First Year College, by application of the Academic Workload Model. It says that the only academic staff member who could be required to work a 14 hour teaching load would be one with the minimum possible research allocation. A 'research active' academic staff could not properly be expected to work more than a 12 hour teaching load.

[54] The University agrees that in relation to the First Year College, the maximum teaching load for an academic staff member will depend on the work allocation of the individual academic, as determined under the Academic Workload Model.

[55] In my view, Schedule 10 also operates to limit the maximum and minimum teaching loads for academic staff of the First Year College.

[56] Clause 45.1 contains a list of "Principles and Standards" for the development of Academic Workload Frameworks and the allocation of academic work. Relevant principles include that:

• allocations will enable academic staff to focus on their core activities (teaching, scholarship, research and service);

• work will be allocated in a transparent, equitable, flexible and accountable manner;

• maximum annual allocations for full time academic staff members will be 1710 hours;

• maximum annual teaching contact hours will be 336 (equivalent to 14 contact hours per week over two 12 week semesters);

• subject to particular conditions of appointment, the minimum teaching /supervision allocation will be 3 hours per week per semester;

• academic work is dynamic and variable and allocations may be subject to change;

• Colleges will endeavour to provide the necessary resources, advice and support for staff to manage their work; and

• an academic's health, safety and welfare will be taken into account in the allocation of work.

[57] Clause 45.1(j) in the list of "Principles and Standards" refers to Schedule 10, and explains the content of that Schedule.

[58] The introductory sentence in Clause 45.1 is as follows:

45.1 Colleges will develop Academic Workload Frameworks (AWFs) and allocate academic work in accordance with the following principles and standards:

[59] On its terms, the principles and standards in clause 45.1 are not limited only to academic staff employed under an Academic Workload Framework. Instead, they guide the development of Academic Workload Frameworks, and also set general parameters around the allocation of academic work, including where no Academic Workload Framework has been confirmed.

[60] A number of terms of the Agreement operate in the absence of an Academic Workload Framework, including:

• Clause 45.4, dealing with the establishment of a Monitoring and Advisory Committee;

• Clause 45.4.5, establishing a process for dealing with when an Academic Workload Framework is not confirmed;

• Clause 45.4.6, which allows College Deans to seek the assistance of the Committee in designing consultation processes to develop Academic Workload Frameworks;

• Clause 45.6.1, which excludes Academic Teaching Scholars from the concept of Academic Workload Frameworks, and instead tasks the Committee with monitoring and developing work allocation principles and standards for them.

[61] Clauses 45.6.1(c) and (d) are also relevant. They provide for the application of the principles contained in clauses 45.1(k) and 45.1(h) to academic staff not otherwise covered by clause 45.

[62] It follows that Schedule 10 applies to academic staff of the First Year College, including the principle in clause 45.1(i) that the maximum teaching contact hours will be equivalent to 14 contact hours per week over two 12 week semesters.

[63] As agreed between the parties, work allocations (including teaching loads) will also be in accordance with the Academic Workload Model. If and when an Academic Workload Framework is confirmed for the First Year College, teaching loads will be determined in accordance with that Framework, as required by clause 45.3.1 of the Agreement.

Can the University determine the research allocations for First Year College staff, and on what basis?

[64] Just as teaching loads are to be determined in a particular way, research allocations for First Year College staff are to be determined in accordance with the principles and standards outlined in clause 45.1 and having regard to Schedule 10, for the reasons set out above.

[65] As agreed between the parties, research allocations will be in accordance with the Academic Workload Model.

[66] If and when an Academic Workload Framework is confirmed for the First Year College, research allocations will be in accordance with that Framework, as required by clause 45.3.1 of the Agreement.

Has the University complied with its obligations under clause 65 of the Agreement in relation to internal transfers?

[67] The NTEU says that the University has not genuinely pursued the option of "internal transfer" under clause 65.2 of the Agreement, because it has invited academic staff to apply for a role it cannot offer them.

[68] This argument is directly related to whether the Agreement permits academic staff to be engaged in roles with an education focus, except as Academic Teaching Scholars. As I have found that the University is entitled to engage academic staff in roles that have an education focus, I find no contravention of the Agreement on this basis.

[69] The NTEU also says that the obligation to genuinely pursue internal transfers will not be met if the University has misled staff about work allocations applying to the First Year College, because staff will have acted on wrong information in deciding whether or not to take up the invitation.

[70] The University says that there can be no contravention of clause 65 of the Agreement in circumstances where no forced redundancy process has begun.

[71] Clause 65 of the Agreement deals with Job Security, and provides as follows:

65.1 The University recognises that security of employment is an important issue for its staff members. The goal of the University is to endeavour that there be no net reduction in jobs.

65.2 The University will pursue the options of retraining, natural attrition, voluntary separations, fixed term retirement contracts, leave without pay, voluntary conversion to part-time employment, long service leave, or internal transfer before proceeding with forced redundancies.

65.3 The University will seek wherever possible to avoid forced redundancies, but reserves the right to adopt this approach. Forced redundancies will be considered only as a last resort when all other options have been exhausted.

[72] In my view, clause 65 sets out a general approach that the University has agreed to adopt when contemplating forced redundancies. It is not only enlivened in circumstances where a decision has been made to proceed with forced redundancies.

[73] On the evidence before me, the University is actively pursuing a range of options to assist in the mitigation of potential redundancies, and it is not yet known if redundancies will be necessary at all.

[74] I am not satisfied that there has been any contravention of clause 65.2 of the Agreement at this stage.

Has the University complied with its obligations under clause 65 of the Agreement to seek wherever possible to avoid forced redundancies?

[75] The NTEU says that if it is possible for the University to offer existing academic staff an opportunity to perform the teaching work planned for Academic Teaching Scholars in the First Year College, a failure to offer this option to academic staff would contravene clause 65.3.

[76] The establishment of the First Year College, and the implementation of the Plan, is still in its early stages. Some employees have been offered work in the First Year College, but work is still underway to meet the identified staffing needs of the University in relation to the First Year College. [25] The University has not decided on the need for any forced redundancies at this stage and is doing what it can to avoid them.[26]

[77] I am not satisfied that the NTEU has established a contravention of clause 65.3 of the Agreement at this stage. No forced redundancies have yet been implemented. The Commission has previously made clear that the University has the right to consider forced redundancies, if and when all other options under clause 65 of the Agreement have been exhausted.[27] This process must be allowed to run its course.

Has the University complied with its obligations under clause 66.3 of the Agreement to provide information?

[78] Finally, I turn to whether the University has met its obligations under clause 66.3 of the Agreement.

[79] The NTEU says that the University has not complied with its obligations to provide relevant information to staff about the proposed establishment of the First Year College. Specifically, it says the University was required to advise academic staff that the Academic Workload Model would apply in relation to the First Year College until an Academic Workload Framework was developed and confirmed, and that it did not do this.

[80] The University says that a written statement that work performed in the First Year College will be allocated in accordance with the Academic Workload Model is not information of the type contemplated by clause 66.3.2 of the Agreement.

[81] Clause 66 applies to circumstances where the University makes a "specific major change proposal". The phrase "major change" is not defined, but it includes proposals that are likely to lead to significant changes to work practices, the restructuring of work areas and/or redundancy. Under clauses 66.3.2 and 66.3.3, where there is a specific major change proposal, the University is required to provide information to affected staff and the NTEU, including:

1. documentation about:

   • the extent and nature of the change proposal;

   • reasons for making the change;

   • the aim of the change;

   • timeframe for change;

   • the likely number, if any, of redundancies; and

   • any relevant financial information.; and

2. relevant information related to the proposed change and its implementation.

[82] The provision of this information supports the agreed principle in clause 66.1.1 that:

Sound management of workplace change requires the timely consultation and involvement of the staff members who will be affected by the change and the NTEU. Such consultation is to provide affected staff members and the NTEU with a bona fide opportunity to influence the University in its decision making and explore alternatives and options aimed at mitigating any adverse consequences of such change.

[83] The NTEU and the University both led evidence about whether, and how, the application of the Academic Workload Model to staff in the First Year College was raised.[28] The University says that the issue was not formally raised until late in the consultations. Much of the formal documentation issued by the University[29] seeks to explain the role of an academic with an 'education focus', but is not specific about how work allocations will be made. Mr Haritou expressed the view that this would have been well known both to the NTEU and at least some staff.[30]

[84] The NTEU led evidence that a number of academic staff understood, rightly or wrongly, that positions in the First Year College would have their work allocated in a way that was not consistent with the Academic Workload Model.[31] The NTEU also led evidence that concerns were raised with the University about how work would be allocated for academic staff of the First Year College.[32]

[85] The issue is relevant to both the nature of the change proposed and the options available to academic staff to mitigate any adverse consequences of the change. Concerns about how work would be allocated could readily have been addressed by communicating to all affected academic staff that the Academic Workload Model will apply pending confirmation of a new Academic Workload Framework.

[86] It is important to note that, subject to its terms, clause 66 is not time limited. Consultation can occur at any stage of the process, including before decisions are made and when seeking to mitigate the effects of decisions on employees. The University has now confirmed its position about the application of the Academic Workload Model in writing to the NTEU and in these proceedings.[33] It is appropriate that this position be made clear to all academic staff who may be affected by the Plan, including those who may still have an opportunity to apply for positions in the First Year College. I propose to make a recommendation to that effect.

[87] Having considered all the evidence and submissions in these proceedings and the relevant authorities, for the reasons set out above, I find that:

1. the University can engage academic staff in roles with an education focus under the Agreement;

2. the principles and standards in clause 45.1 and Schedule 10 of the Agreement apply to the determination of teaching loads and research allocations for academic staff under the Agreement; and

3. I am not satisfied that there has been any contravention of clauses 65.2 or 65.3 of the Agreement at this stage.

[88] I recommend that, within 7 days, the University advise all academic staff that the Academic Workload Model will apply to work allocations for academic staff in the First Year College pending confirmation of an Academic Workload Framework.

[2] Transcript PN390 - PN 393 (8 May 2017)

[3] Exhibits A1, A2 A3, A4, A5, A6, A7, A8, Exhibits R1, R2, R4, R5 and Applicant's Submissions filed on 5 June 2017**.**

[5] [2014] FWCFB 7447

[6] [2017] FWCFB 3005

[15] Exhibit R4, Attachment MH-5 "Formal Change and Implementation Plan, page 5.

[16] Exhibit R4, Attachment MH-5, pages 67-81.

[27] [2014] FWC 7711 at [73]; [2015] FWCFB 2892.

[29] For example, the Plan (Exhibit R4, Attachment MH-5), presentations to staff (Exhibit R4, Attachments MH6-12, email correspondence with the NTEU and affected staff (PA-19).

[30] Transcript of 16 June 2017, at PN997, PN1001, PN1034-5.

[32] For example, Exhibit A1, Attachments PA11; PA20.

[33] Attachment to F10 Application - letter of 30 March 2017; Exhibit V2, paragraph 27.

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