s.739 - Dispute resolution

Alleged dispute about matters arising under the University of Technology Sydney Staff Agreement 2021 - consultation obligations concerning major workplace change - voluntary redundancies

[1] An application has been made by the National Tertiary Education Industry Union (NTEU/Applicant) for the Commission to resolve a dispute with the University of Technology Sydney (UTS/Respondent) under the University of Technology Sydney Staff Agreement 2021 (Agreement).[1]

[2] The Agreement applies to UTS and its employees (who are employed in one of the classifications specified in clause 5.1 of the Agreement). The NTEU is covered by the Agreement.

[3] Conciliation was unsuccessful in resolving the dispute. There is no contest between the parties as to the jurisdiction of the Commission to resolve this dispute by way of arbitration in accordance with clause 12 of the Agreement, and s.739 of the Fair Work Act 2009 (Act). I equally make this finding.

[4] Directions were issued for the filing and serving of submissions and evidence on 16 December 2025, and a hearing was conducted in Sydney on 8 January 2026. At the hearing, Mr Scott Rickard, NTEU Industrial Officer, assisted by Mr Trevor Murray, NTEU Organiser, appeared for the NTEU, and Ms Alice DeBoos, Partner, assisted by Mr Jia Pan Xiao, Special Counsel, and Mr Zane Norris, Solicitor, Kingston Reid Lawyers, appeared (with permission) for UTS.

[5] The NTEU presses for both interim and final relief (i.e. orders) in resolution of this dispute. By agreement of the parties, the hearing conducted on 8 January 2026 was an expedited final hearing. The outcome of this decision thus resolves all of the issues raised and relief sought by the NTEU on a final basis.

[6] In terms of evidence, the Applicant relies upon the witness statement of Dr Sarah Attfield, UTS NTEU Branch President, and the Respondent relies upon the witness statement of Ms Jo Blackwell, UTS Head of Partnering and Workplace Relations. Neither of these witnesses were required for cross-examination.

[7] UTS's expenditure has been exceeding its revenue. UTS also needs to pay back a $300 million bond by mid-2027. In short, the existing position that UTS finds itself in is unsustainable. UTS needs to, and must, make operational changes, including to reduce its overall costs structures, with reductions in staff numbers via "redundancy"[2] (voluntary or forced) inevitable.

[8] To this end, UTS has commenced a restructuring and consultation process, referred to as the UTS Operational Sustainability Initiative (OSI). The OSI aims to achieve sustainable revenue growth, address operating deficits and loss of cash reserves, and develop operating models that support the UTS's core academic activities and strategic priorities. There is no dispute between the parties that the operational changes sought by UTS are "Major Workplace Changes" (within the meaning of that term under clause 51.9 of the Agreement).

[9] Engagement with staff around the OSI commenced on 6 March 2024. Since that date, there has been repeated and significant engagement with staff and the NTEU in accordance with the consultation requirements of the Agreement, relevantly (in summary) including:

(a) the formal commencement of an initial consultation procedure on 7 November 2024;

(b) the establishment of a SharePoint website to provide and make available detailed information to relevant employees regarding the OSI and proposed changes;

(c) faculty, divisional and union meetings between November 2024 and June 2025 in relation to the Initial Consultation process;

(d) a dispute between the NTEU and UTS (commenced by the NTEU in June 2025, and escalated to the Commission by UTS in July 2025 and continuing through to August 2025). On 3 September 2025, the NTEU notified the Commission that the file in this dispute could be discontinued and closed;

(e) workshops involving the NTEU and various executive management teams of UTS in relation to the provision of detailed financial and operational information in August 2025;

(f) the issuing (for consultation), on 17 September 2025, of the Academic Change Proposal (including its addendums) (ACP)[3] by UTS, originally intended to conclude on 15 October 2025, but extended (at the request of the NTEU) for an additional 3 weeks;

(g) between 17 September and 6 November 2025, a process of consultation on the ACP involving meetings at various levels and forums, written FAQs, and information published on the SharePoint website; and

(h) UTS publishing on the SharePoint website the final update on the consultation process, including all relevant feedback received.

[10] Despite the foregoing history, the NTEU now alleges that UTS is not complying with the terms of clauses 52.12, 52.13 and 54 of the Agreement in relation to its consultation and voluntary redundancy obligations. These clauses read:

"52.12. Following the initial consultation process, if the University decides to propose a major workplace change as described at sub-clause 51.9, the University will develop a Change Proposal for consultation with staff directly affected by such a change and Unions. The change proposal will include:

(a) why the change is necessary, the nature of the change and expected outcomes;

(b) the likely impact of the proposed change on staff, including changes to positions, work processes, workloads, placements, redeployment opportunities and possible redundancies (as relevant);

(c) the process for consultation and proposed implementation strategies, including anticipated timelines;

(d) a proposed approach for a review of the implemented change; and

(e) information on the support available for staff.

52.13. Where relevant, the Change Proposal will also include:

(a) organisational charts outlining the current structure and proposed structure, and any proposed new or changed position descriptions;

(b) copies of, or extracts from, any reports that have led to the proposed change;

(c) anticipated financial implications of the proposed change;

(d) an assessment of the psychosocial health and safety impact of proposed changes on staff, including workload matters, and proposed mitigation strategies; and

(e) an assessment of the impact on workforce diversity in relation to the University's equity and Indigenous employment objectives, and proposed mitigation strategies.

54.1. The provisions of this Clause apply to continuing staff only (excluding Contract Research Employment staff).

54.2. When a continuing staff member's position is identified as redundant and they have not been placed in a suitable vacant position in accordance with sub-clause 52.17, they will be invited to apply for a voluntary separation benefit.

54.3. Following receipt of the invitation referred to in sub-clause 54.2, the staff member will have 4 weeks to submit their application for a voluntary separation benefit.

54.4. The provisions of Clause 53 (Redeployment) will apply during the four-week consideration.

54.5. Following the University's approval of a voluntary separation application, the final date of employment will be determined in consultation with the staff member and based on operational requirements.

54.6. Where is staff member has been granted voluntary separation and their last day of employment has been determined, the University will support their external job search by approving reasonable time off for the purpose of attending job interviews. The University may also provide additional support such as the option of accessing outplacement support or financial advice from UniSuper.

54.7. Where such a staff member does not apply for a voluntary separation benefit within the specified time frame, the provisions Clause 55 (Retrenchment) will apply."[4]

[11] My decision in this matter applies the principles set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd[5] and James Cook University v Ridd.[6] Such principles were neatly and helpfully summarised by Deputy President Gostencnik (as he then was) in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union v Paper Australia Pty Ltd:[7]

"In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant."[8]

[12] In resolving this dispute, the NTEU seeks multiple forms of relief (or orders), being:

(a) The withdrawal of the current ACP, and the re-issuing of a new ACP that contains:

(i) a genuine and detailed explanation as to why the change is necessary (purportedly relating to clause 52.12(a) of the Agreement);

(ii) a complete explanation of the financial implications of the change (purportedly relating to clause 52.13(c) of the Agreement);

(iii) an assessment of the impact of the proposed change on workforce diversity, and proposed mitigation strategies (purportedly relating to clause 52.13(e) of the Agreement);

(iv) provision of any reports that led to the proposed change, such as those referenced in ULT meeting agendas (purportedly relating to clause 52.13(b) of the Agreement); and

(v) provision of organisational charts (and associated position descriptions) showing both current and proposed future state (purportedly relating to clause 52.13(a) of the Agreement).

(b) An order (originally pressed as an interim order) restraining UTS from offering and accepting VRs until UTS has made a definite decision to implement its proposals, along with orders:

(i) requiring the cessation of the VR expressions of interest (VR EOI) process until the implementation phase begins; and

(ii) to the effect that any VR EOI process only commence during the implementation phase (being a VR EOI process which is compliant with relevant clauses in the Agreement).

[13] Clause 52.12(a) of the Agreement provides that that the ACP is required to include information as to why change is necessary, the nature of the change being proposed, and the expected outcomes of the change.

[14] In asserting that UTS has not complied with clause 52.12(a), the NTEU essentially seeks to undermine UTS' assertion that change is necessary. In this regard, the NTEU claims that UTS has wrongly interpreted federal government immigration policies and outcomes, and the impact of federal government visa processing arrangements.

[15] The difficulty with the NTEU's position in respect of clause 52.12(a) is that there is no contest on the evidence as to UTS' other reasons for why change is necessary, i.e. five operating deficits since 2020, and the need to generate cash reserves to pay back a $300 million bond by mid-2027.[9] Further, whatever might be the position as to federal government immigration policies and visa processing arrangements, and their impact upon student numbers and revenues, there is no evidence before me to confirm that the view (or position) taken by UTS as to same is wrong or faulty.[10]

[16] I reject the NTEU's contention that the ACP (itself) does not comply with clause 52.12(a) of the Agreement, or that the ACP should be withdrawn or replaced on the basis of any concern (or asserted non-compliance) with clause 52.12(a) of the Agreement. I also reject the NTEU's request for relief in respect of clause 52.12(a) on the basis that the issues have to same have already been raised before and/or dealt with by the Commission.[11]

[17] I equally observe that the ACP ought not be considered in a vacuum. A core principle of the consultation provisions under the Agreement involves UTS using a variety of communication and consultation methods to keep staff informed of workplace changes.[12] In other words, the ACP itself is not the be all and end all when it comes to compliance with the obligations imposed by clauses 52.12 and 52.13 of the Agreement. Nor should the ACP become some form of technical rallying point to delay and obstruct the timely implementation of UTS' workplace changes. Indeed, the suggestion that the ACP itself needs to be revised, updated, amended and/or reissued, in circumstances where relevant information is (or after the ACP has been issued has become) otherwise readily available through other access points (e.g. the SharePoint website) makes no common sense and cannot be accepted.[13]

[18] Clause 52.13(c) of the Agreement provides that the ACP is required, where relevant, to include information about the anticipated financial implications of proposed changes.

[19] In asserting that UTS has not complied with clause 52.13(c), the NTEU says that the ACP only contains information about costs savings, and does not set out:

(a) what the costs of redundancy payments will be; or

(b) what the 'lost opportunity' costs of the changes will be (i.e. in terms of the potentially reduced ability to attract revenue and funding from government (including for research), and potentially lost revenues from not offering an overly broad range of existing courses to students).[14]

[20] The difficulty with the NTEU's contention in respect of clause 52.13(c) is that I do not accept that (in this case) the financial implications of the proposed changes extend to looking down each end of the (proverbial) pipe. As long as UTS is introducing change because of its operational requirements, consultation under the Agreement does not involve or encompass some form of merits review of UTS' decision making, or weighing up the pros and cons of UTS' determination as to its financial position (over the short, medium, or longer term). The fact that the NTEU or affected employees might opine that UTS' stated financial reasons for operational change are invalid, bad or wrong, or consider that looking at things for another perspective is appropriate, is hardly surprising, but it is not to the point.

[21] Unlike clause 52.12, which provides what will (or must) be included in the ACP, clause 52.13 of the Agreement is prefaced by the words "where relevant". These words have work to do, in the sense that they only import an obligation upon UTS (under clause 52.13) if it is relevant to any proposed change. Relevance is a broad term, but it does have limitations. Something will be relevant if it holds a plausible connection to the specific issue being contemplated. Relevance does not extend itself to matters of speculation. What will be relevant is also linked to (or takes its context from) time.

[22] The ACP has been provided post the completion of the initial consultation process, but prior to the implementation phase. What the costs of redundancy payments to displaced employees will be (to UTS) is yet to be ascertained or otherwise quantified. This is particularly so in circumstances where redundancy payments vary based upon an individual employee's length of service and rate of pay, and where voluntary and forced redundancy payments are different (the former being higher than the latter). The obligation to make such redundancy payments only crystalises at the implementation phase.[15] What the quantum of overall redundancy payments will be is thus a matter for guess work and speculation at this point in time. It follows that the costs of redundancy payments are, as at this time, specifically unascertainable, and thus irrelevant.

[23] Lost opportunity costs equally fall into the same basket of speculation and irrelevance. What will be a lost opportunity necessarily needs to take into account future or hypothetical events and outcomes, and can only be done by speculating (or crystal balling) as to the degree of probability of particular events or outcomes occurring. Significantly, any lost opportunity must be able to be linked (in a causal sense, on the balance of probabilities) directly to the change in question, with other future variables excluded or discounted. To the extent that individuals might converse as to the change process costing "X", and the lost opportunity/s costing "Y", they are matters of opinion, and thus an unnecessary (or irrelevant) distraction.

[24] I reject the NTEU's contention that UTS has not complied, or that the ACP does not comply, with clause 52.13(c) of the Agreement, or that the ACP should be withdrawn or replaced on the basis of any concern (or non-compliance) with clause 52.13(c) of the Agreement. I also reject the NTEU's request for relief in respect of clause 52.13(c) on the basis that the issues have to same have already been raised before and/or dealt with by the Commission.[16]

[25] Clause 52.13(e) of the Agreement provides that the ACP is required, where relevant, to include an assessment of the impact of the proposed changes on workforce diversity, and proposed mitigation strategies. Again, clause 52.13(e) of the Agreement is prefaced by the words "where relevant" (see paragraph [21] above).

[26] The NTEU submits that no assessment as to equity, diversity and inclusion (EDI) has been included in the ACP, either as to the impact of the proposed changes on EDI, or proposed mitigation strategies.[17] In terms of mitigation strategies, this submission is contrary to the evidence. The ACP expressly recognises UTS' obligations as to EDI, and has referenced mitigation strategies as to same in the ACP,[18] which reads:

"UTS is committed to ensuring that staff diversity and equity are considered and actively supported during times of institutional change. In particular, the university is committed to continuing progress on existing employment equity commitments such as First Nations employment, gender pay equity, women in senior leadership and women in STEMM.

To mitigate the impact on workforce diversity, the university has developed principles for integrating equity, diversity and inclusion (EDI) into operational sustainability processes (Appendix G). The university will proactively monitor potential disproportionate impacts on equity cohorts and, where relevant, take into account its established EDI principles to ensure diverse talent is retained where possible."[19]

[27] As to the issue of an assessment of the impact of the proposed changes on EDI, UTS wrote to the NTEU on 7 November 2025 in the following straightforward terms:

"As noted in the letter from the NTEU, this issue [impacts of changes on EDI] has already been raised and answered by the University during consultation. We reiterate that the University will not have a complete picture of the potential redundancies until the EOI for Voluntary Separation process is finalized, and the redundant positions are identified using the objective selection criteria (if necessary). An assessment of the impact on workforce diversity under clause 52.13(e) is much greater than the estimated reduction of 134.1 FTE of continuing and fixed-term academic staff in the ACP.

As offered in the meeting on 7 November 2025, UTS can prepare a workforce diversity analysis based on the entire group of potentially impacted staff members. It is confirmed that this will not provide an accurate reflection of the impact on workforce diversity, as it will include all staff in the potentially impacted groups and the majority of those staff will not ultimately be made redundant. The scope of the clause refers to UTS employment objectives, and particularly our commitment to indigenous employment. The diversity analysis relies on self-reporting from employees through our NEO system.

A final DEI analysis will be conducted as part of the Change Implementation Plan (CIP) that will be representative of the number of impacted staff members.

The University categorically refutes that management has disregarded our obligations and has a strong record of our commitment to our employment objectives."[20]

[28] As set out in the foregoing extract, UTS submits that it cannot provide an EDI assessment of any substance at this point in time, but has committed to provide one moving forward.[21] I reject the NTEU contention that this will be too late, or that an EDI assessment once redundancies (forced or voluntary) are identified will be of little or no utility. In accepting that UTS has done what it can "relevantly" do at this point in time to comply with clause 52.13(e) of the Agreement, I reject the NTEU's contention that UTS has not complied, or that the ACP does not comply, with clause 52.13(e) of the Agreement, or that the ACP should be withdrawn or replaced on the basis of any concern (or non-compliance) with clause 52.13(e) of the Agreement.

[29] Clause 52.13(b) of the Agreement provides that the ACP is required, where relevant, to include copies of, or extracts from, any reports that have led to the proposed change. Again, clause 52.13(b) of the Agreement is prefaced by the words "where relevant" (see paragraph [21] above).

[30] The NETU submits that because updates on the proposed changes have been (or must have been) a regular agenda item for the UTS leadership team, there would be reports that have not been included in the ACP, or otherwise provided to the NTEU and relevant employees. Reports are more than just documents, i.e. they encompass information organised in a particular fashion, that has been put together for a specific purpose in identifying and examining a particular issue/s. Clause 52.13(b) does not encompass the inclusion in the ACP of any document that refers to, mentions, or talks about UTS' proposed changes, or green light some form of unlimited or boundless discovery process. When pressed at the hearing, Mr Rickard (on behalf of the NTEU) was unable to identify any specific report that is missing from, or has not been included, in the ACP.[22] Nor does any of the evidence identify any specific missing report from the ACP.[23]

[31] I reject the NTEU's contention that the UTS has not complied, or that the ACP does not comply, with clause 52.13(b) of the Agreement, or that the ACP should be withdrawn or replaced on the basis of any concern (or non-compliance) with clause 52.13(b) of the Agreement. I further note that UTS has already supplied the KPMG Report, and other reports have been produced following GIPA requests, all of which have been placed on the UTS SharePoint website.[24]

[32] Clause 52.13(a) of the Agreement provides that the ACP is required, where relevant, to include organisational charts outlining the current and proposed structure, and any new or changed position descriptions. Again, clause 52.13(a) of the Agreement is prefaced by the words "where relevant" (see paragraph [21] above).

[33] The NTEU submits that whilst organisational charts have been provided in the ACP addenda, they only deal with the work unit level, and not the job level.[25] Dr Attfield does not give any specific evidence on this issue.[26]

[34] UTS makes the following submissions in respect of the provision of organisational charts:

"37. The Agreement requires, where relevant, the inclusion of organisational charts outlining the current and proposed structure, and any new or changed position descriptions.

38. The NTEU does not provide any evidence that organisational charts or position descriptions are relevant for inclusion in the ACP.

39. The [UTS] contends that it is not relevant for two reasons:

(a) Academic staff currently all report to the Heads of School. This will not change as academics do not have reporting lines like professional staff do; and

(b) there is no proposed change to the position description of an Academic.

40. Further, even if relevant, the details of the organisational structure changes (which is different to an organisational chart) are included in the addenda to the ACP in relation to each Faculty."[27]

[35] In accepting the foregoing submissions of UTS, I reject the NTEU's contention that UTS has not complied, or that the ACP does not comply, with clause 52.13(a) of the Agreement, or that the ACP should be withdrawn or replaced on the basis of any concern (or non-compliance) with clause 52.13(a) of the Agreement.

[36] The VR Orders sought by the NTEU can be conveniently dealt with by reference to the uncontested evidence of Ms Blackwell, who identifies that an EOI by an employee as to a VR, sent to UTS prior to the release of the Change Implementation Plan (CIM) (i.e. during the ACP phase), will not be formally accepted by UTS. Rather, the relevant employee will need to apply (again) for a VR in accordance with the requirements of clause 54 of the Agreement in February 2026 (when the CIM will definitely be commencing). A VR EOI made during the ACP phase can also be rescinded by the employee (without prejudice) at anytime prior to the release of the CIM.[28]

[37] In view of the foregoing, the VR Orders sought by the NTEU are absent any foundation.[29] I reject them. There is no evidentiary basis to find that UTS has breached the Agreement in respect of the VRs.

[38] On the basis of the reasons set out in this decision, I dismiss the NTEU's dispute application (including its request for relief).

Mr Scott Rickard, NTEU Industrial Officer, assisted by Mr Trevor Muray, NTEU Organiser, appeared for the National Tertiary Education Union (NTEU)

Ms Alice DeBoos, Partner, assisted by Mr Jia Pan Xiao, Special Counsel, and Mr Zane Norris, Solicitor, Kingston Reid Lawyers, appeared (with permission) for the University of Technology Sydney (UTS).

[1] [2923] FWCA 1419 (17 May 2023, Ryan C), AE520050, PR761986, operative dates - 23 May 2023 to 31 August 2025.

[2] See definition of "Redundancy" under clause 52.7 of the Agreement.

[3] See definition of "Change Proposal" under clause 52.3 of the Agreement. The ACP is found at Digital Hearing Book (Court Book (CB)), pp.1047-1119 (73 pages), and the ACP Faculty Addendums are found at CB, pp.1120-1328.

[5] [2017] FWCFB 3005, at [114].

[6] [2020] FCAFC 123; (2020) 278 FCR 566, at [65].

[7] [2020] FWC 2130.

[9] ACP, CB, pp.1052-1054 (Items 2.1-2.2). Blackwell Statement, at [95], CB, p.407. See also UTS Submissions, at [24] (including the evidence referenced therein), CB, pp.389-390. MFI-1 (pp.1-2), and the evidentiary references cited therein under the heading "Why the change is necessary".

[10] Expert evidence would be required here.

[11] See UTS Submissions, at [44]-[48], CB, pp.392-393. See also UTS v NTEU [2025] FWC 2528, CB, pp.1014-1034.

[13] Note MFI-1 (pp.1-2), and the evidentiary references cited therein under the heading "Why the change is necessary".

[14] NTEU Submissions, at [21], CB, p.49. Transcript, PN28-PN52.

[15] Note Blackwell Statement, at [138], CB, p.412.

[16] See UTS Submissions, at [44]-[48], CB, pp.392-393. See also UTS v NTEU [2025] FWC 2528, CB, pp.1014-1034.

[17] NTEU Submissions, at [17]-[20], CB, pp.48-49. Transcript, PN54-PN62.

[18] CB, pp. 1070 and 1119 See also at CB, pp. 1401-1405, and 1418-1419.

[21] Transcript, PN144-PN146. CB, p.1070.

[24] UTS Submissions, at [31]-[36], CB, p.391.

[25] Transcript, PN80-PN91. See also, CB, pp.1062-1065, 1144-1145, 1166-1167, and 1193-1195.

[26] Transcript, PN82 (inadmissible hearsay).

[27] UTS Submissions, at [37]-[40], CB, pp.391-392, citing Blackwell Statement, at [144]-[145], CB, p.413. See also Transcript, PN150-PN151.

[28] Blackwell Statement, at [135]-[138], CB, pp.411-412. See also CB, pp.1420-1421 (Pro-forma letter to employees who identified an interest in a VR).

[29] Transcript, PN92-PN102. The evidence of Dr Attfield at [4(f)] (CB, p.55) is hearsay, and without probative value. NTEU Submissions, at [2]-[6], [11]-[16], and [36], CB, pp.44-45, 47-48, and 52.

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