NTEIU v University of Wollongong

Federal Court of Australia|2002-01-29|Before: Branson J

INTRODUCTION 1 By an application dated 18 December 2001, the applicants have sought relief against the respondent ("the University") under both the Workplace Relations Act 1996 (Cth) ("the WR Act") and the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). At issue is the alleged failure of the University to comply with certain requirements of the University of Wollongong (Academic Staff) Enterprise Agreement, 2000-2003 ("the Agreement") when it engaged the second applicant ("Dr Rodwell") as a staff member on a fixed-term contract. As one matter in dispute between the parties is whether the employment of Dr Rodwell by the University will end on 31 January 2002 the proceeding was, with the cooperation of the parties, brought on for an expedited hearing on 16 January 2002.

background 2 There is no significant dispute between the parties as to the circumstances giving rise to this proceeding. 3 The first applicant ("the Union") is an organisation of employees registered under the WR Act. Dr Rodwell is an academic employee of the University employed as a lecturer in the Faculty of Education. 4 On 8 November 2000 the Australian Industrial Relations Commission certified the Agreement (see s 170LT of the WR Act), which is an agreement between the Union and the University. The certification includes the statement "[t]his agreement shall come into force from 7 November 2000 and will remain in force until 30 June 2003", although I note that cl 3 of the Agreement itself provides: "This Agreement shall come into force on and from the beginning of the first pay period commencing on or after the date of certification in the Australian Industrial Relations Commission and shall continue until 30 June 2003." For present purposes the precise date upon which the Agreement came into force is not material. 5 It is agreed that the Agreement applies to all academic staff employed by the University and thus that it applies to Dr Rodwell. 6 Clause 19 of the Agreement is concerned with the types of academic appointment which may be made by the University. Relevantly it provides: "19.1 The University shall engage a person as a staff member on terms that correspond with one or other of the types of employment prescribed in this clause and in accordance with this agreement provided that this clause and Clause 20 do not apply during the term of the existing contract of a fixed-term staff member engaged on or before 30 June 1998, or to a staff member whose employment is the subject of a form of fixed-term contract in force as at 30 June 1998. … 19.4 Continuing employment 'Continuing employment' means all employment other than 'fixed-term' or 'casual'. Continuing employment may be provided for on a full-time or a fractional basis. Offers of continuing employment may contain a reasonable probationary period, as specified in Clause 28 of this Agreement, that is directly related to the nature of the work to be carried out under the contract. … 19.6 Fixed-term employment 'Fixed-term employment' means employment for a specified term or ascertainable period, for which the instrument of engagement will specify the starting and finishing dates of that employment, (or in lieu of a finishing date, will specify the circumstances(s) or contingency relating to a specific task or project, upon the occurrence of which the term of the employment shall expire), and for which, during the term of employment, the contract is not terminable, by the University, other than during a probationary period, or for cause based upon serious misconduct. Fixed-term employment may be provided for on a full-time or a fractional basis. Fixed-term employment may contain a reasonable probationary period, as specified in Clause 28 of this Agreement that is directly related to the nature of the work to be carried out under the contract. Any second or subsequent fixed-term contract, shall not contain a probationary period. The use of 'fixed-term employment' shall be limited to the employment of a staff member engaged on work activity that comes within the description of one or more of the following circumstances: 19.6.1 Specific task or project 'Specific task or project' shall mean a definable work activity which has a starting time and which is expected to be completed within an anticipated timeframe. Without limiting the generality of that circumstance, it shall also include a period of employment provided for from identifiable funding external to the University, not being funding that is part of an operating grant from government or funding comprised of payments of fees made by or on behalf of students. 19.6.2 Research 'Research' means work activity by a person engaged on research only functions for a contract period not exceeding five years. 19.6.3 'Replacement Staff member' means a staff member: a. undertaking work activity replacing a continuing employee for a definable period for which the latter is either on authorised leave of absence or is temporarily seconded away from his/her usual work area; or b. performing the duties of: 1. a vacant position which the University has made a definite decision to fill and has commenced recruitment action; or 2. a position the normal occupant of which is performing higher duties pending the outcome of recruitment action initiated by the University and in progress for that vacant higher duties position until a continuing staff member is engaged for the vacant position or vacant higher duties position as applicable. 19.6.4 Recent professional practice required Where a curriculum in professional or vocational education requires that work be undertaken by a person to be engaged who has recent practical or commercial experience, such a person may be engaged for a fixed period not exceeding two years. 19.6.5 Pre-retirement contract Where a continuing staff member declares that it is his or her intention to retire, a fixed term contract expiring on or around the relevant retirement date may be adopted as the appropriate type of employment for a period of up to five years. 19.6.6 Fixed-term contract employment subsidiary to studentship Where a person is enrolled as a student, employment under a fixed-rate contract may be adopted as the appropriate type of employment for work activity, not within the description of another circumstance in the preceding paragraphs of this sub-clause, that is work within the student's academic unit or an associated research unit of that academic unit and is work generally related to a degree course that the student is undertaking within the academic unit, provided that: a. such fixed-term employment shall be for a period that does not extend beyond, or that expires at the end of, the academic year in which the person ceases to be a student, including any period that the person is not enrolled as a student but is still completing postgraduate work or is awaiting results; and b. that an offer of fixed-term employment under this paragraph shall not be made on the condition that the person offered the employment undertake the studentship. …" 7 Clause 20 of the Agreement provides: "20.1 Upon engagement, the University shall provide to the staff member an instrument of appointment that stipulates the type of employment and informs the staff member of the terms of engagement at the time of the appointment in relation to: 20.1.1 for staff members other than casual employees, the classification level and salary of the staff member on commencement of the employment and for fractional staff the fraction of a full-time equivalent position; 20.1.2 whether the appointment is on a continuing, fixed term or casual basis as defined in Clause 19 above; 20.1.3 for a fixed-term staff member, whether the term of the employment, the length and terms of any period of probation, and the circumstance(s) by reference to which the use of fixed-term contract for the type of employment has been decided for that employment; 20.1.4 for casual employees, the duties required, the number of hours required, the rate of pay for each class of duty required and a statement that any additional duties required during the term will be paid for; 20.1.5 for any staff member subject to probationary employment, the length and terms of the probation; and 20.1.6 any other significant conditions of employment. The instrument of appointment will also reference this Agreement and provide advice as to where a copy of the Agreement may be accessed." 8 In about November 2000 the University placed an advertisement in the Illawarra Mercury newspaper seeking applications from persons interested in being appointed as lecturers in the Faculty of Education. The advertisement stated: "The Faculty of Education is offering both full-time and part-time positions on a fixed term, or in some cases continuing appointment basis. The Faculty will assess the circumstances for each position and make appropriate appointment offers." The advertisement indicated that one of the positions to which the University wished to make an appointment was in the area of "HSIE". "HSIE" is the initialism of "Human Society and Its Environment". 9 Dr Rodwell applied for the advertised HSIE position and was the successful candidate. He received a letter dated 19 December 2000 from the University, signed by the Recruitment Officer, Personnel and Financial Services, which was relevantly in the following terms: Dear Dr Rodwell, I am pleased to offer you an appointment to the position of Lecturer at the University of Wollongong in a fixed term appointment. The term will be for a period of 12 months from your entry on duty. The appointment is available from 1 February 2001 and should be taken up no later than 28 February 2001. Your actual starting date is subject to negotiation with Associate Professor Nita Temmerman …. The purpose of this appointment is to teach core subjects within the undergraduate and postgraduate programs. You will report to Associate Professor Nita Temmerman, Dean, Faculty of Education. Your duties and responsibilities will be advised by your supervisor as part of your induction and career development. The position is located in HSIE, Faculty of Education. The University, however, retains the right to vary its academic structures and staffing arrangements at any time. You are advised that there is an increasing need for academics to teach in a variety of locations in Australia and internationally which might affect your employment locality or related issues. The main location for your initial appointment is at the Wollongong campus. Your conditions of appointment will be in accordance with the University of Wollongong (Academic Staff) Enterprise Agreement, 2000-2003… The conditions of appointment set out in this letter and attachments cannot be varied other than by variation to Industrial Awards and Agreements, or by written advice from Personnel. If you intend accepting this offer, please sign and return the enclosed copy of this letter…." 10 Dr Rodwell accepted the appointment offered to him by the University by signing and returning to the University the copy of the above letter which was provided to him with the original letter. He commenced work at the University on 1 February 2001. 11 In the course of his employment by the University Dr Rodwell undertook the following teaching duties: Semester 1 HSIE Futures for three hours per week (lectures and tutorials) Curriculum and Pedagogy 1 for two hours per week (tutorials) Curriculum and Pedagogy 2 for three hours per week (lectures and tutorials) Curriculum Studies for three hours per week (lectures and tutorials) Semester 2 Curriculum Studies for three hours per week (lectures and tutorials) HSIE Advanced Teaching Strategies for three hours per week (lectures and tutorials) HSIE Curriculum Compulsory for six hours per week (lectures and tutorials)

He also undertook student teaching supervision and engaged in research.

12 On 24 May 2001 Barry Malcolm Harper ("Professor Harper") assumed the position of Dean of the Faculty of Education at the University. On 2 August 2001 Dr Rodwell raised with Professor Harper the issue of whether Dr Rodwell's position was appropriately classified as a fixed-term appointment. The following day, after consulting with his Faculty Officer, Professor Harper sent an e-mail message to Dr Rodwell which, amongst other things, stated: "The offer letter to you states that you have been employed to 'teach core subjects within the undergraduate and postgraduate programs'. We deem this statement to be in line with 'specific task or project' which is one of the six alternatives the enterprise document lists." Dr Rodwell was dissatisfied with the above response. It appears that he sent an e-mail message to Professor Harper which quoted portions of the Agreement. Professor Harper sought advice from Paul Stewart, the Deputy Director, Personnel & Financial Services ("Mr Stewart") and conveyed to Dr Rodwell the following advice from Mr Stewart: "Clause 19.6.1 is one of the HECE categories of employment and is not inconsistent with Dr Rodwell's letter of offer. Both the University and Dr Rodwell have explicitly acknowledged that his term of employment is for twelve months. The University (as expressed by the Dean) made an offer and Dr Rodwell accepted, it is unreasonable (and could be unlawful) to alter this arrangement by argument [sic]." No evidence was lead as to the meaning of the expression "HECE categories of employment". 13 By letter dated 20 September 2001 addressed to Mr Stewart, Michelle Rangott, an Industrial Officer with the Union ("Ms Rangott"), advised the University that the Union believed that the University had acted in breach of the Agreement in appointing Dr Rodwell on a fixed-term contract of appointment. The letter asserted that Dr Rodwell's position was "in fact a continuing position and should be converted on that basis." 14 By letter dated 23 October 2001 addressed to Ms Irene Burgess, Employee Relations Manager, Finance and Personnel ("Ms Burgess"), Ms Rangott advised the University as follows: "We are writing on behalf of our member, Dr Grant Rodwell and refer to our previous correspondence dated 20 September 2001. Whilst we note your recent verbal advice that you are continuing to investigate this issue, we are concerned by the length of time taken to resolve this matter. As we have not received a formal response to our previous correspondence and the matter remains unresolved, we are writing to notify the existence of an industrial dispute in accordance with Clause 8 of The University of Wollongong (Academic Staff) Enterprise Agreement 2000-2003. The dispute notification relates to the fact that Dr Rodwell's current fixed term contract does not meet the requirements and definitions of fixed term employment as provided in the Enterprise Agreement. Our concerns have been set out in our previous correspondence. In accordance with Clause 8.1.1 of the Enterprise Agreement, please contact me to arrange a suitable time to meet. 15 Clause 8 of the Agreement is in the following terms: "8.1 If during the operation of this Agreement, except in the case of a matter that affects the health and safety of employees or a clear emergency, a dispute arises as to: a. the operation of the provisions of this Agreement; b. the interpretation of the meaning or application of any provisions of this Agreement; c. the actions of any party in relation to the operation of this Agreement; the following procedures shall apply: 8.1.1 In the first instance an accredited representative(s) of the NTEU and appropriate representative(s) of the University shall discuss the dispute and attempt to reach written agreement, subject to ratification by each party. 8.1.2 Where a dispute remains unresolved, at the request of either party a Disputes Committee shall be convened within two working weeks, unless agreed otherwise. The Disputes Committee shall consist of two (2) nominees of the NTEU and two (2) nominees of the University. 8.1.3 The Disputes Committee shall attempt to resolve the matter within two working weeks of its first meeting. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by each party. 8.1.4 Until such time as procedures described in this clause have been completed: a. work shall continue in the normal manner; b. no strikes, bans, lockouts shall be taken by either the University management or the NTEU; c. the University shall maintain the pre-existing work, staffing or organisation of work arrangements. 8.2 Should the dispute not be resolved by the processes referred to in this clause the matter may be referred to the Australian Industrial Relations Commission for conciliation or arbitration in resolving the dispute. A decision of the Commission shall be accepted by the parties as final and shall be implemented." 16 On 21 November 2001 a meeting was held between representatives of each of the Union and the University. Dr Rodwell was also present. The issues in dispute between the parties were not resolved. 17 In the meantime the University had advertised a full-time, continuing position of Lecturer in HSIE in the Faculty of Education. Dr Rodwell applied for, and was interviewed in respect of the advertised position. He was not the successful applicant. Another applicant was offered, and accepted, appointment to the position on 17 December 2001. The University has advised Dr Rodwell that his employment with the University will cease on 31 January 2002.

The Applicants' claims 18 By their application, the applicants have claimed the following relief: "1. Pursuant to section 178 of the Workplace Relations Act 1996 ('Act'): 1.1 The imposition of a penalty on the respondent for breaching Clause 19.6 of the University of Wollongong Academic Staff Enterprise Agreement 2000 to 2003 ('Agreement') by purporting to employ the second applicant on 31 January 2001 on fixed-term employment, in circumstances where he was not engaged on work activity that comes within the description of one or more of the circumstances set out in Clauses 19.6.1 to 19.6.6 of the agreement; 1.2 The imposition of a penalty on the respondent for breaching Clause 20.1.3 of the Agreement by failing to provide to the second applicant at the time of his appointment, an instrument that stipulates the type of employment and informs him of the terms of the purported engagement, including 'the circumstance(s) by reference to which the use of fixed-term contract for the type of employment has been described for that employment'; 1.3 The imposition of a penalty on the respondent for breaching Clause 8.1.4 of the Agreement by failing to agree to maintain the pre-existing work, staffing or organisation of work arrangements, until such time as the procedures described in Clause 8 were complete; 2. Pursuant to section 356 of the Act, an order that the amount of any penalties be paid to the first applicant. 3. Pursuant to sections 21, 22 and 23 of the Federal Court Act, or under the accrued jurisdiction of the Federal Court: 3.1 A declaration that pursuant to Clause 19.4 of the agreement, the second applicant was and has since been, employed by the respondent under 'continuing employment'; 3.2 An order that the respondent give full effect to the employment of the second applicant as 'continuing employment' under the Agreement. 3.3 An injunction to restrain the respondent from treating the second applicant's employment as ceasing on 31 January 2001; 3.4 An injunction to restrain the respondent from taking any further steps to fill the position advertised by the respondent on 10 November 2001 for a continuing appointment lecturer in HSIE, Faculty of Education or any substantially similar position including an order that the respondent contact any person to whom an offer has already been made, to put on hold or withdraw that offer until the final determination of this application or until further order of the Court; 3.5 An order for specific performance of the second applicant's appointment on 31 January 2001 treating his employment as continuing beyond 31 January 2002; 3.6 Damages for breach of contract." 19 The applicants did not press the claim for relief made by par 3.4 of their application. As is mentioned above, the position advertised on 10 November 2001 for a continuing-appointment lecturer in HSIE was filled on 17 December 2001 (ie the day before this proceeding was commenced). Nor were any submissions addressed to the Court in support of the claim for relief made by par 3.6 of the application.

Legislative provisions 20 Section 178 of the WR Act relevantly provides: "(1) … where an organisation … bound by … a certified agreement breaches a term of the … agreement, a penalty may be imposed by the Court …. … (4) The maximum penalty that may be imposed under subsection (1) for a breach of a term of an … agreement is: (a) where the penalty is imposed by the Court: (i) … (iia) if the breach is of a term of a certified agreement and continues for more than one day - the total of: (A) $10,000 for a body corporate, or $2,000 in other cases; and (B) $5,000 for a body corporate, or $1,000 in other cases for each day for which the breach continues; and (iib) if the breach is of a term of a certified agreement but subparagraph (iia) does not apply - $10,000 for a body corporate or $2,000 in other cases; … (5A) A penalty for a breach of a term of a certified agreement may be sued for and recovered by: (a) … (b) an employee whose employment is subject to the agreement; or (c) a person or organisation that is bound by the agreement; …. (6) Where, in a proceeding against an employer under this section, it appears to the court concerned that an employee of the employer has not been paid an amount that the employer was required to pay under an … agreement, the court may order the employer to pay to the employee the amount of the underpayment. (6A) Where, in a proceeding against an employer under this section, it appears to the court concerned that the employer has not paid an amount to a superannuation fund that the employer was required, under an … agreement, to pay on behalf of a person, the court may order the employer to make a payment to or in respect of that person for the purpose of restoring the person, as far as practicable, to the position that the person would have been in had the employer not failed to pay the amount to the superannuation fund. …." 21 Section 356 of the WR Act provides: "A court that imposes a monetary penalty under this Act (other than a penalty for an offence) may order that the penalty, or a part of the penalty, be paid: (a) into the Consolidated Revenue Fund; or (b) to a particular organisation or person." 22 Paragraph 3 of the application makes reference to ss 21, 22 or 23 of the Federal Court Act and to the accrued jurisdiction of the Federal Court. The accrued jurisdiction of the Court is not invoked by this proceeding. In the circumstances that interlocutory relief in the proceeding is not necessary, only subs 21(1) of the Federal Court Act need be referred to. The subsection provides: "The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed."

Clause 19.6 of the Agreement 23 Clause 19.6 of the Agreement restricts the right of the University to employ academic staff for fixed-terms to the six circumstances identified in the clause. The applicants contend that none of the six circumstances applied in the case of Dr Rodwell's employment. The University initially argued that Dr Rodwell's employment was, in the language of cl 19.6, for the purpose of his being "engaged on work activity that comes within the description of one … of the … circumstances" specified by the clause, namely the circumstances specified in cl 19.6.1. 24 The "definable work activity" on which he was engaged, the University argued, was the teaching (I assume with other lecturers) during 2001 of core subjects within the undergraduate and postgraduate programs of the Faculty of Education. Mr Van Aalst, counsel for the University, initially submitted as follows: "… it [ie cl 19.6.1] defines specific task or project, and all it means is definable work activity. So the issue for your Honour in this case is this, did the instrument of appointment refer to a definable work activity. Now it refers to teaching core subjects. If that isn't a definable work activity I don't know what is." 25 Mr Van Aalst acknowledged that if subclause 19.6.1 of the Agreement were to be construed in the manner for which the University contended, not only would subclauses 19.6.2 to 19.6.6 be unnecessary, clause 19.6 itself would not constitute any real fetter on the capacity of the University to engage academic staff for fixed-terms of employment. As to this Mr Van Aalst submitted: "… one can only glean intention from the terms of the document and when one looks at the way specific task and project is defined, then it leaves it wide open, wide open, and the authors of this document for whatever reason have left it to us that way …." 26 The final position adopted by the University as to the proper construction of cl 19.6.1 of the Agreement can not clearly be identified. Mr Van Aalst's final submission on the topic appeared to be that cl 19.6 did not impose any real restriction on the capacity of the University to employ staff on fixed-term contracts but that cl 20.1.3 did impose some restrictions although of a nature which he did not identify. Nonetheless, Mr Van Aalst argued that the Agreement did not "tie the hands of the University". 27 The proper construction of subcl 19.6.1 is not to be determined by reference only to the ordinary meaning of the individual words of the subclause. As Mason J pointed out in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348: "… it has frequently been acknowledged that there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning." 28 The proper construction of the subclause is to be derived from a consideration of the meaning of the words of the subclause read in the context of the Agreement, and having regard to the nature and purpose of certified agreements under the WR Act. The critical question is what is the meaning reasonably to be attributed to the words of the subclause in all of the circumstances. 29 In my view, a consideration of the terms of cl 19.6 as a whole reveals an intention that "fixed-term employment"is to be the exception, rather than the rule, for academic staff of the University of Wollongong. Leaving aside fixed-term research appointments (cl 19.6.2) and the fixed-term employment of students (cl 19.6.6), the circumstances other than those specified in cl 19.6.1 in which fixed-term employment may be offered by the University are where a continuing employee is not available to undertake his or her usual duties (cl 19.6.3 a. and b.2), where recruitment to fill a vacant position has commenced but has not been completed (cl 19.6.3 b.1), and where a curriculum in professional or vocational education requires that work be undertaken by a person to be engaged who has recent practical or commercial experience (cl 19.6.4). 30 The above context suggests, in my view, that the work activity of performing for a fixed period of time duties of a kind ordinarily undertaken on an ongoing basis by continuing employees is not intended to constitute a "specific task or project" within the meaning of cl 19.6.1 of the Agreement. Rather, in my view, a "specific task or project" within the meaning of cl 19.6.1 is a "stand-alone" task or project which is not required to be undertaken on an ongoing basis. That is, it seems to me to be crucial to the definition of a "specific task or project" that the work activity which constitutes the task or project has a starting time and is expected to be completed within an anticipated time frame. It is not sufficient, in my view, that the employment of the staff member has a starting time and that he or she is expected to complete the work required of him or her under the contract of employment within an anticipated time frame. 31 Support for the above construction of cl 19.6.1 of the Agreement is to be found, in my view, in cl 20.1.3 of the Agreement. Clause 20.1.3 is awkwardly drafted. Nonetheless, it seems clear enough that it is intended to require the University to provide to a fixed-term staff member an instrument of appointment that informs the staff member of, amongst other things, "… the circumstance(s) by reference to which the use of fixed-term contract for the type of employment has been decided for that employment." The circumstance(s) of which the staff member is to be informed by the terms of his or her instrument of appointment are, in my view, the circumstances relied upon by the University to justify the use, in the case of that staff member, of fixed-term employment. The clause, so understood, tends to reinforce the inference otherwise to be drawn from cl 19.6 that the circumstances which justify the use of a fixed-term contract are required to exist independently of the terms of the contract itself. It would seem absurd, and render the limitation apparently imposed by the Agreement on the use of fixed-term employment illusory, if a decision by the University to offer a staff member fixed-term employment could constitute the circumstance by reference to which the use of a fixed-term contract for that staff member's employment had been determined to be justified. 32 The University did not seek to justify the employment of Dr Rodwell on a fixed-term contract on any basis other than that he was within the meaning of cl 19.6 of the Agreement, "engaged in work activity that comes within the description of" the circumstances outlined in cl 19.6.1. 33 I conclude that Dr Rodwell was not engaged on work activity that comes within the description of circumstances specified in cl 19.6.1 of the Agreement. I find that by entering into a contract with Dr Rodwell whereby Dr Rodwell was employed for a fixed-term the University failed to comply with cl 19.6 of the Agreement to the extent to which the clause required the use of fixed-term employment to be limited to the employment of staff members engaged in work activity that comes within one or more of the circumstances set out in cl 19.6.1 to cl 19.6.6 of the Agreement.

Clause 20.1.3 of the Agreement 34 The terms of cl 20.1.3 of the Agreement are set out in [7] above and discussed in [31] above. Although the University initially took the position that it had complied with the requirements of cl 20.1.3 of the Agreement, it ultimately conceded, during the course of the hearing, that it had not complied in the case of Dr Rodwell's employment with cl 20.1.3 of the Agreement. The University, by its counsel, acknowledged that the instrument of appointment provided to Dr Rodwell (ie the letter of 19 December 2000) did not inform him of "… the circumstance(s) by reference to which the use of fixed-term contact for the type of employment [had] been decided for that employment."

Clause 8.1.4 of the Agreement 35 The terms of cl 8.1.4 are set out in [15] above. It is accepted by the parties that a dispute which fell within the ambit of cl 8 of the Agreement arose in about October 2001 and that, as at 17 December 2001, the procedures described in cl 8 had not been completed. It was submitted by the applicants that by advertising in November 2001, and then making an appointment in December 2001, to a continuing position of Lecturer HSIE, the University failed to comply with par c of cl 8.1.4 of the Agreement. The applicants conceded that this submission could only succeed if their contention that Dr Rodwell is employed by the University on a continuing basis also succeeded. It is therefore convenient to defer consideration of the applicants' submission that the University failed to comply with cl 8.1.4 of the Agreement until after consideration has been given to the applicants' claim for a declaration that the nature of Dr Rodwell's employment by the University is "continuing employment" as defined by cl 19.4 of the Agreement.

The Nature of Dr Rodwell's Appointment 36 The applicants accept that the only offer of employment made to Dr Rodwell by the University was an offer of employment for a fixed-term of twelve months. Dr Rodwell accepted that offer of employment. However, the applicants contend that because Dr Rodwell was employed by the University in circumstances which, under the Agreement, did not justify the use of fixed-term employment, he was in fact employed on a continuing basis. 37 The applicants argued that the first sentence of cl 19.4 of the Agreement (see [6] above) provides support for the above contention. However that sentence merely provides a definition of "continuing employment". It does not operate to deem any contract providing for fixed-term employment in circumstances outside those defined in cl 19.6 to be a contract providing for continuing employment. Nor does any other provision of the Agreement purport to have such an effect. The Agreement is silent as to the consequences of the University using fixed-term employment in circumstances outside those identified in cl 19.6 of the Agreement. It may be noted, however, that cl 25.1 of the Agreement allows fixed-term positions of up to twelve months duration to be filled without advertisement and cl 25.3 requires a merit based selection process to be adopted for continuing positions but not for fixed-term positions. That is, important requirements of the Agreement touching upon the integrity of the process by which continuing positions are to be filled, would be open to ready avoidance if, as a matter of law, on any occasion on which the University utilised a fixed-term contract of employment outside the limited circumstances prescribed by cl 19.6, the employee concerned was employed on a continuing basis. 38 In the circumstance that the Agreement does not deal with the consequences of a breach of cl 19.6 of the Agreement, the consequences of the University's breach of the clause is to be determined by reference to the WR Act. Section 178 of WR Act provides for the imposition of penalties where a party bound by a certified agreement breaches a term of the agreement. Section 178 identifies circumstances in which additional relief may be obtained from the party in breach of the certified agreement. Underpayments may be recovered and restorative orders with respect to underpayments into superannuation funds may be obtained. However, nothing in s 178 provides a basis for the applicants' argument that a breach of a certified agreement can alter the express term of a contract of employment. 39 Neither s 178, nor any other provision of the WR Act, discloses, in my view, an intention that a consequence of the type for which the applicants here contend should flow from a breach of a term of an enterprise agreement. Were an intention able to be gleaned from the terms of the WR Act that the making of contracts in breach of enterprise agreements is prohibited, it would be necessary to consider whether the statute also discloses an intention that such contracts should be rendered void and unenforceable (see Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (1978) 139 CLR 410). However, in this case the applicants do not argue in favour of invalidity. They argue in favour of a "contract" of employment coming into existence, the terms of which do not reflect any offer made by the University or accepted by Dr Rodwell. No principle of law was identified by the applicants which would justify the Court in declaring the existence of such a "contract". 40 I conclude that the applicants are not entitled to the relief, or any aspect of the relief, sought by par 3 of the application. It follows, having regard to the concession appropriately made by the applicants (see [35] above), that the University did not breach cl 8.1.4 of the Agreement by, in late 2001, advertising and filling a continuing position of Lecturer HSIE in the Faculty of Education. The relevant "pre-existing work, staffing or organisation of work arrangements" were that Dr Rodwell's contract of employment would terminate on 31 January 2002.

41 For the reasons set out above, I conclude that the applicants have established that the University breached two of the terms of the Agreement in respect of the employment of Dr Rodwell. The University did not limit the use of fixed-term employment as required by cl 19.6 of the Agreement and it did not provide to Dr Rodwell, upon his engagement, an instrument of appointment that complied with the requirements of cl 20.1.3 of the Agreement. In respect of each of these breaches the Court has a discretion to impose a penalty (see Victorian University of Technology v Australian Education Union (1999) 91 IR 96;[1999] FCA 1065 (FC) at [32]).

42 In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No. 2) (1999) 94 IR 231; [1999] FCA 1714 I made orders imposing penalties on the respondents for having engaged in conduct in contravention of Part XA of the WR Act. At [7] and [8] I said: "The Act gives no explicit guidance as to the circumstances in which an order imposing a penalty under s 298U of the Act will be appropriate or as to the circumstances in which a penalty of or near the maximum, or alternatively of a lesser amount, may be called for. The Court is simply directed to consider what is appropriate in all the circumstances of the case. The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty: (a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act); (b) Whether the respondent has previously been found to have engaged in conduct in contravention of Part XA of the Act; (c) Where more than one contravention of Part XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct; (d) The consequences of the conduct found to be in contravention of Part XA of the Act; (e) The need, in the circumstances, for the protection of industrial freedom of association; and (f) The need, in the circumstances, for deterrence." 43 The approach adopted by me in the above case has been referred to with approval by Einfeld J in The Employment Advocate v National Union of Workers (2000) 99 IR 376; [2000] FCA 965 and by Marshall J in The Australian Workers Union v Johnson Matthey (Aust) Ltd Industries Pty Ltd [2000] FCA 728 and in Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union v DMG Industries Pty Ltd (2000) 102 IR 175; [2000] FCA 1492. Similar considerations are, in my view, to be taken into account for the purposes of s 178 of the WR Act - subject, of course to recognition being given to the fact that s 178 is concerned with the need for compliance with awards, orders of the Commission and certified agreements rather than with industrial freedom of association. 44 No evidence was adduced in this case as to the consideration, if any, which representatives of the University gave to the provisions of the Agreement at the time that the decision was taken to advertise fixed-term positions within the Faculty of Education in about November 2000 or at the time that the letter of offer to Dr Rodwell was drafted. Nor was any evidence addressed to show that the University has adopted systems and procedures ordinarily apt to ensure compliance with the Agreement in staffing matters or, indeed, at all. In particular, no evidence was addressed to establish that the University relevantly acted on legal advice or pursuant to a bona fide view of the correct interpretation of the Agreement. 45 The terms of the communications from Professor Harper (who sought advice from persons apparently qualified to provide it) to Dr Rodwell, the correspondence between the Union and University staff employed in the Finance and Personnel Division of the University, and the manner in which this proceeding itself has been conducted on behalf of the University are such as to give rise to concern that the University may not have taken appropriate steps to ensure that those responsible for personnel matters within the University are familiar with the requirements of the Agreement and cognisant of the University's obligation to comply with them. The University chose not to call evidence from any person who might have been in a position to allay such concern. 46 The breaches of the Agreement by the University which have been proved are not trivial or merely technical (see Victorian University of Technology v Australian Education Union at [33]). Having regard to the matters referred to in [42]-[45] above, I am satisfied that it is appropriate that a penalty or penalties be imposed in this case. 47 I regard the breaches as breaches of substance albeit not breaches at the most serious end of the scale of possible breaches. I am willing to treat them as related breaches although they do not technically arise out of the one course of conduct. In my view, the circumstances of this case suggest that the penalties to be imposed ought to be such as to carry with them some element of deterrence. However, I was not invited by the applicants to treat the University as a repeat "offender" and I do not do so. The applicants did not content that any penalty imposed in this case should be calculated by reference to s 178(4)(a)(iia) of the WR Act. I therefore proceed on the basis that the maximum penalty that may be imposed on the University in respect of each breach of the Agreement is $10,000. In respect of the breach by the University of cl 19.6 of the Agreement I consider it appropriate in all of the circumstances to impose a penalty of $4,000. In respect of the breach by the University of cl 20.1.3 of the Agreement I consider it appropriate in all of the circumstances of the case to impose a further penalty of $1,000. 48 In exercise of the discretion vested in the Court by s 356 of the WR Act, I adopt the usual course taken in cases of this kind (see Gibbs v City of Altona (1992) 37 FCR 216 at 223) and order that the whole of each of the penalties imposed under s 178 of the WR Act be paid to the Union. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate: Dated: 29 January 2002 Counsel for the Applicant: Mr J W Nolan

Solicitor for the Applicant: Maurice Blackburn Cashman

Workplace Relations Act 1996(Cth)

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Judgment (14 paragraphs)

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Cases Cited (12)