s.739 - Application to deal with a dispute

Application to deal with a dispute arising under an enterprise agreement.

• [1] The University of Tasmania is a higher education provider, employing approximately 2,700 full-time equivalent employees. It performs tertiary teaching and research functions across various "colleges," each operating within distinct academic areas.

• [2] The University has brought a dispute pursuant to clause 78 of the University of Tasmania Staff Agreement 2021-2025 (Agreement) to clarify the scope of its obligation in relation to the process for voluntary redundancies under the Agreement. The dispute concerns the employees from whom the University is required to seek voluntary redundancy applications from prior to implementing involuntary redundancies.

• [3] The University's position is that the voluntary redundancy process need only be made available to employees whose positions have been identified as being surplus to operational requirements within the relevant College/Institute/Division. The National Tertiary Education Industry Union (NTEU) contends that the voluntary redundancy process must be made available to all employees to whom the University has consultation obligations in respect of a related significant change proposal.

• [4] The pre-requisites to the Commission's involvement having been followed, I am satisfied that the Commission is empowered to resolve the dispute in accordance with clause 78 of the Agreement and s 739 of the Act. The parties initially agreed that the Commission should determine the answer to the following question in resolution of the application:

Is an 'affected Employee' in clause 83.2(b) of the University of Tasmania Staff Agreement 2021-2025:

1. an employee whose role is or will become surplus to operational requirements due to a significant change proposal?

1. an employee whose role is directly affected by a significant change proposal?

• [5] The University contends that the question should be revised with the inclusion of a new item 1 which reads: ...an employee whose position is or will become surplus to operational requirements for the purposes of clause 83.2(a). It has answered the question on this basis.[1] The NTEU submits that the word role should be replaced with position in item 2_._[2]

• [6] The dispute concerns clause 83 of the Agreement, Redundancy. Clause 83.2 concerns the Application of the provision and states at clause 83.2(a) as follows:

(a) Where an Employee holds a continuing position which is (or will become) surplus to operational requirements, the University may terminate the employment of the Employee on the basis of redundancy.

• [7] Clause 83.2(b), being the central term in this dispute, then provides as follows:

(b) Voluntary redundancies will be sought before any involuntary redundancies are implemented, except where prior agreement has occurred with the Unions. Applications for voluntary redundancy will be sought from affected Employees within the College/Institute/Division.

• [8] Clause 83.3 is titled Process. By seven headings labelled (a) to (g), a process is set out for the implementation of redundancies. Clause 83.3(a) is titled Identification of surplus position(s), clause 83.3(b) refers to Voluntary redundancy, clause 83.3(c) is titled Notification of redundancy and termination, clause 83.3(d) concerns Redeployment process, clause 83.3(e) is titled Offer of redeployment to a position at a lower classification level, clause 83.3(f) is Offer of redeployment to a position at a different campus location, and clause 83.3(g) relates to Circumstances where redeployment is not providing [sic] effective. Relevant to this dispute are the following:

The University may declare a position redundant as result of changes in operational requirements of the University for reasons of an economic, technological, structural or similar nature, for example:

(i) a decrease in student demand or enrolments in any academic program or course or combination or mix of courses conducted on one (1) or more campuses;

(ii) a decision to cease offering or to vary the academic context of any program or course or combination or mix of programs or courses conducted on one (1) or more campuses;

(iii) financial exigency within organisational unit(s) or, budget centre(s); or

(iv) changes in technology or work methods.

(i) The process for voluntary redundancy will be determined in each instance relevant to the circumstances. The process must outline the timelines relevant for receipt, consideration and approval of applications, and involve the following:

1. an Employee may make an application;
2. the application will be assessed in accordance with objective, fair and transparent criteria;
3. should an application be approved, applicants will receive a Notification of Redundancy & Termination in accordance with clauses 83.3(c).
4. an Employee who elects to take a voluntary redundancy will receive the same entitlements as if their employment had been terminated on an involuntary basis.

• [9] Until 2024, the University operated the College of Business and Economics (CoBE) which employed 112 full time equivalent employees. Arising from certain economic factors, CoBE was proposed to be restructured and in connection with this, the University implemented a significant change process under clause 77 of the Agreement.

• [10] Prior to the restructure, the College office structure included:[3]

(a) six Administration Officer roles at the HEO4 level (one of which was vacant); and

(b) five School Administration Officer roles at the HEO5 level.

• [11] During the restructure, 10 positions were identified by the University as surplus to operational requirements.[4] Of these positions, the University proposed to make the following roles redundant:[5]

(a) two Administration Officer roles at the HEO4 level (thereby reducing the six Administration Officer roles to four Administration Officer roles); and

(b) one School Administration Officer at the HEO5 level (thereby reducing the five School Administration Officer roles to four School Administration Officer roles).

• [12] The University opened the voluntary redundancy process up to all six Administration Officers and all five School Administration Officers identified in paragraph [10] above. Certain of the employees took voluntary redundancies. Consequently, involuntary redundancies for those positions were otherwise avoided.

• [13] The question that calls for determination in the dispute is whether the University was to open the voluntary redundancy process only to those employees whose positions were identified as being surplus to operational requirements within CoBE, the affected College; or whether the University was required to open the voluntary redundancy process to every employee to whom it held consultation obligations in respect of that major change, as the NTEU contends.

• [14] Clause 83.2(b) of the Agreement provides that applications for voluntary redundancy will be sought from affected Employees within the College/Institute/Division. The University contends that as a matter of construction, the affected Employees from whom voluntary redundancy applications must be sought means employees affected by their positions being, or becoming, redundant. That is, the voluntary redundancy process need only be made available to employees whose positions have been identified as being surplus to operational requirements in accordance with clause 83.2(a).

• [15] The University considers its construction to be supported by the location of clause 83.2(b), which immediately follows reference to an Employee who holds a continuing position which is (or will become) surplus to operational requirements (clause 83.2(a)). Further, the University submits that its preferred construction serves the evident purpose of the clause, being to facilitate the prioritised selection for redundancy of employees whose positions have been identified as being surplus to operational requirements and who wish to be made redundant, rather than those who do not.

• [16] In summary, the NTEU contends that an affected Employee in clause 83.2(b) is the same affected Employee in respect of whom the University's consultation requirements apply in the case of a significant change under clause 77.3 of the Agreement.[6] Clause 77.3 relevantly states as follows:

(a) Where the University is proposing to undertake a significant change (a 'proposed change'), consultation will occur with Employees who will be directly affected by the proposed change and Unions.

(b) Employees affected by a proposed change may appoint a representative (which may be a Union) for the purpose of consultation.

(c) As soon as practicable after proposing a change, the University shall provide affected Employees and Unions with a written proposal that contains:

(i) the nature of the proposed changes, including where relevant options considered;

(ii) the rationale for the proposed changes;

(iii) the expected effect on affected Employees and measures to identify and mitigate any adverse effects;

(iv) the consultation period;

(v) proposed implementation timelines;

(vi) existing and proposed organisational structures (where structural change is proposed); and

(vii) a University contact for feedback and questions.

• [17] The NTEU submits that the text of the Agreement is clear: all affected Employees within a College/Institute/Division relevant to the scope of a proposed workplace change proposed in accordance with clause 77.3, have the right to make an application for voluntary redundancy.[7]

• [18] The NTEU acknowledges the University's position that the text of the Agreement provides that an affected Employee includes employees whose position is or will become surplus to operational requirements. However, the NTEU contends that the University has to disregard the provisions in clause 77.3 and clause 83.3 to argue that it is only affected employees who are proposed to be made redundant that meet the definition of affected Employees in clause 83.2(b). This is because, the NTEU contends, employees whose positions are proposed to be made redundant are not the only affected Employees that are directly affected by proposed workplace change under clause 77.3.[8]

• [19] The NTEU submits that an employee whose position is or will become surplus to operational requirements is not required to make an application to be made redundant by the University. The NTEU says that the employee may accept the notice of redundancy when provided and may choose to waive, or participate, in redeployment.[9] Further, the NTEU submits that the process for voluntary redundancy - which provides that an Employee may make an application (clause 83.3(b)(i)a.) and that an application will be assessed in accordance with objective, fair and transparent criteria (clause 83.3(b)(i)b.) demonstrates that affected Employees are a cohort wider in scope than the University contends.[10] The NTEU says that otherwise these additional provisions in clause 83.3 would have no work to do.[11]

• [20] The NTEU contends that its construction is supported by the text of the Agreement as a whole. It relies upon the definition of consultation at clause 5.1 of the Agreement, the right of employees to be consulted on matters which directly affect them in their employment (clause 77.1) and the University's obligation to advise affected Employees in writing of measures to mitigate any adverse effects arising from the proposed change (clause 77.3(g)). The NTEU also identifies that an affected Employee in clause 77.3 is entitled to receive a written proposal summarising the nature of the proposed changes and measures to mitigate any adverse effects (amongst other matters).[12]

• [21] The NTEU further relies upon the legislative context of the Agreement in support of its position. It notes that job security is a key objective of the Act, and the Agreement requires that the University mitigate the adverse effects of involuntary redundancy by inviting employees affected by significant change to their job security to apply for voluntary redundancy.[13] The NTEU submits that its construction may provide an employee working in a position proposed to be made redundant with the possibility of retaining their job security through an employee approved by the University for voluntary redundancy assuming their place.[14]

• [22] The principles of enterprise agreement interpretation were summarised by the Full Federal Court in James Cook University v Ridd:[15]

• (a) The starting point is the ordinary meaning of the words, read as a whole and in context.[16]

• (b) A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be of a 'practical bent of mind.'[17] The interpretation 'turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.'[18]

• (c) Context is not confined to the words of the instrument surrounding the expression to be construed.[19] It may extend to '...the entire document of which it is a part, or to other documents with which there is an association.'[20]

• (d) Context may include '...ideas that gave rise to an expression in a document from which it has been taken.'[21]

• (e) Recourse may be had to the history of a particular clause 'Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...'[22]

• (f) A generous construction is preferred over a strictly literal approach,[23] but 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.'[24]

• (g) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.[25]

What is the proper construction of clause 83.2(b) of the Agreement?

• [23] Clause 83 Redundancy contains six clauses; clause 83.1 Introduction, clause 83.2 Application, clause 83.3 Process, clause 83.4 Termination, clause 83.5 Early termination and clause 83.6 Entitlements. These provisions are not extracted in full in this decision but are relevant contextual indicators as to the way in which the redundancy provision operates under the Agreement.

• [24] As a matter of principle, the language in the Agreement is to be read as a whole and in context.[26] Clause 83.2(a) and the disputed provision, clause 83.2(b), appear immediately under the title of clause 83.2, Application. The apparent function of clause 83.2 is to explain where clause 83 of the Agreement applies and who it is to apply to. As much is clear from clause 83.2(c) which identifies that clause 83 shall not apply in the circumstances described in s 122(3) of the Act.

• [25] Clause 83.2(a) concerns an Employee who holds a continuing position which is (or will become) surplus to operational requirements. Where an employee meets the qualifying criteria of clause 83.2(a), clause 83 applies to them and the University may terminate their employment on the basis of redundancy, subject to the conditions otherwise addressed below. Put another way, only an employee holding a continuing position which is (or will become) surplus to operational requirements may be terminated on the basis of redundancy.

• [26] Clause 83.2(b) immediately follows. It mandates - by the use of the word will - seeking voluntary redundancies before any involuntary redundancies are implemented (except with prior union agreement). From whom is the University compelled to seek voluntary redundancies? This question is answered in the ultimate sentence of clause 83.2(b); from affected Employees within the College/Institute/Division.

• [27] Having regard both to its location within clause 83.2 Application, and its terms, I consider that clause 83.2 sets two conditions upon the operation of the redundancy provisions in clause 83. First, the employment of an employee may be terminated by the University on redundancy grounds if they (a) hold a continuing position, and (b) that position is (or will become) surplus to operational requirements (clause 83.2(a)). Second, before the University is permitted to terminate the employment of an employee by reason of involuntary redundancy, it must seek applications for voluntary redundancy (absent union agreement) (clause 83.2(b)). This second condition only makes sense where the employees that the University is precluded from making involuntarily redundant are the employees identified in the first condition - that is, the employees identified in clause 83.2(a).

• [28] This dispute concerns the meaning that should be attributed to the words affected Employees in the second sentence of clause 83.2(b). This sentence is a continuation of the second condition described above. Its purpose is to identify who applications for voluntary redundancy will be sought from. Having regard to the text of this disputed sentence, its place within the structure of clause 83.2(b), and the immediately preceding sentence which links directly, in my view, to clause 83.2(a), I consider that the affected Employees in the second sentence of clause 83.2(b) are to be understood by reference to the same employees that the first sentence of clause 83.2(b) applies; that is, an employee who holds a continuing position which is (or will become) surplus to operational requirements as described in clause 83.2(a).

• [29] A significant aspect of the NTEU's case is that the affected Employees in the second sentence of clause 83.2(b) are the same affected Employees in respect of whom the University's consultation requirements arise regarding a significant change under clause 77.3. In the context of statutory construction, it is generally presumed that a word or phrase has the same meaning throughout an Act.[27] However, even when the task involves the construction of a statute, the presumption is not difficult to displace and "readily yields to the context."[28] The consistency of meaning of the same word or phrase in a statute represents no more than a sensible working hypothesis which can be rebutted by context, purpose, or surrounding text.[29]

• [30] In the context of an enterprise agreement, such as the present case, an examination of how a word or phrase is used may assist, in some cases, when construing a provision. However, it cannot be presumed that words are used consistently. Enterprise agreements "are not always drafted carefully by lawyers or professional drafters" and the framers of the agreement may not have paid attention to "legal niceties and jargon."[30]

• [31] As the Full Bench in Metcash[31] noted, it is perhaps an understatement to say that the drafters of an enterprise agreement may not always pay scrupulous attention to consistency in the use of language:

"Enterprise agreements also are frequently an amalgam of language drawn from preceding agreements, a current or historical award or adopted from an employer's policies or procedures. Where that is the case, the language in a particular provision may reflect that adopted in the source document rather than rigorous adherence to consistency in language throughout the agreement. The text of an enterprise agreement may have evolved over successive rounds of bargaining with changes made to some terms which are in contest in the most recent bargaining exercise, but other terms 'rolled over' without regard being given to how the new and existing terms interact."

• [32] Having regard to the above matters, I do not accept that the term affected Employees in clause 83.2(b) is to be the understood as referring to the same affected Employees in clause 77.3 of the Agreement for the following reasons:

(1) Clauses 77.3 and 83.2(b) do not cross refer to the other and there are no express provisions in the Agreement mandating that the term be applied to the same cohort of employees.

(2) Clause 77.3(c) does not define who an affected Employee is for the purpose of that clause. Indeed, clause 77.3 uses different formulations within subclauses (a), (b) and (c) such that a presumption that the affected Employees in clause 83.2(b) are the same as those in clause 77.3 cannot sensibly be applied. Clause 77.3(a) refers to employees directly affected by a proposed change; clause 77.3(b) refers to employees affected; and only clause 77.3(c) refers to affected Employees in the same formulation as clause 83.2(b). I do not consider that this inconsistency with the way this phrase is used within clause 77.3 supports a conclusion that clause 77.3 was intended to provide a universal meaning under the Agreement of affected Employees.

(3) Further to the above, the term affected Employees is used elsewhere in the Agreement without reliance by the NTEU. Clauses 28 and 30 of the Agreement are titled Workload. Clauses 28.2(d) and (e) use the term affected Employee in the context of those employees whose workloads are impacted by the resignation, retirement or other permanent departure or temporary transfer of another employee (see also clauses 30.2(e) and (f)). It is apparent, through the use of this term in other provisions, that affected Employee is not used consistently throughout the Agreement.

• (4) While clauses 77.3 and 83.2(b) may arise sequentially in relation to a proposed change, clauses 77.3 and 83.2(b) are separate provisions that apply to separate processes. The implementation of one provision does not necessarily trigger the other[32] such that it can be assumed, absence any textual indicators otherwise, that clause 77.3 was intended to provide a universal meaning under the Agreement of affected Employees.

(5) It seems improbable, in my view, for the first sentence of clause 83.2(b) to refer to an employee who holds a continuing position which is (or will become) surplus to operational requirements (clause 83.2(a)), but for the second sentence of the same clause to refer to a different category of employee, without expressly stating as such. The NTEU's construction requires words of expansion to be read into the clause that are not there.

(6) The inclusion of the word may in clause 83.3(b)(i)a. and the commitment that an application will be assessed in accordance with a fair, objective and transparent criteria in clause 83.3(b)(i)b. does not of itself demonstrate that affected Employees are a cohort wider in scope than the employees who are identified as surplus to operational requirements in clause 83.3(a). These provisions have application when limited to an employee who holds a continuing position which is (or will become) surplus to operational requirements as described in clause 83.2(a).

• [33] For these reasons, the text of the Agreement does not support the NTEU's submission that an affected Employee in clause 83.2(b) is the same affected Employee in respect of whom the University's consultation requirements apply in the case of a significant change under clause 77.3 of the Agreement. Rather, the ordinary meaning of disputed clause 83.2(b), when read in its context within clause 83.2 Application, favours the construction advanced by the University.

• [34] There is an additional matter that the University relies upon in support of its position. Clause 63.2(b) of the University of Tasmania Staff Agreement 2017-2021 (2017 Agreement), being the immediate predecessor to the Agreement, was in identical form to clause 83.2(b) of the Agreement, save that it stated as follows:

Applications for voluntary redundancy will be sought from Employees within the affected College/Faculty/Institute/Division.

• [35] As is apparent, the wording of clause 83.2(b) of the Agreement was altered to refer to the affected Employees whereas the predecessor 2017 Agreement referred to Employees within the affected College etc.

• [36] To the extent that there was any objection advanced by the NTEU as to the Commission's capacity to consider the history of the Agreement and the source of the disputed term absent ambiguity in the relevant clause,[33] that argument is rejected. As the NTEU appeared to accept at the hearing,[34] the context provided by the content of the predecessor agreement is capable of being considered as part of the process of interpretation of the text of clause 83.2(b). As Kirby J observed in Amcor Ltd v Construction, Forestry, Mining and Energy Union,[35] no longer do courts or industrial tribunals seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen.[36] Relevant context is therefore not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association and may include ideas that gave rise to an expression in a document.[37] It follows that the context provided by the history of the Agreement and the content of the predecessor agreement is capable of being considered as part of the process of interpretation of the text of clause 83.2(b). However, as the NTEU correctly submits, consideration of context cannot justify rewriting an agreement.[38] Interpretation remains a text-based activity.[39]

• [37] The University contends that the amended wording in clause 83.2(b) demonstrates that there was a narrowing of the employees from whom voluntary redundancies need be sought; the 2017 Agreement referred to all employees within the applicable College. The University relies upon the evidence of Ms Anderson[40] in support of its position that it communicated this narrowing effect to the NTEU during bargaining for the Agreement. The University says that the same purpose was communicated to its employees prior to the Agreement being made by a majority of employees who voted to approve it pursuant to s 182 of the Act.

• [38] The NTEU contends, in summary, that the views of Ms Anderson and the University's position as to the meaning of clause 82.3(b) of the Agreement, as demonstrated by the bargaining notes relied upon (which were not shared with the NTEU), should not be given weight. The NTEU rejects that the evidence is capable of establishing objective background facts which were known to both parties in the manner described in Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd and Another.[41]

• [39] As to the change itself, the NTEU submits that the altered text between the 2017 Agreement and the text of clause 82.3(b) of the Agreement "simply changes affected College/Institute/Division to affected Employees within the College/Institute/Division." The NTEU's position is that this "minor clarification" just means that the clause now applies to not any employee working in a particular College but rather an affected Employee working in the College. For the reasons it earlier relies upon, the NTEU says that the affected Employees must be those employees affected by workplace change in accordance with clause 77.3. It contends that there is nothing in the Agreement that limits the meaning of affected Employees in clause 83 to those working in surplus positions as defined in clause 83.3(a).[42]

• [40] I am not persuaded that the evidence of surrounding circumstances goes higher than demonstrating the University's own understanding as to the meaning of clause 83.3(b). While the bargaining notes state that "we are changing where we seek voluntary redundancies from" and that "we'd seek from affected employees. Whereas the current provisions seek from affected colleges," this sentence is preceded with a statement that there is "no real difference to the existing provisions."[43] The statement that there is "no real difference" is at odds with my understanding of the University's case, and Ms Anderson was not cross examined on the content of this material. The discussion that appears to take place on 14 September 2022 as to the distinction between a voluntary redundancy and an involuntary redundancy and "ad hoc separation"[44] does not develop this issue further in my view. It does not establish the existence of any mutual intention as to the meaning of the disputed clause.

• [41] As to the Detailed comparison between the Current Agreement and the Proposed Agreement document, I do not accept that employees were told that the amendment served to narrow the application of the provision from its earlier iteration. The document simply states that "Prior to any involuntary redundancy process, application process for voluntary redundancies to be only sought from affected employees."[45] There is no explanation in this document as to what this "significant" change meant by reference to clause 63 of the 2017 Agreement. It follows that I derive no assistance in the constructional task before me from the evidence of Ms Anderson.

• [42] Having considered these matters, I am satisfied that on a proper construction of clause 83.2(b) of the Agreement, an affected Employee is an employee to whom clause 83.2(a) applies; that is, an Employee who holds a continuing position which is (or will become) surplus to operational requirements. This construction is consistent with the text of the relevant provisions of the Agreement which require that employees whose positions are terminated on the basis of redundancy, either voluntarily or involuntarily, must satisfy the first condition identified at paragraph [27] of this decision that their position is (or will become) surplus to operational requirements. It follows that applications for voluntary redundancy from employees in positions not identified as being surplus to requirements are not available having regard to clause 83.2(a) of the Agreement. This is because notwithstanding its voluntary nature, the termination is still on account o[46]redundancy.46

• [43] This construction is also consistent with the purpose of the clause, which I consider to be to facilitate the prioritised section for redundancy of employees whose positions have been identified as surplus to requirements and who wish to be made redundant. I am satisfied and I find that the voluntary redundancy process under the Agreement provides an opportunity for a surplus employee who wishes to be made redundant to notify the University by making an application (that will be assessed in accordance with objective, fair and transparent criteria). This benefits the employee who seeks the redundancy (on the basis that they may not otherwise have been selected) before the employment of those who do not wish to be made redundant is terminated.

• [44] With respect to the balance of the NTEU's contentions, the union raised in its written submissions that an employee whose position is or will become surplus to operational requirements is not required to make an application for voluntary redundancy because they may simply accept the notice of redundancy when it is provided to them by the University. On that basis, the NTEU submits that the University's position is incorrect and absurd. I do not accept this contention. Not every employee holding a position identified as surplus to operational requirements may receive a notice of redundancy in every case. An employee's position may be surplus to requirements without their employer terminating their employment on the basis of redundancy. The emphasis is upon a "job" becoming redundant rather than a worker.[47]

• [45] This is so, for instance, in the downsizing example provided by the University, where the work previously performed by ten employees occupying the same or similar positions is determined as capable of being performed by seven employees. In that case, each of the ten positions would be surplus to requirements, with three of the ten to be terminated on the basis of redundancy. If six employees wish to take a voluntary redundancy package and make an application for voluntary redundancy pursuant to clause 83.3(b) of the Agreement, the University would select three of those six employees for redundancy pursuant to objective, fair and transparent criteria. Consequently, the positions of the remaining seven employees would no longer be surplus to requirements and involuntary redundancies would not be necessary.

• [46] The NTEU contends that this is a "happy" example. However, it makes two key arguments in response. First, that it remains unfair that applications for voluntary redundancy are limited to only that narrow group of employees identified as surplus, where there could be a broader group of employees who may also be affected by the proposal to make particular positions forcibly redundant.[48] The answer to this contention lies at paragraph [42] above. The University is not obliged, on the plain text of the Agreement, to solicit applications for voluntary redundancy from employees who do not meet the first condition (that is, whose positions are not surplus to operational requirements pursuant to clause 83.3(a)).

• [47] Second, the NTEU submits that an affected Employee on the University's construction may be the only employee working in an identified surplus position, such that there is no benefit attached to the employee making a voluntary redundancy application.[49] The NTEU contends that in such a case, the additional provisions in clause 83.3 would have no work to do. The contention that only one employee may be working in an identified surplus position is accepted; much depends upon the circumstances in any given case. But the fact that the occupant of a stand-alone position may be the only incumbent working in a surplus position does not tell against the construction of clause 83.3(b) set out in this decision. Nor does it demonstrate that the provisions of clause 83.3 have no work to do. Indeed, it is a distinction that Jessup J spoke of in Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union[50] when describing the term voluntary redundancy (albeit, by reference to the enterprise agreement before the Court, but having regard to voluntary redundancy as a general concept):[51]

"But what does the term "voluntary redundancy", in cl 13.5.1, mean? The "redundancy" here being referred to, self-evidently, is the second kind mentioned by Tracey J: the termination of the employment of an employee whose job as become redundant. Being "voluntary", such a termination is done with the agreement of the employee. This might occur, for example, where the occupant of a stand-alone position is informed that the position is to be abolished but, possibly through the medium of the process referred to in cl 13.5.2, he or she negotiates timing and other adjectival matters with the Company in return for making his or her departure from employment the subject of consensus. More obviously, perhaps, voluntary redundancy might occur where there are two or more (even many more) employees engaged on the same or similar work and the amount of that work is insufficient to sustain the employment of that number of employees. One or more of them might be prepared, in effect, to "volunteer" to be dismissed on account of redundancy, an outcome which, for someone not committed to a long-term future with the Company, would be attractive to some extent under cl 13.5.5 of the Agreement and s 83-170 of the Income Tax Assessment Act 1997 (Cth)..."

• [48] The NTEU refers to the assessment by the University of voluntary redundancy applications made by employees whose positions are not surplus to requirements against objective, fair and transparent criteria.[52] However, it is not apparent from the NTEU's submissions how the University would fairly assess voluntary redundancy applications made by employees it has identified as surplus to requirements against those it has not so identified. As the University contends, the assessment criteria would have to be so broad as to be virtually meaningless. While the University is not compelled to accept voluntary redundancy applications - as the NTEU accepts[53]- imposing an administrative burden upon the University to assess voluntary redundancy applications from employees who do not meet the first condition in paragraph [27] above is at odds with the correct construction of clause 83 set out in this decision, which is premised upon a decision having been made that certain positions are surplus to requirements.

• [49] The NTEU relies upon the legislative context of the Agreement, particularly the objective of job security, in support of its position. I understand that the NTEU urges a construction of the Agreement that better meets the objectives of the Act. However, the task before the Commission is to determine objectively the meaning of the disputed term of the Agreement. In this case, the construction of clause 83.3(b) of the Agreement set out in this decision is supported by the ordinary text, relevant context and the purpose of the provision.

• [50] For the reasons given, the University's construction of clause 83.2(b) is correct. An affected Employee the subject of clause 83.2(b) of the Agreement is an employee whose role is or will become surplus to operational requirements for the purposes of clause 83.2(a).

• [51] The question posed for determination (as I understand it to be amended by the parties) is answered as follows:

Is an 'affected Employee' in clause 83.2(b) of the University of Tasmania Staff Agreement 2021-2025:

1. an employee whose position is or will become surplus to operational requirements for the purposes of clause 83.2(a)?;
2. an employee whose role is or will become surplus to operational requirements due to a significant change proposal?
3. an employee whose position is directly affected by a significant change proposal?

• [52] On a proper construction, the answer is: 1. An employee whose position is or will become surplus to operational requirements for the purposes of clause 83.2(a).

• [53] The dispute is determined accordingly.

M. Garozzo, of Counsel, instructed by Ashurst Australia, for the applicant.

J. Wells, Director (Industrial and Legal), for the National Tertiary Education Industry Union.

[1] University of Tasmania submissions dated 5 February 2025 at [4]

[2] NTEU submissions dated 26 February 2025 at [21]-[23]

[3] Exhibit 3 (Further statement of Ingrid Summers dated 5 March 2025) at [3]

[6] NTEU submissions dated 26 February 2025 (NTEU submissions) at [8] and [34]

[15] [2020] FCAFC 123; 298 IR 50 at [65]

[16] City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 at 378 (City of Wanneroo v Holmes); City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 at [53] (City of Wanneroo v AMACSU); WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 at [197] (WorkPac v Skene)

[17] Kucks v CSR Limited [1996] 66 IR 182 at 184 (Kucks v CSR); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16]; WorkPac v Skene at [197]

[18] Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 (Amcor) at [2]

[19] City of Wanneroo v AMACSU at [53]

[20] Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511 at 518 (Short v FW Hercus); Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175 at 178

[23] Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-504; City of Wanneroo v AMACSU at [57]

[24] City of Wanneroo v Holmes at 380

[25] City of Wanneroo v Holmes at 378-379; WorkPac v Skene at [197]

[26] See, City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at [43] citing Australian Timber Workers Union v W. Angliss & Co Pty Ltd [1924] CthArbRp 33; (1924) 19 CAR 172

[27] Registrar of Titles (WA) v Franzon [1975] HCA 41; (1975) 132 CLR 611 at 618_; Tabcorp Holdings Ltd v Victoria_ [2016] HCA 4; (2016) 90 ALJR 376 at [65]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCA 19; (2021) 273 CLR 21 at [25]

[28] Clyne v Deputy Federal Commissioner of Taxation (1981) 150 IR 1 at 15; Federal Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48; (2015) 257 CLR 544 at [27]; Shop Distributive and Allied Employees' Association v Woolworths Ltd [2006] FCA 616; 151 FCR 513 at [26]

[29] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union and Others (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88; (2018) 262 FCR 473 at [3]

[30] Kucks v CSR at 184; Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495 at [17]; Hempel (Wattyl) Australia Pty Ltd v United Workers' Union [2024] FCAFC 298 at [64]- [66]

[31] Metcash Trading Limited T/A Metcash v United Workers' Union [2024] FWCFB 410 at [31]- [32]

[32] See for example, Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; 248 FCR 18 (Port Kembla) at [186]; Australian Nursing and Midwifery Federation v Bupa Aged Care Australia Pty Ltd [2017] FCA 1246

[33] NTEU submissions at [23], [65] and [76], but see Transcript PN254-PN257

[35] [2005] HCA 10; (2005) 222 CLR 241

[37] City of Wanneroo v AMACSU at [53]; Short v FW Hercus at 518; Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175 at 178

[38] NTEU submissions at [65]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd [2017] FWCFB 3005; (2017) 268 IR 285 at [65]

[40] Exhibit 4 (Witness statement of Fiona Anderson) (Anderson statement)

[41] [2022] FCAFC 50; (2022) 291 FC 531 at [102]; reliance was also placed on Linfox Armaguard Pty Ltd T/A Linfox Armaguard v Transport Workers' Union of Australia [2024] FWCFB 373 at [42]; Transcript PN233-PN252

[47] Amcor at 259; National Tertiary Education Union v La Trobe University [2014] FCA 1330 at [27]

[49] Transcript PN287-PN290; PN305-PN306

[50] [2016] FCAFC 99; 248 FCR 18 (Port Kembla)

[52] NTEU submissions at [4], [11], [31], [32], [36], [39] and [55]

[53] See eg Transcript PN293-PN297; NTEU submissions at [38]

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