Application by Professor Donnel Briley
[2023] FWCFB 238
•6 DECEMBER 2023
| [2023] FWCFB 238 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 20A(4)—Application to extend default period for agreement-based transitional instruments
Application by Professor Donnel Briley
(AG2023/4144)
| DEPUTY PRESIDENT ROBERTS COMMISSIONER CRAWFORD | SYDNEY, 6 DECEMBER 2023 |
Application to extend the default period for an Australian Workplace Agreement between Professor Donnel Briley and The University of Sydney
Professor Donnel Briley (Professor Briley) has lodged an application to extend the default period for an individual agreement-based transitional instrument pursuant to subitem (4) of item 20A of Sch 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act). The relevant instrument is an Australian Workplace Agreement (AWA) made under the Workplace Relations Act 1996 (Cth) (WR Act) in 2008. The parties to the AWA are Professor Briley and his employer, The University of Sydney (University). The application seeks to extend the operation of the AWA to 6 December 2027. The application is opposed by the University.
The main aspects of the statutory framework applicable to this application were detailed in the Full Bench decision in Suncoast Scaffold Pty Ltd.[1] In short, the AWA—the subject of the application—is an agreement-based transitional instrument preserved in operation after the repeal of the WR Act and the commencement of the Fair Work Act 2009 (Cth) (FW Act) by item 2 of Sch 3 to the Transitional Act. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended Sch 3 to add item 20A. Item 20A provides for the automatic sunsetting of remaining agreement-based transitional instruments at the end of the ‘default period’. The default period is the period ending on 6 December 2023 unless extended by the Commission. Subitem (6) of item 20A provides that, on application under subitem (4), the Commission must extend the default for a period of no more than four years if either:
(a) subitem (7), (8) or (9) applies and it is otherwise appropriate in the circumstances to do so, or
(b) it its reasonable in the circumstances to do so.
Professor Briley advances his application under subitem 6(b).
The application, as filed, stated the following reason as to why the default period for the AWA should be extended:
The clear disparity in the Applicant’s annual income between the AWA on the one hand, and the EA on the other hand, leads to the inevitable conclusion that the termination of the AWA would operate harshly in the Applicant’s circumstance. Termination of the AWA and consequent application of the EA to the Applicant’s employment, would leave the Applicant significantly worse off than he was under the AWA.
The “EA” referred to in Professor Briley’s application is the University of Sydney Enterprise Agreement 2023 – 2026 (EA). Professor Briley’s application states he is entitled to receive an annual salary totalling at least $324,986 under the AWA, plus a discretionary performance bonus of up to 10%. Professor Briley’s application states he would be entitled to a maximum annual salary of $255,416 under the EA.
Although Professor Briley’s application suggests the EA will apply to his employment if the AWA terminates, in response to questions posed in correspondence from the Commission, the University submitted on 20 November 2023 the following:
The University does not intend to reduce Professor Briley’s remuneration when his AWA ceases to operate on 7 December 2023. The University is proposing to offer Professor Briley a new employment contract that provides for fixed remuneration of $324,986 plus superannuation contributions at the rate of 17% and a loading of 10% in lieu of access to the performance bonus scheme that was established for staff covered by AWAs. This proposal has not yet been put to Professor Briley as the University is still in the process of preparing new contracts for staff with AWAs (20 staff including Professor Briley).
The University does not agree that Professor Briley’s employment will be covered by the University of Sydney Enterprise Agreement 2023-2026 when his AWA ceases to operate. On the basis of the proposal outlined above, his new fixed remuneration inclusive of the loading in lieu of the AWA-based bonus scheme will be $357,484. Clause 6(c)(ii) of the Enterprise Agreement excludes academic staff “whose full-time equivalent annual remuneration including salary and loadings but excluding superannuation exceeds the relevant Level E Professorial rate and applicable loadings by at least 50%”. The ‘relevant Level E Professorial rate’ is currently $224,932 and there are no Agreement-based loadings which are or would be applicable to Professor Briley. This means that the applicable cap for coverage by the Enterprise Agreement is $337,398.
Given Professor Briley’s current and proposed remuneration level, it is proposed that the new contract of employment to be offered to him will include a high-income guarantee.
Consideration
We are satisfied it is reasonable in the circumstances to extend the default period for the AWA pursuant to subitem 6(b).
We consider it is reasonable to extend the default period because of the lack of legal certainty Professor Briley currently has about the University’s offer of a new employment contract. At this stage, all Professor Briley has is an email from the University stating it “does not intend to reduce” his remuneration and is “proposing to offer Professor Briley a new employment contract”. As submitted by Professor Briley:
… the AWA is set to sunset in two weeks’ time and as yet he has had no communication from the University regarding the proposed replacement employment contract, much less an opportunity to consider and negotiate its terms and conditions, and ultimately decide whether to accept the contract.
We acknowledge the University has referred to previous Full Bench decisions in Application by Dilek Henderson[2] and Application by Northern Inland Credit Union Limited and Beaven and Clark[3] whereby somewhat similar applications were dismissed for reasons including that the relevant employers had indicated they intended to maintain the existing instrument conditions. However, in both of those matters, the employers were supporting the continued operation of the AWA. In contrast, the University is opposing an extension of the default period for the AWA on the basis of a new employment contract that has not even been presented in draft form to Professor Briley. We consider this distinguishes this case from the two cases relied on by the University.
In addition, the two cases above are distinguishable from this case because the University has the EA in operation, and this will not nominally expire until 1 June 2026. The University and its employees have contemporary employment arrangements in place. Professor Briley’s circumstances are less certain. The sunsetting of the AWA where the finalisation of alternative arrangements is still some way off will compound that uncertainty and may impact on the negotiations.
For these reasons, we are satisfied, for the purpose of item 20A(6)(b), that it is reasonable in the circumstances to extend the default period for the AWA between Professor Briley and the University by a period of six months.
We consider this period to be sufficient for Professor Briley and the University to negotiate a new employment contract to reflect at least the terms of the AWA.
An order extending the default period for the Agreement by 6 months, until 6 June 2024, will be published separately.
DEPUTY PRESIDENT
Determined on the papers
[1] [2023] FWCFB 105 at [3]-[18].
[2] [2023] FWCFB 132.
[3] [2023] FWCFB 120.
Printed by authority of the Commonwealth Government Printer
<PR769094>
0
0
0