Cassandra Nock v University of New South Wales

[2013] FWC 1957

[2013] FWC 1957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Cassandra Nock
v
University of New South Wales
(C2012/1218)

COMMISSIONER RIORDAN SYDNEY, 17 JUNE 2013

Jurisdiction of the Commission - terms of the agreement.

[1] The University of New South Wales (UNSW) has raised a jurisdictional objection to the Fair Work Commission (FWC) determining a dispute notified by the National Tertiary Education Industry Union (NTEU) in relation to a job evaluation outcome for Ms Cassandra Nock.

[2] Ms Nock is a Student Office Manager in the School of Computer Science and Engineering employed under the University of New South Wales (Professional Staff) Enterprise Agreement 2010 1(the 2010 Agreement).

[3] The NTEU have requested that the FWC determine the dispute by arbitration in accordance with the 2010 Agreement. The UNSW submits that the FWC does not have the power to arbitrate this dispute based on its interpretation of clause 21.1 (c) of the 2010 Agreement.

[4] When issues of interpretation arise in relation to the construction of contracts, awards or agreements, the FWC is bound to follow a number of well established legal principles.

[5] A Full Bench of the Australian Industrial Relations Commission (AIRC) in Telstra Corporation Ltd v CEPU 2 summarised these principles in relation to resolving ambiguity in certified agreements and the principles are equally applicable to the present application.

“[33] The judgement of the High Court in Codelfa Construction Pty Ltd v State Rail Authority of NSW established widely accepted principles for resolving ambiguity in contracts. In that case Mason J stated the rule thus:

‘The true rule is that evidence of surrounding circumstance is admissible to assist in the interpretation of the contract of the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.’

[34] In BP Australia Pty Ltd v Nyran Pty Ltd, Nicholson J distilled, by reference to Codelfa, the following points of principle for resolving ambiguity in contracts:

• it is necessary firstly to determine whether the contract has a plain meaning or contains an ambiguity;



• if the contract has a plain meaning, evidence of surrounding circumstances will not be admissible to contradict the language of the contract;



• if the language of the contract is ambiguous or susceptible of more than one meaning evidence of surrounding circumstances is admissible to assist in the interpretation of the contract;



• the concept of surrounding circumstances is to be understood to be reference to the objective framework of facts. It will include:



• evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract;



• facts so notorious that knowledge of them is to be presumed;



• evidence of a matter in common contemplation and constituting a common assumption.”

[6] In Kucks v CSR Limited 3, Madgwick J, sitting as a judge of the Industrial Relations Court of Australia held:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relation environment than with legal niceties or jargon...

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[7] The reasoning in Kucks was adopted and strongly endorsed in Australian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd 4 and by the Full Court of the Federal Court in Ansett Australia Limited v Australian Licensed Aircraft Engineers Association.5

[8] In Short v FWC Hercus Pty Ltd, 6 the Federal Court considered whether it was appropriate to look at the history of a provision:

“No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use...

...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, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language...”

[9] The Dispute Resolution Process (DRP) is contained in Clause 10.0 of the 2010 Agreement;

“10.0 - Dispute Resolution Procedures

(a) The following dispute resolution procedures must be followed to settle a dispute about the interpretation, application or operation of any provision of this Agreement or in relation to the National Employment Standards (NES).

(b) A reference to an employee in this clause may include more than one (1) employee.

Notification of Dispute

(c) An employee, or the Union or employee representative acting on their behalf, will in the first instance notify the Director, Human Resources, in writing, of the dispute (“the dispute notification”). The dispute notification must include details of the dispute and the resolution sought by the employee.

First Dispute Meeting

(d) The employee, and the Union or employee representative acting on their behalf, and representatives of the University, will meet within five (5) working days of the dispute notification to try to resolve the dispute, unless the parties agree in writing to a different timeframe. Where a significant number of employees are party to the same dispute, a subgroup of the employees, and the Union or employee representative acting on their behalf, will meet with representatives of the University within five (5) working days of the dispute notification.

Second Dispute Meeting

(e) Where a dispute is not resolved following the procedure in subclause 10.0(d) and the employee wishes to proceed with the dispute, the employee, or the Union or employee representative acting on their behalf, must refer the dispute, in writing, to the Director, Human Resources (“the referral notification”) within five (5) working days of the holding of the meeting referred to in subclause 10.0(d) above. The referral notification must include details of the dispute and the resolution sought by the employee. The employee, and/or the Union or employee representative acting on their behalf, and representatives of the University, will meet within five (5) working days of the referral notification to try to resolve the dispute, unless the parties agree in writing to a different timeframe.

Referral of Dispute to FWA

(f) Where a dispute is not resolved following the procedures in subclauses 10.0(d) and 10.0(e), the dispute may be referred by either the employee, or the Union or employee representative acting on their behalf, or the University, to FWA for resolution by mediation and/or conciliation, or where mediation or conciliation does not resolve the dispute, by arbitration.

(g) If an application for arbitration is made, FWA may exercise any of its powers under the Act. The decision of FWA will be implemented by the parties, subject to either party exercising a right of appeal against a decision to FWA.

General

(h) Subject to subclause 10.0(i), while the dispute resolution procedures referred to at subclauses 10(d) and 10(e) are being conducted, the University will not change work, duties, staffing or organisation of working which is the subject of the dispute.

(i) Subclause 10(h) does not apply where the matter in dispute is related to the following clauses: clauses 29.6: Process - Redeployment and Retrenchment; 31.0 - Probation, 34.0 - Management of Unsatisfactory Performance; and 35.0 - Management of Misconduct or Serious Misconduct - of this Agreement.”

(my emphasis)

[10] Clause 21 of the 2010 Agreement states;

“21.1 Job Evaluation

(a) In evaluating the salary classifications for positions covered by Levels 1 to 9 of this Agreement, the University will use:

(i) the UNSW Classification Descriptors referred to at Schedule 9 of this Agreement which will be applied consistently and transparently, based on the principles of equity; and

(ii) information that accurately describes the position such as a current position description.

(b) A Job Evaluation Panel will be established which will:

(i) consist of two (2) nominees of each of the Unions and the same number of other staff nominated by the University will ensure that members of the Job Evaluation Panel will be appropriately trained in the UNSW Classification Descriptors and in job evaluation;

(ii) assist the University, where requested, in the job evaluation procedure;

(iii) act as a source of advice for employees in job evaluation; and

(iv) meet twice a year, upon request, to discuss the job evaluation process and consider standard documentation used by the University.

(c) The salary classification of all positions will be determined by the Director, Human Resources in accordance with subclause 21.1(a) above.”

[11] In the 2010 Agreement, there is no equivalent of the specific reference to a Dispute Resolution Process (DRP) applying to the Job Evaluation Process that was contained in the University of New South Wales (General Staff) Enterprise Agreement 2000 7 (the 2000 Agreement). That reference was removed from all agreements after the 2000 Agreement. I have extracted the particular subclause from the 2000 Agreement below:

“Clause 27.0 Job Evaluation

...

(e) The salary levels of all positions will be determined by the Director, Human Resources. The re-evaluation of an occupied position will be in accordance with the following procedures:

(i) A supervisor of a work unit may apply, through a Dean, Director or equivalent, to the Human Resources Department of the University for the evaluation of an existing position.

(ii) If an employee is of the view that their level of work has so changed as to merit re-evaluation and a supervisor refuses to apply for such re-evaluation, the employee may seek the assistance of the Human Resources Department of the University.

(iii) The Human Resources Department of the University may seek the assistance of a member of the Job Evaluation Panel in evaluating a position.

(iv) Where a dispute arises in relation to the application of subclause 27.0(e)(i)(iii) above, the dispute resolution procedures of this Agreement will apply. “

(my emphasis)

[12] Relying on the absence of a clause equivalent to clause 27(e) of the 2000 Agreement in the 2010 Agreement, the UNSW has submitted that the present clause in the 2010 Agreement only empowers the Director of Human Resources to determine the appropriate salary classification for all positions within the UNSW and that the DRP of the 2010 Agreement does not apply to the Job Evaluation Process.

[13] The UNSW referred me to Qantas Airways Ltd v TWU, 8in particular to the following passages:

“[26]... when parties authorise the Commission to determine a dispute over the application of an agreement it is necessary for the Commission to ensure that it determines the matter in accordance with the terms of the Agreement.”

[28]... in an Agreement based system of dispute resolution, it is necessary to ensure that the disputes over the application of the Agreement are resolved in accordance with the mechanisms agreed upon by the parties who ultimately retain the responsibility for determining the terms of employment.”

[14] The UNSW also referred me to Sydney Ferries Corporation 9in particular, to paragraph 20;

“[20] While cl.4.3 confers a power of arbitration, the agreement must be interpreted as a whole. The power to arbitrate conferred in general terms by cl.4.3 must be interpreted in light of the specific provisions dealing with rosters...”

[15] Sydney Ferries is distinguishable from this dispute on the facts. In Sydney Ferries, the parties were committed to developing a new roster. There was no role for the then Commission in developing the roster. In this case, if the Director of Human Resources had not already made a determination in accordance with Clause 21(c) of the Agreement, then the Commission, applying Sydney Ferries, would not have jurisdiction. The Director of Human Resources has the designated authority to determine the salary level of all positions. However, the UNSW argued that the parties never intended for the FWC to be involved in any review of the Job Evaluation Process undertaken by the Director and, in support of this proposition, submitted that no UNSW employee had disputed their classification level by referring it to the FWC in the past.

[16] In determining this matter, I have taken into account all of the submissions of the parties. I accept that there is a fundamental need for UNSW to ensure that work of a similar nature is remunerated at a similar level throughout the University. Consistent and transparent application is to be commended as a commitment to equitable principles.

[17] The first issue to determine is whether there is any ambiguity in the wording of the 2010 Agreement. Sections 10.0 and 27.0 of the 2010 Agreement have been interpreted by the parties to satisfy both of their submissions. It is necessary for me to consider the ordinary meaning and application of the words of the 2010 Agreement. After considering the relevant clauses I do not find that any of the provisions of the 2010 Agreement are ambiguous. The language of the 2010 Agreement is clear and unambiguous. The DRP is a mechanism agreed to by the parties and it applies to all clauses except those specifically excluded.

[18] In my consideration of this issue I considered the history of these clauses in the UNSW agreements. The DRP in all the agreements following the 2000 agreement have all contained a provision which allows for conciliation and/or arbitration by the predecessors of the FWC and none of them contains an equivalent to clause 27.0(e)(iv) of the 2000 Agreement, which provided a specific DRP in relation to job evaluation.

[19] When the DRP specific to the Job Evaluation Process was removed, there was no expressed alteration to the operation of the DRP in any subsequent agreements. The Job Evaluation Process was not included in any clause which listed the areas excluded from the operation of the DRP. The DRP in the 2010 Agreement still specifically applied to all provisions of the 2010 Agreement. If the parties had intended to exclude the job evaluation process from the operation of the DRP then they could easily have identified this change in any of the agreements by an exclusion clause such as Clause 10.0(i) of the 2010 Agreement. The absence of such a specific exclusionary provision has led me to conclude, and I find, that the parties removed the specific DRP from the job evaluation clause in the 2003 Agreement because it was superfluous. I am satisfied that when introducing the Job Evaluation provision into the 2000 Agreement, the parties believed it was prudent to specifically and expressly confirm the application of the DRP to the Job Evaluation process. However, I am satisfied that despite this specific mention the DRP covered the provision then, and still does now.

[20] I am concerned that the UNSW has raised the issue of jurisdiction at this late stage in the DRP. The UNSW has willingly participated in the process by attending a first dispute meeting and a second dispute meeting with the NTEU. I note that the UNSW attended a conference before FWC and accepted and acted upon a recommendation purely on a without prejudice basis.

[21] If the UNSW was right in its interpretation, how would the NTEU, or any particular employee, ensure that the Director acted in a manner prescribed by the 2010 Agreement? What if principles of fairness were not followed by the Director in the exercise of his discretion? What if his conduct was unfair or discriminatory? Was it intended that no remedy would apply in the circumstances? I am satisfied that this was not the parties’ intention.

[22] Based on the submissions of the UNSW there could be no recourse to a remedy because any decision of the Director would be beyond review. Such a proposition could not be procedurally fair or in accordance with the intent of the 2010 Agreement, particularly in reference to the stated, broad application of the DRP.

[23] The fact that the NTEU, or any employee of the UNSW, has not sought an arbitrated outcome in relation to a classification dispute is not determinative of any issue. There may not have been any previous cause for complaint.

[24] In this case the NTEU believes that the University has not acted in a consistent manner in relation to the reclassification of Ms Nock. It is entitled to have this view tested. On a precautionary note for the NTEU I note that the UNSW has had the position of Ms Nock evaluated on a number of occasions, including once at the recommendation of the FWC, with a consistent outcome being achieved on each occasion. To be successful, the NTEU will need to show that an injustice has occurred in the exercise of the Director’s discretion.

[25] Considering the everyday meaning of the highlighted words of the DRP in the 2010 Agreement, the accepted legal principles of construction and interpretation, and the historical context of the DRP and Job Evaluation clauses, I am satisfied and find that there is no ambiguity and that the DRP applies to every provision of the 2010 Agreement, except those provisions that are specifically excluded. Whilst a specific DRP is not referred to in the Job Evaluation Process, that clause is not excluded from the operation of the DRP of the 2010 Agreement.

[26] For the reasons stated above, I dismiss the jurisdictional objection of the UNSW.

COMMISSIONER

 1  [2010] FWAA 9588

 2 (2005) 139 IR 141 Ross VP, Lacy and Smith C

 3 (1996) 66 IR 182 at 184

 4 (1998) 80 IR 208

 5 [2003] FCAFC 209 (Wilcox, Conti, Jacobson JJ) at para [8]

 6 (1993) 40 FCR 511

 7   (C24701 of 1999)

 8   [2007] AIRC FB 915

 9   [2007] AIRCFB 909

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