CPSU v University of Western Sydney
[2010] FMCA 246
•9 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CPSU v UNIVERSITY OF WESTERN SYDNEY | [2010] FMCA 246 |
| INDUSTRIAL LAW – Breach of collective agreement by University – penalty considerations. |
| Workplace Relations Act 1996 (Cth), ss.719, 841 |
| CPSU v University of Western Sydney (No 2) [2009] FMCA 1207 Kelly v Fitzpatrick (2007) 166 IR 14 ANWU v Mechanical Engineering Services Pty Limited (No 2) [2008] FCA 1249 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607 Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 Plancor v LHMU (2008) 177 IR 243 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiav Telstra Corporation Limited [2007] FCA 1607 |
| Applicant: | COMMUNITY AND PUBLIC SECTOR UNION, NEW SOUTH WALES BRANCH |
| Respondent: | UNIVERSITY OF WESTERN SYDNEY |
| File Number: | SYG 1561 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 19 March 2010 |
| Date of Last Submission: | 19 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Shoebridge |
| Solicitors for the Applicant: | W G McNally Jones Staff |
| Counsel for the Respondent: | Ms M Easton |
| Solicitors for the Respondent: | Truman Hoyle |
AMENDED ORDERS
The Respondent pay a penalty of $10,010.00 for breach of s.719 of the Workplace Relations Act 1996 (Cth).
Penalty be paid to the Applicant pursuant to s.841 of the Workplace Relations Act 1996 (Cth) within 28 days.
NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules to show that the penalty amount is $10,010.00 and not $10,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1561 of 2009
| COMMUNITY AND PUBLIC SECTOR UNION, NEW SOUTH WALES BRANCH |
Applicant
And
| UNIVERSITY OF WESTERN SYDNEY |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
On 16 December 2009 I handed down Judgment following a hearing in which the applicant Union sought declarations that the University was bound by various sub-sections of clause 15 of the University of Western Sydney General Staff Enterprise Agreement 2006 to 2008. The circumstances in which it was alleged that the University breached the agreement were that shortly before the commencement of the semester in 2008, the technical manager of the School of Engineering advised the head of the School of Engineering that he was resigning from the position effective approximately nine days later. The School is supported by technical support staff consisting of the technical manager (Level 9), three senior technical officers (Level 8) and eleven technical officers (Levels 5 – 7). The technical manager serves as one of the school’s executives and sits on the school management committee. The manager manages the staff and technical resources of the school in consultation with the head of school and the school executive. The technical officers are responsible for the provision of technical support for the school’s analytical laboratories.
There was a clear need for the school to replace the resigning manager as soon as possible and for someone to act in his position until the replacement was appointed and could start. Clause 15 of the Workplace Agreement which is set out in full in my original Judgment, CPSU v University of Western Sydney (No 2) [2009] FMCA 1207, has an important part to play in the search for a replacement and the manner in which the position is filled pending that replacement’s appointment. Clause 15.2(a) states:
“The University is committed to the provision of opportunities for career progression by:
(a) Advertising all ongoing and fixed term vacancies on the University website.”
Sub clauses 15(10) to 15(13) deals with the use by the University of temporary appointments to perform the duties of higher classified positions as opportunities for staff development. In the instant case the University neither advertised the appointment on the website nor provided any existing member of the technical staff with an opportunity to act in the position of technical director pending an appointment. For the reasons that I detailed in my judgment I came to the view that Clause 15(2) was a mandatory clause requiring the University to advertise and that by failing to do so it had breached the agreement. Altogether eight breaches were alleged. I found three were bad for duplicity, four were not made out and one had been. The Union argued that Clause 15 was an applicable provision within the meaning of s.719(1) of the Workplace Relations Act 1996 (Cth) (the “Act”) and the court could therefore impose the penalty in accordance with Division 2 of Part 14 of the Act. Under s.719(4) the maximum penalty that may be imposed upon a corporation in respect of a breach of an applicable provision is 300 penalty units or $33,000.00. Although the respondent argues that this is a case in which the court should use its discretion not to impose a penalty I have come to the view that one should be imposed.
I have been considerably assisted by the provision by both parties of written submissions. In each case I was referred to a number of factors that a court should take into account when coming to a conclusion upon penalty and fully accept the usefulness of such lists exemplified in the Judgment of Tracey J in Kelly v Fitzpatrick (2007) 166 IR 14 applied by Finkelstein J in ANWU v Mechanical Engineering Services Pty Limited (No 2) [2008] FCA 1249 at [10] and by Gordon J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation Ltd [2007] FCA 1607. The matters referred to in Kelly were:
“a.The nature and extent of the conduct which led to the breaches.
b.The circumstances in which that conduct took place.
c.The nature and extent of any loss or damage sustained as a result of the breaches.
d. Whether there had been similar previous conduct by the respondent.
e.Whether the breaches were properly distinct or arose out of the one course of conduct.
f. The size of the business enterprise involved.
g. Whether or not the breaches were deliberate.
h. Whether senior management was involved in the breaches.
i. Whether the party committing the breach had exhibited contrition.
j. Whether the party committing the breach had taken corrective action.
k. Whether the party committing the breach had cooperated with the enforcement authorities.
l. The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and
m. The need for specific and general deterrence.”
But I am also sensible of the comments made by Buchanan J in Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8, helpfully extracted by the respondents, that:
“Check lists of this kind can be useful providing they do not become transformed into a rigid catalogue of matters for attention. At the end of the day the task of the Court is to fix a penalty which pays appropriate regard to the circumstances in which the contraventions have occurred and the need to sustain public confidence in the statutory regime which imposes the obligations.”
That view is affirmed by Branson and Lander JJ in Plancor v LHMU (2008) 177 IR 243 at [58].
Clause 15(1) of the Agreement sets out the University’s commitments to its employees in regard to the development of their careers:
“ (1) The University is committed to providing all employees with:
a.the opportunity to be involved in the planning of their work and to develop personal skills that complement their work unit’s goals.
b.the opportunity to access a personal career development plan that will lead to identifiable career opportunities.
c.equity of access to training and development opportunities. “
Although the University argued that the method by which it was to provide the opportunities referred to in this sub clause did not amount to a binding obligation, it was never suggested that Clause 15 was a matter of no importance. There is some force in the argument put by the applicant that:
“Absent being advised of the availability of a position for career progression, by way of the advertising of the same on the University website, the opportunity to have career progression [as offered] by the Respondent in the agreement is a hollow one.”
The respondent argues the breach occurred in circumstances where the temporary appointment of an existing member of the academic staff and the permanent employment of a Dr Fernando only happened after the head of school had considered the suitability of other technical staff to fill the previous director’s role. Whilst I was satisfied that there had been some consideration on these lines it was not based upon the type of information that a candidate might have provided in an application. Whilst this is not one of those cases where the applicant has identified a clearly suitable candidate who was unable to make an application I do not think that the court should assume that none might have come forward had the obligation been complied with. The University submits that the breach was an isolated omission that was readily distinguishable from more typical breaches reviewed by the court. It is said that it was not part of a pattern of instrument breaches or an ongoing disregard for obligations. Certainly there is no evidence that this breach was part of a pattern but I was disturbed by the fact that the University having entered into the obligation argued before the court that it was not binding and could, effectively, be ignored at the whim of the employer. For the reasons expressed above I cannot agree with the respondent’s submission that advertisement of the vacancy would have served no practical purpose in respect of immediately filling the available position by an appropriately qualified applicant. This is just unknown when no-one from the University was allowed to apply. In its submissions the respondent argues that the advertisement would not have furthered the overall purpose of the relevant part of the agreement in respect of providing career development as the circumstances called for the immediate placement of an applicant with the required skillset without initial training. I think that this submission conflates the failure to promote an existing staff member into an acting position with the failure to advertise for the permanent position. It is only the latter which is the subject of a penalty. It seems to me that any person coming into the position would require an initial introduction to the ways in which this particular university utilised technical officers. There is no evidence that technical officers were confined to the engineering department and so a person who was effectively a manager of technical officers could possibly have come from another one.
I note that there is no evidence of any loss or damage sustained by any particular person but I am satisfied that the breach constituted a loss of opportunity for potential applicants. I accept that there has been no evidence of similar previous conduct from the respondent and that the breach was an isolated incident. I note that the university is an employer of considerable size. It cannot be said that the breach was inadvertent. The conduct of the University was that of a Head of School and a Dean of Faculty. These are persons who should be aware of the obligations in the collective agreement and whose responsibility it is to ensure that those obligations are complied with. The evidence indicates that Professor Uy wished to exclude members of the technical staff from the acting position and wished to employ an academic. Thereafter, he and Professor Hesketh took all necessary steps to ensure the appointment of Dr Fernando by invitation so that no advertising of the position needed to occur.
The Court accepts that it is difficult for a party who argues that it is not bound by a particular obligation to express contrition for the failure to be so bound. In this case the respondent has said that:
“With the Court having found that the advertising of vacancies is an enforceable obligation that goes beyond a statement of commitment to an approach to career planning and development it acknowledges with regret and contrition its failure to meets it obligation under the agreement.”
This is said in a statement to the court. What does not appear to have occurred is the publication of any similar statement to the staff as a whole. It was pointed out that there was a meeting between Professor Hesketh and the staff after the concerns about the selection process were expressed in the form of a dispute. It was suggested that at such a meeting and in emails surrounding it Professor Hesketh acknowledged the failure to comply but in the principal proceedings this acknowledgment was resiled from. I cannot be entirely satisfied that the University has exhibited a spirit of contrition commensurate with the offence.
The respondent submits that it has taken corrective action and refers to meetings between Professor Hesketh with members of the technical department and representatives of their Union to discuss their concerns. Professor Hesketh invited expressions of interest from anyone wishing to work with herself and the Head of School or Acting Head of School and Technical Manager to undertake a needs assessment and analysis of technical support requirements for the University and how best to meet those needs in a financially sustainable manner. I accept that those go some way towards meeting the objects of Clause 15 but there was no commitment to ensuring that all future posts be advertised as required.
There are a substantial number of universities within Australia and a substantial number of those universities have collective agreements with their staff. These collective agreements are bargained for by sophisticated representatives of both employer and employees. It seems to be safe to assume that the employers believe that the obligations entered into by their employees will be honoured and vice versa. There is therefore a public interest in ensuring that those obligations are enforced and that both parties are deterred from breaching the agreements. It is argued for the respondent that the cost in both time and money of these proceedings is sufficient by way of specific deterrence so that this should not constitute part of the penalty. I think that those costs should be borne in mind but they do not affect the general deterrent aspect. As in all deterrent punishments from capital punishment to a fine it is one person who pays so that others should not offend.
It should be clear from what I have said above that I do not regard the University’s conduct as some minor infringement which can be assuaged by a small fine. On the other hand it cannot be said that this is a breach at the most serious end of the spectrum. The penalty that should be imposed must reflect the views of the court as to the seriousness of the breach but should take into account those ameliorating factors which have been discussed. I am of the view that an appropriate penalty in this particular case is 91 penalty units or $10,010.00. The applicant seeks that, pursuant to s.841 of the Act, the court order that the penalty be paid to it although it should be noted that any penalty should not be imposed merely for the purposes of reimbursing an applicant for its costs; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australiav Telstra Corporation Limited [2007] FCA 1607 at [19]. I trust it is clear from these reasons that the basis and scope of the penalty is in no way connected to the applicant’s costs of the proceedings and in those circumstances I make an order that the penalty shall be paid to the applicant within twenty-eight days.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 12 April 2010
CORRECTIONS
Order 1 – delete “$10,000.00” insert “$10,010.00”
Paragraph 12 line 8 – delete “100 penalty units” insert “91 penalty units”
Paragraph 12 line 9 – delete “$10,000.00” insert “$10,010.00”
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