CPSU v University of Western Sydney (No.2)
[2009] FMCA 1207
•16 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CPSU v UNIVERSITY OF WESTERN SYDNEY (No.2) | [2009] FMCA 1207 |
| INDUSTRIAL LAW – Registered organisation – collective agreement – whether University breached clauses of the agreement relating to career planning and development – where University did not advertise for position internally and did not give staff the opportunity to “act-up” in the position – whether clauses relied upon were mandatory or permissive – where certain terms not capable of assessment until expiration of agreement – whether general statements of intention towards “all” employees capable of being the subject of enforcement action in individual cases. |
Workplace Relations Act 1996 (Cth), ss.6, 718, 719(6)
Fair Work (Transitional and Consequential Amendments) Act 2009 (Cth)
| Kucks v CSR Ltd (1996) 66 IR 182 Paterson, Robertson and Heffey, Principles of Contract Law, (2nd ed, 2005) |
| Applicant: | COMMUNITY AND PUBLIC SECTOR UNION (SPSF GROUP) NEW SOUTH WALES BRANCH |
| Respondent: | UNIVERSITY OF WESTERN SYDNEY |
| File Number: | SYG 1561 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 16 November 2009 |
| Date of Last Submission: | 16 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Shoebridge |
| Solicitors for the Applicant: | W G McNally Jones Staff |
| Counsel for the Respondent: | Mr P J Newall |
| Solicitors for the Respondent: | Truman Hoyle Lawyers |
ORDERS
Matter to be adjourned to a date agreed with my associate for the hearing of penalty submissions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1561 of 2009
| COMMUNITY AND PUBLIC SECTOR UNION (SPSF GROUP) NEW SOUTH WALES BRANCH |
Applicant
And
| UNIVERSITY OF WESTERN SYDNEY |
Respondent
REASONS FOR JUDGMENT
Are terms, which are found in clause 15 of the University of Western Sydney General Staff Enterprise Agreement 2006 – 2008 under the heading “Career Planning and Development”, contractual requirements which, if broken, can be the subject of enforcement proceedings under the Workplace Relations Act 1966 (Cth) (the “WRA”) or are they earnests of the University’s intentions towards its staff that have no contractual force? This is the question that must be answered when considering the application by the CPSU for declarations that the University was bound by various subsections of clause 15, that it breached them in the manner in which it employed a Dr Mithra Fernando as Technical Manager for the School of Engineering and for penalties to be imposed by reason of those breaches. The Union also sought an order pursuant to s.719(6) of the WRA that the University pay to a particular employee an amount she claims she was not paid because she was not provided with a higher duties position to which she believes she was entitled. This latter claim was not pursued.
Although there was no agreed statement of facts, a number of matters of importance to the proceedings do not appear to be controversial. These are that the applicant is a registered organisation of employees under the Act. The respondent is an employer within the meaning of s.6 of the WRA as amended. By reason of clause 11 to Part 3 of Schedule 2 of the Fair Work (Transitional and Consequential Amendments) Act 2009 (Cth), the WRA continues to apply to the conduct the subject of these proceedings. The CPSU has standing to bring these proceedings pursuant to s.718 of the WRA. At all material times the respondent has been bound by the University of Western Sydney General Staff Enterprise Agreement 2006 – 2008 (the “Agreement”) which is a registered collective agreement pursuant to the provisions of the WRA. The University employed a member or members of the applicant union who were covered by the Agreement. The Union was a party to the Agreement.
History
There is a school of engineering at the University of Western Sydney. The Head of the School is Professor Brian Uy. He joined the University in this role on 29 January 2007. The School of Engineering is supported by a technical support staff comprising a 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 Technical 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 to the school’s analytical laboratories.
On or around 29 January 2008 Mr Mark Noonan, who had been the Technical Manager for the school since 30 April 2007, advised Professor Uy that he was resigning from the position effective from 8 February 2008 for family reasons. The autumn 2008 semester was due to commence on 25 February 2008. Professor Uy believed that it was important to be as advanced as possible in filling the position by that time. The University admits that the temporary and permanent filling of the position was governed by clause 15 of the Agreement. Professor Uy consulted with the Executive Dean of the College of Health and Science, Professor Hesketh. They discussed finding a replacement for Mr Noonan. I am satisfied from the evidence of Professor Uy and Professor Hesketh that Professor Uy was of the view that none of the remaining technical staff were appropriate to fill
Mr Noonan’s position. Professor Uy had been on the appointment committee which appointed Mr Noonan. He noted that there was only one internal applicant for the position in 2007 and that person was not offered the position. He gave evidence that based upon his assessment of the staff’s work ethic and ability to bring projects to completion in the year in which he had been Head of School, he didn’t think any of the existing staff had the capacity to take on the position. Professor Uy suggested to Professor Hesketh that a senior lecturer at the school, a
Mr Alexander, take on the role of interim acting Technical Manager in a one day per week capacity pending a permanent appointment to the position. Professor Hesketh agreed and Mr Alexander was appointed commencing on 25 February 2008. This solved the immediate problem of having someone in the position at the commencement of the semester and the School began to search for a permanent candidate. Professor Hesketh suggested to Professor Uy that he consider a
Dr Mithra Fernando who was at the time the Technical Manager of Science and Technology Workshop Services at the University of Sydney. He was known to Professor Hesketh and presumably well thought of by her. Professor Hesketh suggested to Professor Uy that if he believed that Dr Fernando was capable of undertaking the position and Dr Fernando was happy to move, she would support his appointment under the University’s appointment by invitation policy. After meeting with Dr Fernando on 18 March 2008, Professor Uy decided that Dr Fernando should be engaged and his appointment was approved by the university authorities. On 31 March 2008 Dr Fernando was given a written offer of employment and, on 9 April 2008, he accepted that offer to commence employment on 5 May 2008.
There was no internal advertising of the permanent position and no current member of the technical staff was offered the opportunity to act in the position pending the appointment of Dr Fernando. I am satisfied that when Professor Uy was informed that Mr Noonan was leaving the position he was aware that it would take in excess of one month before a replacement could commence employment. It is against this background that I should consider the provisions of clause 15 of the Agreement and the allegations of breach.
The Agreement
Clause 2 of the Agreement is headed “Application of the Agreement”. It contains the following relevant subclauses:
“(1)The Agreement is pursuant to Section 328 of the Workplace Relations Act 1996 as amended. It rescinds and replaces the University of Western Sydney General Staff Enterprise Agreement 2005 – 2008.
(2)The Agreement applies to and is binding according to its terms on all parties to the Agreement with the exception that the following clauses do not apply to Senior employees as defined in Clause 4 Definitions of the Agreement [it is not submitted that the position of technical manager is a senior employee]:
…
(3)The University may enter into Australian Workplace Agreements (AWAs) with its employees. Those AWAs may either operate to the exclusion of this Agreement or prevail over the terms of the Agreement to the extent of any inconsistency, as specified in each AWA. When offering an AWA the University will offer a genuine and informed choice between the AWA and the Agreement and provide access to this Agreement.
(4)When offering an AWA, the University will advise any employee or prospective employee of their rights to appoint a bargaining agent and will allow the employee up to 14 days from receipt of the offer to consider the AWA as required.
(5)The Agreement operates to the exclusion of the provisions of all other awards and industrial agreements.”
Clause 15 is in the following form:
“15. CAREER PLANNING AND DEVELOPMENT
(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.
(2)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
b.advertising vacancies internally in the first instance where there is a reasonable pool of internal applicants
c.broadcasting of specified positions
d.appointing employees to temporarily perform duties of a higher classified position.
(3)Career and development opportunities for an individual employee should initially be identified in discussion with their supervisor. These may include:
a.on-the-job coaching
b.internal temporary transfers
c.attendance at training courses/programs or conferences
d.networking and mentor relationships
e.temporarily performing duties of a higher classified position
f. job rotation, secondments and employee exchange programs
g.research or project work
h.support for ongoing accredited education
i.involvement in internal or external committees or University governance.
(4)The University will make funding available to support agreed career development plans and the University will report annually to employees on the distribution of career development opportunities and funds.
…
Temporary Appointment of Employees to a Higher Classified Position
(10)The University will use temporary appointments to perform the duties of higher classified positions as opportunities for staff development.
(11)Higher duties opportunities will be afforded to as many interested employees as possible, with suitably qualified employees who have not previously performed the duties of a higher classified position being given the opportunity to do so.
(12)Expressions of interest will be used as the basis for filling vacancies of more than two weeks where the University has at least one month’s notice of the vacancy.
(13)Subject to the operational requirements of the work unit, a vacancy which is expected to extend beyond 3 months will be filled by as many suitably qualified employees as possible, based on expressions of interest.”
Alleged breaches
In the applicant’s statement of claim, eight individual breaches are alleged in paragraph eleven. In paragraph twelve there is an allegation concerning Ms Armstrong which at paragraph thirteen becomes a claim for difference in pay had Ms Armstrong been provided with temporary higher duties. That latter claim was not proceeded with. It is necessary to set out the alleged breaches in full as I accept the argument of the respondent that there is duplication in some of them.
“Breach 1
The Respondent breached clause 15(2)(a) of the Agreement by failing to advertise the position of Technical Manager for the School of Engineering on the Respondent’s website.
Breach 2
The Respondent breached clause 15(2)(d) of the Agreement by failing to appoint employees to temporarily perform duties of a higher classified position as an opportunity for staff development when the position of Technical Manager for the School of Engineering was temporarily available.
Breach 3
The Respondent breached clause 15(2)(d) of the Agreement by appointing Dr Mithra Fernando as Technical Manager for the School of Engineering without first using a temporary appointment or appointments to perform the position as higher duties as an opportunity for staff development.
Breach 4
The Respondent breached clause 15(10) of the Agreement by failing to use a temporary appointment or appointments to perform higher duties as Technical Manager for the School of Engineering as an opportunity for staff development.
Breach 5
The Respondent breached clause 15(10) of the Agreement by appointing Dr Mithra Fernando as Technical Manager for the School of Engineering without first using a temporary appointment or appointments to perform the position as higher duties as an opportunity for staff development.
Breach 6
The Respondent breached clause 15(11) of the Agreement by failing to afford higher duties opportunities to as many interested employees as possible, with suitably qualified employees who have not previously performed the duties of a higher classified position, as a temporary appointment or appointments to perform the duties of Technical Manager for the School of Engineering.
Breach 7
The Respondent breached clause 15(12) of the Agreement by not seeking expressions of interest as the basis for filling the position of Technical Manager for the School of Engineering the Respondent having at least one month’s notice of the vacancy.
Breach 8
The Respondent breached clause 15(12) of the Agreement by appointing Dr Mithra Fernando as Technical Manager for the School of Engineering without first seeking expressions of interest as the basis for filling the position of Technical Manager for the School of Engineering the Respondent having at least one month’s notice of the vacancy.
12.Ms. Sharon Armstrong, being a member of the Applicant and employee of the Respondent, was suitably qualified and willing to perform higher duties in the position of Technical Manager for the School of Engineering on a temporary basis pursuant to the provisions of clause 15 of the Agreement. Despite Ms. Armstrong’s suitability for the temporary appointment the Respondent failed to provide her with or consider her for the temporary higher duties position in accordance with its obligations under clause 15 of the Agreement.”
In its outline of submissions provided to the Court the applicant brackets together breaches 2 and 3, 4 and 5 and 7 and 8. It seems to me that in each case the latter alleged breach is only distinguished from the former by the reference to Dr Fernando. It seems to me that the latter breaches do no more than provide further particulars of the former. I believe that each of those latter breaches is bad for duplicity and strike out breaches 3, 5 and 8 from consideration. I shall deal with each of the other breaches in turn. But first I shall consider the respondent’s argument that the application is fundamentally misconceived because the provisions which are alleged to have been breached are not provisions that are capable of breach. The respondent argues that the clauses in respect of which breaches are alleged are not mandatory provisions of the Agreement but are ones that are expressed as no more than a statement of commitment to an approach. This would prevent any finding of a breach of them to be made. The clauses are permissive only.
The first point to be made is that the Agreement must be looked at as a whole. It is an agreement regulating the conditions of employment of a large number of junior to middle ranking employees of the University. It binds both parties so that each is required to observe its conditions. The part of the Agreement in which clause 15 is found is headed “Conditions of Employment”. The respondent asks the Court to note the difference between some clauses which it describes as mandatory because they use the word “will” and others which are permissive because they use the word “may”. But some of the thus defined mandatory provisions apply over the totality of the workforce covered and the whole temporal period of the Agreement. For example, clause 13(2) which states that:
“The University will work actively towards eliminating workplace bullying and will develop policy in consultation with employees.” [emphasis added]
This compares to clause 16(24):
“A fixed term employee who is not employed… will be entitled to a severance payment calculated on the basis of the payments scheduled below…” [emphasis added]
In the former case the Court could not determine whether a breach had occurred until after the Agreement had expired and would have to look over all the activity of the University in relation to workplace bullying before coming to a conclusion that the University had not worked actively towards eliminating it or had not developed policy in consultation with the employees. In the latter example there is one employee whose situation can be looked at directly and in respect of whom a breach can easily be ascertained once the factual circumstances surrounding that employee’s severance are known. If one looks at clause 17(1):
“The University will provide any uniform or protective clothing the University requires an employee to wear…” [emphasis added]
That can also be understood as an obligation to individual employees as opposed to an obligation to the employees as a whole. But I do not think that, in the industrial landscape, just because it is impossible to ascertain whether a clause in the Agreement has or has not been complied with by the University until the expiration of the Agreement a breach of such a clause is not capable of being the subject of an application for a penalty. The purpose of the relevant legislation was to ensure that, if parties entered into agreements, those agreements were honoured. Failure to honour the agreement would lead to an application for a penalty. The principal objects of the Act emphasise the importance of ensuring compliance with industrial agreements and the enforcement of the rights and obligations of employers and employees; s.3(f) of the Act. Thus, whilst I accept the distinction which the respondent draws between the use of the mandatory “will” and the permissive “may”, I would tend to the view that, where the word “will” is used, a binding obligation should generally arise. To this extent clause 22(1):
“During the term of the Agreement the University will increase the employment of Indigenous Australians and increase the development opportunities for Indigenous Australians employed by the University as part of its commitment to reconciliation with Indigenous Australians.”
is a provision capable of enforcement. The Union as party to the Agreement could, after a reasonable interval has passed, argue before this Court that there had been no increase in the employment of Indigenous Australians and that the University should suffer a penalty for this failure to comply with the term that it had agreed to. There might be arguments that this should be looked at only at the end of the Agreement but that is not an argument against the validity and enforceability of the clause itself.
However, not all the clauses of the Agreement are as open and shut as the ones which I have set out and clause 15 is a case in point. In this clause it may be necessary to consider whether the mandatory “will” means “in every case” or applies more generally throughout the University as a whole so that an obligation might be complied with if it is carried out in some circumstances but not in others. In looking at the Agreement on this basis I believe that the Court is acting in accordance with the legal principles adumbrated by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at [184]:
“Legal Principles
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 relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
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.”
Clause 15 of the Agreement commences with a statement of the University’s commitment. It is directed to all employees. It is a statement of intention. But that does not mean that it is non-binding. The use of the word “all” would seem to me to allow each employee the opportunities offered. In Re Wellsted’s Will Trusts, Wellsted v Hanson [1949] Ch 296 Lord Greene MR described the word “all” as “extremely recalcitrant”:
“…if the meaning is to be cut down so as to exclude certain things which might otherwise be included by it, that must be done in the clearest possible language. The proper way of construing a word like “all”, is to say that it means “all”, and does not mean “some”, unless one finds a compelling context which forces one to place some limitation on the word.” [306]
There is no reason to limit the meaning of the word in the present context. Thus, if a particular employee was refused the opportunity to access a personal career development plan, that employee may well have an arguable case that the University has breached its obligations under the Agreement. However, a discussion of clause 15(1) is of little assistance because the first breach to be dealt with is of 15(2)(a). The applicant submits, clearly correctly, that clause 15(2) must be read as examples of the manner in which the commitment referred to in clause 15(1) could be carried out. If it is to have contractual effect then it must comply with the basic requirements of a contractual provision. These are that the agreement must by certain and complete. For an agreement to be sufficiently complete, the parties must at least reach agreement on all terms that they intended to fix by agreement, rather than have someone else set for them. In order for the agreed terms to be sufficiently certain and clear the parties must be able to understand their rights and obligations and have the Courts enforce them. Furthermore, the promises made by the parties must not be illusory:
“A promise made by a party is illusory if the party is given an unfettered discretion as to performance of a promise. If a party has an unfettered choice as to whether to perform a promise, then that promise cannot be said to give rise to any contractual obligation.”
See Paterson, Robertson and Heffey, Principles of Contract Law, (2nd ed, 2005), para.6.05.
Breach 1
My reading of clause 15(2)(a) is that the University is here indicating one way in which it will carry out the promise that it has made to provide employees with opportunities for career progression. The promise is not limited in any way; it refers to all ongoing and fixed vacancies. The university website is a readily ascertainable medium. Clause 15(2)(a) is a clear contractual term. It is a promise to do a particular, ascertainable and easily applied action. It is complete in that nothing else is required of the other contracting party, there is no discretion involved. The University admits that no advertising on the website was done in this case even though the requirement was for all vacancies to have been placed there. The Agreement does not allow the University to pick and choose which of the advertisements to place. I am satisfied that in these circumstances a breach of the Agreement has occurred.
Breach 2
I place this breach in a different category to the first. That is because of the wording of the clause. It does not refer to all employees and this allows the University some discretion. It is one of those clauses, the observance of which can only be assessed by a consideration of the University’s practice as a whole and only after a substantial temporal period of the contract has expired. There may well be a breach if, after say two years, no employees have been appointed to temporarily perform duties of a higher classified position. There may be an argument that the University has not honoured its promise if only a few employees have been appointed. But the clause would not allow for the degree of particularity necessary to find a breach whenever an employee has not been appointed. This is what is requested here by the applicant. The claim in respect of this breach fails.
Breach 4
Although clause 15(10) uses the mandatory word will it does not qualify that by the use of the word all. To my mind clause 15(10), whilst being an example of the manner in which clause 15(1) will be carried out is, similarly to breach 2, not the subject of enforcement action in individual cases. It is a promise that the University can only be held to in the general, not the specific.
Breach 6
The applicant concedes that any obligation contained in clause 15(11) has to be read down by the limitation of the obligation to suitably qualified applicants. It also accepts that the opportunities are only required to be given to interested employees. But it says that the obligation cannot be sidestepped by the device of failing to inform employees of the possibility of applying for the position and says that Ms Armstrong was a suitable and interested employee. Ms Armstrong filed an affidavit and was cross-examined. She agreed that she only worked two and a half days, Monday, Tuesday and one half Wednesday. When it was suggested to her that this made it impossible for her to have attended the OHS meetings on Thursdays, which were a requirement of the acting position, she said she could have attended them if she had been asked. She was not cross-examined on those parts of her affidavit in which she suggested that even though she was only a level 6 technician, she could have acted temporarily in the level 9 role and thus enhanced her career planning and development opportunities. Professor Uy in his evidence indicated that he did not believe that any of the technical staff were capable of carrying out the temporary duties which is why he assigned the position to an academic.
If clause 15(11) is considered in the context of the whole of clause 15 and in particular clauses 15(10) to (13) which are bracketed together under a heading “Temporary Appointment of Employees to a Higher Classified Position” there would appear to be a promise from the University to act in a particular way in respect of all cases where there is a genuine higher duties opportunity. The University is protected from being required to utilise unwilling or unsuitable staff by the terms of the sub-clause and has the final discretion. Whilst the action of Professor Uy in speedily appointing Mr Alexander appears to have cut out the opportunities of other technical staff, it was only done after a consideration of their suitability by Professor Uy; see [4] above. There was no serious challenge to this evidence and I note that in any event the respondent in its defence argued that Mr Alexander’s position as a senior lecturer was a lower classified position than the position of technical manager for the School of Engineering and therefore his temporary employment was made in accordance with 15(2)(d) and 15(11). Paragraph 5 of the respondent’s defence was not the subject of a reply, although I note that it does not specifically refer to clause 15(11). I do not think that clause 15(11) has been breached in these circumstances.
Breach 7
There is a dispute between the parties as to whether the University received more than one month’s notice of the vacancies. Certainly Mr Noonan did not give the University one month’s notice of him leaving. The applicant union argues that what should be looked at is the amount of time that the position might be vacant and that the evidence is that Professor Uy was well aware, from the moment that he was informed by Mr Noonan that he was leaving, that it would take longer than one month to replace him. That may be the case. I am happy to accept that this was “a vacancy of more than two weeks” but I think that the words of the clause are perfectly clear in their requirement for one month’s notice. This is something that was agreed between the parties at the negotiation stage. It may well be that the Union wanted some other arrangement which would have been more akin to the situation that occurred here but that is not what it achieved. There may well have been very good reasons why the University needed one month’s notice of the vacancy before asking for expressions of interest. Presumably that was so that the expressions could be considered and the applicant who most closely fitted the University’s commitment as expressed in clause 15 chosen. I am of the view that the one month’s notice provision is a contractual requirement which was not achieved in this case. I do not believe that the University was in breach of this clause.
Conclusion
I have concluded that the only breach of the Agreement which would subject the University to a penalty is breach 1. During the course of the hearing it was agreed that, should I find that any breaches had occurred, the matter would be adjourned so that the parties could make submissions in relation to penalty. The applicant sought declarations and orders. It is not appropriate to make a declaration where a substantive order based upon the breach to be declared is also made; Commonwealth of Australia v Evans [2004] FCA 654. As I have not yet decided whether any penalty should be imposed or what orders should be made in respect of that penalty, I will make no orders at this stage but will adjourn the matter to a date to be agreed with my associate for the hearing of penalty submissions.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 December 2009