D'Arcy v Australian National University
[2024] FedCFamC2G 609
•10 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
D’Arcy v Australian National University [2024] FedCFamC2G 609
File number(s): CAG 33 of 2024 Judgment of: JUDGE W J NEVILLE Date of judgment: 10 July 2024 Catchwords: PRACTICE & PROCEDURE – interlocutory injunction sought to prevent “termination” of full-time Professor in circumstances where he has been employed by the Respondent University since 2006 sometimes on a “continuing contract’ and at other times on a “fixed term contract” – Applicant previously sought to have his latest contract “converted” to a continuing position under the latest Enterprise Agreement – current contract ended on 30th June 2024 – “serious question” to be tried or prima facie case being the construction and operation of specific terms of the Enterprise Agreement that on their face provide for conversion of fixed-term contracts and which may also provide for existence of certain inchoate contractual rights – considerations regarding balance of convenience – Respondent resisted any relief especially since the interlocutory injunction sought by the Applicant would actually operate as a mandatory injunction – interim relief granted – parties directed to attend mediation and if not resolved the final hearing be expedited. Legislation: Fair Work Act 2009 (Cth) s.50, 545
The Australian National University Enterprise Agreement 2023-2026
Cases cited: American Cynamid Co v Ethicon [1975] AC 396
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130
Generic Health Pty Ltd v Otsuka Pharmaceutical Co Ltd (2013) 296 ALR 50; (2013) 100 IPR 240
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Redland Bricks Ltd v Morris [1970] AC 652
Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238
Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (2009) 81 IPR 339
Workpac Pty Ltd v Rossato (2021) 271 CLR 456
Workpac Pty Ltd v Skene (2018) 264 FCR 536
World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181
Division: Division 2 General Federal Law Number of paragraphs: 119 Date of last submission/s: 27 June 2024 Date of hearing: 28 June 2024 Counsel for the Applicant Mr A Anforth Solicitor for the Applicant Lander & Co Counsel for the Respondent Ms P Bindon Solicitor for the Respondent Ashurst ORDERS
CAG 33 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PAUL D’ARCY
ApplicantAND: AUSTRALIAN NATIONAL UNIVERSITY
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
10 JULY 2024
THE COURT ORDERS THAT:
1.Until further Order, or agreement in writing between the parties, both parties are restrained from taking any steps to progress or to finalise the employment of the Applicant with the Respondent pursuant to his fixed-term contract of employment which purportedly ended on 30th June 2024.
2.Within 21 days of the date of these Orders, the Respondent is to file a Response (or Defence) to the Application and Pleadings, filed 11th June 2024;
3.The parties are to attend mediation as a matter of urgency, on dates and times to be advised.
AND IT IS NOTED THAT the Court requests the Sydney Registry of the Federal Court of Australia to arrange a mediation between the parties as soon as possible.
4.In the event that the matter is not resolved at mediation, the matter be listed for Final Hearing on dates and times to be advised on an expedited basis.
AND IT IS NOTED THAT the Case Management of the proceeding is likely to be undertaken by his Honour, Judge Cameron, in Sydney.
AND THE COURT NOTES THAT:
A.At the hearing on 28th June 2024, Counsel for the Applicant gave “the usual” undertaking as to damages on behalf of the Applicant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
The Applicant is a senior academic at the Respondent University. The Respondent says that the Applicant’s contract of employment ends [or ended] on 30th June 2024. The Applicant denies this and contends, among other things, that he has exercised certain rights under The Australian National University Enterprise Agreement 2023-2026 (“the EA”) (notably Clauses 13.12 and 13.15, but other clauses too), which he says have changed or converted his fixed term contract of employment to a “continuing or continuing (contingent funded) appointment.” The Applicant seeks, among other things, declaratory relief to confirm the operation of the clauses referred to from the EA. The Respondent disputes that the clauses in the EA operate as asserted. The Respondent also says that there are significant funding constraints that militate against the arguments advanced by the Applicant.
In addition to the declaratory relief sought, the Applicant also seeks urgent interlocutory injunctive relief. The Respondent resists all of the relief sought by the Applicant and says, among other things, that the interlocutory injunction is, in fact, a mandatory injunction. In the circumstances, the Respondent says that a mandatory injunction is inappropriate here, not least because (according to authority) such relief would force the University to employ the Applicant beyond the term of his contract, which (because of flow-on budgetary issues) would also impact upon the employment of other staff of the Department of Pacific Affairs (“DPA”).
From this very brief overview and almost scant summary of the issues in dispute – factual and remedial – it seems to be almost self-evident that, according to the regularly cited tests from the regularly cited authorities (American Cynamid Co v Ethicon; ABC v O’Neill – discussed later in these reasons) there is a “serious question(s) to be tried”.[1] This is to say that there are serious (and obviously disputed) questions of fact and law regarding (a) the terms and duration of the Applicant’s contract of employment, (b) no less serious issues for the Respondent in terms of the scope of the Applicant’s contract of employment, and if it is extended beyond 30th June 2024, its possible impact upon other members of staff, and (c) the construction and operation of the EA, notably regarding the purported election by the Applicant to have his fixed-term contract converted into a continuing contract of employment, which the Applicant says he elected to do in accordance with the EA. The Respondent disputes the operation of those terms in the way for which the Applicant contends.
[1] American Cynamid Co v Ethicon [1975] AC 396 (“American Cynamid”); Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (“ABC v O’Neill”). The other, if not more customary, description of the relevant test is whether the Applicant has established a prima facie case for the grant of interlocutory relief. See Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, discussed in ABC v O’Neill at CLR [19] by Gleeson CJ and Crennan J, and at [65] – [72] by Gummow and Hayne JJ; and more recently by the Full Federal Court in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [55] – [59] (“Samsung Electronics v Apple”). For an early discussion of the differences, such as there were, between the tests in American Cynamid and in Beecham Group, see the discussion in the Full Court in World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181. At 186 – 188, Bowen CJ noted that the Judge at first instance had erred in making final findings of fact instead of [simply making] findings of fact sufficient to establish a prima facie case or “the possibility of success at a final hearing” and granting interlocutory relief if on the balance of convenience, it was appropriate to do so. It is sufficient to note summarily that the decision in World Series Cricket was mentioned favourably in despatches in the High Court in Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [105] and [110].
In addition to the seriousness of the issues presented to the Court, issues of “time” are also self-evidently in play, which give rise to considerations of appropriate relief (if any, or what form of relief), as well as the utility of it. All of these considerations flow into the Court’s determination of relevant issues (accepting the difficulty in doing so in interlocutory proceedings) and the exercise of discretion in the light of principles now of long-standing regarding interlocutory injunctions. More summarily stated, issues relating to “balance of convenience” are very much to the fore.
The Applicant’s Pleadings
On 11th June 2024, the Applicant filed a Form 3, Application – Fair Work Division, together with an Application – Alleged unlawful termination of employment (“the unlawful termination Application”). Attached to this latter Application there is annexed a document entitled “Pleadings and Particulars.” Helpfully and properly, among other things, it sets out the relevant clauses of the EA upon which the Applicant relies for the declaratory and other relief he seeks. The Pleadings and Particulars of the Applicant are as follows:
1.The Applicant commenced employment with the Respondent in March 2006 and remains so employed.
2.At the time of the commencement of his employment, the Australian National Enterprise Agreement 2005-2009 was in force and applied to the Applicant, pursuant to which he was a 'continuing employee" at level D(2).
3.On 23 December 2010 the Applicant was appointed to a 6 year 'fixed term' position at the same level. At this time the Australian National University Enterprise Agreement 2010-2012 applied to him.
4.On 23 November 2016 the Respondent varied the Applicant's appointment effective 1 January 2017 by transferring him from the expiring 6 year fixed term appointment of Associate Professor in the Department of Pacific and Asian History (D2), to a four year full time fixed term Associate Professor in the Department of Pacific Affairs (D2) ending on 31 December 2020. At this time the Australian National University Enterprise Agreement 2013-16 Enterprise Agreement applied to him.
5.On 30 November 2020 the Respondent extended the termination of the fixed term from 31 December 2020 to 30 June 2021 after which his appointment was to terminate. This was still wholly within the period of the Australian National University Enterprise Agreement 2017-2021 Enterprise Agreement which applied to the Applicant.
6.On 20 May 2021 the ANU extended the Applicant's fixed term to 30 June 2022, which is again wholly within the Australian National University Enterprise Agreement 2017-2021 Enterprise Agreement.
7.On 15 June 2022 the ANU extended the Applicant's fixed term to 30 June 2024. The Australian National University Enterprise Agreement 2017-21 EA still applied at the start of the extended fixed term but finished on 5 December 2023, after which the Australian National University Enterprise Agreement 2023-2026 EA came into effect.
8.On 18 December 2023 an offer was made by the Respondent to the Applicant for a fixed term promotion to a full Professor at the grade E level. It was withdrawn before the Applicant could accept it. At this time Australian National University Enterprise Agreement 2023-2026 was in force and applied to the Applicant.
Particulars
The promotion to Professor was notified by the Vice Chancellor's Office on 20 November 2023, with that promotion to take effect from 1 January 2024.
9.The offer of 18 December 2023 was repeated in a letter of 19 February 2024.
10.Clauses 13.12 and 13.15 of the Australian National University Enterprise Agreement 2023-2026 deals with the Applicant's right to convert to a 'continuing or continuing (contingent funded) appointment:
13.12. A fixed term staff member with five or more years of continuous service in the same or similar position, with the exception of employment under an employment scheme (clause 13.3) or a tenure track appointment (clause 13.4) will be entitled to conversion to a continuing or continuing (contingent funded) appointment, subject to:
(a) the staff member is not currently subject to a Performance Improvement Plan in accordance with clause 72, and
(b) the staff member initially being appointed after a merit-based selection process to the position.
13.13. The conversion to a continuing (contingent funded) appointment as outlined in clause 13.12 will be offered where the position is subject to funding from external sources as described in clause 12.1.
13. 14. The University will offer fixed term staff conversion to a continuing or continuing (contingent funded) appointment in line with clause 13.12 from 1 January 2024.
13.15. Ifa fixed term position is detem1ined to be needed on an ongoing basis and the current incumbent has held that position for a period of three or more years, the staff member will be offered the continuing position, subject to:
(a) the staff member not currently subject to a Performance Improvement Plan in accordance with clause 72, and
(b) the staff member initially being appointed after a merit-based selection process to the position.
11.The position offered to the Applicant on 18 December 2023 and 15 February 2024 were not one lawfully made under the Australian National University Enterprise Agreement 2023-2026.
Particulars:
11.1: Since January 2017 the Applicant has been paid by a Department of Foreign Affairs and Trade Grant (the Grant) to the Respondent, with the Respondent to contribute partial funding, such as superannuation;
11.2: The Grant is for a fixed term to continues until 30 June 2026;
11.3: There were other academics funded under this Grant, but none of their tenures were curtailed to terminate on 30 June 2024, as would be expected if the funding of the grant was to cease or be substantially reduced on 30 June 2024;
11.4: The other academics employed on the Grant have tenure to 30 June 2026;
11.4: The proposed cessation of the Applicant's appointment on 30 June 2024 was for the purpose of making way for the appointment of another academic in his place under the same Grant, contrary to clause 13.15; and
11.5: An offer which entails appointment for a fixed term from 19 February2024 to 30 June 2024 with the termination already notified for the later date, irrespective of the status of the Grant funding continuing for a further 2 years, is not by definition a continuing (contingent funded) position. It is merely a short-term extension of the existing fixed term appointment with a small promotion as a 'sweetener' for the surrender of industrial rights.
12.In addition to the right created in clauses 13 .12 and 13 .14, clause 13 .15 creates the further specific right in the Applicant to priority in appointment to a continuing appointment to a fixed term position he has held for three or more years, and hence priority in appointment over the other academic that the Respondent is intending to replace the Applicant with. The Respondents is intending to breach this clause by terminating the Applicant and replacing him on the same ongoing Grant with a different academic.
13.On 1 March 2024 the Applicant exercised his rights under paragraphs 11 and 12 above by electing in writing for appointment:
13.1: as a continuing employee at his substantive grade D2; and
13.2: to the ongoing position he then held and funded by the Grant, which the Respondent was proposing to offer to another academic.
14.By letter of 25 March 2024, the Respondent denied that the Applicant had either right and declined to appoint him on a continuing basis to any position. The Respondent asserted that their offer of 18 December 2023 and repeated on 19 February 2024 was its lawful and proper response to the Applicant's election made on 1 March 2024 notwithstanding that:
14.1: The offer of 18 December 2023 was withdrawn immediately after it was made and within the acceptance period;
14.2: The offer was made under the transitional provisions of the Australian National University Enterprise Agreement 2023-2026, which preserved the operation of the election provisions of the previous Enterprise Agreement, and was not made under clauses 13.12 to 13.15 Australian National University Enterprise Agreement 2023-2026, which are relevantly in distinctly different terms;
14.3: Both the purported offers were made before the Applicant's election of 1 March 2024 and so were not, and could not have been, responsive to that election;
14.4: The Grant is to continue to 30 June 2026.
15.Further correspondence ensued between the parties in an endeavour to resolve the dispute, being a letter from the Applicant of 18 April 2024 and a response from the Respondent of 9 May 2024.
16.In its letter of 9 May 2024, the Respondent further asserted that the offer of the continuing ( contingent funded) position of 18 December 2023 satisfied its obligations under clauses 13.12 to 13.17 of the Australian National University Enterprise Agreement 2023-2026;
Particulars
16. l: The Respondent categorically denied plans to fill the Applicant's existing position with another academic; and
16.2: It did not address the issue of the Grant continuing for a further 2 years to 30 June 2026.
17.The dispute that has arisen between the parties entails issues of fact and law:
17 .1 : The proper construction of clauses 13.12 to 13.15 Australian National University Enterprise Agreement 2023-2026;
17.2: The nature of the right created in the Applicant in clause 13.12 by the inclusion of the words ' will be entitled' ;
17 .3: The nature of the right created in the Applicant in clause 13 .14 by the inclusion of the words 'will offer';
17.4: Whether the Respondent has the right it asserts, to choose for the Applicant under clause 13 .12, whether a continuing or a continuing (contingent funded) position will be offered;
17.5: Whether the offer of 18 December 2023 is valid for any purpose, but if so, then whether it an offer that satisfies the requirements of clause 13.12 and 13 .14 Australian National University Enterprise Agreement 2023-2026;
17.5: Whether, as a question of fact, the Grant under which the Applicant is employed, is not due to expire or be substantially reduced until 30 June 2026;
17.6: Whether as a question of fact, the Respondent had and does still intends, to terminate the Applicant on 30 June 2024 and replace him with another academic on the same Grant;
17.7: Whether the Respondent's refusal to transfer the Applicant to a continuing appointment in his existing position or to another continuing appointment, and to otherwise maintain the termination of his fixed term appointment on 30 June 2024, constitutes a threat of unlawful temination of his employment;
17. 9: Whether the Respondent's offer of a continuing ( contingent funded) position on 18 December 2023, funded by the Grant, but where the position necessarily terminated on 30 June 2024, was made bona fide and whether it is capable of answering the description of an a continuing ( contingent funded) position.
Orders sought:
1.A declaration that the Applicant is entitled to appointment on a continuing basis from 1 March 2024 in his current substantive position funded under the Grant;
2.In either alternative, a declaration that the Applicant's employment is not lawfully terminated on 30 June 2024 and continues until lawfully terminated in accordance with the Australian National University Enterprise Agreement 2023-2026 or other provision of the law;
3.A declaration that the Respondent's purported offer of 18 December 2023 does not constitute an offer for the purposes of either the Australian National University Enterprise Agreement 2023-2026 or for transitional provisions of the Australian National University Enterprise Agreement 2017-2021;
4.Compensation for the stress and distress caused;
5.Costs
Interim order sought:
1.That the Respondent take no action to terminate or otherwise prejudice the Applicant's employment until further order of the court.
Orders sought by the Respondent
The Respondent has yet to file either a Response to either Application, or a Defence to the Applicant’s “Pleadings”. Orders are now made for this to occur.
Factual matrix – A
Central to the current dispute are certain terms, and their application and operation, contained in The Australian National University Enterprise Agreement 2023-2026 (“the EA”). Most immediately relevant are clauses 13.12 – 13.14, which relate to “conversion of fixed term employment.” Those clauses are in the following terms:
13.12. A fixed term staff member with five or more years of continuous service in the same or similar position, with the exception of employment under an employment scheme (clause 13.3) or a tenure track appointment (clause 13.4) will be entitled to conversion to a continuing or continuing (contingent funded) appointment, subject to:
(a) the staff member is not currently subject to a Performance Improvement Plan in accordance with clause 72, and
(b) the staff member initially being appointed after a merit-based selection process to the position.
13.13. The conversion to a continuing (contingent funded) appointment as outlined in clause 13.12 will be offered where the position is subject to funding from external sources, as described in clause 12.1.
13.14. The University will offer fixed term staff conversion to a continuing or continuing (contingent funded) appointment in line with clause 13.12 from 1 January 2024.
Clause 13.17 is likely also of some relevance because it deals with “transition arrangements”, thus:
13.17. Prior to 1 January 2024, staff members will have access to conversion in accordance with clauses 14.4 to 14.6 of The Australian National University Enterprise Agreement 2017-2021.
As summarily as possible, the relevant facts relied upon by both parties, are as follows. They are taken from or are supported by the documentation attached to the Affidavits of the Applicant, Professor D’Arcy, affirmed 10th, 20th and 27th June respectively, and on the Respondent’s behalf, by Associate Professor Palmieri (the Head of the Department of Pacific Affairs [“DPA”], College of Asia and the Pacific [“CAP”]), affirmed 25th June 2024, and Ms Joanne Motbey, a solicitor employed by the Respondent’s lawyers, also affirmed 25th June 2024.
As already stated, the immediate contest arises out of the Applicant (a professor at the Australian National University – “the University” or “ANU”) seeking declaratory relief and an interlocutory injunction to prevent the Respondent implementing what it says is the end of his contract of employment, which comes into effect (or came into effect, as the case may be) on 30th June 2024. The Applicant contends that, by virtue of the operation of certain provisions of the current EA (set out above in his Pleadings), his employment should be extended to 30th June 2026. The Respondent says that its discrete funding for the Applicant, which is part of a larger, external funding enterprise with, and from, the Department of Foreign Affairs and Trade (“DFAT”), ceases on 30th June 2024. In short, the Respondent says that, contractually and financially, the Applicant’s employment with the University not only will end (or ended) on 30th June 2024, but also there are no funds with which to employ him. It also says that (a) being forced to [re-] employ the Applicant is the equivalent of a mandatory injunction for which the relevant tests are more rigorous, and (b) any re-employment will adversely impact the financial circumstances of the Respondent, and in turn, will affect other employees of DPA, academic and professional. The Applicant disagrees with and challenges these contentions.
To state the obvious, and as already noted, there is some time sensitivity, certainly from the Applicant’s perspective but also, (for different reasons) from the Respondent’s perspective.
The Applicant is a high-level academic at the Australian National University. His promotion to Professor (Level E1) was confirmed by letter from the Vice-Chancellor (Professor Brian Schmidt), dated 16th November 2023.[2] Professor D’Arcy works in DPA in the College of Asia and the Pacific. The effective date of his promotion was 1st January 2024. In the course of this letter, Professor Schmidt said: “Your efforts are a great credit to the University, and I look forward to following your future endeavours.”
[2] Professor Schmidt’s letter is Annexure JM10 to the Affidavit of Ms J Motbey, affirmed 25th June 2024. Unless otherwise specified, much of the relevant correspondence is annexed to this Affidavit, which also includes a copy of The Australian National University Enterprise Agreement 2023-2026. A few somewhat surprising omissions in the more recent correspondence are annexed to the Affidavits of Professor D’Arcy, discussed below.
According to documentation before the Court, the Applicant has been employed by the University continuously since 2005, accepting that the effective start date of his employment was early in 2006. Sometimes his position has been described as “continuing”; at other times, he has been on a fixed term contract, which has regularly been “rolled over”, to speak somewhat colloquially, or varied or deferred. The details and history of the Applicant’s employment are set out in the correspondence annexed to Ms Motbey’s Affidavit. For current purposes, I do not need to canvass that history, subject to the more recent history that follows.
On 21st May 2021, the Human Resources Manager of the University (Cris Alves) wrote to the Applicant, stating:
The termination date of your current Employment Agreement or Contract for your appointment as Senior Fellow, Academic Level D within the Coral Bell School of Asia Pacific Affairs, ANU College of Asia and Pacific will be deferred from 30 June 2021 to 30 June 2022, at which time your period of employment will cease.
This letter went on to refer to clauses 14.2(a) and 53 of the EA then in force. It confirmed that the extension was for a “fixed term period of employment…”
On 15th June 2022, a different Human Resource Manager (Conrad Roux) wrote to the Applicant advising that he was “very pleased to offer you a variation to your appointment with the Australian National University …” He went on:
The termination date in your current Employment Agreement or Contract for your appointment as Senior Fellow, Academic Level D within the ANU College of Asia and the Pacific will be deferred from 30 June 2022 to 30 June 2024, at which time your period of employment will cease.
As with earlier variations to the Applicant’s employment, there was reference to the EA then in force and that clause 53 of that EA (or its successors) operated “unless notified to the contrary in writing.”
In his Affidavit, filed 20th June 2024, the Applicant stated (par.2):
I first became aware that my continuing tenure was problematic on 20 November 2023 when, on the same day as the Vice Chancellor promoted me to Professor, my Head of Department, Associate Professor Sonia Palmieri told me at a pre-arranged meeting that, due to financial constraints she would not be renewing my employment after 30 June 2024. Also present was Professor Sinclair Dinnen who was present as a witness.
Thus far, there has been no evidence from Professor Dinnen in the proceeding.
In the same June Affidavit, the Applicant further stated (pars.3 and 4):
3. Professor Palmieri added words to the effect: “I am not targeting you. You are the only one with a short-term contract finishing on 30 June 2024.
4. She added that she had to ‘hire two Pacific Island women’.
Shortly after the Vice-Chancellor’s letter to the Applicant on 16th November 2023 advising of his promotion to Professor Level E1, on 18th December 2023, the Human Resources Manager (Mika Yamaguchi) wrote to the Applicant confirming his appointment as Professor at the academic level specified in Professor Schmidt’s letter, and that this would be served in the Coral Bell School of Asia Pacific Affairs, ANU College of Asia and the Pacific, “effective from 1 January 2024” and “will be converted from fixed term to continuing (contingent funded).” This letter went on to confirm that “your current expected end date is 30 June 2024.”[3] This same date had previously been notified to the Applicant by the letter from the Respondent dated 16th June 2022.
[3] This letter is Annexure JM11 to Ms Motbey’s Affidavit.
Somewhat curiously, under the heading “contract conditions”, among other matters addressed, there are the following two paragraphs:
All other terms and conditions of employment contained in your current employment agreement or contract with the University will continue to apply to your employment with the University, with reference to the University’s Enterprise Agreement or any subsequent collective agreement that replaces it.
The Enterprise Agreement and University policies and procedures are not incorporated by reference into and do not form part of this or any contract of employment between you and the University. However, your terms and conditions of employment are governed by this offer and set out in the Enterprise Agreement …
The “curiosity” is simply the contention that the EA is not incorporated into the Applicant’s contract of employment, but nonetheless the terms of the EA still govern the terms and conditions of the contract.
As will be seen from the above summary, between 2006 until 2024, the Applicant regularly had his contract of employment, including fixed-term contracts, either extended, renewed, varied, deferred or “rolled-over”, so to speak. Notwithstanding this history and practice, there was no argument advanced by the Applicant that, in accordance with this history, he had any necessary or legitimate expectation that his latest contract would be extended like the litany of those beforehand.
On 1st March 2024, the Applicant’s solicitor wrote to the [new] Vice Chancellor, Professor Genevieve Bell, to provide her with what was described as “a comprehensive submission inviting the University to comply with its own Enterprise Agreement and restore legal and appropriate principles to its treatment of academic staff.” Why the letter was couched in such broad, as well as somewhat insulting or pejorative, terms to include “academic staff”, as well as other very wide general assertions, have, thus far, not been explained. After asking the Vice Chancellor to acknowledge receipt, the letter concluded: “We look forward to learning of an appropriate outcome.”
The submission referred to included a “history of Professor D’Arcy’s appointments” together with a “summary of relevant terms of the Enterprise Agreement that applied at relevant times.” Summarised, the “appointment history” as provided contended that Professor D’Arcy was employed as a “continuing employee” between January 2010 and November 2016. It was further contended that the extensions to the Applicant’s contract of employment in November 2020, May 2021, and June 2022, had no effect “because they wrongly assumed that he was a fixed term employee at the time.” Paragraphs 5 and 6 of the Annexure to the Applicant’s solicitor’s letter of 1st March 2024, stated the following (emphasis in original):
5.The offer of 18 December 2023 was made and withdrawn before Professor D’Arcy could accept it and therefore had no effect on his ongoing continuing employee;
6.The offer has been repeated in a letter of 19 February 2024. It entails promotion to level E but on a continuing (contingent funded) basis with notification of its expected termination on 30 June 2024. The contingent funded basis of the appointment assumes that the position is funded from external sources (clause 13.1) which will not exist past 30 June 2024. Clause 15.5 prohibits the termination of a contingent funded appointment unless that funding has ceased or is insufficient. It is our understanding that the position is funded from external sources which expires on 30 June 2026, but in any event the proposed cessation of Professor D'Arcy’s appointment on 30 June 2024 is because his Head of Department had budget issues and also needed to hire new staff. Such a motivation is inconsistent with clause 15.5.
The 1st March 2024 letter continued in the following terms:
In the absence of Professor D’Arcy having accepted the offers of 18 December 2023 and 19 February 2024, he remains a continuing employee whose ongoing employment is not subject to any funding contingencies.
In the alternative, even if he were a fixed term appointee, he is within time to exercise the option under clause 14.4 to apply for continuing status which, for an abundance of caution, he hereby does.
The letter concluded by noting when Professor D’Arcy intended to finish his commitments at the University (on 30th June 2026), and effectively put an offer of settlement to the University, namely to “surrender” any rights he might have regarding any issues regarding his earlier appointments and to accept a fixed-term appointment until 30th June 2026.
As observations only at this stage, simply to assert that there were alleged issues regarding the manner and status of the Applicant’s earlier appointments over a period of time does not, without more, establish the factual truth or legal reality as asserted. Further, the documentation before the Court at this stage does not show any occasion where the Applicant either asserted some problem (factual or legal) regarding his multiple appointments or took any formal steps to challenge or otherwise to question any of those appointments. On its face, therefore, and subject to any further evidence and submissions, to make the asserted claim now, some years after the events, regarding historical, ongoing problems, would seem to be rather difficult to establish.
For completeness, there is no documentation before the Court regarding the offer to the Applicant on 19th February 2024.
“Attachment 2” to the Applicant’s Affidavit, filed 11th June 2024, is a further letter from his solicitor (Mr Lander) to the University, dated 22nd March 2024. That letter again asserts that, in the absence of accepting the offers of the Respondent to the Applicant on 18th December 2023, which was repeated on 19th February 2024, Professor D’Arcy “remains a continuing employee whose ongoing employment is not subject to any funding contingencies.” The letter continued:
In the alternative, even if he were a fixed term appointee, he is within time to exercise the option under clause 14.4 to apply for continuing status, which, for an abundance of caution, he hereby does. …
Therefore, we are writing to exercise Professor D’Arcy’s legal right under the 2023-26 EA clause 14.3 to formally request that the ANU discard the current invalid contract and place Professor D’Arcy on a legitimate contract under the new award system in accordance with relevant sections of the said award.
Further to the earlier observations, simply to assert, as this letter does, that the Applicant’s current contract of employment is somehow ‘invalid’, with not even a hint of how or why this assertion is made (or what legal principle applies), does not establish the legal or factual reality asserted.
“Attachment 3” to the Applicant’s Affidavit of 11th June 2024 is a detailed letter from Mr Bhatti, a Senior Employee Relations Specialist, People and Culture Division, in response to the correspondence from Mr Lander outlined above. Without going through every aspect of the University’s response, I note the following.
The University confirmed that Professor D’Arcy’s employment commenced on 27th March 2006, notwithstanding that (as noted above) the contract was signed by Professor D’Arcy on 11th August 2005. In any event, the University also confirmed that his employment was [then] as a “continuing employee.” The response went on (par.3) to confirm that although the Applicant was appointed in 2010 as a “fellow” for six years, this “did not affect his underlying appointment as a continuing employee and therefore Prof. D’Arcy retained his continuing status at this time.” This “status” continued until 2017.
In January 2017, the University said that the Applicant’s status was “impacted… as a result of a change management process within the School of Culture, History and Language.” The letter went on to state:
As a result of this change process, and in a manner consistent with the Enterprise Agreement at the time, Prof. D’Arcy’s continuing employment was transferred to a four year fixed-term appointment.
A copy of the contract then executed by the Applicant was said to be attached to this letter.
Par.4 of this letter stated:
From 1 January 2017 onwards, any subsequent entitlements under the EA are limited to those which Prof. D’Arcy was eligible for as a fixed-term employee.
Par.5 of the response letter addressed the contention that the Applicant could convert his current contract to a “continuing” one under clause 14.4 of the EA. The University refuted this assertion. The paragraph continued:
The former EA ceased to apply and cover the employ of Prof. D’Arcy on 6 December 2023. Whilst there are transition arrangements relating to fixed term conversion within the new EA (clause 13.17), these arrangements expired on 31 December 2023. Any rights relating to the fixed term conversion available to Prof. D’Arcy in accordance with the former EA had to be exercised on or before 31 December 2023.
It is in accordance with the new fixed term conversion entitlements under the new EA, which come into effect from 1 January 2024, that the offer of CCF employment was made.
Par.6 confirmed the funding details, which included external funding, that supported the Applicant’s current contract. It stated: “The funding for his appointment, at this time, remains until 30 June 2024 and not 30 June 2026.” Par.7 of the letter advised that the only offer that had been made to the Applicant was the one contained in the University’s letter to him, dated 18th December 2023. Correspondence to the Applicant dated 19th February 2024 “was in respect to a promotion and not a replication of the earlier offer, which still remains available to Prof. D’Arcy.”
Par.8 summarised, in tabular form, the start and end dates of the Applicant’s employment according to the contracts in operation at each stage. Par.9 summarised the Respondent’s position regarding the claims made by the Applicant – denying them all – and asserted, at sub-par. d: “The University denies Prof. D’Arcy has an entitlement to apply for conversion to continuing employment under clause 14.4 of the former EA.” Unfortunately, like a number of the Applicant’s lawyer’s assertions, the University’s comment was another in the chain of assertions. It was, essentially, declaratory but without any analysis.
The final paragraph of this letter gave the Applicant a further seven days within which to accept the offer made to him in the letter of 18th December 2023.
Attachment 4 to the Applicant’s Affidavit (and Annexure O to the Affidavit of Ms Motbey) is an email from Mr Bhatti, dated 12th April, in response to Mr Lander’s email of 28th March seeking an extension of the time within which the Applicant could respond to the repeated offer from the University. Mr Bhatti’s response, summarised, was (a) the period granted to the Applicant to respond to the said offer “was withdrawn as of yesterday” [11th April], and (b) the University repeated that, in its view, the Applicant was not entitled to any “ongoing entitlements” under the former EA and was not within time to exercise them under clause 14.4.
Attachment 5 is a letter from the Applicant’s solicitors to Mr Bhatti of the Respondent. The detail of this letter, to a significant degree, sets out the Applicant’s contentions in relation to his entitlement to have his contract of employment converted to a continuing position under clause 13 of the current EA. The Applicant’s detailed argument here is replicated in the written submissions filed on his behalf, which are set out below. I need only note here what seems to be at the heart of the submissions that follow, namely (emphasis in original):
Professor D’Arcy falls within clause 13.12 and this clause gives him an entitled [sic: entitlement] to convert to either a continuing or continuing contingent funded, position. The election is a matter of right and is not a discretionary power vested in the ANU. He is entitled to make that election at any time during the currency of the EA, and he in fact did so on 1 March 2024 and chose a transfer to continuing employment.
Further clause 13.14 is framed in mandatory terms and provides that the ANU will offer that conversion in accordance with clause 13.12.
A little later in this letter, the Applicant’s lawyer contended:
By letter of 25 March 2024 the ANU has refused to accept Professor D’Arcy’s election for transfer to a continuing appointment. It addresses the right of Professor D’Arcy to elect to transfer toa continuing employee under the 2017-21 EA which it notes expired on 31 December 2023 at which time no election had been made.
The ANU’s letter does not address Professor D’Arcy’s right to make the election under clause 13.12 or its own duty under clause 13.15. Nothing in the letter purports to deny Professor D’Arcy rights under these clauses.
Finally, this letter referred the University to the terms of clauses 14.3 and 14.4 of the current EA and submitted that the Applicant “is still within the three months and so could make the application.” The final submission stated:
It seems to me that under clauses 14.3 and 14.4 2023 EA, it is not open to the ANU to decide to terminate him only because they want to give the job to another person.
A final piece in this game of correspondence chess was a very detailed letter (or some 25 paragraphs or thereabouts), dated 9th May 2024, from Mr Bhatti to the Applicant’s solicitor, Mr Lander. Summarised, again mainly by declamation, the University commented:
(a)The Applicant had no rights of conversion of his contract under the current EA (par.2). Why this was so was not explained; it was simply asserted;
(b)Only as a “fixed term employee” did the Applicant have any rights under the current EA (par.4);
(c)Any conversion of a contract under the current or former EA was not “automatic” (par.5);
(d)The University rejected that it had any obligation to provide the Applicant with a choice between a continuing position or a continuing contingent funded position (par.9);
(e)A person such as the Applicant as a fixed term employee is not given a choice between a continuing or a CCF [continuing contingent funded] appointment under the conversion framework. Any offer made is dependent upon the University making an assessment on matters of funding for the appointment, including whether it is internally or externally funded, and whether the fixed term position is “needed on an ongoing basis” (par.10);
(f)Mr Bhatti contended that “both these matters are the prerogative of the University, and it is for the University and the University along [sic: alone] to make determinations about these operational and financial matters …” (par.11);
(g)The University contended that the Applicant had no choice in the offer that was made to him (par.12);
(h)Pars.14-16 proposed a certain construction and operation of clause14.4 of the EA. The University contended that this clause did not extend the Applicant’s time but instead limited it. This critical issue is discussed later in these reasons;
(i)I do not need to summarise the contentions in pars.18-20, which seek to refute the propositions that there was relevant irregularity (or worse) in each of the previous contracts of employment signed by the Applicant. I have earlier generally commented on certain aspects of these matters above;
(j)In the remaining parts of this letter the University set out its contentions for refuting the submissions, especially anything about threats of termination of the Applicant’s employment. The University rejected any purported error on its part in dealing with the Applicant, including any suggestion of impropriety.
On 13th May 2024, the University generated an email to the Applicant, which set out a range of matters for his attention upon his employment coming to an end. There was a polite “thank you” for his services to the University. The force, import and humanity of it was rather lessened by the conclusion of it, all in capital letters, and all in bold, which stated or declared:
**THIS IS A SYSTEM GENERATED NOTIFICATION, PLEASE DO NOT REPLY**
No name was affixed to this email, only the designation of the sender of it: “Division of Shared Services” – whatever that description actually meant or means. As earnestly as Counsel for the University fairly sought to put this last document into context and perspective, and accepting that large enterprises, such as universities, regularly seek to deal with their huge staff, in my view an unsigned, computer-generated email, on the one hand purporting to offer “thanks’ to an individual for their service, but on the other, it being unsigned, and computer generated, directing the recipient what should or needs to be done before the door closes behind them, in my view, speaks concerningly about the lack of basic humanity in such dealings. Barely six months earlier, the Vice Chancellor was congratulating the Applicant for his promotion to Professor and looking forward to his further contributions to the University. Yet here was the recipient of that letter being shown the door, so to speak (even if within the legal rights of the University) with all the delicate assistance and courtesy that a computer can display. I have no doubt that those in authority in the University responsible for making decisions and conducting the business of it, including at a departmental level, are genuine, earnest and well-intentioned in the care and support of all staff. But this final email almost defies comment for its obvious inhuman and discourteous concept, manner and almost Kafkaesque efficiency. Sharp, efficient business practices, more in keeping with the corporate world, are apparently now de rigueur in the once more refined world of academia. To a very significant degree, universities are, as they have been for some time, “big business.”
Factual Matrix – B (Affidavits)
In this section I note specific matters from the Affidavits of Associate Professor Palmieri and Professor D’Arcy that are not discussed in the previous section.
Affidavit of Associate Professor Palmieri
Professor Palmieri confirmed (par.3) that, in February 2022, the University and DFAT signed a grant agreement for the Pacific Research Program 2022-2026. She oversees this grant.
Paragraphs 5 – 16 summarise what Professor Palmieri describes as “Funding for Professor D’Arcy’s Position.” I summarise this summary as follows.
The Applicant’s position is funded out of what is called the “Q account”. Professor Palmieri confirmed (par.6) that DFAT approved the budget allocation for the financial years 2022/2023 to the financial year 2025/2026. The budget included a sum of $462,335 “for indirect costs calculated as a percentage of each annual tranche of base funding, which DPA administers from the Q account.”
Pars.7 and 8 refer to increases in staffing costs arising from wage increases from the EA, and that the DFAT grant did not take account of such increases. Par.9 states that the “Q account” is a discretionary account “where unspent funds within this account can be moved to other accounts, but not vice versa.” Par.10 notes the uses of two other accounts (R and S) and the source of funds for each (the former from “recurrent university funding”, the latter from external funding).
Par.11 states that there is “insufficient funding in the Q Account for Professor D’Arcy’s fixed term contract to be extended beyond its nominal end date of 30 June 2024.” Par.12 refers to various projects Professor Palmieri understands Professor D’Arcy to have completed.
Par.13 states that extending Professor D’Arcy’s employment until the end of June 2026 would result in a budget deficit in excess of $500,000 over the final two years of the DFAT Grant. In her view, Professor Palmieri said that this would likely have a detrimental impact on the DPA being able to demonstrate its efficiency and effectiveness regarding future funding applications. She confirmed further, at par.14, that “as there is insufficient funding in the Q Account to extend Professor D’Arcy’s fixed term contract, the DPA would be required to seek reapproval of the budget allocation from DFAT …” She went on to confirm (par.15) that DPA did not have any alternate funding or resources from which to pay for any extension to Professor D’Arcy’s fixed term contract. How and why seeking “reapproval” of the budget allocation from DFAT was either not feasible or otherwise not appropriate was not explained. Nor was it explained how or why funds could not, or should not, be sourced or approved from DFAT for someone of Professor D’Arcy’s apparent eminence. The question might also be asked (rhetorically or not): if a University or Department has someone on staff who is an academic of singular renown and repute, what options are available to ensure they remain on staff; and likewise, why would a department not do everything they could to keep on staff academics of singular eminence? As important and understandable as external funding is, looking from “the outside”, as perhaps as dangerous or simplistic this might be, it sometimes seems to be that, respectfully, the financial tail is wagging the academic dog. The “business model” of budgets, efficiencies, “dividends” and similar, reigns supreme.
In response to comments in Professor D’Arcy’s Affidavit affirmed on 20th June 2024, Professor Palmieri confirmed that she met with Professor D’Arcy on 20th November 2023, and that she said words to the effect at that meeting that, “due to financial constraints Professor D’Arcy’s fixed term employment would not be renewed.” She also confirmed that she added words to the effect that she was not “targeting” him, and that Professor D’Arcy was the only one “with a short-term contract finishing on 30 June 2024.”
Professor Palmieri denied saying at this meeting that she had to hire “two Pacific Island women.” Rather, she said that she commented that “because of the budget constraints I cannot hire two Pacific Island women.”[4]
[4] The matters canvassed in the Affidavit of Ms Motbey, which relate essentially to the employment history of Professor D’Arcy, were discussed in the previous section “Factual Matrix – A” and need not be addressed further here.
Affidavits of Professor D’Arcy
Professor D’Arcy’s primary Affidavit, filed 11th June 2024, which attached much of the correspondence between the parties regarding his employment (past and present) was canvassed in the previous section, “Factual Matrix – A.” Here I summarise matters addressed in his two subsequent Affidavits, filed 20th and 27th June respectively.
Having noted earlier a couple of matters from his Affidavit, filed 20th June, I need here only note that, at par.7, Professor D’Arcy stated that, in addition to the [obvious] support confirmed by the Vice Chancellor’s promotion letter of November 2023, his third-year course is one of only two compulsory courses in the Pacific Studies degree. He suggested that, among other things, this is “directly in conflict” with his termination. It certainly begs the question: why have a compulsory course but terminate the person responsible for teaching it?
Professor D’Arcy’s Affidavit of 27th June is a very detailed response to the Affidavit of Associate Professor Palmieri. I will not canvass every “dot point” in the three plus pages of comments and responses, which are annexed to this Affidavit. More selectively, I note the following.
The first four paragraphs of this annexure to this Affidavit set out the Applicant’s understanding of funding arrangements for his position and that of three other Professors. He deposed that all of these professors (and himself) are “all ANU funded.” He also said that he understood that his position was included in years 3 and 4 of the Grant, and relied upon confirmation, “in late 2021 or early 2022”, of his inclusion in the Pacific Research Program (“PRP II”) from Professor Nicole Haley. Professor D’Arcy confirmed his trust in Professor Haley “and am confident my inclusion [in the PRP II grant] would be reflected in the original PRP II documentation.”
The next three paragraphs (the “dot points” are the only “points” of reference) set out the Applicant’s understanding of funding for his position, actual and potential (my words), and also by reference to the funding for two other academics, Dr Hoare and Dr Oakshott. Likewise, the next three dot points (the last three dot points on page 2 of this annexure) dispute contentions by Professor Palmieri regarding funding and outline briefly where and how the funding for the Applicant’s position can and should be viewed. I do not propose to undertake any financial analysis here of the competing contentions.
Page 3 of this annexure set out at some length the various academic contributions of the Applicant, which seem, on their face, to be rather more than the perhaps understandably brief commentary by Associate Professor Palmieri in her Affidavit. The material here set out includes glowing appraisals of Professor D’Arcy’s publications from a reviewer of a book to be published in 2025, and a summary (including this reviewed book) of three projects, another of which is a book based on his now compulsory third-year subject, “Environment and Development in the Pacific.” The Applicant has 6 ongoing doctoral students under his supervision.
Finally, while he acknowledged that DPA does not have an alternate funding source for his position [beyond June 2024], the Applicant maintained that the original funding referred to in par.6 of Professor Palmieri’s Affidavit is sufficient, and that there was funding for his position included “in the PRP Budget on the ANU side of the ledger in all four years.”
I assume, I hope correctly, that in due course, evidence will be adduced from Professors Haley and Dinnen to shed light on a range of factual issues in this controversy. Further, and in this regard, in the course of oral submissions, Counsel for the Applicant noted that (in due course) an Order would be sought for discovery regarding correspondence and other documents regarding the PRP II funding, both from ANU and (if I have understood correctly) perhaps also from DFAT.
Written Submissions on behalf of the Applicant
Written submissions were filed on behalf of the Applicant on the issue of the interim injunction on 20th June 2024, and were as follows (emphasis in original; footnotes omitted):
1.The facts and the questions of law, as asserted by the Applicant, are set out in the pleadings and particulars annexed to the Form 3 filed in these proceedings.
2.The evidence relied upon is contained in the affidavit of the applicant professor of 10 June 2024 filed in these proceedings and in the documents tendered by the parties for the purposes of the interlocutory hearing.
The issues
3.Most of facts are not contentious and can probably be agreed.
4.The contentious issues of fact are:
4.1Whether the position currently held by the Applicant as Professor in the ANU Department of Pacific Affairs (the Department) is one funded under a grant to the ANU Department of Pacific Affairs from the Department of Foreign Affairs (the grant) that is due to continue until 30 June 2026;
4.2Whether that grant has been determined or substantially reduced, to take affect on 30 June 2024;
4.3Whether the Department has appointed or extended the appointments of other academics funded under the same grant until 30 June 2026;
4.4Whether the Applicant was the only academic funded under the grant whose appointment was not so extended;
4.5Whether the Department had made a decision to terminate the Applicant's appointment as of 30 June 2024 with a view to using the funds from his position to retain one or more other academics under the same grant;
4.6In the alternative to 4.5, whether the decision to terminate the Applicant was for the purpose of redirecting funds from the grant to some other grant related purpose;
4.7Whether the Respondent has ever responded to the Applicant election conveyed in his letter of 1 March 2024.
5.The contentious issues of law are:
5.1Whether the offers made by the Respondent to the Applicant of 18 December 2023 and 19 February 2024 were valid offers for any relevant purposes under the ANU Enterprise Agreement 2023-2026 including in response to his election of I March 2024;
5.2The proper construction of clauses 13 .12 to 13 .14 ANU Enterprise Agreement 2023-2026.
The interim injunction
6.The Court has power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Commonwealth) (FCFC Act) to grant, among other things, "interlocutory orders" which includes the power to grant injunctions to preserve the status quo pending the determination of a claim for a remedy.
7.The principles for the grant of an interlocutory injunction are well settled (ABC v O'Neill [2006] HCA 57) and are:
7.1 there is a serious question to be tried, or
7.2that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief;
7.3he or she will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and
7.4the balance of convenience or justice favours the granting of an injunction.
8.In O'Neill Gummow and Hayne JJ (with whom Gleeson CJ and Crennan J agreed) explained that in assessing whether the applicant had made out a prima facie case, "it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial" rather than it needing to be demonstrated that it was more probable than not that the plaintiff would succeed at trial.
9.There is a serious issue of fact concerns the accuracy of the representations by the School of the present state of the grant funding and plans for their alternative use.
10.There is a serious issue of statutory construction set out in the pleadings. On the evidence available, there is a prima case that the grant funding is ongoing, and the Respondent is purporting to terminate the Applicant to use his salary funding under the grant for other reasons. That evidence is set out in the affidavit of Professor D' Arey and in the documents contained in the tender bundle. It includes email confirmation from other people involved in the Respondents plans and an affidavit of the Applicant setting out the relevant oral and email conversations.
11.On the evidence available, there is a prima case that the grant funding is ongoing, and the Respondent is purporting to terminate the Applicant to use his salary funding under the grant for other reasons. That evidence is set out in the affidavit of Professor D' Arey and in the documents contained in the tender bundle. It includes email confirmation from other people involved in the Respondents plans and an affidavit of the Applicant setting out the relevant oral and email conversations.
12.Rule 17 FCR provides that evidence in interlocutory matter may be given by affidavit, orally or by the tender of document. In interlocutory matters it is sometimes the case that oral and documentary evidence sufficient to establish the ' serious case' and 'prima facie ' merits, cannot be adduced in affidavit form before the hearing. In these cases, evidence in support of the injunction may still be adduced orally or by tender of relevant document. In ABARJ 5 v MIMBF [2016] FCA 363, Charlesworth J put it thus:
32.ln Stephenson v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 137. Burchett J granted an interim injunction in circumstances where it was not possible for the parties to prepare submissions addressing the substantive criteria for interlocutory relief: and not possible for the Court itself to make a proper assessment as to whether or not there was a serious question to be tried: see also Khim v Minister for immigration, Local Government and Ethnic Affairs [1993] FCA I 0.
33. Similarly, in AEF15 v Minister for Immigration and Border Protection [2015] FCA 1150 Markovik J [sic: Markovic J] granted short term interim relief in urgent circumstances where the applicant's representative was unable to assist the Court on whether there was a serious question to be tried.
13.In the present case, the dispute concerns the tenure of the Applicant. If terminated he will suffer reputational harm and economic loss. The economic loss will extend to his superannuation and long service leave.
14.If the Applicant is terminated and his salary under the grant is then used to appoint one or more other persons, the same funding will no longer be available to fund any order for reinstatement of the Applicant.
15.If the Respondent is to be believed in relation to its denial of any intention of redeploying the Applicant's salary to other appointments or purposes, then they will not suffer any detriment in retaining the Applicant until the court has determined the merits of this matter. There is a public interest in the integrity of public administration.
16.On the other hand, if the Applicant is terminated on 30 June 2024, he will be without his salary pending the court's resolution of this case which will have some impact on his capacity to fund the case.
17.The balance of convenience lies with granting the interim injunction.
Written Submissions on behalf of the Respondent
Written Submissions were filed on behalf of the Respondent on the Application for Interlocutory Orders on 25th June 2024 (emphasis in original; footnotes omitted):
OVERVIEW
1.In an application filed on 11 June 2024 (Application), the Applicant alleges the Respondent unlawfully terminated his employment and seeks relief including declarations, reinstatement, compensation and costs (Claim). He also seeks an interlocutory order that “the Respondent take no action to terminate or otherwise prejudice the Applicant's employment until further order of the court." These submissions address the application for the interlocutory order.
2.The Court should not grant the interlocutory order sought because: (i) there is no serious issue to be tried; and (ii) even if there were a serious issue to be tried, the balance of convenience does not favour the making of the interlocutory order sought.
THE APPLICANT’S EMPLOYMENT
3.The Applicant commenced employment with the Respondent as a continuing employee (Position ID 12490) on or around 20 March 2006.
4.On 5 December 2016, the Applicant agreed to transfer to a fixed term employment position as Associate Professor State, Society & Governance in Melanesia (Position ID: 31378). This fixed term employment contract commenced on 1 January 2017 and was to conclude on 31 December 2020.
5.Subsequently, the Applicant accepted deferrals of the termination of his fixed term employment contract on or around 31 December 2020, 25 May 2021 and 17 June 2022. The deferral of 17 June 2022 extended the fixed term employment contract until 30 June 2024 (Current Contract).
6.On 18 December 2023, the Respondent offered a variation to the Applicant's appointment, being a conversion from fixed term employment to continuing (contingent funded) (CCF) employment effective 1 January 2024 (December Offer). The Applicant did not accept the offer within the time specified, nor in subsequent extensions of time to accept the offer. The offer was therefore withdrawn on 12 April 2024.
7.On 13 May 2024, the Respondent provided written notice confirming the Applicant’s fixed term employment would cease on 30 June 2024 in accordance with the Current Contract.
ISSUE
8.The nature of the Claim is unclear, as is evident from the significant changes to the Applicant’s allegations over the series of correspondence annexed to his affidavit filed in support of the Application, the Application, and now the Applicant’s outline of submissions dated 19 June 2024 (AS). Assuming the latter to be the most current iteration of the Claim, the Applicant appears to contend that:
(a)as he is a fixed term employee with more than 5 years’ service in the same or similar position whose position is subject to funding from an external source, the Respondent is required to offer him (or he is entitled to ‘elect’) conversion to CCF employment pursuant to clauses 13.12-13.14 of the ANU Enterprise Agreement 2023-2026 (Current EA); and
(b)the December Offer did not suffice to discharge that obligation because it indicated that the external funding supporting that appointment, and therefore the Applicant’s employment, was expected to end on 30 June 2024, whereas in fact the funding will not end until 30 June 2026; and
(c)the Respondent has breached the Current EA by failing to make an offer that complies with clauses 13.12-13.14 of the Current EA.
PRINCIPLES FOR GRANT OF INTERLOCUTORY INJUNCTIONS
9.The Court has the power to grant interlocutory orders, including injunctive relief, under either s 545(2) of the FW Act or s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
10.The availability of interlocutory injunctive relief is governed by the organising principles confirmed in (2006) 227 CLR 57 adopting the two-enquiry approach articulated in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618:
(a)whether the applicant raises a serious question to be tried, or a prima facie case, of sufficient likelihood of success to justify the preservation of the status quo pending the trial; and
(b)whether the inconvenience or injury which the applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.
11.As to a serious question to be tried, the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the granting of relief. Some authority has held that where the interlocutory order sought is in the nature of a mandatory injunction requiring positive acts to be taken, the Court needs to be satisfied to a “high degree of assurance” that the applicant would be successful at the trial in order to grant the injunction. However, whether or not it is accepted that an elevated standard applies, the fact that the injunctive relief sought is mandatory will be relevant to the balance of convenience.
12.As to the balance of convenience, the Court will consider all the circumstances of the case but factors commonly considered important include: (i) whether the applicant is likely to suffer injury if the order is not granted for which damages will not be an adequate remedy; (ii) the strength of parties’ substantive cases; (iii) any delay in seeking the interlocutory relief; (iv) as already noted above, the nature of the interlocutory order sought including whether it requires positive acts; and (v) the willingness of the applicant to give the usual undertaking as to damages.
APPLICATION OF PRINCIPLES IN THE PRESENT CASE
No serious question to be tried
13.As noted at [8] above, the crux of the Applicant’s complaint now appears to be that the December Offer failed to satisfy the Respondent’s obligation under clauses 13.12-13.14 to offer him CCF employment and the Respondent has thereby breached the Current EA, or will do so if it allows the Applicant’s employment to terminate on 30 June 2024.
14.Applying the well-established principles of interpretation of enterprise agreements articulated in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197], the following observations may be made about the nature of the obligation under clauses 13.12-13.14 properly construed:
(a)It is clear that clause 13.12 is to be read in the context of clauses 13.13-13.15 such that the reference to “will be entitled to conversion…” is in practical terms given effect by the Respondent offering either continuing employment (under clause 13.15) or CCF employment (under clauses 13.13-13.14).
(b)The suggestion by the Applicant that clause 13.12 gives the Applicant some freestanding or unilateral right to ‘elect’ conversion to CCF employment (or continuing employment) in the absence of an offer from the Respondent must be rejected. Such a construction would be practically unworkable and “divorced from industrial realities” contrary to the principles in Skene.
(c)Clause 13.13 expressly directs that the offer of CCF employment is to be made as described in clause 12.1. The surrounding provisions of clause 12.1 reveal the nature of CCF employment. Relevantly:
i.Clause 12.1 indicates that CCF employment is not intended to make an employee worse off than if they had been engaged on fixed term employment. Equally that suggests that there is no requirement that CCF employment will make an employee better off than fixed term employment.
ii.Clauses 12.5 and 12.9(d) indicate that the Respondent is entitled to terminate the employment of a CCF employee when the contingent funding that supports the position ceases or is insufficient. As such, the Respondent is not compelled to continue employing a CCF employee where funding for the role is insufficient.
15.That being the case, it is plainly contemplated under the Current EA that in making the offer of CCF employment to the Applicant, the Respondent was entitled to indicate the date on which the funding for the position, and therefore the employment, was expected to cease. That is precisely what the Respondent did in making the December Offer and in doing so it thereby discharged its obligations under clauses 13.12-13.14.
16.The Applicant’s contention that the December Offer was not a ‘valid’ offer for the purposes of clauses 13.12-13.14 because the DFAT Grant is due to continue until 30 June 2026 is misconceived. The fact that the DFAT Grant as a whole is expected to continue until 30 June 2026 (which is uncontroversial) says nothing at all about whether funding for the Applicant’s appointment under that grant continues beyond 30 June 2024. As the Respondent’s evidence indicates, there are insufficient funds under that aspect of the DFAT Grant which is the source of funding for Professor D’Arcy’s role (‘Q account’) for extension of his employment beyond 30 June 2024. As with all grants, budgetary decisions are made along the life of the project according to its remaining priorities and in line with changes in project costs (including staff salaries). Not all staff members are required for all stages of the project. Notably, the Applicant’s major contribution to the project has already been completed.
17.There is no serious question to be tried that the Respondent breached its obligations under the Current EA.
Balance of convenience
18.Even if there were a serious question to be tried, the balance of convenience is firmly against the granting of the interlocutory order sought for the following reasons:
(a) Damages are an adequate remedy: The Applicant asserts that if his employment is terminated, he will "suffer reputational harm and economic loss". The Applicant has provided no evidence at all for any “reputational harm”. Indeed, that assertion is unsustainable in circumstances where the Respondent is not initiating a termination but rather the employment is coming to an end on the expiry of an agreed fixed term. As to any economic loss, that can plainly be adequately remedied by damages and, potentially, pecuniary penalties. Moreover, the Court has broad remedial powers under s 545 of the FW Act including the power to order reinstatement. Finally, in accordance with clause 56.5 of the Current EA, the Applicant will be entitled to severance pay on the expiration of his fixed-term contract on 30 June 2024.
(b) Injury to Respondent: In contrast, the Respondent (and potentially third parties) will suffer injury if it is compelled to extend or renew the Applicant’s employment beyond 30 June 2024 because it will be required to either: (i) incur a deficit in the final two years of the DFAT Grant, detrimentally impacting on the performance of the program and future funding applications; (ii) fund the Applicant’s employment from the Department of Pacific Affairs’ own resources which it is unable to do; or (iii) deprive another employee(s) (of any level(s)) of their positions on the project in order to fund the continuation of the Applicant’s employment (even though his central contribution is complete); or (iv) attempt to seek further funding from DFAT, which is a matter entirely outside the Respondent’s control. Moreover, that financial detriment would be irrecoverable in the event the Claim were dismissed, because payment of salary to the Applicant for the duration of the interlocutory order would have been made in discharge of the Respondent’s legal obligation to pay the Applicant for being available to work (irrespective of whether the Applicant was given any work to do).
(c) Delay: The Applicant has been aware of the expiry date of his Current Contract since accepting it on 17 June 2022 and aware that the Respondent did not intend to extend the term since 20 November 2023. He had the benefit of clear reiterations of that position in the Respondent’s written correspondence of 25 March 2024, 9 May 2024 and 12 May 2024. Yet, he waited until 11 June 2024 to file the Application seeking the interlocutory order, just 2.5 weeks out from the expiry date of 30 June 2024. Further, at no point has the Applicant sought to utilise the dispute resolution process under clause 77 of the Current EA to resolve the dispute arising under clauses 13.12-13.14.
(d) Mandatory injunction: The interlocutory order that the Applicant in substance seeks is not a prohibitory injunction preserving the status quo. The status quo is that the Applicant’s employment will cease on 30 June 2024 through the effluxion of time without any action required on the Respondent’s part. Rather, the Applicant seeks a mandatory injunction to compel the Respondent to continue employing him beyond the termination of the Current Contract. The Applicant does not specify how this is to be effected. The Respondent notes that courts do not make orders of an injunctive kind, the breach of which may sound in a contempt, by using such imprecise language that the nature and extent of the obligation entailed is rendered uncertain. Further, interlocutory injunctive relief has been refused where it compels the creation of an employment relationship, or an employment relationship not previously in place, as a means of dealing with the contravention of an award.
(e) No undertaking: At this stage, the Applicant has not indicated any intention to give the usual undertaking as to damages.
DISPOSITION
19.For the reasons outlined above, the interlocutory order should not be granted.
Written Submissions in Reply on behalf of the Applicant
Written Submissions were filed in reply on behalf of the Applicant on 27th June 2024, and were as follows (emphasis in original; footnotes added):
1.The Applicant replies to the Respondent's Outline of Submissions as follows.
2.There is no factual dispute concerning paragraphs 1-7 of the Submissions.
3.The Applicant does not accept that he has reformulated the claim as asserted in paragraph 8. The claim has simply been expressed in different words in different contexts. A change in language does not necessarily represent a change in substance. But, in any event, the Applicant's position is per its Outline of Submissions.
4.Paragraphs 9-12 is a selective statement of law put at its highest for the Respondent.
5.At paragraph 14(c)(ii) and 16 the Respondent states that the Respondent is entitled to terminate the Applicant's CCF funded position as the funding that supports it, ceased or has become insufficient.
6.There are four points of reply:
6.1 The fact of the matter is that the grant has NOT ceased or been reduced in any way;
6.2 The terms of the EA do not permit the Respondent to actively deplete the grant by transferring the funds elsewhere and then terminating staff on the premises that the funds are now insufficient for their salary;
6.3 The fact is that the funds for the Applicant's salary are still within the School and are hypothecated to the salary of replacement academics;
6.4 Even if the Respondent's contention were correct, it still remains to determine how and why it the Applicant was the only staff member paid under the grant that was terminated when all the other staff members continued until the expiration of the grant on 30 June 2026.
7.The Applicant's Outline of Submissions listed the issues of fact in paragraphs 4.2-4.7 in an unambiguous manner. The Respondent's Submissions do not address any of them.
8.At paragraphs 9 and 11 the Applicant made it plain that the credibility of the Respondent was in issues concerning these factual issues. In response to this challenge the Respondent has filed an affidavit from Assoc Prof Sonia Palmieri dated 25 June 2024. This affidavit makes a range of assertions in support of the proposition that the funding for the Applicant's position has in fact ceased and has not merely been transferred or hypothecated for other use and denies any intention to use the funding to retain other academic indigenous to the Pacific. Th affidavit contained [insert number] of pages of annexures including detailed accounting spreadsheets said to support the assertions.
9.The Respondent has advised that Assoc Prof Palmieri will not be available for cross examination on her affidavit.
10.The Applicant has responded to the contents of Assoc Prof Palmieri 's affidavit and the spreadsheets, in his own affidavit filed today, in which he challenges both the validity and the content.
11.The Applicant objects to the evidence of Assoc Prof Palmieri being tendered and relied upon in the light of the substantial challenge to its content and in her absence for cross examination.
12.In the alternative, the fact of the substantial challenge to the affidavit of Assoc Prof Palmieri, is evidence of the seriousness of the issue to be tried at the final hearing.
13.At paragraph 18(d) the Respondent asserts that the order sought is not a prohibitive injunction, but rather a mandatory injunction. This assertion is based on the premise of the Respondent's contention that the Applicant is a fixed term employee whose employment has been lawfully terminated as of 30 June 2024. This is the core issue in dispute and so the Respondent's contention merely assumes as true, that which is in issue and awaits determination. The Applicant's seeks an interim order preventing the Respondent acting on its contended position until the issue is determined by the Court.
Outline of Principle
At the outset of these reasons, I noted a range of authority, including the High Court decisions in Beecham and more recently in ABC v O’Neill. What follows should be seen and understood in the light of that earlier brief discussion.
Since the House of Lords’ decision in American Cyanamid Co v Ethicon Ltd,[5] and subject to later High Court authority, such as Lenah Game Meats and ABC v O’Neill noted below, Lord Diplock’s statement of principle has been, by and large, the legal touchstone for the consideration of whether to grant an interlocutory injunction. As his Lordship noted in that case, “[the] grant of an interlocutory injunction is a remedy that is both temporary and discretionary.”[6]
[5] American Cyanamid Co v Ethicon Ltd (1975) AC 396.
[6] Ibid at 405.
Broadly stated, his Lordship’s statement of “governing principle” is as follows.[7] First, Lord Diplock said that the object of an interlocutory injunction is “to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial.” His Lordship also noted the correlative or “corresponding need for the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial.”[8]
[7] Lord Diplock’s discussion is at AC 406-409. The other members of the House of Lords (Viscount Dilhorne, Lord Cross of Chelsea, Lord Salmon and Lord Edmund-Davies) concurred with Lord Diplock’s judgment and statement of principle.
[8] [1975] AC at 406.
Lord Diplock confirmed that the court must be satisfied that the claim is not frivolous or vexatious; “in other words, that there is a serious question to be tried.”[9]
[9] [1975] AC at 407.
In more detail, his Lordship confirmed that in Applications for interlocutory injunctive relief, the proper way to proceed was as follows. If the plaintiff/applicant has demonstrated that there is a serious question to be tried the Court then needs to consider whether damages is an adequate remedy (and whether or not the usual undertaking as to damages is required in the circumstances of the case), and finally, where it appears that damages would be inadequate, the balance of convenience needs to be examined.
Finally, the Respondent contended that, in any event, the ultimate decision regarding any possible or theoretical “conversion” of the Applicant’s contract remained with the Respondent. It said that the Applicant’s submission, to the effect that the conversion of contract provisions in the EA required the Respondent to grant the Applicant the conversion of contract he sought, was untenable and unsupported by the terms of the EA.
The relevant terms of the EA are set out earlier in these reasons. For ease of reference, I set them out again, where clauses 13.12 – 13.14 provide:
13.12. A fixed term staff member with five or more years of continuous service in the same or similar position, with the exception of employment under an employment scheme (clause 13.3) or a tenure track appointment (clause 13.4) will be entitled to conversion to a continuing or continuing (contingent funded) appointment, subject to:
(a) the staff member is not currently subject to a Performance Improvement Plan in accordance with clause 72, and
(b) the staff member initially being appointed after a merit-based selection process to the position.
13.13. The conversion to a continuing (contingent funded) appointment as outlined in clause 13.12 will be offered where the position is subject to funding from external sources, as described in clause 12.1.
13.14. The University will offer fixed term staff conversion to a continuing or continuing (contingent funded) appointment in line with clause 13.12 from 1 January 2024.
For the purposes of clause 13.12, there can be no dispute that the Applicant is a “fixed term staff member with five or more years of continuous service.” The history of the Applicant’s employment, where he has been employed on both a continuous and fixed-term bases since 2005/2006, it would appear that neither of the conditions in sub-paragraphs (a) and (b) apply. It is unclear what the import is, if any, or flows from Professor Schmidt’s letter of 16th November 2023, which confirmed the Applicant’s promotion to “Professor”, which was plainly “merit-based.”
In my view, on the face of the terms of the EA set out here, there is, at least, a prima facie argument or case that the terms are (a) declaratory of what the University will do in the circumstances specified, and (b) are, arguably, therefore not confined in the way propounded by the Respondent. The issue or question of construction of the terms of the EA is foundational. In my view, the Court cannot, should not, and does not, make any findings of fact, or of law. It only makes a general assessment of whether there are sufficient facts and issues to constitute a prima facie case that warrant the intervention of the Court, albeit on an interlocutory or interim basis. In my view, particularly in the light of the fundamental construction question regarding the terms of the EA, the first limb for interlocutory relief is reached. The operation of these terms is another question, for which the parties contend very different arguments and solutions.
In this regard, I should also note the further consideration regarding the construction of the Applicant’s contract of employment, in the light of the EA, arising from the High Court’s comments in Workpac Pty Ltd v Rossato (“Rossato”) in two specific respects.[22]
[22] Workpac Pty Ltd v Rossato (2021) 271 CLR 456.
First, at [14] of its written submissions, the Respondent relied upon the Full Court decision in Workpac Pty v Skene (“Skene”) regarding the construction and interpretation of the EA.[23] After detailed comment on Skene,[24] at [66] and [67] in Rossato, the High Court formally disapproved of that decision. Accepting the different context of the case before the High Court (regarding “casual employment”), at [66], the High Court said (internal citations omitted):
… it should now be understood that in approaching the characterisation exercise by reference to "[t]he conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship", the Full Court in Skene strayed from the orthodox path.
[23] Workpac Pty Ltd v Skene (2018) 264 FCR 536.
[24] See Rossato at [34] – [37], under the heading “The decision in Skene.” The Respondent only referred to [197] in Skene; the High Court did not refer specifically to this paragraph. There can be little question about or challenge to the authorities referred to in this paragraph. That said, the firm and otherwise detailed disapproval of Skene by the High Court, in my respectful view, must necessarily put some question marks over the Full Court’s decision in Skene and reliance upon it. In any event and to state the obvious, there can be no dispute that the High Court’s outline of principle regarding the construction and interpretation of the “employment relationship” must otherwise and carefully be followed.
Secondly, at [56] – [58], the plurality of the High Court in Rossato commented on the proper course and task to be undertaken when characterising an employment relationship (internal citations omitted):
[56] In Commonwealth Bank of Australia v Barker, French CJ, Bell and Keane JJ said:
"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."
[57] A court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship. The search for the existence or otherwise of a "firm advance commitment" must be for enforceable terms, and not unenforceable expectations or understandings that might be said to reflect the manner in which the parties performed their agreement…
[58] While it is true to say that "[t]he history of the employment relationship is considerably longer than the history of the employment contract", it is also true that the evolution of the employment relationship is "a classic illustration of the shift from status (that of master and servant) to that of contract (between employer and employee)".
In my view, the comments by the High Court in Rossato will necessarily require due attention in relation to the consideration of the construction and operation of the EA in relation to the Applicant’s contract of employment. It is unnecessary here to ponder possible interpretations of the clauses in the EA that are raised by the Applicant in the light of what the High Court said in Rossato, for example, regarding the “character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship” and a “firm advance commitment.”
Perhaps curiously, perhaps not, apart from the Respondent’s brief reference to the Full Court’s decision in Skene, no one referred to the High Court’s discussion in Rossato regarding the interpretation of the EA and the Applicant’s contract of employment.
Balance of convenience
The second limb of the Court’s inquiry relates to whether the balance of convenience in granting interlocutory relief favours one side or the other. As the authorities noted above make plain, “the issue of whether the Applicant had made out a prima facie case, and the question of the balance of convenience and justice, [are] related inquiries.”[25]
[25] See Emmett J in Generic Health v Otsuka at [28].
For the third time, I remind myself of the obligation of the Court regarding the assessment of “the balance of convenience”, again using the comments by Emmett J in Generic Health v Otsuka, at [25]:
… the second enquiry is whether the inconvenience or injury that the applicant would be likely to suffer, if an injunction were refused, outweighs or is outweighed by the injury that the respondent would suffer if an injunction were granted…
Stated in no pejorative way, the Applicant’s arguments here are modest. They focus mainly on the “reputational damage” he would suffer if his contract was not “converted.” He also contended, but did not extrapolate or otherwise provide evidence in support of the claim, that he would also suffer economic loss. The Court may take some notice of the simple fact that once a person’s employment ceases, there is usually no income from that terminated employment (subject to any payments for leave of one kind or another, redundancy payments and the like).
The Respondent’s contentions, helpfully and carefully detailed in written submissions and only summarised here were as follows.[26]
[26] See pars.18(a) – (e) of the Respondent’s Submissions, filed 26th June 2024.
First, the Respondent submitted that damages were (and are) an adequate remedy. For example, the University said that any pecuniary loss can, obviously and self-evidently, be remedied by damages and, potentially, pecuniary penalties. This is on the basis that any breach of an EA is a breach of s.50 of the Fair Work Act 2009 (“the FW Act”), which is a civil penalty provision. Further, the Respondent submitted that the Court had remedial powers under s.545 of the FW Act to Order reinstatement. Additionally, the Respondent submitted that the Applicant would be entitled to severance pay on the expiration of his employment. In no way critically, no figures were provided on this last submission to support this contention, which made it a tad difficult to comprehend what sort of financial sum was being spoken about, and in turn, how one compared the amount of possible severance pay with any damages that might otherwise be awarded was not traversed.
A second aspect relating to the balance of convenience, said the Respondent, concerned the “injury to the Respondent.” These [potential] injuries were primarily (but not only) financial because, to keep (or re-employ) the Applicant, would (a) result in a deficit under the current DFAT Grant, (b) cause the Department to use its own [limited] resources to fund the position, which it was contended it could not do, and (c) adversely impact the employment of other staff in the Department. Although not formally couched as such, it was also submitted that budget over-run under the DFAT Grant was likely to reflect poorly on the Department in making any further Application to DFAT in relation to any future grant Application.
The subject of what I will call here, in no pejorative way, the “financial imperative” was canvassed at a little length with Counsel for the Respondent. Part of that candid discussion was as follows (cited in no pejorative way; emphasis added):[27]
[27] T 23 & 24
HIS HONOUR: But as Professor D’Arcy lays out – especially in his reply affidavit, but it’s also reflected in Professor Schmidt’s letter confirming his appointment at a higher level – that he’s an academic of significant international standing, and it’s international standing in a sense versus budgetary requirements. Do questions of – perhaps I had wrongly assumed, and maybe it’s an antiquarian view that an academic’s eminence still plays some sort of role of so or so, “Sorry, you know, Professor Tolkien, love to keep you, but there’s the door”, or, you know, pick any other eminent from years past, leaving aside current ones. I’m just curious again, can I say.
MS BINDON: There’s – my understanding is this is very normal for a program. There is absolutely zero reflection on the eminence, or detraction from the eminence, of Professor D’Arcy. Well recognised – there is no issue around that.
HIS HONOUR: It’s just a cutthroat area of academia these days.
MS BINDON: Well, the issue, your Honour, is ‑ ‑ ‑
HIS HONOUR: That’s not said in any pejorative way.
MS BINDON: ‑ ‑ ‑ Professor D’Arcy himself doesn’t have any intention of staying there. He says it himself in his own correspondence. He intends to end, the end of June, because it suits him. Because his students, who are finishing their PhD’s and so forth ‑ ‑ ‑
HIS HONOUR: I thought he said that he still had a number of continuing students to supervise.
MS BINDON: Well, that is his assertion. And the other point I would add to that, your Honour, and which will certainly be put in full in evidence at final hearing, is that it’s completely normal. PhD supervision is a panel process. Academics do come and go, and the university is well adept at dealing with changes in panel make-up for supervision. So the university will be dealing with that in the ordinary course. And that is all an ANU thing. It’s got nothing to do with a Dean that doesn’t control supervision of PhD students at all. And the fact that he supervises PhD students is not a reason to keep him on the program when there’s no funding for his role, because that can all be absorbed by other academics. What he has indicated in his correspondence previously, to the university in his 1 March letter, is:
Professor D’Arcy intends to finish at ANU on 30 June 2026, after his current PhD students have submitted their Cambridge history.
So he has the eminence and the recognition, but that doesn’t mean that one stays in a university forever because there’s value in the person’s contribution. Yes, there’s value in the person’s contribution, but people, and academics in particular, do many varied things and find positions in very many places and different institutions. So that issue around his, you know, recognition – his status is neither here nor there to whether there’s funding for his role. And it is a program that has external source funding, so it’s not really the university just deciding who we’re going to fund. It’s about the program he’s on, and he accepts that that is the program he’s on, and he’s tied to that program. So it’s just about who, in the course of the program, stays and ends and starts at what point. Not every person on the program started at the first day and will be there at the end. That is – it’s a matter of fact. So he’s quite wrong to say that this is only affecting him. People have started at different stages, and the funding issues change as priorities change and as salaries go up and down. I don’t think they go down, actually. They just go up. And the other thing that one would observe just on that is, being a level E professor, he’s very expensive, and that’s not said in a derogatory way. But just on your inquiry around funding, if you look through the budgeted positions, very few are at that very senior level, and the key management roles are basically at that level. Some of them are not level E; they’re lower. So for his position to be funded necessarily means less can be done with that budget. They were all the submissions I had to make, your Honour, unless there’s something I can assist you with.
The Respondent also submitted that, because the Applicant had known the termination date of his contract of 30th June 2024 at least since 17th June 2022, he had relevantly delayed bringing the current Application. While noted, understandably, this point was not pursued and certainly not ahead of other matters of likely greater or higher import.
The final matter submitted by the Respondent was that no “undertaking as to damages” was proffered, according to authority, by the Applicant. This was informally remedied by Counsel for the Applicant, during brief oral submissions, giving the undertaking. It should have been given earlier and noted in the material filed by the Applicant.
Summarily, I note the following as the Court’s consideration of the various matters raised by both parties regarding the balance of convenience (without necessarily specifying it, obviously there will, of course, be different “weight” given to some matters compared to others):
(a)Somewhat typically in Applications of this kind, both sides put their arguments, to a significant degree, in extremis, or the absolutely worst-case scenario, as if every issue was almost “life and death”. This is also to say that, until the Court raised it, there was no discussion about mediation to see if some alternative solution might be available. I hasten to add that Counsel for the Respondent fairly noted that the Applicant had not sought to utilise or exercise any of the dispute resolution procedures under the EA;
(b)In a similar vein, to take one specific example, the Respondent’s economic arguments regarding the expected dire financial risks to which the University (or at least the Department) would be exposed if the Applicant was to continue his employment, were all predicated upon any such employment being in place for the full two years as sought by the Applicant. However, even from a procedural point of view, and accepting that it was not canvassed (other than implicitly), the urgency of the Application – for both parties – must be taken or understood to be on the basis that if there is to be any final hearing and determination of the issues, it is imperative that such a hearing must take place as soon as reasonably practical, and then only after the parties attend mediation – to which both parties agreed, with varying degrees of enthusiasm. It follows that the grave financial risks or exposure prophesied by the Respondent would be highly unlikely to eventuate because there would be a determination of the issues sooner rather than later. Only then – after each side has ventilated all relevant evidence and had it tested at a hearing – can or should either side be making proper assessment of what the more likely financial position will be. Until then, to speak rather colloquially, everyone should be “cooling their jets” until there is greater clarity and certainty – factually (including financially) and legally;
(c)The reputational damage and economic loss arguments propounded by the Applicant are not insignificant, even if there is little formal evidence to support each of them. I have already noted generally the loss of income upon the cessation of employment. It is difficult, as the Respondent says, to see how the Applicant could not be relevantly compensated by damages in the event that the Court found his employment, for example, could and should have been converted under the EA. Given his eminence, I suspect that the Applicant’s reputational “damage” would be modest, at best,;
(d)What is much less clear, and obviously untested, is (i) the upheaval to the six doctoral students currently supervised by the Applicant, and the presumably almost intolerable extra burden on other staff if they have to step in to supervise these students (who are likely to be distraught, and much else, in losing their supervisor); and (ii) who teaches the now compulsory course (noted above) developed and taught by the Applicant. Again, his removal ensures more burden-shifting for other, presumably already strained staff. This rather begs the question about why the University (i.e DPA) would fix a specific course, make it compulsory, and do nothing about the employment of the person who customarily teaches it other than to force his exit from the University. In a slightly similar vein, it seems at least somewhat odd to promote someone to the rank and status of Professor, and do so on the basis of merit, all the while knowing (on the University’s evidence) that this person will be required to leave the university in approximately 6 months’ time. The Respondent’s arguments that “staff”, including doctoral supervisors, come and go regularly (my summary), are, while somewhat attractive, belie some rather more complex issues. Without giving evidence from the other side of the Bar Table, the Court may take some judicial notice that, invariably, even with a supervisory doctoral panel, students invariably deal with one supervisor rather than with a “committee” for each issue regarding the research and writing of the thesis. Further, six doctoral students at the one time is a significant gathering of the highest-level student body. Simply, as it were, to pass them around to other supervisors, in my view, could and likely would cause significant disruption at multiple levels. Again, the Court may take some basic judicial notice of the stresses and strains of research and writing at doctoral level – here multiplied 6 times. Ultimately, if all of a sudden the Applicant is no longer around to guide these doctoral students, it could also cause some reputational damage for the University about how it looks after doctoral students, notably in the discrete areas currently addressed by, and under the purview of, the Applicant;
(e)Evidence of the other Professors to whom the Applicant referred, it seems to me, is likely to be important, for example, regarding whether the Applicant was included in the DFAT Grant until the end of June 2026. There is no evidence from either of these Professors currently before the Court. I suspect too that further and examined evidence from Associate Palmieri, and likely others from DFAT and the University’s finance people, will be necessary;
(f)Although there was little, if any, evidence regarding Departmental (DPA) finances, presumably there will need to be further clarification of a wide range of such matters from, for example, DFAT (concerning the current and or possible future grants) and the University (concerning other possible, even short-term, funding options).
This modest discussion about balance of convenience – “for and against” – in my view, suggests that, while there are some reasonable arguments on both sides, on balance, I have significant difficulty seeing that the Respondent is unduly prejudiced were the Court to grant some interlocutory relief to the Applicant, accepting that it must be only on a short-term basis so that (a) the parties can attend mediation as a matter of urgency, and (b) if there is no resolution of the current impasse at mediation, important contractual issues can properly be examined and determined at a hearing convened as a matter of appropriate urgency and expedition.
Indeed, apart from the interesting legal question of the interpretation of the EA and the Applicant’s right(s) under it (not least concerning whether one can “convert” a contract that has, on its face, now ended), Counsel for the Respondent candidly and typically fairly noted in oral submissions that the Respondent’s main argument(s) are essentially financial.
Overall, and accepting the unusual circumstance where the Court was being asked for interlocutory relief on the final business day before the expiration of the Applicant’s contract that was to take place over the weekend after the hearing, the matters that have, as it were, swayed me the most are (a) the serious contractual issue regarding the possible “conversion” of the contract under the EA, and (b) the regular reference by Court’s of the significance of relief seeking to maintain the “status quo”, pending the Court being able to examine more completely the evidence. The so-called “status quo” here is somewhat illusory because of the terms of the fixed term contract which has now come to an end, as of 30th June 2024. But another way of looking at the status quo is that there is, theoretically at least, an inchoate right under the EA to have the [former] contract converted to a continuing one, albeit for [only] two more years or as might otherwise be agreed between the parties. And who knows whether, upon inquiry being made, DFAT might actually be quite content to allocate or approve some change to current funding practices that would accommodate Professor D’Arcy’s employment for some, as yet, undefined but very specific period having regard to his topical areas of expertise.
Before pronouncing formal Orders, one other matter should be noted.
In the Applicant’s solicitor’s correspondence with the University, there is, albeit passing, comment along the following lines: “The errors of law and practice reflected in this case are all too common.”[28] Absent proper evidence to support such a sweeping statement, or anything like it, it should not have been made. I am not aware of any evidence to support it. In addition to distracting from the Applicant’s main argument regarding the construction and application of the EA, it bordered on the improper to make generalised, accusatory comments that, on its face, sought to cast a slur on the University’s conduct and general workplace practices.
[28] See Letter from Lander & Co to the University, 1st March 2024, described as “Attachment 1” to the Applicant’s Affidavit, filed 11th June 2024.
For the reasons given, and upon the Court noting the undertaking as to damages given by the Applicant’s Counsel at the hearing on 28th June 2024, in my view the appropriate Orders of the Court are as follows:
(a)Until further Order, or agreement in writing between the parties, both parties are restrained from taking any steps to progress or to finalise the employment of the Applicant with the Respondent pursuant to his fixed-term contract of employment which purportedly ended on 30th June 2024;
(b)Within 21 days of the date of these Orders, the Respondent is to file a Response (or Defence) to the Application and Pleadings, filed 11th June 2024;
(c)The parties are to attend mediation as a matter of urgency. The Court requests the Sydney Registry of the Federal Court of Australia responsible for organising mediations to arrange a mediation between the parties as soon as possible; and
(d)In the event that the matter is not resolved at mediation, the matter be listed for a final hearing, on an expedited basis (on the Court’s own motion), with the Case Management of the proceeding to be likely undertaken by his Honour, Judge Cameron.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 10 July 2024
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