Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT) University
[2023] FWC 2417
•22 SEPTEMBER 2023
| [2023] FWC 2417 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Dr Amir Reza Zokaei Fard
v
Royal Melbourne Institute of Technology (RMIT) University
(C2023/3694)
| COMMISSIONER YILMAZ | MELBOURNE, 22 SEPTEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – standing to bring an application under s.739 – Application dismissed.
Introduction
Dr Amir Reza Zokaei Fard was employed by Royal Melbourne Institute of Technology (RMIT) as a vocational education teacher and dismissed on 16 December 2021. On 28 June 2023, Dr Fard filed a form F10 dispute notification under s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute about implementation of workload planning in accordance with clause 46 of the RMIT Vocational Education Workplace Agreement 2019 (the Agreement). Dr Fard submits the relevant dispute settlement clause(s) under the Agreement are clauses 46 and 9 and the workload planning clauses concern 46 and 47 of the Agreement.
RMIT contend that Dr Fard has no standing to bring the application under s.739 of the Act.[1] It submits that it is not contested that Dr Fard’s employment came to an end on 16 December 2021, and submits there is no evidence of a dispute on foot when his employment ceased.[2] It further submits that this application is an abuse of process on the basis that since the dismissal for serious misconduct Dr Fard brought five other claims against RMIT in the Commission, all of which were dismissed except one which was discontinued. It further submits that the Commission should dismiss the application on the basis that it is frivolous or vexatious or has no prospect of success and refers the Commission to among other matters the relief sought which cannot possibly be provided.[3]
Dr Fard maintains that he has compelling evidence that he has a right to file the dispute with RMIT concerning its noncompliance with the Agreement.[4] In addition to his submissions and submissions in reply to the Respondent he tendered a 158 page Evidence Book with various materials.
Both parties were self-represented, and both agreed for the matter to be determined and this decision to be made on the papers.[5] Both parties complied with directions for the filing of materials.
Factual background
It is not in dispute that Dr Fard’s employment was covered by the Agreement until his dismissal on 16 December 2021.
The Agreement regulates the pay and conditions of employees engaged by RMIT in vocational education as teachers and senior educators as described in the classifications of work in Schedule 1 of the Agreement.
It is not in dispute that in early 2021 Dr Fard raised concerns about his workload under clause 45.5 of the Agreement.[6] The concerns raised were responded to by the Relevant Delegated Authority on 9 March 2021.[7] Dr Fard responded on 14 March 2021 but did not progress his concerns to the Relevant Senior Officer.
Following Dr Fard’s dismissal, he brought before the Commission the following applications:
i.An unfair dismissal claim that was dismissed by Commissioner Cirkovic on 31 May 2022.[8]
An appeal of the unfair dismissal claim that was dismissed by the full bench on 25 October 2022.[9]
A general protections claim that was dismissed by Deputy President Millhouse on 27 February 2023.[10]
A general protections not involving dismissal claim, that was closed on 21 June 2023, and
An unlawful termination claim that was discontinued on 28 June 2023.
This dispute application is the sixth claim against RMIT and Dr Fard alleges that he raised workload issues in each of the applications lodged with the Commission.
Background to this dispute
On 28 June 2023, Dr Fard lodged a form F10 with the Commission in relation to clause 46 – Workload Planning and clause 47 – Workload Allocation of the Agreement.[11] Dr Fard alleges that during his employment the respective clauses were not properly implemented. In relation to clause 46 he refers to the requirement to establish a Workload Management Committee, develop a teaching workload management framework, that RMIT inform employees of the workload provisions and outline the principles for managing workloads.[12]
In relation to clause 47 Dr Fard submits that RMIT misled teachers by disseminating incorrect information about duty hours, withheld information concerning teaching duty hours and failed to take into account matters when assigning teaching duty hours. Dr Fard describes the effect of this conduct as unjust and unequal distribution of duties among employees.
The remedy that Dr Fard seeks is “compensation for the additional workload….. while teaching various courses in Program C6131 – Advanced Diploma of Engineering (Aeronautical) over the years.”[13]
Dr Fard describes the following steps[14] taken to resolve his dispute:
· 15 January to 9 February 2021, discussed with line manager, Dr. Amita Iyer
· 9 February 2021 escalated to her manager, Dr. Nick Patterson.
· 9 February to 29 April, Dr Fard engaged with the Associate Director of the Future Technologies Cluster in RMIT College of Vocational Education.
· 1 to 7 May 2022, raised the matter with Ms. Amanda Achterberg, Deputy Vice Chancellor, Program and Delivery, Vocational Education.
· In August 2021, Dr Fard lodged an official complaint against Dr. Iyer and Dr. Patterson with RMIT University
· 1 August to 5 October 2021 discussed the matter with Mr. Adam Shepherd, Senior Manager, Policy and Workplace Relations, People.
In addition, Dr Fard raised the matter with officials from the National Tertiary Education Union (NTEU), including the President of the RMIT Branch and Dr. Alison Barnes, National President of the NTEU over October 2021 to February 2022.[15]
The Legislative Framework
Section 739 of the Act provides as follows:
‘Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note:The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.’
Provisions of the Agreement relevant to the dispute
The dispute settlement procedure of the Agreement is as follows:
‘9 DISPUTES
9.1 It is agreed that all Employees, the Unions and the University have an interest in the proper application of this Agreement and in the timely resolution of industrial disputes. Where any dispute arises under, or as to the operation or application of this Agreement or in relation to the National Employment Standards the following procedure will apply.
Step 1
9.2 In the first instance one or more Employees and/or their Representative, who may be a Union, shall discuss the dispute with the relevant supervisor and/or an appropriate representative of the University and attempt to reach an agreed resolution. The RMIT Branch President of the NTEU or the AEU Representative may raise a dispute directly with the Relevant Delegated Authority.
Step 2
9.3 If not settled at this stage, then the matter may be discussed further between the Employee’s Representative and a Representative of the University.
9.4 Should the dispute not be resolved by the processes referred to above or if either party fails to engage in the processes referred to above or if the matter is urgent in character, then the dispute may, at the election of either party, be referred to the FWC for resolution.
Step 3
9.5 The FWC may resolve the dispute through conciliation and/or arbitration. Subject to the right of any party to appeal a decision, the parties agree to be bound by and implement any order, decision or other form of settlement of the FWC.
Other matters
9.6 Where the above procedures are being followed, parties to the dispute will not take any action to exacerbate the dispute and work will continue normally. No party will be prejudiced as to final settlement by the continuance of work in accordance with this clause.
9.7 Any dispute pursuant to the Workload Planning provisions of this Agreement shall be dealt with in accordance with that clause.
9.8 Any dispute relating to a bona fide safety issue may be dealt with in accordance with relevant health and safety legislation without compliance with this clause.’
The clauses in dispute raised by Dr Fard are clauses 46 and 47 as shown below respectively:
‘46 WORKLOAD PLANNING
Workload Management consultation committees
46.1 A workload management consultation committee comprising relevant managers and elected Teacher representatives will be established in each College within three months of the commencement of this Agreement.
46.2 The workload management consultation committee will assist in the development of a teaching workload management framework for the College and discuss issues of general concern relating to workload management within the College.
46.3 The University will ensure that managers and supervisors are aware of the requirements in relation to managing and allocating workloads and that Employees are advised of the workloadallocation provisions of this Agreement.
46.4 The Parties agree that, from the second semester of 2019, Employee workloads will be managed according to the following principles:
(a) the line manager will undertake regular individual and collective consultation with their direct reports in order to ensure an appropriate and equitable distribution of workload within their management unit;
(b) the line manager, in consultation with the Employee, will be responsible for allocating duties to the Employee in their Workload Management Plan according to the workload categories described in clause 47.2;
(c) duties will be allocated having regard to the determination of work location in accordance with clause 48;
(d) the line manager will be responsible for preparing a Workload Management Plan every calendar year for each direct report within their management unit (excluding Casual Employees);
(e) the line manager will take all reasonable steps to provide the Employee with a copy of their Workload Management Plan prior to the commencement of the applicable teaching period;
(f) the Employee’s Workload Management Plan will reflect a fair, transparent and equitable workload in accordance with the provisions of this Agreement and may only comprise such duties as can reasonably be performed at a professional standard within the Employee’s Work Hours;
(g) the Employee and the Employee’s line manager shall share responsibility for regularly reviewing the Employee’s actual workload against the Workload Management Plan; and
(h) the line manager, in consultation with the Employee, will be responsible for adjusting the allocated duties of the Employee as necessary to ensure an appropriate and equitable distribution of workload within their management unit. Such adjustments will be reflected by way of amending the Workload Management Plan.
Workload disputes
46.5 An Employee who believes that the duties allocated to them under their Workload Management Plan cannot reasonably be performed at a professional standard within their Work Hours must first meet with their line manager to discuss their concerns.
46.6 If the meeting with the line manager does not resolve the Employee’s concerns, the Employee may notify the Relevant Delegated Authority of their workload dispute by providing:
(a) a copy of their Workload Management Plan; and
(b) a description in writing of the duties in their Workload Management Plan that will result, or are resulting, in excessive workload.
46.7 If the Relevant Delegated Authority is unable to resolve the Employee’s concerns, the Employee may refer their workload dispute to the Relevant Senior Officer.
46.8 If the Relevant Senior Officer is unable to resolve the Employee’s concerns, the Employee may progress their workload dispute in accordance with clause 9 of this Agreement by referring the dispute to the Fair Work Commission.
47 WORKLOAD ALLOCATION
Work Hours
47.1 Work Hours for an Employee classified as a Teacher are 38 per week (or a pro rata amount for Part Time Employees). Full-time Employees will generally perform 1748 Work Hours in a calendar year, based on the following assumptions:
(a) 38 hours per week x 46 weeks (1748 hours);
(b) 38 hours per week x 4 weeks (152 hours) of annual leave; and
(c) 7.6 hours per day x 11 days (83.6 hours) of public holidays.
47.2 An Employee’s Work Hours are to be allocated in the Employee’s Workload Management Plan under clause 46 according to the following principles:
(a) Teaching Duty Hours:
(i) Teaching Duty Hours means sessions of instruction and/or supervision and/or direct observation of students, including observation for the purposes of assessment; whether delivered at a campus of the Employer or elsewhere and whether delivered in person or by other means.
(ii) The maximum number of Teaching Duty Hours which may be allocated in an Employee’s Workload Management Plan is 800 hours in the Annual Teaching Period (Maximum Teaching Duty Hours).
(iii) The Parties acknowledge that workloads for Full-time Employees generally range from 16 Teaching Duty Hours to 21 Teaching Duty Hours per week, having regard to the factors in paragraph (b)(iii) below.
(iv) An Employee’s Workload Management Plan may provide for Teaching Duty Hours of less than the Maximum Teaching Duty Hours, having regard to the Teaching-Related Duty Hours and Service Duty Hours to be performed.
(v) The Maximum Teaching Duty Hours will be proportionately reduced where an Employee takes more than four weeks’ annual leave in the calendar year or takes long service leave.
(vi) For the avoidance of doubt, where an Employee takes personal leave or other approved leave (other than annual leave or long service), adjustments will be made to the Employee’s Workload Management Plan as required.
(vii) Teaching Duty Hours will be rostered no less than two weeks in advance of each timetabled teaching period (of not less than four weeks) and may only be varied with the agreement of the Employee concerned. Where Teaching Duty Hours are cancelled by RMIT with less than two weeks’ notice, the Teaching Duty Hours will be deemed to have been taught.
(viii) Paragraph (vii) does not apply to the first four weeks of a teaching program in the first or second semester of each year.
(ix) Consultation and agreement of an Employee is required for any allocation of more than 21 Teaching Duty Hours in any one week, provided that an Employee shall not unreasonably refuse RMIT’s request to perform an allocation of more than 21 Teaching Duty Hours in any one week.
(x) Any agreement under paragraph (ix) above must not provide for more than an average of 21 Teaching Duty Hours per week over a semester.
(b) Teaching-Related Duty Hours:
(i) Teaching-Related Duty Hours means those duties (preparation, assessment correction and student consultation) directly related to the allocated Teaching Duty Hours.
Student consultation includes individual or collective dialogue with students that is directly related to a competency or learning outcome associated with the allocated teaching load and includes such things as communication through the Learning Management System (Canvas) and the management of Equitable Learning Plans.
(ii) The minimum number of Teaching-Related Duty Hours which may be allocated in an Employee’s Workload Management Plan is 0.5 hour for each Teaching Duty Hour allocated.
(iii) When allocating Teaching-Related Duty Hours in an Employee’s Workload Management Plan, the line manager and the Employee must give consideration to:
(A) the complexity of the allocated teaching load (including student demographics, mode of delivery including the extent of Work Integrated Learning and the number of programs / units of competency / modules in which the Employee is allocated Teaching Duty Hours);
(B) the quantum of curriculum revision required;
(C) the number of students in each class;
(D) the nature of the assessment required; and
(E) any other relevant factors.
(c) Service Duty Hours
(i) Service Duty Hours include any duties within the scope of an Employee’s position which are not Teaching Duty Hours or Teaching-Related Duty Hours.
(ii) For the avoidance of doubt, Service Duty Hours will include any work-related travel required by the University.
(iii) The number of Service Duty Hours to be allocated in the Employee’s Workload Management Plan is the remaining Work Hours after the deduction of Teaching Duty Hours and Teaching-Related Duty Hours.
(iv) The Service Duty Hours allocated in an Employee’s Workload Management Plan must contain a minimum of 50 hours of Professional Development activities, including retraining and industrial release opportunities.
(v) An Employee who is assigned responsibility as an OH&S Staff Representative shall receive sufficient time as part of the Service Duty Hours allocated in the Employee’s Workload Management Plan, as is necessary for the purpose of exercising their powers under the Occupational Health and Safety Act 2004 (Vic) including for, but not limited to, the purpose of attending required training.
Curriculum time allowance
47.3 Employees involved in courses which the meet the following criteria shall receive a time allowance of up to 80 hours per year based on the relative proportion of each type of course taught. Time allowances are to be deducted from the Maximum Teaching Duty Hours:
(a) Preparation of classes and assessment of programs which are part of degree programs:
(i) 80 hours per year for an Employee whose total teaching is in these programs or a fraction of 80 hours based on the proportion of an Employee’s total teaching in these programs (pro rata for part-time Employees);
(b) Teaching programs accredited for the Victorian Certificate of Education:
(i) 80 hours per year for an Employee whose total teaching is in these programs or a fraction of 80 hours based on the proportion of an Employee’s total teaching in these programs (pro rata for part-time Employees);
(c) Teaching in diploma and advanced diploma programs or equivalent:
(i) 80 hours per year for an Employee whose total teaching is in these programs or a fraction of 80 hours based on the proportion of an Employee’s total teaching in these programs (pro rata for part-time Employees);
(d) Employees involved in courses which meet the following criteria shall receive time allowances of up to 80 hours per year depending on the degree to which the duties required meet these criteria:
(i) Moderation of assessments when required by the accredited program;
(ii) Work being subject to formal out-of-class examination;
(iii) Preparation of assessment materials for formal out-of-class assessment;
(iv) Preparation and development of learning or assessment materials for the use of teachers in competency, distance/flexible, articulated or other learning approaches.
47.4 The maximum curriculum time allowance available to an individual Employee is 80 hours per year.
Program management and/or program co-ordination responsibilities
47.5 A Senior Educator with program management and /or program co-ordination responsibilities will have those responsibilities included in their Workload Management Plan.
47.6 The Senior Educator’s Maximum Teaching Duty Hours will be reduced to having regard to the complexity and scope of their program management and/or program co-ordination reduction.
47.7 The reduction in Maximum Teaching Duty Hours will be at least 240 hours per year.
47.8 For the avoidance of doubt, clause 47.7 applies on a pro-rata basis to Part-Time Employees.’
Submissions of the parties
Dr Fard submits that the Commission has jurisdiction to determine his dispute and contends that he has submitted substantial information that supports this contention. Dr Fard refers to s.738 (b) of the Act and says that where the Agreement includes a provision for resolution of disputes, as outlined by s.186 (6) of the Act, jurisdiction is satisfied.[16] In this matter he contends that clause 9- Disputes of the Agreement satisfies both ss.738(b) and 186(6).
Further Dr Fard relies on Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [17] and submits that there was an ongoing process on foot for the resolution of the dispute, despite Dr Fard’s dismissal and filing of the dispute application on 28 June 2023. He concludes that the Commission has jurisdiction to “address the non-compliance issues concerning RMIT’s adherence” of the Agreement[18]
RMIT in their submissions focus on the issue of standing to bring the dispute application consistent with the directions issued on 3 July 2023 and the relevant matters contained in the form F10.
RMIT submits that it is well established that only a current employee may bring an application under s.739 of the Act, unless the dispute arose during employment and continued after the termination of employment.[19] RMIT submit that nowhere in Dr Fard’s materials does he demonstrate that a dispute was on foot pursuant to clause 9 of the Agreement when his employment ceased, therefore he has no standing to bring the application.[20]
In addition RMIT submit that, in relation to workload disputes, the relevant clauses 46.5 – 46.8 of the Agreement provide that ‘an employee “who believes that the duties allocated to them under their Workload Management Plan cannot reasonably be performed at a professional standard within their Work Hours”… [can be invoked] first with their line manager (cl 46.5)’ and if not resolved, then per the stepped process consistent with clauses 46.6 – 46.7 before the dispute can be progressed in accordance with clause 9 of the Agreement (stipulated in clause 46.8).[21]
RMIT submit that Dr Fard did raise a dispute about his workload in early 2021 under clause 45.5 but this does not give him standing for the s.739 dispute application. In particular RMIT refer to the correspondence contained in the Applicant’s Evidence book at pp 121 – 125 which shows that the Relevant Delegated Authority responded on 9 March 2021, but the matter was not referred to the Relevant Senior Officer.
RMIT further note that in Dr Fard’s materials that on 1 August 2021 he complains about a range of issues (Attachment 11) one of which relates to the manner in which his workload was managed. RMIT provided a report to Dr Fard on 30 September 2021 where the advice to progress his dispute to the Relevant Senior Officer and possibly the Fair Work Commission was never acted on.
In referring to the unsuccessful applications lodged by Dr Fard against RMIT, it notes that this application is not genuine but rather another attempt to air his grievances against it. RMIT does characterize the application as an abuse of process, refers to the remedy sought that cannot be provided and concludes with the view that the application is vexatious, particularly in light of the union’s advice that Dr Fard’s workload issue is misconceived.
Dr Fard unprompted, provided reply submissions on 1 August 2023. He concludes that because RMIT did not refute all of his claims it therefore follows that RMIT acknowledges the various alleged breaches of the Agreement.[22] In response to submissions that Dr Fard did not follow the required dispute clauses, he submits that he genuinely made attempts to do so “in pursuit of justice” and that a strict application is an unjustified standard on the basis that RMIT allegedly did not comply with its own Agreement. Should the Commission accept RMIT’s submissions, he states that RMIT evades its obligations.
Dr Fard reiterates various communications and adds that to suggest he did not act in regard to the dispute over the two years is misconstrued and an inconsistency in RMIT’s submissions because the various applications were his efforts to prosecute his case.
I observe that the final paragraph refers to his “misconduct complaint” against a member of this Commission that dealt with his unfair dismissal application to suggest that as his complaint was not dismissed or declared as lacking credibility it infers a threat to both myself and the Respondent. I do consider this paragraph inappropriate and out of line. Nevertheless, I intend to deal with the alleged dispute consistent with my obligations.
Consideration
The Commission can arbitrate a dispute where the dispute resolution procedure authorises it.[23] Though the Commission must not exercise any powers that may be limited by the term in the Agreement[24]. Section 186(6) of the Act requires an enterprise agreement to include a dispute settlement term but importantly it allows the parties flexibility to negotiate the dispute settlement framework. In this matter the dispute settlement term relating to workload disputes is in clause 46.5 – 46.8. Relevantly clause 46.8 defers parties to clause 9 where the Relevant Senior Officer is unable to resolve an employee’s concerns. Clause 9 contains a three-step procedure. Clause 9.5 in the Agreement authorizes the Commission to deal with a dispute in step 3.
The Commission has no general power of arbitration,[25] however, s.595 of the Act provides that the Commission may deal with a dispute if expressly authorised to do so under or in accordance with another section of the Act.[26] Further the Commission may arbitrate only if authorized, and may exercise any of its powers, but to avoid doubt the Commission must not exercise its powers to arbitrate except as authorized by subdivision B—Conduct of matters before the FWC.[27]
In this matter the application is made pursuant to s.739 of the Act. Disputes dealt with by the Commission in s.739 are enlivened where an industrial instrument, or in this case an enterprise agreement includes a term that provides a procedure for dealing with disputes.[28]
The principles to be applied in the interpretation of agreements are well established. I respectfully adopt those principles in AMWU v Berri Pty Limited[2017] FWCFB 3005 at [114] and AMIEU v Golden Cockerel Pty Ltd[2014] FWCFB 7447 at [19-41], including more recently in Skene v Workpac Pty Ltd (2018) 280 IR 191 at [197]. For the purposes of this matter the starting point for interpretation is the ordinary meaning of the words read as a whole and in context as the words are not to be interpreted divorced from industrial realities. Additionally regard must be had that the framers of the agreement had likely a “practical bent of mind.” The task of interpreting does not involve a rewrite to achieve what might be regarded as fair or just, instead the task is to interpret the agreement as produced by the parties, among the other principles
The dispute as described
The Agreement clause(s) is/are to be read objectively within the context and purpose of the Agreement, and in the context of its industrial setting. Dr Fard in his Form F10 states that the dispute is about implementation of clauses 46.1 – 46.4 and 47 of the Agreement ‘resulting in unjust and unequal distribution of duties’[29]. He submits that he raised his issue with his line manager from 15 January to 9 February 2021 and that the dispute was then escalated to his line manager’s manager on 9 February 2021.
Clause 46 concerns workload planning, of which 46.1 - 46.2 relates to the establishment of a Workload Management Consultation Committee within 3 months of the commencement of the Agreement. Additionally, the Committee will assist in the development of a teaching workload management framework and discuss issues of general concern relating to workload management.
Clause 46.3 provides that the University is to make managers and supervisors aware of the requirements in relation to managing and allocating workloads and that employees are advised of the provisions in the Agreement. Clause 46.4 provides that the Parties agree that from the second semester of 2019, employee workloads will be managed by the set principles in sub clauses 46.4 (a) – (h). These principles concern Line Manager responsibilities, a general principle for the workload management plan and a shared responsibility for the Employee and Line Manager to review the Employee’s actual workloads against the plan. Principle (h) places responsibility on the Line Manager “in consultation with the Employee” to adjust allocated duties to ensure appropriate and equitable distribution of workload within the management unit and that such adjustments will be reflected in an amended Workload Management Plan.
Clause 46.5 – 46.8 concerns the process and steps for resolution of workload disputes before progressing the dispute in accordance with clause 9 and by referring the dispute to the Commission.
Clause 47 – Workload allocation confirms that full-time teachers work a 38-hour week and pro rata for part-time (clause 47.1) and clause 47.2 stipulates that an Employee’s work hours are allocated in the Employee Workload Management Plan under clause 46 according to principles associated with “teaching duty hours” (clause 47.2 (a)), “teaching related duty hours” (clause 47.2 (b)) and “service duty hours” (clause 47.2 (c)). Dr Fard identifies clauses 47.2 (a) and (b) in respect to his dispute, however, for completeness he does not refer to clause 47.2 (c) nor 47.3 and 47.4 - curriculum time allowance where for certain courses a time allowance of up to 80 hours per year may be deducted from Maximum Teaching Duty Hours, or additional provisions in clause 47.5 for program management and/or program co-ordination responsibilities.
Dr Fard describes the dispute in the Form F10 as follows:
‘1- Implementation of Workload Planning according to Section 46 of the RMIT Vocational Education Workplace Agreement (VEWA) 2019
It has become apparent that during my employment at RMIT University from July 2019 to December 2021, the following clauses of the VEWA were not effectively implemented:
-Clause 46.1 and 46.2 of the VEWA 2019, which explicitly states the requirement to establish a workload management consultation committee consisting of relevant managers and elected teacher representatives within three months of the Agreement’s commencement and the development of a teaching workload management framework.
·Clause 46.3 of the VEWA 2019, which obligates the university to inform employees about the workload allocation provisions outlined in the Agreement.
·Clause 46.4 of the VEWA 2019, which outlines specific principles for managing employee workloads. These principles include:
o The preparation of a Workload Management Plan for each direct report by line managers.
o Regular individual and collective consultation to ensure a fair and equitable distribution of workload.
o Allocation of duties in accordance with the workload categories described in clause 47.2, with consultation and consideration of the employee’s input.
o Providing employees with a copy of their Workload Management Plan prior to the commencement of the relevant teaching period.
o Developing fair, transparent, and equitable workloads that conform to the provisions of the Agreement and can be reasonably executed within the employee’s designated work hours.
o Regularly reviewing the employee’s actual workload against the Workload Management Plan.
o Adjusting allocated duties as necessary to maintain an appropriate and equitable distribution of workload within the relevant management unit.
2- Workload Allocation according to Section 47 of the RMIT Vocational Education Workplace Agreement (VEWA) 2019
Throughout my tenure at RMIT University from July 2019 to December 2021, it has become evident that the following clauses of Section 47, which pertain to workload allocation, were not adhered to:
·RMIT University misled vocational education teachers by disseminating incorrect information stating that all VE teachers must have 20 to 21 Teaching Duty Hours per week. However, as specified in Clause 47.2(a)(iii) of the VEWA, the workload for full-time employees generally ranges from 16 to 21 Teaching Duty Hours per week, taking into account the factors outlined in paragraph 47.2(b)(iii). Furthermore, Clause 47.2(a)(iv) emphasises that an Employee’s Workload Management Plan may allow for Teaching Duty Hours less than the Maximum Teaching Duty Hours, considering the Teaching-Related Duty Hours and Service Duty Hours to be performed.
·RMIT University hide information to VE teachers concerning their Teaching Duty Hours (TDH) entitlement by withholding the Training and Assessment Strategy (TAS) documents for each program and consequently overburdening them. RMIT solely considered timetabled classes as Teaching Duty Hours, disregarding the significant number of teaching hours specified in the TAS documents.
·RMIT University even neglected to allocate a minimum of 0.5 hour for each Teaching Duty Hour, as stipulated in clause 47.(b)(ii).
·RMIT managers failed to take into account clause 47.(b)(iii) when assigning Teaching Related Duty Hours, disregarding factors such as:
§the complexity of the allocated teaching load (clause 47.(b)(iii)(A)),
§the amount of curriculum revision required (clause 47.(b)(iii)(B)),
§the number of students in each class (clause 47.(b)(iii)(C)),
§the nature of the assessment required, and any other relevant factors (clause 47.(b)(iii)(D) and clause 47.(b)(iii)(E)).
These consistent violations of the agreed-upon provisions have had significant repercussions on workload management and allocation, resulting in an unjust and unequal distribution of duties among employees.’
However, the correspondence that Dr Fard refers to as being the step taken to bring the issue to his Line Manager is an email of 15 January 2021 where he requests to meet to discuss his “work plan and teaching duties for 2021” and an issue with his problems/ errors in delivery and assessment in five courses in semester 1 of 2020 which resulted in the University remarking each student’s result.[30]
From the above it is understood that the dispute concerns Dr Fard’s Workload Management Plan and teaching duties for 2021 and not from 2019. While the Form F10 states that the Agreement’s clauses relating to workplan were not adhered to since he commenced employment, his dispute notification to his Line Manager is limited to his Workload Management Plan for 2021. Given the references to clauses 46 and 47, it is understood that Dr Fard alleges that his workplan was inconsistent with the principles contained in clause 47.2(b)(iii). Implementation of workload planning consistent with clause 46 being the first part of Dr Fard’s identification of the dispute is unclear as he restates the principles rather than identify what clause and how it is in dispute.
Steps to progress the dispute
Dr Fard in his Evidence Book included correspondence between him and his Line Manager on 4 February 2021 where he questions, among other matters, the following in his Workload Management Plan:
His statement that there are 2 courses that he has not taught before in his plan, that he does not have enough time to prepare to deliver them and that he does not think he has currency to deliver
He disagrees with the estimation of time required to deliver and assess the courses in his field to a “reasonable professional standard”
In reaching his position on assessment he relies on the Agreement and RMIT Training and Assessment Strategy.
He concludes that he is “willing to accept TEMPORARILY to teach the following 5 classes until we reach an agreement on my workload plan…”[31]
A meeting appears to have occurred on 5 February 2021 according to correspondence tendered. Dr Fard is critical that the meeting discussed matters pertaining to the remarking of his student’s assessments and not his workload management plan.[32] Despite this meeting, Dr Fard expresses a lack of confidence in Dr Iyer to resolve his workload management plan and requests escalation of his dispute. Again, he reiterates his points of the day before that relates to teaching the two courses and that he “accepts TEMPORARILY to teach“.
On 12 February 2021, Dr Fard wrote to Ms Amanda Achterberg, the Associate Deputy Vice Chancellor - VE Programs and Delivery providing his estimation of time for preparation, delivery and assessment for the courses assigned to him and his challenges in relation to his Workload Management Plan.
On 17 February 2021, Ms Achterberg referred the dispute in accordance with the workload disputes clause in the Agreement to Dr Nick Patterson, Associate Director, Future Technologies.
On 9 March 2021, Dr Patterson responded to the workload dispute and provided a revised Workload Management Plan, also taking into account additional emails from Dr Fard dated 11, 18 and 20 February 2021. Dr Patterson responded as the Relevant Delegated Authority under clause 46.6 of the Agreement. This correspondence addresses workload allocation in both teaching duty hours and teaching related duty hours, including a management direction to train and assess both courses. The revised plan contained amendments and the covering letter detailed explanations for the amendment, a response to each element of Dr Fard’s dispute and offered additional supports including mentoring and training to improve efficiency practices.[33]
On 14 March 2021, Dr Fard responded to the amended Workload Management Plan and clearly states that he “cannot accept” the new workload management plan as he asserts that it is inconsistent with the Agreement and the Training and Assessment Strategy. However, he states that he is open to any suggestion and as the dispute has continued for two months he has no option except to leave the matter to Dr Patterson and his ‘fairness and [his] vision for the Future Technologies.’ His emailed response then summarises his disagreement with the plan. He concludes the correspondence with action that he will take for his training and mentoring and asks for confirmation regarding instructions about proposed efficiency practices.[34] However I observe that in his letter of the same day, Dr Fard refuses to teach the two courses until agreement is reached on his workload management plan.[35] Further, while the cover email suggests that Dr Fard would leave the matter to Dr Patterson, his attached letter states in conclusion that he is unable to accept the workload management plan, that he expects a mutually agreeable plan and seeks immediate action.
On 1 May 2021, Dr Fard again wrote to Ms Achterberg informing her that his dispute regarding workload management plan remained unresolved. He also notes further issues around the reasons that his students were remarked in 2020 and identifies a potential third dispute being recent complaints by students against him resulting in a performance review. Dr Fard requests the dispute to be escalated to a higher level than Dr Patterson.[36]
Dr Fard did not provide any evidence of progression of the dispute to the Relevant Senior Officer. However, Dr Fard did provide medical certificates that covered the period 3 May 2021 to 28 December 2021.[37] An additional dispute arose concerning Dr Fard’s refusal to attend an independent medical examination and he attached his complaint to the RMIT Policy and Workplace Relations Teams about his Line Manager, Dr Patterson and another manager.[38]
RMIT submit they provided a report to Dr Fard on 30 September 2021 referencing advice to progress his dispute to the Relevant Senior Officer and possibly the Fair Work Commission that was never acted on. Neither party provided this correspondence. Further in correspondence shared with the NTEU, Dr Fard responds on 1 December 2021 to the email of 30 November 2021, where the union confirms that workload management plans need not be by agreement, that the concessions provided by Dr Patterson fits within the workload model and that the Plan was not contrary to the Agreement.
It is not in dispute that the Agreement applied to Dr Fard while employed with RMIT. It is further not in dispute that Dr Fard was dismissed effective 16 December 2021 for the reason of serious misconduct. The letter of termination does not elaborate on the nature of the conduct but does refer to notification of a workplace investigation letter dated 22 October 2021 and investigation findings provided on 9 December 2021. The evidence which is not in dispute is that Dr Fard raised a workload dispute in relation to his workload plan for 2021 in early 2021.
The Agreement stipulates that workload disputes by an employee that believes that their duties allocated to them under their Workload Management Plan cannot reasonably be performed to a professional standard within their work hours must first meet with their Line Manager (clause 46.5). This step I find had been met, and clause 46.6 involving the Relevant Delegated Authority had also been met. The Relevant Delegated Authority as provided for in clause 46.6 of the Agreement provided a response to the dispute and an amended Workload Management Plan on 9 March 2021.
Despite the amended plan, Dr Fard outright refused to accept it and informed the Relevant Delegated Authority that he expected a mutually agreeable plan.[39] I make two observations of this letter, firstly, that Dr Fard remained in dispute over the plan, more specifically he rejected it and secondly, that he pressed the point that the plan was to be an agreed plan. There is no provision in the Agreement that stipulates that the plan must be an agreed document. The Agreement does however, stipulate that the Line Manager shall consult with the Employee.[40] To consult is to deliberate with, seek information or advice from the person and to take into consideration (feelings or interests).[41] To consult is not to reach agreement, and contrasts with a mutual understanding.
Where a workload dispute remains, the Employee may refer the dispute to the Relevant Senior Officer.[42] The Relevant Senior Officer is defined as the relevant Vice-President, or member of the Vice Chancellor’s Executive, or their delegate.[43] No evidence was tendered that Dr Fard escalated the dispute after he rejected the amended workplan on 14 March 2021.
Clause 46.8 relevantly provides:
‘If the Relevant Senior Officer is unable to resolve the Employee’s concerns, the Employee may progress their workload dispute in accordance with clause 9 of this Agreement by referring the dispute to the Fair Work Commission.’
Relevantly clause 9 of the Agreement also provides a three-step process, the first being discussion with the supervisor or appropriate representative, alternatively the NTEU may directly raise the dispute with the Relevant Delegated Authority. Step two allows for further discussion between the Employee’s representative and a representative of the University, or if the matter is urgent then either party may refer the matter to the Commission. Step three allows the Commission to resolve the dispute via conciliation and/ or arbitration. Dr Fard did seek support from the NTEU until 13 October 2021.[44] Further there is no evidence that the NTEU advised RMIT of a dispute on behalf of their member. Instead, the correspondence from the NTEU to Dr Fard of 30 November 2021 provided advice on the series of matters raised. In summary the correspondence addresses the right of RMIT to alter student results with the Employee having no right of veto, that Dr Fard’s views that a workload management plan is to be an agreed plan is misconceived and advises that in their view there is no scope in the Agreement to take that matter further. Finally it raises with Dr Fard their concerns over RMIT’s intention to terminate his employment for refusing to attend an independent medical examination.[45]
The preamble of clause 9 of the Agreement provides that “Employees, the Unions and the University have an interest in the proper application of this Agreement and in the timely resolution of industrial disputes.” Clause 9 further states that “any dispute pursuant to the Workload Planning provisions of this Agreement shall be dealt with in accordance with that clause.”[46] Clearly the Parties intended that disputes concerning workload planning are to be dealt with consistent with the terms of clause 46.5 – 46.8 in the first instance. A workload plan is a plan of teaching duties allocated for the teaching calendar year, in this instance 2021. The steps in clauses 46.5 – 46.8 are mandatory before progressing a dispute to the Commission in accordance with clause 9 of the Agreement.
Having rejected the Relevant Delegated Authority’s amended workplan in March, there is no evidence that Dr Fard progressed the dispute in accordance with clause 46.7. Dr Fard did assume teaching duties, presumably in accordance with the plan as there is no evidence of further amendment to his duties. Perhaps Dr Fard may have maintained his grievance while not escalating it because on 1 May 2021 he wrote Ms Achterberg where he appears to respond to a suggestion that he contact HR Assist. RMIT also may have raised concerns in light of student complaints against Dr Fard. I do observe that Dr Fard in his 1 May 2021 email does ask for information on the next step to escalate his disputes, which in his letter appears to claim a failure by Dr Patterson to reply to his 14 March 2021 correspondence, a demand for official reasons that his student’s results in 2020 were amended and a new dispute about students complaining because he did not allegedly provide feedback. However, rather than escalating the workload dispute, Dr Fard proceeds on sick leave and provides medical certificates from 3 May to 28 December 2021. As already outlined Dr Fard’s employment was terminated on 16 December 2021 for misconduct, however, it is clear that prior to the dismissal Dr Fard refused to undertake an independent medical examination as directed by his employer.
Dr Fard concedes that each of the steps in the dispute settlement clause were not progressed, however, he states that he genuinely tried to “pursue justice” and should the Commission strictly apply the dispute settlement clause then RMIT would evade their obligations under the Agreement.
Where an Agreement has preliminary steps for the resolution of disputes, the Commission does not have a discretionary power to deal with the dispute. Section 739 requires that the Commission deal with a dispute in accordance with the terms of the Agreement.[47] The steps in clause s 46.5 – 46.8 are clear and mandatory. Further, not only must the words in the Agreement be interpreted as a whole and in context but also with their ordinary meaning. The clause refers to an ‘Employee’, and the Agreement applies to Employees. While Dr Fard was an Employee when he first raised his dispute in February 2021, he did not progress each step to enliven the powers of the Commission in accordance with clause 9 of the Agreement. The crucial step of escalating the workload dispute to the Relevant Senior Officer did not occur and this is a mandatory step before making an application in the Commission as an Employee. Dr Fard is no longer an Employee covered by the Agreement and did not bring the dispute before the Commission prior to his dismissal.
Other matters raised
Dr Fard also raises in his submissions that as RMIT did not refute his varied allegations about noncompliance with the Agreement, then it by default accepts that it breached the Agreement. Dr Fard is mistaken on this point; the parties were asked to solely focus on the question whether the Commission had jurisdiction to deal with Dr Fard’s dispute as enunciated in his Form F10 application. The fact that Dr Fard continued to allege various breaches of the Agreement were not the subject matter of these proceedings and RMIT’s focus on the relevant matter cannot be construed as any admission of purported breaches of the Agreement.
Dr Fard also raises his other applications before this Commission over 2022 to 2023 to suggest that he took all reasonable efforts to prosecute his case regarding the workload dispute. This position has little credibility as an unfair dismissal, general protection application involving dismissal, general protection application not involving a dismissal and an unlawful termination of employment application together with the appeal of the unfair dismissal application cannot in all reasonableness be inferred that it supports efforts to advance the dispute about workload in accordance with the Agreement or that it should sway the Commission to apply a level of discretion. Those applications are clearly in contrast to a workload dispute subject to clauses 46.5 – 46.8 of the Agreement.
Finally, Dr Fard seeks a remedy of compensation for alleged additional workload while teaching various courses over the years.[48] Such a remedy is not within the realms of the Commission’s jurisdiction. Even if the Commission had jurisdiction to deal with the dispute, Dr Fard does not articulate how such a remedy can be awarded by the Commission. Presumably he expects that the Commission would review his workload plan after it was reviewed by RMIT and reach a conclusion that he was overworked and determine that some form of compensation was payable. It is not necessary for the purposes of this decision to further elaborate on Dr Fard’s proposition to award compensation, other than to say the terms of an Agreement are relevant when dealing with a dispute. In any event Dr Fard lodged this application two years after his dismissal and there is no evidence of a dispute enlivened prior to dismissal to permit the Commission to deal with the dispute pursuant to clause 9 of the Agreement.
Conclusion
I have determined that the jurisdiction of the Commission has not been enlivened as the dispute settlement procedure has not been followed while Dr Fard was an Employee of RMIT. Further there is no evidence that the Agreement extends to former employees or that an alleged dispute since 2021 has survived even where the necessary steps under the Agreement were not followed; there is no authority for the Commission to use any discretion to deal with Dr Fard’s dispute under the Agreement.
For the reasons above, the Commission has no jurisdiction under ss.595 and 739 of the Act and the application is dismissed pursuant to s.587(a).
An order[49] to that effect will be issued with this decision.
COMMISSIONER
[1] Respondent’s Outline of Submissions [3].
[2] Ibid [1].
[3] Ibid [15].
[4] Applicant’s Outline of Submissions [9].
[5] Dr Fard initially made a request via email on 19 July 2023. When filing its materials on 31 July 2023, RMIT confirmed it did not object to the matter being determined on the papers.
[6] Respondent’s Outline of Submissions [8].
[7] Ibid [9].
[8] Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) - [2022] FWC 1375.
[9] Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) - [2022] FWCFB 143.
[10] Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University) - [2023] FWC 10.
[11] The 2019 Agreement stipulates new obligations concerning workload.
[12] Form F10 2.1.
[13] Ibid 3.1.
[14] Ibid 2.5.
[15] Ibid.
[16] Applicant’s materials ‘Why does the Fair Work Commission have jurisdiction to address non-compliance of RMIT with Vocational Education Workplace Agreement (VEWA) 2019 for the period of my employment at RMIT between 2019 to 2021?’ p 1.
[17] [2016] FWC5089.
[18] Applicant’s materials ‘Why does the Fair Work Commission have jurisdiction to address non-compliance of RMIT with Vocational Education Workplace Agreement (VEWA) 2019 for the period of my employment at RMIT between 2019 to 2021?’ p 1.
[19] Respondent’s Outline of Submissions [2] and citing Fairall v St George and Sutherland Community College Inc [2012] 226 IR 402;2012 FWA 8847.
[20] Respondent’s Outline of Submissions [3] – [5].
[21] Ibid [7].
[22] Applicant’s Submissions in reply [3].
[23] Ss.739 (1) and (4) Fair Work Act 2009.
[24] Ibid s.739 (3).
[25] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
[26] S.595(1) Fair Work Act 2009.
[27] Ibid ss.595 (3) – (5).
[28] Ibid s. 739(1) and s.738(b).
[29] Form F10 q2.1.
[30] Attachment 03 of Evidence Book.
[31] Attachment 05, email of 4 February 2021 from Dr Fard to Dr Anita Iyer.
[32] Attachment 06, email of 5 February 2021 from Dr Fard to Dr Anita Iyer.
[33] Attachment 07.
[34] Attachment 08 email and letter of 14 March 2021.
[35] Ibid p 8 of the letter.
[36] Attachment 09.
[37] Attachment 10.
[38] Attachment 11, 1 August 2021.
[39] Attachment 08, letter of 14 March 2021 from Dr Fard to Dr Patterson.
[40] See clause 46.4 (a ), (b) and (h).
[41] Definition Oxford Dictionary.
[42] Clause 46.7.
[43] Definition in the Agreement in Dictionary.
[44] Attachment 12.
[45] Ibid.
[46] Clause 9.7.
[47] The Australian Workers’ Union v MC Labour Services Pty Ltd[2017] FWCFB 5032.
[48] Form F10 at 3.1 Relief sought.
[49] PR766388.
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