Dr Jianyu Lin v Curtin University

[2013] FWC 3223

[2013] FWC 3223

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Dr Jianyu Lin
v
Curtin University
(C2013/3943)

COMMISSIONER CLOGHAN PERTH, 27 MAY 2013

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] This is an application by Dr Lin for the Commission to settle a dispute between himself and Curtin University of Technology in accordance with a dispute settling procedure contained in an enterprise agreement which covers his employment. The University objects to the Commission dealing with the dispute on the grounds that the dispute relates to Dr Lin’s unsuccessful application for promotion from Lecturer to Senior Lecturer and is a matter for the University’s Academic Promotions Committee and not a matter arising under the enterprise agreement.

PROCEDURAL BACKGROUND

[2] On 13 April 2013, Dr Jianyu Lin (Applicant) made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a dispute settling procedure (DSP).

[3] The application is made pursuant to s.739 of the Fair Work Act 2009 (FW Act).

[4] The Applicant is in dispute with Curtin University of Technology (University).

[5] The DSP is contained in the Curtin University Academic, Professional and General Staff Enterprise Agreement 2012-2016 (2012 Agreement)

[6] The application was the subject of a conference on 2 May 2013.

[7] At the conference on 2 May 2013, the Employer asserted that the Commission did not have jurisdiction to deal with the dispute as the dispute did not relate to a matter arising under the 2012 Agreement or the National Employment Standards pursuant to sub-clause 68.5 of the 2012 Agreement.

[8] The dispute was unable to be resolved. Consequently, it is necessary for the Commission to determine whether it has jurisdiction to deal with the dispute in the Applicant’s application.

[9] I advised the parties to the application that I would deal with the Employer’s jurisdictional objection “on the papers” and issued procedural directions for this purpose on 3 May 2013.

[10] The Employer provided its submission on 10 May 2013. The Applicant provided his submission on 17 May 2013.

[11] Having considered the submissions, this is my Decision and Reasons for Decision.

RELEVANT STATUTORY FRAMEWORK

[12] It is not in dispute that the 2012 Agreement provides a DSP in accordance with paragraph 738(b) of the FW Act.

[13] It is not contested that Dr Lin is a party to the dispute and can make an application to the Commission pursuant to subclause 739(6) of the FW Act.

[14] The remaining relevant provisions of the FW Act as they relate to this application are as follows:

● 739 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.

(2) ...

(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.

(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) ...

[15] I now turn to the relevant provisions of the DSP in the 2012 Agreement.

Relevant 2012 Agreement Provisions

68 Dispute Resolution Procedure

68.1 ...

68.2 ...

68.3 ...

68.4 ...

68.5 If a dispute relates to a matter arising under this Agreement or the National Employment Standards, this Clause 68 will apply to settle the dispute:

a) ...

b) ...

c) If the dispute is unable to be resolved in accordance with Clause 68.5(b) any party to the dispute may refer the dispute to FWA for resolution.

...

12 Position Classification (Academic Staff)

All Academic Staff Member positions will be classified according to the classification structure specified in Schedule 8, Classification Standards (Academic Staff)...

13 Contract of Employment General Provisions

13.1 Modes of Employment

13.1.1 ...

13.1.2 ...

13.1.3 ...

13.1.4 The University will make a written offer of appointment to Staff Members, (other than Casual Staff Members who will be provided their terms of appointment in accordance with Clause 16), which specify details about the position and conditions of employment including the following terms:

a) the type of employment;

b) classification level;

c) the duties to be performed;

d) the reporting relationship;

e) relevant pay rates and conditions of employment;

f) hours or fraction of Full-time hours to be worked;

g) length and terms of any Probationary Period;

h) relevant industrial agreements.

13.1.5 ...

13.1.6 A Staff Member will be required to sign the written offer of appointment in acceptance of the conditions of employment.

13.1.7 ...

RELEVANT BACKGROUND

[16] On 4 May 2011, Dr Lin was offered a full-time fixed term contract of employment as a Lecturer within the Department of Electrical and Computer Engineering, Faculty of Science and Engineering (Electrical and Computer Engineering Department).

[17] Dr Lin accepted the offer on 6 May 2011.

[18] Prior to accepting the offer of employment, Dr Lin states that he received a telephone call in March 2011 from Professor Islam who was then head of the Electrical and Computer Engineering Department. Dr Lin states that the University could offer him appointment to a Lecturer’s position and that, “I could apply for promotion later on”. According to Dr Lin, Professor Islam implied that appointment as a lecturer was as a probationary period and would end with promotion. Finally, Dr Lin asserts that Professor Islam affirmed that Dr Lin’s fixed term contract could be converted to an ongoing position.

[19] On 17 September 2012, Dr Lin submitted an application for Academic Promotion from a Lecturer to Senior Lecturer.

[20] The process for Academic Promotion is contained within a University document entitled Academic Promotions Procedure (AP Procedure).

[21] For the purposes of Dr Lin’s application, he was required to be assessed by the University Academic Promotions Committee (UAPC).

[22] Promotion to the next level is based upon demonstrating:

● appropriate qualifications and skills; and

● achievement of promotion criteria.

[23] Promotion criteria are:

● teaching and learning;

● research/creative works; and

● service and leadership.

[24] The expected performance appropriate for each promotion criteria immediately above in paragraph [23] and level are detailed in a document entitled Curtin Expectation for Academic Performance.

[25] On 29 November 2012, Professor Stirling, Deputy Vice-Chancellor Academic and Chair, Academic Promotion Committee advised Dr Lin that his application in 2012 for promotion to Senior Lecturer had been unsuccessful. Professor Stirling also gave Dr Lin “feedback” on his application in order to prepare a stronger case in the future.

[26] Following his unsuccessful application for academic promotion, Dr Lin discussed the matter internally with the University, including the Pro-Vice Chancellor. This discussion is part of the AP Procedure for unsuccessful applicants.

[27] On 27 February 2013, Dr Lin forwarded correspondence to the University’s Professional Standards Conduct Unit (PSCU). The correspondence falls under three categories:

“A being intentionally assigned tasks higher than my level but intentionally paid at the low level;

B the rejection of my promotion to Level C [Senior Lecturer]; and

C possible reasons for my meeting of resistance at Curtin University.”

[28] I will deal with some of the issues in the correspondence under categories A and C later, but at this point, highlight the following under the heading of “the rejection of my promotion to level C [Senior Lecturer]”:

“In September 2012, I applied for promotion from level B [Lecturer] to level C [Senior Lecturer], as I believe that I had shown the Department what I could do and I had been doing outstandingly in level B, and I had already been in the wrong level for one and half years. However, my application of promotion was rejected on November 29, 2012 (I received the rejection letter via email on December 11, 2012).

This rejection is totally unacceptable to me, because I believe the Department is deliberately taking advantage of me, and deliberately paying me lower.

...

On February 7, 2013, following procedure, I formally talked to the Pro Vice Chancellor Andris Stelbovics regarding the rejection. I expressed my view that the decision was incorrect and needed to be corrected. I also asked for detailed reasons why my application was rejected...”

[29] On 22 March 2013, Professor Stirling responded to Dr Lin’s correspondence to the PSCU of 27 February 2013.

[30] On 13 April 2013, Dr Lin made this application to the Commission.

[31] In his application concerning what the dispute is about, Dr Lin makes the statement:

“I have been intentionally assigned tasks higher than my level but intentionally been paid at the present low level.”

and he seeks the University to answer the question:

“Can the tasks assigned to me be accomplished by an employee at my level in my Department?”

[32] Secondly, Dr Lin states that:

“I have been intentionally being paid at the lower level because the Department/University deliberately rejected my promotion request.”

(my emphasis)

and he seeks the University to answer the question:

“What is the basis for them to reach their view? I need the score I need the statistics of the score.”

[33] Finally, Dr Lin states in his application that there are some possible reasons why he is meeting resistance from the University but he states these reasons are not as important as “the fact I have been treated unfairly”.

[34] The relief sought by Dr Lin in his application is that the University “corrects the mistake immediately”.

APPLICANT’S SUBMISSION

[35] The Applicant describes his submission as a “Statement of Facts”.

[36] Dr Lin correctly points out that the vacancy he applied for had a range of titles and salary range. The titles are Lecturer, Senior Lecturer and Associate Professor.

[37] Dr Lin submits that when he applied for the position, he intended to apply for the Senior Lecturer’s position, but would accept a Lecturer’s position if the assigned tasks were that of a Lecturer. In the alternative, Dr Lin states that he would accept an appointment as a Lecturer if it was “some kind of probation” to determine that he had the capacity and was suitable for the role of a Senior Lecturer.

[38] Dr Lin submits if he chose the latter of the above two alternatives in paragraph [37] and accepted the position of Lecturer, “I was simply advertising myself at a lower price, and I would have the right to restore my value at any time. That has nothing to do with promotion.”

[39] Dr Lin submits, “therefore, I decided to sell myself ‘at a lower price’ to give the employer a ‘test use chance’. I accepted the offer but knew I was in the wrong level.” (my emphasis)

[40] Pursuant to the 2012 Agreement, Dr Lin submits, “my qualification and ability for the General Standard and the Skill base are right in level C [Senior Lecturer] not level B.”

[41] Dr Lin further submits that on commencing employment, he was assigned tasks not suitable for a new Lecturer because the University is unable to provide previous examples of a new Lecturer who was given “two new core teaching units in his/her very first two semesters. This clearly shows that they were assigning me tasks not at level B but at level C”. (my emphasis)

[42] Dr Lin further submits that:

“My application for promotion...is simply a request for restoration of my value and my deserved payment according to the measure of the Enterprise Agreement, and is a notice of termination of the implied probation from the phone call [from Professor Islam]. This ‘restoration’ and ‘termination’ are not necessarily chosen to be at the time of promotion. However, I used promotion to do that simply because I hoped to terminate the ‘test use’ in a more smooth way naturally. The termination itself has nothing to do with promotion.” (my emphasis)

[43] Dr Lin submits:

“Until the rejection of the promotion in December 2012, I found that the employer has been intentionally refusing to fairly use the measure of the Enterprise Agreement for my current employment (again this discovery is triggered by the outcome of this particular event but has nothing to do with the concept/essence of promotion)”.

[44] In conclusion, Dr Lin submits:

“Therefore, the dispute is not on promotion even if it is related to the particular promotion event and was triggered by that particular promotion outcome. It is related to the promotion event simply because I tried to use the promotion (as hinted by the job offer phone call of the ex-Head) to terminate the lower pay ‘test us of myself’...” (my emphasis)

[45] In conclusion Dr Lin states the dispute is about the Employer not paying him according to the 2012 Agreement, and secondly, that the University applies the 2012 Agreement with different standards to different individuals within the Electrical and Computer Engineering Department.

[46] Dr Lin disposes of the jurisdictional argument of the Employer as follows:

“The Applicant states that on the facts presented as per the Applicant’s Statement of Facts and per the Applicant’s response to the Respondent’s Statement of Facts, the dispute arises under the Enterprise Agreement. Therefore, the Employer’s objection is not valid.”

EMPLOYER’S SUBMISSION

[47] Briefly put, the Employer’s submission is that, based on the facts, the dispute relates to the unsuccessful application for promotion by Dr Lin. The promotion process is contained in an internal document of the University and is not a matter provided for in the 2012 Agreement or the National Employment Standards. Accordingly, as the dispute is not a matter provided for in sub-clause 68.5 of the 2012 Agreement, the Commission does not have jurisdiction to deal with the dispute.

[48] The Employer relies upon Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd [2012] FWA 6985 in support of its jurisdictional objection.

CONSIDERATION

[49] For the Commission to have jurisdiction to deal with the application, it is necessary for the dispute to fall within the scope of the provisions of sub-clause 68.5 of the 2012 Agreement. Whether the matter falls within the permissible range of sub-clause 68.5 of the 2012 Agreement is a jurisdictional issue and the Full Bench, in Searle v Moly Mines Limited [2008] AIRCFB 1088 at paragraph [38] noted:

“Where questions of jurisdiction are involved, it is the facts which are relevant, not the parties subjective beliefs or the reasonableness of conduct”.

[50] As a finding of fact:

● Dr Lin applied for and was successful in obtaining a fixed term appointment as a Lecturer commencing on 23 May 2011;

● Dr Lin’s appointment was subject to the satisfactory completion of a 12 month probationary period;

● Dr Lin was required, in accordance with the 2012 Agreement, to sign acceptance of the offer and in doing so that he fully understood his rights and obligations under the contract and “freely accepted this offer of employment upon the terms and conditions as set out in this contract and the documents referred to within”; (my emphasis)

● at the time of his appointment, Dr Lin’s contract of employment was regulated in part by the Curtin University of Technology Academic Staff Enterprise Agreement 2009-2012 (2009 Agreement);

● the 2009 Agreement has now been replaced with the current 2012 Agreement;

● on 17 September 2012, Dr Lin submitted an application for Academic Promotion from a Lecturer to Senior Lecturer;

● the process for academic promotion is contained within a University document entitled AP Procedure;

● the AP Procedure is not referred to in either the current 2012 Agreement or the 2009 Agreement;

● Dr Lin was unsuccessful in his application for Academic Promotion to Senior Lecturer;

● Dr Lin was advised of, and activated, the process for unsuccessful applicants for academic promotion;

● having exhausted the review process for unsuccessful applicants, Dr Lin pursued the matter with the University’s PSCU. In his correspondence, Dr Lin claims that the decision of the UAPC to reject his application for promotion to Senior Lecturer was “totally unacceptable” and that he needs “the mistake” to be corrected; and

● in his application to the Commission, Dr Lin seeks the relief of the University to correct “the mistake” immediately.

[51] Despite all these facts, Dr Lin asserts, in what he describes as a Statement of Facts, “the dispute is not on promotion even if it is related to the particular promotion event and was triggered by that particular promotion outcome”. (my emphasis)

[52] If the dispute is not about Dr Lin’s unsuccessful application for promotion, what is it about?

[53] Dr Lin submits that after his interview, he spoke with the ex-Head of the Electrical and Computer Engineering Department, Professor Islam before being given the formal offer of employment. Dr Lin claims that Professor Islam stated that the University “could offer me a level B [Lecturer] position, but he hastened to add with his own initiative that I could apply for promotion later on”.

[54] In my view, it is inconceivable that an applicant for a position, especially in a university which has a tradition of academic hierarchy, could infer that, because Professor Islam mentioned Dr Lin could apply for promotion, that his probation period would end with promotion to Senior Lecturer.

[55] Notwithstanding my inability to conceive the inference Dr Lin ascribes to Professor Islam’s comments, the fact remains that these circumstances surround the issue of promotion beyond his current position of Lecturer. Further, as Dr Lin acknowledged, any expectation of a Senior Lecturer’s position following his telephone conversation with Professor Islam, would be concluded by the termination of his “test use” as a Lecturer and promotion to Senior Lecturer in a “smooth way naturally”. For this reason, I am satisfied that the Applicant’s submission as it relates to his conversation with Professor Islam concerns to promotion to Senior Lecturer.

[56] I now turn to Dr Lin’s submission concerning the assertion that his qualifications and ability are in the Senior Lecturer’s General Standard and Skill Base and not in the Lecturer’s General Standard and Skill Base.

[57] In Dr Lin’s submission, the dispute can be characterised as a contest between his self assessment of his qualifications and ability with that of the UAPC. That contest is a matter which arises under and was dealt with in the AP Procedure and not under the 2012 Agreement.

[58] The 2012 Agreement provides for the appointment of academics to classifications including Lecturer and Senior Lecturer. Clause 12 of the 2012 Agreement states that all academic staff “will be classified according to the classification structure” - Dr Lin has been appointed to the classification of Lecturer. In my view, on the facts, there can be no dispute that the 2012 Agreement has been applied correctly.

[59] However, it is true that the schedule of classifications contains the provision of standards. The academic standards differentiate the level of complexity, degree of autonomy, leadership requirements of the position and level of achievement for each classification including Lecturer and Senior Lecturer. Further, the academic standards contain the following:

“An Academic Staff Member appointed to a particular level may be assigned and may be expected to undertake, responsibilities and functions of any level up to and including the level to which the Academic Staff Member is appointed or promoted. In addition, an Academic Staff Member may undertake elements of the work of a higher level in order to gain experience and expertise consistent with the requirements of the University’s promotion processes.”

[60] This provision clearly articulates that the proper application of the 2012 Agreement envisages that academics are expected to undertake a range of functions and responsibilities up to and beyond their appointed classification.

[61] It is not uncommon for disputes to come to the Commission which are vague and difficult to clearly understand what is below the surface. However, in this application, I have the sense, according to Dr Lin’s submission, that he had some expectation of being promoted to Senior Lecturer after he was “road tested” during his probationary period as a Lecturer. Secondly, Dr Lin feels that he is being treated unfairly by being required, according to his submission, to carry out work beyond that of a Lecturer. Whether this is unfair or not, it is provided for in the 2012 Agreement.

[62] Further, Dr Lin asserts that his qualifications and ability are at a Senior Lecturer’s level and not as a Lecturer. Finally, Dr Lin is of the view that the Academic Promotions Committee made a mistake in not appointing him to Senior Lecturer.

[63] In conclusion, as I indicated in paragraph [49], a jurisdictional issue is best dealt with on the facts and not what either party deems reasonable. The short facts are that Dr Lin has been appointed as a Lecturer and he was unsuccessful in application to be appointed a Senior Lecturer pursuant to the Academic Promotions Procedure. The procedure is an internal process within the University and not a matter arising under the 2012 Agreement. For the reasons set out above, I must uphold the University’s jurisdictional objection that I have no power to deal with the dispute in accordance with the 2012 Agreement’s Dispute Resolution Procedure. Accordingly, the application must be dismissed and an Order will be issued to that effect with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 17 May 2013.

Respondent: 10 May 2013.

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<Price code {C}, PR537141>