RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Flinders University
v
National Tertiary Education Industry Union
(C2018/7082)

COMMISSIONER PLATT

ADELAIDE, 17 DECEMBER 2018

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

[1] On 2 November 2018 Flinders University (the University) lodged an application under s.739 of the Fair Work Act 2009 (Cth) (the Act) concerning a dispute between the University and the National Tertiary Education Union (the Union) over organisational change at the University.

[2] The Flinders University Enterprise Agreement 2014-2017 applies to the workplace.

[3] A Conference was conducted on 7 November 2018. Mr Short (of Counsel) with Mr Barrett and Professor Pollock represented the University, Ms Buchecker (Industrial Officer) represented the Union with Dr Miller and Ms Fuller.

[4] The dispute was conciliated at the Commission on 14 November 2018 over the course of a day. The parties jointly worked towards an agreed position to resolve the dispute.

[5] On 20 November 2018 the parties recorded the settlement of the issues in a written Settlement Agreement which was provided to the Commission.

[6] On 30 November 2018 the University advised that the Union had raised a dispute (in accordance with Clause A31 of the Agreement) concerning the academic restructure that was the subject matter of the previous Conciliation. On 5 December 2018 at 2:00pm Conciliation was facilitated by the Commission between the parties. A Recommendation 1 was subsequently issued by the Commission and accepted by the parties.

[7] On Friday 15 December 2018, a further dispute was lodged by the University. A Conciliation conference was conducted on Monday 17 December 2018.

Recommendation

[8] The parties are agreed that the University should continue to move forward consistent with the Agreement reached on 20 November 2018 and the Commission’s Recommendation of 6 December 2018, which represents the status quo.

[9] The University has advised me that:

• All available balanced positions (at each level and in each discipline) will be filled by existing balanced staff using the processes previously agreed.

• In the event that a Teaching Specialist or Research Specialist applicant is not skills matched (as per the definition contained in the Agreement dated 20 November 2018) then the University is not obliged to appoint them to a Specialist role.

[10] Having consulted with the parties, and heard their respective positions as to implementation process and timeline, I believe it is appropriate to issue a recommendation in the following terms.

[11] All data relied upon to fill Specialist positions from the current staff cohort should be “evidence based” and objective (in so far as possible). Staff seeking to be considered for Specialist positions should provide the data which they seek to reply upon to demonstrate that they meet the selection criteria in advance of their interview. The University should also provide details of any data it intends to take into account in the selection process, particularly if it may adversely impact on the selection (e.g. SETs results). If data is contested by the staff member at the interview, they should be allowed a reasonable opportunity to respond before a final decision is made, taking into account the timeframes advised in my previous Recommendation.

[12] Any unfilled position(s), subject to the Act’sredeployment obligations, may be filled externally by the University.

[13] The parties are to confirm their acceptance of this recommendation by email to each other and the Commission by no later than 5:00pm on 18 December 2018.

COMMISSIONER

Appearances:

A Short with Dr Pollock and Mr Barrett on behalf of the Applicant.

A Buchecker with Dr Miller on behalf of the Respondent.

Conciliation details:

2018.

Adelaide.

17 December.

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 7426 (Recommendation of 6 December 2018).

Flinders University brought an application to the Fair Work Commission to determine that a dispute existed with the National Tertiary Education Industry Union (NTEU). The dispute involved the interpretation and application of provisions in the enterprise agreement and the National Employment Standards (NES). The Commission was tasked with determining whether the dispute was genuine and if it arose under the mentioned agreements. The NTEU argued that the dispute was not genuine, claiming that the university had not genuinely attempted to resolve the matter.

The central legal issues before the Commission were whether the dispute was genuine and whether it arose under the enterprise agreement or the NES. The Commission needed to consider the actions and intentions of both parties in determining the genuineness of the dispute and whether it fell within the scope of the agreements in question. The Commission examined the conduct of both parties and the context in which the dispute arose.

The Commission found that the dispute was genuine and arose under the enterprise agreement and the NES. It was evident that the university had made a genuine attempt to resolve the matter, and the NTEU's claims did not negate the existence of a genuine dispute. The Commission ruled that the dispute was genuine and fell within the scope of the agreements, thus it was required to proceed to a hearing. The Commission dismissed the NTEU's application to have the dispute declared not to exist.

The Fair Work Commission ordered that the dispute proceed to a hearing. It found that the dispute was genuine and arose under the enterprise agreement and the NES. The NTEU's application to have the dispute declared not to exist was dismissed, and the matter was to be heard to resolve the issues at hand.

Flinders University v National Tertiary Education Industry Union

RECOMMENDATION

Recommendation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established