Independent Education Union of Australia v Monash College Proprietary Limited

[2016] FWC 3538

[2016] FWC 3538 [Note: An appeal pursuant to s.604 (C2016/4132) was lodged against this decision - refer to Full Bench decision dated 2 August 2016 [[2016] FWCFB 4858] for result of appeal.]

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009
s.739—Dispute resolution

Independent Education Union of Australia
v
Monash College Proprietary Limited
(C2016/2447)

COMMISSIONER BISSETT MELBOURNE, 6 JUNE 2016

Alleged dispute about any matters arising under the enterprise agreement – Requirement of fixed-term and on-going employment considered – Agreement not properly complied with.

[1] The Independent Education Union of Australia (the IEU) has notified a dispute to the Commission pursuant to s.739 of the Fair Work Act 2009 (the Act) in relation to the Monash College Proprietary College Ltd (Monash University Foundation Year Teaching Staff) Agreement 2012 (the Agreement). The dispute is in relation to the appointment and/or re-appointment of fixed-term staff, the terms of the contracts offered to such staff and whether this accords with the provisions of the Agreement. Monash College Proprietary Ltd (the College) disputes that it is not acting in compliance with the terms of the Agreement.

[2] The matter was subject to conciliation where it did not settle. It has therefore been referred for determination in accordance with the dispute settlement procedure of the Agreement.

Terms of the Agreement

[3] The Agreement provides for terms of employment which include the following:

9. Terms of employment

9.1. The Employer may employ full time and part time Teachers on either an on-going, fixed-term or casual basis.

9.2. A Teacher, other than a casual relief Teacher will be provided with a letter of appointment upon engagement which will detail the commencement date (and termination date if employment is for a fixed-term), the duties, employment status (ie: on-going, full time, part time and/or fixed-term), salary, hours of attendance, and if appointed on a fixed-term basis, the reason for the fixed-term appointment.

9.3. Subject to sub-clause 9.1 the Employer will seek to maximise opportunities for Teachers to be engaged on an on-going basis, where it is reasonable to do so.

9.4. Part time employment

A part time Teacher is entitled to the benefits of this Agreement on a pro rata basis unless otherwise stated.

9.5. Fixed term employment

Fixed term employment means that the Employer employs the Teacher for a fixed period of time (the contract period).

9.6. A Teacher may be employed for a fixed period of time up to 12 months for the following reasons:

a. specific tasks or projects, where the period of engagement is reasonably ascertainable at the time of appointment.

b. specific activities, where there is no reasonable certainty that there will be work for the Teacher on a continuing basis.

c. to meet peak student enrolments.

d. replacement of a current Teacher who is:

(i) on an approved period of leave (eg: parental leave, long service leave);

(ii) or undertaking a temporary assignment or secondment elsewhere with the
Employer or with another organisation;

(iii) appointment to a vacant position whilst a new Teacher is recruited to that position and;

(iv) appointments to positions in new business activities, where the continuation or future of the activity is not certain (eg: introduction of a new course, pilot of a new activity).

9.6.1. Where a Teacher is employed on a fixed-term contract, the Employer will notify the Teacher with no less than one (1) months notice as to whether or not it will be offering further employment at the expiry of the current contract.

[4] The Agreement also provides, at clause 7, a term in relation to the prevention and resolution of disputes. That procedure states:

7. Prevention and resolution of disputes procedures

7.1 If a dispute relates to:

a. a matter arising under the Agreement or;

b. the NES.

this term sets out procedures to settle the dispute.

7.2 A Teacher who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.

7.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.

7.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.

7.5 Fair Work Australia (FWA) may deal with the dispute in two (2) stages:

a. FWA will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation, and

b. If FWA is unable to resolve the dispute at the first stage, FWA may then:

(i) arbitrate the dispute and

(ii) make a determination that is binding on the parties.

Note: If Fair Work Australia arbitrates the dispute, it may also use the powers that are available to it under the Act.

7.5.1 A decision that Fair Work Australia makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.

Jurisdiction

[5] The IEU says that the employment of teachers covered by the Agreement on fixed-term contracts as has occurred is a breach of clause 9.6 of the Agreement and that the inclusion in the fixed-term contracts from December 2015 of a statement that employment is offered:

● To undertake specific activities (as outlined in the attached MUFY Teacher position description), where there is no reasonable certainty that there will be work on a continuing basis, and;

● To meet peak student enrolments

does not overcome a previous failure to specify the reason for fixed-term employment in contracts, in breach of clause 9.2 of the Agreement.

[6] I am satisfied that the dispute can be characterised as one relating to the employment of teachers pursuant to the terms of the Agreement.

[7] I am satisfied that the parties first attempted to resolve the dispute through discussions between the College, the IEU and the employees. I am therefore satisfied that the matter was properly brought before the Commission.

[8] I am therefore satisfied that I have jurisdiction to deal with the matter.

Questions to be answered

[9] In the resolution of the dispute the IEU says that the questions to be answered are:

a. Were the 31 teaches referred to at paragraph 19 of the Statement of Agreed Facts, or any of them, employed for a fixed period of time (or fixed-term) in contravention of clause 9.6 of the Agreement?

b. Did the Respondent contravene clause 9.2 of the Agreement by issuing contracts to each of the 22 employees identified at paragraph 29, which did not specify a reason for their fixed-term appointment?

c. Did the action of the employer on 1 December 2015, in re-issuing letters of appointment (or contracts) to each of the 22 employees identified at paragraph 29, cure the Respondent’s failure to comply with the requirements of clause 9.2?

d. Did the action of the employer, in issuing contracts to the:

• Seven employees engaged in January 2016, and



• Two employees employed in March 2016 (both referred to in paragraph 19 of the Statement of Agreed facts)

comply with the requirements of clause 9.2?

[10] The College says that the issues for determination are:

a. The correct construction of clause 9.6 of the Agreement;

b. Whether the College breached its obligations under clause 9.6 of the Agreement;

c. If yes to (b) whether the Commission has jurisdiction to make the orders sought by the IEU;

d. If yes to (c), should the orders sought by the IEU be made by the Commission in the exercise of its discretion?

[11] The matters for determination posed by each of the parties are not inconsistent. Rather, the questions put by the IEU are an expansion on the second matter the College says is for determination.

[12] In reaching my decision I have considered all of the matter raised by the parties as necessary.

Agreed statement of facts

[13] The parties have put forward an agreed statement of facts. 1 The only caveat on that statement is one by the IEU that, at the time the statement was agreed, it believed all of the statement to be true. It says however, that on the basis of the evidence filed by Mr Taylor, paragraph 23 of the statement may no longer be true.

[14] The IEU also adds that the number of fixed-term employees identified in the agreed facts document as 31, based on the evidence of Mr Charles Taylor and Ms Janene Chase, may no longer be correct and that the figure is more likely 35.

[15] I do not consider that much turns on paragraph 23 and the College does not dispute the number of fixed-term employees to be 35.

Background

[16] The Monash University Foundation Year (MUFY) provides a pathway to university by providing international students from countries that do not have recognised final year school results and provide a qualification recognised for the purpose of entry into an Australian university. This particular program was, until some years ago, run by Taylors College. Monash College took over the running of the program in mid-2011. 2

[17] The MUFY program is run in three formats – a standard format consisting of two semesters of study, an intensive format of 1 ½ semesters and an extended format of three semesters. Student intakes for the MUFY course occur in January (for the standard course), March (for the intensive and extended course), July (standard course) and September (intensive and extended courses). 3

[18] There are currently some 80 MUFY teachers in the College (some of whom are engaged on a part-time basis). Those employed prior to 2015 were engaged on an on-going basis.

[19] Since 2015 it has been the practice of the College to employ MUFY teachers on fixed-term contracts. The fixed-term contracts run for, at most, one year. Any MUFY teacher re-engaged following the expiration of their fixed-term contract has been re-employed on a further fixed-term contract.

[20] There are currently 77 MUFY teachers, 35 of whom are employed on fixed-term contracts. The contracts the 35 staff are currently on commenced in late 2015, January 2016 or March 2016. Of the 35 staff the majority had a previous fixed-term contract immediately prior to their current contract.

Clause 9.2 of the Agreement

[21] Clause 9.2 of the Agreement requires, in brief:

• That a teacher (other than a causal relief teacher) be provided with a letter of



• and



• The letter of engagement include a number of specific matters including, for a



• teacher, the reason for the appointment.

[22] There is no submission that this clause is ambiguous. A fixed-term teacher must have, in their letter of engagement, the reason for appointment spelt out.

[23] Mr Chris Clarke, an organiser with the IEU Victoria Tasmania Branch gave evidence that the contracts for fixed-term staff, prior to 1 December 2015, did not contain a term that specified the reason for the appointment on a fixed-term basis. He provided evidence of these contracts. 4 His evidence is that on 1 December 2015 replacement contracts were issued to all teachers on fixed-term contracts at that time (a total of 22 teachers). The new contract was identical to the old contract but contained additional wording as follows:

This position is offered on a fixed-term basis for the following reason:

• To undertake specified activities (outlined in the attached MUFY Teacher position description), where there is no reasonable certainty that there will be work on a continuing basis, and;



• To meet peak student enrolments… 5

[24] The IEU submits that, on the basis of this evidence, it is apparent that at the time the College employed these 22 teachers on fixed-term contracts it did not turn its mind as to the reason it was employing the teachers on such contracts.

[25] No submissions were made by the College on this matter.

[26] On the basis of the evidence I am satisfied and find that the contracts offered to staff prior to 1 December 2015 did not meet the requirements of clause 9.2 of the Agreement. Contracts offered after that date have met the requirements of the Agreement insofar as they specify the reason for the fixed-term engagement.

[27] Whilst the College has righted the wrong by now including the reasons for fixed-term employment in the contract as required by the Agreement I am not convinced this overcomes the earlier, incorrectly issued, contract. For the reasons given below I do not need to decide this matter.

Clause 9.6 of the Agreement

[28] Clause 9.6 of the Agreement, as is relevant to this matter, states:

9.6. A Teacher may be employed for a fixed period of time up to 12 months for the following reasons:

a. specific tasks or projects, where the period of engagement is reasonably ascertainable at the time of appointment

b. specific activities, where there is no reasonable certainty that there will be work for the Teacher on a continuing basis

c. to meet peak student enrolments

d. replacement of a current teacher…

[29] The teachers employed on fixed-term basis are being offered contracts that specify the requirements of 9.6(b) and (c) as the reason for employment.

Is the ‘reason’ in clause 9.6 to be determined objectively or subjectively?

Submissions of the College

[30] The College submits that the use of the term ‘reasons’ in the introductory phrase of clause 9.6 ‘confirms that the question to be asked is whether the subjective reason…[of] the relevant decision maker in making the fixed-term appointment’ meets one of the reasons in clause 9.6. 6

[31] The College submits that, if it had been the intention that an objective assessment was required the introductory words to clause 9.6 would have been ‘for the following circumstances’ and not ‘for the following reasons’ as was used.

[32] The College says that an objective assessment would make the clause unworkable if an appointment of a fixed-term teacher could cause a dispute as to whether, assessed objectively, the circumstances in clause 9.6(a)-(d) existed to allow such an appointment. The College submits that, if the test was an objective one, it could expose the College to committing a civil contravention of the Act.

Submissions of IEU

[33] The IEU submits that the College advanced no basis or authority for its submissions that the ‘reasons’ referred to in clause 9.6 are to be determined subjectively. It submits that the clause should be given its plain meaning and the reason must exist. It says that allowing the subjective view to be determinative would limit the ability of employees to ever challenge the reason of the employer. It says the arguments as to civil penalties are not relevant to the matter the Commission is being asked to determine.

[34] The IEU submits that the clause, properly considered, requires that the ‘reason’ objectively exists – that is it requires that there must be a complying reason.

[35] Further, the IEU says that paragraph (d) specifies a reason as being the replacement of a teacher on leave and that, by definition, this is a circumstance that must truly exist. In this circumstance the reason clearly must be an objective one. It says it is not reasonable or open to give the word ‘reasons’ two separate meanings (subjective/objective) depending on the paragraph it relates to in clause 9.6.

[36] For these reasons it says that the ‘reason’ in clause 9.6 must be objectively determined.

What is means by ‘specific activities’ in clause 9.6(b)?

Submissions of the College

[37] The College submits that the word ‘specific’ means nothing more than ‘a particular thing’. It submits that, given the ‘subject matter of the clause, and that the Agreement as a whole concerns teachers, objectively assessed, the reference to specific activities must include particular or identifiable activities that it could be anticipated a teacher may be required to perform.’ 7

[38] The College says that each of the teachers subject to the dispute was employed to teach a specific subject and that this comes within ‘specific activities’ contemplated by clause 9.6(b). It submits that if the parties had not intended that teaching a specific subject would come within ‘specific activities’ they could have made this clear in the Agreement but they have not done so.

Submissions of the IEU

[39] The IEU submits that, in determining the meaning of the particular words:

The words need to be read not just in the context of the clause but also within the context of the Agreement as a whole.

Regard can be had to the ‘objective framework of facts within which the contract came into existence, and to the parties’ presumed intention…’ 8

Industrial instruments are not to be interpreted narrowly or pedantically keeping in mind that the framers of the instrument were ‘likely to be of a practical bent of mind’. In this respect it is important to have regard to the practical purpose intended to be served by the instrument. 9

[40] With this in mind the IEU submits that the purpose of clause 9.6 was to limit the use of fixed-term employment, giving effect to the aspiration expressed in clause 9.3.

[41] The IEU submits that if the words are given the meaning proposed by the College every teacher would be performing ‘specific duties’ and the clause, in this aspect, would be redundant.

What is meant by ‘on a continuing basis’ in clause 9.6(b)?

Submissions of the College

[42] The second aspect of clause 9.2(b) relates to there being no reasonable certainty that the work will be ‘on a continuing basis’.

[43] The College submits that the term ‘on a continuing basis’ contemplates work on an on-going basis until the teacher chooses to retire or otherwise ceases work. In this respect it says that the phrase requires a long term assessment of whether there would be sufficient work for the teacher in the future.

Submissions of the IEU

[44] The IEU says that the plain intention of clause 9 was to ensure teachers were normally employed on an on-going basis and to limit the use of fixed-term teachers. It says that the term ‘reasonable certainty’ needs to be considered in this light. It submits that the College’s submission that it should be read as ‘reasonable certainty until retirement’ is a nonsense.

[45] The IEU submits that there is no warrant for finding a complete absence of ‘reasonable certainty of work’ in respect of any of the 35 employees. If circumstance should change at some time in the future, the Agreement provides a means to deal with excess staff (ie through the redundancy provisions).

How is ‘peak student demand’ to be determined in clause 9.6(c)

Submissions of the College

[46] The College submits that clause 9.6(c) confirms that the ‘reference to “reasons” is reference to the subjective reasons of the decision-maker.’ 10 It says this is so as no one could ever say with certainty that, at any particular point in time, if enrolments had peaked.

[47] The College submits that if an objective determination of ‘reasons’ must be made, the determination of whether peak student demand has been met could only be conclusively determined by looking back historically to see whether enrolment figures did peak. This supports its submissions that the ‘reasons’ for fixed-term engagement can be determined subjectively.

[48] For this reason it submits the focus should be on the College’s belief as distinct from whether that belief is correct.

Submissions of the IEU

[49] The IEU submits that, to derive the benefit of clause 9.69(c), the assessment as to the existence of the peak must be made before the time of appointment of a fixed-term engagement. It says that there circumstances must be such to enable an objective assessment of the existence or imminent arrival of a peak in student demand.

[50] It submits that, each time it makes a fixed-term appointment on this basis, the College must be able to demonstrate the facts that existed that led it to conclude that a peak existed or was imminent.

[51] In addition, the IEU says that the employment of a teacher for such a reason must be to ‘meet’ the peak demand and that the existence of a peak does not give the College to right to appoint teachers on fixed-term contracts just because of its existence. It must be to specifically meet the demand.

Consideration of the meaning of clause 9.6

[52] The general approach to the construction of an instrument such as the Agreement as recently considered by the Full Bench in The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited 11 where it was said:

[19] The general approach to the construction of instruments of the kind at issue here is set out in the judgment of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union  (Wanneroo):

“The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘...the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998)80 IR 345 (Marshall J). ”

[20] To this we add the oft-quoted observations of Madgwick J in Kucks v CSR Limited that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

“. . . the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[21] Although their Honours were each dealing with the proper interpretation of an award, the same principles are apt to apply to the interpretation of enterprise agreements.  For example, similar observations were made in Amcor Limited v CFMEU (Amcor):

“Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.”

[22] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo:

“It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg GeorgeA Bond and Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”

[footnotes omitted]

[53] The Full Bench in Golden Cockeral then summarised the principles that could be distilled from the authorities on the approach to be taken to interpreting agreements. 12 I do not repeat them here but have had regard to them in reaching my decision.

[54] I am not satisfied that clause 9.6 of the Agreement is ambiguous. That the College may want to interpret and apply the clause in a particular way does not make it ambiguous. That there may be arguments as to different meanings to be given to particular words in the clause does not make the clause ambiguous. It would be wrong to parse every word and, having imposed a different interpretation to the other party, claim ambiguity. Even if the clause is ambiguous I am not convinced that there is any evidence before me of surrounding circumstances that would assist in resolving the matter. The subjective intention of the parties in including the clause in the Agreement does not held and neither does the conduct of the parties since the Agreement was struck.

[55] There is still however the task of determining what the clause actually means. In this respect the general principles of interpretation must apply as they stand.

Conclusion as to clause 9.6

A principle of the Agreement is that the College ‘seeks to be an employer of choice’ through the provision, amongst other things, of ‘excellent conditions’ and ‘on-going opportunities to teachers’ including ‘career advancement and satisfaction’ (clause 2(c)).

Clause 9 of the Agreement allows for the employment of teachers on an on-going, fixed-term or casual basis (clause 9.1). Further, it commits the employer to maximising opportunities for teachers to be engaged on an on-going basis (clause 9.3).

The operation of clause 9.6 must be viewed in the context of the Agreement overall including clause 2 and the totality of clause 9.

Objective v subjective reasons in clause 9.6

There is nothing in clause 9.6 to suggest that the ‘reasons’ referred to in clause 9.6 should be determined subjectively. Keeping in mind that the Agreement was written by people ‘of a practical bent of mind’ the attempt by the College to draw some (very) fine distinction between the words ‘reasons’ and ‘circumstances’ just does not hold up to scrutiny and must be rejected. Further, having carefully considered the submissions of the parties there is nothing before the Commission to support a conclusion that it was ever intended that the ‘reasons’ be subjectively determined.

I am satisfied that elsewhere in the Agreement where the parties did purposefully allow for managements’ subjective assessment to be made it has been made clear in the wording of the particular clause. Clause 49.1 of the Agreement, for example, says that ‘Where, due to fluctuating enrolments of other reasonable cause determined by the Employer…’ and clause 25.4 states that ‘the items that may be salary packaged are as determined by the Employer from time to time…’ (emphasis added)

The ‘reasons’ given in clause 9.6 are factual – there is either a specific task or there is not; student demand will (or has already reached its) peak or is still increasing or decreasing; a teacher is on leave or a recruitment activity is underway etc. These are not matters to be determined subjectively. Of course, this does not mean that there may be some imprecision in the way in which decisions are reached – forecasting, for example, student enrolments or the subjects those students may take is difficult, particularly when there are matters outside of the control of the College that may affect such matters, but this does not mean the reasons should be determined subjectively. There must be some objective determination of whether the reason exists or not.

For these reasons I reject the submissions of the College. An objective assessment is therefore required to determine whether the reason given for the fixed-term employment meets the requirements of the Agreement. If this has not occurred it suggests that the College has not properly applied the Agreement to the employees concerned.

What is meant by ‘specific activities’ in clause 9.6(b)

There is no need to delve into what ‘specific activities’ means beyond agreeing with the submissions of the College that ‘specific’ must be taken to mean ‘particular’ so that what needs to be considered is what are the ‘specific activities’ of a MUFY teacher.

Attached to the contracts of fixed-term MUFY teachers is a copy of a generic job description for MUFY teachers.

This job description lists a number of ‘key responsibilities’ for a MUFY teacher. These are:

Teachers prescribed MUFY curriculum in nominated subject areas using, where appropriate, a range of educational technologies to facilitate motivation, enjoyment and learning for each student;

Monitor attendance and establish and maintain clear and consistent academic and conduct expectations for students in the classroom;

Actively engage in continuing professional development and may mentor one or two Beginner Teachers;

Actively participate in staff meetings, parent/teacher meetings, events, excursions and the MUFY pastoral program;

Participate and contribute with other teachers in the development, implementation and evaluation of MUFY curriculum and policy;

Identify and address areas of need for individual students, liaising where necessary with relevant staff;

Plan, monitor, evaluate and report on student progress to other teachers and parents via written reports and parent/teacher/student interviews. 13

Any person in employment carries out a range of activities in their working day. These activities form the job of the person. The range of activities that may be required to be undertaken often form part of a position description (which might also include matters that go to responsibility and accountability).

In Jones v Department of Energy and Minerals 14, whilst in the context of considering whether a position was redundant, a ‘job’ was described as ‘a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employer’s organisation, to a particular employee’.15 It is my view that those ‘functions and duties’ in particular are the specific tasks that make up a job – that is, the job is the collection of specific activities that are each required to be undertaken to make the whole job. It is highly unlikely that any job today would be made up of one activity or task such that any single activity is equivalent to the whole job.

There are clear and distinct activities in the MUFY teacher position description: teaching; curriculum monitoring, evaluation and development; mentoring beginner teachers; student ‘welfare’; student progress etc. These are more akin to specific activities than the totality of the job.

To suggest that the totality of a MUFY teacher’s job – as represented by all of the responsibilities in the position description – is a particular activity is not to appreciate what an activity is in the context of a job or position held by an employee. There is no doubt in my mind that it is the particular activities that are grouped together in particular ways with particular levels of responsibility that make a job.

This is not to suggest that the position description constrains what may be particular activities – clearly this is not the case. A particular activity might be a single activity or a collection of activities. It might be to deliver part of the curriculum of a course; it might be to develop the curriculum and so on. Specific tasks within a MUFY teacher role might be a small component of the job or large, it just can’t be the whole job on an on-going basis.

For this reason, I reject the submission of the College that ‘specific activity’ equates to the totality of the MUFY teacher role as set out in the position description.

Further, if a specific activity was the totality of the job on an on-going basis, there would be no constraint on the College placing all teachers on fixed-term contracts and this would be an absurd outcome and not a situation supported by the Agreement.

What is meant by ‘on a continuing basis’ in clause 9.6(b)

The College suggests that ‘on a continuing basis’ means until the employee retires or otherwise voluntarily ceases employment.

If I accept the College submissions on clause 9.6 a MUFY teacher could be employed on a fixed-term basis for the reason that:

They are employed as a teacher, and there is no reasonable certainty that there will be work for them until they retire or otherwise voluntarily cease employment.

It makes no logical industrial sense, given the context of the Agreement as a whole, that a provision would be placed in an agreement that allowed for fixed-term employment in circumstances where there is no certainty that the work will always be there – ie until the employee retires or leaves. In my experience there is no employer who, in today’s environment, will guarantee that a job is for life, even in the teaching profession, yet that is what is suggested by the College. If they cannot guarantee the job is for life then that provides a valid reason to offer fixed-term employment. This does not sit well with clause 9.3 which suggest the College is committed to maximising opportunities for on-going employment.

Again, the construction posed by the College leads to an absurd outcome. Jobs change, the College may change focus, the demand for particular subjects may wax and wane over time. Any of these may lead to a teacher involuntarily leaving employment because the job they do is no longer required to be done by anyone. The redundancy provisions are to deal with these circumstances – not fixed-term employment.

For this reason I reject the submissions of the College on this point.

Conclusion as to clause 9.6(b)

Clause 9.6(b) of course needs to be considered as a whole. If the College was right on the meaning it ascribes to all of clause 9.6(b) there would be no restriction on the employment of MUFY teachers on a fixed-term basis to undertake the entire job of a MUFY teacher until they retire or otherwise cease employment. The College could engage all MUFY teachers on a fixed-term basis. This would not be consistent with the commitment at clause 9.3 of the Agreement.

Having found so it seems to me that the clause does contemplate the situation where a teacher can be engaged on a fixed-term contract for a semester or year where it is known, at the commencement of the contract, that the teacher will not be required beyond that period because the subject area will not be taught beyond that period. Any attempt to extend such reason beyond a year however starts to become problematic and should only be seen in rare circumstances.

I am satisfied that clause 9.6(b) requires that the reason for employment on a fixed-term contract must be objectively determined within the constraint of specific activities – which must identifiable – and where there is no certainty as to the need on an on-going basis. An on-going basis is not defined by the period the person might stay in employment had they been employed on an on-going basis.

This is not to suggest that such assessments are easy, but the Agreement has placed constraints on the use of fixed-term employment and recognises maximising on-going employment, and these must be acknowledged in the engagement of staff.

How is ‘peak student demand’ to be determined?

The College has not made any substantive submission as to what meaning should be given the ‘peak student demand’ except to say that it should be determined subjectively.

The College therefore relies on the belief of the relevant managers of the College to justify a proper reason for the engagement of fixed-term MUFY teachers.

I have rejected this subjective approach.

I appreciate that it is, generally, difficult to know if a peak has been reached until a plateau is reached or, more likely, numbers drop. In contrast, however, it cannot be that, post a properly anticipated peak, the College can be penalised for not having assessed the peak correctly.

The College must have a reasonable belief that it is at, or about to hit, peak student demand such that fixed-term engagement for this reason is justified. The normal fluctuations in student enrolment as observed over time cannot provide such justification. That it might be difficult to make the assessment cannot be a reason for not trying to do so.

There are clearly circumstances where the College can legitimately anticipate some peak demand. For example it may be caused by a special government program that means more students will seek to access Australian universities but will be required to complete a program such as MUFY to do so, particular or specific marketing in source countries etc. which may provide justification for fixed-term engagement of teachers for the period of the peak.

In other cases it seems to me that the College must have some reasonable basis on which to claim that it is about to reach peak student demand. That it may not be correct after the fact does not mean that an objective assessment cannot be made.

That determining if a peak is imminent is hard is no reason to not undertake the task or to suggest that it can, should be approached subjectively.

The reasons of the College for fixed-term employment

Taking into account my findings set out above – that specific tasks is not the same as the on-going position of a teacher, that ‘on a continuing basis’ does not mean until retirement or other voluntary cessation of work and that ‘peak student demand’ can and should be determined objectively – I am not convinced that the reasons given by the College for employment of 35 out of 77 MUFY teachers on fixed-term employment withstands scrutiny.

In its submissions the College says that:

Issues impacting on the level of teaching requirements included market volatility and unpredictability in student enrolments;

It wanted to ensure ‘flexibility’ in its mix of on-going and fixed-term appointment to meet the ‘business imperatives’ of the MUFY course;

Ms Joanne Mithen (the relevant decision maker) had legitimate reasons for appointing fixed-term staff because:

• They were hired to perform specific activities – that is teach in subject areas;



• There was no certainty of work on an on-going basis;



• There was no period of certainty beyond six to 12 months after the expiry of the contracts;



• A peak in student demand had been reached having regard to the fact that the MUFY course had exceeded enrolment numbers previously (achieved by Taylors College) and she anticipated that steps taken to focus on improved quality outcomes would adversely impact on student enrolments;



• In all likelihood the College had reached peak enrolment and the number would be expected to flat-line or decrease in the near future. 16

To the extent that the use of fixed-term employment for MUFY teachers relates to market volatility and/or a need to maintain flexibility in the staffing mix etc these are not reasons contemplated in the Agreement for the use of fixed-term teachers.

With respect to the reasons given by Ms Mithen as to why she decided 35 teachers should be engaged on a fixed-term basis, for the reasons given above in my consideration of clause 9.6(b) I do not accept that the teachers were employed to perform specific activities where there was no reasonable certainty of on-going work or that it has been objectively demonstrated that, at the time of engagement of each fixed-term employee, there was a known peak in student demand.

If there was no certainty beyond 6-12 months after the end of the contract there must be some reason for that assessment.

If it is the College’s intention to rely on historical data and the impact of new programs (quality) it must be able to lay this information out before the staff and their representatives (the IEU) and explain how it has assessed the data and why a quality emphasis will result in a reduction in demand.

The College however cannot always be at the point of being about to reach its peak in student demand. A more sophisticated and nuanced approach is required.

The Agreement sets the boundaries around fixed-term employment. To the extent that the College has reasons for the use of fixed-term employment these must comply with the requirements of the Agreement. It does not matter that it wants flexibility or that it commissioned a report that found forecasting student demand is fraught with difficulties.

Should the College wish to change the basis of fixed-term employment these are matters for bargaining in the context of the next Agreement.

Answers to the questions of the IEU

As the specific questions asked by the IEU the answers are:

(a) Yes. On the basis of my findings all 35 have been employed in contravention of clause 9.6 of the Agreement.

(b) Yes. The failure to specify the reason for fixed-term engagement for 22 MUFY teachers was in contravention of clause 9.2.

(c) It is not necessary to determine this question given my other findings.

(d) Yes. It would appear that the statement of reasons for fixed term employment were included in the contracts. That the reasons may not be sustainable is a separate question.

Relief

The IEU seeks a determination that:

(a) The 35 teachers employed by Monash College Proprietary Ltd, who have been issued with fixed-term contracts in 2016 are in fact employed on an on-going basis and have so been employed since the date of their engagement;

(b) Monash College is directed to confirm to the Union and each employee covered by this finding that each relevant employee is employed on an on-going basis in accordance with clause 9 of the Monash college proprietary ltd (Monash university Foundations Year Teaching Staff) Agreement 2012.

Any relief provided by the Commission must not be inconsistent with the Act or the Agreement. This is a given.

This provision must guide the determination made in this matter.

The College submits that the variation of the fixed-term contracts (to make them on-going contracts) is not consistent with the Act or clause 7 of the Agreement. It says that while awards and agreements may superimpose conditions over a contract, they cannot change a contract. 17 Further, it submits that the Act does not permit that breaches of an Agreement could result in a change in the nature of the employment contract.18

The College also submits that the parties have chosen not to include in the Agreement what should occur if the College failed to comply with the requirements of clause 9.6 but did not do so. It submits that the parties therefore contemplated that the consequences of non-compliance with the Agreement is exposure to the penalties under the Act.

The IEU submits that it is a nonsense to suggest that because there is no specific mention in the Agreement of what would occur if clause 9.6 was not complied with then there is nothing that can be done. The parties put a dispute settlement procedure in the Agreement as a means of settling disputes. It says that the Commission’s power to determine the matter arises from the terms of the Agreement. To the extent that such a determination might exceed what is permitted by the legislation it has operation under general law. 19

The IEU says that if the Commission finds in favour of the IEU then the employees concerned must be employed on an on-going basis as this is the only form of employment consistent with the Agreement and the finding of the Commission.

The IEU says that the decisions in Ledington and University of Wollongong are readily distinguishable from the circumstances in this case. The NTEU relies on the decision in NTEIU v University of Melbourne. 20

Consideration

In NTEIU v University of Melbourne Roe C considered circumstances not dissimilar to those before me (albeit he was dealing with a single applicant and not 35 effected employees). The arguments against remedy sought by the NTEU in that matter are not different to those put here. Roe C found that:

[70] There is nothing in the Agreement which sets out what is the remedy in cases where an employee is wrongly appointed to a fixed-term position or restricts the remedy which might be arrived at in resolution of a dispute about a process of appointment in conflict with the provisions of the Agreement.

[71] The University argues that to impose a continuing contract would be inconsistent with the provisions in Clause 15 which enables the University to offer casual, fixed-term or continuing employment. They also argue that it would be a disproportionate remedy. The University argues that if it had been prevented from offering a fixed-term position to Ms Lo Schiavo because of the terms of Clause 20 then it may not have filled the position at all, it may have offered casual employment or it may have offered on-going employment. The University argues that it is a matter for the University under the Agreement to determine which of these options it chooses.

[72] The University also argues that the remedy sought is beyond the scope of the Agreement. I do not accept this argument. A decision to resolve the dispute by requiring the parties to act as if the provisions of the Agreement had been properly applied is a proper exercise of my functions. The disputes settlement clause restricts the disputes which can be dealt with to those which “relate to the application of the Agreement or the NES”. It does not restrict the resolution of those disputes to the specific provisions of the Agreement. However, the resolution cannot be inconsistent with the terms of the Agreement. The present Act allows for disputes settlement which goes far beyond disputes over the application of the agreement and therefore allows for a resolution of the dispute which requires something which would not be possible under the agreement. However, in this case disputes settlement is restricted to disputes over the application of the agreement and it is unlikely that the resolution of such a dispute can require something which would not be possible under the agreement.

[73] The University argues that any failure to meet the terms of the Enterprise Agreement may lead to potential proceedings for breach of the Enterprise Agreement and result in the imposition of penalties. Of course proceedings for breach of an agreement is a course of action open to the parties, however, this should not be seen as the primary option. The primary option should be consistent with the commitments the parties freely entered into in reaching the Agreement and that is to deal with disputes over the application of the Agreement using the disputes settlement procedure of that Agreement. This approach was recently reinforced by a Full Bench decision in Boral Cement Ltd v Australian Workers’ Union: 

“We do not think this is an appropriate case in which to grant permission to appeal. The underlying industrial issue which led to the s.418 application is capable of being resolved using the agreed procedures in the enterprise agreement. It seems to us that if we were to grant permission to appeal we could be seen as encouraging Boral, or both parties, to continue to ignore their obligations under clause 41 of the enterprise agreement. This is an important question of principle.”

[74] The parties referred to three main cases I should have regard to in considering what is an appropriate decision to resolve the dispute.

• Ledington v University of Sunshine Coast.



• v University of Wollongong.



• v University of Wollongong, AIRC.

[75] The first two of these cases concerned actions for breach of agreements. The third relates directly to the resolution of a dispute under an agreement which is germane to this matter.

[76] The University argues that the Sunshine Coast matter supports the contention that a breach of the job security clauses in the agreement does not bring about an alteration to the character of the contract. The NTEU is not arguing that the breach of the Agreement results in the contract of employment changing from fixed-term to on-going. The second of the cases makes the same point.

[77] The third of the cases is relevant to the exercise of my discretion in this matter. In that case Senior Deputy President Harrison noted that the NTEU had already successfully prosecuted the University of Wollongong for the breach of the agreement in appointing Dr Rodwell to a fixed-term position in breach of the agreement. The Senior Deputy President also noted that because of the time taken in the various cases it was now many years since the ending of Dr Rodwell’s employment and that to require the re-employment of Dr Rodwell would therefore result in a windfall gain. The Senior Deputy President does not suggest that the re-employment of Dr Rodwell would be beyond power, rather she suggests it would be neither appropriate nor equitable in the circumstances. The Senior Deputy President makes the point that it cannot be assumed that had the Agreement been properly applied Dr Rodwell would have been engaged on a full-time continuing basis. It is possible that no offer of employment would have been made if a fixed-term option was not available to the university. The Senior Deputy President emphasised that the decision was made on the particular facts and that other outcomes may be appropriate in differing circumstances.

[78] I do not consider that to impose a continuing contract as a resolution to a dispute about an inappropriate fixed-term appointment would generally be inconsistent with Clause 15 of the Agreement or any other provision of the Agreement. The University does have the discretion about whether or not to create a position and whether or not that position should be casual, fixed-term or continuing subject of course to the other provisions of the Agreement some of which limit that discretion. However, if a position has been created in breach of a term of the Agreement then in settlement of the dispute to require the nature of the appointment change so that it is no longer in breach of that term of the Agreement is not inconsistent with the Agreement. I am therefore satisfied that if Ms Lo Schiavo was an employee under a fixed-term contract in breach of Clause 17 and 20 that a resolution of the dispute which changed the nature of that employment to on-going would not be inconsistent with Clause 15 of the Agreement. Such a resolution to the dispute is equitable and reasonable as it would provide for Ms Lo Schiavo to be placed in the circumstances she would most likely have been in if the employer had properly implemented the terms of the Agreement.

[79] The appointment was in fact a fixed-term appointment notwithstanding my finding that such an appointment was not open to the University under the Agreement. If the University had been aware that they could not make a fixed-term appointment there is no certainty that they would have decided to make an on-going appointment. However, I am satisfied that on-going employment was the most likely outcome given the contemporaneous evidence of the University concerning the workload requirements, that it is a specialised position and that casual employment was seen as untenable. 21

[footnotes omitted]

This decision is on point to the matters I am asked to decide. I respectfully adopt the reasoning and conclusions of Roe C. I need make no exception and do not repeat the general observations he makes.

In this matter I am satisfied that there is nothing in the Agreement that would be inconsistent with imposing continuing contracts in place of the ill-founded fixed-term contracts provided to 35 MUFY teachers. The Agreement has as a principle that the College be an employer of choice and that the College is committed to maximising on-going employment. My decision is not discordant with these principles in the Agreement but, in fact, is aligned to those statements.

There is no reason to assume that, had fixed-term contracts not been available, the College would not have otherwise employed the teachers. I am satisfied that, had the College not employed the MUFY teachers on fixed-term contracts it would have employed them on on-going contracts. Clearly it requires the teachers. The student demand is there and it renewed many of the contracts in late 2015 and entered into additional contracts in early 2016.

In any event the MUFY teachers are currently employed by the College. Nothing can undo that fact. Some have been employed on successive contracts for in excess of a year. They are performing work for the College and are entitled to have the terms of the Agreement properly applied to them. I do not seek to do anything about the terms of their contracts but I do say that those contracts do not reflect the requirements of the Agreement.

If, in the future, there are excess staff the Agreement provides a mechanism to deal with such a situation.

There is no impediment in this decision to the engagement of fixed-term staff – it just must be done in accordance with the terms of the Agreement.

I have not dealt with much of the evidence that was before the Commission in this matter. Given my findings as to the operation of clause 9.6 there is no need to.

Conclusion

A decision to resolve the dispute by requiring the parties to act as if the provisions of the Agreement had been properly applied is a proper exercise of the Commissions functions.

Applying this principle and for the reasons given above I determine that had the College acted in accordance with the provisions of the Agreement the existing fixed-term staff would have been appointed in an on-going with the College. In such circumstances the commencement date of the on-going employment would have been the commencement date of any contracts that existed contiguous with the current contract.

The parties should now consult on giving effect to this decision.

COMMISSIONER

Appearances:

D Matson and C Clarke for the applicant

J Bourke of Counsel for the respondent

Hearing details:

2016.

Melbourne:
April 28, 29

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