James Cook University

[2020] FWCA 5390

[2020] FWCA 5390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

James Cook University
(AG2020/2847)

JAMES COOK UNIVERSITY ENTERPRISE AGREEMENT 2016

Educational services
COMMISSIONER JOHNS	SYDNEY, 14 OCTOBER 2020

Application for variation of the James Cook University Enterprise Agreement 2016.

[1] On 22 September 2020 James Cook University (JCU) made an application for approval of a variation (Variation) to the James Cook University Enterprise Agreement 2016 (Agreement). The application was made by James Cook University pursuant to section 210 of the Fair Work Act 2009 (FW Act). The Variation arose of JCU’s need to respond to the impact of COVID-19 on its operations.

[2] On 24 September 2020 the National Tertiary Education Union (NTEU) advised the Fair Work Commission (Commission) that it opposes the approval of the Variation. The United Workers Union (UWU) is also covered by the Agreement. It took no active role in the Variation proceedings.

[3] In coming to this decision I have had regard to the following:

a) Form: F23 Application for approval of variation of an enterprise agreement;

b) Form: F23A Employers declaration;

c) Applicant: Letter to FWC dated 22 September 2020;

d) Form: F23B Declaration of employee organisation (UWU);

e) 5 Form: F23B Declaration of employee organisation (NTEU);

i. Attachment 1 Letter from NTEU to JCU dated 23 September 2020;

ii. Attachment 2 Letter from NTEU to JCU dated 25 September 2020;

f) Applicant: Submissions dated 28 September;

i. Annexure B Undertakings dated 28 September 2020;

g) Applicant: Submissions dated 29 September 2020;

i. Attachment 1 Tables 1 and 2 – span of hours for FT and PT staff and comparison of shift worker roster

ii. Annexure C Undertakings dated 29 September 2020

iii. Attachment 2 Letter from JCU to NTEU dated 24 September 2020

h) Applicant: Submissions dated 29 September 2020 (re genuinely agreed issue);

i) NTEU: Submissions filed on 29 September 2020;

i. Attachment 1 schedule to James Cook University Enterprise Agreement 2016;

ii. Attachment 2 Email from JCU Director HR to all staff dated 9 September 2020;

iii. Attachment 3 schedule to James Cook University Enterprise Agreement 2016 –marked up version;

iv. Attachment 4 Email from JCU Director HR to all staff dated 10 September 2020;

j) Applicant: Submissions dated 6 October 2020 note – also includes all other subs, new subs pages 1-11;

k) Applicant: Undertakings dated 6 October 2020;

l) Applicant: Affidavit of Ms Belinda Pope dated 6 October 2020;

m) NTEU: Submissions filed on 8 October 2020;

n) Applicant: Further submissions filed on 8 October 2020; and

o) Applicant: Second Affidavit of Ms Belinda Pope dated 7 October 2020.

(Filed Materials)

[4] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A. In its application JCU declared that the Variation, if approved, will affect parental leave (clause 38), annual leave (clause 32), personal and carer’s leave (clause 34), compassionate leave (clause 35), domestic and family violence leave (clause 36), long service leave (clause 37), notice of termination (clause 30) and redundancy pay (clause 43.6). 1 Substantively, the variations to the Agreement are contained in a schedule to the Agreement (COVID-19 Schedule). The COVID-19 Schedule is intended to operate from the effective date specified in this decision through until 30 June 2021.

[5] Further the Variation seeks to postpone salary increases contained in the Agreement. JCU lodged the application 8 days before the next scheduled salary increase due on 30 September 2020. JCU sort to have the Variation approved before that date. However, because there were a number of issues that JCU had to respond to and because the Variation was opposed by the NTEU it became necessary to program the matter for hearing. A hearing was listed for Friday, 9 October 2020. That listing was vacated when, on Thursday, 8 October 2020, the parties agreed that the matter could be decided on the papers.

[6] The vote approving the Variation occurred on 18 September 2020. Of the 3,1895 employees eligible to vote, 1,884 did so. Of those who voted 960 voted in favour of the Variation (i.e. 50.9%).

[7] The NTEU oppose the approval of the Variation because, it contends the Variation was not genuinely agreed by staff employed by JCU. The NTEU’s opposition centres around the interpretation of the Agreement if it is varied. In his Form 23B, Alexander Cousner, NTEU Industrial Officer, declared that:

“2. Throughout the staff ballot to affirm the Variation, University management including the Vice Chancellor, Professor Sandra Harding stated that the effect of the Variation was to defer the September 2020 pay increase to December 2021.

3. Clause 10.1 of the variation states that it will vary clause 21.1(a) of the James Cook Enterprise Agreement 2016 in the terms provided for in 10.1(a)(i) to (vi).

4. Subclause (vi) states that clause 21.1(a) will provide for a 2% salary increase on 31 December 2021.

5. Cause 2.2 of the variation states as follows:

Unless varied expressly to occur on a later date the terms of this Schedule will cease to operate on 30 June 2021

6. Clause 10.1 is a term of the variation schedule.

7. NTEU submits that the operation of the variation as drafted and put to staff to vote cannot provide for a pay increase on 31 December 2021 because clause 2.2 will have brought the operation of clause 10.1 to end before that time.

8. For this reason there is no entitlement for staff to receive a pay increase in December 2021.

9. The effect of the Variation proposed by the Applicant was misrepresented through the ballot of staff.

10. This misrepresentation means that the employees cannot be said to have genuinely agreed to the Variation.

11. For these reasons, NTEU submits that the Variation cannot be approved.”

[8] Essentially the concern of the NTEU is that the pay rise deferred from 30 September 2020 to 31 December 2021 will be unenforceable if the Agreement is varied (the Construction Point). The NTEU’s concerns were raised by it with JCU in correspondence dated 23 and 25 September 2020. On both occasions the NTEU invited JCU to withdraw its application for approval of the Variation.

[9] JCU disagrees with the NTEU’s interpretation of the Agreement if it is varied. It relies upon clause 2.2 of the COVID-19 Schedule which provides that,

“Unless varied expressly to occur on a later date the terms of this Schedule will cease to operate on 30 June 2021.”

[10] Before the Commission JCU was invited to address the Construction Point. The Commission also raised a number of concerns with JCU about various matters including the cohort of voters 2 selected by JCU who were invited to vote on the Variation. The JCU responded in correspondence on 28 and 29 September 2020. It also proffered undertakings to the Commission through the Deputy Vice Chancellor (Division of Services and Resources), Patricia Brand.

[11] At the mention/directions hearing on 30 September 2020 I invited JCU to consider whether an undertaking might cure the Construction Point (without JCU conceding that it was necessary to do so). At the conclusion of the mention/directions hearing:

a) JCU was directed to file in the Commission and serve on the Unions any additional evidence, and final submissions in support of the variation by 5 pm on Tuesday, 6 October 2020.

b) the Unions were directed to serve on JCU any additional evidence, and final.

[12] The parties complied with the directions issued on 30 September 2020. On 6 October 2020, amongst other undertakings, JCU proffered the following undertaking:

“5. Clause 2.2 of the COVID-19 Schedule will not result in the following clauses of the COVID-19 Schedule ceasing to operate on 30 June 2021, and the following clauses will continue to operate after that time as stated in those clauses:

…

(d) Clause 10 (Salary Increases); and

…

6. The salary increase deferred to 31 December 2021 will be provided on that date in accordance with Clause 10 of the COVID-19 Schedule.”

(6 October Undertaking)

Voting cohort

[13] Ms Belinda Pope, JCU’s Manager Industrial Relations and Policy, Division of Services and Resources gave uncontested evidence about the voting cohort. I have considered that evidence. Consequently, I am satisfied that, having regard to how the vote was conducted and the roll of votes was compiled (especially in relation to casual employees), the Variation was approved by a majority of affected employees who cast a valid vote as required by section 209(1) of the FW Act.

Genuine agreement

[14] On 9 September 2020, Geoff Rogers, JCU’s Director of Human Resources wrote to all staff about the Variation. He wrote,

“To recap, a very simple variation is being proposed, reflecting the following key points:

● Staff to defer one pay increase of 2% 30 September 2020 to 31 December 2021;
● Staff to take additional leave at Christmas (4 days in 2020/21 between 21 December 2020 and 8 January 2021 and 5 days in 2021/22 between 20 December 2021 and 7 January 2022) and;
● Voluntary flexibilities around purchasing leave and fractional employment.

It is important to remember that this proposed variation does not impact the wage increase on 30 June 2021.
Additional job protection measures would accompany these variations and will operate during the variation:

● No stand down of staff for an agreed period associated with the variation;
● No forced redundancies for an agreed period associated with the variation (save existing change proposals in place);
● The Joint Consultative Committee will monitor the implementation of the variation;
● Agree to take into account the impact of COVID-19 on the working environment and
● personal lives of all staff when undertaking any performance evaluation;
● Continue fixed term and casual appointments where work is ongoing and funded and;
● Continue executive scrutiny of recruitment and selection.”

[15] There was nothing misleading in the above statement. It was clear what the intention of the Variation was to be. The memorandum contained a link to the then proposed variation. No evidence was led by the NTEU from any person who voted on the Agreement to the effect that they were misled. The NTEU’s opposition is centred around the Construction Point. It does not seem that the drafting concern was raised by the NTEU with JCU prior to the vote.

[16] I have some sympathy with the NTEU’s interpretation of the Agreement if the Variation is approved. However, there is simply no evidence that JCU intended to mislead employees voting on the Agreement. All the evidence points to a clear intention by JCU to defer the 30 September 2020 pay rise to December 2021. To the extent that the COVID-19 Schedule, on one construction, does not deliver an enforceable pay rise in December 2021 it is more a matter of inelegant drafting rather than any sinister slight of hand by JCU.

[17] However, I do not need to decide the Construction Point. Even if the NTEU is correct that the Variation creates an unenforceable pay rise in December 2012, the 6 October Undertaking cures any such defect in the drafting. The 6 October Undertaking makes certain the intention conveyed by Mr Rogers’ memorandum on 9 September 2020 and for which a majority of employees voted. For these reasons I am satisfied that 6 October 2020 Undertaking does not result in a substantial change to the Variation. Nor does it cause any financial detriment to employees.

[18] I am further satisfied that the Variation was genuinely agreed to. There is no evidence that employees believed anything other than that the September 2020 pay rise was to be paid in December 2021. That was the intention. That is what a majority of employees voted for. That is what the Variation in combination with the 6 October 2020 Undertaking delivers. The Expert Assessment Panel issue as it relates to genuine agreement is also without merit.

[19] As explained above the Applicant has provided written undertakings. In addition to addressing the Construction Point the undertakings address concerns about NES precedence, the definition of “shiftworker”, rates of pay for particular categories of employees and a review mechanism for payments to Professional & Technical casual staff. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[20] For the reasons set out above, and subject to the undertakings referred to above, having considered all of the Filed Materials, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[21] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[22] In accordance with s.216 of the Act, the variation operates from 14 October 2020.

COMMISSIONER

 1   In answer to question 2.7 in the Form F23A

 2   National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98

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