Louise Shewan v University of Sydney

[2013] FWC 4894

[2013] FWC 4894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Louise Shewan
v
University Of Sydney
(C2012/1494)

COMMISSIONER ROBERTS SYDNEY, 31 OCTOBER 2013

Application pursuant to s.739 - entitlement to redundancy payments - consideration of employment status.

[1] This decision concerns an application made by Dr Shewan on 28 November 2012, pursuant to s.739 of the Fair Work Act 2009 (the Act) for Fair Work Australia (now the Fair Work Commission) to deal with a dispute between her and the University of Sydney (the University). The dispute allegedly arises from the dispute resolution procedure set out in clause 322 of the University of Sydney Enterprise Agreement 2009-2012 (the Agreement). That Agreement sets out a number of steps to be followed when a dispute arises as to matters covered by the Agreement. Under the Agreement, where a dispute is not solved internally, either party may refer the matter to the Commission which may resolve the dispute by conciliation and/or arbitration (subclause 322(c)).

[2] Unsuccessful conciliation was conducted before me on 21 February 2013. It was then agreed between the parties and myself that I would decide the dispute between Dr Shewan and the University ‘on the papers’. Directions were then issued on 23 April 2013 for the filing of submissions and documentary material. That process was completed on or about 18 June 2013. Dr Shewan was represented by Ms F Inverarity of Truman Hoyle Lawyers and the University by its in-house solicitor Ms K Cassoff.

What is the dispute about?

[3] In her form F10 - Application for FWA to Deal with a Dispute in Accordance with a Dispute Settlement Procedure, Dr Shewan characterised the dispute between her and the University in the following terms:

“1. The Applicant has been employed continuously since 1 September 2003 on a series of fixed term contracts.

2. On 23 November 2012 the University formally notified the Applicant that she would not be offered further employment after 31 December 2012 and that the University ‘will not be retaining your position or a substantially similar position’ and her employment would cease on 31 December 2012.

3. The University has refused to pay redundancy payments in accordance with

the EA.

4. The EA does contain an exception for ‘staff employed for a fixed term, in relation to the termination of their employment at the end of the specified term, task, or project.’ The Applicant says this does not apply to a series of fixed terms that appear to be designed to avoid the provisions of the EA. The Applicant does not fit within any of the Fixed Term provisions on the EA, which permit the University to engage genuine Fixed Term Employees.”

[4] The relief sought by Dr Shewan is “redundancy payment in accordance with the Enterprise Agreement”.

[5] The University agrees that Dr Shewan was employed since September 2003 on a series of fixed term contracts. It maintains that the ending of her employment on 31 December 2012 was in accordance with the terms of her contract and not by way of redundancy. Accordingly, the University submits that no redundancy payments are due to Dr Shewan.

The relevant agreement provisions

[6] Clause 17 (Employment Categories) provides that Academic General staff may be employed in the following categories:

“ continuing employment

• funding contingent continuing employment



• fixed term employment



• casual employment”

[7] Clause 19 (Continuing Employment) provides:

“19 In the case of Academic and General staff, "continuing employment" means full-time or part-time employment under a contract that contains a commencing date but no date or contingency upon which the contract will come to an end.”

[8] Clause 20 (Fixed Term Employment) defines fixed term employment as follows:

“20 In the case of Academic and General staff, "fixed term employment" means full-time or part-time employment for a specified term or other ascertainable period under a contract that contains a starting date and an end date or, instead of an end date, a contingency relating to a specified task or project upon which the contract will come to an end. Such a contract may be terminated before the specified end date or contingency in accordance with the terms of this Agreement.”

[9] The Agreement goes on at clause 21 (When may staff be employed on a fixed term basis?) to provide:

“21 From the commencement of this Agreement, fixed term academic and general staff appointments may be entered into only in the following circumstances:

(a) to work on a specific task or project where a definable work activity has a starting time and which is expected to be completed within an anticipated timeframe;

(b) to perform work that is Externally Funded;

(c) to work in a research only role for a term of up to five years;

(d) to work in a new organisational area, function or program where the prospective need or demand for which is uncertain or unascertainable at the time of establishment of the new area, function or program, in which case fixed term employment may be offered for up to three years;

(e) to work in an academic unit where there is a sudden unanticipated increase in enrolments in which case fixed term employment may be used for up to three years;

(f) to work in an area that is performing one or more functions or teaching one or more programs which will cease within a reasonably certain time. Where part or all of an organisational unit is to be disestablished, staff may be employed on a fixed term contract of up to two years;

(g) to replace another staff member for a specified period while they are absent on leave, secondment or temporary transfer, or are undertaking higher duties, restricted duties, or have elected to work part-time for a specified period;

(h) to fill a vacant position pending recruitment action where the position has been advertised or approved for advertisement, in which case the replacement staff member may be employed on nomination for up to six months, with capacity for extension for a further period of up to six months. This category of replacement staff member may only be used once for each vacancy that occurs;

(i) to undertake an apprenticeship or participate in a traineeship scheme which includes an approved course of training or study;

(j) to undertake a postgraduate fellowship in accordance with clause 37;

(k) to undertake work where a curriculum in professional or vocational education requires that the work be undertaken by a staff member who has recent practical or commercial experience, in which case a staff member may be employed on up to three successive Contracts within a total period of employment of up to five years;

(l) pursuant to a ‘pre-retirement contract’ for a period of up to five years ending on the date on which the staff member has indicated that they intend to retire; or

(m) to provide a series of lectures on a part-time basis as a guest specialist whose primary employment is as a professional or specialist employed in the provision of services.”

[10] Clause 31 (Severance payments) provides that where a staff member is employed on a fixed term contract, that employee is entitled to severance pay of eight weeks when he or she has been employed for longer than four years on such contract(s).

[11] Clause 33 (Savings clause) provides:

“33 Subject to clause 34, a staff member who was employed on a fixed term contract before the commencement of this Agreement other than a contract:

(a) requiring them to work on a specific task or project; or

(b) that is Externally Funded; or

(c) to undertake only research functions;

will be eligible for severance pay in accordance with the scale below if their contract is not renewed and:

(i) they wish to continue their employment after the end of their specified term; and

(ii) their contract is not renewed because:

(A) in the case of a staff member employed on a second or subsequent fixed term contract, the same (or substantially similar) duties are no longer required by the University; or

(B) the duties of the kind performed in relation to the work continue to be required but another person has been appointed, or is to be appointed to the same (or substantially similar) duties.”

[12] Clause 33 goes on to provide that an employee with continuous service of eight years or more but less than ten years since 2 May 2006 would be entitled to severance pay of 17 weeks.

[13] Clause 34 (Exclusions from severance pay) sets out a number of exclusions from payment of severance pay. None of the listed exclusions appears to be relevant to my consideration.

[14] Clause 289 (Severance Payments and Related Conditions) of the Agreement sets out the quantum of Severance Pay where continuing employment ends on the ground of redundancy.

Submissions on behalf of Dr Shewan

[15] Dr Shewan’s written submissions, per Ms Inverarity, argued that there is no general right under the Agreement for the University to employ fixed term employees and that it is only permitted to do so in conformity with the terms of clause 21 of the Agreement.

[16] “None of these circumstances apply to Dr Shewan’s employment. Therefore to the extent that SU alleges she is a fixed term employee she is not and cannot be employed on that basis as she does not fit any of the permitted criteria. Dr Shewan has been employed on a series of contracts but these do not fit within the provisions of the fixed term contracts that SU is entitled to use. She is therefore a continuing employee.”

[17] In relation to entitlement to redundancy payments the submission argued that an entitlement to redundancy arises from clause 289 of the Agreement. That clause, for Academic Staff aged 45 years and over, provides for a payment of 22 weeks salary plus three week per completed year of service with a maximum payment of 82 weeks salary.

[18] Dr Shewan was paid a total of eight weeks on termination, apparently arising from clause 31 of the Agreement which provides for the payment of eight weeks on termination to a fixed term contract employee who has worked for four years or more.

[19] Dr Shewan also received a notice payment of five weeks pursuant to clause 27 (Further offers of employment and ending fixed term employment) of the Agreement.

[20] Dr Shewan disputes that she was employed to undertake ‘research only functions’. The submissions made on her behalf go on to set out in some detail other work allegedly performed for the University:

“Dr Shewan’s position has never in reality ever been ‘Research Only’ and the ‘Research Only’ nomenclature was being used merely as an artificial construct by SU to deprive her of her rightful entitlement. This is evidenced by her supervisors and line managers repeatedly asking her to perform non-research duties for significant proportions of her working time (Forensic Masters course proposal, NSW Health Child Sexual Assault and Neglect Tender and Faculty of Arts course development and MOA preparation and negotiation) and by the fact her performance reviews have repeatedly both assessed her performance in non-research areas and approved development plans that requested continuing substantial activity on these non-research roles (we refer to her PM+D documents). Thus in all ways the SU has behaved as if she were a full academic employee and entitled to ongoing employment and enhanced severance pay and that it was only and solely the HR imposed words ‘Research Only’ on her contracts which was never consistent with her role that allowed SU to assert that she was eligible to be on a fixed term contract. In any event Dr Shewan was employed on these contracts for in excess of 5 years, so even if she was in a research only role it did not fit within the permitted fixed term exception of 21 (c) of the EA ...”

[21] “Furthermore she has had at every stage the full expectation that her contract would be renewed and repeatedly received assurances at every level, particularly the Dean of Medicine (and directly from HR) that her employment has earned the terms and conditions of an ongoing employee. Her ARC grants (in operation since 2008) have overlapped 3 contract renewals and have constituted a critical component of her employment in addition to her numerous (assessor dictated) non research duties.”

[22] The submissions go on to argue that if Dr Shewan is found to have been employed on a fixed term contract then she would still be entitled to redundancy pay of 17 weeks pursuant to clause 33 of the Agreement.

Submissions on behalf of the University

[23] The University’s written submissions, per Ms Cassoff, argue that being engaged on a fixed term basis is not unusual. The submissions go on to say:

“The University’s Enterprise Agreement specifically contemplates the engagement of staff on consecutive fixed term contracts. It gives existing staff priority for re-engagement where work is available for a further term. It also provides for severance pay at the end of fixed term employment. This recognises the prevalence of fixed term employment in the higher education sector and provides that additional payment as a form of compensation for fixed term engagement.”

[24] “The University does not agree with Dr Shewan’s assertion that she is a continuing employee. Dr Shewan has held a number of different positions with different titles and in different Faculties. Each position and contract has been set out in writing which Dr Shewan has accepted in writing. The University’s position is that each contract is a separate and distinct contract. This is not a case in which it could be said that the renewal of Dr Shewan’s contracts was a mere formality. Indeed, there have been negotiations in relation to who would fund Dr Shewan’s further employment, and active consideration has been given to the manner in which employment would be offered at the end of each fixed term period.”

[25] The University goes on to argue that Dr Shewan was employed to undertake research only functions and therefore was entitled to eight weeks severance pay pursuant to clause 31 of the Agreement. The submissions go on to say:

“... as a gesture of goodwill and in recognition of Dr Shewan’s length of service with the University, the University agreed to pay long service leave to Dr Shewan of 3 months’ pay, even though there was no entitlement to pro rata leave as Dr Shewan did not have the requisite 10 years continuous service with the University ...”

[26] “Even if the Commission were to determine that none of the categories of clause 21 of the Enterprise applied to Dr Shewan’s engagement, this would not mean that Dr Shewan was not engaged on a fixed term contract. Dr Shewan could still be employed on a fixed term basis, it would simply reflect that this engagement was not properly categorised under the Enterprise Agreement. It is not the case that if Dr Shewan was not engaged under an appropriate category of fixed term employment under the Enterprise Agreement, that she was a continuing employee. If the University is mistaken in its characterisation (which it submits is not the case), this would be a breach of the Enterprise Agreement. It does not follow that Dr Shewan was a continuing staff member.”

[27] “The University submits that the phrase ‘research only role’ in clause 21(c), ‘research only functions’ in clause 30(a)(iii) and ‘undertake only research functions’ in clause 31(c) are designed to cover a situation in which an academic staff member fulfils a role which is primarily focussed on research, as distinct from a teaching and research role which encompasses both functions equally.”

[28] The University argues that Dr Shewan’s submissions advocate a too literal interpretation of the term ‘research only role’ as all academic staff will perform administrative tasks from time to time. “These duties are entirely consistent with the nature of a Research only academic.” The submissions go on to say that the custom and practice of the University is that a research only academic will typically spend 80% of their time in research related activities and 20% of their time engaged in professional and communication engagement and administration.

[29] “The University submits that it has not exceeded the time limit for engaging Dr Shewan to undertake only research functions, as it has only offered one fixed term contract to Dr Shewan since the commencement of the Enterprise Agreement which was for a term of 1 year. The agreement in place immediately prior to 23 November 2009 did not limit the circumstances in which staff could be engaged on a fixed term basis.”

[30] The University denies that the contracts entered into with Dr Shewan over the years were designed to thwart her legitimate entitlements as a continuing employee. It argues that Dr Shewan’s employment ended in accordance with her contract and not by way of redundancy.

[31] The University denies making any representations to Dr Shewan that would have led her to believe her that her contract would be renewed and “notes that no evidence of these representations have been provided.”

Final submissions on behalf of Dr Shewan

[32] Dr Shewan’s final written submissions, per Ms Inverarity, argue that the University does not have “an unfettered right to employ people on fixed term contracts.” The submissions go on to say that the payment of long service leave to Dr Shewan is irrelevant in the context of her entitlement to redundancy pay.

[33] In summary, the final submissions say:

● Each in the series of employment contracts between Dr Shewan and the University is not separate and distinct.
● “Dr Shewan was requested and required to undertake significant non-research related activities.”
● “The purpose of the clause [clause 21] is clearly to limit SU’s ability to use fixed term contracts to avoid the obligations to continuing employees.”
● Dr Shewan had engaged in face to face teaching of Medical and Archaeology students and training of such students.
● “SU provides no documentary support for their contention that a ‘research only’ academic should spend 20% of their time doing duties that would constitute ‘non research’.”
● “The Applicant contends that even if she is held to be a research only employee (which is denied) nothing in the wording of clause 34 prevents Dr Shewan receiving that redundancy payment.”

Conclusions and Determination

[34] In reaching my determination of this application, I have paid regard to all of the submissions and materials put before me by the parties together with a close examination of the relevant provisions of the Agreement. After considering all of the material before me, I have concluded that the argument put forward by the University is to be preferred.

[35] Dr Shewan was employed pursuant to a series of fixed term contracts and the last of those contracts expired on 31 December 2012. Having regard to the relevant provisions of the Agreement and to the contracts and other materials which are in evidence, I am satisfied that she was correctly styled as a research-only academic and that other duties performed by her were ancillary and corollary to her research functions. The research-only nomenclature appears to arise from Schedule 2 of the Agreement in which academic staff are divided into ‘Teaching and Research Academic Staff’ and ‘Research Academic Staff’.

[36] There is also nothing before which would lead me to the conclusion that the fixed term contracts themselves were a sham designed to avoid any of the University’s obligations to Dr Shewan. In my experience such contracts are unexceptional in the tertiary education sector.

[37] The argument put forward on behalf of Dr Shewan that the ancillary and corollary functions performed by her invalidated her Fixed Term status due to the operation of clause 21 of the Agreement is not sustainable. In my view, her status was clearly that of a fixed-term employee, and even if I am wrong in that, I accept the University’s alternative argument that this would only mean that the employment was in breach of the enterprise agreement. It would not follow that the alternative would be that Dr Shewan was a continuing employee.

[38] Therefore, I determine that Dr Shewan was engaged as a fixed term employee as defined in clause 20 of the Agreement and that the payment made to her pursuant to clause 31 was made in accordance with the correct application of the Agreement. Accordingly, Dr Shewan’s application pursuant to s.739 of the Act is dismissed.

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