Monash College Pty Ltd v National Tertiary Education Industry Union
[2012] FWA 4725
•4 JUNE 2012
[2012] FWA 4725 |
|
DECISION |
Fair Work Act 2009
s.739—Application to deal with a dispute
Monash College Pty Ltd
v
National Tertiary Education Industry Union
(C2012/2493)
Educational services | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 4 JUNE 2012 |
Dispute regarding a leadership restructure; proper application of the agreement; managerial prerogative.
INTRODUCTION
[1] Monash College Pty Ltd (Monash) seeks, pursuant to s.739 of the Fair Work Act 2009 (the Act), a determination in relation to the proper application of clauses 67 and 74 of the Monash College Pty Ltd Enterprise Agreement 2009—2013 (the Agreement). There appears to be no remaining issue that Monash has not consulted with its employees and the National Tertiary Education Industry Union (NTEU) in accordance with clause 53 of the Agreement dealing with the introduction of change.
[2] This notification by Monash arose because it sought to ensure that its actions in seeking to restructure aspects of its activities were consistent with its obligations under the Agreement.
[3] It did so against the background of disquiet from a number of its academic staff and through their representative, the NTEU. It is apparent that Monash seeks to ensure that its actions are transparent and open to proper challenge if employees believe that it has made errors in the proper application of the Agreement.
BACKGROUND
[4] Monash is a wholly-owned company of Monash University which operates independently and does not receive any government funding. It specialises in academic and English pathway programmes for students who wish to study at Monash University. It has four main educational units—Foundation Year, Diplomas, English Language Centre and Professional Pathways Australia. Its workforce consists of 549 staff made up of fixed term, permanent and sessional employees.
[5] As a result of declining international student enrolments (1360 in 2009 to 927 in 2011) together with a significant attrition rate (40% in Diploma programmes from 2006—2010) a decision was made to commence a range of initiatives including new teaching and leadership structures. The new structure was set out in a letter to the NTEU dated 8 November 2011. It stated inter alia:
“Under the new structure, it is proposed that all but one of the existing Academic Manager (3 position) and Subject Coordinator positions (1 position), and all of the Program Coordinator (9 positions) and Assistant Program Coordinator (3.8 positions) positions are no longer required. It is proposed that employees currently occupying these positions will continue to do so until the expiration of their existing fixed term contracts (early February 2012).
It is intended that these positions be replaced with 5 new Team Leader—Teaching and Learning Practice positions from Trimester 1, 2012. These new positions would be classified at the program Coordinator level and have a strong focus on teaching and learning through mentoring and coaching of teaching staff, and the development of an innovative and creative solutions to deliver MCPL's teaching and learning strategy.”
[6] It is argued by Monash that clause 67.8 of the Agreement was the catalyst for the review of structures. That clause provides:
“A review will be undertaken to look at Program Co-ordination arrangements across all Diploma areas within 12 months of the operative date of the Agreement.”
[7] In addition, clause 74 provides for a review of college teacher classification structures.
[8] The NTEU argue that these clauses did not provide the justification to review the structure as widely as that conducted by Monash. In addition, the NTEU argue that the salary band selected for the new structure undervalued the work value of positions created.
[9] It is said that two issues arise for determination. Firstly, do clauses 67.8 and 74 permit the review conducted and secondly, has Monash properly classified the new roles. Significant evidence was called by both the NTEU and Monash on these issues.
CONSIDERATION OF THE ISSUES AND CONCLUSION
[10] The parties were aware that certain roles were going to be considered. In one sense, it matters little about the extent of that review. The employer can choose or not choose to utilise classifications contained in the Agreement. It cannot, of course, avoid it obligations under an agreement simply by renaming a function without changing the nature of the work which previously attracted a particular level of remuneration under the Agreement. Provided it complies with is obligations under an agreement, the issue of managerial prerogative is relevant. In Australian Public Sector, Professional and Broadcasting Union, Australia Government Employment v Department of Primary Industries and Energy and anor 1 it was stated:
“This Commission has long held a view that there is a "long established right of management to allocate and arrange work and for the employees to respond to reasonable management requirements.”
In Re: Cram and Others; Ex Parte N.S.W. Colliery Proprietors' Association Limited and Others the Court stated:
“...the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.”
McKenzie C in the Northern Territory Teaching Service Case outlined some of the development of the concept of managerial prerogative. However the case which is often referred to is a decision of a Full Bench of this Commission is the XPT Case where it is decided that:
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.” (Footnotes omitted)
[11] Subject to the requirement to consult, I cannot discern anything in the Agreement which would inhibit Monash in restructuring the way in which it delivers its service. The payment of employees performing those roles is another matter. It is to that matter that I now turn.
[12] Monash has closely examined the work it wants performed having regard to its current work requirements. 2 The review, it appears to me, has been both comprehensive and thorough. This is not an example of something which has been cobbled together over a short period of time. I also note that there are no academic descriptors contained in the Agreement and therefore this presents a considerable difficulty in determining whether or not academics have been properly classified. There are wage schedules and this assists because it can be assumed the duties currently performed by persons within those classifications have a work value approximating the salary for those positions. Given the course I propose to adopt this will assist in a relative sense.
[13] A work value assessment, which involves the proper application of the salaries provision of the Agreement can be made in a relative sense when a better informed comparison can be made of the work performed in the new roles. Much of the evidence dealt with what each party expected from the structure and, in particular, how employees thought it would operate. In my view, this aspect of the case is premature. The new structure should be implemented and allowed to operate so that the experience of employees who have had old and new roles can be drawn upon. Indeed, it will provide Monash with the opportunity to implement the work requirements it sees as necessary for the roles it has created. At that time it would be possible to conduct a relative examination given the absence of position descriptors in the Agreement.
[14] Any review would, of course, examine the operative date of the proper application of the Agreement. It may also be that some uncertainty exists in the Agreement in the absence of classification descriptors for academics.
[15] I propose to adjourn this aspect of the case until December 2012.
Appearances:
C. O’Grady of Counsel on behalf of Monash College Pty Ltd.
S. Rosenthal on behalf of the National Tertiary Education Union.
Hearing details:
2012.
Melbourne:
February, 10 and 22;
April, 17, 18 and 23.
1 K7179 see also [2012] FWA 2208 and Print K1929
2 See Exhibits Monash 2—KD1 and Monash 3—KM3
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