Monash University v Murthi

Case [2024] FCA 663

FEDERAL COURT OF AUSTRALIA

Monash University v Murthi [2024] FCA 663

File number: VID 467 of 2024
Judgment of: WHEELAHAN J
Date of judgment: 21 June 2024
Catchwords: INDUSTRIAL LAW — enterprise agreement – arbitral jurisdiction of the Fair Work Commission – where an academic member of staff was accused of plagiarism – where the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 required Monash University to comply with certain procedures when investigating allegations of plagiarism in breach of the Australian Code for the Responsible Conduct of Research 2018 (the Research Code) – where the staff member referred a dispute concerning the conduct of the relevant investigations to the Fair Work Commission for arbitration – where the University sought a declaration that the Commission lacked jurisdiction to determine whether an academic employee breached the Research Code – where the University submitted that the Agreement reserved the merits of allegations of plagiarism to be dealt with exclusively by processes set out under the Research Code – where the University submitted that it would therefore be inconsistent with the Agreement for the Commission to consider the merits of the allegation – the Commission has jurisdiction to deal with disputes that are referred to it in accordance with the Agreement – the Agreement does not impliedly carve out the merits of allegations of plagiarism from this conferral of jurisdiction – whether the Commission has power to make particular kinds of order is a separate question – the Commission has power to consider the merits of an allegation of plagiarism as a step along the way to making another order that is within power – the Commission has power to make orders remediating the consequences of a breach of the Agreement – the declaration should not be made – application dismissed.
Legislation:

Fair Work Act 2009 (Cth) ss 3(e), 50, 51, 186(1), 186(6), 545(1), 562, 595, 595(2)–(3), 738, 738(b), 739, 739(1), 739(3)–(5)

Federal Court of Australia Act 1976 (Cth) ss 21, 23

Workplace Relations Act 1996 (Cth) ss 134H, 170LW(a), 170MH(a)
Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157

Australian Football League v Carlton Football Club Ltd [1998] 2 VR 54

Australian Workers’ Union v Bowen [No 2] (1948) 77 CLR 601

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; 235 FCR 305

Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216

Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2016] FCAFC 57

Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; 203 CLR 645

Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87; 203 FCR 371

Dickason v Edwards (1910) 10 CLR 243

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AGLC
Monash University v Murthi [2024] FCA 663
Case
[2024] FCA 663
Decision Date

CaseChat Overview and Summary

Monash University sought a declaration that the Fair Work Commission (FWC) lacked jurisdiction to arbitrate a dispute raised by Dr Murthi concerning the University’s investigation of an allegation of plagiarism against her. Dr Murthi, an academic employed by Monash University, raised the dispute under the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (the Agreement). The primary issue for the Federal Court was whether the FWC had jurisdiction to arbitrate the dispute concerning the University’s handling of the plagiarism investigation, as well as any resulting consequences.

The Court held that the Agreement conferred jurisdiction upon the FWC to arbitrate disputes concerning the application of the Agreement, including those related to the procedures for handling allegations of plagiarism. The Court rejected the University’s argument that the Agreement reserved the merits of plagiarism allegations to be dealt with exclusively under the Australian Code for the Responsible Conduct of Research 2018. Instead, the Court found that the Agreement did not exclude the merits of such allegations from the FWC’s jurisdiction. The Court further determined that even if the FWC considered the merits of the plagiarism allegation, it could still make orders remediating the consequences of a breach of the Agreement. Consequently, the Court found that the FWC had jurisdiction over the dispute and dismissed the University’s application for declaratory and interlocutory relief.

The Court ordered that the proceeding be dismissed and allowed the first respondent, Dr Murthi, to apply for an order for costs, with the University having the opportunity to respond. The Court further provided that if no application for costs was made, there would be no order as to costs. This decision confirmed the FWC’s authority to arbitrate disputes involving the application of the Agreement, including those related to the investigation of plagiarism allegations.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The first respondent may apply for an order for costs by filing and serving by 4.00 pm on 28 June 2024 an outline of submissions not exceeding three pages.

3. If the first respondent makes an application for costs in accordance with order 2 above, then the applicant may file and serve by 4.00 pm on 5 July 2024 an outline of submissions not exceeding three pages.

4. Subject to further order, any application for costs will be determined on the papers.

5. If the first respondent does not make an application for costs in accordance with order 2 above, then there shall be no order as to costs: see Fair Work Act 2009 (Cth) s 570.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The ambit of the issue raised by the University in this proceeding is whether the matters raised by Dr Murthi before the Commission involve a dispute “as to the application of [the] Agreement or any matters arising from it”, being the relevant terms of clause 12.1(a) of the Agreement.Further background Until 31 December 2023, Dr Murthi was employed by the University as a Senior Research Fellow within the Department of Pharmacology. Since then, she has periodically been employed by the University in other casual academic roles. Dr Murthi is a reproductive biologist and placentologist with a doctorate from the University of Melbourne in extracellular matrix proteins in diabetic nephropathy. In April 2019, an allegation was made against Dr Murthi by a former honours student that Dr Murthi had plagiarised some of that student’s work in a published review article, and thus breached the Research Code, which is referred to in clause 62.1 of the Agreement. This allegation was then investigated by the University. The University’s investigations involved a preliminary assessment and subsequently a first adverse finding in May 2020, and then upon a request by Dr Murthi that the University consider new evidence, a second adverse finding in March 2022. The new evidence relied on by Dr Murthi took the form of electronic documents on a USB device which Dr Murthi claimed showed that files that she had authored long before the student’s honour’s thesis was written contained the text and figures she was alleged to have plagiarised. Dr Murthi claimed that the new evidence showed that she could not possibly have plagiarised the student’s honours thesis. By a letter dated 11 July 2022, the solicitors acting for Dr Murthi notified the University of a dispute in accordance with clause 12.1 of the Agreement. Dr Murthi alleged that in conducting the second investigation, the University did not give her the opportunity to comment on the significance of her new evidence, nor invite her to comment on evidence upon which the University subsequently relied. The letter requested that the outcome of the review be “quashed”, and that the review be conducted again. The letter of notification also foreshadowed a claim for an award of damages for breach of the Agreement. In November 2022, Dr Murthi referred the dispute to the Commission. By a Form F10 lodged with the Commission, Dr Murthi claimed that in conducting an investigation and review the University did not comply with clauses 58 and 62 of the Agreement. In particular, in describing what the dispute is about, Dr Murthi stated in the Form F10 that one of the issues was “whether the [University’s] conduct of the First Investigation and the Review resulted in a wrong and unfair final outcome”. That claim was made in the following terms under the heading, “What is the dispute about?” –3. The dispute is about:a.whether the Respondent complied with clauses 58 and 62 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (Enterprise Agreement) in the conduct of the First Investigation and the Review; andb.whether the Respondent’s conduct of the First Investigation and the Review resulted in a wrong and unfair final outcome.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Therefore, even if the University’s proposed declaration were to be understood in the narrow way I have explained, I would decline to make it. This result must be understood in light of my earlier conclusions that the declaration sought by the University is, in fact, directed to jurisdiction, in the sense of authority to decide, and that the Commission does have authority to arbitrate the whole dispute between the parties, including by considering any issues related to plagiarism. Whether it decides to do so is a matter for the Commission having regard to the way the parties to the dispute present their cases, and the Commission’s consideration of what is appropriate. Further, this result must be understood in light of my conclusion that, even understood as concerned with power, the declaration sought by the University should not be made because it would appear to assert that the Commission lacks power to make findings as to the merits of the plagiarism allegation, as a step along the way towards some orthodox remedial order.Conclusions By entering into the Agreement and consenting to its approval by the Commission, the University enshrined as terms of the Agreement its obligations to follow procedures and guidelines for dealing with claimed breaches of the Research Code. The University also submitted to having any disputes about its compliance with those processes referred to the Fair Work Commission for arbitration. The issues which the University has agitated in this proceeding do not go the Commission’s authority to decide in relation to the dispute that has been referred to it. Rather, the University’s arguments go to the appropriateness of the relief sought by Dr Murthi, which is a question for the Commission to decide. The application must be dismissed. I will hear the parties on costs.

Ratio Decidendi

Legal Principle Established

During this period of further review, the Commission sought updates from the parties from time to time. The Commission listed the matter for a telephone mention on 7 May 2024, following which, over the objection of the University, it issued directions listing the matter for a “jurisdictional and merits hearing” on 24, 25, and 26 July 2024.The declaration sought by the University The Commission has power to form an opinion as to its own jurisdiction: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [24] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). The Commission’s decision on 7 May 2024 to order that the matter be listed for a “jurisdictional and merits hearing” on 24, 25, and 26 July 2024 was a decision relating to a matter of practice and procedure within the Commission’s jurisdiction, which is not in itself assailable in this proceeding. About three weeks after the Commission’s procedural orders were made, the University commenced this proceeding seeking declaratory and interlocutory relief. I referred to the nature of the relief sought at the outset. The actual terms of the declaration sought are important. I will now set out the terms of the declaration sought by the University, which accommodates an amendment that was made during the course of the hearing, which is underlined –Pursuant to s 562 of the Fair Work Act 2009 (Cth) and s 21 of the Federal Court of Australia Act 1976 (Cth), a declaration that the Second Respondent does not have jurisdiction to determine whether an academic employee of Monash breached the Australian Code for the Responsible Conduct of Research 2018 in respect of whether that employee engaged in research misconduct by engaging in plagiarism, nor otherwise to determine the merits or outcome of such an allegation, in the context of arbitrating a dispute about the application of clauses 58 and/or 62 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019. The Court’s power to grant a declaration of this nature was not in issue: Federal Court of Australia Act 1976 (Cth) ss 21, 23; Fair Work Act s 562.The submissions of the University In support of the claim for the declaration, senior counsel for the University submitted that clause 12 of the Agreement authorises the reference of certain disputes to the Commission, and that it was necessary to determine whether any given dispute is one that is within clause 12, which was one of the sources of the Commission’s jurisdiction. The University submitted that the Commission will only have power to deal with a dispute by arbitration where the dispute is properly characterised as one within the scope of clause 12 of the Agreement. The University characterised the dispute — or at least part of it — as a dispute about the underlying question as to whether Dr Murthi committed plagiarism and so breached the Research Code. While accepting that the statements made by Dr Murthi in her Form F10 as to what “[t]he dispute is about” are relevant to characterising the dispute, the University submitted that it was also relevant to consider the relief sought by Dr Murthi in the Commission. The University emphasised that paragraphs [2] and [3] of the claim for relief in the Form F10, which I set out above, shed light on the true character of the dispute. The University submitted that, in light of the relief sought, Dr Murthi’s dispute was properly characterised as one as to whether she in fact committed plagiarism.