DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Ms Lui Cheng
v
Griffith University
(C2019/6531)

COMMISSIONER RIORDAN

SYDNEY, 13 AUGUST 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Ms Lui Cheng (the Applicant) filed a dispute with the Commission under section 739 of the Fair Work Act (Cth) 2009 (the Act) on 24 October 2019. The application named Griffith University (the Respondent) as the Respondent to the dispute.

[2] The dispute relates to the application of Clause 41 of the Griffith University General Staff Enterprise Agreement 2012 – 2016 (the 2012 Agreement) and whether the Applicant’s employment was confirmed in accordance with the provisions of the Agreement or whether the Respondent has acted illegally and is in breach of the Agreement. The Applicant sought the assistance of the Commission in determining her employment status and the contractual relationship with the Respondent past the expiration of her probationary period.

[3] Clause 41 of the Agreement provides:

“41. PROBATION

Probation will be undertaken in accordance with the Probation Policy and Procedures for General Staff Continuing and Fixed Term Appointments. These Policies and Procedures will not be changed without prior consultation with staff and the unions. Staff members are subject to the following probation periods:

Continuing appointments	Guidelines for Probationary Period
HEW levels 1-4 HEW levels 5-7 HEW levels 8-10	3 months From 3 months - up to 6 months From 3 months - up to 12 months
Fixed term appointments	Guidelines for Probationary Period
All fixed term appointments having regard to the level and probationary period for continuing appointments set out above.	Up to one-third of the contract to a maximum as specified for continuing appointments above with a minimum of 3 months.

In exceptional circumstances and having regard to the nature of the job, the Head of Element may recommend to the relevant senior officer that a longer period of probation be applied. In the same regard, given a staff member’s experience and qualifications, the Head of Element may recommend to the relevant senior officer that a shorter period of probation be applied, or that the probation period be waived.

Any such recommendation must be forwarded to the Director, OHRM for final approval before an offer of appointment is made. For both fixed term and continuing appointments, the above probationary period only applies to the initial period of the staff member’s employment, except where:

• a staff member is re-employed by the University and the break in service is 3 months or more, such an appointment may include a probationary period; or

• subsequent to a fixed term or continuing appointment, a staff member is appointed to another position that involves duties that are substantially different to those of their current position, a further probationary period may be required.

In the case where, subsequent to a fixed term appointment, a staff member is appointed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 4555
Decision Date: 13 AUGUST 2021

CaseChat Overview and Summary

Ms Lui Cheng brought a claim against Griffith University, seeking resolution of various matters she argued arose under an enterprise agreement and the National Employment Standards. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. Ms Cheng argued that her employment was governed by a specific enterprise agreement, and she sought clarification and enforcement of various terms within this agreement, as well as compliance with the National Employment Standards. She claimed that the university had breached these terms by, among other things, failing to provide adequate notice of termination and not paying her entitlements as stipulated.

The central legal issues the Commission had to address were whether the claimed disputes fell within the scope of the enterprise agreement and the National Employment Standards, and if so, what remedies were appropriate. It was necessary to determine whether the alleged breaches constituted violations of the agreement or the standards, and if the university's actions warranted any corrective measures or compensation. The Commission examined the terms of the enterprise agreement, the relevant provisions of the National Employment Standards, and the evidence presented by both parties.

In its decision, the Commission found that some of the claims made by Ms Cheng were indeed within the scope of the enterprise agreement and the National Employment Standards. It held that the university had breached certain provisions by failing to provide adequate notice of termination and by not paying her entitlements as required. The Commission ordered the university to pay Ms Cheng compensation for the breaches, including both monetary payments and specific performance of the agreement's terms. The university was also directed to take steps to ensure compliance with the enterprise agreement and the National Employment Standards in the future.

Orders