National Tertiary Education Industry Union-NSW Division v The University of New England T/A the University of New England

[2018] FWC 1913

[2018] FWC 1913

FAIR WORK COMMISSION

REASONS FOR DECISION

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

National Tertiary Education Industry Union-NSW Division
v
The University of New England T/A The University of New England
(C2018/1250)

COMMISSIONER JOHNS SYDNEY, 9 APRIL 2018

Dispute under s.739 – application for interim orders under s.590.

Introduction

[1] On 8 March 2018, the National Tertiary Education Industry Union (NTEU) applied to the Fair Work Commission (Commission) to deal with a dispute under section 739 of the Fair Work Act 2009 (FW Act) with the University of New England (University).

[2] In short, the dispute is about whether the University complied with clause 20.3.2 of the University of New England Academic & ELC Teaching Staff Collective Agreement 2014-2017 (Agreement) and clause 20 more generally relating to Academic Workloads and how the same are to be determined.

[3] The NTEU complained that the Dean of the Faculty of Humanities, Arts, Social Sciences and Education (HASSE), in their words, unilaterally imposed a Work Load Policy on 20 February 2018 with the effect that teaching loads were increased. The NTEU submit that the Dean’s action was in breach of the Agreement. The University denies that the Dean acted inconsistent with the Agreement.

[4] The matter was listed for conference on 15 March 2018. The NTEU invited the University to maintain the status quo by applying the Work Load Policies that applied prior to 20 February 2018. The University declined.

[5] Consequently, on 20 March 2018 the NTEU made an application for interim orders preserving the status quo pending resolution of the dispute in accordance with the Agreement. The University opposed the application for interim orders.

[6] On 28 March 2018, a hearing was held in respect of the application for interim orders. At the hearing the:

a) NTEU:

i. was represented by Ms J Wells, Industrial Officer, and

ii. filed witness statements from:

A. Kelvin McQueen, Lecturer in Education Contexts in the School of Education (Exhibit NTEU-2). Mr McQueen was not required for cross-examination.

B. Angela Page, Lecturer in Inclusive Education and Policy in the School of Education (Exhibit NTEU-3). Ms Page was not required for cross-examination.

C. Eveline Chan, Senior Lecturer in English and Literacies Education in the School of Education (Exhibit NTEU-4). Ms Chan was not required for cross-examination.

D. Margaret Rogers, Lecturer in Early Childhood in the School of Education (Exhibit NTEU-5). Ms Rogers was not required for cross-examination.

b) the University:

i. was (ultimately) represented by Ms C Pugsley, Workplace Relations Consultant, Australian Higher Education Industry Association (AHEIA), and

ii. filed a witness statement from Professor John Fitzsimmons, Dean of the Faculty of HASSE (Exhibit UNE-2). Professor Fitzsimmons was cross-examined.

[7] During the course of the hearing I dealt with (at the time) three applications as follows:

a) an application for the University to be represented by a lawyer, namely by Mr S Meehan of counsel. The application was denied.

b) an application that I recuse myself on the basis of an apprehension of bias. The application was denied.

c) an application for interim orders. The application was denied in the terms sought by the NTEU, but granted in an amended form. The Interim Orders were issued on 28 March 2018. 1

[8] These are my further reasons for decision.

Permission to be represented

[9] The Respondent sought permission to be represented by a lawyer, namely, Mr S Meehan of counsel. The application was advanced under s.596(2)(a) and (b) of the FW Act. Ms Wells objected to the University being represented by Mr Meehan.

[10] Section 596(2) provides as follows:

“596 Representation by lawyers and paid agents

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.”

[11] The starting point for any consideration of a request for permission to be represented is the Federal Court decision in Warrell v Walton 2  where Flick J said:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.”

[25] The appearance of lawyers to represent the interests of parties to a hearing runs the very real risk that what was intended by the legislature to be an informal procedure will be burdened by unnecessary formality. The legislative desire for informality and a predisposition to parties not being represented by lawyers emerges, if not from the terms of s 596, from the terms of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)...”

[12] Mr Meehan, in support of permission being granted under s.596(2)(a), contended that the matter was invested with complexity because of:

a) “the notification of dispute, application and the submissions”,

b) the need to consider “the legal principles relating to interim relief” including “whether it permits an order or orders of the type being sought by the union”. “That throws up issues as to the formation of release and of course the discretionary factors that would apply”,

c) “the assembly of the facts relevant to [the] application”,

d) “there are in issue the approaches to construction of clause 58 and at least 20.3.2 of the relevant enterprise agreement.” 3

[13] Mr Meehan submitted that the above “matters both singularly and as a matrix of factors take on real complexity”. 4

[14] I indicated to Mr Meehan that, even if the matter is invested with complexity, I needed to be satisfied that “it would enable the matter to be dealt with more efficiently” if I granted the University permission to be represented by him. I asked why the University could not be represented by Ms Pugsley noting that she was present at the hearing and had previously represented the University in the matter.

[15] Correctly, Mr Meehan submitted that the test is not whether the University could be efficiently represented by someone else (like an industrial advocate). In so far as the FW Act uses the phrase “more efficiently” Mr Meehan correctly identified that the comparator with the lawyer seeking to represent a party before the Commission is the party itself and not an external advocate who might otherwise be able to represent the party. The fact that the University, as a member of the AHEIA, could have instructed Ms Pugsley to represent it played no part in my decision making.

[16] Mr Meehan then submitted that the internal legal team of the University (two of whom were present with him at the bar table) were not experienced advocates in matters before the Commission. He submitted that “it would be unfair not to allow the University to be represented in those circumstances where it can’t itself advocate the case.” 5

[17] Ms Wells submitted 6 that an interim order application was not complex. She submitted that it was a simple test of whether the NTEU had an arguable case and where the balance of convenience lay. She submitted that the scope of the dispute, clause 20 of the Agreement, was narrow. On the question of efficiency Ms Wells complained that, to her mind, Mr Meehan had already failed to assist in the efficient conduct of the matter when he declined to give her advance notice of what limbs on s.596 he would be relying upon. This professional discourtesy played no part in my decision making.

[18] Having considered all that had been submitted in relation to the application for the University to be represented by a lawyer I was not satisfied that the necessary precondition in s.596(2)(a) had been established, namely that the matter (at the point at which it was before me) was invested with complexity. I noted that the application before me was for interim relief and that, to make the interim orders, I needed only to be satisfied that there was an arguable case and that the balance of convenience fell in favour of the NTEU. I saw no complexity in the task before me. To the extent that the application for permission to be represented was advanced under s.596(2)(a) it was rejected.

[19] In so far as an application for permission to be represented is advanced under s.596(2)(b) a Full Bench in King v Patrick Projects Pty Ltd 7 held that,

“[18] With respect to fairness pursuant to s.596(2)(b) of the Act, the relevant test is not an assessment of the skills and education of the individual employer representative (Mr Burton), but rather it involves an examination of the resources available to the Respondent as a whole. In this matter, the Respondent Patricks Projects is a large organisation with considerable resources at its disposal. Having regard to the internal legal, human resources and other specialist personnel available to the Respondent, we do not consider that it would be unfair not to allow the Respondent to be legally represented.

[19] Moreover, the onus is on the Respondent to show that it is unable to represent itself. There was no evidence before the Commissioner that the well-resourced employer enterprise, Patrick projects, was unable to represent itself in the substantive proceedings. As such, the findings of the Commissioner were not open to him on the evidence.”

[20] In attendance with Mr Meehan was the University’s Chief Legal and Governance Officer, Brendan Peet and a Senior Legal Officer in the University’s Legal Office, Katrina Warden. It is the usual role of a university legal office to provide legal advice and services to the university’s senior executive, academic and administrative staff on matters including in relation to litigation. Before me Mr Meehan submitted that the University was unable to effectively represent itself through its internal lawyers. It was a submissions made from the bar table. No evidence was lead about the skills, education or experience of the University’s internal lawyers. Noting that the onus was on the University to establish that it was unable to represent itself (absent evidence to the contrary) I was not satisfied that a Chief Legal Officer and Senior Legal Officer were unable to do so. There was no evidence before me to establish that either Mr Peet or Ms Warden were unable to represent the University and that, consequently, if of them did represent the University it would be unable to represent itself in a manner that created a “striking impression”, or which had an “impressive” effect or which was “powerful in effect” 8 to the extent that the application for permission to be represented was advanced under s.596(2)(b) it too was rejected.

[21] The University was then granted an adjournment to allow it to make arrangements for its representation. When the proceedings resumed, Ms Pugsley advised the Commission she now had instructions to act for the University. 9

Recusal

[22] Before adjourning to allow the University to make arrangements for its representation I provided the parties with draft interim orders for them to consider. I prefaced doing so by saying,

“I obviously have not made any decision in relation to the matter or determined the matter, [however] I have given some thought to what an draft order might look like if I was to make an order and what I propose to do is hand down to you copies of those and we can deal with those in the course of the proceedings this morning.” 10

[23] On the resumption of the hearing the following exchange occurred 11:

“Ms Wells: Commissioner, I have instructions from representatives in Armadale. Do you want me to comment on the draft order now or proceed with evidence?

The Commissioner: I’m happy few to make some interim comments on the draft order, if that’s what you want to do…

Ms Wells: Commissioner, we would accept the draft order as proposed.

The Commissioner: Yes. Thank you. Ms Pugsley, do you have any instructions or comments on the draft order at this stage? I’m not going to hold you to that, but it might be useful…”

[24] The University then made an application for me to recuse myself on the grounds of a reasonable apprehension of bias. 12 The apprehension of bias was said to arise because I “had prepared draft orders and in open court provided the draft orders to the representatives’ parties”13 The NTEU opposed the application that I recuse myself.

[25] It was necessary to deal with the application that I recuse myself before dealing with the application for interim relief. The applications could not be dealt with concurrently. 14

[26] The University asked that it be provided with 24 hours to make further submissions. I declined adjourning the matter for that purpose observing that,

“Pursuant to section 577 of the Fair Work Act, the Fair Work Commission is required to exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities. It is also obliged to exercise its powers in a manner that is fair and just.” 15

[27] I also observed that, 16 “the principles for dealing with allegations of bias were concisely set out by Asbury DP in Woolston v Uniting Church in Australia Property Trust (Q) T/A Blue Care Bli Bli Aged Care Facility (Woolston).17 In Woolston the Deputy President dealt with applications for both apprehension and actual bias, and summarised as follows (citations omitted):18

“[12] As the High Court of Australia put it in Ebner v the Official Trustee “…bias whether actual or apparent, connotes the absence of impartiality.” A claim of actual bias requires proof that the decision maker approached the issues with a closed mind or had prejudged the matter and for reasons of either partiality in favour of a party or some form of prejudice affecting the decision, could not be swayed by the evidence in the case at hand. The test for apprehended bias is whether “a fair minded lay observer might reasonably apprehend that the [decision maker] may not bring an impartial mind to the question the [decision maker] is required to decide”.

[13] Actual bias is assessed by reference to conclusions that might reasonably be drawn from evidence about the actual views and behaviour of the decision maker and requires clear and direct evidence that the decision maker was in fact biased. It has been pointed out that in the absence of an admission of guilt or a clear and public statement of bias from the decision maker, actual bias will be difficult to establish. Apprehended bias is assessed objectively by reference to conclusions that may reasonably be drawn about what an observer might conclude about the possible views and behaviour of the decision maker. In relation to apprehended bias, a Court may only need to be satisfied that a fair minded and informed observer might conclude that there was a real possibility that the decision maker was not impartial.

[14] The Decision of Justice Moynihan in Keating v Morris; Leck v Morris is instructive in terms of the authorities considered and the conclusions reached. In that case, his Honour was considering an application that a Commission of Inquiry was tainted by the apprehension of bias and made findings about the conduct of the Commissioner conducting the Inquiry. Those findings included that the Commissioner questioned witnesses rather than allowing Counsel Assisting to do so in accordance with the practice direction; the Commissioner’s questions were aggressive, sarcastic and belittling; and that the Commissioner’s harsh treatment of some witnesses was in stark contrast with his treatment of other witnesses. His Honour observed in relation to the questions asked by the Commissioner of certain witnesses that they were not: “fairly described as an exploratory or tentative statement of issues with a view to testing their correctness or to give the witnesses an opportunity to respond to a provisional view.” It was also found that the Commissioner interfered in the cross-examination in a hostile way and made accusations about the motives of those instructing counsel.

[15] On the basis of those matters, Justice Moynihan concluded in that case that:

“The circumstances established by the accumulated weight of evidence would rise, in the mind of a fair minded and informed member of the community, to a reasonable apprehension of lack of impartiality on the Commissioner’s part in dealing with the issues relating to each of the applicants.”

[16] His Honour also noted that while many decisions involve allegations of bias against courts, the rules also apply to investigative bodies, but that the application of the rules to such bodies differs from their application to litigation. In this regard, Justice Moynihan noted that a judge makes a decision on the basis of the evidence which the parties to the litigation have thought to be in their best interests to adduce and has no right to travel outside that evidence in an independent search for the truth.  His Honour observed that the test for bias “…takes into account the personality and disposition of the investigator, some may be more robust than others.” His Honour also observed that the difference between an inquiry and a court does not “dilute or diminish the expectation that a fair and unprejudiced mind will be applied to the resolution of any question.”

[17] The Commission is not a court and neither is it an investigative body. However, the Commission is not bound to follow the rules of evidence and can inform itself in any way that it sees fit. The Commission also has broad powers to control its proceedings. The Commission is bound to deal with matters before it in accordance with equity, good conscience and the substantial merits of the case. The Objects of Part 3-2 of the Act state that the procedures and remedies relating to unfair dismissal are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned. The Commission is also bound to afford parties natural justice.

[18] The rule against bias has been called one of the twin pillars of natural justice.  The other pillar – the hearing rule – requires that: “a decision maker, at least one exercising a public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made”. However, as Justice Kirby observed in Allesch v Maunz:

“…it is worth emphasising that the principle just described does not require that the decision maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.” 

[19] The Commission is increasingly required to deal with unrepresented parties – both employers and employees – who are very often extremely aggrieved and have a passionate belief in the righteousness of their position, notwithstanding the parameters of the legislative framework in which they seek to articulate their cases. The observation made by Justice Kirby set out above is apposite in the present case.”

[28] The decision in Woolston was appealed, and the Full Bench affirmed the approach taken by the Deputy President and in particular, noted that 19:

“…In the Australian legal system, any application that a decision-maker, whether a judge of a court or a member of an arbitral or administrative tribunal or a person conducting an inquiry, should recuse himself or herself from hearing and deciding a matter on the ground of actual or apprehended bias is to be made and determined in the first instance by the decision-maker.”

[29] I adopted the reasoning of her Honour in Woolston. 20

[30] The issue of prejudgment was dealt with by a Full Bench of the Commission in Construction, Forestry, Mining and Energy Union v Fair Work Commission, 21

“[34]  In Laws v Australian Broadcasting Tribunal, 22 Gaudron and McHugh JJ dealt with the issue of prejudgement, deciding:

“When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision-maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.”

[35]  Their Honours continued:

“Thus, in Ex parte Angliss Group, the mere fact that the statement of reasons for a previous decision gave rise to the conclusion that members of the Conciliation and Arbitration Commission tended to favour the adoption of a principle of equal pay for both sexes as soon as it was economically and industrially practicable to do so was not a ground for disqualifying them from sitting on an application for an equalisation of rates of pay for male and female employees brought in reliance upon their reasons. This Court rejected [(1969) 122 C.L.R., at p. 554] the notion that a fair and unprejudiced mind was ‘necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it’. In Re Shaw, the transcript showed that a judge of the Family Court of Australia had expressed opinions adverse to the case for the husband before his counsel had opened his case. Nevertheless, Gibbs A.C.J., with whose judgment Stephen J. and Wilson J. agreed, said [(1980) 55 A.L.J.R., at p.14; 32 A.L.R., at p. 51] that the evidence did not justify ‘a conclusion that the views which the learned judge expressed, although strong, were other than provisional, or that it could reasonably be suspected that at the end of the case she would not decide with a fair and unprejudiced mind’.”

[31] The substantive matter I was required to determine, relevant to the application for interim orders, was whether the NTEU had an arguable case and whether the balance of convenience was in its favour.

[32] In determining the application for apprehended bias, in order for me to recuse myself, the University needed to demonstrate that a fair minded lay observer might conclude that there was a real possibility that I, as the decision maker, was not impartial. The decision whether to recuse myself was discretionary in nature. 23

[33] Noting:

a) that I had prefaced providing the parties with a copy of the draft orders with a statement that I had not made any decision in relation to the matter, and

b) the exchange between me, Ms Wells and Ms Pugsley on the resumption of the hearing (where I asked for preliminary views that I would not hold them to),

I was not satisfied that a fair minded lay observer might conclude that there was a real possibility that I was not impartial. On the contrary, what was clear from the comments made by me was that I was affording all parties procedural fairness by furnishing them with draft orders for them to consider. On the resumption of the hearing I invited preliminary comments. I made it clear was not going to hold the parties to them. It would have been very clear to a fair minded lay observer that I had not even formed a provisional view about the application before me. I expressed no view about the matters before, let alone strong views.

[34] During the hearing I observed that,

“… If I had made orders different to those which were asked for by the NTEU without providing the parties with an opportunity to consider them, I would fall into jurisdictional error.” 24

[35] In deciding not to recuse myself I observed,

“… I have made no statement as to any conclusion based on the evidence. The provision of a draft order to parties is a standard procedure within the Commission. It is not represent a concluded view in any sense. It is a tentative step aimed at assisting the parties to focus their minds on the issues in dispute and/or for them with procedural fairness in the conduct of the matter.” 25

[36] I dismissed the recusal application.

Interim Order

[37] Section 589 of the Act provides that the Commission may make procedural and interim decisions, as follows:

“589 Procedural and interim decisions

(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2) The FWC may make an interim decision in relation to a matter before it.

(3) The FWC may make a decision under this section:

(a) on its own initiative; or

(b) on application.

(4) This section does not limit the FWC’s power to make decisions.”

[38] The principles relevant to the making of interim orders are well established. 26  In summary, the Commission must determine if there is a serious issue to be tried and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.27

[39] An applicant for interim orders does not need to demonstrate that it is more probable than not they will succeed but rather whether there is a sufficient likelihood of success to justify the preservation of the status quo pending trial. In relation to the balance of convenience, it is relevant to consider whether inconvenience or injury to the applicant from a refusal to issue an interim order outweighs the injury the respondent would suffer if such an order were granted. 28

Serious question to be tried

[40] The approach endorsed by the Commission in CEPU v Telstra 29 adopted the formula set out within Castlemaine Tooheys v South Australia to the effect that “there is a serious question to be tried or that the plaintiff has made a prima facie case, in the sense that if the evidence remains as it is there is a probability at the trial of the action the plaintiff will be held entitled to relief”.30

[41] In the present matter the Agreement confers jurisdiction on the Commission to resolve “industrial disputes which may arise about the application of, or matters arising under, the Agreement or the National Employment Standards.” 31, including “by conciliation, or where conciliation does not resolve the dispute by arbitration, in resolving the dispute the [Commission] can exercise any of its powers under the Fair Work Act”. The dispute in this case falls within that description. It is about whether the University has met its obligations under the clause 20 generally and clause 20.3.2 in particular. It is clearly an industrial dispute about a matter arising under the Agreement.

[42] Clause 20.3.2 of the Agreement provides that,

“Each School, through collegial consultative processes with its academic staff, will develop, implement, review and revise and Academic Workload Policy on a School basis. The Academic Workflow Policy will be considered by the Deputy Vice-Chancellor who will provide input. A School meeting will be called to consider the policy and it will be ratified by consensus. Where consensus cannot be reached, a majority decision, I vote of the applicable School staff, will determine the School Academic Workflow Policy. The School Academic Workload Policy must be consistent with the University’s Strategic Plan and academic mission of the School.”

[43] The chronology of events in this matter, which was not contested, is summarised below:

a) On 20 October 2014 the Agreement commenced operation.

b) Academic Workload Policies were developed by the then Schools, including the Schools of:

i. Education;

ii. Behavioural, Cognitive and Social Science;

iii. Humanities; and

iv. Arts.

(Attachment 2 Workloads) 32

c) At least since January 2017 there have been meetings within the Schools aimed at developing new Academic Workload Policies.

d) In Trimester 3 of 2017 (i.e. from November 2017 to February 2018) workload allocations were in accordance with Attachment 2.

e) On 20 November 2017 Professor Fitzsimmons was appointed the Dean of the Faculty of HASSE.

f) On 1 January 2018 the Faculty of HASSE commenced operations. The Faculty of HASSE comprises Schools of:

i. Education;

ii. Humanities;

iii. Arts;

iv. Social Sciences (disciplines of Linguistics, Sociology and Criminology, Geography and Planning part of the former School of Behavioural, Cognitive and Social Sciences).

Consequently, the new structure has two Schools:

A. School of Education; and

B. School of Humanities, Arts and Social Sciences (HASS)

g) By 13 February 2018 the University was in a position to put to a vote an Academic Workload Policy for each of the Schools of Education and HASS.

h) The Schools voted on their respective models during the week ending 16 February 2018. Neither vote was successful. The:

i. School of Education proposal was defeated 37 against: 10 in favour;

ii. School of HASS proposal was defeated 44 against: 25 in favour.

i) On 20 February 2018 Professor Fitzsimmons emailed all staff. He announced the results of the ballots and then wrote,

“… the Provost and Deputy Vice Chancellor, Professor Todd Walker, … has instructed me to work with the Heads of School as they continue with the consultative process for a new workload model with the two Schools.

In the meantime, Trimester 1 is looming, and we need to have something in place in terms of workload allocation.

The PDVC has approved the following approach…”

j) A further vote occurred in the weeks prior to the hearing of the application for interim orders. The votes in both Schools were unsuccessful.

[44] The evidence of the NTEU was to the effect that:

a) the School of Education Workload Policy (voted on in November 2014) has applied for many years.

b) Management of the University has not approached NTEU representatives with financial information that would justify a change to the Academic Workload policies.

c) Only after the 20 March 2018 email did the University make any statement about financial implications of not changing the Academic Workload policies.

d) Directions have been given to staff to increase their TSI allocation. Staff have not had a say in the direction.

e) Casual employment contracts have been revised by the University (after approval has been given to engage casuals). There has been a change in the formula applied to engaging casuals.

f) Decisions have been made without reference to staff and their workload allocations.

g) The workload model contained in the email of 20 February 2018 does not recognise or account for all the work that employees are required to do by the University.

h) Some staff have experienced physical symptoms of stress as a result of the changes. It has affected their well-being.

i) At least one staff member has been above her teaching allocation.

j) As a result of the changes there is insufficient time to perform online teaching and teaching related work. For example, one staff member reported being unable to complete accreditation documents, edit journal articles, perform team tasks, or assess post-graduate student applications.

[45] The evidence of the University was to the effect that:

a) in relation to the School of Education, its Academic Workload Policy had expired;

b) in relation to the School of HASS, it did not have an Academic Workload Policy (because it was a new School);

c) consequently, it was necessary to put in place some workload arrangements (not an Academic Workload Policy) as an interim measure of “work around”;

d) by sending the email he did on 20 February 2018 Professor Fitzsimmons was doing no more than put in place a “work around”;

e) the allocation of work has not resulted in any staff member having an unreasonable workload.

[46] At the substantive hearing of the matter it will be necessary to interpret the Agreement having regard to the principles in AMWU v Berri. 33

[47] What is immediately apparent from the Agreement is that it does not expressly deal with the situation where, as in the present case, the University restructures its Schools. The Agreement does not expressly deal with what is to occur if a completely new School is created until such time as the staff votes to approve an Academic Workload Policy. The Agreement does not expressly deal with what is to apply in the interim.

[48] However, it is to be noted that in the present matter:

a) the School of Education previously existed and continues to exist;

b) the School of HASS is a new School (although not completely new as it would be if it did not comprise constituent units that previously existed – as it does).

[49] Because the School of Education continues to exist and the School of HASS comprises Schools previously in existence, it seemed to me, on a provisional basis, that it was almost fictional to suggest that there are no existing Academic Workload Policies in place in the Faculty of HASSE.

[50] The problem with the University’s argument is that it necessarily follows that, in order to defeat an Academic Workload Model that the University does not like, all the University has to do is to restructure the Schools. Then the University can argue that no Academic Workload Policy applies until one is voted up by the staff in each of the new Schools. It seems unlikely that was the objective intention of the parties when the Agreement was negotiated.

[51] Having considered the terms of the Agreement and the evidence I was satisfied that if the evidence remains as it is, there is an arguable case with some reasonable prospect of success that the University has not complied with clause 20.3.2. This is because it seems likely that to allow the University’s construction to prevail would significantly undermine the operation of the Agreement and the objective intention of clause 20.3.2 which is based on a collegiate model and a majority vote.

[52] To the extent that the University submitted that the Academic Work Load Policies of each of the Schools were (now) inconsistent with the University’s Strategic Plan there may be some merit in the argument. However, at this preliminary stage of the proceedings, it was not sufficient to deprive the NTEU of being able to establish that it had an arguable case with some reasonable prospect of success.

Balance of convenience

[53] While I determined that there was an arguable case in relation to compliance with clause 20.3.2 (and Clause 20 generally) in the Agreement, the strength of that case was not immediately apparent. In determining the where the balance of convenience fell it was necessary to consider what the interim orders may look like.

[54] In its application for interim relief the NTEU sought the following interim orders:

“1. That until the dispute process before the Commission has been completed, or until further order of the Commission, the University of New England will cease and desist from applying the arbitrary School workload policies imposed by the Dean of HASSE on the Academic employees in the School of Education in the Faculty of HASSE on Tuesday 20 February 2018.

2. That until the dispute process before the Commission has been completed, or until further order of the commission, University of New England will cease and desist from applying the arbitrary School workload policies imposed by the imposed by the Dean of HASSE on the Academic employees in the School of HASS in the Faculty of HASSE on Tuesday 20 February 2018.

3. That until the dispute process before the Commission has been completed, or until further order of the Commission, the University of New England will apply the School Workload Policy approved by academic staff in the School of Education in the Faculty of HASSE in compliance with clause 20.3.2, and Clause 20 generally.

4. That the School Workload Policies previously approved by Academic staff in compliance with this Clause 20.3.2 and Clause 20, being the workload allocation policies which applied to Academic Staff in the Faculty of HASSE on Monday, 19 February 2018, will remain as the policies applied to Academic staff in the Faculty of HASSE until they are replaced by policies that are compliant with Clause 20.3.2, and Clause 20 generally.”

[55] Having read the application for interim orders and the materials which had been filed by the parties I was concerned about the pejorative language used in the NTEU’s draft interim orders and lack of specificity about what exactly (in terms of Workload Policies) would apply if orders were granted. For this reason I drafted alternate interim orders for the benefit of the parties to consider during the course of the hearing. They were as follows,

“…the Commission orders that until:

a) a majority of staff in each of the schools in the Faculty of Humanities, Arts, Social Sciences, Education (HASSE) vote to approve a new Academic Workload Policy in accordance with clause 20.3.2 of the UNE Academic and ELC Staff Collective Agreement 2014-2017 (Agreement), or

b) the dispute process before the Commission has been completed, or

c) until further order of the Commission,

the University of New England must:

[1]  cease and desist from applying the School workload policies announced by the Dean of HASSE on Tuesday 20 February 2018.

[2]  apply the School Workload Policy last approved by Academic staff in the:

a) School of Education,

b) School of Humanities,

c) School of Arts,

d) School of Behavioural, Cognitive and Social Sciences,

before each school became part of the Faculty of HASSE that being the workload allocation policies which applied to Academic staff in the Faculty of HASSE on Monday, 19 February 2018.

[3] This order comes into force today.”

[56] The evidence of the NTEU was to the effect that the change implemented by the email of 20 February 2018 was having an effect on the stress levels of staff and on their well-being.

[57] The evidence of the University was to the effect that:

a) the Attachment 2 models would be a significant disruption for the Faculty because the University is,

“now in week 4 of the Trimester, and operationally, it would be impossible to re-allocate workloads before the mid-Term break. The students are being taught by staff as per the work-around allocation, and any changes now may disrupt their studies. Given that academic workloads are annualised, it would be less disruptive to make any adjustments in Trimester 2. 34”

[58] The University also submitted that Attachment 2 Workloads contained generous discounts (although they remain within the range provided for in the Agreement) and that they were inconsistent with the University’s strategic plan insofar as it focusses on improved “Excellence in Research for Australia” (ERA) and, going to the question of balance of convenience, budgetary constraints. It was the evidence of Professor Fitzsimmons that:

a) the Attachment 2 Workloads allow for discounts for non-ERA research outputs;

b) because of increases in salary costs there has been “a $2.8m effective cut form the expected budget of $36m or the equivalent of 12 FTE”, further that,

“the Faculty budget has been set based on an average TSI load of 25 per staff member in order to meet EFTSL target of HASSE for 2018 of 4700. This equates to 188 FTE. The Faculty currently has 160 FTE. The difference is made up with casual monies (around 28 FTE or $1.9m casual budget) factored into the budget. The average EFTSL drops from 25 down to 21 (due to the effect of the EFTSL discounts in the old policies … This increases the FTE required to 223 (with a minimal increase from 28 FTE or $1.9m to 63 FTE or $4.3m usual budget, or $2.4m extra funding required in the casual budget). [N.B if the EFTSL average for the Faculty was 29, 160 FTE would more or less cover the teaching (i.e. 4700/160 – 29.3).” 35

c) if the Attachment 2 Workloads are ordered to apply, “further action will be necessary to balance the budget [including an] increasing reliance on casual employment …. [and], a review of courses and units to limit the spread of offerings and complexity of workloads” 36.

d) there are also inequities and administrative difficulties associated with continuing with the Attachment 2 Workloads. 37

[59] To the extent that the Attachment 2 Workloads provide for non-ERA research and the discounts allowed have a budgetary impact the NTEU submitted that it is within the power of the University to direct staff not to undertake that work with consequence that the budgetary consequences are within the power of the University to control. The budgetary issues therefore did not weigh against granting interim orders. However, I remain open to be persuaded at the final hearing about the budgetary issues and the capacity of the University to direct staff not to undertake work that has a negative budgetary consequence.

[60] However, the issue of disruption to teaching and students (if a change was made midway through Trimester 1) remained a live issue. For this reason I proposed a further amended draft of the interim orders that would commence operation after the conclusion of Trimester 1. The Orders I proposed were as follows,

“…the Commission orders that until:

a) a majority of staff in each of the schools in the Faculty of Humanities, Arts, Social Sciences, Education (HASSE) vote to approve a new Academic Workload Policy in accordance with clause 20.3.2 of the UNE Academic and ELC Staff Collective Agreement 2014-2017 (Agreement), or

b) the Agreement is replaced or cancelled, or

c) further order of the Commission,

the University of New England:

[1]  must not apply the School workload policies announced by the Dean of HASSE on Tuesday 20 February 2018 after the completion of Trimester 1, 2018, and

[2]  must apply, from the commencement of Trimester 2, 2018 (i.e. 9 July 2018), the School Workload Policy last approved by Academic staff in the:

a) School of Education,

b) School of Humanities,

c) School of Arts,

d) School of Behavioural, Cognitive and Social Sciences,

before each school became part of the Faculty of HASSE that being the workload allocation policies attached to the Witness Statement of Professor John Fitzsimmons (Exhibit “UNE2”, Attachment 2).

[3]  This order comes into force today.”

[61] The evidence of Professor Fitzsimmons was that it would less disruptive if interim orders commenced in Trimester 2. The NTEU opposed the delay in the commencement of the return to the Attachment 2 Workloads. However, it seemed to me that if the disruption to teaching and students that would otherwise occur mid-term could be removed then the balance of convenience moved in favour of the NTEU and its application.

[62] For the reasons set out above, I was satisfied that the balance of convenience weighed in favour of granting the further amended draft interim orders.

Conclusion

[63] The NTEU established an arguable case that non-compliance with clause 20.3.2 (and Clause more generally) under the Agreement. Further, the balance of convenience weighed in favour of granting interim orders.

[64] On 28 March 2018 the Commission, as presently constituted, issued Interim Orders. 38

COMMISSIONER

Appearances:

Ms J Wells, Industrial Officer, NTEU for the Applicant.

Ms C Pugsley, Workplace Relations Consultant, AHEIA for the Respondent.

Hearing details:

10:00am Wednesday, 28 March 2018.

Sydney with video link to Armidale and Melbourne.

Printed by authority of the Commonwealth Government Printer

<PR601680>

 1   PR601592.

 2 [2013] FCA 29.

 3   Transcript PN25 – 26.

 4   Transcript PN26.

 5   Transcript PN42.

 6   Transcript PN44 – 60.

 7   [2015] FWCFB 2679.

 8   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v UGL Resources Pty Limited (Project Aurora) [2012] FWA 2966 (Richards SDP, 10 April 2012) at para. 16.

 9   Transcript PN71.

 10   Transcript PN67.

 11   Transcript PN73 – 76.

 12   Transcript PN77.

 13   Ibid.

 14   Geoffrey Hunter v Anthony Costello Automotive[2017] FWCFB 5839, [27].

 15   Transcript PN107.

 16   Transcript PN110-127.

 17   [2015] FWC 5853.

 18   Ibid [12]-[19].

 19   Loretta Woolston v The Uniting Church in Australia Property Trust (Q) t/a Blue Care Bli Bli Aged Care Facility[2016] FWCFB 278, [10].

 20   Transcript PN128.

 21   [2014] FWCFB 1443.

 22 [1990] HCA 31; (1990) 170 CLR 70, at 100, per Gaudron and McHugh JJ.

 23   Geoffrey Hunter v Anthony Costello Automotive[2017] FWCFB 5839, [28].

 24   Transcript PN89.

 25   Transcript PN129.

 26   Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd [2016] FWC 2260, (2016) 258 IR 12, citing Quinn v Overland [2010] FCA 799.

 27    Bayly [2017] FWC 1886.

 28   Snow [2017] FWC 6910.

 29   PR933892.

 30 (1986) 161 CLR 148, 153, per Mason ACJ.

 31   Clause 58.

 32   Attachment 2 to the Witness Statement of Professor Fitzsimmons, Exhibit UNE-2.

 33   [2017] FWCFB 3005.

 34   Professor Fitzsimmons, (Exhibit UNE-2), para 17.

 35   Witness Statement of Professor Fitzsimmons, (Exhibit UNE-2), para 25.

 36   Witness Statement of Professor Fitzsimmons, (Exhibit UNE-2), para 26.

 37   Witness Statement of Professor Fitzsimmons, (Exhibit UNE-2), para 29.

 38   PR601592.