National Tertiary Education Industry Union v Curtin University of Technology
[2011] FWA 4044
•2 JULY 2011
[2011] FWA 4044 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Tertiary Education Industry Union
v
Curtin University of Technology
(C2011/3887)
COMMISSIONER CLOGHAN | PERTH, 2 JULY 2011 |
Application to deal with a dispute.
[1] This is an application by the National Tertiary Education Industry Union (NTEU) (“the Applicant”) for Fair Work Australia (FWA) to deal with a dispute.
[2] The application is made pursuant to s.739 of the Fair Work Act 2009 (“the FW Act”).
[3] The NTEU is in dispute with Curtin University of Technology (Curtin University) (“the Employer”).
[4] The dispute was referred to FWA pursuant to Clause 59 Dispute Resolution Procedure of the Curtin University of Technology Academic Staff Enterprise Agreement 2009-2012 (“the Agreement”):
“Fair Work Australia may resolve the dispute by the processes of conciliation or arbitration, or both. The parties to the dispute agree to be bound by and implement any order, decision or recommendation of Fair Work Australia, subject to a right of appeal to a Full Bench of Fair Work Australia.”
[5] The relevant dispute, as set out in the application by the NTEU, is as follows:
“The dispute is about the failure of the Respondent to properly apply Clause 22 and Schedule 5 of the Agreement in relation to the trial implementation of the Academic Workload Management System. Without prejudice to the generality of the foregoing, NTEU believes that there is a dispute about:
• The failure to properly apply the Protocols for allocation of adequate time for Consultation, Assessment and Feedback (CAF) duties as described in the Academic Workload Management System (AWMS);
• The failure to properly apply the Protocols for allocation of adequate time for Unit Coordination (units delivered at Curtin) duties as described in the Academic Workload Management System;”
[6] The dispute relates only to the allocation of workload in the Faculty of Humanities and the Faculty of Health Sciences.
CURTIN UNIVERSITY OF TECHNOLOGY ACADEMIC STAFF ENTERPRISE AGREEMENT
[7] Clause 22 and Schedule 5 of the Agreement to which the NTEU alleged that Curtin University has failed to properly apply are as follows:
“22. Hours of Work and Workload
22.1. The provisions of this Clause 22 do not apply to casual staff members or, subject to the provisions of Schedule 7 Employment in the Curtin English Language Centre (CELC), staff members employed within CELC.
22.2. Definitions
For the purpose of this Clause 22 the following definition(s) will apply:
Workload includes any of the duties relating to teaching and learning, research and creative production, scholarship, higher degree research student supervision, leadership, administration and service to the discipline or profession, the University and the broader community, as well as any matter that is incidental thereto.
Academic workload management system means the University wide system for allocating work for all academic staff, which incorporates a set of categories, parameters, rules and allocations relating to academic tasks using an annualised hours based methodology.
22.3. General Provisions
22.3.1. All continuing and fixed term staff members are appointed to academic positions in accordance with Clause 20, Classification Structure.
22.3.2. All continuing and fixed term staff members are entitled to participate in an appropriate mix of teaching, research, scholarship, administration, professional work and service as determined in accordance with this Clause 22, Hours of Work and Workload and the University's academic workload management system.
22.3.3. The Head of School or Area will ensure that total workload allocated to individual staff members is fair and transparent and will take all practicable steps to ensure that staff members:
a) do not work excessive or unreasonable hours; and
b) are not required to work in excess of any hours of work prescribed by this
Agreement; and
c) are able to raise legitimate issues relating to their workload allocation without being intimidated or victimised.
22.3.4. The University will ensure that Heads of School or Area and line managers are aware of and trained in their responsibilities in relation to managing and allocating workloads and that staff are advised of the relevant provisions of this Agreement.
22.3.5. Staff members will be consulted on their workload allocation.
22.3.6. The allocation of work will take account of assigned activities as well as self directed work.
22.3.7. Where a staff member is required to undertake additional work outside of their normal work requirements, they will be entitled to reimbursement of child/family care expenses, if any, for the period of the additional work.
22.3.8. Where the University intends to make changes to the academic calendar it will discuss the proposed changes with the IMCC and consult directly with staff.
22.4. Hours of Work
22.4.1. A staff member's average hours of work need not exceed 37.5 hours per week.
22.4.2. A full-time staff member's workload will be allocated within a maximum of 1725 hours per annum, however this maximum may vary subject to approved leave.
22.4.3. Within the maximum hours available per annum as prescribed in subclause 22.4.2:
a) a maximum of 65% of total individual work hours will be allocated to teaching and learning duties for a teaching/clinical scholar in accordance with Clause 22.6, Teaching/Clinical Scholars; or
b) a maximum of 50% of total individual work hours will be allocated to teaching and learning duties for all other staff members.
22.4.4. A part-time staff member's workload will be allocated on a proportionate basis.
22.4.5. A staff member, other than a teaching/clinical scholar, will not be required to teach more than 2 semester-equivalent study periods in a 12 month period.
22.4.6. A staff member, other than a teaching/clinical scholar, will not be required to engage in more than 24 weeks of teaching contact in a 12 month period.
22.4.7. A teaching/clinical scholar may be required to engage in more than 24 weeks of teaching contact in a 12 month period, provided that they will be entitled to a continuous period of 4 weeks annual leave within the same 12 month period.
22.4.8. No staff member will be required to work on weekends unless mutually agreed between the University and the staff member.
22.5. Academic Workload Management System
22.5.1. Subject to Schedule 5, Academic Workload Management System, the University will implement an academic workload management system during the life of this Agreement.
22.5.2. The academic workload management system will operate in accordance with the provisions of this Clause 22, Hours of Work and Workload for the life of this Agreement.
22.6. Teaching/Clinical Scholars
22.6.1. A staff member will be a teaching/clinical scholar only at their voluntary election.
22.6.2. A staff member will normally be a teaching/clinical scholar for a period of 2 years, unless a different period is agreed between the staff member and the Head of School or Area or line manager.
22.6.3. At the end of the period, a teaching/clinical scholar will have a mix of duties in accordance with subclauses 22.3.2 and 22.4.3(b), unless the staff member elects to remain a teaching/clinical scholar.
22.6.4. A staff member who has been a teaching/clinical scholar for 2 or more years will be given priority for research and creative production (RCP) transition.
22.6.5. The University will not limit the number of teaching/clinical scholars.
22.6.6. Teaching/clinical scholar duties will be allocated in accordance with Clause 22.7, Workload Planning and Allocation.
22.6.7. A staff member electing to be a teaching/clinical scholar will not be disadvantaged in relation to probation, promotion and performance review.
22.7. Workload Planning and Allocation
22.7.1. Workload allocation for a staff member will be determined by the Head of School or Area or line manager in consultation with the staff member in accordance with the provisions of this Clause 22, Hours of Work and Workload.
22.7.2. Workload allocation will take into consideration the staff member's level of appointment and total responsibilities.
22.7.3. Planning
The Head of School or Area or line manager, in consultation with the staff member, will, as soon as practicable, plan for the forthcoming year the anticipated:
a) allocation of teaching-related, research, professional and administrative duties; and
b) annual leave and other leave.
22.7.4. Allocation
As soon as practicable, the Head of School or Area or line manager, in consultation with the staff member, will refine and confirm a task allocation plan reflecting the planning prescribed in Clause 22.7.3, Planning, to account for the staff member's specific allocation of duties, hours and leave.
22.7.5. The Head of School or Area will try to avoid any substantial change to the anticipated allocation of duties determined in accordance with Clause 22.7.3, Planning and Clause 22.7.4, Allocation. Where any such change is unavoidable, the Head of School or Area will seek to mitigate detrimental effects on the staff member.
22.7.6. The Head of School or Area or staff member's line manager is responsible for providing the final workload allocation plan to the staff member and their line manager no later than 10 working days before the beginning of the teaching period.
22.8. Resourcing
22.8.1. The Vice-Chancellor will ensure that resources are allocated for the facilitation of this Clause 22, Hours of Work and Workload.
22.8.2. The University is committed to ensuring that where student numbers increase, there is not a detrimental effect on staff workload.
22.9. Attendance
Academic staff are entitled to regulate their own hours, provided that a staff member's Head of School or Area or line manager may require attendance as necessary to meet the staff member's teaching and learning, leadership and administrative duties.
22.10. Resolution of Individual Workload Issues
Where a staff member raises a workload issue it will be dealt with in accordance with Clause 59, Dispute Resolution Procedure.
22.11. Academic Workload Monitoring Committee (AWMC)
22.11.1. The terms of reference of the AWMC are to:
a) Develop a process to enable the periodic review of the academic workload management system; and
b) Consider and make recommendations on modifications to the University's academic workload management system and report to the Vice Chancellor.
22.11.2. The AWMC will convene as necessary and will comprise:
a) 2 management representatives nominated by the Vice-Chancellor; and
b) 2 union representatives nominated by the Union; and
c) an independent Chairperson, external to the University, as agreed between the Vice-Chancellor and the Union.
22.11.3. The University will provide executive support to the AWMC.
22.11.4. Members of the AWMC will be afforded reasonable release from normal duties to participate in AWMC meetings.
22.12. Modification of Academic Workload Management System
Any modification made to the academic workload management system will be in accordance with recommendation of the AWMC, provided that:
a) until 29 June 2012, any modifications to the academic workload management system to be implemented by the Vice-Chancellor will be agreed between the University and the Union; and
b) from 30 June 2012, the Vice-Chancellor will only implement modifications to the academic workload management system as recommended by the AWMC.”
“Schedule 5 Academic Workload Management System
1. General Application
1.1. The provisions of this Schedule 5 apply with respect to the University's academic workload management system.
1.2. The provisions of Clause 22, Hours of Work and Workload will apply throughout the life of this Agreement.
2. Trial Process
2.1. The University will trial the academic workload management system, in its form as at 1 June 2010, during calendar year 2010 and 2011 subject to any modifications that may be made in accordance with Clause 22.12, Modification of Academic Workload System.
2.2. The trial will operate during 2010 and 2011 to allow for monitoring, assessment, and modification to the academic workload management system, to facilitate its full trial implementation in 2011.
2.3. Following completion of the trial, the University and the Union agree to fully implement the academic workload management system.
2.4. For the full trial implementation in 2011 workload will be allocated in accordance with the University's academic workload management system and the provisions of Clause 22, Hours of Work and Workload.
2.5. Notwithstanding subclause 22.6.2 of Clause 22, Hours of Work and Workload, a staff member may elect to be a teaching/clinical scholar for a period of 1 year during the trial of the academic workload management system.
2.6. The Academic Workload Monitoring Committee (AWMC), established in accordance with Clause 22, Hours of Work and Workload, will oversee the monitoring and assessment of the academic workload management system during the trial and report to the Vice-Chancellor and the Union.
2.7. For the purposes of the trial, the terms of reference of the AWMC will be as follows:
a) to oversee the monitoring and assessment of the academic workload management system during the trial period;
b) to identify any required modifications to the academic workload management system to facilitate its full revised implementation in 2012; and
c) to report prior to 30 June 2011 on its findings and recommendations in relation to the full trial implementation of the academic workload management system, including:
i) whether in its application the academic workload management system is consistent with its principles; and
ii) details of any modifications as considered necessary to facilitate implementation of the academic workload management system.
2.8. The AWMC will be provided access to all data relating to the academic workload management system during the trial period to inform its review.
1.9. The AWMC will maintain the confidentiality of any data relating to individual staff members.
2.10. Subject to subclause 2.9 of this Schedule 5, staff will have access to the reports of the AWMC.
2.11. Any modifications to the academic workload management system during the trial and upon completion of the trial will be in accordance with Clause 22, Hours of Work and Workload.” (my emphasis)
TRIBUNAL PROCEEDINGS
[8] The application was the subject of a conference on 13 May 2011. At the conclusion of the conference, the parties agreed that the matter be referred to the
Academic Workload Monitoring Committee (AWMC).
[9] At the meeting of the AWMC, on 30 May 2011, the Committee was unable to resolve the dispute and the matter was referred back to the Tribunal. 1
[10] On 1 June 2011, the NTEU urged that the matter be listed for hearing. According to the NTEU it was believed that:
“there is now no prospect of a conciliated settlement of the issues remaining in dispute. We are also concerned that resolution of these issues occur in a timeframe which permits implementation of any outcomes prior to the commencement of second semester on 18 July 2011.” 2
[11] The NTEU and the Employer continued communication and dialogue in an endeavour to resolve the dispute.
[12] A further conference was held on 16 June 2011 in which the NTEU urged that the matter be heard and determined expeditiously.
[13] To assist the hearing, I requested the parties agree on a question(s) to be determined at arbitration on 21 June 2011. The parties were unable to agree on the question to be determined. As a consequence, the NTEU asserted that five (5) questions needed to be answered and Curtin University three (3) questions to be determined.
[14] In the absence of any agreement as to the question(s) to be determined, the Tribunal reverted to the application by the NTEU in which it asserts that Curtin University has failed to “properly apply the Protocols for allocation of adequate time for Consultation, Assessment and Feedback (CAF) duties and Unit Coordination (units delivered at Curtin University) as described in the Academic Workload Management System”.
[15] At the hearing, the NTEU was represented by Mr A Leszczynski, WA Branch Industrial Officer and Mr P Summers, National Industrial Officer. The following gave evidence for the NTEU:
- Dr Jan Sinclair-Jones, Senior Lecturer. Dr Sinclair-Jones has been employed at Curtin University since 1987 teaching in the Sociology programme. Dr Sinclair-Jones has been President of the NTEU Curtin University Branch since 2004 and lead negotiator for the past three (3) enterprise agreements.
- Mr Alistair Reid, Lecturer in the Department of Construction Management, who has been employed full-time at Curtin University since 1993.
- Dr Angela Fielding, Senior Lecturer and Head of Department of Social Work.
[16] Mr Curlewis of Counsel represented Curtin University and the following gave evidence on behalf of the Employer:
- Dr Lina Pelliccione, Associate Professor and Head of School of Education in the Faculty of Humanities. Dr Pelliccione has been with the University for 11 years.
- Professor Phillip Della, Acting Deputy Pro-Vice Chancellor. Professor Della has been at Curtin University since 2008 and prior to his current appointment was Head of School of Nursing and Midwifery in the Faculty of Health Sciences.
- Mr William Ryan who has been the Director, Human Resources since April 2006.
[17] At the conclusion of the hearing, I dismissed the Application and gave brief reasons as to why I dismissed the application. In doing so, I advised the parties that I reserved the right to provide the parties with fuller reasons for dismissing the application. These are my reasons for dismissing the application.
NTEU’s CASE
[18] The Applicant’s case is that when the following CAF protocols and allocation below are read in conjunction 3:
“...2 hours per student enrolment is the standard CAF allocation for an academic, and it is only Head of School that can reduce this, but only where the assessment and feedback requirements warrant less after consultation with the academic prior to the start of the year” 4 (my emphasis).
Allocation | Protocols |
In this case the allocation is based on the pedagogical, and feedback requirements, of the unit and is in the form of a unit budget that is driven by unit enrolments • A maximum of 2 hours per student unit enrolment • Examples: o A unit with 75 students enrolled will have a maximum consultation, assessment and feedback allocation of 150 hours o A unit with 340 students enrolled will have a maximum consultation, assessment and feedback allocation of 680 hours. | • Consultation, assessment and feedback responsibilities and the corresponding allocation may be split between a number of staff members up to the maximum allocation for the unit • The staff responsible for consultation assessment and feedback in the unit will be determined by relevant staff in a collegial manner. • The Head of School/Department will make the final determination. • The Head of School will apportion the allocation for assessment, consultation and feedback in a unit in proportion to the relative burden on the staff responsible • The Head of School may, if the assessment and feedback requirements in the unit warrant, allocate less than the allowable maximum allocation |
[19] According to the NTEU, the reason why consultation with the individual academic should occur is because:
“...the Head of School would rarely have the relevant knowledge of the unit to make that judgement themselves” 5.
[20] Plainly put, it was urged upon the Tribunal that each academic receive a mandatory two (2) hours CAF per enrolment and that the Head of School, who would rarely have subject knowledge, consult individually with each academic and make a “valid and proper” 6 judgement to reduce any amount less than two (2) hours.
[21] The Applicant’s submission was emphatic that only the Head of School can allocate less than two (2) hours. In doing so, the NTEU was also emphatic that that discretion occur only within the confines of consultation with the relevant academic, and that the Faculty Head or their nominee, could not set another amount 7.
[22] The NTEU stated in its submission that it was appropriate for the Tribunal to adopt its interpretation as it would be confirmed by its witnesses on the Curtin Workload Management Design Team (“the Design Team”) and participants in the negotiation for the Agreement.
[23] The Applicant referred to CAF allocations in Health Sciences and provided the following data:
“31. In Health Sciences, of the 470 units in 2011 that have at least 1 student in them, 332 units, or 70.6% of units have only 1 hour CAF per student enrolment allocated to them. This includes:
a. Nursing, where 100% of the 101 units have only 1 hour CAF per student unit enrolment allocated to them.
b. Pharmacy, where 27 of the 33 units, or 81.8% have only 1 hour CAF per student unit enrolment allocated.
c. Occupational Therapy and Social Work, where 27 of 36 units, or 75% have only 1 hour CAF per student unit enrolment allocated.
d. Psychology, where 59 of the 75 units, or 78.7%, have only 1 hour CAF per student unit enrolment allocated.
e. Public health, where 88 of the 131 units, or 67.1%, have only 1 hour CAF per student unit enrolment allocated.
32. By contrast only 24 of the 470 Units in Health Sciences, or 5%, have the maximum 2 hours CAF per student until enrolment allocated, with Psychology being the best with 9 of their 75 units (or 12%) having it. 35 of the 470 units (7%) have 1.5 hours CAF per student unit enrolment allocated, with Biomedical science being the best with 20 of it’s 54 unit (37%) receiving 1.5 hour. 11 of the 470 Units in Health Sciences (all in Biomedical sciences) or 2.3% have 1.25 hours of CAF allocated per student unit enrolment. An additional 11 units (or 2.3%, all in Physiotherapy) had another allocation between 1.1 and 1.6 hours CAF per student unit enrolment. Most disturbing of all is that 57 of the 470 units in Health Sciences, or 12.1%, had CAF allocations of less than 1 hour per student unit enrolment, with Physiotherapy being the worst, with 19 of their 40 units, or 47.5%, having less than 1 hour.” 8
[24] In Humanities, the following data was provided by the NTEU:
“37. Based on information provided by Curtin University, in Humanities, of the 556 units in 2011 that have at least 1 student in them, 267 units, or 48% of units have only 1.5 hour CAF per student enrolment allocated to them. This includes:
a. Social Sciences, where 57 of the 76 units, or 75%, have only 1.5 hour CAF per student unit enrolment allocated to them.
b. Media, Culture and Creative Arts, where 79 of the 165 units, or 47.9% have only 1.5 hour CAF per student unit enrolment allocated.
c. Education, where 74 of 123 units, or 60.2%, have only 1.5 hour CAF per student unit enrolment allocated.
d. Art and Design, where 42 of 90 units, or 46.6%, have only 1.5 hour CAF per student unit enrolment allocated.
38. By contrast only 62 of the 556 units in Humanities have the full 2 hours CAF per student unit enrolment, with Built environment being the best with 17.6% (18 of 102 units) and Media, Culture and Creative Arts being a close second best at 17% (28 of 165 units). However 86 of the 556 units in Humanities, or 15.5%, receive only 1 hour CAF per student unit enrolment with Built Environment being the worst with 55 of 102 units (53.9%), receiving 1 hour. 141 of the 556 Units however have no time allocated for CAF - 15.7% in Social Sciences, 32.7% in Media, Culture and Creative Arts, 30% in Art and Design and 13.7% in Built Environment.” 9
[25] Having provided the data, the NTEU asserted that, as the majority of allocations are less than two hours CAF per student enrolment, the allocated amount is inadequate “to perform the tasks that are required for the units. As a consequence, “academics are being forced to do additional work outside their allocated hours in order to ensure all CAF work is completed” 10.
[26] With respect to Unit Coordination, the following allocation and protocols are provided 11:
Allocation | Protocols |
In this case the maximum allocation is in the form of a unit budget made up of a base component that is independent of unit enrolment and a variable component driven by unit enrolment • 20 hours base per availability of the unit • Plus an additional allocation of hours calculated as 0.3 hours per unit enrolment • Examples: o Unit Coordination of a unit with 75 students enrolled with have a maximum allocation of 42.5 hours o Unit Coordination of a unit with 340 students enrolled will have a maximum allocation of 122 hours Where there is a requirement for conversion of materials to an on-line/blended format, time allocations will be made at the discretion of the Head of School/Department. | • The base and variable allocation components represent the maximum allocation for unit coordination, to be adjusted at the discretion of the Head of School for instance in the case where administrative support is provided to Unit Coordinators of very large units • In consultation with staff and Head of School is required to assign a Unit Coordinator for each unit • Unit coordination duties and the corresponding allocation may be split between a number of staff members, however: o A single member of staff must be designated the Unit Coordinator for each unit o The total allocation cannot exceed the amount that would apply if a single staff member takes on all Unit Coordination duties o Concurrent units where assessment and exams are concurrent and the same are to be treated as a single unit for the purposes of this allocation • Heads of School/Department will factor in team teaching implications on unit coordination allocations. |
[27] In contrast to CAF, the NTEU submit that there is more than one possible interpretation to Unit Coordination. The first possible construction is that the word “base”, connotes a minimum amount of 20 hours which may be increased as it is not limited by a specified ceiling. This is the NTEU’s preferred interpretation of the allocation 12.
[28] Alternatively, the NTEU submit that, as the second component is described in variable terms, the first component (“the base”) suggests it is not variable but fixed, and consequently, the base must be both the minimum and maximum amount - that is, 20 hours allocation per unit.
[29] In summary, the NTEU submit that upon either construction of the Unit Coordination allocation, there is a fixed minimum (or alternatively maximum) component (20 hours) to be allocated to academics who are also Unit Coordinators. Further, a variable component of 0.3 hours per student unit enrolment which gives a total amount. The NTEU argue that the variable amount can only be varied by the Head of School exercising his or her discretion where there is a “valid and proper reason for doing this, such as where administrative support is provided to Unit Coordinators of very large units” 13.
[30] The NTEU rely upon their interpretation of CAF and Unit Coordination allocation and protocols on its plain meaning, and witnesses who were part of the Design Team and participants in negotiations.
NTEU’S EVIDENCE
[31] Dr Sinclair-Jones gave evidence of her role as the lead NTEU negotiator for the Agreement and particularly the AWMS Document. Dr Sinclair-Jones set out the development of the dispute and in her evidence, documentary material from the School of Media, Culture and Creative Arts examining budget reductions which may include “reviewing AWMS allocations” 14; this material relates to events after the lodging of this application. In response to her inference regarding budgetary reductions being a feature of AWMS allocations, Dr Sinclair-Jones provided evidence of Curtin University’s profit for the past two years and asserts “there is no reason not to provide the Faculties with adequate budget to operate [provisions of CAF and Unit Coordination allocations] in accordance with the Agreement”15.
[32] Of significant importance, Dr Sinclair-Jones provided an email to her, from Professor Glenda Scully, Head of School of Accounting on how CAF was established in that School 16. I have reproduced the relevant parts of the email below:
“I have included information below about how CAF was determined in the School of Accounting...Initially, we requested all unit controllers (should be coordinators) provide us with a copy of the assessment for each of the units and an estimate of the time taken to mark the work per student. The information provided by staff was all pretty reasonable so the time submitted was used to determine the assessment component of CAF in each instance. As such CAF varies in the school across units.
We then made an initial assessment for the consultation component of CAF based on our pilot info. After a few initial AWMS meetings with staff and further feedback, CAF allocated for consultation was slightly increased. Based on our initial meetings to discuss workload with staff there were about 5 or 6 iterations of the AWMS parameters used in the school. Sian and I met with all staff in the school...some of the meetings were very brief, some went for over an hour and in some instances staff requested a number of variations on the initial workload”. (my emphasis)
[33] Mr Alistair Reid gave evidence of his involvement in the Design Team but conceded that his involvement ceased before the AWMS Document and Agreement were concluded.
[34] Dr Angela Fielding’s evidence did not go to the interpretation of the allocation and protocols but to the manner in which her “preliminary understanding” 17 of the allocation of CAF in the School of Occupational Therapy and Social Work was reduced from one-and-a-half hours to one hour. Dr Fielding’s “understanding”18 was that this was established at a Faculty level. Dr Fielding, in examination in chief, gave evidence that she and the Head of School had met with all staff and “we’ve worked through sort of a problem-solving way how to allocate their work, but when it came to CAF, the answer was 1. There was no shifting on the 1 except as I say, for those common first year units”19.
[35] While Dr Fielding has argued that one (1) hour is insufficient 20 for CAF in certain units, she agreed that considerable consultation with staff had occurred21.
CURTIN UNIVERSITY’S CASE
[36] Curtin University agrees with the NTEU that this dispute reduces itself to concerns regarding the interpretation and methodology applied by the University to CAF and Unit Coordination of the AWMS Document 22 in the two Faculties concerned.
[37] Curtin University expressed the view that Clause 22 and Schedule 5 of the Agreement and the AWMS Document should be read, and interpreted, according to their express text.
[38] For the University, a maximum allocation of two (2) hours of CAF for each relevant staff means exactly “what it is” a maximum - two (2) hours 23. As a consequence, the allocation must reasonably mean somewhere between zero (0) and two (2) hours for each student enrolment to each relevant staff member. To say, as the NTEU have submitted, that the two (2) hours is both a minimum and maximum allocation, is contrary to the express words and further there would be no necessity for consultation as it is fixed.
[39] With regard to Unit Coordination, the protocol states, “the base and variable allocation components represent the maximum allocation” and consequently, each separately is subject to variation. Similar to CAF, the University submits that if the NTEU’S interpretation is correct, there would be no need for consultation regarding the base allocation.
[40] Curtin University submit, and it is not disputed by the NTEU, that allocation of hours for CAF and Unit Coordination is at the discretion of the Head of School.
CURTIN UNIVERSITY’S EVIDENCE
[41] Dr Pelliccione gave evidence that, as early as April 2010, all the Heads of School “decided to work together to consistently implement the trial of AWMS. We decided to adopt this approach in the interests of fairness and transparency across the Faculty” 24. The School of Education was one of five (5) pilot schools across the University in 2010 prior to trial implementation in 2011.
[42] Dr Pelliccione gave evidence of her understanding of the units in her School, the collegiate approach to the allocation of CAF, and examples of moderation following feedback.
[43] With regard to allocation for Unit Coordination, Dr Pelliccione acknowledged that units could not be treated similarly and a sliding scale was adopted.
[44] Dr Pelliccione rejected any notion that collegiately was an abrogation of discretion by individual Heads of School 25. Collegiately was the vehicle to provide consistency, transparency, equity and affordability26 and, as part of that transparency, the Pro-Vice-Chancellor was included in Faculty communications.
[45] Dr Pelliccione gave evidence regarding consultation at school and individual level. The witness emphasised that 2011 is a trial year before full implementation and the importance of feedback from staff 27.
[46] Dr Pelliccione emphasised that allocation for CAF was not based on financial considerations 28.
[47] In conclusion to her cross examination, Dr Pelliccione was clear that she was working within the “guidelines” or protocols for the allocation of CAF and Unit Coordination.
[48] Professor Della gave evidence that, in anticipation of the trial of the AWMS in 2011, the Faculty Executive Management (FEM) group met in October 2010. FEM comprises of the Heads of School, various Deans of the Faculty, the Faculty Business Manager, Deputy Pro-Vice Chancellor and Pro-Vice Chancellor 29.
[49] FEM developed initial CAF allocations which was produced as part of Professor Della’s evidence.
[50] FEM determined that it would work collegiately on the implementation of AWMS 30.
[51] Professor Della gave evidence that following the initial allocation, as Acting Deputy Pro-Vice Chancellor, he contacted the Faculty Heads of School and asked them to identify any increases which were warranted beyond the initial allocation. Professor Della, following consultation with the Vice Chancellor advised the Head of School to increase the allocations which had been sought 31.
[52] In cross examination, Professor Della was clear that the purpose of FEM on implementation of AWMS was to ensure “transparency and fairness and justice” 32. While opinions were expressed by the various participants, the “starting point” or initial allocation was premised on experience from the “pilot”33 in the Faculty, previous workload management system experience34 and consultation by the Heads of School with Heads of Department who had meetings with their staff35. Finally, Professor Della gave evidence that the initial allocation was based upon the previous experience with existing workloads36.
[53] Mr Ryan gave evidence of a review by the University which found, in 2008, that 20 different workload allocation models existed 37. Further, that such a decentralised system was “not working”38.
[54] Following considerable consultation and negotiation, the NTEU and the University “signed off” on the AWMS Document to be trialled across the University 39.
[55] The University established an “AWMS-IT information system to record and report on allocations, conducting training courses for managers and staff in the new system” 40.
[56] Mr Ryan has been with the AWMS Document since its inception and co-authored the AWMS Guidelines which were created in 2010 and later reviewed in March 2011. The Guidelines are intended to set out, in a practical way, the principles of AWMS, provide direction to Heads of School and academic staff for workload allocation, and outline responsibilities and accountable in relation to its implementation 41.
[57] The NTEU, through Dr Sinclair-Jones, was provided with a copy of the Guidelines to which no feedback from the NTEU was received 42. Mr Ryan acknowledged that following the trial, it is likely that a review of the Guidelines will be needed43.
[58] Mr Ryan gave evidence that:
“A key feature of the AWMS is the establishment of discretionary settings in the categories and parameters of the AWMS. The reason for this, as established in the design phase is of the AWMS way to ensure sufficient flexibility in the AWMS in order to maintain relevance and responsiveness across the many disciples taught and researched in the University. The Design Team identified that, as the discipline head, the head of School was best placed to make appropriate decisions on workload allocations” 44.
[59] Mr Ryan, in his oral evidence, emphasised the discretion given to Heads of School and that the AWMS-IT information system being constructed to accommodate the full range of allocations within the parameters set in the AWMS Document 45.
[60] Mr Ryan provided oral evidence in relation to the NTEU’s contention that staff in the two faculties are experiencing extreme stress in relation to workload. His evidence was that in terms of sick leave, there has been a drop of 1,300 hours for academic staff in the Humanities Faculty and an increase of 300 hours in the Health Sciences Faculty for comparable periods in 2010 and 2011 46.
[61] Mr Ryan also gave evidence that, if the Head of School is required to consult with every staff member on all of the 16 discretionary allocations in the AWMS, the system would be impracticable to deliver and collapse 47.
[62] Mr Ryan conceded that the AWMS Guidelines were created for the University’s purposes, and were not negotiated with the NTEU. However, he rejected the contention that “they are totally irrelevant to this dispute” 48.
CONSIDERATION
[63] The NTEU case, as I stated in paragraph [30] is based upon, and outlined in the submission on the need for the Tribunal to be, “mindful of the intention of the parties when interpreting the meaning of the agreement and the AWMS Document” 49. At paragraph 11 of the NTEU’s submission, it goes so far to state that “great weight must be given to the evidence from these people as to how these documents are meant to be interpreted”. Further, in this respect, the NTEU referred to a decision of the High Court in which two members either adopted and gave substance to the judgement of Madgwick J in Kucks v CSR (1996) 66 IR 182 of which a part is reproduced below.
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.” 50
[64] The specific evidence of Dr Sinclair-Jones in relation to CAF is as follows:
“...Before the discussion occurs it has to be assumed that the maximum of two hours would be what would be allocated, unless the requirements of the unit warrant a reduction.” 51 (my emphasis)
[65] With respect to any reduction, Dr Sinclair-Jones’ evidence is:
“...and my understanding of that dot point [the last dot point in Protocols] is that the only way the head of school can get there is if the feedback and assessment requirements of the unit warrant it, so there is only one way the head of school can get there on my understanding.” 52
[66] Similarly, Dr Sinclair-Jones gave oral evidence as to the meaning of the protocols and allocation of CAF as follows:
“All right, we'll leave the English for later debate on that. Having said that, can you explain to me within the English of that document why, if two hours is, as you say, the starting point, it's necessary to have the word "maximum" in the text at all?---Because for the reason I have just explained to you, in some extraordinary and very rare circumstances, there would be assessment and feedback requirements in the unit that have been developed which would actually require less. Initially, through the negotiation process, we were of the view that it should be two hours absolutely but the university, in putting forward an argument about such rare and extraordinary examples, we agreed to the maximum and the possibility for reduction with the wording "where it is warranted".” 53 (my emphasis)
“It doesn't actually say that, does it? It doesn't say "a maximum in the very rare and exceptional circumstance", does it? It doesn't say that, does it?---We were trying, in developing these protocols, to be economical with our wording and to be as precise as we could be with the economics of the wording. It wasn't seen to be necessary to add that kind of a qualification. It was understood.” 54 (my emphasis)
“The university says, "No, we look to a realistic position to start from below the two and then work backwards or forwards to a maximum of two." Now, why do you say that interpretation is inconsistent with the English of the document? ---Because the wording is "may, if the assessment and feedback requirements of the unit warrant it, then they may allocate less than". The only way the head of school can establish that is by discussion with the unit coordinator.” 55 (my emphasis)
“Why do you say the unit coordinator? There is nothing in this documentation that it is discussion with the unit coordinator; there is nothing that dictates that? ---Because in the AWMS actual system and in all of the discussions around this, it was understood that the university systems, and have for a very long time, allocated units to individual staff members...and heads of school cannot possibly be absolutely familiar with the assessment and feedback requirements of each of the units. They would need to have a discussion with the unit coordinator in order to understand what time is required.” 56 (my emphasis)
“You've said that's your perception, but can you tell me anywhere in relation to page 5 where it talks about CAF, that it requires the head of school to consult the unit coordinator?---It's implicit in the last dot point.” 57 (my emphasis)
“The staff member, we're dealing with that person in that capacity, is referred to - and I don't have to go through the numerous provisions - through clause 22 of the EBA. It refers to "consulting with a staff member" or "the staff member". It doesn't say consulting with the unit coordinator, does it?---No, because in each case you would consult with the staff member about their duties. If the staff member is doing unit coordination, the duties involved in that unit coordination would be discussed, including the CAF, and then it would also be the case that if a staff member was not a unit coordinator, I would assume the head of school would have had a discussion with unit coordinators and then discuss with the staff members the CAF that they had established through their discussions with unit coordinators to see if that was adequate.” 58 (my emphasis)
[67] In considering the NTEU’s interpretation, it is noticeable that its interpretation is linked to the context of its effect, and this is demonstrated by Dr Sinclair-Jones, when she gave evidence:
“Yes, 600 people [in the two Faculties], are you saying the university should not run some benchmark to start the allocation process? You say, "No, you start at 2 and work backwards." We say, "No, we start in the middle and then work upwards or downwards accordingly." If it's done fairly, according to the English of the document, can you see any difference?---Yes, I can.” 59
“Where is the difference if, in each instance, the assessment and feedback requirements warrant it? If it is deemed on that basis to do it, where is the different outcome?---Because the discussion is not about a staff member having to justify why they need more than an arbitrary limit, which the university or the head of school or whoever has said it might set, but about the discussion between the head of school and the staff member about what particular aspects of that unit would mean that that assessment and feedback wouldn't require the two hours. There is a very different process.” 60 (my emphasis)
“Well, what is to say, in the English of the protocols on page 5, that the head of school may not make an initial assessment of the assessment and feedback requirements as a starting point and then consult? There is no determination in terms of how the consultation should take place, is there?---If that were to happen - if the head of school had formed an opinion because of some prior knowledge of the unit, I'm not saying that they wouldn't have an opinion about what that was, if they have that opinion and then have the discussion with the staff member, they may still maintain that opinion but that is not the same as saying that they will say to the staff member, "This is what I'm starting with. You convince me that you need more.” 61 (my emphasis)
“You're complaining about how they consult, but this is not co-determination, is it? It is, ultimately, in the ultimate discretion, fairly given by the head of school, isn't it?---A head of school does not and cannot know about the requirements of each of the units for are, for the technicalities of it, located within their school. They can't do that. It's impossible unless - - -” 62
“Mr Ryan and each other person and two heads of school will in fact give evidence today. They will dispute that they do not have the capacity in their senior level and vast experience to know what goes on within their schools. To suggest that they are incompetent is not going to be accepted. What do you say to that?---I'm not suggesting that anybody is incompetent, Mr Curlewis. I'm simply suggesting that it is impossible for a head of school to have the breadth of understanding...The head of school has many other duties. They are not appointed to micromanage small parts of each of their individual staff's duties. It's not incompetence.” 63
“All right, just tell me this: why, if you say the head of school is not the ultimate determinant of this, on page 5 under the Protocols it mentions the head of school twice - three times, in fact? Should it say "unit coordinator"?---No, because the head of school has the ultimate responsibility for the allocation...The head of school has the responsibility for that allocation, but the protocol establishes what the constraints around that are, which is that they may, if the requirements warrant it.” 64 (my emphasis)
“It's replicated. This "maximum" is there and you're saying that essentially by default, except in extraordinary circumstances, a maximum should be applied? ---If the word "maximum" wasn't there, Mr Curlewis, everybody would be entitled to two hours regardless of whether the unit required less time, so that was the provision for it.” 65 (my emphasis)
[68] In the quest for meaning in relation to CAF, it is the immediate evidence above by Dr Sinclair-Jones that illustrates, in my view, why the word “maximum” was included in the AWMS Document. The word “maximum” illustrates that the starting point is not two (2) hours but a point between zero and two (2) hours. If there was a common intention for the allocation to be a mandatory two (2) hours, or a “minimum” and “maximum”, it would have been expressed differently. The ordinary and plain meaning of the words, in my view, leads to the conclusion that the commencing allocation is up to a maximum of two (2) hours. It would be a mistake to give the words ambiguity by interpreting “maximum” means “minimum” and “maximum”. It would be erroneous, in my view, to import words which are not contained in the statement. Finally, in my view, the words used in the AWMS Document are consistent with the design of Clause 22: Hours of Work and Workload, in which the determination and allocation is within the authority and responsibility of the Head of School. Finally, I refer to the fact that the AWMS Document contains a “Category and Allocation Summary” which provides an overview of all the categories; with respect to CAF, it states a “Max of 2 hrs per unit enrolment [HOS]” 66.
[69] The Head of School, having made an allocation, the AWMS Document allows for that allocation to be changed if the assessment and feedback for a particular unit warrants a change to what is “allowable” for that particular unit. The protocol does nothing more than reduce to writing, the discretion to Heads of School given in Clause 22 of the Agreement” 67.
[70] I now turn to the allocation of Unit Coordination.
[71] The AWMS Document at page 25 provides a Category and Allocation Summary. With respect to Unit Coordination, it states:
“Max of 20 hrs plus 0.3 hrs per unit enrolment [HOS]”.
[72] The Summary reflects the introductory words of the Allocation which is:
“In this case the maximum allocation is in the form...of a base component that is independent of unit enrolment and a variable component driven by unit enrolment.” (my emphasis)
[73] The protocol states:
“The base and variable allocation components represent the maximum allocation for unit coordination to be adjusted at the discretion of the Head of School for instance in the case...”. (my emphasis)
[74] In its outline of submission, the NTEU sets out under this issue at the allocation is:
“• 20 hours base availability of the unit
• plus an additional allocation of hours calculated as 0.3 hours per unit enrolment” 68.
[75] However, the introductory words to this allocation are set out in paragraph [72] which again refer to a maximum of a combined base and variable.
[76] The NTEU’s preferred construction is that the “base” allocation is a minimum which may be increased upwards and not limited by any ceiling. Alternatively, the NTEU submit that the word “base” denotes a “minimum” and a “maximum” which cannot be varied and consequently the allocation should always be 20 hours per unit. Having submitted that the “base” is fixed, the NTEU could not, and did not, submit that the variable component was fixed. However, having separated the components for the purpose of submitting that one component was fixed, and another variable, agreed that the maximum allocated hours of both components collectively could be reduced if the Head of School considered there was a “valid and proper reason” for doing so 69 in consultation with staff70.
[77] The submission by the NTEU regarding the interpretation, it contended, was supported by its witnesses.
[78] Dr Sinclair-Jones agreed that the Summary described the maximum of Unit Coordination in the collective and does not refer to “base”. Simply put, the allocation amount was described in the aggregate 71.
[79] In relation to the specific allocation and protocols concerning Unit Coordination, Dr Sinclair-Jones’ oral evidence was as follows:
“No, what it says is, "The base and the variable allocation represent the maximum allocation." It puts them collectively, doesn't it? It doesn't say the base represents the maximum allocation or the variable allocation represents the maximum allocation. It puts them together, doesn't it? It's a collective maximum allocation for that exercise?---Yes.” 72
“So you can vary both of them?---No.” 73
“Why not?---You can only vary the base and variable allocation. You have the base, you take that, you work out the variable allocation and then in some circumstances you might reduce that total.” 74
“That's the maximum, yes?---20 hours plus the 0.3 is what the maximum is referring to.” 75
“Then how do you correlate - again going backwards - what the protocol says, that the base, not just "the base may be adjusted" or "adjust the variable", why is the word "and" there, "The base and the variable allocation may be adjusted"?---The word "and" means that it is a total of base and variable allocation.” 76
“That's correct. It means the two of them together can be adjusted at the discretion of the head of school?---But the base - it cannot be adjusted individually. The base cannot be adjusted and the variable cannot be adjusted. You add the base and the variable and you make an allocation if there is a case, such as where administrative support is provided.” 77
[80] The Unit Coordination allocation in the AWMS Document cannot be read as if it is unrelated to the rest of the document. The introduction under the title of “Allocation” regarding the exact hourly amount to be allocated makes it clear that the maximum hourly allocation is made up of both components. The word “and” in the introduction is used conjunctively and joins the “base” and “variable” components together.
[81] Likewise, the “base” and “variable” components are joined together in the protocols and represent collectively the maximum amount which can be adjusted at the discretion of the Head of School.
[82] I am not persuaded by the submission of the NTEU, nor the oral evidence of Dr Sinclair-Jones, that the words used either side of the word “and” in both the allocation and protocols, are sufficiently different to render the meaning ambiguous or uncertain. Consequently, I am satisfied that it would be wrong to apply a disjunctive construction to the base and variable components and give the allocation and protocol a characteristic other than belonging together, which can be varied at the discretion of the Head of School.
[83] In view of the fact that Mr Leszczynski for the NTEU indicated that its interpretation of the AWMS Document would be supported by its witnesses, it is also reasonable to consider the evidence of Mr Reid. In this regard, it is necessary to state that his involvement in the Design Team ceased in July 2010 78 and he was not involved in the final drafting or wording of the AWMS Document79. Mr Reid conceded that after his involvement, the document may have developed differently to the, “in a way that the design team had not anticipated”80.
[84] The NTEU’s final witness, Dr Angela Fielding, was not involved in the Design Team and her evidence did not go to the interpretation of the AWMS Document.
[85] Turning to Clause 22 of the Curtin University of Technology Academic Staff Enterprise Agreement 2009-2012 provides for terms relating to Hours of Work and Workload. The general provisions at subclause 22.3.3 provide:
“The Head of School will ensure that total workload allocated to individual staff members is fair and transparent...” (my emphasis).
[86] At subclause 22.3.4, it states that:
“The University will ensure that Heads of School or Area and line managers are aware of and trained in their responsibilities in relation to managing and allocating workloads...”
[87] Subclause 22.3.5 of Clause 22 of the Agreement states:
“Staff members will be consulted on their workload allocation.”
[88] Subclause 22.7 of Clause 22 of the Agreement sets out that:
“Workload allocation for a staff member will be determined by the Head of School or Area or line manager in consultation with the staff member in accordance with the provisions of this Clause 22, Hours of Work and Workload.” (my emphasis)
“Workload allocation will take into consideration the staff member’s level of appointment and total responsibilities.”
[89] In subclause 22.7.4 Allocation, it is the Head of School...in consultation with the staff member, who will refine and confirm a task allocation...to account for the staff member’s specific allocation of duties, hours and leave.
[90] Finally, it is the Head of School who is responsible for providing the final workload allocation plan to the staff member ten (10) working days before the beginning of the teaching period.
[91] In my view, it can be clearly demonstrated that for academic staff, three principles emerge in Clause 22 of the Agreement and they are the authority, responsibility and accountability of the Head of School in planning, determining and allocation of an individual academic’s workload. Secondly, the role consultation plays with the individual staff member’s workload. Finally, that workload takes into account the staff member’s level of appointment and total responsibilities.
[92] It is notable that should an individual staff member “raise a workload issue” (which seems very broad) the matter is dealt with through the Dispute Resolution Procedure.
[93] In summary, in my view, the determination and allocation of hours to academics by the Head of School is a multifaceted discretionary judgement which is based on their position, experience and knowledge and takes into account, among other things, subject matters, learning transference and the particular undergraduate year.
[94] I now turn to the issue of consultation.
[95] Subclause 22.3.5 of the Agreement states plainly the staff members will be consulted on their workload allocation. The subclause does not set out the manner or form in which the consultation should occur. Notwithstanding this absence, subclause 22.7.1 states that workload allocation “will be determined by the Head of School...in consultation with the staff member in accordance with the provisions of Clause 22 of the Agreement”. Similar provisions are provided in relation to subclauses 22.7.3 in relation to planning. The most that can be said about consultation in Clause 22 of the Agreement, is that it should occur.
[96] Turning to the AWMS Document, the protocol essentially in dispute between the parties was as follows:
“The Head of School may, if the assessment and feedback requirements in the unit warrant, allocate less than the allowable maximum allocation.”
[97] While the NTEU conceded, quite properly, that the ultimate authority to allocate less hours lays with the Head of School, that action [to reduce the allocation] could only be exercised properly and validly, if the Head of School consults with the individual academic or as Dr Sinclair-Jones states:
“The only way the head of school can establish that [a reduction in allocation is warranted] is by discussion with the unit coordination.” 81
[98] When Dr Sinclair-Jones is asked where that provision is provided for in the AWMS Document, she responded that it was “understood” that Heads of School cannot be familiar with assessment and feedback of hundreds of units” 82 and that it is implicit in the protocol.
[99] In my view, the passage is not written carelessly but, similarly to Clause 22 of the Agreement, in a way which gives all Heads of School the flexibility to consult and inform themselves in whatever way that enables them to make a decision.
[100] In summary, I consider it inappropriate to import terms into the protocols, specificity in the way the NTEU asserts. The protocol gives efficacy to the absolute discretion of the Head of School and should not be disturbed.
[101] With respect to consultation, the NTEU argue that the Head of School can only reduce the maximum allocation of hours, “where there is a valid and proper reason or doing so and only after they have consulted with the academic on this 83.
[102] This submission is premised on the general provision contained in Clause 22 of the Agreement, that academic staff will be consulted on their workload allocation.
[103] The position put by the NTEU is to say that, for the Head of School to exercise their discretion to vary any allocation validly and properly, it is a condition precedent that it be done in consultation with the individual academic. The rationale for this approach lies in the fact that Clause 22 of the Agreement provides a general provision that staff must be consulted in relation to their workload. I do not accept that such a general provision, especially one which is not given any form, should become a particular compulsory obligation in the AWMS Document. I say this because, in the same clause of the Agreement, the Head of School is given the particular responsibility for the final allocation of workload and specific discretion without the mention of consultation in the protocol.
[104] The Agreement provides that where a member of the academic staff “raises a workload issue” they can have the matter dealt with in accordance with Clause 59 Dispute Resolution Procedure. None of the three witnesses had done so. Consequently, the Tribunal is not dealing with an actual workload issue but with an application to interpret words within various documents in the context of academic workload without any particularised information. Notwithstanding this lack of particularity, the NTEU and its witnesses made a series of generalised statements such as being “forced to do additional work outside their allocated hours in order to ensure all the CAF work is completed” 84, having “inadequate time to perform the tasks that are required for units”85, being “forced to work these hours in their own time without payment”86 and that the majority of staff, to whom Dr Sinclair-Jones has spoken to in her capacity as President of the NTEU Curtin Branch, “are experiencing extreme stress in relation to excessive workloads created by limitations to CAF and Unit Coordination”87.
[105] Although this last matter was partly addressed by Mr Ryan in his evidence, there was no NTEU evidence upon which these generalised statements could properly have been tested.
[106] Three remaining issues I consider should be addressed briefly. Firstly, I am not satisfied that the University’s approach to its interpretation to allocation of hours and protocols surrounding those allocated hours is based upon financial reasons or constraints. Secondly, I find that, on the evidence presented, particularly by Dr Pelliccione and Professor Della, that Heads of Schools are exercising ultimate authority and discretion for the allocation of hours for CAF and Unit Coordination. Finally, the evidence regarding consultation with academic staff varies in its implementation. It would assist, in my view, implementation of AWMS if the University reviewed the different approaches adopted and demonstrated in this hearing with the objective of greater consistency and transparency.
[107] In conclusion and consistent with the decision referred to by the NTEU in paragraph [63], I have not “strained” for meaning in the AWMS Document. I am satisfied that Curtin University is properly applying the protocols and allocation for CAF and Unit Coordination. These are my fuller reasons for the decision on 21 June 2011 to dismiss the application in transcript.
COMMISSIONER
Appearances:
Mr Leszczynski with Mr Summers, for the Applicant.
Mr Curlewis, for the Respondent
Hearing details:
2011:
Perth:
21 June .
1 Draft Minutes of AWMC-30 May 2011.
2 Correspondence to Tribunal from Mr Leszczynski 1 June 2011.
3 Exhibit R1
4 NTEU Outline of Submissions (para 24)
5 NTEU Outline of Submissions (para 27)
6 Ibid (paras 20 and 22)
7 Ibid (para 23)
8 NTEU Outline of Submissions
9 Ibid
10 Ibid (para 40)
11 Exhibit R1
12 NTEU Outline of Submissions (para 47)
13 NTEU Outline of Submissions (Para 52)
14 Exhibit A1 (Attachment Y)
15 Exhibit A1 (para 40)
16 Exhibit A1 (Attachment BK)
17 PN 269
18 PN 271
19 PN 272
20 PN 276
21 PN 291, 292 and 294
22 Curtin University Outline of Submissions (para 3)
23 Ibid (para 9)
24 Exhibit R2 (para 4)
25 PN 510
26 PN 512
27 PN 559
28 PN 564
29 Exhibit R3 (para 5)
30 Exhibit R3 (para 7)
31 Exhibit R3 (para 22)
32 PN 621
33 PN 630
34 PN 630
35 PN 631
36 PN 646
37 Exhibit R1 (para 4)
38 Exhibit R1 (para 6)
39 Exhibit R1 (para 11)
40 Exhibit R1 (para 12)
41 Exhibit R1 (para 18)
42 Exhibit R1 (para 19)
43 Ibid
44 Exhibit R1 (para 25)
45 PN 368
46 PN 379
47 PN 383
48 PN 418
49 NTEU Submission (para 10)
50 Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10 at paras [96] and [129]
51 PN 60
52 PN 70
53 PN 72
54 PN 73
55 PN 77
56 PN 78
57 PN 79
58 PN 82
59 PN 95
60 PN 96
61 PN 98
62 PN 99
63 PN 100
64 PN 101
65 PN 112
66 Page 25
67 Clause 23.3.3
68 NTEU Outline of Submissions (para 43)
69 NTEU outline of submissions (para 55)
70 Ibid (para 54)
71 PN 120
72 PN 123
73 PN 124
74 PN 125
75 PN 127
76 PN 128
77 PN 129
78 PN 327
79 PN 330
80 PN 329
81 PN 77
82 PN 78
83 NTEU Submission (para 55)
84 Ibid (para 35)
85 Ibid (para 40)
86 Ibid (para 41)
87 Dr Sinclair-Jones (para 59)
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