National Tertiary Education Industry Union v Curtin University of Technology
[2016] FWC 184
•14 JANUARY 2016
| [2016] FWC 184 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
Curtin University of Technology
(C2015/719)
National Tertiary Education Industry Union
v
Curtin University of Technology
(C2015/2666)
Chris Geoghegan
v
Curtin University of Technology
(C2015/2718)
COMMISSIONER WILLIAMS | PERTH, 14 JANUARY 2016 |
s.739 - dispute resolution.
[1] This decision concerns three applications made under clause 68−Dispute Resolution Procedure of the Curtin University Academic, Professional and General Staff Enterprise Agreement 2012-2016 [AE899165] (the Agreement).
[2] Two of the applications, C2015/719 and C2015/2666, were made by the National Tertiary Education Industry Union (the NTEU) on behalf of their members, respectively Ms Stephens and Ms Carlyon, and the third application, C2015/2718, was made by Mr Geoghegan who is represented by the NTEU. The respondent is Curtin University of Technology (Curtin or the respondent).
[3] In each of the applications the subject of this decision the applicants submit that their transfer to an alternative position within Curtin was not Suitable Alternative Employment, as defined in the Agreement, and/or there was a valid and significant detrimental impact due to the transfer. The applicants submit that accordingly under subclause 70.8.1 and 70.10 of the Agreement each of the employees are entitled to a redundancy payment.
[4] Curtin oppose the applications and contend that each of the transfers was to a position that was Suitable Alternative Employment and so under subclause 69.7.2 Curtin was entitled to transfer each applicant to the alternative position and there is no entitlement to a redundancy payment.
[5] I am satisfied that each of these disputes relate to a matter arising under this Agreement and as a consequence under clause 68−Dispute Resolution Procedure of the Agreement the Commission has jurisdiction to resolve the disputes by arbitration.
Background
[6] It is common ground between the parties that following an in-depth review of Curtin’s operations and staffing arrangements in 2013, conducted by Deloitte, it was recommended amongst other things that Curtin restructure its administration and support services.
[7] The resulting restructure of Curtin’s administration and support services was undertaken in 2014 and was referred to as the EQUIP program.
[8] Prior to the restructure each of Curtin’s 28 schools operated as a discrete unit administering their own human resource, finance and administration services. Consequently there was considerable duplication of work being performed and some inconsistency in the processes that had been adopted and applied by each of the schools.
[9] As part of the restructure Curtin implemented a new service delivery model termed the “hub and spoke” model where hubs would deliver functions at a university wide level and spokes would report into the hub but deliver functional specialties closer to the end client.
[10] Both parties accept undertaking the EQUIP program was a major change likely to result in significant effects on staff members within the meaning of clause 69−Change Management and Consultation of the Agreement.
[11] As part of the EQUIP program Curtin standardised and streamlined the number of position descriptions for administration and support staff.
[12] Previously there had been over 450 position descriptions each of which was highly prescriptive and detailed the numerous day-to-day tasks of the position. As part of the EQUIP program Curtin created approximately 15 broad position descriptions for administration and support persons which were expressed in outcomes based terms rather than task-based terms. These replaced the previous position descriptions.
[13] The new position descriptions were to be and are now used across the 28 different schools. By prescribing only high-level outcomes the new position descriptions retained the flexibility to allow particular tasks to be carried out in accordance with the operational requirements of each different school.
[14] The EQUIP program included on-going consultation with as many as 800 staff who were involved in the restructure.
[15] A program to transition staff from the previous positions to fill positions in the new structure was implemented. Curtin’s intention was to fill as many of the new positions as possible through internal transfers to minimise uncertainty for staff and to meet its obligations under the Agreement to mitigate redundancies. 1
[16] A panel of senior staff was established to consider internal transfers of staff.
[17] A Memorandum of Understanding was entered into between Curtin and the NTEU in August 2014 following a dispute about the meaning of the words “suitable alternative position” in clause 69 of the Agreement as it relates to internal transfers. 2 The parties agreed, on a without prejudice basis, that Curtin was able to transfer a staff member to an alternative position that was at the top incremental point of one level below the staff members’ substantive classification level. The parties also agreed to enhanced salary maintenance arrangements where staff were transferred to a suitable alternative position.
[18] The implementation of the EQUIP program involved transferring 238 staff to alternative positions pursuant to subclause 69.7 of the Agreement. Of these 238 staff 80 were internally transferred to one classification level above their prior position, 79 were internally transferred at the same classification level as their prior position and 79 were internally transferred to one classification level below their prior position but to the top increment of that lower level.
[19] Of the staff transferred 3 were not satisfied with their alternative positions and other opportunities were found for them.
[20] A further 15 staff submitted formal requests to review their transfer, as is provided for under subclause 69.7.4 of the Agreement, including the 3 employees subject to the applications currently before the Commission. Of the 15 transfers appealed in 6 cases the appeal was upheld and in 9 cases the appeal of the transfer was declined.
[21] Finally approximately 21 employees were made redundant as part of the EQUIP program.
[22] Subclause 70.10, set out below, provides the detail of how redundancy payments are calculated.
“70.10 Redundancy Payment
70.10.1 A redundancy payment will comprise (A) + (B) + (C) + (D) + (E) as prescribed in Table 1 of this Clause 70.10, provided that (A) + (B) + (C) will not exceed 82 weeks in total.
70.10.2 The redundancy payment will be calculated based on the Redeployee’s salary rate at the date of cessation of employment and any variation(s) in service fraction over the total period of employment.
Table 1 | |||
Age | Entitlement | Maximum | |
A | 45 years or over | 8 weeks pay for the first year of service or part thereof, and 8 weeks pro-rata `for each subsequent year of service, | 24 weeks pay |
40 – 44 years | 7 weeks pay for the first year of service or part thereof, and 7 weeks pay pro-rata for each subsequent year of service | 21 weeks pay | |
39 years or under | 6 weeks pay for the first year of service or part thereof, and 6 weeks pay pro-rata for each subsequent year of service | 18 weeks pay | |
B | 4 weeks pay in lieu of notice | ||
C | Separation pay calculated on the basis of 3 weeks salary for each completed year of service | ||
D | Payment in lieu of all Accrued Annual Leave and annual leave loading at the date of termination | ||
E | The Staff Member’s accrued and pro-rata LSL at the date of termination | ||
70.10.3 Subject to Clause 42.6.5, for the purposes of Table 1 above, in determining “each completed year of service” the Staff Member who has been absent on any period of unpaid parental leave will have that period counted as if they were at work in their pre-parental leave position.”
[23] For the purposes of the calculation of any redundancy payment that might arguably be payable to the applicants it is not disputed that Ms Stephens has been employed for 23 years, Ms Carlyon has been employed for 24 years and Mr Geoghegan has been employed for 20 years.
[24] An estimate for each applicant indicates they would each probably receive the maximum redundancy payment allowable under the Agreement of 82 weeks payment, not including additional payments for accrued annual leave and long service leave.
The Agreement’s provisions
[25] Relevant terms of the Agreement are set out below:
“3 Definitions
For the purpose of this Agreement, the following definitions will apply: …
Suitable Alternative Employment means employment in a position with the University or an organisation associated with the University that:
a) has Continuing Appointment status;
b) has normal hours of work commensurate with the hours worked by the Redeployee in the Redundant position, unless otherwise agreed to by the Redeployee;
c) is within reasonable distance from the Redeployee’s existing work location, unless otherwise agreed to by the Redeployee;
d) is commensurate with the Redeployee’s:
i) skills and competencies; and
ii) (in the case of the employment of an Academic Staff Member) career aspirations; and
e) (in the case of employment of a Professional and General Staff Member) has a salary not less than that of the Professional and General Staff Member’s Redundant position, or for which salary maintenance is provided for 12 months;
and
f) (in the case of employment of an Academic Staff Member) has a salary not less than that of the Academic Staff Member’s Redundant position.”
“69 Change Management and Consultation
69.1 The provisions of this Clause 69 apply to the introduction of a major change that is likely to result in significant effect on Staff Members.
69.2 This Clause 69 will apply in conjunction with Schedule 12(2), Transitional Arrangements – Change, Staff Conduct and Work Performance.
69.3 Major change is likely to have significant effect on Staff Members if it results in:
a) redundancy;
b) the need for transfer to another campus;
c) a reduction in the workforce across the University or within a School/Area which will have a material impact on a School/Area;
d) changed hours of operation;
e) a change to the composition, operation or size of the University’s workforce or in the skills required where this will have a material impact on the day to day work practices of Staff Members;
f) job structuring, technological or structural change where this will have a material impact on the day to day work practices of Staff Members;
g) changes to University Policies and Procedures which have a significant and material impact on career and the promotion opportunities for identifiable groups of Academic Staff Members or Professional and General Staff Members; provided that where this Agreement makes provision for variation of any of these matters the variation is deemed not to have significant effect.
69.4 Principles
69.4.1 The University and its Staff Members are able to be creative and develop and explore ideas for changes in the academic, professional or commercial operations of the University on an ongoing and informal basis.
69.4.2 If major change is likely to have a significant effect on Staff Members, Formal Consultation with affected Staff Members will occur in a collaborative, participative and timely manner.
69.4.3 A Staff Member or group of Staff Members are entitled to be represented by their Union/Nominated Representative throughout the Formal Consultation and the change management process.
69.4.4 University line management, Staff Members and their Union/Nominated Representative will engage in the change management process in a positive manner and will endeavour to expedite the process.
69.5 Step 1 - Consultation on major change
69.5.1 When the University has developed a proposal for a major change that is likely to have significant effect on its Staff Members, it will notify the affected Staff Members, and if they so choose, their Unions/Nominated Representative, about the proposed change. The University will engage in Formal Consultation with the Staff Members who may be affected by the change.
69.5.2 A Line Manager may invite discussion with individual Staff Members who may be affected by the major change prior to release of any proposal for change.
69.5.3 The Director, Human Resources or nominee will provide a copy of any proposal for major change to the Unions, who may consider and make submissions to the Director, Human Resources on the proposal for major change.
69.5.4 Formal Consultation will include:
a) provision of a proposal for major change which sets out:
i) the nature of the proposed major change and rationale for major change;
ii) any significant effect the major change is likely to have on Staff Members;
iii) reasonable timeframes for consultation as set out in Clause 69.5.4;
iv) any other relevant information about the major change other than information which is subject to legal privilege or is commercial-in-confidence;
v) measures the University is considering to avert or mitigate any material adverse effect of the proposed major change on the Staff Members;
b) provision of the opportunity for written responses or suggestion of alternative proposals from affected Staff Members within the consultation timeframe. The timeframe for consultation, including receiving feedback from Staff Members, will be determined relative to the magnitude and complexity of the proposed major change but will provide at least 10 working days for receiving feedback from Staff Members unless there is a written agreement with all affected Staff Members agreeing to a shorter timeframe, in which case it will be no less than 5 working days;
c) opportunity to meet and confer with affected Staff Members on the proposed major change and any potential alternative proposals; and
d) provision of relevant information, except that which is commercial-in-confidence, to affected Staff Members over the duration of the Formal Consultation process.
69.5.5 Prior to making a decision as to whether or not to implement major change the University will give genuine consideration to matters raised during the stated Formal Consultation timeframe by:
a) Staff Members who are likely to experience significant effect of the major change, and if they so choose, their Union/Nominated Representative; and
b) the Unions.
69.6 Step 2 - Decision on major change implementation
69.6.1 The University will notify the affected Staff Members and the Unions of its decision as to whether or not it will implement major change.
69.6.2 In notifying of any decision to implement major change, the University will provide the affected Staff Members and the Unions with a copy of a change implementation plan which will include a summation of all matters raised during the Formal Consultation process with Staff Members and the Unions and how these matters have been taken into account when making the change decision.
69.6.3 The University will continue to consult with and support Staff Members who are affected during the implementation of major change, including consultation on means of avoiding or mitigating any detrimental outcomes for affected Staff Members such as those measures described in Clause 69.6.4.
69.6.4 Where practicable, the University will manage staffing changes and staffing reductions arising from organisational restructuring through natural attrition, internal transfer or placement, Pre-retirement Contracts, LWOP, voluntary conversion to Part-time employment, annual leave, long service leave, secondment and voluntary separations.
69.6.5 The University will, where practicable, take steps to avoid involuntary redundancy, however nothing in this Clause 69 prevents the use of provisions of Clause 70, Redeployment and Redundancy (Professional and General Staff) and Clause 71, Redeployment and Redundancy (Academic Staff), as applicable.
69.7 Step 3 - Transfer of Professional and General Staff
69.7.1 This Clause 69.7 applies only to Professional and General Staff Members who are likely to experience significant effect of the major change but who are not surplus to the requirements of the Faculty/School/Area undergoing the change.
69.7.2 In accordance with Clauses 69.6.3 and 69.6.4, during the consultation on major change, where the University is able to identify a suitable alternative position for a Staff Member, the University is entitled to transfer the Staff Member to the suitable alternative position. The transfer is subject to the University giving the Staff Member 10 working days’ written notice of the transfer.
69.7.3 Where a Staff Member identifies Suitable Alternative Employment as part of the change management process conducted in accordance with this Clause 69, they may elect to be transferred to the position, subject to the provisions of Clauses 69.7.4 and 69.7.5 and consideration of any nomination for the position by other Staff Members to whom this Clause 69.7 may apply.
69.7.4 The Staff Member or the Line Manager, or both, may request a review of the transfer at any time during the transfer notice period and up to 4 weeks following the transfer. The request will be in writing to the Director, Human Resources or nominee and will include a statement of the issues to be taken into account:
a) which may indicate the position is not Suitable Alternative Employment as defined in Clause 3, Definitions; or
b) which may indicate a valid and significant detrimental impact on the Staff Member or the School/Area due to the transfer.
69.7.5 The Director, Human Resources or nominee will assess the suitability of the transfer, taking into account any issues identified at Clause 69.7.4. The decision of the Director, Human Resources or nominee is final, subject to the dispute resolution process of this Agreement, and will be notified to the Staff Member and the Line Manager. The Director’s decision will address the appellant’s written request for a review of the transfer.”
The Test
Suitable Alternative Employment or suitable alternative position?
[26] Before turning to the specific issues regarding the three employees in this matter and before determining what the appropriate test to be applied is it should be noted that the Agreement in this instance includes complex and highly detailed provisions that impose various obligations upon Curtin when embarking upon major changes that are likely to have significant effects on staff members. These are specifically provided for in clause 69−Change Management and Consultation of the Agreement set out above. It is relevant to recognise that these provisions go beyond merely requiring Curtin to follow particular procedural steps but rather in some instances impose legally binding obligations.
[27] Recently the Federal Court of Australia in the matter of National Tertiary Education Union v Latrobe University 3considered a clause in that University’s enterprise agreement which read as follows:
“The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provision set out in this agreement when all reasonable attempts to mitigate against such action and to avoid job loss have been unsuccessful.”
[28] A majority of the Court decided that this clause did impose binding obligations on the University and was not merely an aspirational statement. Consequently dependent upon the facts the University could be held to have contravened this clause in the agreement and so may have breached section 50 of the Fair Work Act 2009 (the Act).
[29] Relevantly in this matter a not dissimilar provision, subclause 69.6.4 requires that “Where practicable, the University will manage staffing changes and staffing reductions arising from organisational restructuring through natural attrition, internal transfer or placement, Pre - Retirement Contracts, LWOP, voluntary conversion to Part –time employment, annual leave, long service leave, secondment and voluntary separations.” Further subclause 69.6.5 requires “The University will, where practicable, take steps to avoid involuntary redundancy…” .
[30] Consequently Curtin in managing the major change it undertook was obliged by the terms of its Agreement, where it was practicable, to manage staffing changes and reductions through, amongst other measures, internal transfers and to take steps to avoid involuntary redundancy.
[31] Turning now to consider the provisions of the Agreement relevant to these matters, beginning with subclause 69.7 Step 3 – Transfer of Professional and General Staff. For the purposes of subclause 69.7.1 it is not disputed and the evidence supports the finding that in all three instances the employees were not surplus to the requirements of the Faculty/School/Area undergoing the change and so clause 69 did apply.
[32] Subclause 69.7.2 entitled Curtin, where it had identified a “suitable alternative position” for a staff member, to transfer that staff member to that alternative position.
[33] In each of the cases here the staff member was entitled to request a review of the transfer which was to include a statement of the issues to be taken into account which may indicate:
- the alternative position is not “Suitable Alternative Employment” as defined in clause 3 of the Agreement; or
- a valid and significant detrimental impact on the staff member due to the transfer.
[34] Subclause 69.7.5 of the Agreement required the Director of Human Resources to assess the suitability of the transfer to the alternative position taking into account these issues.
[35] The decision of the Director of Human Resources as provided for in 69.7.5 is final subject to the dispute resolution process of the Agreement.
[36] These three applications effectively involve the raising of a dispute by each staff member contesting the respective decision of the Director of Human Resources which was to the effect that the appeal of the transfers were each rejected and the finding that in each case the transfer was suitable.
[37] Turning to consider the submissions as to how the Commission should approach these applications the respondent submits that the words “suitable alternative position” used in subclause 69.7.2 of the Agreement is not equivalent to the words “Suitable Alternative Employment” which is defined in clause 3 of the Agreement.
[38] I have considered the submissions of both parties on this point and have concluded that the respondent’s interpretation of these words in clause 69 of the Agreement is correct.
[39] Firstly I note that the words “suitable alternative position” are used in 69.7.2 and in the very next subclause 69.7.3 the words “Suitable Alternative Employment” are used. In addition where the words “Suitable Alternative Employment” next appear in this clause, at 69.7.4 a), they are again capitalised as they are in 69.7.3. Considered together this indicates that the drafters of clause 69 deliberately sought to distinguish between the words “suitable alternative position” and “Suitable Alternative Employment” firstly by using the word “employment” rather than “position” and secondly emphasising they are deliberately chosen words and different concepts by capitalising the words “Suitable Alternative Employment” and not capitalising the words “suitable alternative position”.
[40] The point the respondent makes is that the use of the phrase Suitable Alternative Employment in 69.7.3 of the Agreement is deliberate. These words are defined in clause 3 of the Agreement however the words suitable alternative position are not defined within the Agreement and so would be given their ordinary meaning and consequently would encompass a much broader range of other positions within the University than would be within the more narrow scope of Suitable Alternative Employment.
[41] It is submitted by the respondent that the drafters used the words Suitable Alternative Employment in 69.7.3 in order to place some constraints on the range of positions to which a staff member themselves can elect to be transferred to. Given it is a most unusual right for a staff member to be able to elect to be transferred to a position I accept there is force in the respondent’s submission on this point.
[42] Similarly whilst an employee or their Line Manager can trigger a review of a transfer under subclause 69.7.4, the clause read in conjunction with 69.7.5 indicates that the review of the suitability of any transfer should include two specific considerations (and perhaps others) namely whether the alternative position is Suitable Alternative Employment as defined in clause 3 of the Agreement and whether there is indications of a valid and significant detrimental impact on either the staff member or the school/area due to the transfer. The use again in 69.7.4 a) of the words Suitable Alternative Employment constrains the basis on which a Line Manager may appeal against a staff member who has elected to transfer to a position that is Suitable Alternative Employment by requiring the parties to observe the definition of these words in clause 3, it cannot be an appeal by a Line Manager based on the ordinary meaning of the word “suitable”. The Line Manager is by implication limited in contesting the transfer the employee has elected to make to arguments that the position is not Suitable Alternative Employment as it is defined or to identifying significant detrimental impacts.
[43] In addition the fact that when undertaking a review of a transfer made by Curtin the Director of Human Resources will also consider quite separately from whether or not the suitable alternative position is Suitable Alternative Employment whether there has been a valid and significant detrimental impact on the staff member or the School/Area as a ground for assessing the suitability of the transfer is indicative of the fact that suitability of a transfer within the University may involve considerations broader than those issues included in the definition of Suitable Alternative Employment. So it may be that a particular transfer, whether at the employee’s election or by decision of Curtin, was indeed to a position that meets the definition of Suitable Alternative Employment but the Director of Human Resources has the capacity to conclude that because of the valid and significant detrimental impact on either the staff member or the School/Area the transfer is not suitable and so is not a suitable alternative position in the ordinary meaning of the words.
[44] Subclause 69.7.4 of the Agreement introduces the additional concept of detrimental impact for the Director of Human Resources to consider separate from the question of Suitable Alternative Employment which is indicative of recognition that deciding whether a transfer is suitable involves broader considerations than whether the position was Suitable Alternative Employment. Subclause 69.7.4 as drafted however does not indicate that these two issues circumscribed the limits of the Director of Human Resources’ considerations on the suitability of the transfer but rather it seems these two issues are mentioned in 69.7.4 to provide a guide for a staff member or a Line Manager who is requesting a review of a transfer as to the sort of issues that the Director of Human Resources is likely be take into account in a review.
[45] Having considered the submissions my conclusion is that the question to be determined by the Commission in each of these disputes is not whether the position each of the applicants was transferred to was Suitable Alternative Employment as defined in clause 3 of the Agreement, but rather whether the transfer in each instance by Curtin as provided for in 69.7.2 was to a suitable alternative position on the plain meaning of those words.
[46] During the hearing of these applications both parties whilst acknowledging, for different reasons, there is a distinction between suitable alternative position and Suitable Alternative Employment put their evidence and submissions effectively on the basis that if the positions to which the employees were transferred satisfies the definition of Suitable Alternative Employment then each position was likely to be a suitable alternative position. Given the particular background and circumstances that exist in this particular instance I accept this approach that on these occasions if the alternative positions are Suitable Alternative Employment then the Commission is likely to find in each case that the transfer was to a suitable alternative position subject to there being no valid and significant detrimental impact on the employee.
The evidence
[47] Having clarified what the test to be applied by the Commission is for these applications I will now turn to consider the evidence that is relevant to this.
[48] It was not disputed at the hearing and I am satisfied that at the time each of the transfers were made none of the employees was surplus to the requirements of the Faculty/School/Area undergoing the change. 4
[49] It is not disputed that the new position each employee was transferred to
- has a continuing appointment status,
- has normal hours of work commensurate with the hours worked by the employee in their previous position,
- is at the same campus and so is within reasonable distance from the previous work location,
- has salary maintenance provided for more than 12 months. 5
[50] I will now turn to consider the evidence regarding the skills and competencies of each employee and the evidence about each of the alternative positions to which they were transferred; which is significant for the purpose of d) in the definition of Suitable Alternative Employment.
[51] Much of the evidence focused on the tasks that were required to be done in the previous position compared to the tasks to be done in the alternative position. Given the central question to be answered is whether the alternative position is commensurate with the employee’s skills and competencies this evidence is not directly relevant however I accept that identifying the tasks an employee did in a previous positions informs the question of what skills and competencies they have. Similarly identifying the tasks required in the alternative position will inform the question of what skills and competencies an alternative position requires an employee to have.
[52] The evidence is that the old position descriptions were task based whereas the new position descriptions are generally more outcomes based. Consequently comparing an old position description to a new position description in terms of the tasks to be done does not equate to a comparison of the skills and competencies required in each position. The selection criteria for the old and the new positions however are expressed in similar terms. By their very nature selection criteria are better aligned with the skills and competencies required in a particular position and the evidence comparing the selection criteria of the previous position with the alternative position is useful in this matter.
Kristie-Lee Stephens
[53] Ms Stephens was first employed with Curtin in 1992 and has held a number of administrative roles within the faculty of Humanities.
[54] Ms Stephens had been working in the position of Senior Administrative Officer Level 5/6 in the school of the Built Environment, faculty of Humanities and was transferred to the alternative position of Administrative Officer Level 5 in the school of Built Environment, faculty of Humanities.
[55] The selection criteria of Ms Stephens’ previous position compared to the alternative position and summary are as follows:
Senior Administrative Officer (Previous Role) | Administrative Officer (Current Role) |
A degree with relevant experience and/or an equivalent combination of relevant experiences and education/training. | Completion of an associate diploma and considerable relevant experience or an equivalent combination of relevant work experience and education/training. |
Demonstrated significant experience in office management, including basic financial management. Demonstrated advanced computer skills especially with the Microsoft suite of applications (Word, Excel, Power Point) and email (Outlook) Demonstrated ability to work independently and as a member of the team and to supervise staff on operational matters. Demonstrated highly effective oral and written communication skills, including report writing, research and analysis. Demonstrated interpersonal skills, including cross-cultural awareness and sensitivity. Demonstrated commitment to apply relevant and applicable policies, procedures and legislation in the day-to-day performance of the functions of this position. | Proven ability to coordinate and manage complex array of commitments, maximising time management to achieve optimal output, using electronic diary system. Demonstrated advance compute skills particularly with experience in the Microsoft suite of applications. Demonstrated ability to work independently and effectively as part of a team. Demonstrated effectiveness in both oral and written communication with a well-developed cross cultural sensitivity and diplomacy. Demonstrated organisation skills with the ability to manage multiple and often competing tasks with attention to accuracy and detail within deadlines. Demonstrated ability to maintain confidentiality and integrity across all functions. Demonstrated problem-solving skills, with the ability to use discretion and knowledge to determine appropriate actions. |
Desirable; Previous experience in a university or higher education environment. Knowledge of Curtin policies and procedures. | Desirable; Previous experience in a university environment. |
[56] Ms Stephens in her evidence says she believes the transfer involves a diminution in the range and complexities of the duties she is now required to undertake and a reduction in the level of autonomy and accountability. Her evidence was that in her previous position she acted in the position of the school’s Business Manager on a number of occasions. Her evidence was that there was no staff who directly reported to her in the previous position.
[57] Ms Stephens also believes the alternate position which is a lesser position classification has a lack of a defined career path. In her previous position she had the potential she believed to be promoted to the position of school Business Manager. Evidence of other witnesses however is that Ms Stephens was unlikely to have ever been promoted to the school’s Business Manager position because that is not a natural progression from the role she had been in and indeed the Business Manager’s role as a Level 9 position is well above her previous Level 5/6 position. Considering the evidence on balance I do not accept that there is a significant detrimental impact on Ms Stephens in terms of her future promotional opportunities.
[58] Her evidence was that Curtin has committed to salary maintenance at the rate of her previous position for three years.
[59] Ms Stephens views the alternative position as not commensurate with the skills and competencies she has developed.
[60] The balance of the evidence identifies that the tasks undertaken in the two positions are different as can be seen from the two position descriptions however the position description of the previous position is expressed in more narrow or specific language based around the unique tasks to be undertaken when compared with the language used in the alternative positions position description which is more general in nature. Notwithstanding this difference in expression there is a significant degree of commonality in the general nature of the administrative tasks to be undertaken in the alternative position compared to the previous position.
Tracey Carlyon
[61] Ms Carlyon was first employed with Curtin in 1992 and since that time has held a number of different roles in the school of Accounting within the Business school.
[62] Ms Carlyon held the substantive position of Client Services Officer Level 4/5 in the school of Accounting within the Business school and was transferred to the alternative position of Teaching Support Officer Level 5 part-time (0.64 of FTE) in the school of Accounting also within the Business school. During the period when the EQUIP program was being planned Ms Carlyon had been internally seconded to another position of Academic Support Coordinator Level 7. Ms Carlyon was in that role for 12 months and that role was vacant and Curtin underwent a merit selection process to fill this vacancy permanently. Ms Carlyon applied but was unsuccessful.
[63] Initially the transfer to the alternative position of Teaching Support Officer was not considered suitable from Curtin’s perspective because the expectation was that this position would be a full-time role however after a review Curtin did agree to transfer Ms Carlyon into the Teaching Support Officer role on the basis that she would undertake the role as a part-time employee as is her preference.
[64] The selection criteria of Ms Carlyon’s previous Client Services Officer position compared to the alternative position and summary are as follows:
Client Services Officer – Level 4/5 | Teaching Support Officer – Level 5 |
Purpose of the Position | Purpose of the Position |
This position exists to support operational areas in the Faculty of Curtin Business School in the areas of administration, financial management, student management, research management and human resources management. The incumbents of this role will have knowledge and understanding of all the responsibilities of the position but the financial; and human resources support responsibilities will be shared and rotated amongst staff so that an individual is not responsible for both at any one point in time. | The Teaching Support Officer provides support to Unit and Course Coordinators by undertaking administrative activities which support the smooth running of units and courses, across all locations, modes of delivery, and study periods. The position liaises with functional service providers (e.g. HR, Student Services, Courses Management (CTL), Marketing) and external partners (if relevant) to ensure the timely and accurate completion of administrative requirements of units and courses, including support for: organisation of course and unit availabilities, access to required unit materials for students and teaching staff, administrative processes related to assessment, moderation, and academic integrity; the preparation of documents for Boards of Examiners, course reviews and accreditation; communications to teaching staff; and assisting academic staff in handling student enquiries. |
Knowledge, Experience and Skills required | Knowledge, Experience and Skills required |
Completion of an associate diploma level qualification with some relevant work related experience; or an equivalent combination of relevant experience and/or education/training. Demonstrated methodical and analytical approach to tasks and problem-solving. Demonstrated IT skills across Microsoft suite of applications, including effective use of word-processing and spread sheet packages and the ability to generate reports. Demonstrated ability to work independently, cooperatively and effectively with others in an executive team environment to deliver desired outputs within set deadlines. Demonstrated effective written and oral communication demonstrating appropriate confidentiality and cross-cultural sensitivity. Demonstrated commitment to applying relevant and applicable policies, procedures and legislations in the day-to-day performance of the functions of this position. Demonstrated ability to understand and keep abreast of required recordkeeping, records management (hardcopy and electronic) and information storage and retrieval, including archiving. Desirable Demonstrated previous experience in a tertiary education environment, particularly in the areas of finance, human recourses and school/unit administration. | Completion of a degree with relevant experiences or an equivalent combination of relevant experience and/or education/training. Demonstrated ability to show initiative and the ability to solve problems arising from non-standard issues. Demonstrated experience and competence in the use of computer software, including databases, word-processing and spread sheet packages. Demonstrated ability to work independently as well as collaboratively as part of a team. Demonstrated ability to organise work activities according to priorities and to multi-task to ensure deadlines are effectively met. Demonstrated well developed written and oral communication skills with the ability to communicate information clearly and professionally. Demonstrated interpersonal skills, especially the ability to deal with a wide variety of people with cross cultural sensitivity, providing a client focussed service. Demonstrated ability to provide guidance to other on procedural matters and ensure compliance with policies and procedures. Desirable Demonstrated understanding of the academic environment and the student experience within a high educational institution. Demonstrated experience in the use of Blackboard (Learning Management System) and corporate student information systems (e.g. StudentOne). |
[65] Ms Carlyon’s evidence was that she views the transfer as representing a significant demotion and her duties have diminished from a senior role to a less significant position and she is now required to only provide basic administrative support to other staff. Her evidence was that the alternative position is not commensurate with her skills and competencies she has developed.
[66] Ms Carlyon gave evidence about the work she had done whilst in the Academic Support Coordinator position. Her evidence was that this was a full-time position however Ms Carlyon was not undertaking all of the aspects of the job description because she was only working part-time and certain aspects of the job were passed on to other staff members to do.
[67] I accept the evidence of Curtin’s witnesses as to the performance of Ms Carlyon in the role of Academic Support Coordinator to the effect that while she was satisfactorily undertaking a subset of the full duties of this position Ms Carlyon was not capable of undertaking the full duties of this Level 7 position particularly the more demanding duties. I note that these concerns had not needed to be pursued with her previously because her preference to work only part-time did not require her to undertake the full responsibilities of the Academic Support Coordinator position.
[68] The evidence then is that the Teachers Support Officer position and the previous position being the Client Services Officer position both have the same substantive classification level and report to the same school Business Manager within the school of Accounting and involve no change in work location or line management.
[69] The evidence does not my view demonstrate that there was a significant detrimental impact on Ms Carlyon.
[70] The balance of the evidence indicates that the focus of the two positions is different. The previous position concerns supporting operational areas in terms of administration, financial management, student management, research management and Human Resource management whereas the alternative position is more narrowly focused on providing support to unit and course coordinators to ensure the smooth running of units and courses and consequently for example there seems to be no focus on issues such as financial management in the alternative position. Notwithstanding the differences in focus and the specific task to be undertaken it is clear in my view on the evidence that there is significant commonality in that both positions involve undertaking administrative tasks of a general nature.
Christopher Geoghegan
[71] Mr Geoghegan began employment with the University in 1994 and for the seven years immediately prior to being transferred he worked in the position of Senior Administrative Officer in the faculty of Humanities.
[72] Mr Geoghegan had been working in the position of Senior Administrative Officer Level 5/6 in the school of Design and Art within the faculty of Humanities and was transferred to the position of Human Resources Assistant Level 5 within a remuneration and appointments services team within the human resources Humanities spoke.
[73] The selection criteria of Mr Geoghegan’s previous Senior Administrative Officer position compared to the alternative position of Human Resources Assistant are as follows:
Senior Administrative Officer (Previous Role) | Human Resources Assistant (Current Role) |
A degree with relevant experience and/or an equivalent combination of relevant experience and education/training. | Completion of an associate diploma and considerable relevant work experience or an equivalent combination of relevant experience and/or education/training. |
Demonstrated significant experience in office management, including basic financial management. Demonstrated advanced computer skills especially with the Microsoft suite of applications (Word, Excel, Power Point) and email (Outlook). Demonstrated ability to work independently and as a member of the team and to supervise staff on operational matters. Demonstrated highly effective oral and written communication skills,including report writing, research and analysis. Demonstrated interpersonal skills, including cross-cultural awareness and sensitivity. Demonstrated commitment to applying relevant and applicable policies, procedures and legislation in the day-to-day performance of the functions of this position. | Relevant experience in customer service delivery and a personal commitment to continually achieving a high level of client satisfaction. Demonstrated availability to provide advice on HR agreements, policies and procedures. Demonstrated ability to communicate (written and verbal) accurate and current informationclearly and professionally with staff and clients. Demonstrated ability to work within a team environment and contribute to teal goals and values. Demonstrated time management and organisation skills including the ability to prioritise and meet multiple work demands within specified deadlines. |
Desirable; Previous experience in a university or higher education environment. Knowledge of Curtin policies and procedures. | Desirable; Experience in HR processes and practices in a large organisation including the use of HR information systems (e.g. Alesco). |
[74] Mr Geoghegan’s evidence was that for the seven years he had been in the position of Senior Administrative Officer he was to facilitate the administrative operations of the school including financial, human resources and asset management. He undertook a range of projects within the school and at times carried out duties and tasks of the school’s Business Manager.
[75] Mr Geoghegan’s evidence was that his previous role was largely autonomous and does not compare favourably to the less important role as a Human Resources Assistant providing basic administrative support to faculty staff. His evidence was that in his previous role he was largely self-directed but in the alternative position his direct Line Manager sees him regularly throughout the day and tells him what the next task to be done is.
[76] His evidence was that he believes the transfer to Human Resources Assistant has detrimentally affected his career progression and he no longer has a defined career path or an opportunity to develop further skills and competencies. He believes the alternative position is not commensurate with his skills and competencies.
[77] His evidence with respect to processing documentation such as casual contracts, tax declarations and personal details of staff was to the effect that in the Senior Administrative Officer position he was involved in dealing with the employees to ensure the documentation was completed correctly and then sending that information to human resources whereas in the alternative position he now receives the same material and processes it.
[78] Mr Geoghegan acknowledges that there are some commonalities in the two positions but argues that the responsibilities are quite different and the level of complexity is different.
[79] With respect to career progression the evidence is that there are a group of positions within the area Mr Geoghegan is now engaged in and indeed Curtin has offered Mr Geoghegan the opportunity to transfer to another alternative position that of Human Resources Officer Level 5/6, a position above the one he has been transferred to. Mr Geoghegan has declined this other opportunity apparently because he had been advised that accepting that position would be adverse to this application he has made to the Commission. Regardless of the merits of that judgement the opportunity for him to work in the Human Resources Officer position indicates there is some immediate potential for career development from the Human Resource Assistant position contrary to his view.
[80] I do not accept that the evidence demonstrates that in Mr Geoghegan’s case there has been a significant detrimental impact on him.
[81] Having considered the evidence it seems that whilst there is a difference in terms of focus between the two positions and in particular that the Human Resources Assistant position involves a degree of specialisation which is different from the broader range of tasks and responsibilities that Mr Geoghegan was undertaking in the Senior Administrative Officer position there is significant commonality in terms of the nature of the tasks to be undertaken in the two positions.
[82] Having considered the evidence of all the witnesses I accept each of the applicant employees gave their evidence truthfully however given their self-interest in these proceedings there was some tendency to emphasise the difficulty, complexity and responsibility of their previous positions whilst downplaying the extent to which these characteristics are present in the alternative positions.
[83] In addition considering their evidence it becomes apparent that in each case having worked for a number of years in their previous positions they have developed familiarity and confidence in that role and as a result they have in some instances been undertaking tasks and taking on responsibilities beyond the scope of that position, which has been of benefit to Curtin and also to themselves for their professional development and personal satisfaction. By contrast their experience in the alternative positions is limited, having worked in these positions for a relatively short period, and as a consequence they have not yet had the opportunity to potentially grow the scope of the alternative position beyond the bounds of the position description. This may have negatively affected their perception of the skills and competencies required in the alternative positions relative to their previous positions.
Conclusion
How suitable are the alternatives?
[84] As explained above if the alternative positions amount to Suitable Alternative Employment as defined in clause 3−Definitions of the Agreement then I accept that they are also likely to be suitable alternative positions.
Are the alternative positions Suitable Alternative Employment?
[85] I am satisfied that the alternative position each applicant employee was transferred to meets the elements of the definition of Suitable Alternative Employment prescribed in a) to c) because each position:
- has a continuing appointment status,
- has normal hours of work commensurate with the hours worked by the employee in their previous position,
- is at the same campus and so is within reasonable distance from the previous work location, and
- has salary maintenance provided for more than 12 months.
[86] The only aspect of this definition that is disputed is that which is set out at d). This is the requirement that the alternative position must be commensurate with the employees’ skills and competencies.
[87] This element of the definition of Suitable Alternative Employment does not require a comparison between the skills and competencies required in the alternative position with the skills and competencies required in the old position. Rather it requires consideration of what the employees’ skills and competencies are and whether the alternative position is commensurate with these.
[88] The definition of Suitable Alternative Employment makes no mention of the tasks an employees is required to do in an alternative position. The fact that an alternative position requires an employee to undertake tasks they have not previously done which may be quite different to those they were required to undertake in the old position does not of itself demonstrate that the alternative position is not commensurate with their skills and competencies. At a large University there will be many different positions which involve staff undertaking quite different tasks who however may all have similar skills and competencies.
[89] According to the Collins English dictionary “commensurate” means
1. having the same extent or duration
2. corresponding in degree, amount, or size; proportionate
3. able to be measured by a common standard; commensurable
[90] What in practice the word commensurate might mean was considered in the case of Ms A Soh v University of Sydney 6 Commissioner Cargill in this matter considered the circumstances where the applicant employee Ms A Soh was to be transferred by the University to another position. The Commissioner found that under her contract of employment the University was allowed to transfer her to another position “...provided that it is commensurate with her skills and abilities...”.In the particular circumstances of that case it was accepted that the duties in the position to which she was to be transferred differed from the duties of her former position including that she would no longer have responsibilities for the areas of budgeting and reporting however her supervisor was confident that she could carry out the duties of the new position with training specifically in the areas of salaries. The employee’s evidence however was that she believed she could not adequately perform the new duties as she did not have either the practical work experience or the training. Commissioner Cargill found it was difficult to determine the issues because the employee had not carried out the duties of the new position and as a result the question had to be decided in the abstract. Ultimately having accepted that the employee could carry out the duties in the new position with appropriate training where necessary Commissioner Cargill found “…that the duties of the position are commensurate with her skills and abilities.”
[91] Considering both the definition of the word commensurate and the approach previously adopted by Commissioner Cargill I accept that for an alternative position to be commensurate with an employees’ skills and competencies does not require it to match exactly or align perfectly with the employee’s skills and competencies. An alternative position which necessitates an employee undertaking some training or developing experience on the job may still be one that is commensurate with their skills and competencies. It will be a matter of degree. If extensive training is required it may be the alternative position is therefore not commensurate with someone skills and competencies.
[92] The definition of Suitable Alternative Employment includes a requirement that “…salary maintenance is provided for 12 months.”. This requirement is an express acknowledgement that an alternative position that is a lower classification paying less than an employee’s previous position can be Suitable Alternative Employment. By inference then the definition acknowledges that an alternative position compared to the previous position may involve some less responsibility or less authority or less seniority (and hence is a lesser classification with lower pay) but that this is not a bar to the alternative position being Suitable Alternative Employment.
[93] The determination of whether an alternative position meets the definition of Suitable Alternative Employment is to be determined objectively. This is not a matter to be determined subjectively. Consequently the personal view of an affected employee as to whether or not an alternative position is Suitable Alternative Employment is not determinative of that question.
[94] In each case here the employees themselves have identified that the specific tasks or duties required in the alternative positions is different from those they were undertaking in their previous positions. However when viewed objectively there is in each case also a significant degree of commonality in the nature of the tasks to be undertaken in the previous position and in each alternative position. This is an indication that the skills and competencies required in each of the previous positions and each of the respective alternative positions are not identical but are similar.
[95] Considering the evidence as to the skills and competencies of each of the applicant employees, the selection criteria and other detail about the respective alternative positions plus the evidence of the work the employees have been doing in the alternative positions I am satisfied that in each case the alternative positions are commensurate with the skills and competencies of the respective applicant employees.
[96] Consequently I am satisfied that the alternative positions to which Ms Stephens, Ms Carlyon and Mr Geoghegan were transferred fall within the definition of Suitable Alternative Employment.
[97] I accept that each of the applicant employees identified some negative impact on them having been transferred to the alternative position. However the evidence demonstrates that none of the applicant employees have suffered a detrimental impact due to the transfer to the alternative position that was significant let alone of such significance that the Director of Human Resources should on review have reversed the transfer.
[98] As explained earlier in this decision the issue to be determined by the Commission is whether each of the alternative positions was a “suitable alternative position”. I have found each alternative position was Suitable Alternative Employment and there was no significant detrimental impact on the employees. As a result I am also satisfied that the alternative positions were appropriate for each employee. Consequently my decision is that each of the alternative positions was a suitable alternative position to which Curtin was entitled to transfer the respective staff member under subclause 69.7.2 of the Agreement.
[99] To ensure there is no doubt, given my findings above, I also find that the applicants are not entitled to redundancy payments under clause 70 of the Agreement.
COMMISSIONER
Appearances:
A. Cousner and G. Walsh of the NTEU for the applicants.
R. French of Counsel for the respondent.
Hearing details:
2015.
Perth:
September 8,9.
1 See subclause 69.6.4 and 69.6.5 of the Agreement.
2 Respondent’s bundle of documents at page 277.
3 [2015] FCAFC 142.
4 See subclause 69.7.1 of the Agreement.
5 See clause 3−Definitions of the Agreement “Suitable Alternative Employment”.
6 R8906.
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