National Tertiary Education Industry Union v Deakin University
[2020] FWC 14
•7 JANUARY 2020
| [2020] FWC 14 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
Deakin University
(C2019/4418 & C2019/5326)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 JANUARY 2020 |
Applications to deal with a dispute in accordance with the dispute settlement procedure in an agreement; restructures; major change; significant effects; obligation to consult under agreement; whether documentation provided during consultation sufficient.
Introduction and Background
[1] The National Tertiary Education Industry Union (NTEU) has applied under s.739 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a dispute with Deakin University (Deakin) in relation to proposed restructures of the Faculty of Business and Law and Deakin Finance. Specifically, the dispute concerns whether Deakin has satisfied the requirements of clause 58.6 of the Deakin University Enterprise Agreement 2017 1(Agreement). The Agreement currently operates and the NTEU, is covered by the Agreement.
[2] Clause 58 of the Agreement provides for consultation about the proposed introduction of major workplace change likely to have significant effects on staff members. There is no dispute that the jurisdiction of the Commission has been properly invoked and that I am able to resolve the dispute by exercising arbitration power for which provision is made in clause 59 of the Agreement.
Faculty of Business and Law restructure
[3] On 20 June 2019, Deakin notified affected staff members and the NTEU at townhall meetings held at Deakin’s campuses followed by an email later that day, of the formal proposal to introduce major workplace change within the Faculty of Business and Law Professional Teams. 2 Attached to the email were documents including the formal proposal, consultation communication slide pack, frequently asked questions and Deakin’s principles for the implementation of change.3 Staff were provided the period between 20 June and 5 July 2019 inclusive to provide feedback on the proposal which would then be reviewed and Deakin would provide a response to the feedback between 8 and 18 July 2019.4
[4] The documents provided included the following information:
1. Major workplace change formal proposal for the Business & Law Restructure 5
a. Background and project scope
b. Reason for the proposed changes including the drivers for change, challenges and opportunities, guiding principles and vision
c. Details of the proposed changes including guiding principles for the proposed structure, scope of impact, summary of potential impacts for staff, a table indicating the title of position, whether it is an EOI, matched or translated, the area, team and the HEW classification level, detail of potential impact on teams and benefits of change
d. Consultation and implementation steps and indicative timeline
2. Consultation slide pack 6
a. Process maps
b. Context for project including objectives and rationale
c. SWOT analysis
d. Opportunities including how to build on previous success, capacity to grow, shift mindsets, promote participation and invest in capability and careers
e. Direction of the company explaining the transition year (2019), embedding year (2020) and observable change (2021)
f. Vision including what it will be like “today” and “tomorrow”
g. Professional Services Functional Model
h. Proposed transition implementation principles (explanation of “match”, “translation” and “expression of interest”)
i. Professional Services Leadership Team structure with titles and classification levels
j. Corporate Services Leadership Team structure with titles and classification levels
k. Corporate Services Executive and Business Services Team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
l. Corporate Services People Services Team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
m. Corporate Services Accreditation, Planning and Risk Team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
n. Corporate Services Information and Integrated Analytics Team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
o. Corporate Services Financial Services Team structure with titles and classification levels and team overview (including team deliverables)
p. Research Team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
q. Students & Education Leaders structure with titles and classification levels
r. Students & Education Learning Innovations team structure with titles and classification levels
s. Education Team overview including team deliverables, proposed changes and benefits
t. Students & Education Academic Compliance and Curriculum team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
u. Students & Education Student Experience team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
v. Engagement & Partnerships Leaders team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
w. Engagement & Partnerships International team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
x. Engagement & Partnerships Marketing team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
y. Process timeline (project, design, consultation and implementation)
z. Next steps indicative timing (documentation, feedback, review and response, communication of decisions and implementation)
aa. Transition principles – process for expression of interest and indicative steps, and
bb. Current state organisational charts
3. Frequently Asked Questions and corresponding answers 7
a. Whether it is a formal proposal, who has been consulted so far, what consultation is and the indicative timelines for consultation
b. Whether reporting lines will change
c. How to express interest in a vacant role
d. Whether there are position descriptions
e. How long implementation will take
f. Principles behind proposed position titles
g. How to provide feedback and input and where to direct questions
h. How the consultation phase will affect day-to-day processes
i. Information about fixed term roles
j. Whether team members will have to relocate workspaces
k. Support that is available (including Employee Assistance Program)
4. Principles for the implementation of change 8
a. Explanation of the process for matching, translation and filling of roles
b. Explanation of the merit-based selection process
c. Explanation of process for those unsuccessful in competing for a position on merit and who may be subject to redundancy provisions
d. Explanation of nomination for redeployment
[5] On 27 June 2019, the NTEU issued a dispute notification in accordance with clause 59 of the Agreement. The NTEU met with representatives of Deakin on 3 July 2019 to attempt to resolve the dispute, however Deakin did not agree to provide the NTEU with position descriptions of the positions following the restructure as sought. On 9 July 2019, Deakin provided to the NTEU a revised version of the proposed team structures and team overviews which included a high-level description of every role in the proposed restructure. This did not satisfy the NTEU and as a result a dispute application was lodged with the Commission on 19 July 2019. 9
[6] Mr Marcus Miller, Senior Consultant (Workplace Relations) for Deakin gave evidence that the Business & Law restructure is not intended to result in any redundancies and there are no fewer positions in the proposed structure than the current structure (115 positions in each). 10 Of the 115 positions, Deakin have identified that 5 positions in the proposed restructure are “matched” (meaning that the role is identical to the role in the current structure), 69 positions are “translated” (meaning that there will be minor changes to the staff member’s position, such as a new job title and/or minor changes to the focus of the role, but there will be no variation to the employment contract or change to classification level under the Agreement), and the remaining 52 positions will be opened for expressions of interest (EOI).11
[7] Mr Miller also gave evidence that managers and human resources will assist employees to identify EOI positions that suit their skills, needs and interests and that reasonable retraining will be provided where necessary. 12
[8] Mr Miller noted that the frequently asked questions document given to the NTEU and affected employees provided the following answer to the question “where are the position descriptions?”:
“They will be made available after consultation has concluded for all positions made available for EOI. At this stage as we don’t know the full complement of roles and final structure it is too early to develop position descriptions in detail. However, once consultation has concluded and a final decision is made as to structure and complement of roles the position descriptions of all EOI positions in the new structure will be developed and made available to staff to support the expressions of interest process that will follow.” 13
[9] The proposed restructure is intended to improve efficiency, quality, flexibility and collaboration, expand capability and improve the experience of students, academics and central divisions when dealing with the Faculty of Business and Law by streamlining operations and refocusing the deliverables of the teams for the challenges of the future. 14
Deakin Finance restructure
[10] On 24 July 2019, Deakin notified affected staff members and the NTEU at townhall meetings held at Deakin’s campuses followed by an email later that day of the formal proposal to introduce major workplace change within the Finance Community. Documents that were provided included the formal proposal, consultation communication slide pack, current state organisational charts, proposed team and position overviews, frequently asked questions and expression of interest support guide. 15 Staff were given the period between 24 July and 9 August 2019 inclusive to provide feedback on the proposal.16
[11] The documents provided included the following information:
1. Major workplace change formal proposal for the Finance Restructure 17
a. Background and objectives
b. Reason for the proposed changes including challenges and opportunities for model and structure, capability and career pathways and business insight
e. Details of the proposed changes including purpose, principles, direction, vision, benefits, scope of impact, summary of potential impacts for staff, a table indicating the title of position, whether it is an EOI, matched or translated, the department, team and the HEW classification level, detail of potential impact on teams and benefits of change
c. Faculty Finance Business Partnering Team deliverables, proposed changes and benefits
d. Research Finance Business Partnering Team deliverables, proposed changes and benefits
e. Portfolio & Projects Finance Business Partnering Team deliverables, proposed changes and benefits
f. Commercial & Strategic Finance Team deliverables, proposed changes and benefits
g. Finance Initiatives Team deliverables, proposed changes and benefits
h. Finance Control Team deliverables, proposed changes and benefits
i. Shared Services Team deliverables, proposed changes and benefits
j. Consultation and implementation steps and indicative timeline
2. Consultation communication slide pack 18
a. Context including seeking feedback, key messages, objectives and outcomes
b. Opportunities, vision, purpose and principles
c. Proposed model
d. Proposed principles (customer model, guiding principles and key stakeholders)
e. Proposed transition implementation principles (explanation of “match”, “translation” and “expression of interest”)
f. Finance Deakin leadership team structure with titles and classification levels and general focus areas
g. Financial control, receivables, shared services leadership team model with titles, classification levels and general focus areas
h. Financial control team structure with titles and classification levels
i. Shared Services team structure with titles and classification levels
j. Partnering and performance leadership team structure with titles, classification levels and general tasks
k. Faculty finance business partnering team structure with titles and classification levels
l. Research finance business partnering team structure with titles and classification levels
m. Portfolio and projects finance business partnering team structure with titles and classification levels
n. Finance initiatives team structure with titles and classification levels
o. Strategic and commercial finance team structure with titles and classification levels
p. Office of the executive team structure with titles and classification levels
q. Change Process timeline with indicative dates (system and process, operating model, proposal, feedback and collaborate)
r. Next steps indicative timing (documentation, feedback, review and response, communication of decisions and implementation)
3. Current state organisational charts 19
a. Chief Digital Officer team structure with titles and classification levels
b. Education team structure with titles and classification levels
c. Enterprise – finance team structure with titles and classification levels
d. Enterprise – Other business services teams structure with titles and classification levels
e. Faculty of Arts and Education team structure with titles and classification levels
f. Faculty of Business and Law team structure with titles and classification levels
g. Faculty of Health team structure with titles and classification levels
h. Faculty of SEBE team structure with titles and classification levels
i. Finance Portfolio team structure with titles and classification levels
j. Global engagement team structure with titles and classification levels
k. Research Portfolio team structure with titles and classification levels
4. Proposed team and position overviews 20
a. Leadership team structure with titles, classification levels and general focus areas
b. Office of the Executive team structure with titles and classification levels
c. Financial control, receivables, shared services leadership team structure with titles, classification levels and general focus areas
d. Financial control team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
e. Financial control team proposed position outlines
f. Shared services team structure with titles and classification levels and team overview (including team deliverables, proposed changed and benefits)
g. Shared services team proposed position outlines
h. Partnering and performance leadership team structure with titles, classification levels and general focus areas
i. Faculty finance business partnering team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
j. Faculty finance business partnering team proposed position outlines
k. Business performance team proposed position outlines
l. Research finance business partnering team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
m. Research finance business partnering team proposed position outlines
n. Portfolio and projects finance business partnering team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
o. Portfolio and projects finance business partnering team proposed position outlines
p. University wide financial management team proposed position outlines
q. Finance initiatives team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
r. Finance initiatives team proposed position outlines
s. Strategic and commercial finance team structure with titles and classification levels and team overview (including team deliverables, proposed changes and benefits)
t. Strategic and commercial finance team proposed position outlines
5. Frequently Asked Questions 21
a. Whether it is a formal proposal, who has been consulted so far, what consultation is and the indicative timelines for consultation
b. Principles for transition
c. Whether reporting lines will change
d. Whether there are position descriptions
e. How long implementation will take
f. Principles behind proposed position titles
g. How to provide feedback and input and where to direct questions
h. How to express interest in a vacant role
i. How the consultation phase will affect day-to-day processes
j. Information about fixed term roles
k. Whether team members will have to relocate workspaces
l. Support that is available (including Employee Assistance Program)
6. Expression of interest support guide 22
a. Process timeline (project, design, consultation and implementation)
b. Principles (expression of interest and indicative steps)
c. Process overview diagram
d. How to apply and interview hints and tips (format and preparation)
[12] On 1 August 2019, the NTEU issued a dispute notification in accordance with clause 59 of the Agreement. The NTEU met with representatives of Deakin on 9 August 2019 to attempt to resolve the dispute, however it did not resolve. On 29 August 2019, the NTEU lodged a dispute application with the Commission in relation to the matter. 23
[13] Mr Miller gave evidence that the proposed Finance restructure does not reduce the overall number of finance positions and if implemented would increase the number of roles from 141.8 to 144.7 full-time equivalent positions. Twelve positions have been identified as “matched”, 10 positions as “translated” and the remaining 127 positions will be open for EOI. 24 Mr Miller says that the material provided clearly articulates the change, the rationale for the change, the descriptions and deliverables of the teams and roles, overviews of the new positions and the process by which they will be filled.25
[14] As with the Business and Law restructure material, the frequently asked questions document for the proposed Finance restructure provided the following answer to the question “where are the position descriptions?”:
“They will be made available after consultation has concluded for all positions made available for expression of interest (EOI).
[15] At this stage as we don’t know the full complement of roles and final structure it is too early to develop position descriptions in detail. However, once consultation has concluded and a final decision is made as to structure and complement of roles the position descriptions of all EOI positions in the new structure will be developed and made available to staff to support the expressions of interest process that will follow. This will be undertaken utilising the HEW level descriptors as outlined with the Enterprise Agreement that specify the requisite knowledge, skills and capability required for a given position.” 26
[16] The intended purpose of the Finance restructure is to consolidate the current disparate finance teams centrally into a single Finance division to increase simplicity, efficiency, consistency and expand capability. 27
Submissions of the parties
[17] The NTEU submits that the information provided by Deakin to the affected employees and the NTEU regarding the proposed restructures fails to meet the requirements in clause 58.6 of “relevant material and documentation” sufficient to inform staff and the NTEU of the “purpose and substance of the change”.
[18] The NTEU seeks that Deakin provide information disclosing the proposed duties and responsibilities of each changed or new role in the proposed new structures. Once that information is provided, the NTEU says that a further two week period should be allowed for feedback as part of the consultation process.
[19] Essentially, Deakin contends that it has provided a “significant volume of materials” to the NTEU and affected employees to inform them of the purpose and substance of the changes and is not required by clause 58.6 to provide detailed position descriptions for each role in the proposed new structures. 28 Further, it says the materials provided include substantial information relating to the proposed duties and responsibilities of positions in the proposed structures and this information can be gleaned from proposed role titles, the classification level of each position, the team in which each role is situated and the information provided about the responsibilities of that team in the proposed structure, the information provided about the responsibilities of senior leaders and the high level descriptions that have been provided for each proposed role.29
[20] The NTEU’s concern is not the volume of the materials that have been provided but rather the content of the materials. It says that Deakin expects staff who have had no training in developing position descriptions to trawl through the materials, identify the components that are of importance to each role and then conduct an analysis of that information against classification descriptions in the Agreement to take a guess as to what the changes to the roles might actually be. 30 The NTEU submits that in order for Deakin to have determined if positions are matched, translated or new then it must have conducted an analysis and have a significant idea of the general tasks and skills required of the roles it proposes to create or change. Therefore, it says this information is relevant given it would inform the substance of the change and it should be provided to the affected staff members and NTEU.31 Further, it says that by not providing position descriptions until after the consultation process has concluded, Deakin is denying staff the opportunity to be consulted on the changes that will impact them the most.32
[21] The NTEU also relies on the position adopted by Deakin during consultation for the Student Services Network major workplace change proposal in 2017 which included a 37 page document titled “Proposed Position Descriptions” after which feedback was received and a number of the classification levels were altered as a result. 33 Given the previous practice, the NTEU says there is no justification for not including detailed information about the general tasks and skills required of the new roles.
[22] Deakin maintains that it has not developed more detailed information about the day to day duties of each position (whether in the form of position descriptions or otherwise) in the proposed restructures as part of the formal change proposals. 34 It says that the NTEU has failed to acknowledge that for many of Deakin’s previous major workplace changes, position descriptions have not been provided and without objection. It submits that the information provided will differ from case to case and an example of a previous proposed restructure where position descriptions were not provided is the Health Major Workplace Change in 2018, which was analogous in size, impact and nature to the proposed changes the subject of these proceedings.35 In addition, Deakin says that the Commission should not have regard to its post-agreement conduct in construing clause 58.6 and in the alternative says that the evidence about such conduct is not admissible as an aide to construction.36
[23] Deakin contends that it is particularly significant that there is no evidence of any staff member who felt unable to effectively consult because of the absence of position descriptions or who have any concerns about the proposed changes. It says that this is a case about what the NTEU is entitled to and it may be that an affected individual, depending on the circumstances, would be entitled to more. 37
Consideration
[24] In essence, the point of contention is whether more detailed information about the duties or position descriptions for each role in the proposed structures should be provided as part of the consultation process. The resolution of the disputes turns ultimately upon the proper construction of clause 58 of the Agreement against the backdrop of the uncontested factual matrix set out earlier above and the application of orthodox principles of construction. The principles applicable to the proper construction of an enterprise agreement are not in dispute and were canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 38 and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd.39 There is no need to rehearse them here.
[25] The starting point to construing the provision at issue is the text of the provision and that begins with an examination of the ordinary meaning of the words, having regard to the context and evident purpose of the provision or expression being construed.
[26] Clause 58 of the Agreement provides as follows:
“58 Consultation on Major Workplace Change
58.1 Management of major workplace change is enhanced by genuine consultation between the University, the NTEU and staff members affected by the change prior to the University implementing major workplace change.
58.2 Major workplace change means changes in organisation, structure or technology that are likely to have significant effects on staff members.
58.3 Significant effects include, but are not limited to:
(a) terminating the employment of staff members as a result of redundancy;
(b) major changes in the composition of the University’s workforce;
(c) major reduction in the size of the University’s workforce;
(d) eliminating job opportunities, promotion opportunities or job tenure;
(e) major changes to average hours of work required to be performed by professional staff members outside the span of hours set out in clause 43 of this Agreement;
(f) transferring staff members to another work location which is more than 15kms from a staff member’s existing work location;
(g) restructuring jobs in situations involving more than two staff members within the same organisational unit; or
(h) proposals to outsource key services or contract out key services currently provided by staff members.
58.4 For the avoidance of doubt, major workplace change does not include:
(a) the creation of or appointment to a new senior position within the University or change of reporting lines, unless the change results in significant effects on staff members within the meaning of clause 58.3; and
(b) termination of employment of a single staff member.
58.5 Where the University has developed a formal proposal to introduce major workplace change, the University will consult affected staff members and the NTEU prior to finalising a decision to proceed with the major workplace change.
58.6 The affected staff members and the NTEU will be provided with relevant material and documentation to inform them of the purpose and substance of the change. Consultation will provide sufficient opportunity for the parties to discuss the proposed major workplace change and will include an outline of the likely timeframe for change, implementation arrangements and details of the likely impacts on staff members. Unless otherwise agreed, the period of consultation with the affected staff members and the NTEU at this stage of consultation will normally not exceed two weeks.
58.7 The parties will endeavour to respond in a timely manner to matters raised during the consultation. The University will respond to any written feedback provided by affected staff members or the NTEU.
58.8 If any formal feedback is provided by staff members or the NTEU suggesting options to mitigate adverse effects on staff members or suggesting alternative proposals to that originally proposed by the University, the University will take a further period of up to two weeks to consider the alternative proposal before finalising its position. Implementation of any changes under this clause will be undertaken as expeditiously as possible.
58.9 Staff members directly affected by the change proposal referred to in clause 58.5 may, in their feedback, nominate for redeployment within the University, for retraining, options for taking leave, early retirement, conversion to fixed-term pre-retirement contract and/or voluntary conversion to part-time or other arrangements, to minimise potential retrenchments. The University will make reasonable endeavours to redeploy staff members who nominate for redeployment and give reasonable consideration to any nominations from the staff members before implementing any termination for involuntary redundancy. This process will not delay the consultation or any other University process.” [Underlining emphasis added]
[27] Deakin contends that the “change” referred to in clause 58.6 is the “formal proposal to introduce a major workplace change” in clause 58.5 and it is this change that triggers the requirement to consult. It says that position descriptions cannot relate to the “purpose” of the change, but it is relevant to consider the meaning of the “substance” of the change. By reference to the definition of the word “substance” in the Macquarie Dictionary being “the meaning or gist, as of speech or writing”, Deakin says that it should provide sufficient information to understand the proposed change but is not required to provide the minutiae of all aspects of the change. 40
[28] The NTEU says that by focusing on a single word, Deakin neglects the sentence of clause 58.6 of the Agreement which provides for staff to be given “details of the likely impacts on staff members”. It says that this clause clearly provides for staff and the NTEU to be given a greater level of detail around individual roles than what has already been provided. 41 Given that the proposals demonstrate that there will be significant changes to the positions currently occupied by staff which inevitably will have an impact on those staff members, the NTEU submits that Deakin should as a result provide meaningful information about the roles it proposes to change or create in the consultation process.42 In response, Deakin says that the second sentence of clause 58.6 does not inform the content of the material and documentation that must be provided under the first sentence.43 The second sentence speaks to the impact on staff and Deakin submits that the primary impact on staff of a restructure is whether their position is retained, if there is little or no change to their duties or whether their position is redundant.44
[29] Clause 58 of the Agreement is not concerned with consultation about any change that Deakin proposes rather it is concerned with consultation about major workplace change, that is a change in the organisation, structure or technology that is likely to have a significant effect on staff members. 45 A major workplace change will have a significant effect on staff members if relevantly it involves “restructuring jobs in situations involving more than two staff members within the same organisational unit”. 46
[30] There is no dispute that consultation as required by clause 58 of the Agreement is invoked by reason of the two proposed restructures. As set out in clause 58.5, Deakin has developed formal proposals to introduce workplace change in the form of the proposed restructures earlier set out. The proposed restructures each involve a restructuring of some jobs in situations that involve more than two staff member within the same organisation unit. Consequently, Deakin is required to consult affected staff members and the NTEU prior to finalising the decision to proceed with the proposed restructures.
[31] In order to facilitate consultation Deakin is required by clause 58.6 of the Agreement to provide to the affected staff members and the NTEU “relevant material and documentation to inform them of the purpose and the substance of the change”. The consultation that is required must be such as to provide “details of the likely impacts on staff members” of the proposed restructures.
[32] Plainly the material and documentation that is required to be provided pursuant to clause 58.6 of the Agreement must be “relevant” to the proposed restructure and must contain information which informs affected staff members and the NTEU of “the purpose and the substance of the change”. The dispute centres on the failure or refusal by Deakin to provide to affected staff members and to the NTEU position descriptions for each position that is to be changed in some way as a consequence of the proposed restructures. Ultimately as a matter of construction the provision of such information will, in all cases involving the restructuring of jobs in situations involving more than two staff members within the same organisational unit, be relevant. In some cases, the provision of job descriptions will be necessary in order to inform the affected staff members and the NTEU of the purpose and the substance of the change and in order that details of the likely impact on staff members of the proposed change is sufficiently disclosed. But this will not be necessary in every case. Ultimately whether job descriptions of proposed restructured positions must be provided will depend upon the circumstances.
[33] In the instant case Deakin has provided substantial material addressing the purpose and the substance of the change involved in each of the proposed restructures. Relevantly the material it has provided identifies the positions in the current and the proposed structures which will be unaffected by the proposed change and which are therefore matched positions. It has identified a number of positions in relation to which some change will occur but not so significant as to amount to an alteration of the classification assigned to that position under the Agreement. These positions are described as translated positions. A number of positions are altered in a significant way in the proposed structures. These positions will be the subject of an expression of interest process. Affected staff members in matched or translated positions will continue in the same classification as that which applied to the position before the restructure under the Agreement. The contract of employment in respect of such an affected employee will not be altered. The teams within which each position sits are disclosed and the responsibilities of each team are also disclosed.
[34] In relation to these positions and those which are to be the subject of an expression of interest process, the classification level under the Agreement, the place within which the position will sit in the new organisational structure, the reporting lines and a general description of each role has been provided to affected staff members and to the NTEU. It seems to me that when taken together with all of the other material that has been provided in relation to the proposed restructures, the material provided is relevant to the proposed restructures and discloses to the affected staff members and to the NTEU the purpose and the substance of change as well as the details of the likely impact on staff members of the proposed change.
[35] As already indicated, the material provided by Deakin enables affected staff members and the NTEU to be informed of the purpose and the substance of the change. In the context of its use in clause 58.6, the word “substance” means to describe the essential nature or features of the proposed change. It is unnecessary therefore for there to be disclosure in every case of every single minute detail of the proposed change.
[36] The material also discloses to staff members and the NTEU how the proposed change will likely impact on staff members. From the material, an affected staff member and the NTEU will know inter alia:
• whether the affected staff member’s current position is unchanged by the restructure (in the case of matched positions);
• whether the affected staff member’s current position is affected by some minor change in duties or title (in the case of translated positions);
• whether the affected staff member’s position will not exist in the proposed new structure (that is, become redundant) as a new and different position is created by the restructures;
• whether there are fewer, the same number or more positions in the proposed structures;
• the role or position title;
• the classification levels of each position;
• the impact on their existing contract of employment;
• the mechanism for applying for new positions in the proposed structures;
• the general duties or responsibilities of each position in the proposed structures;
• the team within which each position sits;
• the general responsibilities of each team;
• the place within which each position will sit in the proposed organisational structures;
• the reporting lines for each position; and
• the responsibilities of senior leaders.
[37] In these circumstances it seems to me plainly unnecessary that job descriptions be developed and provided. Given the magnitude of the changes brought about by the proposed restructures, the answer given to the question about job descriptions set out in the frequently asked questions document is both rational and reasonable in the circumstances.
[38] That both parties point to examples where job descriptions were or were not provided as part of the material given to affected staff members and the NTEU during other periods of major workplace change is merely illustrative of the fact that the requirement to provide job descriptions in a given case is circumstantial, that is, some circumstances will require such material while others will not.
[39] To the extent that the NTEU’s reliance on past practice might be said to be evidence as to post agreement conduct of the parties for the purposes of construing clause 58.6 of the Agreement, there are three answers to this.
[40] First, on a proper construction of clause 58.6 of the Agreement whether position descriptions must be provided in order to disclose to the affected staff members and to the NTEU the purpose and the substance of change, the details of the likely impact on staff members of the proposed change, will depend upon the circumstances of the proposed major workplace change and the material already provided. Circumstances in which job descriptions have been provided in the context of a proposed major workplace change are merely illustrative of the circumstantial nature of the requirement to provide job descriptions.
[41] Secondly, to the extent that reliance is placed upon what is said by the Full Bench in Berri at [114] and specifically at 15 thereof, it is plain that the Full Bench relied upon the judgment in Spunwill Pty Ltd v BAB Pty Ltd47 in order to formulate the principle set out at 15. It seems clear from to the NSW Court of Appeal judgment in Magill v National Australia Bank Limited48 that the Court of Appeal expressly rejected the approach to post contractual conduct adopted in Spunwill and preferred the view of Bryson J in Sportsvision Australia Pty Limited v Tallglen Pty Limited49 who considered the reasoning of Lord Reid in James Miller & Partners Limited v Whitworth Street Estates (Manchester) Limited50 to be unanswerable. In Miller his Lordship there said:
“I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or year later.”51
[42] Thirdly, even applying what is said in Spunwill, the material before me, consisting as it does of examples of circumstances in which job descriptions were in one case provided and in another were not, does not disclose or found a common understanding or a settled interpretation accepted by the parties to the Agreement of the requirements of clause 58.6.”
Conclusion
[43] For the reasons stated above on a proper construction of the Agreement Deakin was not, in the circumstances of this case, required to provide to the NTEU or any affected staff member, position descriptions in respect of positions in either of the proposed restructures the subject of the major workplace change, in order to comply with clause 58.6 of the Agreement. It follows that in providing the information and material that has been provided to affected staff members and to the NTEU, Deakin has complied with its obligation under clause 58.6. The dispute is resolved accordingly.
DEPUTY PRESIDENT
Appearances:
J Page for the Applicant.
W Spargo of Lander & Rogers for the Respondent.
Hearing details:
2019.
Melbourne:
October 28.
Printed by authority of the Commonwealth Government Printer
<PR715674>
1 AE424763
2 Form F10 dated 19 July 2019 at Attachment 3; Exhibit 1 at [14]-[15] and Annexures MM-2 and MM-3
3 Exhibit 2 at Attachments G, H, I and J; Exhibit 1 at Annexures MM-4, MM-5, MM-6 and MM-7
4 Exhibit 1 at Annexure MM-2
5 Exhibit 1 at Annexure MM-4
6 Exhibit 1 at Annexure MM-5
7 Exhibit 1 at Annexure MM-6
8 Exhibit 1 at Annexure MM-7
9 Exhibit 1 at [21]-[24] and Annexure MM-8; C2019/4418
10 Exhibit 1 at [6]
11 Exhibit 1 at [7]-[8]
12 Exhibit 1 at [8]
13 Exhibit 1 at [19] and Annexure MM-6, p.2
14 Exhibit 1 at [11]
15 Exhibit 2 at Attachments A, B, C, D, E and F; Exhibit 1 at [33]-[36] and Annexures MM-9, MM-10, MM-11, MM-12, MM-13, MM-14, MM-15, MM-16
16 Exhibit 1 at [39]
17 Exhibit 1 at Annexure MM-11
18 Exhibit 1 at Annexure MM-12
19 Exhibit 1 at Annexure MM-13
20 Exhibit 1 at Annexure MM-14
21 Exhibit 1 at Annexure MM-15
22 Exhibit 1 at Annexure MM-16
23 Exhibit 1 at [40]-[42]; C2019/5326
24 Exhibit 1 at [29]
25 Exhibit 1 at [37]
26 Exhibit 1 at [38] and Annexures MM-15
27 Exhibit 1 at [26]-[28]
28 Respondent’s outline of submissions at [4] at [6(b)]
29 Respondent’s outline of submissions filed 2 October 2019 at [6(c)]
30 NTEU Response to Deakin Submissions filed 9 October 2019 at [i]-[k]
31 NTEU Submission filed 17 September 2019, p.2 at [f]-[h]
32 NTEU Response to Deakin Submissions at [r]; Transcript of proceedings at PN176
33 NTEU Submission, p.2 at [j]-[n]
34 Respondent’s outline of submissions at [6(d)]
35 Exhibit 1 at [49]-[50]
36 Respondent’s outline of submissions at [32]
37 Transcript of proceedings at PN104 and PN116
38 [2014] FWCFB 7447 at [19]-[41]
39 [2017] FWCFB 3005 at [114]
40 Respondent’s outline of submissions at [21]-[24]
41 NTEU Response to Deakin Submissions at [e]
42 NTEU Response to Deakin Submissions at [e]-[g]
43 Transcript of proceedings at PN111-PN112
44 Transcript of proceedings at PN120
45 AE424763 at clause 58.2
46 Ibid at clause 58.3 (g)
47 (1994) 36 NSWLR 290 at 304
48 [2001] NSWCA 221
49 (1998) 44 NSWLR 103
50 [1970] AC 583
51 Ibid at 603
0
4
0