National Tertiary Education Industry Union v Flinders University of South Australia

[2025] FWCFB 62

[2025] FWCFB 62

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

National Tertiary Education Industry Union
v

Flinders University of South Australia

(C2024/4915)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT DEAN
DEPUTY PRESIDENT WRIGHT SYDNEY, 25 MARCH 2024

Appeal against decision [2024] FWC 1713 of Commissioner Thornton at Adelaide on 1 July 2024 in matter C2023/6485  – Interpretation of enterprise agreement applying to academic staff at a university – Whether academics had been allocated excessive workloads in contravention of enterprise agreement – Use of academic workload model to develop Workload Allocation Units (WAUs) – Where academics allocated WAUs in excess of a full-time load – Whether allocation of additional WAUs demonstrated excessive hours of work – What, if any, remedy able to be awarded if excessive workload allocated to the academics – Permission to appeal granted – Appeal allowed.

Introduction

1. The NTEU seeks permission to appeal and to appeal from a decision of Commissioner Thornton made on 1 July 2024.[1] The decision concerns the relationship between workloads and working hours for academics working at Flinders University of South Australia (the University). The dispute demonstrates the existence of a fundamental disagreement between the National Tertiary Education Union (the NTEU) and the University as to the manner in which the hours of work and workloads of academic employees are regulated by the Flinders University Enterprise Agreement 2023-2026 (the Agreement) and raises important questions about the management of academic workloads.

1. The proceedings arose from a dispute lodged by the NTEU under the Agreement in accordance with the dispute settlement procedure in clause 16. The dispute arose from a change management process being introduced with respect to staff in Continuing Professional Education of the College of Education, Psychology and Social Work. One of the outstanding issues with respect to the College of Education, Psychology and Social Work concerned academic workloads. In short, the NTEU contended that a number of academics had been and were being allocated excessive workloads causing them to work excessive hours. Three academics were identified in the application, namely, Dr Grace Skrzpiec, Dr Mirella Wyra and Dr Bev Rogers.

1. The NTEU contended that the manner and volume of work allocated to Dr Skrzpiec, Dr Wyra and Dr Rogers involved a failure by the University to correctly apply the hours of work and academic workload provisions of the Agreement. The NTEU asked the Commission to arbitrate the dispute and proposed a number of questions which it asked the Commission to resolve in arbitration of the dispute. The University did not agree that the questions proposed by the NTEU were appropriate and proposed an alternative set of questions which it said should be determined in arbitration of the dispute.

1. In addition, the NTEU sought that the Commission order a remedy to compensate the academics for the excessive hours worked by them during 2022 and 2023. The nature of the remedy sought was described as “time compensation”. In a practical sense, the NTEU proposed that the employment of the three academics be extended without there being a requirement for them to perform work. The intention was that the academics have a period of employment on pay without performing work which would act as compensation for the excessive workloads they have been required to perform. The University submits that the Agreement does not provide for overtime, or any compensation for hours worked in excess of the maximum and argues that any award of such a remedy would exceed the powers of the Commission.

1. It is appropriate to note at the outset that the roles performed by Dr Wyra, Dr Skrzypiec and Dr Rogers were made redundant some time in 2023. Seven academic roles in total from Continuing Professional Education of the College of Education, Psychology and Social Work were made redundant including those performed by the three academics. By agreement between the parties, the employment of Dr Wyra, Dr Skrzypiec and Dr Rogers was continued until the conclusion of the hearing before the Commissioner. The employment of each came to an end on the final day of the hearing. That fact may have consequences for what remedy, if any, could potentially have been ordered in arbitration of the dispute.

1. The parties presented different questions which each said should be answered by the Commission in the arbitration of the dispute. We will return to those questions below. With respect to the parties, the questions they put forward tended to distract attention from the true dispute and failed to address themselves to the anterior questions which necessarily arose with respect to the construction of the Agreement. In particular, the case presented by the NTEU appears to have been directed at the hours worked by the academics rather than workload allocation. The nature and basis of the remedy sought by the NTEU was also unclear and, on one view, demanded that the Commissioner decide the matter on the spot.

1. The Full Bench has considerable sympathy for the Commissioner given the manner in which the dispute was presented by the parties. This is a further example of the importance of industrial parties carefully considering whether questions posed to the Commission in dispute proceedings actually address the substance of the dispute between the parties and the caution the Commission must exercise when deciding whether to accept the questions posed by the parties in arbitration of a dispute arising under an enterprise agreement.[2] There is, nonetheless, at the heart of the dispute an important question as to the interpretation and application of the workload provisions contained in clause 67 of the Agreement.

1. For the reasons that follow, it is appropriate for the Full Bench to endeavour to resolve the dispute as to the interpretation and application of the workload provisions of the Agreement. It is not industrially sensible, or useful for the parties, to decline to address the question which is in dispute by reason of the manner in which the matter was conducted. With respect to the Commissioner, we have reached a somewhat different conclusion as to the proper interpretation of clause 67 of the Agreement. In light of the manner in which the matter was conducted at first instance, the appeal will be listed for further hearing before the Full Bench to hear submissions as to how the dispute ought now be resolved.

The Agreement

1. The Agreement is expressed to apply to all staff employed by the University with the exception of certain executive positions and staff appointed to management positions with a salary above a specified threshold.[3] The structure of the Agreement is as follows. Section A of the Agreement contains conditions which apply to all staff covered by the Agreement, Section B contains conditions which apply specifically to what are known as “professional staff” and Section C contains conditions which apply to “academic staff”.

1. The present dispute concerns academic staff. However, it is relevant to record the manner in which the subject of hours of work is dealt with for professional staff and academic staff. For professional staff, provision is made for the ordinary hours of work for full-time staff members and for a specified span within which ordinary hours are to be worked.[4] Professional staff are generally entitled to be paid overtime where the staff member is directed to work outside the nominated span of hours or at weekends or on public holidays.[5] For professional staff, additional hours worked in excess of the ordinary agreed daily hours of the employee but within the nominated span of hours are dealt with either under a flexible work arrangement or by additional payment at the staff member’s ordinary rate of pay.[6]

1. The subject of the hours of work for academic staff is dealt with differently. That is, as a matter of common knowledge, unsurprising. Academic work is frequently demanding. It is also, to a significant degree, self-directed and autonomous. The allocation of face-to-face teaching may be of definite timing and duration. However, other work required of academic staff is of a different nature and not naturally amenable to strict prescription of daily or weekly hours of work. This is likely to include work involving preparation, research, supervision, administrative duties, professional development and community engagement. It is understandable if the University, academic staff and their representatives did not regard that type of work as appropriate to be the subject of the same provisions as other staff.

1. The only provision of the Agreement dealing with the hours of work for academic staff is clause 67, although it has no less than 28 subclauses. The clause seeks to regulate the workload of academic staff by utilising workload models, rather than by setting daily or weekly hours of work or by setting a span of hours within which ordinary hours are to be performed. The relevant parts of clause 67 of the Agreement are as follows:

67 ACADEMIC WORKLOADS

67.1 [General principles] The University and its staff recognise the importance of a balance between working life and personal commitments. Allocation of individual workload will be consistent with equal opportunity legislation.

67.2 Workload models will be developed by the Deans (People and Resources), in collaboration with academic staff and the College leadership team, using an active, consultative and transparent process. Such a process will also apply where major changes to current or future models are proposed or necessitated for compliance with the terms of this Agreement. As part of the process all major activities undertaken by staff will be identified for inclusion. The resultant workload models will inform workload allocation in each College/portfolio/discipline.

67.3 Consultation and collaboration provide the means and opportunity for staff to provide feedback on the workload model. Deans (People and Resources) or equivalent will facilitate input or feedback from relevant academic staff. The employer will provide an overview of the feedback received and how it has influenced the final model. Collaboration does not require unanimity of views.

67.4 Prior to implementation, workload models will be reviewed by the relevant senior leadership team of the College for consistency with the terms of this Agreement.

67.5 The University will establish workload models that use clear and accessible language. The University will provide staff with workload information and allocations in a timely manner by, where possible, providing provisional workload allocations for the coming year, with opportunity for a staff member and their manager to meet to discuss the allocation before it is finalised.

67.6 If, during the life of this Agreement, the average workload increases for a particular College/portfolio/discipline, the Dean (People and Resources), in consultation with the Vice- President and Executive Dean, will:

a) analyse the reasons for the increase in workload; and
b) implement suitable amelioration strategies consistent with the University’s commitment to quality in teaching and research.

67.7 The University is committed throughout the term of this Agreement, as part of its ongoing management strategies, to investigating and devising strategies that ensure safe and reasonable workloads. Any resulting initiatives will seek to support and enhance the University’s commitment to quality in teaching and research.

67.8 The model is based on a combination of basic workload components dependent on the nature of the academic position:

a) Research and Creative Activity,
b) Teaching, and
c) University Service and Leadership (including administration and professional and community engagement).

An academic staff member’s workload will comprise an appropriate mix of some or all of these components, taking account of their academic positions.

67.9 Workload relative weightings for these components will take account of the needs and priorities of each College/discipline/portfolio.

67.10 Adequate scholarship time will be appropriately accommodated under the basic components of workload models taking into account the staff member’s academic position and role.

Research

67.11 For Balanced teaching/research and Research-only appointments, the workload model will provide reasonable and sufficient opportunity for research and/or creative activity. Workload allocations for this component of workload will have regard to the diversity of academic roles, the University’s strategic priorities and the College/portfolio/discipline’s operational requirements. Workload models will include reasonable opportunity for early career balanced teaching/research staff to establish both their teaching and research profiles.

67.12 A staff member’s research and creative activity outcomes will be assessed based on relevant contribution to their field of research. Such contributions may include but are not limited to: refereed publications; non-traditional or creative outputs; books, book chapters or edited books; peer-reviewed conference publications; research funding; higher degree research completions; other recognised measures of impact and engagement.

67.13 An agreed research plan will be developed between the staff member and their academic supervisor. The plan will be cognisant of different contributions to fields of research and an individual’s performance relative to opportunity. Research plans will be reasonable and appropriate for the discipline area, level of academic appointment and position. The research workload allocation will provide sufficient time to reasonably carry out the activities detailed in the agreed research plan.

67.14 Where a staff member and their supervisor cannot agree a suitable research plan, the matter will be referred to the Dean (People and Resources) or equivalent in the first instance. If the matter is not resolved following consultation with the Dean (People and Resources), the staff member may refer the matter to the Vice- President and Executive Dean.

Teaching

67.15 Workload models will provide measures for teaching and teaching related activities that are commensurate with the time reasonably required to do the work.

67.16 As teaching activities may vary across Colleges/portfolios/disciplines, the aggregated measure of activities may encompass but are not limited to:

a. Preparation and development of teaching materials for all modes of delivery;
b. Topic creation and/or significant redevelopment;
c. Delivery of teaching materials in all modes for undergraduate, honours and postgraduate coursework programs;
d. Supervision of undergraduate, honours and postgraduate coursework projects;
e. Preparing, marking and moderation of student assessment;
f. Student consultation related to learning;
g. Work-integrated learning (WIL) supervision.

Service and Leadership

67.17 All academic staff will be provided with sufficient service/leadership time allocations. This includes, but is not limited to, time for administrative tasks, and professional development. Where there are required tasks (such as accreditation, program coordination and leadership roles), an explicit and reasonable service/leadership workload allocation above the base allocation provided in the workload model will be made. Where an activity is discretionary but brings benefit to the University, a workload allocation above the base will be a matter of negotiation between the staff member and supervisor or Dean People and Resources but will not be unreasonably withheld.

HDR Supervision

67.18 HDR supervision workload allocation will be made according to the number of students supervised in the current year on the basis of a reasonable workload allocation for the period of the degree (not longer if the student takes longer to complete). Workload allocations for Masters Coursework and Honours Research supervision will be explicitly accounted for in non-HDR supervision.

General

67.19 Annual hours of work for a full-time academic are 1725, based on a nominal 37.5 hour working week. Individual workload allocation will be such that a full-time academic is able to undertake their workload in 1725 hours per year (this figure incorporates an adjustment for four (4) weeks’ annual leave and ten (10) public holidays).

67.20 Workload allocations will be sufficient to enable a staff member to fulfil their related responsibilities consistent with Clause 67.19.

…

67.23 In determining each annual workload, consideration will be given to individuals’ workloads in the previous year and possibly future years.

67.24 The target workload expectation of an academic staff member in any given year will be reduced on a pro rata basis to take account of approved periods of leave taken in that year, in addition to the standard four weeks annual recreation leave. Where a staff member reduces their work fraction, workload will be appropriately adjusted.

…

Resolving Workload Allocation Concerns

67.27 Where a staff member feels aggrieved about the application of the workload allocation model in respect of their own workload, and these concerns have not been resolved in discussions with their supervisor, the staff member will raise their concern with the Dean (People and Resources) or equivalent in the first instance.

67.28 If the matter is not resolved following consultation with the Dean (People and Resources), the staff member may refer the matter to the Vice-President and Executive Dean. If the matter is not resolved at the Vice-President and Executive Dean level, the staff member may pursue the matter via another relevant jurisdiction.

1. As we have observed, central to the operation of clause 67 of the Agreement is the development and implementation of workload models. Workload models feature in the clause in five ways. First, clause 67.2 requires that workload models “will be developed by the Deans (People and Resources) in collaboration with academic staff and the College leadership team”. Clause 67.2 goes on to dictate that “[t]he resultant workload models will inform workload allocation in each College/portfolio/discipline”. As such, the clause requires that workload models will be developed and that those workload models will be used to “inform” workload allocation.

1. Second, clause 67 provides for a consultative process for the development and adjustment of workload models. Clause 67.3 provides that there must be a process of consultation and collaboration permitting staff to have an opportunity to provide feedback on the workload model, clause 67.4 requires that workload models be reviewed by the relevant senior leadership team and clause 67.5 requires that staff be provided with workload information and allocations in a timely manner. Clauses 67.6 and 67.7 provide for analysis and review of the operation of the workload model during the life of the Agreement and the implementation of amelioration strategies if workloads increase.

1. Third, clause 67.8 sets out the basic workload components on which the workload model will be based. Clauses 67.11, 67.15, 67.17 and 67.18 then require that the workload model will provide reasonable and sufficient opportunity for, respectively, research and creative activity, teaching and teaching related activities, service/leadership time allocations and HDR supervision and provides descriptions of or sets out a process for determining the allocations in each respect. The apparent purpose of those provisions is to ensure that the workload model makes appropriate provision for the different types of activities in which academic staff are expected to be involved.

1. Fourth, the key provision for the purposes of the present dispute is clause 67.19 which provides that the annual hours for a full-time academic are 1,725 which is based on a nominal 37.5 working hours per week. The second sentence of clause 6.19 is significant and provides that “[i]ndividual workload allocation will be such that a full-time academic is able to undertake their workload in 1725 hours per year”. Clauses 67.20 to 67.22 set out other parameters on workload allocation, including that workload allocations will engage staff to fulfil their related responsibilities, will be consistently applied across academic levels and, although individual allocations may vary, approximately the same overall total workload will apply across each College, portfolio and discipline. Clauses 67.23 and 67.24 provides for consideration to be given to the previous and future workloads in determining each annual workload and for the “target workload” of a staff member to be reduced on account of periods of approved leave.

1. Finally, clauses 67.27 and 67.28 provide a mechanism for resolving concerns about workload allocations. In short, where a staff member feels aggrieved about the application of the workload allocation model, and the concerns are not resolved with their supervisor, the staff member may raise the concern with the Dean (People and Resources) or equivalent and, if necessary, the Vice-President or Executive Dean. If the concerns are still not resolved, the staff member “may pursue the matter via another relevant jurisdiction”.

1. The University developed workload models over time as contemplated by clause 67 of the Agreement. The evidence suggests that the current workload model was developed by Professor Ian Menz from 2013 initially to be used in the School of Biology. The operation of the workload model is described in a number of places in the evidence, including in a publication entitled the Workload Equalisation Model Guide 2023 for the College of Education, Psychology and Social Work.

1. In summary terms, the workload model is a unit-based framework which uses what are referred to as Workload Allocation Units (or WAUs) to govern the allocation of different types of work and different types of activities to a member of the academic staff. The principles underlying the workload model are described as follows (emphasis added):

1. The College is committed to a model that provides consistency, equity and transparency within workload equalisation principles and supports the College and University’s strategic aims and values.
2. The Model is a non-granular, units-based framework using key indicators to determine and allocate academic workloads in each of the relevant academic activities. Importantly, the Model load-based, not activity-based. The Model does not measure all activities in an itemised manner.
3. A full-time academic staff member’s workload comprises 30 Workload Allocation Units (WAUs), pro- rated for part time staff.
4. The Model recognises that each academic’s workload may comprise a different, yet equally respected and indispensable mix of activities, of two or more of the three potential areas identified in the Academic Profiles: (i) Teaching; (ii) Research and Creative Activity; and (iii) Service and Leadership. A fourth category of “Other” within the Model allows for leave.
5. Where practical, the College will adopt a standard approach, but in consultation and with agreement, the Dean (People & Resources) can apply judgement and flexibility to suit the needs of the College and reflect agreed exceptions.
6. Workloads will be set annually, reflecting available data and point in time activity. If significant variations are required, staff will work with the Dean (People & Resources) to identify and agree on modifications. The Dean (People & Resources) is responsible for final approval of, and adjustment to, individual staff workload allocations.
7. Academics will be provided with details of their individual workload. In addition, workload across the College will be transparent to all CEPSW staff.
8. The APR process and Workloads are closely related and, where possible, will be linked to ensure consistency.
9. The Model does not apply to hourly paid or casual academic staff.
10. College Workload Principles will be reviewed annually in collaboration with the CEPSW Workloads Consultation Group and as required, the Principles and Workload Equalisation Model will be updated to reflect the changing needs of the College and University.
11. An agreed on living draft document will be made available to each individual staff member. Data is refreshed daily, and this may impact the living draft document.

1. A key feature of the workload model is that a full-time workload is designated to be 30 WAUs. The composition of the 30 WAUs will include teaching, research and creative activities and service and leadership responsibilities albeit that the mix of activities will vary between academics. The workload model is described as being aggregated and calculated by the University’s Workload Management System (WMS) drawing on various sources of data, including payroll, research income and publications, syllabus timetabling, the Student Management System and Flinders Business Analytics.

1. The Workload Equalisation Model Guide describes the attribution of 30 WAUs as a full-time workload as follows:

The Model represents an academic staff member’s full-time equivalent (FTE) workload as 30 Workload Allocation Units (WAU). WAU calculations consider the FTE ratio of each staff. Individual workload allocation is based on 46 weeks or 1725 hours per year (FTE). This figure incorporates an adjustment for 4 weeks of annual leave and 10 public holidays, per year.

…

While the College recognises the varied activities and responsibilities of each role and level, the aim is to apportion the full standard 30 WAU (FTE) for each staff member in scope, to ensure the Model and workload allocations remain manageable, equalised, transparent, and consistent.

1. There is a disagreement between the parties in relation to the relationship between the WAUs and working hours. The Workload Equalisation Model Guide attributes a nominal hours of work value to WAUs at least for some purposes. For the purposes of leave, one WAU is attributed a value of 57.5 hours as follows:

Leave data is obtained from Workday and includes personal/carer’s and compassionate leave, leave without pay, parental leave, and long service leave. The WMS does not include annual leave bookings, as annual leave has already been accounted for in the 1725 hour per year (for a full-time academic). The Model defines an academic’s 1.0 FTE workload is 30 WAUs. Therefore, the value of a single WAU is 57.5 hours for the purposes of leave WAU calculations. Any leave which is not booked but is anticipated, can be entered as an adjustment. Leave calculations are later refreshed and verified through Workday.

1. A dispute had arisen in 2021 at the time of the introduction of the WAU model, including as to relationship between WAUs and working time. Professor Menz responded in correspondence and, among other things, explained:

Following the consultation with staff referred to at 2. above, it was decided to allocate work in larger units of time of 30 units of workload per year (30 WAU = 1725 hours; 1 WAU = 57.5 hours). This number was chosen as it is easily divisible into ratios normally associated with academic workload. For example, a traditional 40% Research, 40% Teaching and 20% Service and Leadership split would equate to a 12:12:6 WAU split.

1. The University contends that the allocation of more than 30 WAUs does not mean an academic has been required to work more than 1,725 hours in a year. The University accepted in its oral submissions that the intention of the designation of 30 WAUs as a full-time workload is that an average academic working reasonably should be able to undertake the work associated with 30 WAUs without exceeding 1,725 hours per annum. The University emphasised, however, that the hours actually worked by a particular academic might vary depending on their individual circumstances, duties and attributes.

1. Dr Chevaun Haseldine gave evidence for the University and also provided a description of the workload model. Dr Haseldine emphasised that the model is “load-based” rather than “activity-based” and that workload is calculated based on output rather than the specific activities being performed by each staff member. In other words, it does not measure all activities in an itemised manner. She indicated that this means the allocation of WAUs is more accurately described as apportioning workload between the different areas of work rather than quantifying every single element of a staff member’s workload on a granular level. Dr Haseldine maintained:

The Workload Model is not hours based – WAUs do not equate to hours of work (except in respect of leave) or an expectation as to hours of work (i.e. a staff member allocated more than 30 WAUs is not expected to work more than the 1,725 hours identified in the Enterprise Agreement).

1. The University accepts that Dr Skrzpiec, Dr Wyra and Dr Rogers had consistently been allocated in excess of 30 WAUs, although there remained some dispute between the parties as to the extent to which that had occurred. The NTEU’s submissions on appeal contained a table setting out the respective positions of the parties in relation to the WAUs allocated to Dr Skrzpiec, Dr Wyra and Dr Rogers in 2022 and 2023 which we do not understand to be disputed. The table is as follows:

1. Dr Skrzpiec, Dr Wyra and Dr Rogers each gave evidence that they had been allocated what they regarded as an excessive workload and had worked excessive hours as a result. The academics were not able to give evidence as to the precise number of hours of work they actually performed or when their hours of work were performed. Dr Skrzpiec, Dr Wyra and Dr Rogers were not required to, and did not, maintain time sheets or any equivalent record of their hours of work. It was, most likely, not practical for them to do so. The evidence of the witnesses called by the University was that they do not manage or look at how many hours a staff member is working.

1. The calculations provided in their witness statements were based on the assumption that one WAU meant that Dr Skrzpiec, Dr Wyra and Dr Rogers worked 57.5 hours. The University points out that the calculations cannot be regarded as reflecting hours of work actually performed by the three academics. Having said that, each of Dr Skrzpiec, Dr Wyra and Dr Rogers gave evidence that they did perform work which they regarded as excessive hours and that the calculation based on the WAU’s allocated to them was a reasonable or even conservative measure of the additional work they each performed. Each indicated, in a manner we do not understand to be disputed by the University, that the workload they experienced had delirious effects on their well-being and mental and physical health. The NTEU was not in a position, however, to prove through records the precise amount of additional work in fact performed by the academics.

The Decision

1. The dispute was arbitrated by Commissioner Thornton. The NTEU and the University both submitted questions that each party considered the Commission should determine in order to deal with the dispute. The parties did not agree on the form of the questions that should be addressed by the Commission. The questions submitted by each party were summarised in the Commissioner’s decision as follows (footnotes omitted):[7]

[35] The NTEU provided the following questions for determination:

1. Does clause 67.19 of the Agreement limit annual hours of work for a full-time
academic employee to 1725 per annum?
2. Does clause 67.19 prohibit an individual full-time academic employee from being allocated a workload of more than 1725 annual hours of work?
3. If the answer to question 2 is yes, where a higher workload has been allocated, what is the appropriate remedy to resolve the dispute?
4. Does the 30 WAU annual workload allocation for full-time employees as set out in the Workload Model made in accordance with clause 67 of the Agreement equate to a full-time workload in accordance with the provisions of clause 67 of the Agreement?

[36] The Respondent responded to the NTEU’s questions, and submitted the following
questions for determination:

1. Whether the Enterprise Agreement limits annual hours of work for a full-time
academic employee to 1725 per annum?
2. If it does – what entitlements arise under the Enterprise Agreement for staff who have been allocated more than 30 WAUs?
3. If it does – whether an allocation of more than 30 WAUs evidences a requirement to work more than 1,725 hours per annum?

1. The Commissioner’s answers to the questions proposed by both parties can be summarised in three findings. First, the Commissioner concluded that the reference to annual hours of work for a full-time academic in clause 67.19, being 1,725 hours, was a “soft rather than a hard limit.”[8] This finding was based on an inference from the words of clause 67.19, in that the provision of annual hours of work at 1,725 hours was not expressed as an absolute and that the hours were based on a “nominal 37.5 hour working week”.[9] The Commissioner determined that the provision of an annual number of hours for a full-time academic was a flexible limit based on a nominal working week, which was not an absolute limit on academic staff working or being allocated a workload involving more than 1,725 hours annually.

1. Second, the Commissioner concluded that the WAU model “does not have a relationship to hours actually worked”.[10] The Commissioner acknowledged that the parties agreed that 30 WAUs is a full-time workload, but found that the allocation of greater that 30 WAUs did not, in itself, give rise to a contravention of the Agreement. The Commissioner’s answer to the fourth question posed by the NTEU was as follows:[11]

No. It is agreed by the parties that the workload model provides that 30 WAUs is a full-time workload. It is also agreed that the Agreement allows for the creation of a workload model. However, a deemed full-time workload under the workload model considers a number of factors relating to workload and does not translate in hours actually worked, such that it has a relationship to hours of work in the Agreement.

The Agreement does not set out the terms of the workload model, create the WAUs or establish a relationship between a WAU and the hours of work of an academic at the University. The workload model that creates WAUs is a policy document created by the University that establishes a framework and sets out a formula used by the University to determine the workload of professional academic staff having regard to a number of factors.

The workload model measured in workload allocation units does not trigger an industrial entitlement. It is a tool to manage and allocate workload across a range of areas of responsibility within the parameters of the industrial entitlement of an academic to work 1725 hours per year.

The industrial entitlements of academic employees at the University relevant in this case is the entitlement to work up to but no more than 1725 hours a year, to have their workloads reviewed if they are aggrieved about the application of the workload model to them and to have their past year’s workload considered when setting the following year’s workload.

1. As a consequence, the Commissioner did not accept that the allocation of more than 30 WAUs provided evidence that an academic staff member had been required to work more than 1,725 hours in a year.

1. Third, the Commissioner concluded that the Agreement provided remedies “to address concerns about overwork”.[12] Whilst the parties agreed that there is no provision for overtime, the NTEU argued that, if the Commissioner accepted that the academics had worked hours in excess of the annual hours of work, they should be compensated for that work. The Commissioner found that the Agreement provided for the remedies that are available to address workload concerns through a process to escalate the employee’s concerns through discussions with various levels of University management in clauses 67.27 and 67.28 and through consideration of an “individual’s workloads in the previous year and possibly future years” when determining an employee’s workload on an annual basis in accordance with clause 67.23. The Commissioner accepted the submission of the University that to order a remedy to compensate the academics for any extra hours worked would be inconsistent with the Agreement and infringe s 739(5) of the Act.[13]

Grounds of Appeal

1. The written submissions filed by the NTEU describe three grounds of appeal. First, that the Commissioner erred in interpreting the Agreement with respect to the first, second and fourth questions posed by the NTEU at first instance. The NTEU argues that the interpretation of the annual hours in clause 67.19 as a “soft limit” is incorrect in that it is inconsistent with clause 67.20 and with the significance of the provision of annual hours in clause 67 generally. This is particularly so in circumstances where both parties were agreed that clause 67.19 limited the annual hours of work for a full-time academic to 1,725 hours per year. Additionally, the NTEU submits that the decision is attended by error in the Commissioner’s finding that a WAU does not have a relationship to actual hours worked. The NTEU maintains that WAUs must relate to hours worked or the model has no work to do.

1. The second ground of appeal advanced by the NTEU is that the Commissioner erred in declining to make a finding in relation to whether the hours worked by Dr Skrzpiec, Dr Wyra and Dr Rogers were in excess of 1,725 hours per annum. The NTEU submits that the conclusion of the Commissioner that “there is no evidence on which I can rely to determine the total hours worked and when they worked”,[14] did not justify declining to make a finding at all that any excess hours had been worked. The NTEU submits that the Commissioner’s approach was based on the erroneous assumption that WAUs have no relationship to time worked and insists that the number of WAUs allocated to the academics “provides a rational basis to calculate the extra hours more likely than not to have been worked”.

1. The third ground of appeal is that the Commissioner erred in finding that the Commission was precluded from providing any remedy or relief due to the operation of s 739(5) of the Act. It submits that the Commissioner erred in finding that clauses 67.23, 67.27 and 67.28 provide the only mechanism available under the Agreement to address a concern about workload allocations. It says that the remedy sought by the NTEU at first instance provided an available mechanism to adjust prospective workloads by taking into account previous allocations and that this was a remedy contemplated at least by clause 67.23 of the Agreement.

1. The NTEU submits that permission to appeal should be granted, the appeal should be allowed and the decision of the Commissioner quashed. It suggests that, if the Full Bench is persuaded that orders compensating Dr Skrzpiec, Dr Wyra and Dr Rogers based on their WAU allocations could be made, the parties should be permitted to confer in relation to the relief that should be granted prior to any further determination being made.

Permission to Appeal

1. Ordinarily, a person aggrieved by a decision of the Commission may appeal only with permission under s 604 of the Act. However, when dealing with a dispute pursuant to a dispute settlement procedure in an enterprise agreement, the Commission acts as a private arbitrator. The nature and extent of the function of the Commission as an arbitrator of a dispute arising under an enterprise agreement is determined by the terms of the agreement itself, which also determines the availability and nature of an appeal from a decision made in arbitration of the dispute at first instance. The parties may agree that there will be a right of appeal or remove or modify the requirements ordinarily applicable to an appeal under s 604 of the Act, including the need for permission to appeal to be obtained.[15]

1. The Agreement contains a dispute settlement term in clause 16 which expressly provides for the referral of a dispute to the Commission in clause 16.8 and contemplates an appeal to the Full Bench in clause 16.8.2. The clause is set out as follows:

16.8 [Referral of dispute to the Fair Work Commission] Should the dispute not be resolved by the processes referred to in 16.3 to 16.6, or in exceptional circumstances, the matter may be referred by either party to the dispute to Fair Work Commission (FWC) for resolution.

16.8.1 FWC may deal with the dispute in two stages:

(i) FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(ii) if FWC is unable to resolve the dispute at the first stage, FWC may then arbitrate the dispute and make a determination that is binding on the parties. If FWC arbitrates the dispute, it may also use the powers available to it under the Fair Work Act.

16.8.2 Subject to the University or the staff member or Union exercising a right of appeal against the decision of the Full Bench of the FWC in accordance with the requirements of the Fair Work Act, a decision of the FWC is binding on the parties to the dispute.

16.8.3 Subject to the University or staff member or Union exercising a right of appeal or review against the decision to any other Court where jurisdiction is granted, a decision of the Full Bench of the FWC is binding on the parties to the dispute

1. The reference in clause 16.8.2 to a party exercising “a right of appeal against the decision of the Full Bench of the FWC” is evidently a typographical error and should be a reference to an appeal against the decision made in accordance with clause 16.8.1(ii) to the Full Bench of the Commission. The clause would be nonsensical if read literally as contemplating an appeal from a decision of the Full Bench in accordance with the Act. The Act makes no provision for an appeal from a decision of a Full Bench. The only relief available with respect to a decision of the Full Bench is by way of judicial review under s 39B of the Judiciary Act 1903 (Cth) as contemplated by s 563(b) of the Act. A court or tribunal is entitled to correct obvious mistakes in a document in the process of construction by supplying, omitting or correcting words to avoid absurdity or inconsistency.[16]

1. Clause 16.8.1(ii) provides that the Commission may arbitrate a dispute under the Agreement and clause 16.8.2 provides for an appeal from that initial arbitration to the Full Bench “in accordance with the requirements of the Fair Work Act”. Dispute settlement provisions in enterprise agreements conferring “a right of appeal” have generally been construed as creating an independent right of appeal for which permission to appeal is not required.[17] In clause 16.8.2, the reference to a party “exercising a right of appeal” must be read in conjunction with that later phrase to mean the qualified right of appeal afforded by s 604 of the Act, being a right qualified by the granting of permission.[18] Both parties accept that permission to appeal is required and are correct to do so.

1. The Full Bench must grant permission to appeal if it is in the public interest pursuant to s 604(2) of the Act and otherwise retains a broad discretion in s 604(1). As is very often quoted, the Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; (2010) 197 IR 266 set out some circumstances which may attract the public interest as being “where a matter raises issues of importance and general application…”.[19] We are satisfied permission to appeal should be granted on the basis that the decision is of significant importance to academic staff employed by the University and raises issues of general application in relation to the Commission’s jurisdiction in dealing with a dispute under s 739 of the Act. We also note that the University did not oppose permission to appeal being granted on the basis that it accepted there were errors in the construction of the Agreement adopted by the Commissioner.

Consideration

Construction of the Agreement

1. The first ground of appeal raises a number of questions concerning the proper construction of the Agreement, particularly clause 67, which essentially correspond with the first, second and fourth questions posed by the NTEU at first instance and the first and third questions posed by the University. The second ground of appeal concerns the findings it is said the Commissioner should have made in relation to the hours of work performed, or workload allocated to, Dr Skrzpiec, Dr Wyra and Dr Rogers. The third ground of appeal also concerns a question of construction, namely, what remedy (if any) is available in the event that a member of the academic staff is allocated a workload, or undertakes hours of work, in excess of that permitted by the Agreement.

1. This is a case in which, with respect to the parties, the task of the Commissioner was complicated, rather than simplified, by the presentation of abstract questions which it was suggested needed to be resolved in arbitration of the dispute. It appears to us that there were essentially two issues presented by the dispute which can be framed as follows:

(a)First, what restrictions are placed on the workload allocation, or hours of work, of academic staff by clause 67 of the Agreement and whether the University had allocated work to Dr Skrzpiec, Dr Wyra and Dr Rogers which exceeded that permissible under the Agreement?

(b)Second, if the workload allocated to Dr Skrzpiec, Dr Wyra and Dr Rogers exceeded that contemplated or authorised by clause 67 of the Agreement, what (if any) remedy is available beyond simply a determination that the University had breached the requirements of the Agreement?

1. No detailed submissions were made on the appeal in relation to the proper approach to the construction of an enterprise agreement. The principles to be applied are well-known. At its heart, the resolution of a question of construction turns upon the language of the instrument, understood in light of its industrial context and purpose.[20] It is appropriate, however, to emphasise that the industrial context and purpose of an industrial agreement, or a term of such an agreement, is likely to be important. The High Court remarked on the significance of the industrial context in which an enterprise agreement is made in Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495. The Court said (at [17]):[21]

To the extent of any inconsistency, the Enterprise Agreement prevails over a law of a State or Territory, which includes the provisions of the Public Sector Ethics Act applying the Code of Conduct. But neither party asserted any such inconsistency at any stage in these proceedings. Both parties sought to resolve any tension between the Enterprise Agreement and the Code of Conduct by interpretation of the Enterprise Agreement itself, particularly cl 14. In that process of interpretation, an important matter of context is the industrial nature of the instrument. Industrial instruments are not always drafted carefully by lawyers or professional drafters, and hence the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning if the context so suggests.

1. Although the approach to construction essentially reflects that adopted by the courts in relation to written instruments generally, in the case of industrial agreements, there is greater potential for the “literal words of a provision … [to] be understood to have a meaning other than their ordinary meaning”. This is consistent with long-standing authority to the effect that it is justifiable to read an award to give effect to its purpose despite mere inconsistencies or infelicities of expression,[22] that meanings which “avoid inconvenience or injustice may reasonably be strained for”[23] and that an agreement must not be construed “in a vacuum divorced from industrial realities”.[24]

1. This is a case in which industrial context is, in our opinion, significant. Clause 67 of the Agreement is far from clear in its drafting. It is, however, a critical provision for the work of academic staff at the University. It appears to us that it has been drafted in an attempt to implement meaningful and effective limits on the workload of academic staff in the context of the inherently self-directed and autonomous nature of the academic work to which conventional hours and overtime provisions are not suited. We bear that in mind when we turn to the provisions of the Agreement. Having said that, it is important to remember that the task remains one of interpreting a document. The Commission is not free to give effect to some anteriorly derived notion of what would be fair or just, or to what the Commission might consider to be the preferrable outcome, regardless of what has been written into the instrument.[25]

1. As we have recorded, the first question of construction raised is, in substance, what kind of restriction on the hours of work, or workload, of academic staff is imposed by clause 67 of the Agreement, most critically clause 67.19. The parties agree that the Commissioner was wrong to describe clause 67.19 as imposing a “soft rather than a hard limit” and that, properly construed, clause 67.19 limits the annual hours of work of a full-time academic to 1,725 hours. The parties also agree, by reference to the second question posed by the NTEU at first instance, that the University is prohibited by clause 67.19 from requiring full-time academics to work more than 1,725 hours per annum. It appears the parties also agree, by reference to the fourth question posed by the NTEU at first instance, that 30 WAUs represents the workload of a full-time academic as determined in accordance with the workload model implemented by the University.

1. However, the answers to those questions do not get to the heart of the dispute. That is because the parties disagree as to the consequences of the answers. The NTEU submits that the allocation of more than 30 WAUs to a full-time academic in a year itself contravenes the restrictions on workload allocation imposed by clause 67 of the Agreement either directly or because it should be inferred that, if allocated more than 30 WAUs, an academic will work more than 1,725 hours. The University, on the other hand, submits that the only restriction imposed by clause 67.19 is that it cannot require a full-time academic to work more than 1,725 hours per annum. It says that, because WAUs are not directly related to the hours of work performed by an academic, allocation of more than 30 WAUs to a full-time academic does not prove they have worked, or been required to work, more than 1,725 hours in a year.

1. In our opinion, neither submission is wholly correct. Clause 67 must be read as a whole. The clause is entitled “Academic Workloads” rather than hours of work. No doubt because of the nature of academic work, it addresses workloads not by prescribing daily or weekly hours of work in the manner that is found in many awards or industrial agreements, but by requiring the University to develop and implement workload models. It sets out the process of developing workload models and prescribes the components which must be provided for in a workload model. Importantly, clause 67.2 provides that “[t]he resultant workload models will inform workload allocation in each College/portfolio/discipline”. The use of mandatory language (“will inform”) indicates that the workload model developed in accordance with the process contemplated by clause 67 is required to be used when allocating workloads to academic staff. The workload model is not merely advisory or informative.

1. The clause controls the workload allocated to an academic not by prescribing hours of work, but by endeavouring to ensure the various responsibilities of academics with respect to teaching, research and service and leadership are balanced and achievable within the nominated full-time hours of work through the implementation of a workload model. It may be correct to say, as the parties do, that the University will contravene clause 67.19 if it requires an academic to work more than 1,725 hours per annum. However, that is, in a sense, a non sequitur. The University does not require that an academic work a particular number of hours, and clause 67 does not contemplate that it will. Clause 67 contemplates that the University will allocate an academic a mix of responsibilities with respect to teaching, research and service and leadership in accordance with a workload model which should allow a member of the academic staff to complete their responsibilities within the total hours expected of a full-time staff member.

1. The second sentence of clause 67.19 and clause 67. 20 appear to us to be significant. It will be recalled that they provide that an individual workload allocation will be such that a full-time academic “is able to undertake their workload in 1725 hours per year” and that workload allocations “will be sufficient to enable a staff member to fulfil their related responsibilities consistent with Clause 67.19”. The focus of the clause is on allocating workloads in a manner that should enable a staff member to perform their work within the hours of work of a full-time employee rather than prescribing that a particular number of hours that must be worked, or that no more than a maximum number of hours can be worked. That is consistent with the fact that the Agreement does not provide for overtime, or any additional payment, in the event that a full-time academic works more than 1,725 hours in a year.

1. The hours an academic in fact works to fulfil a particular workload requirement (for example, preparing and teaching a course or undertaking a research project) is likely to vary significantly between individuals and depending on the circumstances of the academic. A new academic who has not taught a course before might be expected to spend significantly more time on preparation than an experienced academic who has taught the course for a number of years. The experienced academic might have other responsibilities, such as with respect to administration and professional community engagement, which occupy a substantial amount of that academic’s time. Another academic might, in a particular year, choose to devote a very large amount of time to a research project.

1. Having been allocated an appropriate mix of responsibilities consistent with the workload model, a particular academic might ultimately end up working more or less than 1,725 hours in the year depending on the circumstances and their disposition or proclivities. The University will not, in our opinion, contravene clause 67.19 just because an academic in fact works more than 1,725 hours in a year. The preoccupation of the NTEU, at first instance, on demonstrating that, because of the allocation of WAUs, Dr Skrzpiec, Dr Wyra and Dr Rogers must have worked more than 1,725 hours was misconceived. Even if it were proven that Dr Skrzpiec, Dr Wyra and Dr Rogers worked more than 1,725 hours in a year, it would not establish a contravention of clause 67.19. Furthermore, the University is correct to submit that the allocation of a particular number of WAUs does not, of itself, prove any certain number of hours of work were performed by an academic. Although there is obviously a connection between WAUs and the time expected to be required to perform a particular set of responsibilities, the amount of time required in a particular case is likely to vary.

1. That leaves the question of what clause 67 does require. We have sympathy for the submission of the NTEU that clause 67 must mean something. The issue of academic workloads is of importance to the parties and to the academic workforce and considerable attention is paid to the subject in clause 67 of the Agreement. It would be surprising if the parties devoted such effort to crafting a clause to address this important issue, but have produced a provision which is, effectively at least, incapable of contravention. We do not think that is likely to have been the intention of the drafters of the Agreement, objectively ascertained. The industrial context and purpose of the provisions is important to its construction in this case, although we do not believe there is any need to strain the meaning of the words of the Agreement to resolve the questions presented.

1. In our opinion, by providing that the individual workload allocation of an academic “will be such that a full-time academic is able to undertake their workload in 1725 hours per year”, clause 67.19 requires that workloads be allocated in accordance with the workload model developed in accordance with clause 67. Although clause 67.19 does not expressly refer to workload models, in the context of clause 67 that is the mechanism by which the workload able to be undertaken in 1,725 hours is to be set. If the University allocates workloads to individual academics in a manner that, in accordance with the applicable workload model, could not reasonably be undertaken within the allocation of 1,725 hours in a year then, in our opinion, a contravention of clause 67.19 will occur.

1. On appeal, the NTEU’s submissions evolved from the concentration on hours which it pressed at first instance. In its oral submissions, the NTEU contended that the University cannot allocate a workload in excess of 30 WAUs to a full-time staff member and, if it does so, it contravenes the Agreement. That is because 30 WAUs represents a full-time workload in accordance with the workload model implemented by the University under clause 67. That submission, in our opinion, goes too far. Clause 67 contemplates that the workload allocated to an academic may vary from year to year and between individual academics. Most notably, clause 67.22 contemplates that the distribution of total workload across the academic areas will vary between individuals, clause 67.23 provides that consideration will be given to individuals’ workloads in the previous year and possibly future years in determining each annual workload and clause 67.24 refers to the “target workload” expected of an academic staff member.

1. The simple fact that a full-time academic staff member has been allocated more than 30 WAUs in one year might not necessarily mean the individual’s workload allocation is not such that the academic is not able to undertake their workload in 1,725 hours in the year for the purposes of clause 67.19. However, if an academic staff member is consistently allocated in excess of the full-time workload determined in accordance with the relevant workload model adopted pursuant to clause 67 from time to time, that conclusion may be open. It is no answer to that provision to say, as the University does, that WAUs do not directly translate to time actually worked by a particular academic. As the University accepted in its oral submissions, WAUs are the mechanism used to determine the type and quantity of duties which can reasonably be expected to be undertaken within the hours of work designated for a full-time academic (or pro rata hours for a part-time academic).

1. It follows that, with respect, the Commissioner erred in the construction of clause 67 of the Agreement. In particular, the Commissioner was wrong in the answer she gave to question four posed by the NTEU.[26] The workload model developed under clause 67 is not merely a policy document which does not trigger any industrial entitlement. Clause 67.2 requires that the workload model “will inform” workload allocations and provides the mechanism by which to assess whether academic staff have been allocated a workload that they are able to undertake in 1,725 hours per year for the purposes of clause 67.19. It is also not accurate to describe the only industrial entitlement of academic employees as being “to work up to but no more than 1,725 hours a year”. The entitlement of an academic is to be allocated a workload that should be able to be undertaken within 1,725 hours per year. A particular academic may work more or less than1,725 hours in a particular year for a range of reasons without any contravention of the Agreement having occurred. However, an academic should not be allocated a workload that cannot reasonably be undertaken within 1,725 hours per year.

1. It is not appropriate for the Full Bench, at this stage at least, to determine whether the workloads allocated to Dr Skrzpiec, Dr Wyra and Dr Rogers complied with the requirements of clause 67 of the Agreement as we have construed it. The evidence indicates that Dr Skrzpiec, Dr Wyra and Dr Rogers were each allocated in excess of 30 WAUs over successive years albeit there is dispute as to the extent to which that occurred. Those facts may well give rise to a finding that the University has failed to comply with the requirements of clause 67, particularly clause 67.19. However, we are conscious that the dispute was not argued on that basis before the Commissioner. Although the NTEU made that submission, it also concentrated on the proposition that the contravention involved the academics working more than 1,725 hours per year evidenced by the allocation of more than 30 WAUs. In those circumstances, the question of whether the University has failed to comply with its obligations with respect to academic workloads for Dr Skrzpiec, Dr Wyra and Dr Rogers will need to be redetermined on a correct understanding of the operation of clause 67 of the Agreement. The parties should have the opportunity to make further submissions in relation to that question. We will return to the appropriate disposition of the appeal below.

1. Finally, it is unnecessary for the Full Bench to address the second ground of appeal advanced by the NTEU. The effect of that ground was that the Commissioner erred in declining to make a finding that Dr Skrzpiec, Dr Wyra and Dr Rogers worked hours in excess of 1,725 hours per year. Even if the NTEU had established that Dr Skrzpiec, Dr Wyra and Dr Rogers each worked more than 1,725 hours in a year, that would not give rise to any additional entitlement or demonstrate the University has breached its obligations under the Agreement. As we have endeavoured to explain, clause 67 controls the allocation of workloads rather than the number of hours actually worked by academic staff members.

Powers of the Commission in arbitration

1. The second question which arises is, if the workload allocated to Dr Skrzpiec, Dr Wyra and Dr Rogers exceeded that contemplated or authorised by clause 67 of the Agreement, what (if any) remedy was available? That question is the subject of the third ground of appeal identified by the NTEU.

1. At first instance, the NTEU sought a remedy described as “time compensation”. commensurate with the extra hours worked above a full-time workload. The Full Bench understands the reference to “time compensation” as intended to refer to a period of employment with pay but without the obligation to perform work. The University contended that no remedy was available in arbitration of the dispute because the remedy sought by the NTEU was inconsistent with the Agreement for the purposes of s 739(5) of the Act. This was said to be so because the Agreement provides for no additional payment for overtime or additional hours of work and/or because clauses 67.23, 67.27 and 67.28 provide for the only remedies which are available in the event a staff member has workload concerns.

1. It is appropriate to record that s 739 provides:

739  Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

1. It appears that the Commissioner accepted both arguments advanced by the University. In answer to question 4 posed by the NTEU at first instance, the Commissioner said:[27]

Where there is a dispute about workload allocation, including where the workload allocation is likely to cause an employee to work greater than 1725 hours in a year, the only remedies provided for by the Agreement are: 

(a)    a process to escalate the employee’s concerns through discussion with various levels of University management contained in clauses 67.27 and 67.28 of the Agreement; and

(b)    consideration of an “individual’s workloads in the previous year and possibly future years” when determining an employee’s workload on an annual basis, in accordance with clause 67.23.

The Commission is prevented by section 739(5) of the Act from ordering the alternative remedies sought by the NTEU. The Agreement provides a remedy to address concerns about overwork and does not provide for the remedies sought by the NTEU.

1. Earlier in the decision, the Commissioner also concluded that, even if she was satisfied that Dr Skrzpiec, Dr Wyra and Dr Rogers worked in excess of 1,725 hours per annum, there is no entitlement arising from the Agreement that could be awarded as compensation for the hours actually worked.[28] The Commissioner said that it was not permissible to imply a term into the Agreement to compensate for work in excess of 1,725 hours and that to order a remedy to compensate for extra hours worked could be inconsistent with the Agreement for the purposes of s 739(5) of the Act.[29]

1. The role of the Commission in dealing with a dispute pursuant to a dispute settlement procedure of an enterprise agreement does not involve exercising public law functions under the Act. Rather, the Commission is performing a role as a private arbitrator.[30] The Full Bench, in dealing with the application for permission to appeal and, if permission is granted, determining the NTEU’s appeal, is undertaking a task which also forms part of a process of private arbitration.[31] Both at first instance, and on appeal, the powers capable of being exercised by the Commission are limited by the nature of its role as a private arbitrator.

1. There are essentially three sources of the limits that may apply to the powers able to be exercised by the Commission in arbitrating a dispute referred to it under an enterprise agreement:

(a)First, because its powers are derived from the agreement of the parties contained in the enterprise agreement, the powers able to be exercised by the Commission depend on the terms of the agreement itself, most relevantly the disputes clause. That is because of the nature of private arbitration and also because s 739(3) makes plain that, if the term places limits on the powers that may be exercised by the Commission in settling disputes, the Commission must remain within those limits.[32]

(b)Second, the powers of the Commission in arbitrating a dispute are limited by the scope of the dispute referred to the Commission. It is the dispute which has been referred to the Commission for resolution that must be arbitrated, and the Commission will exceed its powers if it deals with matters that did not form part of the dispute.[33] When characterising a dispute, the Commission is not limited to examining the terms of the application before it[34] and has acknowledged that a dispute may evolve in the course of being dealt with by the Commission (although there may be a question as to whether it can extend beyond the dispute that has been subject of the dispute resolution process).[35]

(c)Third, s 739(5) provides that the Commission must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties. Section 739(5) does not alter the character of the arbitration which the Commission undertakes and merely places a limit on the range of arbitrated outcomes available to the Commission.[36] Provided the Commission undertakes its arbitral task by reference to the terms of the industrial instrument, and conforms with the limits of what is required to discharge that arbitral function, then it acts in accordance with what is required under s 739(5).[37]

1. In this matter, clause 16.8.1(ii) of the Agreement provides that the Commission “may then arbitrate the dispute and make a determination that is binding on the parties”. That confers a broad power to resolve a dispute referred to it by arbitration. We did not understand the University to contend that any outcome sought by the NTEU was outside the dispute that had been referred to the Commission. Its submission, which was accepted by the Commissioner, is that the outcomes sought by the NTEU are inconsistent with the Agreement for the purposes of s 739(5).

1. It is convenient to first address the Commissioner’s finding that clause 67.23 and clauses 67.27 and 67.28 provide the sole remedy in the event a member of the academic staff is aggrieved about their workload. We do not agree that those provisions provide the exclusive mechanisms for the resolution of workload disputes in a manner that prevents the Commission, in arbitrating a dispute under clause 16.8, from determining any other remedy. Clause 67.23 does not deal with the resolution of disputes about academic workloads at all. Clause 67.23 concerns the manner in which workloads are to be determined for an individual academic each year and requires that consideration be given to an individual’s workloads in previous and possible future years. On no view does that clause provide a remedy for a dispute about workloads as the Commissioner suggested.

1. Clauses 67.27 and 67.28 appear under the heading “Resolving Workload Allocation Concerns”. Those clauses prescribe an avenue through which a member of the academic staff may pursue concerns in relation to workload allocation through discussions with their supervisor, the Dean (People and Resources) and the Vice-President and Executive Dean. We do not consider the clauses can be construed as providing the exclusive mechanism for resolving those concerns. Clauses 67.27 and 67.28 do not provide for any remedy at all beyond discussion. Furthermore, the final sentence of clause 67.28 make clear that, if discussions at the Vice-President and Executive Dean level are not successful, “the staff member may pursue the matter via another relevant jurisdiction”. The process contemplated by clauses 67.27 and 67.28 are evidently not intended to exclude any other available remedy, including through arbitration of a dispute under clause 16.8.

1. The question of whether other relief is available to the NTEU on redetermination of the dispute that is not inconsistent with the Agreement for the purposes of s 739(5) of the Act is a matter that is difficult to answer. As we have indicated, the relief sought by the NTEU at first instance was “time compensation” for Dr Skrzpiec, Dr Wyra and Dr Rogers by way of deferral of the end date of their employment. It is not necessary for the Full Bench to now consider whether that relief would have been inconsistent with the Agreement. The situation is now that Dr Skrzpiec, Dr Wyra and Dr Rogers have each ceased employment and “time compensation” is no longer conceivable. What remedy is now sought by the NTEU is unclear. The NTEU submitted that the question of remedy would need to be remitted to the Commissioner to resolve factual questions as to the degree to which excessive workload was allocated to the three academics. It also suggested in oral submissions that some form of monetary compensation would not be inconsistent with the Agreement. However, it is not clear what monetary compensation is now sought.

1. The University supports the conclusion of the Commissioner that the determination of any monetary compensation for excessive work would be inconsistent with the Agreement for the purposes of s 739(5). It is not possible for the Full Bench to form a view about that given the uncertainty as to the nature of the remedy now sought by the NTEU. We are not able to conclude that no other remedy is available. We are also conscious that the University submits that the NTEU should not now be permitted to run a case for a different remedy to that pursued at first instance and that the University raised a contention that the provision of any remedy would be inconsistent with the no extra claims commitment in the Agreement.[38] That submission was not determined by the Commissioner.

1. In the circumstances, it will be necessary for there to be further proceedings to revolve these questions in light of the construction of the Agreement adopted by the Full Bench. The options to resolve the further issues which remain to be determined is for the dispute to be remitted to the Commissioner or the Full Bench to hear further submissions for the purpose of redetermining the dispute. We believe the better course is to direct the parties to confer and to list the appeal for a further short hearing before the Full Bench to hear submissions as to the appropriate way forward to resolve the outstanding questions.

Conclusion and disposition

1. For the reasons set out above, the construction of the Agreement adopted by the Commissioner was not correct. Permission to appeal should be granted, the appeal allowed, and the decision of the Commissioner quashed. The appeal will be listed for a further short hearing before the Full Bench to receive submissions on the most convenient course for resolving the dispute going forward.

1. The Full Bench makes the following orders:

(a)Permission to appeal is granted;

(b)The appeal is allowed;

(c)The decision of Commissioner Thornton made on 1 July 2024 in Matter No. C2023/6485 is quashed; and

(d)The appeal proceedings will be listed for a further short hearing at a time convenient to the parties.

VICE PRESIDENT

Appearances:

L Saunders, of counsel, for the Appellant
S Meehan SC, of counsel, for the Respondent instructed by MinterEllison.

Hearing details:

2024.
Sydney.
10 September.

[1] National Tertiary Education Industry Union v Flinders University of South Australia[2024] FWC 1713.

[2] See, for example, Opal Packaging Australia Pty (t/as Opal Fibre Packaging) v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2024] FWCFB 330 at [16].

[3] Flinders University Enterprise Agreement 2023-2026, clause 2.2.

[4] Flinders University Enterprise Agreement 2023-2026, clauses 53.1-53.3.

[5] Flinders University Enterprise Agreement 2023-2026, clauses 52.5-52.6.

[6] Flinders University Enterprise Agreement 2023-2026, clauses 52.5.1 and 52.6.1.

[7] [2024] FWC 1713 at [35]-[36].

[8] [2024] FWC 1713 at [94].

[9] [2024] FWC 1713 at [46].

[10] [2024] FWC 1713 at [95].

[11] [2024] FWC 1713 at [95].

[12] [2024] FWC 1713 at [94].

[13] [2024] FWC 1713 at [78].

[14] [2024] FWC 1713 at [72].

[15] Victoria Police Force v Police Federation of Australia [2009] AIRCFB 146; (2009) 178 IR 275 at [13]; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Silcar Pty Ltd[2011] FWAFB 2555; (2011) 208 IR 33 at [17]; PHI (International) Australia Pty Ltd T/A HNZ Australia Pty Ltd v Nash[2024] FWCFB 396 at [16]-[19].

[16] Fitzgerald v Masters (1956) 95 CLR 420 at 426-427 (Dixon CJ and Fullager J); HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296; (2020) 104 NSLWR 634 at [48]-[53] (Meagher JA and Ball J).

[17] University of Western Sydney v Fletcher [2009] AIRCFB368; (2009) 183 IR 256 at [8]; Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths[2013] FWCFB 2814; (2013) 232 IR 255 at [22]; Vendrig v Ausgrid Pty Ltd[2021] FWCFB 370 at [24]; Ricegrowers Ltd (t/as SunRice, CopRice Feeds and Australian Grain Storage Pty Ltd) v United Workers’ Union [2022] FWCFB 205 at [46]-[47].

[18] See also Ventia Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[2025] FWCFB 20 at [11].

[19] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[20] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J) and [66]-[67] (Kirby J).

[21] Ridd v James Cook University [2021] HCA 32; (2021) 274 CLR 495 at [17] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) by reference to City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57] (French J). See also Hempel (Wattyl) Australia Pty Ltd v United Workers’ Union [2024] FCAFC 98 at [64]-[66] (Rangiah, Snaden and Abraham JJ).

[22] Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84; (2006) 152 FCR 18 at [51]-[52] (Nicholson, Jacobson and Lander JJ).

[23] Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96] (Kirby J); Workpac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ).

[24] Workpac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ).

[25] Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [67] (Kirby J); City of Wanneroo v Holmes (1989) 30 IR 362 at 379 (French J).

[26] [2024] FWC 1713 at [94].

[27] [2024] FWC 1713 at [94].

[28] [2024] FWC 1713 at [72]-[77].

[29] [2024] FWC 1713 at [78].

[30] Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 at [31]-[32]; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 at [32]-[33] (North, Jessup and Reeves JJ); United Firefighters Union of Australia v Fire Rescue Victoria [2025] FCAFC 7 at [26] (Katzmann, Snaden and Shariff JJ).

[31] Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1 at [56]-[58] (Tracey, Wigney and O'Callaghan JJ); United Firefighters’ Union of Australia v Fire Rescue Victoria [2024] FCAFC 84; (2024) 304 FCR 219 at [49] (Colvin, Raper and Dowling JJ).

[32] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 at [29] (North, Jessup and Reeves JJ).

[33] Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112; (2017) 251 FCR 1 at [81] (Tracey, Wigney and O'Callaghan JJ).

[34] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Ltd (2003) 128 IR 101 at [47]; Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union[2024] FWCFB 370; (2024) 333 IR 261 at [47].

[35] R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168 (Murphy J); Re Printing and Kindred Industries Union; Ex parte Vista Paper Products Pty Limited (1993) 48 IR 221 at 233 (Gaudron J); United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2006) 158 IR 1 at [14]-[15]; Qube Ports Pty Ltd v Construction, Forestry and Maritime Employees Union[2024] FWCFB 370; (2024) 333 IR 261 at [48].

[36] Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82; (2016) 244 FCR 178 at [33] (North, Jessup and Reeves JJ).

[37] Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (No 2) [2020] FCA 1694 at [147] (Colvin J); United Firefighters’ Union of Australia v Fire Rescue Victoria [2024] FCAFC 84; (2024) 304 FCR 219 at [18] (Colvin, Raper and Dowling JJ).

[38] Flinders University Enterprise Agreement 2023-2026, clause 4.3.

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