National Tertiary Education Industry Union v Griffith University
[2018] FCCA 3819
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NATIONAL TERTIARY EDUCATION INDUSTRY UNION v GRIFFITH UNIVERSITY | [2018] FCCA 3819 |
| Catchwords: INDUSTRIAL LAW – Commonwealth – Industrial instruments – Certified agreements – Other matters |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 50, 194, 253, 342(1), 346, 347 |
| Cases cited: The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 |
| Applicant: | NATIONAL TERTIARY EDUCATION INDUSTRY UNION |
| Respondent: | GRIFFITH UNIVERSITY |
| File Number: | BRG 791 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 24 March 2016 |
| Date of Last Submission: | 24 March 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hartigan |
| Solicitors for the Applicant: | Maurice Blackburn |
| Counsel for the Respondent: | Mr Murdoch |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
THE COURT DECLARES THAT:
On the proper construction of clause 56.1 of the Griffith University General Staff Enterprise Agreement 2012 – 2016, that:
(a)a meeting with the purpose of reviewing an employee’s performance is a meeting about a matter which may arise in the course of their employment; and
(b)a staff member of the respondent is entitled to have Union representation at such a meeting.
THE COURT ORDERS THAT:
Otherwise, all outstanding applications are dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 791 of 2015
| NATIONAL TERTIARY EDUCATION INDUSTRY UNION |
Applicant
And
| GRIFFITH UNIVERSITY |
Respondent
REASONS FOR JUDGMENT
This case concerns the proper interpretation of clause 56.1 of the Griffith University General Staff Enterprise Agreement 2012 – 2016. That clause provides:
56.1 The University recognises the contribution of effective Union organisation to productive workplace relations and that Unions are legitimate representatives of staff members at the University. A staff member is entitled to have Union representation in relation to any matter which may arise in the course of their employment.
Lynda Ashworth and Ms Silja Leskinen were both members of the applicant Union and employees of the respondent. On 25 May, 2015 both were required to separately attend a meeting with a representative of the respondent for the purpose of conducting a performance review. They attended the meeting with a Union representative. The respondent’s representative objected to that and the meetings were cancelled. They were re-scheduled for 13 August, 2015 but the respondent notified the applicants that it considered that the applicant’s members were not, by reason of clause 56.1 of the Agreement, entitled to Union representation at the meetings. Nonetheless, the respondent permitted the applicants to have a representative from the Union present at each of their meetings on 13 August, 2015.
In these proceedings, the applicant alleges that the respondent contravened clause 56.1 of the Agreement, and thereby of the Fair Work Act 2009 (Cth) by failing to allow Ms Lynda Ashworth and Ms Silja Leskinen union representation at the meeting scheduled for 25 May, 2015 and by threatening to refuse union representation at their performance review meetings rescheduled for 13 August, 2015.
By its amended statement of claim filed on 24 March, 2016 the applicant seeks:
a)a declaration that the respondent has contravened clause 56.1 of the Agreement and s.50 of the Fair Work Act 2009 (Cth);
b)an order for the payment of compensation to Ms Ashworth and Ms Leskinen;
c)an order for the payment of a pecuniary penalty to the applicant; and
d)a declaration that, on the proper construction of clause 56.1 of the Agreement, that:
i)a meeting with the purpose of reviewing an employee’s performance is a meeting about any matter which may arise in the course of the employment; and
ii)a staff member of the respondent is entitled to have union representation at such a meeting.
For the reasons that follow, I have concluded that the respondent did not contravene s.50 of the Fair Work Act as the applicant alleges. However, the applicant is entitled to the declarations that it seeks in relation to the proper construction of clause 56.1 the Agreement.
The contraventions
Ms Ashworth was employed by the respondent in the School of Engineering. She was employed as a School Secretary. She reported to the head of the School of Engineering, Prof Geoff Tansley. In 2014, the respondent had introduced a formal performance review process and Prof Tansley was Ms Leskinen’s supervisor for the purposes of the performance review process.
Ms Ashworth had a performance review meeting scheduled with Prof Tansley at 9:00am on 25 May, 2015.
Ms Leskinen was employed at Griffith University as a School Administrative Officer in 2015. Prof Geoff Tansley, was also Ms Leskinen’s supervisor for the purposes of the performance review process.
Ms Leskinen was given notice of a performance review meeting that was to occur on 25 May, 2015 at 11:00am.
Both Ms Ashworth and Ms Leskinen gave evidence of a number of issues that had troubled them in their dealings with Prof Tansley from soon after Prof Tansley’s commencement as head of the School of Engineering. The precise nature of those issues is not relevant for the purposes of these proceedings but it is clear that there were issues that were of some considerable importance to both Ms Ashworth and Ms Leskinen and they had attempted on a number of occasions to have those issues addressed. They had involved the applicant in attempting to have those issues addressed. Insofar as Ms Ashworth and Ms Leskinen were concerned, however, those issues remained unresolved.
When the performance review meetings for Ms Ashworth and Ms Leskinen were imminent, there was a suggestion by Ms Noelene Rudland, an industrial officer employed by the applicant, that there should be a joint meeting with Ms Ashworth, Ms Leskinen, Ms Graham, HR manager for the respondent and its Nathan campus and Prof Tansley to discuss the outstanding issues. That suggestion, however, was rejected by the respondent and the performance review meetings for Ms Ashworth and Ms Leskinen were to proceed separately on 25 May, 2015 as I have set out above.
Ms Ashworth and Ms Rudland agreed that Ms Rudland would accompany Ms Ashworth to her performance review meeting with Prof Tansley and Ms Graham. Ms Leskinen agreed that she would be accompanied by a delegate from the applicant at her performance review meeting.
However, before the commencement of the meeting between Ms Ashworth and Prof Tansley, the meeting was cancelled. Before the meeting even commenced, Ms Ashworth was told by Ms Graham that the meeting would not be going ahead because she and Prof Tansley considered that it was inappropriate for the union to be present. There was some conversation between Ms Graham and Ms Rudland but ultimately, the meeting did not commence. Neither did Ms Leskinen’s performance review meeting. Both meetings were cancelled.
On 29 July, 2015 both Ms Ashworth and Ms Leskinen received an email directing each of them to go to a further performance review meeting on 13 August, 2015. In part, in each case the letter provided:
The management directive for you to attend the performance review meeting is in accordance with the General Staff Performance Review policy that states all general staff on continuing and fixed term contracts of greater than 12 months are subject to this policy. Further, the policy states that all general staff and their supervisors will meet formally once a year to discuss the staff member’s performance over the previous year and performance objectives and staff development activities for the following year. A copy of the policy is attached for your reference.
Please note, as previously advised that the NTEU has no right of representation at this meeting as a routine annual performance review, this is normal operations of the University processes in accordance with the Agreement.
On 30 July, 2015 Ms Rudland sent a letter to Prof Chang in response to her letters to Ms Ashworth and Ms Leskinen dated 29 July, 2015. In that letter, Ms Rudland asserted that Ms Ashworth and Ms Leskinen had a right to union representation at the meetings notified by Prof Chang’s correspondence. Relevantly, Ms Rudland’s correspondence provided:
… As stated by the two staff members in their correspondence to Professor Henly on 6 July 2015, they do not want to meet with the HoS or any other person without Union representation. In accordance with their needs and entitlements, the two staff members will attend the meetings on 13 August 2015 provided that they have Union representation in accordance with their entitlement under Subclause 56.1.
In order to reduce some of the distress currently being experienced by Silja and Lynda, your acceptance of their entitlement under the Enterprise Agreement and NTEU representation at the meetings on 13 August 2015 is requested by close of business Friday 31 July 2015.
Prof Chang responded on 3 August, 2015. She restated the respondent’s position that clause 56.1 of the Agreement did not entitle Ms Ashworth or Ms Leskinen to union representation at the performance review meetings. However, the letter went on:
Having said the above, right now, my primary concern is for our staff members, Silja and Lynda who appear to being used in this matter as pieces in a game, which must stop as it has to be very distressful for them as to what they should be doing. To this end I am allowing, on a without prejudice basis, for them to bring along a union representative to the planned meetings on the 13 August 2015. Please understand the University still maintains its understanding of representational rights as expressed above and I am only doing this on this one occasion only and it should not be seen as a precedent or as any concession to the view put forward by you in your previous correspondence.
The performance review meetings proceeded on 13 August, 2015.
It is against those facts that the applicant contends that the respondent has not complied with its obligations under subclause 56.1 of the Agreement and has thereby breached s.50 of the Fair Work Act. The allegation is of six contraventions, pleaded as follows:
17. Griffith’s failure to allow Ashworth Union representation for the purpose of her meeting on 25 May 2015 constitutes a contravention of clause 56.1 of the Agreement.
18. Additionally or alternatively, Griffith’s failure to allow Leskinen Union representation for the purpose of her meeting on 25 May 2015 constitutes a contravention of clause 56.1 of the Agreement.
19. Additionally or alternatively, Griffith’s threatened refusal of Ashworth’s Union representation for the purpose of her meeting on 13 August 2015 constitutes a contravention of clause 56.1 of the Agreement.
20. Additionally or alternatively, Griffith’s threatened refusal of Leskinen’s Union representation for the purpose of her meeting on 13 August 2015 constitutes a contravention of clause 56.1 of the Agreement.
21. Additionally or alternatively, in respect of Ashworth, Griffith’s failure to recognise that the Applicant is a legitimate representative of staff members of Griffith constitutes a contravention of clause 56.1 of the Agreement.
22. Additionally or alternatively, in respect of Leskinen, Griffith’s failure to recognise that the Applicant is a legitimate representative of staff members of Griffith constitutes a contravention of clause 56.1 of the Agreement.
The difficulty with the applicant’s case based upon the meetings of 25 May, 2015 is that there were no meetings that took place on 25 May, 2015. The meetings were cancelled before they commenced. Ms Ashworth and Ms Leskinen were not denied representation at those meetings. It is not the case that the respondent insisted on the meetings proceeding but without Ms Ashworth or Ms Leskinen being represented.
Counsel for the applicant submitted that, in the case of Ms Ashworth, if the Court accepted that by attending the meeting at the designated time and asking for it to proceed and being told that it could not proceed in those circumstances, that the meeting commenced but Ms Ashworth was denied the entitlement to be represented before it proceeded further. However, I do not accept that the facts establish that the meeting commenced. It is clear from Ms Ashworth’s evidence that she was told that the meeting was not going to proceed before she met with Prof Tansley or before Ms Rudland met with Prof Tansley. It is not the case that the meeting commenced but then ended because Ms Ashworth insisted upon union representation.
The position is the same with respect to the meeting with Ms Leskinen. Her performance review meeting did not commence on 25 May, 2015.
On the facts, the contraventions that are said to arise from the meeting of 25 May, 2015 are not made out. The respondent did not contravene of the Fair Work Act in the way in which the applicant alleges in these proceedings. There was no meeting at which either Ms Ashworth or Ms Leskinen was denied union representation.
The applicant argues that the respondent’s letter of 29 July, 2015 contravened s.50 of the Fair Work Act because it asserted a position about Ms Ashworth and Ms Leskinen’s entitlement to union representation that the applicant says was incorrect. However, that stated position was not adhered to by the respondent. As the correspondence of 30 July, 2015 makes clear, whilst the respondent did not accept the applicant’s position with respect to subclause 56.1 of the Agreement, it nonetheless permitted Ms Ashworth and Ms Leskinen to be represented at their performance review meetings. It did so with a reservation of its right to press its views about the proper construction of subclause 56.1 but, in my view, that is no contravention of s.50 of the Fair Work Act as contended for by the applicant. These contraventions too, are not made out.
No submissions or argument was addressed to the final two contraventions which are said to arise out of the respondent’s “failure to recognise that the applicant is a legitimate representative of staff members of Griffith”. But the evidence does not establish that there was a failure by the respondent to recognise that the applicant was a legitimate representative of staff members employed by the respondent. In fact, the evidence is to the contrary. The evidence demonstrates that other members of the respondent’s staff, including Ms Graham and Prof Chang engaged with Ms Rudland as a representative of the applicant which, in turn was representing Ms Ashworth and Ms Leskinen. Prof Chang’s correspondence of 30 July, 2015 expressly recognised that the respondent “respects the NTEU and other Unions’ role in representing staff who are members of their respective unions”. The evidence also demonstrates that the respondent, through its Associate Director, Office of Human Resource Management for the respondent, Mr Kenneth Greedy also engaged with the applicant, by its Division Secretary Michael McNally, over this issue.
In my view, whether or not subclause 56.1 operated in the way contended for by the applicant, and irrespective of the arguments of the respondent about whether that subclause is an objectionable term for the purposes of the Fair Work Act, on the facts of the case the contraventions pleaded in paragraphs 21 and 22 of the Amended Statement of Claim are not made out on the evidence.
Accordingly, insofar as the applicant alleges that the respondent has contravened the Fair Work Act, that there ought to be orders for compensation and that there should be the imposition of a pecuniary penalty, the applications must fail.
Declaratory relief
The evidence before the court and the submissions made in these proceedings demonstrate that there is a controversy between the parties about the proper construction of subclause 56.1 of the Agreement. The applicant contends that a meeting with the purpose of reviewing an employee’s performance held pursuant to the applicant’s General Staff Performance Management Review Policy is a meeting about a “matter” which may arise in the course of the employee’s employment. Accordingly, the applicant contends, at such a meeting the staff member is entitled to have Union representation pursuant to subclause 56.1 of the Agreement.
The respondent contends that:
a)subclause 56.1 of the Agreement did not provide employees who are members of the applicant union with a right to Union representation at a performance review meeting; and
b)further, and in the alternative, if the Court accepts that subclause 56.1 of the Agreement provided employees who are members of the applicant union with a right to Union representation at performance review meetings the clause is an unlawful term for the purposes of s.253(1)(b) of the Fair Work Act and is of no effect.
Both parties agreed that the approach to be taken by the Court to the proper construction of subclause 56.1 is informed by the principles that were summarised by the Full Bench of the Fair Work Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [41]. After reviewing the authorities, the Full Bench said:
[41] From the foregoing, the following principles may be distilled:
1. The [Acts Interpretation Act] does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
Clause 56 of the Agreement is worth setting out in its entirety:
56. UNION RECOGNITION, ROLE AND RESOURCES
56.1 The University recognises the contribution of effective Union organisation to productive workplace relations and that Unions are legitimate representatives of staff members at the University. A staff member is entitled to have Union representation in relation to any matter which may arise in the course of their employment.
56.2 The University will not discriminate against or prejudice a staff member in their employment because of their Union membership, Union activity or in their role as a delegate or representative.
56.3 Union recognition and resources
The University will provide the following to the Unions:
• shared access to an appropriately equipped office for the use of the Unions;
• access to common area general purpose notice boards;
• deduction of Union dues from salary at a rate or amount advised under the Unions' rules where this has been authorised by the employee;
• subject to complying with relevant University guidelines, access to electronic mail, internal mail systems for the distribution of Union material;
• to provide new staff, at the point of offering employment, the names and addresses of the Unions to which the staff member may make application to join;
• availability of Union web site links on the new staff web page.
56.4 Union Meetings
Staff members covered by this Agreement may attend up to 4 Union meetings per calendar year conducted by Unions, at which staff will be allowed to be absent from duty without loss of salary for 1 hour and 15 minutes on each occasion, that is, when taken in conjunction with a lunch break, a 2 hour meeting without loss of salary is possible. This provision is subject to the relevant Union providing reasonable notice of an intention to call such a meeting.
56.5 Union Delegates and Representatives
The University recognises that some staff members have Union representative roles, such as Union officials, delegates and representatives. The University shall actively support staff in carrying out these functions, and will provide reasonable time off during working hours for the conduct of Union business.
Union delegates and representatives will be provided with time off during normal working hours to attend 1 delegate or representative meeting per month for 1 hour and 15 minutes on each occasion. If such a meeting takes place in conjunction with a lunch break then a 2 hour meeting without loss of salary is possible. Reasonable travel time will be allowed.
This commitment is subject to the relevant Unions providing the University with a list of the names of staff union representatives and such named representatives providing their relevant supervisor with reasonable notice of their attendance at such meetings. The University will notify supervisors of recognised staff Union representatives of its commitment to facilitating Union involvement under this clause.
Neither party submitted that subclause 56.1 was ambiguous. It has a plain meaning on its face: namely, that staff members may have Union representation in relation to any matter which may arise in the course of their employment.
The word “Union” is defined in clause 4.2.16 to mean a Union listed in clause 7.1 of the Agreement. Clause 7.1 lists four named Unions, including the applicant.
In the absence of ambiguity, the task is to analyse the language of the Agreement having regard to its context and purpose. As the principles set out above provide, in the absence of any ambiguity, evidence of surrounding circumstances will not be admitted to contradict the plain meaning of the agreement. In that respect, the respondent seeks to rely upon the evidence of Mr Greedy to show that when he was involved in the negotiations for this particular agreement, he considered that the word matter in subclause 56.1 had a restricted meaning. His evidence was that:
9. As a bargaining representative for the University I would not have agreed to include clause 56.1 in the 2009-2012 Enterprise Agreement if the intention of the clause was to allow Union members a right to Union representation at any University meeting in respect of any matter relating to a staff member's employment.
But that is precisely what he did do. The word “matter” is a word of plain and ordinary meaning. It is a word of wide import. The Oxford Dictionary, third edition, defines “matter” to include “a subject or situation under consideration”. According to the plain meaning of the word “matter”, a staff member’s right to Union representation extends to any University meeting in respect of any subject or situation under consideration relating to that staff member’s employment. How “matter” ought to be construed in the context of this particular clause and this particular agreement is not to be determined according to the subjective intention of Mr Greedy.
The applicant argues that the subclause should be construed broadly so that when staff are participating in performance management reviews, they might have the benefit of Union representation at such a meeting. The respondent argues that given the context and purpose of the subclause, it does not extend an entitlement of Union representation to a performance management review meeting.
The applicant argues that particular attention should be given to the second sentence of subclause 56.1. Counsel for the applicant described the first sentence of the subclause as a “union recognition sentence”. She did not suggest that it created any particular rights or entitlements on its own. The real work to be done by the subclause, if any, is done by the second sentence. Nonetheless, considered as a whole, the applicant argues that subclause 56.1 is sufficiently broad to entitle staff members to Union representation at performance management review meetings.
I accept that, on its face, subclause 56.1 operates in such a way.
The respondent, however, contends that having regard to the objective background to, and the context in which, subclause 56.1 appears in the Agreement, it should not be so construed.
The respondent argues that the applicant’s interpretation of subclause 56.1 would provide a practically unlimited right to representation in relation to any matter that in some way is touched by a staff member’s employment. It argues that the Court should reject that interpretation because the implications of such an interpretation could not have been sensibly or properly intended by the parties to the Agreement. The submission continues that to construe the subclause in the way in which the applicant contends would lead to absurdity. The respondent argues that the applicant’s construction of subclause 56.1 places no limit upon the circumstances in which a right to representation can be claimed. The respondent suggests that the right to representation could be claimed to arise in respect of a range of matters in respect of employment, dealing with matters of extreme triviality or dealing with matters that “one would never contemplate sensibly could give rise to a right to union representation, such as, for example, interactions between a staff member and a student; such as, for example, simple interactions between two staff members”.
The respondent argues that the construction for which it contends represents the industrially sound construction as opposed to the industrially absurd outcome contended for by the applicant. The respondent argues that the former ought to be preferred to the latter.
However, I do not find this argument persuasive for two reasons. First, subclause 56.1 has its own inherent limitation imposed by the phrase “any matter which may arise in the course of their employment”. To attract the operation of the clause there needs to be a subject or situation under consideration which relates to the staff member’s employment. The word employment describes the relationship between the staff member and the University. It does not describe the relationship between the staff member and, to use the example given by the respondent in argument, another staff member or a student. To engage the right of representation provided for by subclause 56.1, the matter must relate to the relationship between the staff member and the respondent as employee and employer. Second, I am not persuaded by the argument that the applicant’s suggested construction of clause 56.1 would lead to Union representation in respect of trivial matters. What is a trivial matter is a matter of perception. Indeed the evidence in this case demonstrates that matters which appeared to be of considerable significance to Ms Ashworth and Ms Leskinen, were apparently treated by Prof Chang as unimportant or minor.
The respondent points out that subclause 56.1 appears in an agreement that contains a range of other clauses that specifically provide for representation in respect of employees, including representation by a union that is covered by the agreement. It argues that the interpretation which should be given to subclause 56.1, consistent with the Agreement as a whole including the whole of clause 56, is an interpretation that “confirms the staff members’ right to union representation in the following clauses of the Agreement”:
a)clause 8.6, which provides staff members with a right to be represented by a Union that is a party to the Agreement or another representative of their choice in negotiating an individual flexibility agreement;
b)subclauses 14.5.2, 14.5.3, 14.5.4 and 14.5.5, which provide that a union acting on behalf of a staff member may seek a review of the staff member’s work allocation in certain circumstances;
c)clauses 16.2 and 16.3, which provide staff members with the right to choose to be represented by a “nominated representative” if a dispute arises relating to the interpretation, application or implementation or a provision of the Agreement or the National Employment Standards. A “nominated representative” might be an officer or employee of a Union;
d)subclause 32.1.3(g), which provides staff members with the right to be represented by a person of their choosing, including a representative of a relevant union, at any discussion regarding the inability for the relevant staff member or their supervisor to comply with a proposed variation to hours under subclause 32.1.3;
e)clause 44, which provides staff members with the right to be represented at any meeting in relation to unsatisfactory performance process by a nominated representative of their choice;
f)clause 45, which provides staff members subject to an allegation of misconduct or serious misconduct, the right to be accompanied at any meeting in relation to allegation(s) by a nominated representative of their choice;
g)clause 49.4.4 , which provides staff members with a right to be represented by a nominated representative throughout all stages of a redundancy/redeployment process; and
h)subclause 50.4.1, which provides that in the case of termination on grounds of ill-health under subclause 50.3.2, a staff member’s nominated representative may request a Medical Panel review the findings of the medical report, and subclause 50.4.2, which provides that the Medical Panel will include a medical practitioner appointed by the staff member or their nominated representative.
That is to say, the respondent argues that staff members’ rights to representation are not governed by subclause 56.1 at all but by the other more specific clauses to which it has drawn attention and I have adumbrated above. Those provisions are not consistent in the way in which they describe representation. Clause 8.6 provides that a staff member may be represented by a Union or other representative. Clause 16 refers to a “nominated representative”, which is defined in the definition provisions in the agreement to mean:
...a person the staff member has requested to represent him or her and who can be a staff member or an officer or employee of the union and is not currently practising as a solicitor or barrister.
The term “nominated representative” is used in other provisions such as clause 44 and 45 and 50. Those provisions extend the right to representation beyond that which might be provided by clause 56.1 so that a staff member who wishes to have representation does not have to be represented by a person from a Union (as defined in the Agreement).
The applicant also points out clause 43 of the Agreement:
43. PERFORMANCE MANAGEMENT REVIEW
The Performance Management Review will be undertaken in accordance with the General Staff Performance Management Review. This Policy will not be changed without prior consultation with staff and the unions.
There is no dispute that the General Staff Performance Management Review policy does not expressly provide for a staff member to have representation at any meetings conducted for the purposes of that policy.
Thus, the respondent argues that an important contextual matter to be borne in mind in interpreting subclause 56.1 is that whilst it refers in general terms to representation, it does not sit consistently with the other specific clauses in the agreement that provide for representation both generally and by unions. The effect of the presence of those other clauses is said to be that subclause 56.1 should not be read as creating a broad entitlement to representation which is restricted to Unions. Rather, the respondent argues, it should be read as doing nothing more than reflecting that there are entitlements to Union representation and those entitlements are provided elsewhere throughout the agreement. If it were otherwise, it would not be necessary in each of the specific clauses for there to be a specific reference to Union representation. Thus, the respondent submits that the specific treatment in other parts of the Agreement of the right to Union representation, does not sit comfortably, or alternatively is inconsistent, with the work that the applicant seeks to have clause 56.1 perform.
The difficulty with this argument however, is that on the respondent’s case, subclause 56.1 does not perform any work at all. It merely provides “a recognition in various ways, shapes and forms of the role of the union”. That is an argument, it seems to me, that at the very least the second sentence of subclause 56.1 ought be ignored; that at best, subclause 56.1 is nothing more than an aspirational or “motherhood statement”. That is unpersuasive. The use of the word “entitled” conveys something more than a mere statement of intention or aspiration. It engenders an expectation that the subject matter which follows it in context will be enjoyed by those in whom the expectation is engendered.
The respondent also argues that having regard to the purpose of clause 56.1 as revealed by the historical context in which it came to be included in the Agreement, it is clear that it provides no right of representation as the applicant submits. The respondent submits that I should consider, in an objective sense, what it was that the parties were negotiating about, not by reference to their expressed intentions but by reference to documents that show what was in contemplation in the course of the negotiations. The respondent points out that clause 56 was the subject of negotiation between the parties when they negotiated the enterprise agreement which was in place prior to the agreement which is the subject of these proceedings. The clause was introduced by the applicant following the commencement of the Fair Work Act in 2009 and the relaxation of restrictions upon the content of enterprise agreements. The respondent submitted that if regard was had to the logs of claim served by the respondent upon the applicant for the purposes of those negotiations it is apparent that the purpose of the clause was to achieve a “resetting of the industrial arrangements to what they were before” the enactment of the Work Choices legislation. That legislation had proscribed the inclusion of certain content in enterprise agreements. Clauses like clause 56 under consideration here were not permitted. Nowhere, the respondent argues, was there a suggestion in the logs of claims, or anywhere else, that the intention of the clause was to provide a general right of Union representation to staff members of the respondent.
I accept the respondent’s argument that there is nothing in the initial log of claims or the supplementary log of claims that might suggest that the purpose of proposed clause 56 (as it then was) was to introduce an all embracing right of representation. But that does not detract from the particular words of subclause 56.1. Clause 56 as a whole (reading all of its subclauses) certainly answers the purpose identified by the respondent in argument. That it might go beyond that purpose, however, is in my view no answer to the proper construction of subclause 56.1, based upon the plain and ordinary meaning of its terms.
In my view, clause 56.1 provides to a staff member an entitlement to Union representation at a performance review meeting held in respect of that staff member.
An unlawful term
The respondent contends that if subclause 56.1 provides the right of representation as I have now found, it is nonetheless an unlawful term for the purposes of the Fair Work Act and is of no effect.
The starting point is s.253 of the Fair Work Act:
253 Terms of an enterprise agreement that are of no effect
(1) A term of an enterprise agreement has no effect to the extent that:
(a) it is not a term about a permitted matter; or
(b) it is an unlawful term; or
(c) it is a designated outworker term.
Relevantly, the phrase unlawful term in s.253(1)(b) is defined by s.194 of the Act to be an objectionable term. The phrase objectionable term, in turn, is relevantly defined by s.12 of the Act as follows:
objectionable term means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits or has the effect of permitting, or purports to permit or have the effect of permitting;
...
a contravention of Part 3-1 (which deals with general protections).
The respondent argues that subclause 56.1 requires, or permits, a contravention of Part 3-1 of the Act because it has the effect of authorising conduct, either directly or by necessary implication, which will be a contravention of ss.346 and 347 of the Fair Work Act. Those sections of the Act provide:
346 Protection
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
347 Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association; or
(c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e) complies with an unlawful request made by, or requirement of, an industrial association; or
(f) takes part in industrial action; or
(g) makes a payment:
(i) that, because of Division 9 of Part 3‑3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii) to which an employee is not entitled because of that Division.
A person engages in industrial activity by not being a member of an industrial association or, relevantly, not seeking to be represented by an industrial association. The respondent argues that adverse action will be taken in contravention of s.346 where an employer discriminates between an employee and other employees because the first employee is or is not a member of an industrial association or because that employee does or does not seek to be represented by an industrial association. Discriminatory conduct is adverse action for the purposes of the Act: s.342(1) item (1)(d).
The respondent argues that clause 56.1 of the Agreement contravenes s.346 of the Fair Work Act because the clause requires, or at least permits, the respondent to allow representation to persons who are members of, or seek to be represented by, a union covered by the Agreement in relation to matters other than those with respect to which a specific right of representation is given to all staff by the Agreement, and does not require the respondent to allow the same right to representation to:
a)staff members who are not union members;
b)staff members who are members of a union other than those covered by the Agreement;
c)staff members who seek to be represented by a union other than those covered by the Agreement; or
d)staff members who seek to be represented other than by a union representative.
The respondent submits that clause 56.1 therefore requires or permits discrimination on the basis of membership of an industrial association, or engagement in industrial activity.
Subclause 56.1 requires the respondent to permit a staff member to be represented by a Union as defined in the Agreement. It is not confined to staff members who are members of a Union defined in the Agreement. Nor does it operate to exclude staff members who are members of a union other than a Union covered by the Agreement. It does not prevent or prohibit staff members who seek to be represented by a union other than those covered by the Agreement or staff members who seek to be represented other than by a union representative from being so represented.
However, apart from the specific examples I have already referred to above where an employee may be represented by a nominated representative who may not be a Union representative (for example they may be another staff member), the only general entitlement to representation is representation by a Union.
It was not suggested by the applicant that any of the Unions that were nominated in clause 7.1 of the Agreement were not industrial associations for the purposes of s.347 of the Fair Work Act. The respondent argues that, applying the language of s.347 of the Act, only a person who seeks to be represented by an industrial association can resort to the entitlement in subclause 56.1. But a person who does not seek to be represented by an industrial association but wishes to be represented by another individual who has no connection with a Union for example, has no entitlement to do so. The respondent is required to facilitate Union representation, but is authorised to not facilitate or refuse non-Union representation to a staff member seeking representation. In that way, it is said, the applicant is required to discriminate between its employees.
The respondent put its argument on the basis that the discrimination is apparent in two ways, namely that it operates on the basis of Union membership of the employees concerned and also on the basis of a desire to be represented by a Union. But as the applicant emphasised in argument, and as I have pointed out, the right to representation provided by subclause 56.1 is not limited to employees who were members of a Union. It is available to all employees. The clause does not operate in a discriminatory way based upon a staff member’s membership of a Union.
The entitlement to Union representation is open to all of the applicant’s staff members. A staff member could elect to take up that entitlement if they chose to do so. If a staff member did, the respondent had to facilitate or accommodate that representation. No staff member had a similar general entitlement provided for in the Agreement to representation by a person or body, other than a Union (save for the specific examples set out above). All staff members were treated in the same way in that respect.
The respondent submitted that those uncontroversial facts give rise to two implications, namely:
a)that there is an obligation imposed upon the applicant to recognise Unions (as defined in and covered by the Agreement); and
b)there is an entitlement afforded in respect of representation by the relevant Unions only.
I accept that those implications clearly arise in the way in which the respondent suggests. Thus, it is argued, there is:
a)no obligation to recognise any other unions or any other form of representative;
b)no entitlement “given to representation by any other unions”;
c)no entitlement given as to any other form of representation;
d)there is no compulsion that “anybody else be recognised or that any other union be allowed to represent somebody”; and
e)in effect, an exclusive grant of a right to a person who wishes to be represented by only those unions.
Accordingly, the submission concludes, there is discrimination as between people who wish to be represented by those Unions and people who, for whatever reason choose not to be represented by them.
However, I do not accept that argument. First, the entitlements of all staff members under the agreement is the same. Second, when regard is had to the statutory scheme within which the Agreement was approved, the taking of adverse action because an employee has engaged in industrial activity is prohibited. Thus, irrespective of the terms of subclause 56.1 the respondent is prohibited from discriminating between an employee and other employees because the employee engaged in industrial activity.
Subclause 56.1, I find, is not an unlawful term for the purposes of the Fair Work Act. It does not operate in the discriminatory ways suggested by the respondent.
Conclusion
For the reasons set out above the applicant is entitled to a declaration that on the proper construction of clause 56.1 of the Griffith University General Staff Enterprise Agreement 2012 – 2016, that:
a)a meeting with the purpose of reviewing an employee’s performance is a meeting about a matter which may arise in the course of their employment; and
b)a staff member of the respondent is entitled to have Union representation at such a meeting.
Otherwise, all outstanding applications should be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 December, 2018.
Date: 20 December, 2018
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