National Tertiary Education Industry Union v Monash University

[2021] FWC 6179

[2021] FWC 6179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
Monash University
(C2021/2402)

DEPUTY PRESIDENT COLMAN MELBOURNE, 26 OCTOBER 2021

Dispute arising under an enterprise agreement – dispute determined

[1] This decision concerns an application made by the National Tertiary Education Industry Union (NTEU) under s 739 of the Fair Work Act 2009 (Cth) (Act) and the dispute resolution procedure in clause 12 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (2019 Agreement). The NTEU asks the Commission to determine a dispute that has arisen between the union and Monash University about the meaning of clause 20.1 of the 2019 Agreement and its application to a member of the NTEU, Dr Olga Abeysekera. The first sentence of clause 20.1 states that, following the commencement of the 2019 Agreement, ‘there will be no further appointments of Scholarly Teaching Fellows’. The second sentence states that clause 17 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 (2014 Agreement) ‘will continue to apply to any Scholarly Teaching Fellows employed at the time of commencement of this Agreement’. Clause 17 of the 2014 Agreement concerns conditions of employment for scholarly teaching fellows. Clause 17.5 requires the university to convert fixed term scholarly teaching fellows to ‘continuing employment’ upon the expiry of their fixed term contracts.

[2] The essential facts are not in dispute. On 24 January 2018, Dr Abeysekera and the university entered into a contract pursuant to which Dr Abeysekera became a scholarly teaching fellow in the Department of Management, Faculty of Business and Economics, for a fixed term of three years from 1 February 2018 to 31 January 2021 (2018 contract). The 2019 Agreement was approved on 5 February 2020 and commenced to operate on 12 February 2020. Dr Abeysekera was employed by the university as a scholarly teaching fellow on this date. On 13 October 2020, the university offered Dr Abeysekera continuing employment as a scholarly teaching fellow in the Department of Management, effective from 1 February 2021. Dr Abeysekera accepted the offer (2020 contract). In December 2020, Dr Abeysekera approached the NTEU with concerns about a high teaching workload. In the subsequent exchanges between the NTEU and the university, the parties advanced the contentions that have now been argued before the Commission in these proceedings.

[3] In summary, the NTEU contends that the 2020 contract constituted a ‘further appointment’ of Dr Abeysekera as a scholarly teaching fellow, in contravention of the first sentence in clause 20.1. It further submits that when the university converts a fixed term scholarly teaching fellow to permanent employment at the end of a fixed term contract pursuant to clause 17.5 of the 2014 Agreement, the employee must be appointed to a ‘teaching and research academic staff’ position covered by clause 59.10 of the 2014 Agreement (now clause 66.10 of the 2019 Agreement). Such positions are subject to a work allocation principle which indicatively contemplates a workload of 40% teaching, 40% research and 20% other activities.

[4] The university contends that the 2020 contract was not a further appointment of a scholarly teaching fellow for the purposes of clause 20.1, but a conversion of an existing scholarly teaching fellow’s employment from fixed term to continuing employment, as required by clause 17.5 of the 2014 Agreement. It contends that a conversion under this clause alters the mode of employment but does not affect a person’s status as a scholarly teaching fellow.

[5] The parties agreed that the Commission is authorised by the dispute resolution provision in clause 12 of the 2019 Agreement to resolve the dispute by arbitration, and I am satisfied that this is the case. The question for determination is the following:

“Was the university’s offer to Dr Abeysekera on 13 October 2020 a ‘further appointment’ for the purposes of clause 20.1 of the 2019 Agreement?”

The 2014 Agreement and the 2019 Agreement

[6] Clause 17 the 2014 Agreement provides as follows:

“17.1 The parties to this Agreement recognise the need for innovative approaches to maximise the range of employment options that the University can utilise to not only meet a dynamic and changing environment but also to provide current and prospective staff with suitable and sustainable employment opportunities.

17.2 The purpose of Scholarly Teaching Fellow positions is:

(a) to advance the University’s goal of excellence in learning and teaching;

(b) to offer sustainable alternatives to longer term sessional academic engagements;

(c) to provide a transitional pathway for staff from sessional engagement to teaching and research appointments;

(d) to facilitate reducing the proportion of sessional staff employed in the University; and

(e) that the majority of work performed by Scholarly Teaching Fellows will replace work previously performed by sessional staff.

The University will not reduce the proportion of continuing appointments in the University as a consequence of this clause.

17.3 The University is committed to employing a number of Scholarly Teaching Fellows equivalent to 5% of the reported sessional staff FTE on the census date of 31 March 2014 by no later than the nominal expiry date of this Agreement, and then maintaining that number thereafter during the operation of this Agreement.

17.4 For the purposes of achieving this 5% target the University may continue to count any former Scholarly Teaching Fellow who is still employed in a teaching focused (Education Focused) role and notwithstanding that the staff member may have moved to a higher classification.

17.5 Scholarly Teaching Fellow positions will be full-time or part-time and filled on a three-year fixed-term basis in accordance with clause 16.4.11 of this Agreement or where appropriate on a continuing basis.

A fixed-term Scholarly Teaching Fellow appointment will be on the basis that the University will, at the expiration of the fixed term, convert the Scholarly Teaching Fellow’s employment from fixed-term to continuing employment unless:

(a) the staff member has not met, to the University’s satisfaction, the performance expectations set by the University and communicated to the staff member in advance and/or from time to time during the fixed term consistent with the requirements of the position; or

(b) there is insufficient productive work that the staff member could perform having regard to the nature of the staff member’s classification, academic discipline and skills.

Provided that the University may extend the period of the Scholarly Teaching Fellow’s fixed term commensurate with any period of parental leave or other extended leave of absence during the fixed-term appointment.

Where the Head of School (or equivalent) intends not to offer conversion to continuing employment at the expiry of the fixed-term appointment, he/she will refer the recommendation to the Dean (or equivalent) who will make a final determination on the recommendation, and in the case of the grounds specified in subparagraph (a) above will consider whether the performance expectations were:

(a) communicated to the staff member in advance and/or from time to time during the employment; and

(b) reasonable; and

(c) met by the staff member.

The staff member will receive a copy of any recommendation by the Head of School at least 8 weeks prior to the expiry of his/her fixed term and will have an opportunity to comment on the recommendation before a final determination is made by the Dean (or equivalent).

17.6 A Scholarly Teaching Fellow will be employed primarily to teach and may be required to have teaching and related duties constituting up to 80% of his/her work allocation with the remaining 20% of his/her allocation, over a year, available for scholarship and research and/or administrative responsibilities. A Scholarly Teaching Fellow may also be required to teach in no more than five (5) or six (6) teaching periods in any 24-month cycle.”

[7] Clauses 17.7 and 17.8 go on to address qualification requirements and redundancy benefits for fixed term scholars whose terms are not renewed.

[8] Clause 20.1 of the 2019 Agreement provides as follows:

“20.1 Following the commencement of this Agreement, there will be no further appointments of Scholarly Teaching Fellows. Clause 17 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 will continue to apply to any Scholarly Teaching Fellows employed at the time of commencement of this Agreement.”

[9] The remaining provisions of clause 20 of the 2019 Agreement concern the establishment and regulation of a new ‘teaching fellow’ position, which is to be distinguished from the ‘scholarly teaching fellow’ that is the subject of the present proceedings.

[10] Relevant to the NTEU’s interpretation of clause 20.1 is clause 66.10 of the 2019 Agreement, which deals with work allocation. The clause is substantially the same as clause 59.10 of the 2014 Agreement. It relevantly states:

“66.10 The University recognises 1645 hours per annum as the maximum annual allocated hours. A staff member’s annual allocation of workload and any allocated duties under clause 66.12 will be subject to discussion between the staff member and their supervisor prior to finalisation.

The starting point for discussions about the allocation of work for teaching and research academic staff is:

•  Teaching 40%

•  Research and scholarship 40%

•  Other activities 20%”

[11] The ‘40:40:20’ allocation provision does not apply to scholarly teaching fellows. Work allocation for scholarly teaching fellows is governed by clause 17.6 of the 2014 Agreement.

Contentions of the parties

[12] The NTEU contended that the first sentence of clause 20.1 prohibits anyappointments of scholarly teaching fellows, and that this prohibition covers first appointments, reappointments and what it referred to as ‘conversion appointments.’ It said that the word ‘appointment’ carries its ordinary meaning, and simply means the act of officially choosing someone for a job. The NTEU submitted that clause 20.1 must be understood in the light of its industrial purpose, which is to end appointments of scholarly teaching fellows, and that to read clause 20.1 as allowing reappointments or conversion appointments of such persons, as occurred with Dr Abeysekera, would indefinitely grandfather this category of employment and allow the university to convert all fixed term scholarly teaching fellows to continuing fellows, which would defeat the purpose of clause 20.1. The NTEU said that such a construction would severely impact career progression for scholarly teaching fellows and prevent them from ever being appointed as continuing teaching and research academics based on the 40:40:20 work allocation principle, which the NTEU said was the evident intention of clause 17, as well as the mutual intention of the parties.

[13] The NTEU submitted that the conversion of scholarly teaching fellows from fixed to ongoing employment contemplated by clause 17.5 of the 2014 Agreement was a conversion to a position subject to the 40:40:20 provision. It said that so much was clear from the fact that the words ‘teaching and research’ that appear in clause 17.2(c) are also found in clause 59.10 of the 2014 Agreement, and that these words have a uniform meaning. In other words, the NTEU submitted that the reference to ‘teaching and research appointments’ in clause 17.2(c) of the 2014 Agreement means ‘teaching and research academic staff’ positions that are referred to in clause 59.10 of the 2014 Agreement.

[14] The union contended that the prohibition on new scholarly teaching fellow appointments in clause 20 was connected to job security and career development and formed part of an academic career path that often begins, as it did in Dr Abeysekera’s case, with casual and fixed term employment, followed by a conversion to continuing academic positions. It said that clause 17.2(c) of the 2014 Agreement identifies the purpose of scholarly teaching fellow positions as being ‘to provide a transitional pathway for staff from sessional engagement to teaching and research appointments,’ and that clause 17.5 then further addresses this ‘pathway’ by requiring that, upon the expiry of a fixed term contract, the university convert a scholarly teaching fellow’s employment from fixed term to continuing employment, save for certain exceptions that are not presently relevant. The conversion affects not only the basis of the employment, but also the employee’s position. The employee ceases their role as a scholarly teaching fellow and progresses down the academic pathway cited in clause 17.2(c) to a teaching and research appointment, which is subject to clause 59.10 (now clause 66.10 of the 2019 Agreement) and the 40:40:20 provision.

[15] The NTEU submitted that the first sentence of clause 20.1 contains the overarching purpose of the provision whereas the second applies only while a scholarly teaching fellow’s contract is in force. It said that when a fixed term contract expires, or when a conversion appointment is made, the second sentence of clause 20.1 ceases to be applicable, and that therefore it could not have applied to Dr Abeysekera at the relevant time.

[16] The NTEU further contended that a number of provisions in the 2019 Agreement use the words ‘conversion’ and ‘appointment’ in a manner that recognises that conversions may entail appointments. In this regard, the union noted that clause 1.5 of Schedule 4, which deals with casual staff career progression, states that ‘conversion’ may be either to a continuing ‘appointment’ or to a fixed term ‘appointment’; clause 16.2 states that upon engagement, the university will provide the staff member with an instrument of ‘appointment’ stipulating the type of employment and the terms of the engagement; and clause 22.4 states that other fixed term academic staff may apply for ‘conversion’ to continuing employment and the university will consider offering the staff member ‘appointment’ on a continuing basis.

[17] The NTEU submitted that, when one applies the above analysis to the circumstances of Dr Abeysekera, one must conclude that the 2020 contract constituted a prohibited ‘further appointment’ to a scholarly teaching fellow position. It emphasised that the 2020 contract uses the word appointment seventeen times. In particular, Part 1 is headed ‘Appointment details’, and item 4 of Part 1 identifies the ‘nature of appointment’ as ‘Continuing Academic (Scholarly Teaching Fellow)’. Item 1 of Part 2 of the 2020 contract is headed ‘Appointment’ and states that the specific conditions ‘for a Scholarly Teaching Fellow appointment’ are those set out in clause 17 of the 2014 Agreement and the terms of the 2019 Agreement. It goes on to state that the ‘appointment’ is made subject to the Monash University statute and its regulations. Clause 2 of Part 2 then states that Dr Abeysekera’s ‘appointment’ to the position is subject to the probation period set out in Part 1. The union contended that in these circumstances, the university had, by the 2020 contract, appointed or reappointed Dr Abeysekera to a scholarly teaching position in contravention of the first sentence in clause 20.1 of the 2019 Agreement.

[18] The university contended that the meaning of clause 20.1 was clear: from 12 February 2020, when the new agreement commenced to operate, there could be no further appointments of scholarly teaching fellows, but that existing scholarly teaching fellows remain subject to the previous arrangements. It said that ‘further’ means ‘extra’ or ‘additional’, and that the first sentence therefore prohibited the appointment of new scholarly teaching fellows. However, scholarly teaching fellows already employed at the time would continue to be subject to all of the provisions of clause 17 of the 2014 Agreement, including clause 17.5. That provision states that a fixed term scholarly teaching fellow appointment ‘will be on the basis that the university will, at the expiration of the fixed term, convert the Scholarly Teaching Fellow’s employment from fixed-term to continuing employment’. Dr Abeysekera was employed as a scholarly teaching fellow on 12 February 2020. Clause 17 therefore continued to apply to her employment. It required the university to convert her fixed term employment to continuing employment. That is what the university did.

[19] The university submitted that clause 17.5 says nothing whatsoever about converting scholarly teaching fellows to positions that are subject to the 40:40:20 provision. It requires simply that fixed term scholarly teaching fellows’ employment be converted to continuing employment. The expression ‘continuing employment’ is defined in clause 16.3 of both the 2019 and 2014 Agreements as meaning ‘full-time or fractional employment other than fixed-term, sessional or casual employment’. It simply means ongoing employment that is not casual. There is no connotation of any change of position. More generally, the university said that there is nothing unusual about a scholarly teaching fellow being employed on a continuing basis, because clause 17.5 expressly provides that scholarly teaching fellows can in the first instance be engaged either on a fixed term basis or, where appropriate, on a continuing basis.

[20] The university contended that the references to ‘appointment’ in the 2020 contract must be read in the context of the 2019 Agreement and clause 17 of the 2014 Agreement. It contended that the 2020 contract did not, as a matter of fact, appoint Dr Abeysekera as a scholarly teaching fellow, because she was already a scholarly teaching fellow. The 2020 contract simply converted her employment status from fixed term to continuing employment, as clause 17.5 specifically required. Any ‘appointment’ that did occur was not one that was covered by the first sentence in clause 20.1 and was authorised by the second sentence of clause 20.1 which preserved the application of clause 17 of the 2014 Agreement to Dr Abeysekera’s employment.

Consideration

[21] The principles that apply to the interpretation of enterprise agreements are well known and need not be recited. The two sentences that comprise clause 20.1 of the 2019 Agreement must be read in the context of the 2019 Agreement as a whole, and in light of clause 17 of the 2014 Agreement, with due regard to any evident purpose and mutual intention. The first sentence states that there will be ‘no further appointments of Scholarly Teaching Fellows’. The lexical meaning of ‘appointment’ is not disputed. It means the act of appointing or assigning a person to a job or position. The controversy concerns the contextual meaning.

[22] The words ‘no further appointments of Scholarly Teaching Fellows’ can, as a matter of ordinary English, be understood to mean either ‘no further appointments of persons who are scholarly teaching fellows’, or ‘no further appointments of persons as scholarly teaching fellows.’ The former meaning is improbable, because it would prohibit any appointments of scholarly teaching fellows to any positions. The second meaning is clearly the intended one: there will be no further appointments of persons as scholarly teaching fellows. The focus is on the particular position. To my mind, this suggests that the first sentence is concerned with the act of making someone a scholarly teaching fellow for the first time. One would not say that a scholarly teaching fellow who is offered and who accepts further employment in that capacity has been ‘appointed’ as a scholarly teaching fellow. That would be a reappointment. Nevertheless, there is a reasonable argument that a reappointment is simply a form of appointment. I accept that, if the first sentence of clause 20.1 is read on its own, it could be understood as prohibiting reappointments of scholarly teaching fellows.

[23] However, the first sentence of clause 20.1 is not to be read in isolation, but in the context of the second sentence. This states that clause 17 of the 2014 Agreement continues to apply to scholarly teaching fellows employed at the time of commencement of the 2019 Agreement. The entirety of clause 17 applies to such persons. In particular, clause 17.5 requires the university to ‘convert the Scholarly Teaching Fellow’s employment from fixed-term to continuing employment’. It says nothing about any change to the scholarly teaching fellow’s substantive position. There is an obvious distinction between a position and the mode of employment. The conversion of a person’s employment from fixed term to permanent does not, as a matter of ordinary industrial usage, connote or imply any change to the employee’s position. The distinction between position and mode of employment is evident in the terms of the 2014 Agreement. Clause 17.5 speaks of the conversion of the ‘Scholarly Teaching Fellow’s employment’ from fixed to continuing employment: there is only one employment, and only one position, namely that of the scholarly teaching fellow, but the mode of employment changes from fixed term to continuing. The mode of employment is addressed in some detail in clause 16 of both the 2014 and 2019 Agreements. These clauses are in the same terms. They state that the university may employ a staff member on a continuing, fixed-term, sessional or casual basis. Clause 16.3 defines ‘continuing employment’ as full-time or fractional employment other than fixed term, sessional or casual employment. The definition implies nothing about the position that an employee might occupy. Neither does clause 17.5 of the 2014 Agreement. In my view it is clear that clause 17.5 is concerned only with the conversion of the mode of employment. It does not require any conversion of the employee’s substantive position.

[24] I reject the NTEU’s contention that the reference to ‘a pathway … to teaching and research appointments’ in clause 17.2(c) of the 2014 Agreement suggests that a conversion of a scholarly teaching fellow to ongoing employment must be to a ‘teaching and research academic staff’ position contemplated by clause 59.10 of the 2014 Agreement.

[25] First, the expressions used in these clauses are different: ‘teaching and research appointments’ is used in the former, ‘teaching and research academic staff’ in the latter. Neither of these expressions is defined. Nor is the formulation ‘teaching and research’. Those words carry their ordinary meaning. Applying that ordinary meaning in the context of the 2019 Agreement, I consider that the scholarly teaching fellow position is itself a ‘teaching and research’ position. This is clear from clause 17.6, which concerns the allocation of teaching and research duties to scholarly teaching fellows. It sets maximum work allocations for scholarly teaching fellows, whether fixed term or ongoing, of ‘teaching and related duties’ on the one hand (up to 80%) and ‘scholarship and research and/or administrative responsibilities’ (20%) on the other. The scholarly teaching fellow position is a destination on the ‘transitional pathway’ referred to in clause 17.2(c) (it is not the only destination: Mr Crundall’s evidence was that a number of scholarly teaching fellows have been promoted to other positions). Further, as the university pointed out, the scholarly teaching fellow position is a clear step down the path ‘from sessional engagement’, which is defined in clause 16.12. I note Dr Ben Eltham’s evidence that Dr Abeysekera has not been allocated any research as part of her workload for 2021. But that is consistent with clause 17.6: the 20% covers scholarship and research and administrative responsibilities. It does not guarantee any particular research component. The fact that Dr Abeysekera was assigned no research allocation in one year does not affect the status of her employment. Even employees who are subject to clause 66.10 have no right to expect any particular research allocations: the ‘40:40:20’ provision merely sets the ‘starting point for discussions’ about work allocation.

[26] Even if the words ‘teaching and research appointments’ in clause 17.2(c) were to be read as referring only to positions covered by clause 59.10 and the ‘40:40:20’ provision, clause 17.2(c) is not a functional provision. It does not state that a scholarly teaching fellow who is converted to ongoing employment must be appointed to a position covered by clause 59. It is clause 17.5 that deals with conversion. It requires the conversion of a fixed term scholarly teaching fellow to continuing employment, while saying nothing about any substantive change to the employee’s role. In my view, it is improbable that clause 17.5 would have expressly required the university to convert a fixed term fellow to ongoing employment, but only tacitly required a change to the substantive position. Such a change in status would have been a significant matter, and not something left to be gleaned from tenuous inferences. Had clause 17.5 been intended to alter both the mode of employment and the nature of the position, one would reasonably expect the framers of the document to have dealt with both matters expressly. But there is no provision which states that conversion to ongoing employment results in any change of position.

[27] In this regard, clause 17.5 of the 2014 Agreement may be contrasted with clause 20.4 of the 2019 Agreement, which requires the university to ‘convert’ the employment of a teaching fellow (the new role created by the 2019 Agreement) ‘from fixed term to continuing employment’ upon the expiry of the fixed term contract. Unlike clause 17.5 of the 2014 Agreement, clause 20.4 goes on to state that ‘upon conversion, the staff member will be employed as a continuing academic staff member’. That is, the conversion affects both the mode of employment and the employee’s position. ‘Continuing academic staff member’ is not defined, but it was common ground at the hearing that the conversion of a ‘teaching fellow’ to continuing employment as a continuing academic staff member under clause 20.4 changes the status of the staff member to an academic who is covered by the allocation provisions in clause 66. I note that clause 20.4 states that the employee’s new position is subject to a probation period, which makes industrial sense, because the change in position is significant, and warrants a review period.

[28] The conversion arrangements for teaching fellows in clause 20.4 of the 2019 Agreement show what might have been provided for in respect of scholarly teaching fellows, had the framers of the 2014 Agreement intended to alter not only the mode of employment, but also the position of those employees upon their conversion from fixed to continuing reemployment. Instead, clause 17.5 deals only with conversion of the mode of employment. There is no reference to any change in the employee’s position. No probationary period applies upon the conversion to ongoing employment (see clause 17.8). Further, clause 20.4 demonstrates that the framers of the 2019 Agreement turned their minds to the question of whether a conversion from fixed term to continuing employment would entail a change in position. They made provision for such change in respect of teaching fellows. They made no such provision for continuing scholarly teaching fellows.

[29] Following the commencement of the 2019 Agreement, clause 17.5 of the 2014 Agreement, through the second sentence of clause 20.1 of the 2019 Agreement, continued to require the university to convert existing fixed term scholarly teaching fellows to continuing employment.

[30] In my view, the meaning and purpose of clause 20.1 is twofold: there will be no further (new) scholarly teaching fellows; and existing scholarly teaching fellows continue under the old arrangements. The second sentence of clause 20.1 could easily have placed a sunset on the application of clause 17. It could have modified its continuing application to existing fellows by requiring conversion of fixed term contracts to ongoing employment in a different position. Instead, clause 20.1 simply provides that clause 17 of the 2014 Agreement lives on, in its entirety, for those scholarly teaching fellows, like Dr Abeysekera, who were employed by the university at the commencement of the 2019 Agreement. The first sentence of clause 20.1 should not be regarded as prohibiting what the second sentence plainly requires.

[31] I will briefly address some of the NTEU’s remaining constructional contentions and certain aspects of its evidence. The NTEU contended at the hearing that clause 20.1 should be read in light of the remaining provisions of clause 20.2 which introduce the new position of ‘teaching fellow’, including in particular the requirement that the university offer at least 20 such positions during the nominal life of the 2019 Agreement. It said that the evident intention was for teaching fellows to replace scholarly teaching fellows as their positions were phased out as a result of the application of clause 20.1, which would prohibit both new appointments and reappointments. But although clause 20.2 and the subclauses that follow certainly establish a new position, and it is clear from clause 20.1 that there will be no new scholarly teaching fellows, this does not mean that the teaching fellows will wholly replace the scholarly teaching fellows. Clause 20.2 does not state that teaching fellows are intended to replace scholarly teaching fellows: rather, it states that ‘the majority of work performed by Teaching Fellows will replace the work previously performed by sessional staff’ (see the fifth dot point in clause 20.2).

[32] I reject the NTEU’s contention that the university’s interpretation and application of clause 20.1 leads to unreasonable results. The provision prohibits further (new) appointments of scholarly teaching fellows but preserves the scholarly teaching fellow arrangements for existing fellows employed at the commencement of the 2019 Agreement. The latter arrangements prominently include conversion to continuing employment. There is nothing unreasonable about this. Mr Crundall confirmed in his statement that the university has not made any new appointments of scholarly teaching fellows since the commencement of the 2019 Agreement. The first sentence in clause 20.1 has been hard at work. So has the second. Mr Crundall said that since the commencement of the 2019 Agreement, 18 scholarly teaching fellows have gained continuing employment status, together with the associated benefits, which include redundancy benefits and greater job security. Further, I do not consider Dr Eltham’s evidence concerning Dr Abeysekera’s workload demonstrates that the university’s construction of the provision leads to unreasonable consequences. It has not been demonstrated that Dr Abeysekera’s workload is unreasonable, or that there is a causal connection between this particular workload and the university’s interpretation of the relevant provisions.

[33] The NTEU contended that the university’s interpretation would prevent scholarly teaching fellows from ever being appointed as continuing teaching and research academics on a ‘40:40:20’ basis. No basis for this contention has been identified. There is no reason why a fellow who has converted to continuing employment cannot progress to higher levels and different positions covered by the 2019 Agreement. Mr Crundall’s evidence was that the university currently employs a number of academic staff in positions subject to clause 66.10 who were promoted from scholarly teaching fellows to continuing level B lecturers.

[34] The NTEU submitted that, to the extent that the first and second sentences of clause 20.1 are in conflict, the second sentence should be read subject to the first, because of the application of the principle generalia specialibus non derogant; the specific words of the first sentence were said to govern the general words of the second. I reject this contention. There is no occasion for the application of the maxim. The first and second sentences are both specific and, read in context, in the manner that I have explained above, they do not conflict.

[35] In its reply submissions, the NTEU contended that the subordinate clause in the second sentence of clause 20.1 should be understood as providing additional information in respect of the main clause in the first sentence, such that ‘no further appointments of Scholarly Teaching Fellows’ pertains to ‘any Scholarly Teaching Fellows employed at the time of commencement of this Agreement’. I reject this submission. First, as a matter of grammar and also common sense, a subordinate clause subordinates to the main clause of the sentence in which it sits. It does not subordinate to a main clause in another sentence. Secondly, the argument proposes a construction that requires a reordering and rewriting of the words that are used in clause 20.1. It is syntactically and semantically insupportable.

[36] The NTEU contended that its construction, by which fixed term scholarly teaching fellows must be converted to a position attracting the 40:40:20 provision, relies on the ordinary meaning of the relevant provisions. I disagree. It is the university’s construction that relies on the plain and ordinary meaning of the provisions, whereas the union’s construction seeks to read into clause 17.5 a requirement that conversion of fixed term scholarly teaching fellows to continuing employment be accompanied by an appointment to a different substantive position.

[37] The NTEU pointed to a number of provisions in the 2019 Agreement, referred to earlier, which it claimed were indicative of an intention that a conversion from one mode of employment to another constituted or may constitute an appointment. But none of these provisions suggest to me that the word ‘appointment’ is a term with a special meaning. For example, clause 16.2 states that ‘upon engagement’ the university will provide the staff member with an ‘instrument of appointment which stipulates the type of employment and the terms of the engagement.’ But in ordinary industrial language, it is usual to speak of the initial engagement of a person as an ‘appointment’. Several of the provisions referred to by the NTEU deploy the word ‘appointment’ as a synonym for employment or engagement. They suggest to me that the term is used in a versatile, untechnical way. I would also note that other provisions in the 2019 Agreement refer to conversions without any mention of ‘appointments’ (see for example clauses 22.9 and 20.4).

[38] The NTEU said that the mutual intention of the parties was that clause 20.1 of the 2019 Agreement and clause 17 of the 2014 Agreement would see a person in Dr Abeysekera’s circumstances move from a fixed term scholarly teaching fellow position to continuing employment as a staff member subject to the ‘40:40:20’ provision. However, this is simply an assertion of subjective expectation. The evidence of Dr Eltham and Dr Slee concerned their own understandings of the significance of clause 20.1. They do not give evidence of any mutual and objectively manifested intention of the framers of the agreement. Dr Slee said in her statement that ‘it was understood’ that, as ‘scholarly teaching fellows were being phased out and replaced by the new Teaching Fellow scheme,’ those fellows already employed would be converted to teaching and research academics, meaning academics subject to the allocation provisions in clause 66.10. The use of the passive voice (‘it was understood’) masks the relevant subjects, such that it is not known who precisely is said to have possessed the understanding. Further, the assertion of a witness of the existence of a general understanding is not sufficient to establish a mutual intention of particular parties that reflects the alleged understanding, particularly when one party disputes the matter, as the university does in this case through the evidence of Mr Crundall.

[39] The NTEU contended that the university never explained its interpretation of clause 20.1 to the union or employees at the time the 2019 Agreement was made. Dr Eltham referred in his statement to an explanatory document that the university had provided to staff in connection with the vote on the 2019 Agreement. He said that the document did not include any statement to the effect that existing fixed term scholarly teaching fellows could be ‘grandfathered’ in this role as a result of a conversion under clause 17.5 of the 2014 Agreement. But no such explanation was required. The 2019 Agreement made no substantive change to the regulation of existing scholarly teaching fellows’ employment as scholars; the provision that had previously applied to scholarly teaching fellows would continue to apply. It meant what it said. There was nothing to explain.

[40] Dr Eltham said in his statement that Dr Abeysekera had told him that she had believed that her conversion to ongoing employment meant that she was now ‘an ordinary ongoing academic’. Dr Eltham said that he took Dr Abeysekera’s words to be a reference to a teaching and research academic covered by clause 66.10 of the 2019 Agreement. The university objects to this evidence on hearsay grounds. The Commission is not bound by the rules of evidence however it generally has careful regard to them because they are fundamentally concerned with probative value and fairness. In my view, it is unnecessary to consider whether any exception to the hearsay rules applies, because the evidence is simply not relevant. Evidence of the subjective understanding or intention of one party to a contract does not have any bearing on the legal meaning of the contract. Further, I find Dr Abeysekera’s stated belief about the significance of her conversion to ongoing employment difficult to understand, because it is contrary to the clear words of item 3 of Part 1 of the 2020 contract, which affirmed that her position remained that of ‘scholarly teaching fellow’. Nothing in the 2020 contract indicates that the 40:40:20 provision will apply to her employment.

[41] The NTEU relied upon the fact that the 2020 contract contains numerous references to an ‘appointment’. Why, asked the union, would the parties to the 2020 contract have referred repeatedly to an appointment, if they had not regarded the 2020 contract to be a ‘further appointment’ of Dr Abeysekera to a scholarly teaching fellow position? In my view, the answer is simply that the word is used in a colloquial, everyday sense, with no regard to clause 20.1 of the 2019 Agreement. The 2020 contract template is evidently one that can be used for a person employed (‘appointed’) initially to a continuing scholarly teaching fellow, as clause 17.5 of the 2014 Agreement permits. It is not one that is tailored to the circumstances of a converted scholarly teaching fellow. None of the references to ‘appointment’ in the contract suggest a connection with clause 20.1 of the 2019 Agreement.The fact that the 2020 contract uses the word ‘appointment’ does not mean that Dr Abeysekera was appointed to a scholarly teaching fellow position within the meaning of the first sentence of clause 20.1 of the 2019 Agreement. Further, the words of a contract made after the approval of the 2019 Agreement could not rationally affect the objective meaning of the terms of that instrument, which is the meaning that I have explained above.

[42] I do not accept the NTEU’s contention that clause 17 of the 2014 Agreement ceases to apply to a fellow if their fixed term contract ends, in circumstances where they are converted to continuing employment. The second sentence of clause 20.1 applies to fellows employed at a particular time, not to their contracts. I note that the 2020 contract was made before Dr Abeysekera’s fixed term contract ended, although it did not take effect until the day after the fixed term contract ended. In this regard, it could be argued that the 2020 contract did as a matter of fact effectuate an appointment, because without the 2020 contract, Dr Abeysekera would have ceased to be employed by the university. In my view, this was at most a reappointment. To the extent that one might speak in general terms of such a reappointment being an ‘appointment’, it was not an appointment within the meaning of the first sentence of clause 20.1. It was a conversion of an existing scholarly teaching fellow to continuing employment as required by clause 17.5 of the 2014 Agreement, which continued to apply to Dr Abeysekera because of the second sentence of clause 20.1.

[43] Finally, I would note that even if the 2020 contract were to be regarded as a further appointment of a scholarly teaching fellow contrary to clause 20.1, I cannot identify any basis upon which it could be contended that Dr Abeysekera has an entitlement under the 2019 Agreement to be employed in a position that is subject to the 40:40:20 allocation provision in clause 66.10. Nor do I see how it might be contended that, if the 2020 contract were void for illegality on the basis that it contravened clause 20.1 and therefore s 50 of the Act, Dr Abeysekera had a contractual right to be employed in such a position. I see no basis in the evidence for a contention that there existed an implied contract or term requiring the university to employ Dr Abeysekera in a position subject to the 40:40:20 provision.

Conclusion

[44] The 2020 contract was not a ‘further appointment’ within the meaning of clause 20.1 of the 2019 Agreement. The contract converted Dr Abeysekera’s employment as a scholarly teaching fellow from fixed term to continuing employment. Clause 17.5 of the 2014 Agreement required this conversion. It did not require the university to appoint her to a different position. Dr Abeysekera’s conversion to continuing employment did not entail an ‘appointment’. But if it did, it was not one prohibited by clause 20.1.

[45] The answer to the question posed for determination is ‘no’.

DEPUTY PRESIDENT

Appearances:

E. Dalgleish for the National Tertiary Education Industry Union
M. Felman of counsel for Monash University

Hearing details:

2021
Melbourne
21 October

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