National Tertiary Education Industry Union v Monash University
[2016] FWC 5326
•17 AUGUST 2016
| [2016] FWC 5326 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Tertiary Education Industry Union
v
Monash University
(C2015/6661)
COMMISSIONER BISSETT | MELBOURNE, 17 AUGUST 2016 |
Alleged dispute about any matters arising under the enterprise agreement and the NES [s186(6)].
[1] The National Tertiary Education Industry Union (NTEU) has made an application to the Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act). The dispute arises under the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 1 (the 2014 Agreement) and is brought to the Fair Work Commission (the Commission) in accordance with the provisions of the dispute settling procedures.
[2] The dispute arose through the decision by Monash University to counsel some academic staff for unsatisfactory performance in accordance with clause 53 of the 2014 Agreement.
[3] The NTEU says that, prior to embarking on the process contained in clause 53, it is necessary that Monash University undertake the process in clause 64, including the issue of a report in accordance with clause 64.6 of the 2014 Agreement.
Clauses in dispute
[4] The dispute relates to three clauses in the Agreement:
● Clause 3.14 which defines a ‘Supervisor’;
● Clause 53 – Termination of Employment and Disciplinary Action – Academic Staff; and
● Clause 64 – Performance Development.
[5] These clauses are set out in Appendix A to this decision.
Background
[6] In mid to late 2015 Monash University held meetings with a number of academic staff pursuant to clause 53.5 of the 2014 Agreement. The meetings were attended by the academic staff member, their representative/support person, their supervisor and a member of the human resources (HR) group.
[7] The purpose of the meetings was to discuss the performance of the academic staff member in relation to research publications.
[8] The NTEU says that at these meetings the discussion was limited to the accuracy of the data on research publications. It says that Monash University refused to discuss any mitigating factors and took a very broad view of who a supervisor is.
[9] The NTEU says that process by which the decision was reached to commence proceedings under clause 53.5 of the 2014 Agreement was flawed and that Monash University has put staff through unnecessary distress by the process it used. Further, it says that it is not evident that the supervisor had formed the requisite view necessary to commence the process.
[10] In notifying the dispute to the Commission the NTEU identified 13 individuals who it said had been unfairly treated by the instigations of an unsatisfactory performance process under clause 53.5 of the Agreement.
[11] Following conciliation at the Commission, the parties had further private meetings in relation to the dispute. On 14 March 2016, Monash University wrote to the Commission and advised that, during direct discussions between the parties, it became apparent that the NTEU’s position had evolved such that it now claimed that, as a precondition to counselling staff under clause 53.3, the University must have formally counselled the staff member for unsatisfactory performance under clause 64 with a record that met the requirements of clause 64.6. On this basis, Monash University indicated the questions it understood would need to be answered in any arbitration of the matter.
The question to be answered
[12] In its submissions, the NTEU identified the following questions to be answered in the arbitration of the dispute:
1. Can any action related to performance under clause 53.5 commence prior to the exhaustion of the actions under clause 64.6?
2. Has the University properly applied clause 53.5 to the academic staff named in this dispute. 2
[13] The NTEU also says that the person who is required to form a view as to non-performance, whether under clauses 53 or 64 is the supervisor of the employee. “Supervisor” is defined in clause 3.14 or otherwise in clause 64.11 of the 2014 Agreement. In the particular instances in dispute there is no evidence that the supervisor reached a view of underperformance such that the clause 53 process should be utilised.
[14] Further, the NTEU seeks orders from the Commission in the following form:
1. In respect of those NTEU members named in this matter still employed by Monash University:
a. That the University discontinue all processes on foot under clause 53.
b. Should the Monash University retain or raise new concerns regarding the performance of any of these staff members, it must apply and complete the provisions of clause 64 prior to commencing clause 53 activity.
2. The processes of clause 64 may not substitute for the processes of clause 53.5. Clause 53.5 requires a supervisor who is of the view that the staff member’s performance is unsatisfactory and activates the provisions of clause 53, to provide them counselling in the form of advising the nature of the improvement in performance that is required and the timeframe for reasonable improvement; keep a record of counselling and provide the staff member with a copy and direct the staff member to appropriate professional development. 3
[15] Monash University submits that, taking into account the questions put by the NTEU and the orders sought by it, the matters to be determined are:
1. the intersection between clause 53 and clause 64 and whether, on a proper application of clause 53.5:
(a) is a supervisor precluded from taking action related to performance under clause 53.5 prior to the exhaustion of the actions under clause 64.6;
(b) can a supervisor only form the view that a staff member’s performance is unsatisfactory for the purpose of clause 53.5 by exhausting clause 64;
(c) can documented unsatisfactory performance discussions and counselling within the PDO processes under clause 64 that meet the elements of clause 53.5 (which are the same elements as appear in clause 64.6) constitute counselling for the purposes of clause 53.5?
2. Who is ‘a supervisor’ for the purposes of clause 53.5 and 53.6 and does ‘a supervisor’ include the staff member completing the PDO under clause 64 and the Head of Department?
3. Having regard to the above, should the University be required to discontinue all processes under clause 53.5 in respect to the four identified staff who remain at the University? 4
Jurisdiction
[16] I am satisfied that the provisions of clause 12 – Dispute Resolution Procedure of the 2014 Agreement has been followed and the dispute is properly before the Commission in accordance with clause 12.5 of the 2014 Agreement.
[17] Further, I am satisfied that the dispute is about a matter arising under the 2014 Agreement – in particular the dispute relates to the proper application of clauses 53 and 64 of the Agreement.
[18] I am therefore satisfied that I have jurisdiction to deal with the matter.
Negotiations for the 2014 Agreement
[19] The 2014 Agreement replaced the Monash University Enterprise Agreement (Academic and Professional Staff) 2009 5(the 2009 Agreement).
[20] Clause 53 as it appears in the 2014 Agreement replicates clause 53 from the 2009 Agreement.
[21] Clause 64 in the 2014 Agreement is a consolidation of clause 59 – Performance Management – Academic Staff and clause 65 – Professional Staff Performance Management Scheme of the 2009 Agreement.
[22] Mr Greg Crundall, Manager Workplace Relations (Strategy) gave evidence that Monash University and the NTEU negotiated a single performance management clause (clause 64 of the 2014 Agreement) to replace the two previous clauses that referred to professional and academic staff. He says that clause 64.6 of the 2014 Agreement reflects clause 65.11 of the 2009 Agreement (that applied to professional staff only). 6
[23] No evidence was given or material put to me in the hearing of this application that suggests that in those negotiations any special meaning, function or priority was given to clause 64 in relation to the operation of clause 53.5 of the 2014 Agreement.
[24] Nothing was put that suggests there was any special relationship between clause 64 (performance management for academic staff) and clause 53 (counselling for unsatisfactory performance) of the 2009 Agreement that would have carried through the negotiations for the 2014 Agreement.
[25] I am therefore not satisfied that there was anything in the negotiation for the 2014 Agreement that provides any particular context for the operation of the 2014 Agreement that I should have regard to in reaching my decision.
[26] Ultimately, what became clause 64 of the 2014 Agreement was agreed between the NTEU and Monash University after a series of meetings and exchange of proposals. The minutes of a bargaining meeting of the parties on 27 February 2013 indicates that the parties had agreed on the wording of the clause.
The operationalisation of clause 64
[27] Evidence was given to the Commission by Professor Christine Brown, Head of Department of Banking and Finance at Monash University.
[28] Professor Brown’s evidence is that, as Head of Department, she acts with the delegated authority of the Dean of the faculty (in this case the Monash Business School). Her evidence is that her ‘duties and responsibilities, including responsibility for academic leadership and academic performance, are not delegated further within [her] department.’ 7
[29] Professor Brown says that she has responsibility for management of the academic staff within her Department including the ‘performance management of the 49 academic staff within [her] department.’ 8
[30] Professor Brown says that, given the structure of the faculties and departments, an academic’s immediate manager would be the relevant Head of Department. 9
[31] Professor Brown says that the Professional Development Online (PDO) system within the University is the operationalisation of clause 64 of the 2014 Agreement. 10 Her evidence is that the PDO system operates on an annual cycle with one formal performance review per annum and that it is, essentially, a continuous process.
[32] She says that she nominates PDO supervisors as part of her role as Head of Department. Her evidence is that the role of the PDO supervisor is to support the performance development of the academic staff member. The PDO supervisor also completes an ‘annual planning and review document’ with the staff member.
[33] Professor Brown says that, as she is responsible for all academic staff within the department, she is kept informed of the PDO process and meets regularly with the PDO supervisors. Her evidence is that if there is a specific issue with a staff member’s performance that arises through the PDO process the PDO supervisors are required to make her aware of the issue and if those issues are on-going she would take over as the PDO supervisor. She sees this as appropriate as she is ultimately ‘in a reporting and supervisory role for an academic’. 11
[34] Professor Brown says that she would commence a clause 53.5 process when, in consultation with the PDO supervisor, she considered that an academic staff member was failing to meet the performance standards expected of them. 12
[35] Professor Brown says that whilst formal counselling under clause 53.5 would generally follow discussions and informal counselling with the academic staff member, the PDO process and clause 53.5 process are not consecutive processes. She says that the clause 64 process continues through an academic’s period of employment whilst clause 53.5 processes are rare. 13
[36] Professor Brown says that PDO supervisors do not have delegated authority for staffing matters, 14 that she is not aware of an academic staff member being counselled by a PDO supervisor15 and she considers it imperative, given her role, to be involved in the clause 53.5 process for academic staff in her department.16
[37] Professor Brown says that academic staff do not have ‘line managers’ (as used in clause 3.14 of the 2014 Agreement), and in her view, the ‘ultimate supervisor’ with respect to academic staff is the Head of Department. 17
[38] With respect to the report that is created in accordance with clause 64.6 of the 2014 Agreement, Professor Brown’s evidence is that there is no template report generated from the system but that the PDO supervisor completes the PDO including a summation of the performance for the academic year and the academic staff member gets to see that report. 18
[39] Professor Brown is chair of the Academic Heads network at Monash University and says that, through this, she is confident that the evidence she gave with respect to her faculty and department are generally applicable across the University. 19
What is the relationship between clause 53 and clause 64 of the 2014 Agreement
[40] Both parties have made submissions that the words of the Agreement are clear.
[41] The NTEU argue that the provisions in relation to disciplinary action in clause 53, and in particular the counselling for unsatisfactory performance in clause 53.5 cannot be enlivened until such time as the performance development process – and in particular the creation of the report required by clause 64.6 in the case of unsatisfactory performance – has been completed.
[42] The NTEU notes that clause 53.5 of the 2014 Agreement requires that a supervisor reach a view that the staff member’s performance is unsatisfactory. Having reached such a view, counselling must occur, the nature of the improvement and time within which it should occur is identified, a record of the counselling is kept and, if appropriate, professional development provided. Should performance not improve further, detailed steps are then set out in clause 53 for dealing with unsatisfactory performance.
[43] The NTEU says that the first, critical step in this process is that the supervisor must form a view as to unsatisfactory performance and the only basis for forming this view is through the clause 64 process.
[44] Further, it says prior to a report being written under clause 64.6 the steps at clauses 64.1-64.5 must be completed. In particular, it says that in reaching any conclusion about a staff member’s performance the supervisor must ensure that the assessment is consistent with:
● whether the staff member has performed at an appropriate level for the staff member’s appointment;
● the position description relevant to the staff member;
● the existence of non-traditional career paths;
● equity and access policies of the University; and
● enabling or mitigating circumstances. 20
[45] That is, these are factors the supervisor must take into account before making a determination under clause 64.6 as to unsatisfactory performance.
[46] The NTEU submits that if a staff member could be subject to clause 53.5 prior to the completion of the clause 64 process then clause 64.6 would have no work to do and the additional protections afforded to a staff member by clause 64.5 would not be available.
[47] Monash University submits that clause 53.5 provides for counselling in the event of unsatisfactory performance or conduct. It allows for concerns to be identified and improvements to be specified.
[48] Clause 64, on the other hand, provides for an on-going performance development process.
[49] Clause 53.5, it submits, can occur concurrently, in parallel or as part of the on-going PDO process.
[50] Monash University submits that the PDO process may inform the identification of unsatisfactory performance and counselling under clause 53.5 but there are no grounds to find that the clause 64 process must be exhausted prior to the commencement of any process under clause 53.5.
[51] Monash University says that, despite the submissions of the NTEU, if it had been intended that the clause 53.5 processes could not commence until clause 64 had been exhausted it could be expected that clause 53.5 would say so. It does not.
[52] Monash University says that its position is further supported by the remainder of clause 53 which provides for a staged process and further protections for staff. It says that the detailed provisions of the steps following clause 53.5 serve to highlight the relative informality of clause 53.5.
[53] Monash University submits that the PDO process is an on-going process and is directed at developing staff over the period of their career. It occurs every year regardless of performance level. It says that clause 64 allows for counselling to occur for unsatisfactory performance as identified in the PDO process. The elements of the counselling it says are substantially the same as those under clause 53.5 such that the NTEU proposal would have essentially the same process occurring twice with the same supervisor.
[54] Monash University submits that the limitations now being proposed by the NTEU on the operation of clause 53.5 were not subject to discussion during bargaining for the 2014 Agreement such that any common intent of the parties, as put by the NTEU, could be identified.
Consideration
[55] The principles relevant to interpreting an agreement are most usefully summarised in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 21
[56] I am satisfied that there is no ambiguity in clauses 53 or 64 of the 2014 Agreement. Each is clear on its face as to its operation. That there may be differing views as to how two clauses might interact is not, in my view, evidence of ambiguity. It is therefore not necessary that I should consider ‘surrounding circumstances’ for the purpose of resolving that ambiguity.
[57] Given that both parties put that the 2014 Agreement is plain on its face, it would not be appropriate for me to consider the surrounding circumstances so as to contradict those plain words.
[58] In reaching my decision as to the lack of ambiguity I have taken into account that there is nothing in clauses 53 or 64 of the 2014 Agreement that suggests that either has primacy or that establishes particular means of interaction between them in matters related to unsatisfactory performance.
[59] Clause 64 provides for performance development of staff based on the compilation of a performance plan submitted by a staff member and approved by the supervisor. It operates on an annual cycle with formal and informal feedback (clause 64.1). The objectives of the performance development cycle include the identification of training and development opportunities, to provide regular feedback and to plan agreed performance goals (clause 64.2).
[60] Performance discussions focus on the staff member’s progress towards the goals established and the identification of strategies for achieving those goals (clause 64.3).
[61] The performance review and feedback sessions focus on a review of the role and responsibilities of the staff member including objectives, skills etc established in the previous feedback, workload, acknowledgement of achievements, development of professional development activities, feedback against objectives and if performance has been satisfactory and feedback and coaching (clause 64.4).
[62] There must be at least one formal performance review per annum (clause 64.3).
[63] The outcome of the performance development process requires a decision as to whether to grant or withhold an increment or the grant of an additional increment (clause 64.7).
[64] Where the supervisor reaches a conclusion that performance has not been satisfactory, a report is issued setting out the performance required and the timelines within which improvement should be achieved (clause 64.6).
[65] It is apparent that the process set out under clause 64 is a positive process, concentrating on goals and objectives established at the commencement of the cycle and providing staff with an opportunity to develop their skills and effectiveness.
[66] Even where a staff member’s performance does not meet the stated objectives, the extent of any penalty for unsatisfactory performance is a report under clause 64.6 and the possible withholding of an increment.
[67] Clause 53 sets out a disciplinary process. It is activated if a supervisor reaches the view that the staff member’s performance (or conduct) is unsatisfactory.
[68] The first step in the clause 53 process is counselling on the nature of the improvement required (clause 53.5).
[69] Where such counselling does not result in the required improvement, a formal report is made to the Dean (clause 53.6). The staff member has an opportunity to respond to the report prior to the Dean deciding on disciplinary action (clause 53.9). On request, the decision as to disciplinary action is subject to review (clause 53.14).
[70] On such a summary it is easily seen that clauses 53 and 64, whilst both concerned with improved performance, are directed at quite different matters. I accept that the clause 53 process is used sparingly whilst clause 64 is an on-going process which applies to all staff.
[71] If a report under clause 64.6 is directed to the agreed performance plan it is difficult to see how it could then be the basis for action under clause 53.5 for anything except what is in the agreed plan.
[72] If action could only be instigated under clause 53.5 following a report under clause 64.6 then actions or performance standards not in the clause 64.6 plan could not be subject to a clause 53.5 process. This leads to a scenario where a supervisor may insist that every aspect of a staff member’s day to day activities must be subject to performance criteria in the performance plan – leading to a situation where the plan is not about development but rather about oversight of the minutia of an academic’s day.
[73] This is not to suggest, in relation to matters properly contained within a clause 64 development plan, that a failure to meet those requirements could not result in a process under clause 53.5 of the 2014 Agreement.
[74] If a matter is in the performance development plan in accordance with clause 64.1, it is reasonable to expect it would be subject to a clause 64.6 report and actions prior to the instigation of a clause 53.5 process. This is because clause 64 is about development and a failure to meet expectations should first be subject to this development.
[75] Despite this, there is nothing in clause 53.5 that suggests that the only way the supervisor can form a view as to unsatisfactory performance is through the clause 64 process. That argument of the NTEU is just not sustainable on the words of the Agreement and when I asked Mr Rosenthal, for the NTEU, where such a proposition was made clear in the 2014 Agreement, he could not tell me. 22
[76] I accept the evidence of Professor Brown that a supervisor can form a view as to a staff member’s performance through a range of sources. 23 These might be through the formal performance development process in clause 64, or it might be through direct observation, student reports, other management systems of the University or some other means.24
[77] In summary, there is nothing in the 2014 Agreement that requires that the clause 64 process must be exhausted prior to any action commencing against an employee under clause 53.5.
[78] Whilst there is nothing in the 2014 Agreement that would stop performance discussions and counselling under clause 64.6 being seen to also constitute discussions required under clause 53.5, caution should be exercised given the differing purposes and potential outcomes of such discussions. The threat of action under clause 53.5 should not discourage efforts and openness under clause 64.6.
[79] I am satisfied, despite the submissions of the NTEU, that there are protections for a staff member undergoing the clause 53.5 process without going through the clause 64 process first. Regardless of what is or isn’t in the 2014 Agreement a staff member has the right to be afforded procedural fairness. However, those matters in clause 64.5 should provide exemplary guidance to the University on matters that should be taken into account in considering if action should be taken for unsatisfactory performance under clause 53.5 along with accepted aspects of procedural fairness.
[80] There is no ambiguity in clauses 53 or 64 or what it is they intend to achieve. Clause 53 relates to managing unsatisfactory performance or conduct. Clause 64 relates to on-going performance and is linked to progression through the increment scale. Neither is a prerequisite for the other.
Who is the supervisor?
[81] There were substantial submissions made as to who the supervisor of an academic staff member is. Both clauses 53.5 and 64.6 require that the ‘supervisor’ must form a view before the actions of the clauses are initiated. Who holds this position is, therefore, of some importance.
[82] The 2014 Agreement is clear that a supervisor is the person with day to day supervision of the staff member 25 or a person otherwise appointed in accordance with clause 64.11. It seems to be generally agreed, and I accept, that academic staff members, because of the work they do and the autonomy with which they work, do not have someone who has ‘day to day’ supervision of them as may be the case for non-academic staff.
[83] Professor Brown’s evidence is that it is practice within her Department and, based on her knowledge she believes other Departments, to appoint a PDO supervisor for academic staff who would not otherwise be the supervisor as defined in clause 3.14 of the 2014 Agreement.
[84] Clause 64.11 allows for a different supervisor to be appointed by the University. In addition, clause 64.14 allows for the Vice-Chancellor to delegate another person to be the academic supervisor as long as the person is classified at Level C or above and is more senior than the person being supervised. There is no evidence that this occurred for any of the staff in relation to the matter before me.
[85] The NTEU suggest in its submissions that, in order to form a view that a staff member’s performance is unsatisfactory, the supervisor needs full knowledge of the staff member’s performance against their performance plan. Therefore, the person who must form the view under clause 53.5 is the same supervisor as the one under clause 64, that is, the PDO supervisor appointed by the Head of Department.
[86] Monash University says that who constitutes a supervisor should not be narrowly construed.
[87] Monash University submits that a ‘supervisor’ does not have to be the PDO supervisor. It says that this is supported by the university structure, that the head of department has delegated responsibility from the Dean including responsibility for the performance of staff and is the supervisor of academic staff within the Department and that academic staff are semi-autonomous professionals who work under limited direction.
[88] Monash University also says that PDO supervisors do not have day to day supervision of academic staff, for example supervision in relation to teaching, whilst limited, comes from the unit coordinator. In some instances Monash University says a PDO supervisor may be a peer working in collaboration with the staff member and the staff member would not accept formal disciplinary action from such a person.
[89] Monash University further submits that, as the head of department is responsible for academic performance and conduct, this person is the supervisor for the purpose of commencing a process under clause 53.5 of the 2014 Agreement. That this is a person different to the PDO supervisor is permitted under the 2014 Agreement and is supported by the use do the term ‘a supervisor’ and not ‘the supervisor’ in clause 53.5.
Who is the ‘supervisor’ for clause 64?
[90] I am not convinced that the PDO supervisor is the supervisor required to reach a view pursuant to clause 64.6. I have reached this conclusion based on the evidence of Professor Brown that, whilst she has a number of staff who perform the role of PDO supervisor, she is ultimately the supervisor for the staff member. 26
[91] Whilst reference was made extensively in the hearing to the ‘PDO supervisor’ this is not a term defined in the 2014 Agreement. However, it seems that there is nothing to stop the Head of Department (who clearly is a supervisor as defined) managing the PDO process through administrative arrangements as he or she sees fit as long as it is clear that the head of department is, ultimately, the supervisor for the purposes of clause 64. It is clear from Professor Brown’s evidence that this is how she deals with unsatisfactory performance identified through the PDO process. This is consistent with the evidence of Professor Brown and the submissions of Monash University that the Head of Department is responsible for academic performance.
[92] I am therefore satisfied that the Head of Department is the supervisor for academic staff members for the purposes of clause 64.
Who is the ‘supervisor’ for clause 53?
[93] Monash University seeks to draw a distinction between ‘the supervisor’ referred to in clause 64 and ‘a supervisor’ referred to in clause 53 and says that the distinction between ‘the’ and ‘a’ supervisor supports its conclusion that an academic staff member can have multiple supervisors.
[94] I find it difficult to accept that, in drafting the 2014 Agreement, not having turned their minds to other things (including the relationship between clauses 64 and 53.5), the parties thought long and hard about whether to use the definite or indefinite article when referring to supervisors, what this meant for each clause where one of the other was used and what effect this had on reading the 2014 Agreement. No evidence was given to suggest this entered anyone’s mind during negotiations for the 2014 Agreement or any predecessor agreements.
[95] Efforts to attribute some special meaning to the use of ‘a’ and ‘the’ in the two clauses in question is to take, in my view, an overly technical approach not suited to an industrial agreement. 27
[96] If Monash University was correct and it could be a different supervisor who formed a view under clause 53.5 from the one who formed a view under cause 64.6, then nothing that occurred in the clause 64 process could be relied on in the clause 53.5 process.
[97] I accept the evidence however that the supervisor is the relevant Head of Department. I reach this conclusion based on the uncontroverted evidence of Professor Brown and submissions of Monash University that responsibility for the performance and conduct of academic staff rests with the Head of Department. This is further supported through the position description for an Academic Head of Department which includes that the person:
● take overall responsibility for relevant aspects of staff management; and
● take responsibility for the performance management, mentoring and staff development of academic, administrative and support staff 28
[98] Absent any advice to the contrary to a staff member of appointment of an alternative supervisor, the supervisor for the purposes of clause 53.5 is the Head of Department.
The clause 64.6 report
[99] Some time was spent in this mater discussing the report required under clause 64.6. Professor Brown’s evidence is that there is no particular template report that comes out of the PDO system but rather that the content of the PDO itself, including the summation of performance for the year, is the report required under clause 64.6.
[100] Professor Brown’s evidence is that, as a PDO supervisor, when she is concerned about the performance of an academic staff member under her supervision, she informs the staff member of the concern that they are not performing to expectations and, in the final summary (of the PDO documentation), indicates the performance to be unsatisfactory. She believes that such documentation conforms to the requirements of clause 64.6. 29
[101] The NTEU say that it is this report which must be able to be identified. The report must indicate how matters in clause 64.5 were taken into account and must articulate the improvements required and the timelines for that improvement.
[102] There is nothing in clause 64.6 that requires a separate report to be generated to that already held in the on-line system to meet the requirements of clause 64.6. It does seem to me that at some point however a staff member does need to be provided with information that makes it clear that what has been provided is the report that meets the requirements of clause 64.6. To not do so is to leave room for doubt as to the status of an academic staff member’s performance.
[103] I have viewed the PDO reports with respect to the four named individuals still subject to the clause 53.5 process including what I understand to be the clause 64.6 reports.
[104] The PDO material I have access to does not, in my view, include the clause 64.6 report or, if it does, it fails to meet the requirements of clause 64.6.
[105] Whilst I do not accept that the clause 64.6 report needs to be separate from the PDO documentation or that it must articulate how the matters in clause 64.5 have been considered, it must:
1. clearly identify the performance standards not met (beyond general statements such as ‘X must put more effort into…’), and
2. clearly identify the improvement required and the timelines over which it must be achieved (which may be incremental or absolute).
[106] Nothing I have seen in the PDO reports does this.
Conclusion
[107] When the NTEU first notified the dispute to the Commission, it identified 13 academic staff members it says had been subjected to meetings under clause 53.5 that were not conducted in accordance with the provisions of the 2014 Agreement.
[108] Of those 13 staff, Monash University has withdrawn the process with respect to three staff, six staff have left or have indicated that they will be leaving the University and four staff are still subject to the clause 53.5 process.
[109] In relation to the three staff for whom the process has been withdrawn, there is nothing that needs to be said. Monash University says that the clause 53.5 process, if it is to be applied, will be done in accordance with the 2014 Agreement.
[110] Of the six staff who have left or have indicated they intend to leave employment, Monash University has provided an undertaking to the effect that whatever information might be held on the personnel files of such staff in relation to the clause 53.5 process, that information will not be disclosed without the consent of those staff members, subject to the operation of the law. 30
[111] I have found above that a report under clause 64.6 is not a necessary pre-requisite for commencing the process under clause 53.5. It follows therefore that, on its face, there is nothing to stop Monash University continuing with the clause 53.5 process with respect to the four individuals.
[112] I have however expressed some caution as to the approach taken taking into account the PDO process and I recommend that Monash University heed that caution.
[113] I have also made some observations on an apparent weakness of the information contained, in particular, in the clause 64.6 reports as they are expressed to be read from the PDO documentation.
[114] As a further observation I would say that it is not unusual that a representative from human resources might be present when a process such as that contemplated by clause 53.5 is undertaken. Expert advice on policy and process to the supervisor can be invaluable in ensuring rights are observed and obligations properly met. Having said this, I would observe that clause 53.5 requires that the supervisor forms a view with respect to performance and the supervisor undertake certain steps. Human Resource representatives should be careful not to be seen to usurp the role of the supervisor and should avoid attempts to control, rather than support, the process.
[115] I have carefully considered the material in relation to the four individuals. I am not satisfied that this material has been properly subject to evidence or submissions of the parties to enable the Commission to reach any concluded view as to whether it meets the requirements of the 2014 Agreement. However, I would encourage the parties to consider the status of each of these cases in light of this decision. The Commission is prepared to offer assistance with further conciliation with respect to the individuals if required.
[116] In answer to the specific questions posed by the NTEU, the answers are:
Question 1 | Yes |
Question 2 | The Commission does not have enough information to determine this matter. I am not satisfied that any evidence or submissions were made such that this question can be answered with any confidence. |
[117] In relation to the specific questions put by Monash University:
Question 1 (a) | No |
Question 1 (b) | No |
Question 1(c) | The 2014 Agreement provides no guidance on this. Common sense, procedural fairness and the necessity for the supervisor to be the same person should, however, provide some guidance. |
Question 2 | The supervisor is the Head of Department (unless otherwise notified pursuant to clause 64.11). This precludes the ‘PDO supervisor’ unless that person is also the Head of Department or has been otherwise appointed in accordance with the 2014 Agreement. |
Question 3 | No, but a review of the stage each of these has reached in light of this decision should be undertaken as outlined above. |
[118] Given my findings it is not necessary to consider the orders sought by the NTEU.
COMMISSIONER
Appearances:
S. Rosenthal for the National Tertiary Education Industry Union.
A. Picouleau for Monash University
Hearing details:
2016.
Melbourne:
July 13.
Appendix A
3. DEFINITIONS
3.14 "Supervisor" means the person who is responsible for the day-to-day supervision of the staff member.
53. TERMINATION OF EMPLOYMENT AND DISCIPLINARY ACTION – ACADEMIC STAFF
Application and Definitions
53.1 This clause applies to continuing and fixed-term Academic Staff members only. It does not apply during any period of probationary employment.
53.2 "Disciplinary action” for academic staff is action by the University to discipline a member of academic staff for unsatisfactory performance, misconduct or serious misconduct, as follows:
(a) Formal censure or counselling;
(b) Demotion by one or more classification levels or increments;
(c) Withholding of an increment;
(d) Suspension with or without pay; and/or
(e) Termination of employment.
Disciplinary action for misconduct shall be as set out in clause 53.2(a)-(d).
The provisions in this Agreement will be subject to and will not affect the operation of:
● any law empowering a State or Commonwealth industrial tribunal to order reinstatement of or compensation to a staff member or to otherwise deal with the dismissal of that staff member; and
● any other law empowering any court or tribunal external to the University which has jurisdiction to deal with any causes of action or claims arising from actions taken by the University pursuant to this Agreement.
This Agreement is to be read in conjunction with Division 11 of Part 2-2 of the Fair Work Act 2009, including the minimum notice periods in section 117 of the Act. However, Division 11 of Part 2-2 of the Act is taken not to reduce or remove any additional rights provided under this Agreement.
Notice of Termination
53.3 Notice of termination will be in accordance with section 117 of the Act, provided that any greater period of notice specified in the staff member's contract of employment or in this Agreement will continue to apply.
53.4 Notice shall not be required in relation to the termination of a staff member found to have engaged in serious misconduct of such a nature that it would be unreasonable to require the University to continue the employment of the staff member concerned during the required period of notice, such as, but not limited to:
● Theft;
● Fraud;
● Assault;
● Being intoxicated at work; or
● Refusing to carry out a lawful and reasonable instruction that is consistent with the staff member’s contract of employment.
Counselling for Unsatisfactory Performance and/or Conduct
53.5 Where a supervisor is of the view that the staff member’s performance and/or conduct is unsatisfactory, the supervisor shall counsel the staff member in accordance with the following counselling requirements:
(a) The supervisor shall first counsel the staff member on the nature of the improvement required and the time within which reasonable improvement is expected;
(b) A record shall be kept of the counselling given and a copy supplied to the staff member; and
(c) If the supervisor considers appropriate, the staff member will be directed to appropriate professional development to assist in improving performance.
Supervisor’s Report and Staff Member’s Response
53.6 Where a supervisor believes that counselling has not produced the desired improvements in performance, or alleged misconduct or serious misconduct is denied by the staff member or in the opinion of the University, counselling is not an adequate response to the alleged conduct, a formal report will be provided to the relevant Dean and the Vice-Chancellor by the supervisor or representative of Monash HR. The report will state clearly the aspects of performance and/or conduct seen as unsatisfactory and the record of any attempts to remedy the problem.
53.7 The staff member will be provided with a copy of the report and be given 10 working days to provide a written response to the report to the Dean and to the Vice-Chancellor…
53.9 Upon receipt of the supervisor’s report and any written response from the staff member, the Vice-Chancellor will satisfy himself/herself that appropriate steps have been taken by the supervisor and may make such further enquiries as the ViceChancellor considers reasonable and appropriate to determine if disciplinary action should be imposed…
Decision of the Vice-Chancellor
53.12 Following the inquiries in clauses 53.9 and 53.11 (if applicable) the Vice-Chancellor may then decide to: (a) take no further action; or (b) in the case of a report of unsatisfactory performance, refer the matter back to the supervisor to ensure that appropriate steps are complied with in substance and in a manner appropriate to the circumstances; or (c) take disciplinary action…
64. PERFORMANCE DEVELOPMENT
64.1 A performance review system applies to all continuing and fixed-term staff based on the compilation of a performance plan to be submitted by each staff member and approved by that staff member's supervisor. Staff will be provided with the opportunity to develop their skills and effectiveness within the University.
This system operates as an annual cycle with formal and informal reviews and feedback. This should include feedback from a range of people with whom the staff member interacts.
The supervisor will advise the staff member in writing of planned time-lines for the submission of the portfolio and of the timing of the formal meetings. The performance development of a supervisor will contain an upward appraisal component. That is, in the lead up to the completion of the supervisor’s annual performance review, his/her supervisor will consult as appropriate with the supervisor’s staff to provide feedback on their supervisor’s performance as a supervisor.
64.2 The objectives of performance development at the University are to be achieved within reasonable timeframes within the annual cycle and are as follows:
● to determine appropriate training and development opportunities in relation to the position and for career development purposes;
● to provide feedback to the staff member and supervisor on a regular basis;
● to plan agreed performance goals and staff development/training activities for the next annual cycle;
● to link individual performance and development planning to the goals and priorities of the work unit/department and the University more broadly; and
● to ensure that the workload is manageable and consistent with the continued health and safety of the staff member.
64.3 All fixed-term and continuing staff will be required to participate in one formal performance review per annum, supported, where possible, by regular informal feedback meetings. Performance discussions will focus on the staff member’s progress towards the goals established for the staff member and their career aspirations and will identify strategies for achieving these goals. Formal performance review discussions will be documented.
64.4 The principal elements to be covered in performance reviews and feedback discussions are:
● review of the role and/or responsibilities of the staff member, including objectives and skills and/or knowledge acquisition set in previous feedback discussions;
● consideration of the workload of the staff member (although staff members may raise workload issues with their supervisors whenever there is a concern or problem);
● acknowledgement of initiatives and achievements of the staff member;
● the development of a plan which includes staff or professional development activities and future performance objectives;
● feedback to the staff member on his or her performance against previously determined objectives and whether or not performance has been satisfactory; and
● feedback and coaching to the staff member on specific areas that would benefit from development.
64.5 Assessment of performance will be consistent with:
● whether the staff member has performed at an appropriate level for the staff member's appointment;
● the position description relevant to the staff member;
● the existence of non-traditional career paths;
● equity and access policies of the University; and
● enabling or mitigating circumstances.
64.6 Where a staff member’s performance is determined by the supervisor to be unsatisfactory, the supervisor will identify in writing the factors which have not been satisfactorily met. The report will specify the improvement required to achieve the goals and objectives, or satisfactory progress towards them, and the proposed timelines for meeting the requirements for improvement. A copy of the report will be provided to the staff member, the supervisor and the head of unit.
Incremental Advancement (Academic and Professional Staff)
64.7 A staff member's entitlement to incremental progression will be based on the staff member's performance being assessed as satisfactory. Assessment of performance will be consistent with the annual performance review and clause 64.5 above.
64.8 Consideration will be given to granting additional increments within the relevant level in cases where it can be clearly demonstrated by the supervisor that the staff member has consistently exceeded the required performance level.
64.9 Where the staff member’s performance is not satisfactory and a supervisor proposes to withhold an increment from a staff member entitled to incremental progression, the supervisor will:
(a) advise the staff member of the reasons for the proposed withholding of the increment; and
(b) give the staff member an opportunity to respond to the reasons provided; and
(c) allow sufficient opportunity (usually at least three (3) months) for the staff member to improve performance to the standard required to progress to the next incremental step.
64.10 Where an increment is withheld the staff member may dispute the decision in accordance with the Employment Related Grievance Resolution Procedure starting the procedure at clause 56.9.
Supervisors (Academic and Professional Staff)
64.11 The nominated supervisor of a staff member will be the relevant immediate line manager unless the University nominates an alternative supervisor.
64.12 Prior to undertaking supervisory responsibilities under the performance development process, each supervisor will complete training in the process and methods of giving feedback.
Academic Supervision
64.13 Wherever possible, the academic line manager will be competent in the staff member’s field of expertise.
64.14 Notwithstanding clause 64.11 above, the Vice-Chancellor may delegate in writing another academic staff member classified at Level C or above to be supervisor of one or more academics or group of academics, provided such other academic staff member occupies a more senior position to the staff member being supervised.
64.15 Any academic staff member may request an alternative supervisor. Any request by a staff member for an alternative supervisor will be given due consideration by the Vice-Chancellor.
1 AE410374.
2 Exhibit Applicant 1, paragraph 102.
3 Exhibit Applicant 1, page 32-3.
4 Monash 1, paragraph 27.
5 AE873347.
6 Exhibit Monash 4, paragraph 7(d).
7 Exhibit Monash 3, paragraph 10.
8 Exhibit Monash 3, paragraph 16.
9 Exhibit Monash 3, paragraph 18.
10 Transcript PN135-6.
11 Exhibit Monash 3, paragraph 25.
12 Exhibit Monash 3, paragraph 32.
13 Exhibit Monash 3, paragraph 35-36.
14 Exhibit Monash 3, paragraph 41.
15 Exhibit Monash 3, paragraph 39.
16 Exhibit Monash 3, paragraph 38.
17 Transcript PN166.
18 Transcript PN168.
19 Paragraph 12.
20 Clause 64.5 2014 Agreement.
21 [2014] FWCFB 7447 at [41].
22 Transcript PN490-2.
23 Transcript PN171.
24 Transcript PN191.
25 2014 Agreement, clause 3.14.
26 Transcript PN166.
27 Kucks v CSR Ltd (1996) 66 IR 182, 184.
28 Exhibit Monash5, tab 25.
29 Transcript PN 208-209.
30 Transcript PN893.
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