National Tertiary Education Industry Union v Monash University

[2016] FWC 4437

[2016] FWC 4437

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, 5 JULY 2016

Permission to be represented.

[1] On 20 November 2015 the National Tertiary Education Industry Union (NTEU) made an application pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute in accordance with the provisions of the dispute settlement procedure of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 (the Agreement). The dispute relates to the operation of clauses 53 and 64 of the Agreement.

[2] Directions were issued for the filing of materials and with respect to permission to be represented pursuant to s.596 of the Act on 15 March 2016.

[3] These directions were subsequently amended on 30 May 2016 to include that any party wishing to be represented was required to file a brief written submission by 10 June 2016 and any party opposing such representation was required to file such submissions by 17 June 2016.

[4] Monash University have sought permission to be represented by a lawyer or paid agent pursuant to s.596(2) of the Act. The NTEU oppose the application. This decision deals with that matter only.

Submissions of Monash University

[5] Monash University Makes it application pursuant to s.596(2)(a) of the Act. It submits that the questions the NTEU seek to have answered through arbitration are broad and bring with them a range of considerations that add uncertainty and complexity in respect of evidence, issues for determination and remedy sought.

[6] It submits that the complexity arises from the construction arguments in relation to the clauses advanced by the NTEU including contextual matters and surrounding provisions of the clauses; that the case will require the marshalling and analysis of factual matters and evidence including the history of discussion of performance issues with staff and that the matter is likely to include a number of witnesses and significant documentary material.

[7] For these reasons Monash University says that the grant of permission for it to be represented will enable the matter to be dealt with more efficiently.

Submissions of National Tertiary Education Industry Union

[8] The NTEU submits that the scope of the dispute is clear and has not been amended (but rather simplified); that the dispute is over the application of the agreement does not make it inherently complex and that the material to be relied upon in the matter is known to the parties.

[9] The NTEU submits that it has not filed any witness evidence and, in any event, does not consider such evidence relevant.

[10] The NTEU says that Monash University has a large Human Resources Division with 41 staff employed in the workplace relations area. Further, it submits that Monash University has an office of General Counsel which is staffed by lawyers such that if legal assistance is required it is available through that office.

Consideration

[11] This issue for resolution before the Commission does not appear to have much complexity surrounding it. The dispute as put by the NTEU in its filed submission and in its objection to the application for permission is that Monash University cannot commence a process under clause 53.5 of the Agreement until it has completed a report as contemplated by clause 64.6 of the Agreement.

[12] At the time of deciding if permission should be granted the totality of the material relied on by the NTEU in support of its case has been filed and is therefore known. The NTEU has nowitness evidence and, despite requesting production of volumes of material, does not seek to rely on much of that material.

[13] That the NTEU do not present any witness evidence is a matter for it. There will however be no need to cross-examine witnesses by Monash University which might otherwise have created some complexity. There will be no need to bring together and evaluate competing facts not known prior to the hearing that might also create some complexity.

[14] To the extent that witness evidence is called, it will be by Monash University and it will not need to cross-examine its own witnesses.

[15] The preparation of materials to be filed by Monash University can be done with the assistance of lawyers (s.596(3)) such that it is comprehensive.

[16] I agree with the submission of the NTEU that just because a matter involves construction of an agreement this does not make it inherently complex. If it did almost every dispute over the application of an agreement would bring with it an automatic right to permission.

[17] On the basis of the materials before me, I am not satisfied that the matter is not complex. To the extent that the material of Monash University (not yet filed) might make the matter complex, this is because of its materials. It has the opportunity to fully brief whoever may appear on that material.

[18] Monash university makes no submission with respect to s.596(2)(b) or (c). I have therefore not considered these.

[19] The requirements of s.596(2)(a) have not been made out. The condition precedent for a consideration of whether permission should be granted has not been established. Permission to be represented is therefore refused.

COMMISSIONER

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