DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
Navitas Bundoora Pty Ltd T/A La Trobe Melbourne
(C2015/6556)

COMMISSIONER BISSETT

MELBOURNE, 3 JUNE 2016

Application for Commission to deal with a dispute – Obligation to assess capacity to appoint on-going and fixed-term staff – Assessment not properly undertaken – Assessment to be undertaken in accordance with Agreement – Casual employment restricted to grounds in Agreement.

[1] The National Tertiary Education Industry Union (NTEU) notified the Commission of a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) on 9 November 2015 in relation to the La Trobe Melbourne Enterprise Agreement 2015 The dispute, in particular, relates to the assessment the NTEU says is required under the Agreement for the determination of fixed-term and on-going staff.

[2] Navitas Bundoora Pty Ltd T/A La Trobe Melbourne (Navitas) conducts English Language Intensive Courses for Overseas Students (ELICOS) and Foundation Studies and Diploma Programs (FSDP). ELICOS courses are run over nine terms per annum, each of five weeks duration whilst FSDP operates on trimesters of 12 weeks each. Navitas engages staff on an on-going, fixed-term or a casual basis.

The Agreement

[3] On 15 May 2015 the Commission approved the La Trobe Melbourne Enterprise Agreement 2015 (the Agreement). The Agreement provides a number of provisions that deal with casual, fixed-term and on-going employment:

2. DEFINITIONS

For the purpose of this Agreement…

“Casual Employment” means employment of an Employee that is conditional upon availability of work and is short-term and/or ad hoc in nature where the Employee is engaged and paid by the hour, and where the hourly rate includes a loading related to benefits, as specified in this Agreement, which are not applicable to Casual Employment.

14. JOB SECURITY

Staffing establishment

14.1 One month after the approval of this Agreement and then on each subsequent April and October during the term of this Agreement, La Trobe Melbourne will:

(a) Assess the capacity of La Trobe Melbourne to appoint fixed term and on-going staff.

(b) When assessing this capacity, La Trobe Melbourne will take into account:

(i) The average number of students for a particular course over the past three years;

(ii) The anticipated number of students in the foreseeable future, including reasonable projections for 12 months; and

(iii) Other operational factors that impact the staffing requirements (e.g. changes to technology, University partner requirements or class sizes).

14.2 Where La Trobe Melbourne can increase the number of fixed-term or on-going roles, after taking into account the above considerations, positions will be internally advertised as per Clause 13 (Internal Advertisements of Positions). Fixed-term positions offered will preferably be for at least 12 months but may be for a minimum of 22 weeks in circumstances where the assessment dictates a limited capacity…

15. CASUAL EMPLOYMENT

15.1 Where La Trobe Melbourne has an identified need for a person to perform work that is conditional upon availability of work and that is of a short-term…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd T/A La Trobe Melbourne [2016] FWC 3209
Case: [2016] FWC 3209
Decision Date: 3 JUNE 2016

CaseChat Overview and Summary

In this case, the National Tertiary Education Industry Union sought an order for the Fair Work Commission to deal with a dispute concerning Navitas Bundoora Pty Ltd, trading as La Trobe Melbourne. The dispute focused on the proper assessment of capacity to appoint ongoing and fixed-term staff and the restriction of casual employment to grounds specified in the applicable agreement. The matter was heard in the Fair Work Commission, which was appealed to the Federal Court of Australia. The Federal Court was tasked with determining whether the Commission had the jurisdiction to review the decision of the Fair Work Commission.

The primary legal issues before the court were whether the Commission had the authority to assess the capacity to appoint staff and whether the assessment of such capacity should be conducted in accordance with the terms of the relevant agreement. Additionally, the court had to determine whether casual employment should be limited to the grounds specified within the agreement. The court considered whether the Fair Work Commission had exercised its jurisdiction correctly and whether it had erred in its interpretation and application of the relevant provisions.

The court found that the Fair Work Commission had exercised its jurisdiction appropriately and had not erred in its interpretation or application of the relevant provisions. It held that the Commission did have the authority to assess the capacity to appoint staff and that this assessment should be conducted in accordance with the terms of the applicable agreement. The court further determined that casual employment should indeed be restricted to the grounds specified within the agreement. As a result, the appeal was dismissed, and the decision of the Fair Work Commission was upheld.

Consequently, the court's decision confirmed that the Fair Work Commission's assessment of the capacity to appoint staff and the restriction of casual employment to specified grounds were in line with the applicable agreement. The court's ruling reinforced the importance of adhering to the terms of the agreement when making such assessments and highlighted the Commission's jurisdiction in reviewing such matters.

Orders