National Tertiary Education Industry Union v Swinburne University of Technology

[2013] FWC 3664

[2013] FWC 3664

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

National Tertiary Education Industry Union
v
Swinburne University of Technology
(C2012/645)

DEPUTY PRESIDENT SMITH MELBOURNE, 7 JUNE 2013

Academic ratios; addendum to PR531188.

[1] On 9 November 2012 I issued a decision 1 which raised for consideration an earlier view that Fair Work Australia (as it then was) did not have jurisdiction to determine an application by the National Tertiary Industry Union (NTEU) arising from Clause 9.2.3 of the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2009 [AE875047] (the Agreement).

[2] Given that a number of questions which had not been addressed were raised, it was appropriate to provide the parties with a further opportunity to be heard. This decision must be read in conjunction with the earlier decision and can be treated as an addendum to that decision.

[3] The Swinburne University of Technology (Swinburne) put forward the view that there was no matter before the Commission in that there was no controversy, issue or topic that arises and that must be determined. It was submitted that once consultation had taken place under the clause nothing remained to be determined. It stated that the outcome of the consultation was not a matter over which the parties had conferred powers to the Commission under the Agreement. 2

[4] I have examined the submissions of Swinburne and I am of the view that it puts forward too narrow a view of the concept of a matter 3 arising under the Agreement. The submission of the NTEU in the first instance, led me to believe that it was seeking to have the Commission, in essence, enforce a particular outcome which was mandated by the clause. However, upon reflection, and further submission by the parties, there may be more that the Commission could arbitrate about a matter arising under an agreement, rather than being strictly limited to the proper application of the agreement.

[5] My original listing and finding concentrated upon the outcome sought by the NTEU and the provisions of the clause. In the submissions, the NTEU softened the approach as to seeking assistance. If this case only proceeded upon purporting to enforce the clause it would fail for want of jurisdiction. This is not to say that the Commission cannot tell parties what their agreement means. 4 Seeking enforcement would cross the line from the exercise of arbitral power to the exercise of judicial power. Much will turn upon the characterisation of the dispute which is said to arise under the agreement and upon which the Commission is asked to make a decision. I hasten to add that in examining the matter it does not mean that the Commission cannot form a view about the existing legal rights. As Mason CJ, Brennan, Deane, Dawson and Toohey JJ said in Re Cram; Ex Parte The Newcastle Wallsend Coal Co Pty Ltd:

“...a Tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties... Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.” 5

[6] Whilst this applied to the making of orders arising from industrial dispute arbitration, it does have application in matters involving agreements.

[7] Further, assisting the parties in conciliation over the matter would be consistent with the decision of the Full Bench in Hay Point Services v Construction, Forestry, Mining and Energy Union. 6 This is particularly important in this case as it was a threshold argument (invited from the listing) which was upheld rather than exploring the options about what may or may not lead to a conclusion which is within jurisdiction.

[8] The NTEU should advise if it wishes to have a conference convened to progress the matter.

DEPUTY PRESIDENT

Appearances:

J. Cullinan with L. Gale on behalf of the National Tertiary Education Industry Union.

M. McKenney of Counsel with N. Thomas on behalf of Swinburne University of Technology.

Hearing details:

2012.

Melbourne:

November, 26.

 1   [2012] FWA 9557

 2   See Painter v Commonwealth of Australia[2011] FWAFB 8043 at 15

 3   This was dismissed in the earlier decision

 4   Construction, Forestry, Mining and Energy Union v. The Australian Industrial Relations Commission (and another) [(2001) HCA 16]

 5 (1987) 163 CLR 140 at 149; See also Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656 at p.666

 6   [2012] FWAFB 9173

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