National Tertiary Education Industry Union v Swinburne University of Technology
[2012] FWA 9557
•9 NOVEMBER 2012
[2012] FWA 9557 |
|
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)
Educational services | |
DEPUTY PRESIDENT SMITH | MELBOURNE, 9 NOVEMBER 2012 |
Academic ratios.
INTRODUCTION
[1] The National Tertiary Education Industry Union (NTEU) seek a determination about a matter arising under clause 9.2.3 the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2009 [AE875047] (the Agreement).
[2] Clause 9.2.3 provides:
“The University agrees it shall not increase overall usage of casual staff above the levels for the 12 month period ending 31 March 2009 which based on Swinburne Payroll figures were 21.5% FTE for academic staff. In addition, the University shall use its best endeavours to reduce the number of FTE casual positions as a proportion of the total academic staff FTE by 1% over the normal life of this agreement.
In order to properly monitor these commitments, the University will provide unambiguous staffing data including the number of contact teaching hours being performed by casual academic staff, the headcount of actual casual staff employed and the numbers of FTE staff employed as academic staff in each of the various modes of employment. This data will be provided in April and October each year and be accurate to the end of the previous month.
If it is identified that the overall number of FTE casual positions does increase above these levels the parties will consult regarding appropriate measures to remedy the situation. Such measures will include the creation of additional fixed term or continuing positions.
In the event that the University makes a decision to directly employ casual general staff, the parties will confer over the application of this clause.”
[3] It is common ground that the Swinburne University of Technology (the University) has exceeded 21.5% FTE. The relief sought by the NTEU was to increase the number of full-time equivalent ongoing or fixed term positions to a level which meant that the level of casual staff did not exceed 20.5%. This is the figure which currently applies under the clause. The approach by the NTEU was a simple mathematical one. I should add that in addition to that relief, it sought any other order that Fair Work Australia considered appropriate.
[4] The matter had been the subject of conciliation, but given the primary outcome sought and the views of the parties in the conciliation, I decided to list the matter to consider the jurisdiction of the Tribunal. During that hearing the NTEU argued that jurisdiction existed but sought assistance in the resolution of the dispute, whereas the University characterised the matter as falling outside the jurisdiction of the Tribunal. Some discussion took place about the importance of the characterisation of the dispute but I expressed the view that there was no jurisdiction to grant the primary claim sought and characterised by the NTEU.
[5] This decision reviews the issues raised.
THE ACT AND THE AGREEMENT
[6] In this area it is well settled that the jurisdiction of a statutory tribunal is limited by the legislation and in the case of a matter arising under an agreement, by the terms of the Agreement. 1 Further, a member of the Tribunal must satisfy herself or himself that jurisdiction exists for any decision or determination which is sought.2
[7] Section 186(6) of the Fair Work Act 2009 provides:
“FWA must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.”
[8] The Agreement similarly provides at Clause 52.1:
“Where a dispute arises, or is considered likely to arise, about any matters arising under the agreement, or in relation to the National Employment Standards, the procedures contained in this clause will be followed.”
[9] It is immediately apparent that both the Act and the Agreement authorise the Tribunal to resolve disputes about matters arising under the Agreement. The issue for consideration is firstly, whether or not the word “matter” limits in some way any scope for arbitration and secondly, the extent of power which may exist from the word “arising”. The University submits that the matter needs precision in its identification. It argues that the matter can be identified and limited to the consultation. It argued that the Agreement provides some guidance on what should be included in the consultation but that the Tribunal cannot resolve to bypass the terms of the clause and arbitrate an outcome arising from the discretion of the University to consider all aspects of the employment consequences which would include budgets, resources and student needs.
[10] The NTEU submit that the Tribunal should not separate the jurisdictional issue from a full examination of the matters in dispute and that the jurisdiction should not be narrowly construed. 3 It submits that there can be many and varied resolutions to a dispute arising under an agreement and that the intervention of the Tribunal is to maintain industrial harmony.
[11] I shall deal firstly with the approach by the University to defining the “matter”. A similar consideration arose in a dispute involving Sensis Pty Ltd and CPSU, the Community and Public Sector Union. Considerable controversy arose over a proper consideration of what was the matter in dispute. In relation to the word “matter” 4 the Full Bench concluded:
“We do not think that the tests adopted by the courts to decide whether there is a matter which can be the subject of a determination in a legal proceeding are of any assistance. Conciliation proceedings before the Commission do not involve the exercise of judicial power nor do they involve the creation of substantive rights. Words must be given a meaning consistent with their context. The exercise of conciliation powers is directed towards achieving agreement on the issues which divide the negotiating parties. Whether a matter arises will depend upon the circumstances. But the issue need not be one relating to a disagreement about the terms and conditions of employment to be included in the proposed agreement. That is clear from the terms of s.170NA(2) which permit an order to be made in relation to representation of parties for the purposes of conciliation and s.170NA(3) which provides that s.170NA(2) does not by implication limit the powers in s.170NA(1). Presumably a matter might include an issue as to the type of agreement, its duration or any of the other matters dealt with in the various provisions of Part VIB.
It was further submitted that in the absence of a clear criterion such as that provided by the test in Abebe and the other authorities relied upon it would be difficult to ascertain whether the Commission's jurisdiction is attracted in a particular case. No doubt difficult cases will arise, but the difficulties are not insurmountable. The fact that difficult cases will occur does not require that s.170NA(1) should be given a construction inconsistent with its context. Hotly contested jurisdictional issues feature prominently in the history of legislation enacted pursuant to s.51(xxxv) of The Constitution and similar disputes can be expected where labour legislation is enacted pursuant to the powers in other placita of s.51.
A matter for the purpose of s.170NA(1) is a disagreement of substance which arises between parties, at least one of which wishes to reach an agreement to be certified under Part VIB of the Act, and which is relevant to Part VIB. It is not necessary or desirable to go beyond that formulation for the purposes of this decision. 5”
[12] The issue went to the Full Court of the Federal Court of Australia, and on this issue concluded:
“We do not accept that, in s.170NA(1) of the Act, the word ‘matter’ bears the same meaning as in provisions such as s.76 of the Constitution or in statutes relating to the exercise of judicial power. As reference to any dictionary will readily establish, ‘matter’ is a word of variable import. Its meaning in a particular context must depend upon that context. Section 170NA is concerned with conciliation in respect of proposed certified agreements. It is not concerned with the exercise of judicial power, or even with arbitration proceedings. So it would be bizarre to read the word ‘matter’ as requiring the existence of ‘some immediate right, duty or liability’ arising under the Constitution or a statute. It makes more sense to treat ‘matter’ as a reference to an issue, controversy or topic that arises under Part VIB; that is, in the course of negotiations commenced under Part VIB. 6”
[13] Notwithstanding that the issue for consideration before the Court in the Sensis matter related to s.170NA of the Workplace Relations Act 1996, it may be that the consideration of the word “matter” holds good in relation to s.186(6) of the Act. Although I express some caution. Therefore has an issue, controversy or topic arisen under clause 9.2.3? The issue or controversy could be characterised as whether or not the relief sought by the NTEU was a mandated outcome under the clause or if any particular outcome could be considered as a matter arising under the clause. 7 In relation to whether or not the use of the word “arising” has some limits, it is sufficient to observe, without finally determining, that the subject matter must be reasonably incidental to the purpose of the clause.8
[14] I pause to note at this stage, that the way in which the relief was raised gave rise to the hearing, as appeared to me to be an approach of enforcement of the Agreement in a particular way, rather than a dispute arising under the Agreement. Given the impact of the Victorian Government budget cuts on the University, the proposed outcome seemed to seek a mathematical enforcement of one view of the operation of the clause. Upon reflection, I may have been diverted from a proper consideration of the power of the Tribunal by the nature of the relief sought and the circumstances in which it was sought. It was the submission of Ms Gale which highlighted the general approach to dispute resolution and the exchanges with Mr Kenny about the characterisation of the dispute which led to further reflection.
FURTHER HEARING
[15] Given that I have reflected upon my earlier expression of view on the question of jurisdiction, it is appropriate that the matter be relisted for further hearing so that the University may comment upon the perspective now given to the arguments advanced.
[16] The matter will be listed for 10.00 am on Monday, 26 November 2012.
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:
September, 5.
1 CEPU v. Telstra 128 IR 385 at 390 and following.
2 Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. Ltd (1911) 12 CLR 398 at 415.
3 Shop, Distributive and Allied Employees Association and Big W Discount Department Stores [PR924554].
4 As it related to s.170NA of the Workplace Relations Act 1996.
5 Sensis v. CPSU, the Community and Public Sector Union, Print PR939704.
6 Sensis v. Giudice and Others (2005) 145 FCR 570 at paragraph 65.
7 Unlike an early legislative test under s.170LW where the Tribunal was empowered to settle disputes about the application of the agreement, s.186(6) empowers the Tribunal to deal with matters arising under the agreement.
8 Shop, Distributive and Allied Employees Association and Big W Discount Department Stores [PR924554].
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