National Tertiary Education Industry Union v Swinburne University of Technology

The National Tertiary Education Industry Union (the Union) brought an action against Swinburne University of Technology (the University) in the Fair Work Division of the Federal Court of Australia. The Union alleged that the University had failed to comply with certain provisions of the Swinburne University of Technology, Academic and General Staff Agreement 2009 (the Agreement) before making decisions to stop offering some courses at its Lilydale Campus and to relocate its Faculty of Design from its Prahran Campus to its Hawthorn Campus. The Union argued that these decisions had significant effects on the employees of the University. The University admitted that it had failed to comply with the Agreement but argued that the contraventions were inadvertent and that it had taken significant steps to remedy the situation, including making charitable donations.

The court was required to determine whether the University had contravened the Agreement and, if so, the appropriate penalty to impose under the Fair Work Act 2009 (Cth). The court noted that the principles guiding the imposition of penalties were well established and that it was not bound to accept a penalty proposed or agreed to by the parties. The court also noted that the University had taken significant steps to remedy the situation, including making charitable donations, and that it had not previously been found to have contravened workplace laws.

After considering the evidence, the court found that the University had contravened the Agreement and that the contraventions were inadvertent. The court also found that the penalty range proposed by the parties was manifestly inadequate, given the substantial charitable donations made by the University. However, the court concluded that it was not appropriate to impose a pecuniary penalty, given the University's contrition and the substantial steps it had taken to remedy the situation. The court ordered declarations in the terms of paragraphs 2, 3, 4, and 5 of the originating application.