National Tertiary Education Industry Union v Swinburne University of Technology

[2025] FWC 1472

[2025] FWC 1472

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739 - Application to deal with a dispute

National Tertiary Education Industry Union
v

Swinburne University of Technology

(C2025/3830)

COMMISSIONER CONNOLLY MELBOURNE, 29 MAY 2025

Alleged dispute about any matters arising under the enterprise agreement

Introduction

1. On 13 May, an application was lodged by the National Teritary Education Union  (NTEU or the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in Clause 67 of the Swinburne University of Technology – Academic and Professional Employees Enterprise Agreement 2024 (the Agreement). The Respondent in this matter is Swinburne University of Technology, the employer covered by the Agreement. 

1. The Agreement was approved by the Commission on the 22 July 2024 and will reach its nominal expiry date on 12 July 2026.  The NTEU is covered by the Agreement and acts for employees covered by the Agreement. 

1. The dispute concerns the Application of Clause 8 – Fixed Term Employment, and whether the Respondent has engaged Professor Lester Johnson in accordance with the requirements of clause 8.1.1 – Specific tasks or project, or otherwise. 

1. Professor Johnson has been engaged under a series of fixed term arrangements at the University since March 2014.  He commenced a fourth such arrangement for the period 1 June 2024, which expires on 31 May 2025.

1. The Respondent’s position is that Professor Johnson’s employment is consistent with the terms of the Agreement. 

1. The Applicant contends otherwise and maintains the respondent has not complied with the terms of the Agreement in its engagement of Professor Johnson.  The NTEU’s dispute application seeks a determination from the Commission that Professor Johnson is a continuing employee for the purposes of the 2024 Agreement, or that the University appointment Professor to a continuing role.

1. On 28 May I convened a conference of the parties pursuant to the application.

1. Mr Jacob Debets, NTEU Senior Industrial Officer appeared for the Applicant.  Ms Stacey Nicolaou, Swinburne Director Workplace Relations, Governance and Policy appeared for the Respondent.  

1. In conference the parties reached an understanding of the matters of dispute between them to be that is to be executed separate to this application. 

1. The purpose of this recommendation is the record the parties understanding of the status of Professor Johnstons employment until such time as the understanding reached in [9] above is executed between the parties.

1. The recommendation is made consistent with the powers of the Commission as provided for by Clause 67 of the Agreement and s.739 of the Fair Work Act.

Legislation

1. This dispute is seeking the exercise of the Commission’s arbitral powers under s.739 of the Fair Work Act 2009. Section 739(1) relevantly provides;

“(1)       “This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute. 

1. The relevant Dispute Resolution Procedure is contained in clause 67 of the Agreement. 

Relevantly clause 67.11.1. provides: 

“If a dispute is not resolved as provided… either party may refer the dispute to the FWC.  The FWC may deal with the dispute in two stages:

67.11.1.1        the FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expression an opinion or making a recommendation; and

67.11.1.2        if the FWC is unable to resolve the dispute at the first stage, the FWC may then arbitrate the dispute and make a determination that is binding on the parties.

And at 67.11.2:

“Subject to appeal rights under the FW Act, the parties to the dispute agree to be bound by a decision may by the FWC in accordance with this clause.

Recommendation

1. Further the conciliation conference conducted by the FWC in this matter on 28 May 2025, it is the recommendation of this Commission that:

1.   The parties use all practical steps possible to execute the understanding reached between them in [9] above prior to midnight on 31 May 2025;

2.   In the event the parties are unable to execute the terms referred to above in [1.] Swinburne shall suspend Professor Johnson’s employment on the same terms as were effective on 28 May 2025 until such time as time as this execution is complete or this dispute is otherwise resolved or discontinued;

3.   If either party takes issue with these recommendations of the Commission, they are to advise the Commission of such and request to be heard by no later than 4pm Thursday 29 May, 2025; and

4.   In the event neither party takes issue with these recommendations, it is the understanding of both parties that the above recommendations are agreed between them.

COMMISSIONER

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