National Tertiary Education Industry Union v The University of New South Wales T/A UNSW Australia
[2021] FWC 6014
•22 NOVEMBER 2021
| [2021] FWC 6014 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
The University of New South Wales T/A UNSW Australia
(C2021/3247)
COMMISSIONER JOHNS | SYDNEY, 22 NOVEMBER 2021 |
Alleged dispute about any matters arising under the enterprise agreement
[1] On 9 June 2021, the National Tertiary Education Industry Union (NTEU) applied to the Fair Work Commission (Commission) to deal with a dispute under s.739 of the Fair Work Act 2009 (Cth) (FW Act) with the University of New South Wales (University).
[2] In short, the dispute is about the application of the professional development clause of the University of NSW (Academic Staff) Enterprise Agreement 2018 (Agreement). The dispute arises in the context of the University intending to publish quantitative course evaluation data collected from students on the University’s Dashboard (Dashboard).
[3] The NTEU contends that, contrary to clause 27(e) of the Agreement, this constitutes the publishing of course evaluation data in a form that identifies individual staff members beyond relevant line management or students involved in the relevant course. The University disagrees. The University contends that the data does not identify any individual staff member and that the parameters upon which the data has been collected, collated and intended to be published has been undertaken mindful of the requirements in clause 27(e).
[4] Consequently, the question to be answered by the Commission is:
“Contrary to the terms of 27(e) does the “Dashboard” publish course evaluation data in a form that identifies individual staff members beyond relevant line management (including course conveners, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course?”
Jurisdiction
[5] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.
[6] In the present matter the clause in the Agreement dealing with dispute settling procedures is cl 10.0. It applies to “a dispute about the application or operation of any provision of this Agreement or in relation to the National Employment Standards”. 1 After compliance with the steps set out in cl 10.0 of the Agreement, the Agreement confers jurisdiction on the Commission to resolve disputes “by mediation and/or conciliation, or where mediation or conciliation does not resolve the dispute, by arbitration.”2 The NTEU attempted the internal steps prior to lodging the present application in the Commission.
[7] In dealing with the dispute “the FWC may exercise any of its powers under the Act. The decision of the FWC will be implemented by the parties, subject to either party exercising a right of appeal against a decision of the FWC.” 3
[8] Conciliation was attempted on 24 June 2021 without success.
[9] It is common ground between the parties that the Commission has jurisdiction to arbitrate the dispute.
The Agreement
[10] The Agreement was approved on 9 April 2019. 4 It commenced operation on 15 April 2019. It has a nominal expiry date of 31 December 2021.5
[11] The Agreement covers the University and,
“employees employed by the University, except for those employees or persons referred to at subclause 5.2(a).” 6
[12] The NTEU is covered by the Agreement. 7
[13] The dispute is about whether the University has correctly applied clause 27(e) of the Agreement.
[14] Clause 27(e) provides that,
“Subject to any legal or regulatory requirements (including funding requirements) to the contrary, course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course.”
Substantive hearing
[15] At the substantive hearing on 30 August 2021,
a) the NTEU was represented by Ms J Wells, Senior Industrial Officer, and
b) the University was represented by Ms H Carter, Legal Counsel, assisted by Ms K Thomas, Associate Legal Counsel, both of whom are employees of the University.
[16] In advance of the substantive hearing the parties filed material. For completeness I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.
Exhibit | Document title | Document date |
1 | Form F10 | 9 June 2021 |
2 | Dispute Resolution Procedure | |
3 | Professional Development | |
4 | Enterprise Agreement | 8 April 2019 |
5 | Explanatory Information | September 2018 |
6 | Article relating to Gender Bias 2021 | 8 March 2021 |
7 | Article relating to Gender Bias 2019 | 13 February 2019 |
8 | Literature Review | 6 March 2021 |
9 | Dispute Notification | 12 May 2021 |
10 | Applicant’s Submissions | 15 July 2021 |
11 | Witness Statement of Wayne Wobcke | 14 July 2021 |
12 | Witness Statement of Jonathan Bonnitcha | 12 July 2021 |
13 | Witness Statement of Adreas Ortmann | 12 July 2021 |
14 | Witness Statement of Zoran Vulovic | 14 July 2021 |
15 | UNSW (Academic Staff) Enterprise Agreement 2006 | August 2006 |
16 | UNSW (Academic Staff) Enterprise Agreement 2011 | 23 September 2011 |
17 | Respondent’s Submissions | 5 August 2021 |
18 | Witness Statement of Rorden Wilkinson | 5 August 2021 |
19 | Attachment A | |
20 | Attachment B | |
21 | Attachment C | 20 October 2020 |
22 | Attachment D | |
23 | Applicant’s Submissions in Reply | 19 August 2021 |
24 | Attachment 1 | |
25 | Statement of Agreed Facts | 27 August 2021 |
26 | Applicant's objections to evidence of Professor Wilkinson | 30 August 2021 |
[17] At the hearing Associate Professor Wobcke, Professor Ortmann, Dr Bonnitcha and Dr Voluvic were required for cross-examination.
[18] The NTEU did not require Professor Wilkinson for cross-examination. However, it did file a list of objections to his evidence noting concerns about relevance and opinion evidence. I have had regard to the list of objections in coming to this decision.
Uncontested facts
[19] The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact:
a) UNSW collects qualitative and quantitative feedback from students regarding their experience in a particular course via myExperience surveys. 8
b) Students are not required to complete myExperience surveys. 9
c) myExperience surveys comprise a course survey and a teacher survey. Couse evaluation data is produced by the course survey. 10
d) The course evaluation data published on the dashboard includes course evaluation data produced by asking students the following questions in the course survey:
i. Overall I was satisfied with the quality of the course;
ii. I felt part of a learning community;
iii. The course resources helped me learn;
iv. The feedback helped me learn; and
v. The assessment tasks were relevant to the course content. 11
e) The teacher survey seeks feedback in respect of a teacher identified in the survey by name and, where there is more than one teacher for a course, there are multiple (separate) teacher surveys. 12
f) Only the particular staff member and their line manager receive the results of the teacher survey. 13
g) Quantitative feedback is obtained in both the course and teacher myExperience survey by students selecting from an electronic form whether they strongly disagree, disagree, moderately disagree, moderately agree, agree, or strongly agree to particular propositions. 14
h) Qualitative feedback is obtained in both the course and teacher myExperience survey via open comments fields where students can give text-based responses to questions. 15
i) On 11 May 2021, an email was sent by the Respondent to all academic staff containing a link to a dashboard which provided staff with access to quantitative course evaluation data received via the myExperience survey.
j) It was proposed that the data would also be made available to students at the end of May 2021. 16
k) The University has not provided access to this information to students pending a hearing of the matter. 17
l) On 28 June 2021 the University gave an undertaking not to publish course evaluation data to students until after the hearing of the matter.
m) The Respondent has published course evaluation data for 2019 and 2020 to all academic staff via the dashboard since 11 May 2021. 18
n) The dashboard publishes course evaluation quantitative data collected from the course component of the myExperience survey. 19
o) The course evaluation data published via the dashboard includes:
i. the course name and course code;
ii. the year, calendar and term in which the course was held;
iii. the number of students invited to participate in the MyExperience survey;
iv. the number of responses received;
v. the percentage response rate; and
vi. the number of responses by Likert scale (strongly disagree, disagree, moderately disagree, moderately agree, agree, strongly agree) to the propositions put. 20
p) The dashboard does not display the name, email address or z id of any staff member involved in teaching the course. 21
Principles of interpretation
[20] The principles relevant to the task of construing an enterprise agreement were distilled in The Australasian Meat Industry Employees Union v Golden Cockerel 22 as follows:
“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” 23
[21] In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’). 24 The Full Bench made the following observations:
“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,25 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.26 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 27
…
[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction, 28 and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:29
‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)
…
[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, 30 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.31 A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,32Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:
‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 33
[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University, 34it may be inferred that such agreements are intended to establish binding obligations:
‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’. 35
[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’ 36 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.37 The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.
…
[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.
[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa): 38
‘… evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract where it has a plain meaning.’ 39
[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:
‘… when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of contract, except insofar as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting.’ 40
[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:
‘Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed. It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parole evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.’ 41
[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited: 42
‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’
…
[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited: 43
‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:
“In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”’
…
[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.
[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. 44 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.45
[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 46a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):47
‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’
[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, 48 but no clear consensus appears to have emerged.
[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 49gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:
‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ 50
[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.
[107] We also note that in Spunwill 51 Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd 52:
‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’”.
[22] The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of their decision.
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 53
[23] I adopt the Berri principles. Consequently, it is necessary to,
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,
b) determine whether the Agreement has a plain meaning,
c) review the text of the Agreement as a whole,
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) not adopt an overly technical approach to the interpretation of the Agreement, and
g) not contradict the plain language of the Agreement.
Submissions – NTEU
[24] On 15 July 2021 the NTEU submitted that,
1. “On Tuesday 11 May 2021, the University provided academic staff at the University of New South Wales with a link to the “Dashboard”, a platform which provides course evaluation data from the commencement of 2019 by course code and course name to all academic staff.
2. Contrary to the terms of Clause 27.0 (e), the “Dashboard” publishes course evaluation data in a form which identifies individual staff beyond the parties named in Clause 27.0 (e).
3. Individual staff members are able to identify individual staff by the form of publication of course evaluation by the “Dashboard”.
4. The “Dashboard” currently provides course evaluation data identified by course code and course names to all academic staff.
5. Academic staff with knowledge of course codes and course names are able to identify the course convener and/or Lecturer as relevant, due to an ordinary working knowledge of course codes and course names.
6. Associate Professor Wobcke states that when he viewed the “Dashboard” he was able to identify the teacher of the course “Programming Fundamentals”.
7. Associate Professor Wobcke is also the Chair of the Workload Allocation, Monitoring and Review Committee in the School of Computer Science and Engineering.
8. In his work activities associated with workload allocation as an academic staff member Associate Professor Wobcke is able to identify the Conveners, Lecturers in Charge and/or teaching staff in all courses taught in his School.
9. Associate Professor Wobcke’s evidence demonstrates that any individual permanent and fixed-term academic staff member in the School of Computer Science and Engineering is able to identify the Conveners and Lecturers in all courses in the School, going back to 2005, due to all academic permanent and fixed term staff having access to course allocation in the School.
10. Associate Professor Wobcke states that as part of his work activities, he participates in work meetings, committee meetings, curriculum reviews and accreditation processes which identify to him and other participating academic staff the identify of conveners and lecturers in courses in the School.
11. Dr Vulovic works in the School of Mechanical and Manufacturing Engineering.
12. Dr Vulovic states that when he viewed the “Dashboard” he was able to identify Dr Sonya Brown as being the Convener of the course Aerospace Design 2.
13. Dr Vulovic’s evidence shows that he participates in numerous work activities in which the identity of Co-ordinators and Lecturers teaching in programs in the School of Mechanical and Manufacturing Engineering are provided in written communications, and in email and ‘MS teams’ discussions.
14. Dr Vulovic’s evidence demonstrates that due to his participation in his ordinary work activities he is able to identify individual academic staff in my School and the courses they teach.
15. Professor Ortmann works in the School of Economics.
16. Professor Ortmann states that when he viewed the “Dashboard” he was able to identify Lecturers by way of viewing the form of publication in the “Dashboard” such as course codes and course names.
17. In addition to the UNSW academic staff named above, Professor Ortmann provides examples of the Lecturers that he can identify in viewing the “Dashboard’, and further provides examples of Lecturers who are the only Lecturers in the named courses.
18. The evidence of Dr Bonnitcha, who works in the School of Global and Public Law, demonstrates the numerous ways in which academic staff work together and hold working knowledge of the courses they teach.
19. Dr Bonnitcha’s evidence also demonstrates that in the School of Global and Public Law academic staff may teach in a team of teachers across trimesters.
20. Dr Bonnitcha’s evidence demonstrates that he can identify the other teachers who teach the same subject as him in the same or in different trimesters, and identify the teachers of elective subjects and courses generally through the ordinary work processes of performing teaching, and teaching and course allocation, and the publication of such information through documents such as Faculty handbooks.
21. Academic staff have knowledge of course codes and course names due to a variety of work practices, university communication systems, academic staff requirements and enterprise agreement obligations.
22. Clause 24.0 Academic workloads provides at Clause 24.1:
24.1 Principles
The following principles will govern the application of this clause:
(a) a reasonable level and equitable distribution of workload for academic staff recognising the diversity of the University and the range of activities undertaken by academic staff in the course of a year; and
(b) a transparent process of work allocation that is generally supported by the employees of the academic unit; and
(c) consultation about workload allocation.
23. Further, at Clause 24.2 (a) and (b) the Agreement provides:
24.2 Workload Formula
(a) A workload formula will be in place in each academic unit (or commonly across more than one academic unit). The workload formula will:
(i) be developed through a collegial process; and
(ii) be generally supported by the employees in the academic unit(s); and
(iii) provide for the equitable and transparent allocation of workload within the academic unit.
(b) To support a transparent allocation of workload, a workload formula will enable an employee to compare their workload with every other individual employee across the academic unit.
24. The “Dashboard” publishes course evaluation data to all academic staff in a form which identifies individual academic staff to other academic staff.
25. The University is incorrectly applying the terms of Clause 27.0 (e) as the University is required to limit access to course evaluation data to the parties named in Clause 27.0 (e).
26. Clause 27.0 (e) clearly states that course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course conveners, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course.
27. The course evaluation data published by the Dashboard released to all academic staff on Tuesday 11 May 2021 does not name individual Course Conveners, Lecturers in Charge or individual teaching staff. However, the Applicant’s evidence demonstrate the course evaluation data is published in the “Dashboard” in a form which makes it possible to identify individual staff members.
28. The University has advised staff that the course evaluation data has only been published in courses which contain two or more teaching staff. However NTEU members have demonstrated in their evidence that it is still possible to identify teaching staff in courses for Academic staff who work in the same discipline or School, by the form of publication of course evaluation data provided by the “Dashboard”. The evidence of NTEU members also demonstrates that the “Dashboard” publishes course evaluation data in courses with one Lecturer and casual academic staff, meaning the Lecturer-in-Charge will be the academic staff member identified in association with the course evaluation data for the course. Further, it appears that the “Dashboard” publishes course evaluation data in subjects where there may have been an intention to have more than one teacher in the course, however casual staff have may not been engaged and the single teacher is identified by the form of publication published by the “Dashboard”.
29. As noted in the NTEU’s F10 it is not disputed by the University that it is possible to identify individual academic staff. During the second dispute meeting held with University management representatives at 12pm on Monday 31 May 2021, University representatives acknowledged that it is possible to work out the identify of academic staff members from the course evaluation data in the form published by the Dashboard.
The impact of the failure to apply Clause 27.0 correctly on academic staff
30. The incorrect application of the professional development commitments of Clause 27.0 undermine the provision of professional development to academic staff.
31. The publication of course evaluation data through this “Dashboard” has the ability to impact upon the correct application of related provisions of the Agreement such as Clause 28.0 Disciplinary Action and the Termination of Employment. Further, the commitments of Clause 21.0 Redeployment and Redundancy requires that the University will act without unlawful discrimination to determine which positions will be made redundant. Research funded by the University of New South Wales has revealed discrimination, bias and prejudice in evaluation data. It is critical that the plain meaning and limitations of Clause 27.0 (e) are strictly applied.
32. NTEU members are greatly concerned that the University had advised academic staff that this course evaluation data will be made available to all students, contrary to the limitation articulated in sub-clause 27.0 (e), which allows course evaluation data to be published to students involved in the relevant course. As the parties are aware, on Monday 28 June 2021 the University confirmed via email that the University has undertaken not to publish course evaluation data to students until after the hearing of this matter.
33. As per the ordinary meaning of the words of Clause 27.0 (e) course evaluation data is constrained to being published in a form that identifies individual academic staff to students involved in the relevant course. Accordingly, the Applicant reserves our right to seek further undertakings or orders at any time prior to, at the hearing or subsequently in respect of this matter.
34. NTEU members have raised with University representatives numerous concerns regarding the raw course evaluation data itself, and that course evaluation data requires expert interpretation.
35. Clause 27.0 lists particular academic staff who are authorised by Clause 27.0 (e) to access this data.
36. NTEU members note that poor response rates may create inaccurate and polarised course evaluation data. The “Dashboard” publishes course evaluation data in courses with as few as ten responses from students.
37. Critically, NTEU members note that evaluation data has shown evidence of gender, race and age bias. A selection of recent published research is included at Attachments Five to Seven of the Applicant F10.
38. The article published in 2021: Gender Bias in Student Evaluations of Teaching: ‘Punishing Those Who Fail to Do Their Gender Right’ at F10 Attachment Five, and the article published in 2019: Gender and Cultural Bias in Student Evaluations: Why representation matters at F10 Attachment Six are declared as being funded by the Division of the Deputy Vice-Chancellor, UNSW.
39. A further article on these research findings published in 2021: Sexism, racism, prejudice, and bias: a literature review and synthesis of research surrounding student evaluations of courses and teaching is found at F10 Attachment Seven.
The principles of agreement interpretation and their application in this dispute
40. The principles of Agreement interpretation have been summarised in The Australasian Meat Industry Employees Union v Golden Cockerel as follows:
“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
41. Following the Golden Cockerel decision in 2014 a Full Bench of the Fair Work Commission considered these principles in a 2017 decision Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’).
42. Following consideration of Golden Cockerel and other decisions the Full Bench in Berri modified these summarised principles and in respect of the principles of agreement interpretation outlined the following at paragraph 114:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172 (2) (a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182 (1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180 (5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
The Application of Berri principles to this Agreement
43. The incorrect application of the professional development commitments of Clause 27.0 undermine the provision of professional development to academic staff.
44. The application of the Berri principles commences with the ordinary meaning of the words of the relevant clauses in the disputed Agreement.
45. The text of Clause 27.0 provides:
27.0 Professional Development
(a) An employee will meet annually with their supervisor in order to review their work in the past year, to discuss work in future years, and to discuss an employee’s own personal career development. A supervisor will be expected to participate in ongoing training and professional development for this role.
(b) The major areas for discussion between the employee and the supervisor will include:
(i) career planning and development, including accessing research grants, scheduling Special Studies Program Leave and promotion prospects;
(ii) the strategic plans of the School and the Faculty
(iii)allocated duties within the School, including teaching and administrative duties;
(iv) leave planning;
(v) support needed by the employee from the School/Faculty and the University in order to achieve personal career goals.
(c) If the University has concerns that the employee is not performing satisfactorily the University will initiate action under subclauses 28.2(a) or (b) and will not use the procedures set out in this clause.
(d) The parties recognise that student feedback is part of continuous quality improvement. On its own student feedback cannot be used as the total measure of teaching performance. As such, no disciplinary action for unsatisfactory performance will be initiated in accordance with subclause 28.2(b) solely on the basis of teaching evaluations by students.
(e) Subject to any legal or regulatory requirements (including funding requirements) to the contrary, course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course
46. The application of the Berri principles commences with the ordinary meaning of the words of the relevant clauses in the disputed Agreement.
47. The ordinary meaning of the words of the text of Clause 27.0 demonstrate that focus of Clause 27 is to provide professional development support to individual academic staff.
48. The ordinary meaning of the text of Clause 27.0 (d) is to recognise that student feedback is part of continuous quality improvement, however cannot be used as a total measure of teaching performance. Accordingly, the employer is prohibited from initiating an allegation of unsatisfactory performance solely on the basis of teaching evaluations by students.
49. The ordinary meaning of Clause 27.0 (e) is to limit the publication of course evaluation data published in a form that identifies individual staff members to any persons beyond relevant line managers or students involved in the relevant course. Examples of relevant line mangers are provided: course conveners, the Head of School, Dean and Associate Dean (Education).
50. The ordinary meaning of the text of Clause 27.0 (e) is to create obligations on the parties. As noted by Pearce & Geddes in Statutory Interpretation in Australia (7th edition): ‘Subject to the context in which the word appears, the use of the word ‘shall’ or ‘must’ to entrust a function is taken prima facie to impose an obligation to exercise that function: Grunwick Processing Labratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, particular per Lord Diplock at 690 and Lord Salmon at 698.’ The obligatory language used in Clause 27.0 (e) is “will not”.
51. At Clause 27.0 (e) the binding obligation on all parties is that the parties will not publish course evaluation data in a form that identifies individual staff members beyond the parties named in Clause 27.0 (e).
52. The parties named in Clause 27.0 (e) are named as two classes – relevant line management and students involved in the relevant course.
53. As per the application of the ejusdem generis rule, the general is constrained to the specific when a relevant group or class is named.
54. Considering the ordinary words of Clause 27.0 (e) the publication of course evaluation data in a form that identifies individual staff is limited to the class of relevant line mangers provided by the ordinary words in Clause 27.0 (e) and the students involved in the relevant course.
55. The group of relevant line managers able to access course evaluation data which identifies individual staff members are outlined in Clause 27.0 (e).
56. The group of students entitled to access course evaluation data published in a form which identifies individual staff members are the students involved in the relevant course.
57. Further, the ordinary meaning of the words in Clause 27.0 (e) demonstrate the rule Expressio unius est exclusio alterius: an express reference to one matter indicates that other matters are excluded.
58. The ordinary words of Clause 27.0 (e) demonstrate the class of relevant line managers listed and students involved in the relevant course are the only people who should be able to view course evaluation data published in a form that identifies individual staff members.
59. Publishing course evaluation data in the form published by the “Dashboard” provides access to course evaluation data which identifies individual staff members beyond the class of people that Clause 27.0 (e) expressly references.
60. The Agreement has a plain meaning.
61. The Agreement provides that in Part E Academic Performance and related matters, Clause 27.0 Professional Development that as per Clause 27.0 (a):
An employee will meet annually with their supervisor in order to review their work in the past year, to discuss work in future years, and to discuss an employee’s own personal career development. A supervisor will be expected to participate in ongoing training and professional development for this role.
62. Publishing course evaluation data in the form published by the “Dashboard” provides access to course evaluation data which identifies individual staff members beyond the class of people that Clause 27.0 (e) expressly references. The plain meaning of the Agreement is that in the context of annual discussions with their supervisor, an employee will discuss the range of matters outlined in Clause 27. This may include discussion of the course evaluation data accessible to the relevant line managers in Clause 27.0 (e), observing this would be a professional development discussion only, noting the limitations proscribed by Clause 27.0 (d) above.
63. In reviewing the text of the Agreement as a whole, it is clear that Clause 27.0 Professional Development provides binding commitments to academic staff in respect of professional development and course evaluation data.
64. As noted, Clause 27.0 is placed in Part E Academic Performance and related matters.
65. The current wording and placement of Clause 27.0 Professional Development has featured in successive agreements since the University of New South Wales (Academic Staff) Enterprise Agreement 2011 (the ‘2011 Agreement’). Prior to this, the regulation of teaching evaluations was contained in a clause titled Teaching Evaluations, and Professional Development was a separate clause in the 2006 Enterprise Agreement.
66. Nevertheless within the 2006 teaching clause, the Agreement stipulated that: Course evaluation data will not be published on the University website in a form that allows the identification of individual staff members. The wording of the current Clause 27.0 from the 2011 Agreement onwards stipulates at Clause 27.0 (e):
Subject to any legal or regulatory requirements (including funding requirements) to the contrary, course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course.
67. There are no legal or regulatory requirements, including funding requirements, to the contrary of this sub-clause.
68. For ten years, the placement of the regulation of course evaluation data has been placed in the professional development clause.
69. By the language used in the Agreement, a reasonable person would understand that Clause 27.0 Professional Development is a clause which creates obligations to benefit academic staff.
70. By the language used in the Agreement a reasonable person would understand that Clause 27.0 (e) places limitations on the publication of course evaluation data. Specifically, a reasonable person would understand that Clause 27.0 (e) limits course evaluation data, published in a form that can identify individual staff, to relevant line managers and students involved in the relevant course.
71. As Associate Professor Wobcke notes, this understanding has been the understanding of NTEU members and academic staff, and indeed has been the view of the University in public communications.
72. To conclude otherwise would be attempt to rewrite the agreement and to contradict the plain language of the agreement, which would directly contradict the agreement interpretation principles of Berri.
Agreement interpretation principles – submissions in the alternative
73. In accordance with the application of Berri the Applicant argues that Clause 27.0 (e) and the terms of the Agreement generally, in the context of this dispute are easily understood in accordance with the plain and ordinary meaning of the text. As noted in Berri at paragraph [114] point 9:
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
74. In the alternative, if the Commission considers it necessary to consider evidence of background facts, the Applicant relies upon notorious facts of which knowledge is to be presumed and the Explanatory Memorandum issued to academic staff in September 2018 during the access period of this Agreement.
75. In respect of notorious facts, the Applicant argues that the common knowledge and work practices of academic staff make knowledge of course codes and course names for courses taught by their colleagues, friends, fellow union members and staff in their team, discipline, School, potentially Faculty and potentially the wider University to be presumed.
76. In respect of the Explanatory Memorandum Clause 27.0 Professional Development was described in the following terms:
Professional Development
This clause provides for professional development discussions between an
employee and their supervisor.
This clause is unchanged from the 2015 Agreement.
77. The Applicant argues that the evidence of what employees were told pursuant to s180 (5) of the Fair Work Act in respect of Clause 27.0 does not contradict the terms of the Agreement, as per Berri at [114] 9 and 13.
78. Further, the Applicant argues it is a notorious fact of which knowledge may presumed to consider that the title and purpose of Clause 27.0 is to provide for professional development discussions between an employee and their supervisor. Commitments, protections and proscribed limitations arise from the purpose and text of Clause 27.0 which may be presumed in favour of the Applicant’s interpretation of the text, and in support of the answer to the question to be determined being yes.
79. As per Berri paragraph [114] point 15 post agreement conduct which amounts to little more than the absence of complaint or common inadvertence is insufficient to establish a common understanding. However the Applicant argues that ten years of restricting access to course evaluation data in accordance with Clause 27.0 and indeed naming Clause 27.0 in publicly available websites which advise that myexperience data is restricted in accordance with Clause 27.0 demonstrates both consensus and notorious facts, knowledge of which may be presumed.
80. Nevertheless the Applicant argues that the agreement and Clause 27.0 has a plain meaning in respect of the publication of course evaluation data.
81. The Applicant asks the Fair Work Commission determine the following question:
Contrary to the terms of 27 (e) does the “Dashboard” publish course evaluation data in a form that identifies individual staff members beyond relevant line management (including course conveners, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course?
82. The Applicant argues based on the plain and ordinary meaning of the text of the Agreement, the evidence presented and the principles of agreement interpretation that the answer is yes.” 54
Submissions – University
[25] On 5 August 2021 the University submitted that,
1. “The dispute notified by the National Tertiary Education Union (NTEU) concerns clause 27.0(e) of The University of New South Wales (Academic Staff) Enterprise Agreement 2018 (Agreement). Specifically, whether the intended displaying of specific course data on the University of New South Wales (UNSW) “Dashboard” constitutes the publishing of course evaluation data in a form that identifies individual staff members beyond relevant line management or students involved in the relevant course.
2. UNSW’s position is that plainly it does not. The data does not identify any individual staff member. UNSW’s proposed approach is to:
(a) only publish quantitative data of student opinions about courses collected from myExperience surveys in response to five statements outlined in those surveys;
(b) only to publish data about a course where there are:
(i) 10 or more responses to a myExperience survey relating to a course are received; and
(ii) two or more members of staff who teach that course.
3. The parameters upon which data has been collected, collated and intended to be published has been undertaken mindful of – and not contrary to – the requirements in clause 27.0(e) of the Agreement.
4. Pending a resolution to these proceedings, UNSW has given a commitment to the NTEU and academic staff that the data will not be disclosed to students.
5. UNSW relies on the statement of Professor Rorden Wilkinson dated 5 August 2021 filed with this outline of submissions. UNSW reserves the right to supplement this outline of submissions orally at the hearing of this matter.
Background
6. Students at UNSW complete surveys to feedback on courses they are enrolled in. These are referred to by UNSW as “myExperience” surveys. myExpereince surveys are divided into a course survey and a teacher survey. Where there is more than one staff member for a course, a separate teacher survey is completed for each.
7. Students provide both quantitative and qualitative in response to these surveys.
8. Quantitative feedback is collected through the course survey by students selecting from tick boxes whether they “Strongly disagree”, “Disagree”, “Moderately disagree”, “Moderately Agree”, “Agree” or “Strongly Agree” with the following propositions:
Overall I was satisfied with the quality of the course.
I felt part of a learning community.
The course resources helped me learn.
The feedback helped me learn.
The assessment tasks were relevant to the course content.
9. These propositions do not identify any staff associated with a course, and do not invite students to base their responses on their experiences with reference to members of staff.
10. Quantitative feedback is also provided in relation to staff members under teacher surveys. Similar to the approach taken for the course survey, students will identify the extent to which they agree or disagree with the following propositions:
This teacher encouraged student participation.
This teacher provided helpful feedback.
Overall I was satisfied with the quality of this person’s teaching.
11. Qualitative feedback is also collected under both types of surveys. This is collected through two optional fields in the course and teacher surveys which allow a student to give a text-based response under each survey. This is subject to moderation by UNSW, for example to remove inappropriate comments (the making of which may have adverse consequences for students).
12. Results from both the quantitative and qualitative feedback from the course and teacher surveys is provided to staff who teach the course and their line manager (and to others in accordance with clause 27(e) of the Agreement). The results from the teacher survey are only provided to the teacher who is the subject of that survey and their line management and are not provided to other teaching staff in that course.
13. Students (irrespective of whether they were involved in a course or not) have not been systematically provided with either the quantitative or qualitative feedback of the course and teacher surveys. Staff are not currently required to share qualitative or quantitative insights with students. Feedback provided to students in respect of the action taken in response to their feedback (qualitative or quantitative) has until recently been ad hoc and patchy.
14. In October 2020, UNSW’s Academic Board endorsed a proposal to provide students and staff with the quantitative feedback collected from myExperience course surveys. This followed an extensive period of consultation with stakeholders (including academic staff) at various levels within UNSW.
15. UNSW’s intention was to make the quantitative course feedback transparent and accessible to staff and students. It was a method through which, amongst other things, UNSW could demonstrate to students that their feedback was being considered and utilised and could assist students form a view about a particular course. UNSW also identified that other ‘Group of Eight’ institutions made course data available to students who were not directly enrolled in a course.
16. The method through which UNSW proposes to publish this data is through its online “Dashboard” application. The “Dashboard” application would be calibrated to show a graph demonstrating the percentage of responses provided to each of the five statements above.
17. The data would only be listed for courses where 10 or more students had completed a myExperience and where a course had two or more teaching staff. The term teaching staff can include two or more academics sharing teaching for the course or an academic staff member leading a team of tutors of demonstrators. It includes full time, part-time and casual staff.
18. The quantitative feedback provided in response each of the five statements at paragraph 8 above does not invite, or enable, a student to identify a particular member of staff. In fact, a student’s response may be reflective of any number of matters that relate to the course. When a response is given to these propositions, it is in a form that does not identify staff.
19. UNSW is itself not in a position to identify whether a response given to any of the quantitative course statements (i.e. those to be published) is reflective of a view about a particular staff member. Information which directly relates to a staff member is only obtained through the teacher survey and this is only published to the staff member to whom it relates and their line manager (and to others in accordance with clause 27(e) of the Agreement). UNSW does not intend to provide the results of the teacher survey to any other person.
20. On 11 May 2021, UNSW notified academic staff by email that quantitative data from course surveys was able to be viewed on a “Dashboard”. It was proposed that the data would also be made available to students at the end of May 2021.
21. Following a dispute having been notified by the NTEU, UNSW has not provided access to this information to students pending a hearing of this matter.
Legal Principles
22. Clause 10.0(f) of the Agreement permits the Commission to arbitrate the dispute notified by the NETU in circumstances in which there has been an earlier attempt to resolve the dispute by mediation or conciliation. UNSW accepts this has occurred, and that the Commission has jurisdiction to arbitrate the matter to the extent the NTEU’s dispute relates to the interpretation, application, or operation of any provision of this Agreement or in relation to the National Employment Standards to come within the scope of the dispute resolution procedure of the Agreement. The Commission does not have jurisdiction to arbitrate the NTEU’s dispute to the extent it falls outside of these matters.
23. UNSW submits that the extent to which a practice it intends to adopt with respect to the publishing of data is not contrary to clause 27.0(e) of the Agreement, and that such a practice constitutes the valid exercise of managerial prerogative. Provided the exercise of managerial prerogative does not run counter to an obligation in an enterprise agreement, the Commission will be slow to interfere with that exercise of managerial prerogative save for instances where it is unreasonable.
24. The character of the dispute in this instance is narrow. The dispute in this instance turns on the construction of clause 27.0(e) of the Agreement.
25. The principles of interpretation of an enterprise agreement are well understood. The oft quoted principles are that the starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The High Court stated to the task of interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose”.
26. UNSW addresses the words used in the clause below, and submits the industrial context and purpose also support UNSW’s construction.
Interpretation of clause 27.0(e)
27. Clause 27.0(e) of the Agreement is in the following terms:
(e) Subject to any legal or regulatory requirements (including funding requirements) to the contrary, course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course. (our emphasis)
28. The starting point for the Commission is the plain and ordinary meaning of the words used in the clause. In this case, the plain and ordinary meaning of the words in a form that identifies individual staff members mean that the form of the publication itself must not to identify the staff member. For example, the staff member cannot be named or otherwise distinguished from other staff members. In the context of data directed at evaluating a course, the restriction in the clause cannot be read so broadly as to impugn any staff member who teaches a course.
29. The restriction in clause 27.0(e) of the Agreement is narrow. The publishing of course evaluation data is available to UNSW other than in the circumstances which are the subject of the restriction in the clause.
30. For UNSW to be restricted by clause 27.0(e) of the Agreement from publishing course evaluation data that is not used in a staff member’s professional development, the following elements must be satisfied:
(a) UNSW must publish data which is course evaluation data;
(b) the form of that data identifies individual staff members; and
(c) the publication of that data is made to persons beyond relevant line management or students involved in the relevant course.
31. UNSW accepts that its proposal will involve publishing data that is course evaluation data since the myExperience survey results reflect views of students about courses. UNSW also accepts that its proposal will involve publishing data to persons beyond relevant line management or students involved in the course. UNSW, however, does not accept that the form in which data is published identifies individual staff members.
32. The plain and ordinary meaning of the clause is clear. It is a factual assessment of whether the proposed form in which data will be published identifies individuals who are staff members. UNSW submits that its proposal does not. This is clear from the following facts:
(a) The quantitative course data collected by UNSW does not identify any members of staff. This can be contrasted with the feedback from the teaching survey which does relate to members of staff, and which is only provided to that staff member and their line manager (and to others in accordance with clause 27(e) of the Agreement). This distinction is important as it is only the former which will be published under UNSW’s proposal.
(b) The five statements in the course survey that students are invited to respond to relate to satisfaction with the quality of the course, the student’s impression of their connectedness with a learning community, impressions of whether the course and the feedback provided helped the employee learn and a student’s view of the relevance of assessment tasks to course content. Students are also limited in the responses they may give to these statements, being only able to indicate the extent to which they agree or disagree with each statement. The manner in which this quantitative course data is collected and ultimately published does not identify any member of staff. Again, this can be contrasted with the quantitative teaching data which is provided in relation to a specifically named member of staff.
(c) The broad character of the data proposed to be published means it necessarily does not have the effect of identifying an individual staff member. It is simply not in a form that identifies an individual staff member.
33. By way of illustration about the high-level data collected, the Commission should consider the circumstances where course data shows that 50% of students responded that they “moderately agree” the feedback provided during a course helped them learn. It cannot be ascertained from the publishing of that information whether the views of those students:
(a) reflect an opinion that one or more individual staff members provided feedback in a manner that was better than any other staff member;
(b) reflect an opinion that all members of teaching staff assigned to a course equally provided feedback at a level such that students collectively held the view that they “moderately agreed” that the feedback of those staff members helped them learn; or
(c) reflect an opinion that is in fact referable to any feedback provided by a member of teaching staff at all, noting that feedback may arise from other sources (such as the manner assessment results are communicated for a course through UNSW’s systems).
34. UNSW has nonetheless sought to moderate and limit the quantitative course data which is presented by restricting this to instances where there are more than 20 students enrolled in a course, a minimum of 10 student respond to a survey and where two or more staff teach the course. This practice operates as an additional safeguard that further prevents the form of the intended data identifying individuals.
33. It is extraordinary of the Respondent to suggest that course evaluation data does not have any association with teaching staff, simply because individual teaching staff are not named in the course evaluation survey data. As noted in the Respondent’s submissions at point 8 of its submissions, students are asked to rate the following statements: ‘Overall I was satisfied with the quality of the course. I felt part of a learning community. The course resources helped me learn. The feedback helped me learn. The assessment tasks were relevant to the course content.’ The Enterprise Agreement clearly allocates teaching responsibilities to teaching staff in Clause 24.0 Academic Workload Allocation (as per Applicant’s submissions 15 July 2021) and places the regulation of course evaluation data at Clause 27.0 Professional Development in Part E Academic Performance and related matters.
34. By the language used in the Agreement, a reasonable person would understand that Clause 27.0 (e) places limitations on the publication of course evaluation data in the agreement context of performance and related matters. Specifically, a reasonable person would understand that Clause 27.0 (e) limits course evaluation data, published in a form that can identify individual staff, to relevant line managers and students involved in the relevant course, precisely because course evaluation data is regulated by Clause 27.0 Professional Development, situated in the section of the agreement named ‘Performance and related matters’. The matters in this section of the agreement directly regulate and impact individual academic staff – their professional development entitlements, and performance management matters generally. The parties to the agreement have agreed to regulate course evaluation data by restricting the form in which this data may be published, precisely because of the impact course evaluation data may have on individual staff members.
35. Nevertheless, the Respondent’s opinions in points 33 of its submissions as to what can or cannot be ascertained by course evaluation data being published in this form is opinion only, and irrelevant to the dispute, for as the Respondent notes, the dispute relates to the text of Clause 27.0 and the text of the Agreement.
36. The Respondent is incorrect when it argues at point 35 of its submissions that: ‘The NTEU approach instead relies upon there being some other source of information (be it a person’s knowledge or other available material outside of the dashboard) to identify whether a particular member of staff has an association with a course. It is in fact that information (which is not course evaluation data itself) that the NTEU relies upon to identify an individual staff member’, and further that, ‘The NTEU approach ignores that clause 27.0(e) of the Agreement is directed towards the “form” in which course evaluation data is published’.
37. The Applicant argues precisely that Clause 27.0 stipulates that (e)… course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course’. On Tuesday 11 May 2021, the “Dashboard” published course evaluation data (the course evaluation survey graph and course code, course name, term and year as identified in point 53 of Professor Wilkinson’s statement) in a form which comprises the course evaluation survey data, the course code, the course name and the term and year in which the course was taught. The form of this publication identifies individual academic staff. To suggest otherwise is akin to suggesting that publishing individual pay rate data would not identify individual staff if the publication format of this data did not provide an individual staff name however did provide a course code, course name and the term and year the relevant course was taught. For NTEU members, this assertion demonstrates at best a bewildering lack of knowledge of staff working practices, staff and student knowledge, and the publication practices of the University, where course codes and course outlines (identifying individual staff members) are routinely published by the University.
38. The Applicant notes in Berri, at paragraph [114] point 9:
If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
39. In accordance with the application of Berri, the Applicant argues that Clause 27.0 (e) and the terms of the Agreement generally are easily understood in accordance with the plain and ordinary meaning of the text.
40. However the Respondent asserts at point 35 (e) of its submissions that external ‘context’ should be considered by the Commission in regards to the wording of a prior provision of the 2006 Enterprise Agreement. The Applicant has noted that prior to the 2011 Agreement the regulation of teaching evaluations was contained in a clause titled Teaching Evaluations, and Professional Development was a separate clause in the 2006 Enterprise Agreement. In the ‘Teaching Evaluation’ clause, the 2006 Agreement stipulated that: ‘Course evaluation data will not be published on the University website in a form that allows the identification of individual staff members.’ The Respondent asserts that this form of wording is somehow ‘wider’ in application than the current provisions which have existed for ten years, and states at point 35 (e) that: ‘On one view, such a clause may better assist the interpretation advanced by the NTEU in the proceedings. That, however, is not the clause to which this dispute relates.’ The Applicant submits that the Respondent is incorrect both in the view of the prior clause and its application, if any, to the current dispute, noting that the Respondent submits that this is not the clause to which the dispute relates. Firstly, the Applicant does not accept that this provision is ‘wider’ in scope that the current provision, as the 2006 clause prohibits the University from publishing course evaluation data on the University website, whereas Clause 27.0 (e) is precise in prohibiting course evaluation data in any form from being published in a form that identifies individual staff members to any persons beyond relevant line management and students in the relevant course.
41. More relevantly to the application of the principles in Berri, at paragraph [114) at 14 Berri states:
extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
42. To attempt to assert that the ordinary meaning of Clause 27.0 (e) should be disregarded or rewritten in respect of asserted arguments in respect of the 2006 Agreement fails to apply the principles of Berri.
43. The Applicant argues, as does the Respondent in many parts of its submission, that the character of the dispute relates to Clause 27.0 and the text of the current agreement.
44. As noted in the Applicant’s submissions of 15 July 2021, the correct application of context as outlined by Berri is summarised as follows at [114] at 1:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
45. In addition to the submissions of the Applicant on the provision of the agreement as a whole contained in Applicant submissions of 15 July 2021, considering the relevant provisions of Clause 24.0 Academic Workload Allocation and other relevant provisions, it is critical to note that the current wording and placement of Clause 27.0 Professional Development has featured in successive agreements since the University of New South Wales (Academic Staff) Enterprise Agreement 2011 (the ‘2011 Agreement’). Prior to this, the regulation of teaching evaluations was contained in a clause titled Teaching Evaluations, and Professional Development was a separate clause in the 2006 Enterprise Agreement as noted in the Applicant submissions 15 July 2021. Clause 27.0 Professional Development is placed in Part E Academic Performance and related matters.
46. In reviewing the text of the Agreement as a whole, it is clear that Clause 27.0 Professional Development provides binding commitments to academic staff in respect of professional development and course evaluation data. For ten years, the placement of the regulation of course evaluation data has been placed in the professional development clause.
47. By the language used in the Agreement, a reasonable person would understand that Clause 27.0 Professional Development is a clause which creates obligations to benefit the professional development of academic staff.
48. By the language used in the Agreement, a reasonable person would understand that Clause 27.0 (e) places limitations on the publication of course evaluation data. Specifically, a reasonable person would understand that Clause 27.0 (e) limits course evaluation data, published in a form that may identify individual staff, to relevant line managers and students involved in the relevant course.
49. To conclude otherwise would be an attempt to rewrite the agreement and to contradict the plain language of the agreement, which would directly contradict the agreement interpretation principles of Berri.
50. Further, as Berri notes at [114] at 13:
The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180 (5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
51. Of more assistance to the Commission, if in the alternative the Commission needed to look beyond the text of the Agreement, is what employees were told pursuant to s.180 (5) of the FW Act, via the Explanatory Memorandum issued to academic staff in September 2018 during the access period of this Agreement. In respect of the Explanatory Memorandum Clause 27.0 Professional Development was described in the following terms:
Professional Development
This clause provides for professional development discussions between an employee and their supervisor.
This clause is unchanged from the 2015 Agreement.
52. The evidence of what employees were told pursuant to s180 (5) of the Fair Work Act in respect of Clause 27.0 does not contradict the terms of the Agreement, as per Berri at [114] 9 and 13, and is of more assistance to the Commission than the conjecture of the Respondent.
53. Further, as per Berri paragraph [114] point 15:
In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding
54. As per Berri paragraph [114] point 15, post agreement conduct which amounts to little more than the absence of complaint or common inadvertence is insufficient to establish a common understanding. However the Applicant argues that ten years of restricting access to course evaluation data in accordance with Clause 27.0 and indeed naming Clause 27.0 in publicly available websites which advise that ‘MyExperience’ data is restricted in accordance with Clause 27.0 demonstrates both consensus and notorious facts, knowledge of which may be presumed,
55. The evidence of Associate Professor Wobcke at paragraph 22 states: ‘To my knowledge, the University has always limited access to course evaluation data prior to 11 May 2021.’
56. The University website publication at Wobcke Attachment Three (dated 29 July 2019) states that: ‘Access to view MyExperience reports must comply with the Clause 27 (d) and (e) of the UNSW (Academic Staff) Enterprise Agreement 2018. Some academic staff have automatic viewing rights which are related to their position.’ This is more than an absence of a complaint or common inadvertence but rather advice from the University to staff.
57. While Professor Wilkinson has been employed at the University since the 10 February 2020, Associate Professor Wobcke, Dr Vulovic and Professor Ortmann and NTEU members have worked at the University of New South Wales with successive enterprise agreements which have made this commitment to academic staff. As Associate Professor Wobcke evidence demonstrates, this has been the understanding of NTEU members and academic staff, and indeed has been the common view of the parties exhibited in University in public communications.
Conclusion
58. Clause 27 of the relevant agreement stipulates that:
(e) Subject to any legal or regulatory requirements (including funding requirements) to the contrary, course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course
59. The Applicant asks the Fair Work Commission determine the following question:
Contrary to the terms of 27.0 (e) does the “Dashboard” publish course evaluation data in a form that identifies individual staff members beyond relevant line management (including course conveners, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course?
60. The Applicant argues that:
(a) Course evaluation data is published is as a graph on a “Dashboard” at the graph identifies the course name, term and year of the survey data
(b) On the “Dashboard”, each course evaluation data graph is searchable for and identified with a course number, name and term, as clearly identified by Respondent witness Professor Wilkinson at paragraph 53 of his statement, and Applicant witnesses Associate Professor Wobcke, Dr Vulovic and Professor Ortmann.
(c) The conjunction of this information – the course code, the course name and the term and year in which the course was taught next to and within the course evaluation data survey graph - identifies individual academic staff members, namely those individual academic staff associated with that course offering in that term, casual or otherwise, to people other than those identified in Clause 27.0 (e), as confirmed by the evidence of Associate Professor Wobcke, Dr Vulovic and Professor Ortmann.
(d) Course evaluation data is published on the “Dashboard” in a form that identifies individual academic staff, contrary to Clause 27.0
61. Based on the plain and ordinary meaning of Clause 27.0 and the text of the Agreement, the evidence presented and the principles of agreement interpretation, the answer to the articulated question is yes.
62. Further, in the evidence of Professor Wilkinson, at point 36 of this statement, the University has only committed to not release the dashboard to students until 31 August 2021, the day after the substantive hearing is held on 30 August 2021.
63. Accordingly, and as noted to the parties by email on 29 June 2021, the Applicant reserves its right to seek further undertakings or orders at any time prior to, at the hearing, or subsequently, in respect of this matter.” 56
Evidence - NTEU
[27] Wayne Wobcke, Associate Professor in the School of Computer Science and Engineering in the Faculty of Engineering gave evidence about,
a) his current role of course convenor of “COMP 4920 Professional Issues and Ethics in Information Technology” within the School of Computer Science and Engineering.
b) his ability to identify course convenors when viewing the Dashboard.
c) the use of teaching allocation records to identify all academic teaching staff allocated to all courses in the School of Computer Science and Engineering.
d) how Education Committee meetings held by the School identify course codes, course names and individual academic staff.
e) how at the meetings, proposals for new courses are presented by the staff member intended to teach the course.
f) how teaching staff, as part of the accreditation of the Engineering and Computer Science degree program, must attend a meeting and are expected to answer questions concerning the courses they teach.
g) his participation in regular curriculum reviews in which individual staff members who teach specific courses discuss the content of those courses.
[28] Under cross examination Associate Professor Wobcke provided the web address to the teaching allocations page “ from which it is possible to identify the course convener of individual courses. 57 His evidence was that members of the general public can access the University’s teaching allocations page. Used in combination with the dashboard data, it is possible to identify individual staff members (not all of them, but especially convenors of a course). Associate Professor Wobcke was, during the course of the hearing, able to guide me through a process to identify Marc Chee as the convenor of “Programming Fundamentals” course. As I observed during the hearing, “it looks like even I could figure it out…”.58
[29] Jonathan Bonnitcha, Professor in the Faculty of Law and Justice in the School of Global and Public Law gave evidence about,
a) his role as course convener and teacher of “LAWS 2270/JURD 7270 Law in the Global Context” in which he shares teaching responsibility with a group of permanent staff.
b) his primary responsibility for two elective subjects which he designed: “LAWS 8079 International Investment Law” and “LAWS 3070 International investment Law and Policy”. Each course has a single class and a single teacher.
c) the teaching allocation process in core courses from which he was able to identify Associate Professor Kim Fan as the convenor of “LAWS 2270/JURD 7270 Law in the Global Context”.
d) the teaching allocation process in elective courses which enables him to identify academic staff members which he shares team teaching allocation with.
e) the Faculty’s publicly available program handbooks which display the course codes and course names of all courses.
[30] Before me Dr Bonnitcha was able to demonstrate how they could identify the course convenor of “Law in the Global Context” in term 2, 2020. 59
[31] Andreas Ortmann, Professor in the School of Economics in the UNSW Business School gave evidence about,
a) his role as the Lecturer-in-Charge of “ECON 2126 Principles of Behavioural and Experimental Economics”.
b) his ability to identify individual academic staff members on the Dashboard, who are the only lecturers of a specific course, by the publication of course names and/or course codes.
[32] Zoran Volovic, Doctor in the School of Mechanical and Manufacturing Engineering gave evidence about,
a) his role as course convenor of “MMAN3200 Linear Systems and Control” and “AERO4620 Dynamics of Aerospace Vehicles and Systems”.
b) his ability to identify individual academic staff members on the Dashboard by the publication of course names and course codes.
c) how his placement in various communication channels created by the School allows him to identify individual course convenors and lecturers of specific courses.
d) how his day-to-day work activities often require him to identify individual academic staff in his School and the courses they teach and that such information is readily available to everyone in the school.
e) how information related to teaching involvements and different academic staff has never been treated as classified information and is therefore present in regular communications within the School.
Evidence – University
[33] Rorden Wilkinson, Professor of International Political Economy in the School of Social Sciences in the Faculty of Arts, Architecture and Design gave evidence about,
a) his current role as Pro Vice-Chancellor of Education and Student Experience.
b) his previous professional experience and his experience in holding line and portfolio management responsibility for education and the student experience dating back to 1998.
c) the myExperience student survey.
d) students feeling insufficiently informed about:
a. the outcomes of their myExperience participation,
b. the views of their peers; or
c. the actions taken in response to the feedback they provide.
e) the development of the Education and Student Experience Strategy.
f) the University’s proposal to make the myExperience outcomes more transparent and accessible for staff and students and the development of a dashboard which was designed to protect the confidentiality of teaching survey data.
g) the release of limited myExperience data to all academic staff on 11 May 2021.
h) the way in which data is collected from students.
i) how the Dashboard works and the way in which data is displayed.
Consideration
[34] I accept that in applying the Agreement I should not approach the task in a narrow or pedantic way.60
[35] Further, Berri Principle 1 is the necessary starting point and must be applied. It states that,
“The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.61
[36] For this reason, it is appropriate to again set out the disputed clause of the Agreement.
27(e) Subject to any legal or regulatory requirements (including funding requirements) to the contrary, course evaluation data will not be published in a form that identifies individual staff members to any persons beyond relevant line management (including course convenors, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course.
[37] I have already made findings of fact that:
a) The course evaluation data published via the dashboard includes:
i. the course name and course code;
ii. the year, calendar and term in which the course was held;
iii. the number of students invited to participate in the MyExperience survey;
iv. the number of responses received;
v. the percentage response rate; and
vi. the number of responses by Likert scale (strongly disagree, disagree, moderately disagree, moderately agree, agree, strongly agree) to the propositions put.
b) The dashboard does not display the name, email address or z id of any staff member involved in teaching the course.
[38] However, the fact that the dashboard does not display the names of staff members is not the end of the matter. There is no dispute that the data is published. The question to be determined is whether the data is published “in a form that identifies individual staff members.”
[39] The meaning of the plain and ordinary words used in the Agreement are important.
[40] The word “identifies” comes from the verb “identify”. The Macquarie Dictionary defines “identify” to mean:
“1. to recognise or establish as being a particular person or thing; attest or prove to be as claimed or asserted: to identify handwriting; to identify the bearer of a cheque.
2. to serve as a means of identification for: this card identifies the bearer as a member.”
[41] It is clear from the evidence that, by various means some persons with relevant additional information can use the data to identify staff members. The data is published in a form that makes the identity of a staff member “identifiable”. The Macquarie Dictionary defines the adjective “identifiable” to mean:
“1. able to be identified.
2. discernible; recognisable: identifiable features.”
[42] The words used in the Agreement have a plain and ordinary meaning. However, some ambiguity arises because it is not clear whether “identifies” is intended to also mean “identifiable”. Clause 27(e) must be considered in the context of the Agreement as a whole.
[43] Clause 27(e) appears in that section of the Agreement dealing with professional development for staff. This is important context to the clause. In the context of professional development, staff are not to be identified except to line managers. It is also important context that, as an enterprise agreement, the obligations are intended to be enforceable.
[44] The purpose of clause 27(e) is clear. That is to say, clause 27(e) is intended to ensure that anyone (other than line managers) reading the published data cannot identify relevant staff members.
[45] By merely looking at the published data staff members are not named. They are not identified expressly. But the publication of course numbers, names and the term in which it was taught assists to identify staff. The form of what is published makes it searchable. Once a search is conducted staff are identifiable. The identification is as a direct result of the information that is published by the Respondent.
[46] The evidence of the NTEU witnesses is that the published dashboard data “serve[s] as a means of identification”. Not for everyone. In fact, likely only a small number of people can accurately identify relevant staff members. This is because some additional information is required to make the link between the published data and the identity of a staff member. Some detective work and additional effort is required to have the published data contribute to the identification of staff members. In this sense the evidence is that the published data assists in being able to identify staff members.
[47] The Respondent concedes that the published data in combination with other information makes it possible to identify staff members.
[48] Ms Carter and I had the following exchange:
Commissioner: “So the whole university case is, look, if people are industrious enough to put the information on this website with that website and can figure it out, it doesn’t matter.”
Ms Carter: “That is exactly the university’s case.” 62
[49] It seems to me that because identification is possible (even though it requires some additional effort), the published data is in a form that identifies staff members. The “identifiability” goes against the intended purpose of clause 27(e).
[50] It would be odd if the intended purpose of clause 27(e) could be defeated only because staff members are not expressly named, but staff are otherwise identifiable because of some of the information that is published by the Respondent. That would be a narrow and pedantic approach to the interpretation of the Agreement. It should be rejected.
[51] It does not matter that each and every convenor, lecturer or tutor cannot be identified. That is not the test. The fact that some staff (in particular convenors) can be identified is the point. It means the form in which the data is published allows (even in some small part) identification of staff. Some of the information requested in the survey that results in the dashboard can only be attributed to the convenor. During the hearing, with careful guidance from Associate Professor Wobcke, I was able to identify a course convenor via publicly available website searches.
[52] This is not a rewriting of the Agreement to achieve what is fair and unjust. It is an interpretation consistent with the intention of the parties to ensure staff are not to be identified by the data published by the Respondent.
[53] In finding that the data published by the University is inconsistent with the obligation in clause 27(e), I should not be taken to be expressing any view about the disability of publishing data that is accessible for staff and students (even if it identifies staff members). That is a separate issue. It is an issue the parties could address in the context of enterprise bargaining.
Conclusion
[54] For the reasons set out above, the Commission, as presently constituted, is satisfied that the answer to the Articulated Question,
“Contrary to the terms of 27(e) does the “Dashboard” publish course evaluation data in a form that identifies individual staff members beyond relevant line management (including course conveners, the Head of School, Dean and Associate Dean (Education) or students involved in the relevant course?”
Is
“Yes”.
[55] Consequently, the dashboard (as presented to me in these proceedings) should not be published to anyone other than relevant line managers (including course conveners, the Head of School, Dean and Associate Dean (Education)).
COMMISSIONER
Appearances:
Ms J Wells, Senior Industrial Officer, NTEU for the Applicant.
Ms H Carter, Legal Counsel, assisted by Ms K Thomas, Associate HR Legal Counsel, University of New South Wales for the Respondent.
Hearing details:
Sydney, 30 August 2021.
Printed by authority of the Commonwealth Government Printer
<PR734408>
1 Clause 10.0 of the Agreement.
2 Clause 10.0(f) of the Agreement.
3 Clause 10.0(g) of the Agreement.
4 [2019] FWCA 2297.
5 Ibid, [4].
6 Clause 5.1 of the Agreement.
7 [2019] FWCA 2297 [3].
8 Statement of Agreed Facts dated 27 August 2021 (Exhibit 25), at Court Book p. 387.
9 Ibid.
10 Ibid.
11 Ibid p. 388.
12 Ibid.
13 Ibid.
14 Ibid.
15 Ibid.
16 Respondent’s Submissions dated 5 August 2021 (Exhibit 17), at Court Book p. 311.
17 Ibid.
18 Statement of Agreed Facts dated 27 August 2021 (Exhibit 25), at Court Book p. 388.
19 Ibid.
20 Ibid p. 389.
21 Ibid.
22 [2014] FWCFB 7447 (‘Golden Cockerel’).
23 Ibid [41].
24 [2017] FWCFB 3005 (‘Berri’).
25 (2005) 222 CLR 241.
26 Ibid 246.
27 Berri (n 25) 10, [41] quoting Amcor Limited v CFMEU (2005) 222 CLR 241, 246 (Gleeson CJ, McHugh J); 262 (Kirby J) 262.
28 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,382 per (McHugh, Gummow, Kirby and Jayne JJ).
29 [2017] FWCFB 1621 at [21].
30 Kucks v CSR Limited (1996) 66 IR 182 at 184.
31 City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel (n 23) at [19]–[22].
32 [2006] FCA 616.
33 Ibid at [26].
34 [2015] FCAFC 142.
35 Ibid [108].
36 NTEU v La Trobe University [2015] FCAFC 142 [109] (White J).
37 (2009) 188 IR 297, [19]-[22].
38 (1982) 149 CLR 337.
39 Ibid 352.
40 Ibid.
41 Ibid.
42 (1996) 66 IR 182, 184.
43 [2017] FCA 346, [29].
44 See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68, 78; Farmer v Hanon (1919) 26 CLR 183, 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266, 275; 281.
45 Administration of Papua New Guinea v Daera (1973) 130 CLR 353, 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 348.
46 (2008) 251 ALR 322, [35]( Gummow, Hayne and Kiefel JJ); [163] (Heydon J).
47 [2009] NSWCA 407, [319] (Allsop P).
48 Ibid [330].
49 (1994) 36 NSWLR 290, 304.
50 Ibid 312.
51 Ibid.
52 (1978) 95 DLR (3d) 242, 262.
53 Berri (n 23) 22–23, [114].
54 Applicant’s Submissions (Exhibit 10), at Court Book p. 151-168.
55 Respondent’s Outline of Submissions dated 5 August 2021 (Exhibit 17), at Court Book p. 308-316.
56 Applicant Submissions in Reply (Exhibit 23), at Court Book p. 360-375.
57 Transcript PN101-119.
58 Transcript PN126.
59 Transcript PN245.
60 Kucks v CSR Limited [1996] IR 166, 182.
61 Berri (n 25).
62 Transcript PN139 – 139.
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