National Tertiary Education Industry Union v The University of Sydney
[2019] FWC 6997
•11 OCTOBER 2019
| [2019] FWC 6997 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
The University of Sydney
(C2019/2927)
COMMISSIONER JOHNS | SYDNEY, 11 OCTOBER 2019 |
Alleged dispute about any matters arising under the enterprise agreement – jurisdictional issue raised by Respondent.
Introduction
[1] On 7 May 2019, 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 Sydney (University).
[2] In short, the dispute is about the management of workplace change under the University of Sydney Enterprise Agreement 2017-2021 (Agreement). The dispute arises in the context of the University having decided to close-down research wet labs in the Anderson Stuart Building and relocate them to multiple locations (yet to be determined) over a number of other sites within the University (Close-down Decision). A consequence of the Close-down Decision is that University staff with offices in the Anderson Stuart Building will be required to travel to other sites to conduct their research.
[3] The NTEU contended that the Close-down Decision enlivened the operation of cl 385 of the Agreement. The University disagrees. The University is “not prepared to concede that the actual decision to close the wet laboratories itself should be subject to consultation, but [it is] happy to consult on the impact [i.e.] … the proposals to relocate staff, where they’ll be relocated…” 1
[4] Consequently, the question to be answered by the Commission is:
“Is clause 385 of the University of Sydney Enterprise Agreement 2017-2021 enlivened by the decision of the University to close research wet laboratories in the Anderson Stuart Building?”
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 469. It applies “to any dispute about the application or operation of [the] Agreement or the National Employment Standards”. 2 After compliance with the steps set out in cl 469 of the Agreement, the Agreement confers jurisdiction on the Commission to resolve disputes “by conciliation, and if conciliation is not successful, by arbitration.”3 The NTEU attempted the internal steps prior to lodging the present application in the Commission. If the Commission finds that it has jurisdiction to deal with the matter there are no procedural barriers to it doing so.
[7] The NTEU contends that the Close-down Decision falls within the parameters of cl 469 of the Agreement because it is a dispute about the operation of the Agreement, namely cl 385 of the Agreement. The University disagrees that the Close-down Decision falls within cl 385 of the Agreement with the consequence that, so the University contends, there is no dispute about the operation of the Agreement and the dispute settling procedure is not applicable. The University contends that the Commission has no jurisdiction to deal with the matter in dispute.
[8] Consequently, it is necessary to first determine if the Commission has jurisdiction to arbitrate the dispute.
The Agreement
[9] I approved the Agreement on 20 April 2018. 4 It commenced operation on 27 April 2019. It has a nominal expiry date of 30 June2021.5
[10] The Agreement covers the University and,
“all staff employed to work in the classifications set out in Schedule 2 other than [staff listed in clauses 6(d) – (g) of the Agreement].” 6
[11] It is common ground that the Staff concerned about the Close-down Decision are covered by the Agreement.
[12] The NTEU is covered by the Agreement. 7
[13] The dispute is about whether the University has applied clauses 385 – 396 of the Agreement.
[14] The relevant clauses provide that,
“PART I: MANAGING WORKPLACE CHANGE
PRINCIPLES
385 Where the University proposes to introduce changes in programs, organisation, structure or technology that are likely to have a significant effect on staff, the University will consult those staff who are directly affected by the proposed changes in accordance with clauses 385 to 394. For the purposes of clauses 385 to 394 “significant effects” include:
(a) termination of employment;
(b) change to the composition, operation or size of the University’s workforce or to the skills required staff;
(c) elimination or diminution of job opportunities (including opportunities for promotion or continuing employment);
(d) outsourcing of work;
(e) relocation of a significant proportion of the duties and responsibilities of staff;
(f) restructuring and/or relocation of work unit; and
(g) operation of hours of work that involves the kind specified in (a) to (f).
386 The consultation process set out in clauses 390 to 394 will provide directly affected staff and their unions with a genuine and timely opportunity to exchange relevant information, participate in discussions, and provide feedback on change proposals and implementation arrangements, and to have their views taken into account before final decisions are made. The consultation process will be collegial, but consultation does not necessarily mean that agreement will be reached. If proposals put forward by staff or their unions cannot be agreed to, reasons will be given. For the avoidance of doubt, the obligation to provide reasons does not apply to suggestions provided by staff at the Preliminary Stage in clause 389.
387 The University will ensure that adequate time for consultation and for staff to give feedback is provided in each step of the process and if required staff will be given reasonable time away from their work activities to enable them to participate in the consultation process.
388 At any stage in the consultation process, staff may involve a Representative of their choice, including a Union representative.
PRELIMINARY STAGE
389 In the interest of collegiality, before any formal Draft Change Proposal is released to staff, unless there are circumstances that would prevent it from doing so (such as commercial in confidence) or unless inappropriate, the University will inform potentially affected staff that it is considering change. The University will provide the reasons behind the possible change, and details of what it hopes to achieve. The University will invite potentially affected staff to provide any information or suggestions they consider to be relevant for the development of any formal Draft Change Proposal.
CONSULTATION STAGE 1
390 Where the University develops a firm proposal to introduce change of the kind referred to in clause 385 affecting more than one staff member, the University will prepare a Draft Change Proposal for consideration by and consultation with directly affected staff and their unions. The Draft Change Proposal will outline the nature, rationale and expected outcomes of the proposed change, and will include, where relevant:
(a) financial information, if financial imperatives form part of the reasons for the proposed change;
(b) anticipated financial implications of the proposed change;
(c) organisational chart outlined the current structure and proposed structure, and where possible, draft position description;
(d) copies of any reports, or parts of reports, whether internal or external that directly lead to the proposed change, unless such reports are commercial in confidence or legally privileged;
(e) expected outcomes including expected advantages and disadvantages;
(f) proposals to mitigate negative effects including training, retraining and redeployment;
(g) ways to minimise any disadvantages to work health and safety in the workplace;
(h) the anticipated timing of the consultation and timing of the proposed mentation of change; and
(i) implications for staff including changes in duties, number of staff, workload and/or work environment.
(j) Upon release of the Draft Change Proposal, the University will include the Draft Change proposal in the Organisational Change Management report which is circulated to the Joint Consultative Committee and appears on the University Intranet.
CONSULTATION STAGE 2
391 The University will give prompt consideration to matters raised by staff and their unions and will prepare a Revised Change Proposal, which will include:
(a) a summary of any amendments to the Draft Change Proposal;
(b) if relevant to the change being proposed, or if altered from the Draft Change proposal, an updated organisational chart;
(c) if relevant to the change being proposed, or if altered from the Draft Change Proposal, position descriptions and classification level;
(d) all feedback on the Draft Change Proposal, with the exception of feedback that contain sensitive, confidential or personal information;
(e) the University’s response to feedback received including reason;
(f) if relevant, indicative mapping positions to the new structure; and
(g) a draft of mentation plan.
392 The draft implementation plan will include:
(a) The way in which the proposed changes implement;
(b) the anticipated timing of implementation; and
(c) a mechanism for evaluating the change with a affected staff to allow a affected staff to have input into the evaluation of the proposed change.
393 The University will consult with directly affected staff and their unions on the Revised Change Proposal and consider their views before making a final decision in relation to the proposed change and its implementation.
394 Where the feedback on the Revised Change Proposal results in significant changes, the University will issue a further Revised Change Proposal allowing staff to provide further comments on the Revised Change Proposal.
IMPLEMENTATION
395 A Final Change Plan will then be issued setting out the University’s decision and implementation plan. The Final Change Plan will also include a summary of the matters raised by staff and/or the unions and the University’s response to those matters.
REVIEW
396 The University, in consultation with directly affected staff, will conduct a review of the change implemented as a result of the Final Change Plan, against its rationale and expected outcomes within 6-12 months of the Final Change Plan’s release.”
Substantive hearing
[15] At the substantive hearing on 10 July 2019,
a) the NTEU was represented by Mr S Kempton, Industrial Officer, and
b) the University was represented by Mr D Stewart , senior solicitor, assisted by Ms J Dickson, workplace relations director, who are both employees of the University 8
[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 number | Description |
Exhibit 1 | The University of Sydney Enterprise Agreement 2017-2021. |
Exhibit 2 | Form F10 filed 7 May 2019 including attachments 1- 6 |
Exhibit 3 | Form F1 Response to F10 Application including annexures 1 – 3 |
Exhibit 4 | Applicant’s Outline of Submissions filed 5 June 2019 |
Exhibit 5 | Statement of Mr Michael Thomson 9 dated 6 June 2019 |
Exhibit 6 | Statement of Professor Kurt Iveson 10 dated 5 June 2019 |
Exhibit 7 | Statement of Dr Maria Byrne 11 dated 6 June 2019 |
Exhibit 8 | Statement of Dr Katie Dixon dated 6 June 2019 |
Exhibit 9 | Statement of Professor Rebecca Mason 12 dated 6 June 2019 |
Exhibit 10 | Respondent’s Outline of Submissions dated 24 June 2019 |
Exhibit 11 | Witness Statement of Patricia Lyons 13 dated 24 June 2019 including annexures TL-1 – TL-8 |
Exhibit 12 | Applicant’s Outline of Submission in Reply filed 1 July 2019 |
Exhibit 13 | Supplementary Statement of Professor Kurt Iveson dated 1 July 2019 including Appendix A |
Exhibit 14 | Statement of Dr Robert Boncardo 14 dated 1 July 2019 including appendix 1 – 4 |
[17] At the hearing only Professor Iveson was required for cross-examination.
Uncontested facts
[18] The following matters were either agreed between the parties or not substantially contested. Consequently, I make the following findings of fact:
a) On 9 July 2018 Professor Robyn Ward commenced as the Executive Dean of the Faculty of Medicine and Health (FM&H).
b) In September and October of 2018 Professor Ward toured FM&H facilities including the Anderson Stuart Building. Professor Ward determined that it was necessary to conduct a risk review of the Anderson Stuart Building.
c) In October 2018 a risk review was conducted by a team comprising “a senior WHS staff member, University chemical and laboratory safety specialists, research experts, and a senior CIS staff member and representatives from research ethics and animal laboratory management.” 15 The team identified areas of risk as follows:
• the safety, health, and well-being of staff - the current environment may cause injury or harm;
• the achievement of research excellence and immediate national standards that research ethics and integrity-the building and laboratory spaces within it are not fit for purpose and constraint best operational practices. 16
d) On 8 November 2018 Professor Ward advised staff that she had concerns that “some areas of the building that we are using for our research activities are not fit for purpose” and further that she had,
“…consulted with the Deputy Dean, the Five Principal, Operation and the Provost and we have asked Cases Infrastructure Services, Safety Health and Well-being and the Research Integrity team to help us assess the situation with a view to exploring the use of more modern research facilities future.” 17
e) In December 2018 the University decided to close the wet laboratories for research purposes.
f) Between December 2018 and February 2019 the Associate Dean (Research) in FM&H, Professor Macdonald Christie began a series of one-on-one meetings with affected staff. Information being requested included:
i. “How many staff in your lab? Are any of them students?
ii. How many students are in your lab-including honours and HDR students? What year of the HDR students in?
iii. What types of research do you do?
iv. What use of equipment or facilities does it involve, for your lab?
v. What technical or other support services you use?
vi. Do use animals?
vii. If animals are used:
A. If it is primarily tissue collection, can it be done in LAS procedural rooms?
B. If surgery is required, can you do it in LAS facilities?
viii. What are your teaching commitments, and where are they located?
ix. Do you currently share resources and the other labs? What types?
x. What research funding do you have for your laboratory for 2018 and 2019? Where grants are shared with others please indicate your credit share and other arrangements.” 18
g) On 17 December 2018 the Associate Dean (Research) in FM&H, Professor Macdonald Christie wrote to staff reiterating that no decision had been made about where staff would be relocated and that that was the purpose of the consultation meetings. He wrote of the intention “to limit any impact to office and teaching space.”
h) On 29 January 2019 Professor Stephen Garton (Provost and Deputy Vice-Chancellor) wrote to staff about the decision to close the wet laboratories. He wrote,
“The heritage listed Anderson Stuart Building was opened in 1889 and served many generations of academics and students. Over the years, the Universities made a substantial investment in maintaining and restoring the building. In that process, we have increasingly recognised that maintaining wet research laboratories in a heritage building is both technically challenging and resource intensive. While the building is certainly fit for teaching and office purposes, continued investment in wet lab facilities doesn’t make either economic or research sense, especially in a context where we have made a number of critical infrastructure investment decisions, including the building of a new biomedical building, the tire power infrastructure investment capacity to the next 5 to 10 years. Current estimates suggest project costs in the tens of millions to bring the laboratory areas within Anderson Stuart up to the standard acceptable for any reputable research intensive university. Even then, the heritage nature of the building will demand workarounds compromises that ultimately will produce sub optimal results.
I recognises some of our staff are spent most of their working life in Anderson Stuart and have a deep connection with the work environment in this magnificent building. What I understand this view, I feel it cannot the continuation of laboratory research in sub optimal conditions. We want to support research as to the provision of good facilities that underpin world-class research.
Likewise, laboratory research practices have changed dramatically over recent years, and I believe it is not to defensible to attempt to keep pace with those standards within the context of a heritage building designed hundred and 30 years ago, an entirely different context.
As a result of these considerations, we have decided to close the wet research laboratory in the building and relocate activities to more contemporary facilities, some of them to be vacated by academics from the Faculty of Science in the coming months.” 19
i) On 5 February 2019 the NTEU wrote to the University notifying it of a dispute under the Agreement. The NTEU requested a meeting within 7 days.
j) On 14 February 2019 a meeting was attended by Associate Professor Iveson (NTEU Branch President), Professor Ward and Professor Stephen Garton (Provost and Deputy Vice-Chancellor).
k) On 26 February 2019 Professor Garton wrote to Associate Professor Iveson. Professor Garton noted the earlier risk assessment and further wrote,
“… the University is still undergoing a further safety review commenced in respect of specific safety concerns relating to the Anderson Stuart Building. Given that this further review is still in the process of being finalised, the University is not yet in a position to provide further information to the NTEU about all relevant safety concerns however, what is clear from the information available is that there are legitimate safety concerns at the University is working to address (in respect of immediate safety concerns, the University has already addressed or is in the process of addressing).
Although University has made some changes over recent years to address safety concerns and to seek to make the building more fit for purpose, in some instances these changes (and any future changes) will only be temporary fixes, at best. Due to the nature of the physical infrastructure of the building, any such changes cannot be relied upon in the long term to safely allow staff to family remained within the Building. These changes will also not allow the University to maintain research spaces that a modern and fit for purpose in a safe and cost-effective manner.
In short, the University is not consider the conducting further refurbishments to the Anderson Stuart building will be a reasonably practicable measures to address the concerns with the Building about safety whether it is fit for purpose.” 20
The Provost then disputed that there had been a breach of the Agreement, but nonetheless committed the University to further consultation about the impact of the Close-down Decision.
l) On 19 March 2019 the NTEU escalated the dispute to the Vice-Chancellor.
m) On 27 March 2019 another meeting occurred between representatives of the NTEU and the University. The Vice-Chancellor and Principal of the University, Dr Michael Spence AC also attended the meeting.
n) On 9 April 2019 Dr Spence wrote to Associate Professor Iveson. He wrote,
“As you are aware, the Universities in the process of conducting further reviews and inspections to the previous reviews in October 2018. Although some reviews are ongoing, I confirm that state, the University has not seen any reason to change its decision to close some of the wet laboratories.
…The University has in recent years sought to make the building more fit for purpose. However, it remains the view of University that these changes (and any future changes) will only be temporary fixes which cannot be relied upon in the long-term to safely allow staff to permanently remain in the building and to the University to maintain research spaces that are modern and fit for purpose in a safe and cost-effective manner.”
The Vice-Chancellor disputed that the University was in breach of the Agreement. He then wrote,
“It was indicated in the [26 February 2019 letter from the Provost] that the University would conduct preliminary consultation with staff (as per clause 389 of the Enterprise Agreement), in order to determine if the current decision to close the wet laboratories in the Anderson Stuart building does have a significant effect.
The University has been engaging in Mary consultation and the University has seriously considered information obtained the start, as well of the representations made by you in our meeting. Although the University maintains its position that is not required under the Enterprise Agreement to consult over the decision to close the wet laboratories, does accept that, at least from the perspective of your members, the requirement of staff to move is considered to have a significant effect on their employment. As such, the gesture of good faith, the University agrees to apply the formal consultation provisions under the Enterprise Agreement over the future relocation staff, notwithstanding the University does not consider that the provisions technically apply. For the sake of clarity, I confirm that the consultation will not apply to the decision to close the laboratories, but rather the effect of a relocation on staff, and that this consultation is considered over and above the obligations of the University to consult under the Enterprise Agreement.
This process will cover consultation on the requirements of the staff moving forward and will commence as soon as practical (and of course will continue after this dispute is resolved). I confirm that while for change documentation will provide the rationale for the decision to close the wet laboratories, staff will not be asked to provide feedback on this decision.” 21
o) On 7 May 2019 the NTEU commenced the present dispute in the Commission.
p) Curiously the University ceased its program of consultation when the NTEU commenced this proceeding. As I indicated during the hearing, there was no requirement for the University to cease consultation with affected staff because of these proceedings. 22
Principles of interpretation
[19] The principles relevant to the task of construing an enterprise agreement were distilled in The Australasian Meat Industry Employees Union v Golden Cockerel 23 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.” 24
[20] 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’). 25 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,26 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 ...’.27 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 28
…
[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, 29 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:30
‘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, 31 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.32 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,33Gray 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.’ 34
[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, 35it 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]’. 36
[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’ 37 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.38 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): 39
‘… 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.’ 40
[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.’ 41
[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.’ 42
[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: 43
‘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: 44
‘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. 45 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.46
[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 47a 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):48
‘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, 49 but no clear consensus appears to have emerged.
[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 50gave 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.’ 51
[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 52 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 53:
‘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.’”.
[21] 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.” 54
[22] 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
[23] On 5 June 2019 the NTEU submitted that,
1. The National Tertiary Education Union (NTEU) is covered by the University of Sydney Enterprise Agreement 2018 – 2021 (“the Agreement”) (Clause 6);
2. The NTEU has members and potential members who are affected by the matter under dispute;
3. The Fair Work Act empowers the Fair Work Commission to deal with disputes under Section 738(b) if “an enterprise agreement includes a term that provides for a procedure for dealing with disputes…”
4. The Fair Work Act empowers the Commission to Arbitrate a matter under Section 739(4) where “the parties have agreed that the FWC may arbitrate…”;
5. The FWC is empowered to Arbitrate this matter under Clause 469(d) of the Agreement which states “the Fair Work Commission may resolve the dispute by conciliation, and if conciliation is not successful, by arbitration”;
6. The NTEU has followed the required steps of the dispute settling procedure prior to seeking the assistance of the Commission, it has raised a dispute in writing as required under Clause 469(a) and has requested and held a discussion with a “more senior level of management” as required under Clause 469(b). The dispute was not escalated to the FWC within the ten working days at required in Clause 469(c), however this was done at the request of Senior Management of the Respondent and was agreed in writing;
7. There are no procedural issues that would stop the Commission from determining this matter;
8. The dispute is not a question of whether the Respondent has the right to make the proposed changes to the workplace, but whether or not they are required to consult through the formal process outlined at Part I of the Enterprise Agreement;
9. This dispute and hearing are only dealing with the question:
“Is clause 385 of the University of Sydney Enterprise Agreement 2017 – 2021 enlivened by the decision of the University to close research wet laboratories in the Anderson Stuart Building?”
10. The relevant clause of the Enterprise Agreement is Clause 385, which states:
Where the University proposes to introduce changes in programs, organisation [my emphasis], structure or technology that are likely to have a significant effect of staff, the University will consult with those staff who are directly affected by the proposed changes in accordance with clauses 385 to 394. For the purposes of clauses 385 to 394 “significant effects” include:
(a) termination of employment;
(b) changes to the composition, operation or size of the University’s workforce or to the skills required of staff;
(c) elimination or diminution of job opportunities (including opportunities for promotion or continuing employment);
(d) outsourcing of work;
(e) reallocation of a significant proportion of the duties and responsibilities of staff;
(f) restructuring and/or relocation [my emphasis] of work units; and
(g) alteration of hours of work that involve changes of the kind specified in (a) to (f);
11. The Full Bench of the Fair Work Commission provided details on the Interpretation of Enterprise Agreements primarily in FWCFB 7447 Australasian Meat Industry Employees Union, The Golden Cockerel Pty Ltd which at 41 states:
From the foregoing, the following principles may be distilled:
1. The AI Act does not apply to the construction of an enterprise agreement made under the 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 [my emphasis].
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.
12. There is a strong history of courts finding that a narrow or pedantic approach to the interpretation of industrial instruments including enterprise agreements is to be avoided. In Kucks v CSR Limited [1996] IRCA 166, Justice Madgwick stated:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for.
13. The NTEU contends that Clause 385 is clearly worded, and that by using a plain meaning test, the Clause clearly requires that the University must consult through the formal Agreement process for the proposed changes;
14. Further that managements approach is “narrow and pedantic” and adds “inconvenience or injustice”;
15. The Clause requires that consultation occur when there are changes to “organisation”;
16. According to the Macquarie Concise Dictionary (3rd Edition 2004), organisation means:
(1) The act or process of organising
(2) The state or manner of being organised;
(3) Something that is organised;
(4) Organic structure;
(5) Any organised whole;
(6) A body of persons organised for some end or work;
(7) The administrative personnel or apparatus of a business;
(8) The functionaries of a political party together with the offices, committees, etc. which they hold or of which they are members;
(9) An organism.
17. The Cambridge University online dictionary also includes the definition “the way in which something is done or arranged”;
18. In this sense, the way in which the work is organised in the Anderson Stuart Building forms a critical part of the “organisation” as referenced in Clause 385;
19. The Witness Statements of Professor Maria Bryne, Professor Rebecca Mason and Dr Katie Dixon clearly outline how the way in which work is organised in the Anderson Stuart Building plays an integral part in the way in which and the success they can achieve in their roles. Any changes to the organisation will have significant effects on their roles and their work;
20. Further, as outlined in the witness statement of Kurt Iveson, approximately 200 staff signed an open letter of no confidence in the managements handling of the proposed change, clearly indicating that the change will have a significant impact;
21. Taking a plain meaning test to clause 385, there is no doubt that the changes proposed by the relocation of the wet labs in the Anderson Stuart Building falls within the coverage of the clause and the University is required to undertake a formal change process;
22. The NTEU also notes that at no stage has University Management stated, or even implied, that the change being considered is not a change in organisation;
23. All correspondence from and meetings with management have indicated that the change does not require a formal process because the “significant effects” fall outside the scope of sub-clauses (a) through (g);
24. They have put particular reference on an interpretation of Clause 385 (f). University Management have consistently argued that they are not required to undertake a formal change process as the word “relocation” in sub-clause (f) means a relocation of reporting lines within an area, or what is generally referred to as a restructure;
25. This argument is flawed for two reasons;
26. Firstly, the clause includes both the words relocation and restructure. If the parties had intended Managements suggested meaning then the word would have been omitted, there would be no reason to say the same things twice in different words, which would only open the clause up to ambiguity;
27. On the other hand if you give relocation its dictionary meaning:
Relocate (adjective): to move )a firm, factory, etc.) to a different location [relocation (noun)] Macquarie Concise Dictionary (3rd Edition 2004)
It avoids the ambiguity that Management’s definition creates;
28. Secondly, even should the Commission give weight to Management’s interpretation of “relocation”, the list (a) through (g) in clause 385 is an inclusive list, not an exhaustive one. Such a list serves to direct the parties, the Commission or a Court to the type of matters that should be considered. A change of the colour of the paint on a building bears no relationship to this list and would be excluded, however, a physical relocation of a group of staff which would have an effect on the way in which they undertake their work is clearly within the range of this this;
29. Should the Commission not be persuaded that the plain meaning test is sufficiently clear, the clause must be interpreted based on the intention of the parties at the time;
30. Clause 385 was introduced in the University of Sydney Enterprise Agreement 2013 – 2017 (though at the time it was number as Clause 310);
31. Prior to the introduction of the 2013 Agreement, the managing change clause was drafted in completely different terms. The relevant Clause in the University of Sydney 2009 – 2012 Agreement is clause 267 which provides:
(a) continual change is necessary for the University to maintain and enhance its position as a leading international university. All proposals for change must be aligned to the University’s Strategic Directions. Effective communication between management and staff is integral to a purposeful change process that has significant impact on staff, the aim being to make change as smooth and equitable as possible for both the University and its staff;
(b) the sound management of workplace change requires consultation with staff who will be directly affected by that change. “Consultation” means a process by which the parties exchange information about a matter or issue, hold discussions to explain points of view, and take into account the views of the other party/parties. The consultative process will be collegial, but consultation does not necessarily mean that an agreement can be reached. If agreement is not reached, reasons will be given;
32. This process was left open, and required formal consultation with staff when any changes would have a significant effect them;
33. As is identified in the witness statements of Michael Thomson and Kurt Iveson, negotiations for the 2014 Agreement were difficult and protracted. An agreement was only reached after more than 12 months and 6 days of industrial action;
34. Managing change processes formed an important part of those negotiations. Management commenced the process seeking to strip out these conditions.
35. The draft clause for Managing Change went through many iterations; agreement was only given once the NTEU Bargaining Team was satisfied that the University was required to consult for all matters that would have a significant effect;
36. Minor modifications were made to the clause in the current agreement, namely the introduction of sub-clause (d) and sub-clause (g). Neither or which have any relevance to this hearing;
37. The words “programs, organisation, structure or technology” where important to the NTEU and finally agreed up as they encompass the entirely of matters that could have significant effects:
Programs: requires consultation if the University proposes to make major changes to course offerings or internal programs;
Organisation: requires consultation where the University proposes to make changes to the way in which staff are required to do their work or how the University is organised;
Structure: requires consultation where the University proposes any restructuring to its staffing;
Technology: requires consultation when they University proposes to introduce new technology, software or equipment, that will require staff to perform their work in different ways or change the skillset required;
38. The information presented by A/Prof Iveson and Mr Thomson demonstrates that the intent of the parties was to include changes to organisation that would have a significant impact in the Managing Change provisions;
39. Further, as demonstrated by the witness statement of A/Prof Iveson, Academics in a University environment are judged by their research output (though the way in which the Respondent does this is contested by the NTEU). An academic who fails to produce may face termination. That the changes may negatively impact on research outputs is evidenced through the statements of Professor Maria Bryne, Professor Rebecca Mason and Dr Katie Dixon.
40. Any changes introduce by management that may negatively impact on an academics output must be subject to consultation.
41. The Applicant submits that the relocation of the Wet Labs out of the Anderson Stuart Building to other locations does enliven Clause 385, and the University must follow the processes in Part I: Managing Workplace Change.” 55
Submissions – University
[24] On 24 June 2019 the University submitted that,
1. “The Applicant has notified a dispute pursuant to s 739 of the Fair Work Act 2009 (Cth) (the Act). In its written submissions the question to be determined is stated to be:
“Is clause 385 of the University of Sydney Enterprise Agreement [2018] – 2021 enlivened by the decision of the University to close research wet laboratories in the Anderson Stuart Building?”
2. The Respondent accepts that this is a correct identification of the matter in dispute.
3. The Respondent says that when regard is had to the evidence as to what has to date occurred with respect to the proposed closure of the research wet laboratories in the Anderson Stuart Building, clause 385 of the University of Sydney Enterprise Agreement 2018 – 2021 (the EA) is not so enlivened.
4. In this regard, the position with respect to the proposed closure of the research wet laboratories is that:
(a) a decision to close the research and wet laboratories in the Anderson Stuart Building and have that work performed elsewhere was communicated to staff in November 2018;
(b) discussions and information gathering with relevant stakeholders, including to be affected academic staff covered by the EA, commenced in December 2018 in order to determine where the work might be performed;
(c) those discussions and the information gathering exercise ceased in February 2019 upon the Applicant putting the present matter in dispute;
5. Critically, and this is fundamental to the disposition of the application in this proceeding, no decision has been made as to where the work performed in the research wet laboratories will be performed.
6. To this end, an analysis of clause 385 makes it self-evident that there are a number of requirements, each of which need to be satisfied, in order for the clauses which follow to be enlivened. It is submitted that these requirements have not been satisfied, meaning that the Commission is not able to make the orders sought by the Applicant in resolution of the dispute.
7. Clause 385 provides:
Where the University proposes to introduce changes in programs, organisation, structure or technology that are likely to have a significant effect on staff, the University will consult with those staff who are directly affected by the proposed changes in accordance with clauses 385 to 394. For the purposes of clauses 385 to 394 “significant effects” include:
(a) termination of employment;
(b) changes to the composition, operation or size of the University’s workforce or to the skills required of staff;
(c) elimination or diminution of job opportunities (including opportunities for promotion or continuing employment);
(d) outsourcing of work;
(e) reallocation of a significant proportion of the duties and responsibilities of staff;
(f) restructuring and/or relocation [my emphasis] of work units; and
(g) alteration of hours of work that involve changes of the kind specified in (a) to (f);
8. The relevant principles to be applied in the interpretation of an enterprise agreement have been summarised by the Full Bench in The Australian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447, as adapted in AMWU v Berri Pty Limited [2017] FWCFB 3005 (Berri) 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.
9. In applying that test, and considering the plain and ordinary reading of the words used in clause 385, what is apparent is that, in order for the consultation obligation to arise, the following requirements must be met:
(a) there must be a proposal by the Respondent to introduce change;
(b) the proposed change or changes must be in programs, organisation, structure or technology;
(c) the proposed change or changes must be likely to have a significant effect on staff.
10. The term 'significant effects' is defined to include (but is not limited to):
(a) termination of employment;
(b) changes to the composition, operation or size of the University’s workforce or to the skills required of staff;
(c) elimination or diminution of job opportunities (including opportunities for promotion or continuing employment);
(d) outsourcing of work;
(e) reallocation of a significant proportion of the duties and responsibilities of staff;
(f) restructuring and/or relocation of work units; and
(g) alteration of hours of work that involve changes of the kind specified in (a) to (f).
Proposal to introduce change
11. The Respondent has made a decision that for safety and operational reasons, the research wet laboratories in the Anderson Stuart Building will close and the work performed in those laboratories will be performed elsewhere.
12. The Respondent accepts that under this decision, as it presently stands, there will be a change. That change is that the work presently performed in the research wet laboratories in the Anderson Stuart Building will not be performed in the Anderson Stuart Building.
13. Critically, it is important to note that:
(a) this is the only change which has been proposed as at the date of notifying the dispute;
(b) there has been no decision to perform the work presently performed in the research wet laboratories at any other particular place;
(c) it is not proposed that the substantive work performed in the research wet laboratories in the Anderson Stuart Building will not be performed at all in future, or that it be performed differently.
Change to programs, organisation, structure or technology
14. The change is not a change to programs, organisation, structure or technology.
15. As set out in Berri, the meaning of each of these terms needs to be considered having regard to its natural and ordinary meaning in the context in which it appears.
16. The context is critical. The terms appear in a clause in an enterprise agreement applying to a university dealing with situations when the university is required to enter into consultation with its staff. The requirement to consult is about change. However, the requirement is not to consult about any and all change. There are specific circumstances in which the requirement to consult is enlivened. Importantly, in the present context, the change must be to one or more particular, identified matters, namely, programs, organisation, structure or technology.
17. To understand the meaning of the terms "programs", "organisation", "structure" and "technology", regard has to be had to the context in which they appear, which includes the EA, the work which is sought to be regulated by the EA and the nature of the undertaking of the Respondent to which the EA relates.
18. The EA relates to the performance of work by employees of the Respondent – a large university primarily located in Sydney. The EA covers academic staff, primarily engaged in research and teaching roles, as well as professional staff. It contains terms and conditions of employment applying to staff of the Respondent.
19. The Respondent employs approximately 12,331 staff across 11 main and satellite campuses. The Respondent’s large and diverse property portfolio includes approximately 150 separate properties owned and 80 properties leased by the Respondent from which it conducts its core functions of research and education, in addition to professional services, administrative and student accommodation operations. On its campuses in Sydney alone, there are approximately 450 separate buildings which undergo planned, preventative and reactive maintenance and are regularly assessed for upgrade and refurbishment. In addition, the Respondent has recently completed, or is in the process of constructing, 7 new transformational projects as part of its Campus Improvement Program. Academic staff within the university covered by the EA are employed to work within faculties, schools or departments, which often contain multiple levels of specialisation. Those faculties, schools or departments can be located within one building on one campus or, more commonly, spread across multiple buildings and multiple campuses, depending on the size of the faculty, school or department, the type of work performed and the available building space.
20. It is not uncommon for staff working within a faculty, school or department to change the physical place in which they might perform their work because of reasons relating to the available building space or proposals to review, upgrade, refurbish or construct buildings.
21. In this context, it can be seen that there is no change to "programs", "organisation", "structure" and "technology", as those terms are used in the EA, by the proposed change which is the subject of this dispute.
22. The proposed change in this dispute is to close the research wet laboratories in the Anderson Stuart Building and have the work performed in those laboratories performed elsewhere.
23. The program (in terms of course offerings and the like) under which the work performed by staff in the research wet laboratories in the Anderson Stuart Building will not be affected by the proposed change. The work will continue to be performed in the same manner as it is at present. There is no change to program.
24. The structure of the staffing and the work performed by staff in the research wet laboratories in the Anderson Stuart Building, how it is performed, and the context in which it is performed, will also not change. It will be performed by the same academic staff covered by the EA, within the same School within the Faculty, at the same university, in the same substantive manner as it is at present and there are no proposed changes to the structure and make-up of the School or the Faculty arising from the change. There is no change to structure.
25. There is no proposed change to technology associated with the work performed by staff in the research wet laboratories in the Anderson Stuart Building. There is no change to technology.
26. The NTEU have submitted that the way in which work is organised will be altered based on the proposed change, and that this will have a significant effect. However, the organisation of the staff and work performed by staff in the research wet laboratories in the Anderson Stuart Building, how it is performed, and the context in which it is performed, will also not change. It will be performed by the same academic staff covered by the EA, within the same School within the Faculty, at the same university, in the same substantive manner as it is at present and there are no proposed changes to the structure and make-up of the School or the Faculty arising from the change. The University, in conducting the information gathering it has done, was seeking to gather information about the way in which work is organised so that a change in organisation does not occur. There has been no change to organisation.
27. The University submits that there will be no change in organisation as a result of the move. In the alternative, the University submits that if a change in organisation may occur in future, such change has not been proposed as yet, given that the University is yet to finalise its proposals relating to prospective relocations, by virtue of this dispute being lodged.
28. For these reasons, the pre-condition to enlivening the consultation obligation that there by a change to programs, organisation, structure or technology is not satisfied.
Change or changes must be likely to have a significant effect on staff
29. The change, as presently stated, cannot be said to be likely to have a significant effect on staff.
30. The reason for this is that the proposed change comprises only that the research wet laboratories in the Anderson Stuart Building will close and that the work performed in those laboratories will be performed elsewhere.
31. There has been no proposed decision as to where that work will be performed.
32. That decision was, and remains, the subject of discussion with, and information gathering from, relevant stakeholders including staff covered by the EA. That process of discussion and information gathering commenced in December 2018, continued up until February 2019 and ceased when the present dispute was notified on 5 February 2019, by virtue of the obligations triggered under the dispute resolution processes in the EA, in particular clause 470:
Except where a genuine safety issue is involved, staff will continue to work in accordance with their contracts of employment while the procedures outlined in clause 469 are being applied, and during this time:
(a) the University will not change anything which is the subject of the dispute;
(b) the parties to a dispute must not take any industrial action or any action to make the dispute worse.
However, nothing in this clause 470 prevents the termination of a staff member’s employment during or at the end of a probation or confirmation period or on grounds of unsatisfactory performance, Serious Misconduct, redundancy or ill health or the cessation of a Fixed Term contract.
33. In order to determine whether a proposed change is likely to have a significant effect on staff, it is necessary to have under consideration a proposed change which is of sufficient detail or particularisation that, in some way or form, it can be seen to have an effect on staff. The next step is to determine whether that effect is likely to be a significant effect on staff. In considering that question, regard may be had to the circumstances referred to in clause 385 as being identified as "significant effects" (accepting that the list set out therein is not exhaustive).
34. The difficulty with the present dispute is that no effect on staff can be identified because the change has not yet been determined with sufficient detail or particularity to allow that exercise to be undertaken.
35. It may be that, in due course, once the pending discussions and information gathering exercise has completed, it is proposed that the work currently performed in the research wet laboratories in the Anderson Stuart Building is performed elsewhere and that may, for example, be in an adjacent or nearby building on the same campus. Alternatively, it may be proposed that the work be performed in a building on a different campus. The effects of the proposed change, with the benefit of that detail and particularisation as to where the work will be performed, will allow for a determination as to whether the change is likely to have a significant effect on staff. That is not an exercise that can be undertaken at the present time.
36. Without conceding that the reference to restructuring and/or relocation of work units in clause 385(f) might encompass the performance of the work performed in the research wet laboratories at another building on the same campus, the fact is that there has not been any proposed change which actually involves a specific change to any other place or building. That decision has not been made.
37. Accordingly, it cannot be said that the proposed change is one which is likely to have a significant effect on staff.
Conclusion
38. For these reasons, the orders sought by the Applicant in resolution of the dispute cannot be made by the Commission and the application ought be dismissed.
39. The Respondent confirms that it will continue to hold discussions with staff covered by the EA and their representatives, as well as other relevant stakeholders, as part of its information gathering exercise, for the purpose of considering and making a proposed decision about where the work presently performed in the research wet laboratories in the Anderson Stuart building will be performed.” 56
Reply submissions – NTEU
[25] In reply, on 1 July 2019, the NTEU submitted that,
1. “These submissions re in reply to the Respondents submissions and evidence filed and served on 24 June 2019.
Acknowledgement of Change
2. The Respondent in the submission at paragraph 5 states that “a decision to close the research and wet laboratories in the Anderson Stuart Building and have that work performed elsewhere was communicated to staff in November 2018”;
3. Then at paragraph 11 they state “The Respondent has made a decision that for safety and operational reasons, the research wet laboratories in the Anderson Stuart Building will close and the work performed in those laboratories will be performed elsewhere.”
4. And further at paragraph 13(a) they state, “this is the only change which has been proposed as at the date of notifying the dispute.”
5. The Respondents submission acknowledges that they have proposed a change, and further that they have not, and do not intend to consult under Clause 385 regarding the decision itself.
Respondents claim that Clause 385 is not yet enlivened
6. In the respondents submissions at paragraph 4(a) they make the assertion that “what has to date occurred” does not enliven clause 385 of the University of Sydney Enterprise Agreement 2017 – 2021 (the Agreement).
7. They go on to state at paragraph 6 that “To this end, an analysis of clause 385 makes it self-evident that there are a number of requirements, each of which need to be satisfied, in order for the clauses which follow to be enlivened. It is submitted that these requirements have not been satisfied, meaning that the Commission is not able to make the orders sought by the Applicant in resolution of the dispute.”
8. The meaning of clause 385 is self-evident, but not in the manner that they assert. The clauses requires that “Where the University proposes to introduce changes in programs, organisation, structure or technology that are likely to have a significant effect on staff, the University will consult with those staff who are directly affected by the proposed changes.”
9. The relevant change is the decision at paragraph 4(a) to close the labs, and not, after the decision has already been invalidly made, the decision as to where staff should be relocated.
10. The applicant concurs with the respondents outline in their submission at paragraph 9 of what requirements must be met in order for the consultation obligation to arise. To address each of their points in order:
a. There must be a proposal by the respondent to introduce change. That a proposal to introduce change exists is beyond doubt, the Respondent confirms this in their own statement at paragraphs 5, 11 and 13(a).
b. The proposed change or changes must be in programs, organisation, structure or technology. The NTEU presented evidence with our initial submission that the location and particularly the colocation of the wet labs and sections of the Bosch Institute are critical organisation details of how the work is carried out.
c. The proposed change or changes must be likely to have significant effect on staff. The evidence of the witnesses that the NTEU provided with the initial submissions confirms that the changes are likely to have a significant effect. Further, in the supplementary statement by NTEU President Kurt Iveson, the locations currently being proposed are significant distances from each other, the current collaboration and sharing of resources would not be possible if the staff where moved out of the current environment.
Interpretation of Clause 385
11. In paragraph 15 of the Respondents submission they state that “As set our in Berri, the meaning of these terms [programs, organisation, structure or technology] needs to be considered having regard to its natural and ordinary meaning in the context in which it appears”. This is misrepresentation of Berri, which would lead the Commission to place a weight on surrounding circumstances that is not justified. Berri provides that “if an agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement”. Whilst the surrounding context may be relevant to consider if there are ambiguities, and if there are to resolve them, they must not be included to contradict the plain language of the Agreement.
12. As put in our initial submissions, the language of the clause is unambiguous and clear. The NTEU has provided a dictionary definition of “organisation”, which corresponds to the plain English meaning of the word. The Respondent has not disputed the definition provided by the NTEU in either their submissions or the statement of Ms Patricia Lyons. The Commission must find that there has been a change in organisation.
13. The Respondent claims that Clause 385 is not required because “what has happened to date” does not enliven the clause. They go on to argue in paragraphs 29 to 37 that as they have not determined where the work will be carried out “it cannot be said that the proposed change is one which is likely to have significant effects”.
14. This misinterpretation does not consider the words “are likely to”. The nature of the work carried out in the Anderson Stuart Building and the way in which the work is organised and carried out means that the relocation itself is likely to have significant effects, in which case Clause 385 is enlivened.
Alternate Finding
15. In the circumstance that the Commission finds that while the location of the relocation is not finalised then clause 385 is not enlivened, the NTEU would seek the Commission determine what would be required should subsequent informal consultation result in proposed locations that are likely to have a significant effect. In these circumstance the NTEU considers that the Commission should direct:
a. A change process under 385 must be undertaken that includes consultation over whether the relocation from the Anderson Stuart Building is to occur, and if after consultation it is found that it is, where staff are to relocate to and what requirements they have to perform their work.
Work Health and Safety as Justification for Relocation
16. In the evidence presented by Ms Patricia Lyons, the Respondent provides significant details on possible WHS issues as well as some references to operational and financial decisions or constraints.
17. The NTEU has provided significant information through the statements of Iveson and Bocardo that no evidence has been presented regarding significant WHS issues in the wet labs. The NTEU has requested WHS reports on numerous occasions, the University has yet to supply any reports.
18. The Dean of the Faculty had the opportunity to present WHS evidence to the Commission. She has elected not to attend or provide a statement. The NTEU believes that as per principles established in Jones v Dunkel little weight should be placed on any potential WHS issues, and should find that any evidence produced would not provide compelling reasons that the wet labs need to be relocated due to WHS issues.
19. The University provides its underlying motives for the relocation in the letter from the Deputy Vice-Chancellor and Provost Professor Stephen Garton (attachment TL-4). In his letter Prof Garton states “especially in a context where we have made a number of critical infrastructure investment decisions, including the building of a new biomedical building, that tie up our infrastructure investment capacity for the next 5 to 10 years. Current estimates suggest project costs in the tens of millions to bring the laboratory areas within Anderson Stuart up to the standard acceptable for any reputable research intensive university.”
20. The University has failed to provide any WHS reports. The Deputy Vice-Chancellor has stated that the cost is prohibitive. The decision to relocate the wet labs in the Anderson Stuart Building is a commercial decision made by management. This decision, which is a change to organisation and has a significant effect, must be subject to consultation under Clause 385.
Informal Consultation
21. In the statement provided by Ms Lyons, she lists the consultation process that the University has undertaken. She includes letters from Professor Garton and the Dean regarding the matter.
22. That they University has undertaken some informal consultation should be given no consideration as to whether Clause 385 is enlivened and they are required to the formal process.
23. The terms of the Agreement are binding, the University cannot avoid an obligation to consult under 385 by adopting their own and preferred version of consultation.
Conclusion
24. The Commission should find that Clause 385 is enlivened by the decision to close the wet labs in the Anderson Stuart Building and make the order as drafted by the NTEU in the Application.” 57
Evidence - NTEU
[26] Michael Thomson, NSW State Secretary of the NTEU (and formerly a general staff member at the University) gave evidence about,
a) his history of involvement as a representative of the NTEU in bargaining up to the 2014 enterprise agreement, and
b) the history of disputation between the NTEU and the University about the operation of clauses in various previous iterations of the Agreement concerning consultation.
c) bargaining for the predecessor agreement. His evidence was that “the people in the bargaining room all understood that the last one, “organisation” meant organisation in all senses of the word. Both being how the University was organised, and how the work was organised and undertaken.”
[27] Mr Thomson was not required for cross examination. Consequently, his witness statement was admitted unchallenged. Notwithstanding, the lack of challenge by the University, and although the Commission is not bound by the rules of evidence, Mr Thomson’s evidence was of questionable probity and was rife with evidentiary defects. It is simply not possible for Mr Thomson to give evidence about what all “the people in the bargaining room” understood a particular clause to mean. In any case evidence about what occurred during the bargaining for an enterprise agreement is usually of little assistance in interpreting an agreement. I reiterate the principles relevant to the task of construing a single enterprise agreement enunciated in Berri, 58
“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 the evidence or prior negotiation and the positions advanced during the negotiation process. Evidence as to what employees were told … 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.” 59
[28] Accordingly, I adopt a cautious approach to the reliance upon the evidence of Mr Thomson.
[29] Dr Maria Byrne, Professor Developmental and Marine Biology, Discipline of Anatomy and Histology, School of Medicines (75%) and School of Life and Environmental Sciences (25%) gave evidence about:
a) her:
i. range of activities at the University,
ii. research success,
iii. postgraduate and honours supervision record,
b) the importance of the Byrne Laboratory in the Anderson Stuart Building and its design specifications.
c) the importance of proximity between her office and the laboratory,
d) the importance of proximity between the laboratory and the Bosch Molecular Biology Facility (which her and her staff use regularly),
e) how “the current organisation of staff and equipment being co-located in a single building has contributed significantly to [her] results.”
f) the establishment of a “Mall Student Facility” next to her laboratory,
g) how she was told in December 2018 that she would have to vacate her laboratory in mid 2019,
h) how uncertainty has impacted her role as a research and teaching academic and caused her anxiety.
[30] Dr Katie Dixon, Senior Lecturer in the Discipline of Anatomy and Histology, School of Medical Sciences, Faculty of Medicine and Health gave evidence about,
a) her:
i. roles within the University (including as a teacher of undergraduate and postgraduate coursework) and periods of career interruption,
ii. research work in the Anderson Stuart Building,
b) how travelling between centres negatively impacts upon her supervision and research work,
c) how relocation of the laboratories will increase time out of her day taken to travel to classes that she teaches and to attend meetings with colleagues (who are currently co-located),
d) how it would be difficult to undertake research if the laboratories were moved and there was an absence of shared facilities that currently exist in the Anderson Stuart Building.
e) her experience being notified of the Close-down Decision.
f) impacts on her health.
[31] Professor Rebecca Mason, Professor of Endocrine Physiology in Physiology, in the School of Medical Sciences, Faculty of Medicine and Health and Deputy Director of the Bosch Institute, gave evidence about:
a) the history of her roles at the University, her research programme (and the impact of it) and her success at obtaining grant funding,
b) how her research “and many aspects of what [her] group studies, is organised around equipment, facilities and colleagues that are available and close in the Anderson Stuart Building.”
c) how having equipment close by is essential for her work and the adverse impact it would have on her research if the wet research laboratories were dismantled,
d) the adverse impact the Close-down Decision would have on her ability to supervise higher degree and postgraduate students (especially where she is a co-supervisor of a student),
e) the impact that the announcement of the Close-down Decision has had on her supervision,
f) the operation of the Bosch Institute and its two important facilities,
g) the impact of the Close-down Decision on industry collaborations,
h) the importance of proximity between classes, offices and laboratories to staff with mobility issues, and
i) the impact of the announcement of the Close-down Decision.
[32] Dr Rob Boncardo, NTEU Branch Committee at Sydney University, gave evidence about his involvement in meetings since the announcement of the Close-down Decision and meetings about workplace health and safety issues. He provided his records of those meetings.
[33] The only NTEU witness required for cross-examination was Associate Professor Iveson, Branch President of the University of Sydney Branch of the NTEU. He gave evidence about:
a) the importance of the managing change provisions to members of the NTEU,
b) his involvement in the negotiations for the Agreement,
c) his understanding of the meaning of “relocation” in cl 385(f) of the Agreement,
d) two other examples of the University proposing to relocate large groups of staff,
e) becoming aware of the Close-down Decision in late 2018,
f) the level of staff concern about the Close-down Decision,
g) his understanding of “significant effect”,
h) the failure of the University to provide information about the health and safety risks of maintaining the wet laboratories and the costs of maintaining and upgrading the same, and
i) staff suffering workplace stress.
[34] In his second witness statement Associate Professor Iveson was responsive to the evidence advanced by the University. He gave evidence about how previous relocations of staff were different to what is being proposed by the Close-down Decision. He also gave evidence about the distances between possible alternative sites for the wet laboratories.
[35] Under cross examination Associate Professor Iveson gave evidence about what he has been told about the importance of the co-location of offices and laboratories in the Anderson Stuart Building and the adverse impact that traveling between spaces would cause. 60 He also claimed that the University had failed to give evidence about safety and financial concerns.61 Associate Professor Iveson conceded that the University has set up a series of one on one interviews with affected staff after it had announced the Close-down Decision and that the University was attempting to find out the space requirements of the affected staff,62 but that those consultations ceased once the NTEU lodge the present dispute.63 Associate Professor Iveson accepted that no decision has been made about where staff will be moved as a result of the Close-down Decision.64
Evidence – University
[36] Patricia Lyons, Associate Director, HR Partnering in the Human Resources Relationship Group at the University of Sydney, gave evidence about:
a) her history of employment at the University,
b) her current role supporting the Faculty of Medicine and Health and the Faculty of Health Sciences in respect of human resources matters,
c) the composition of the University, Faculties, University Schools and Academic Schools,
d) the composition of the Faculty of Medicine and Health (FM&H),
e) the University owning approximately 150 separate properties and leasing another 80 properties,
f) the appointment of Professor Robyn Dean as Executive Dean of the FM&H,
g) the majority of staff employed in the School of Medical Sciences are located in the Anderson Stuart Building, with some located in the Medical Foundation Building, G08, Brain and Mind Centre, Edgeworth David Building, Charles Perkins Centre, RMC Gunn Building,
h) the history of the Anderson Stuart Building (the University’s second oldest building) and the disciplines it currently houses,
i) size and capacity of the Anderson Stuart Building including the number of wet and dry laboratories,
j) the decision to close the wet laboratories,
k) the development of the Strategic Plan for the FM&H
l) how the Close-down Decision affects “24 chief investigators (not including casuals or part-time staff), 24 currently enrolled HDR students (i.e. not under examination) … across 24 wet laboratories,”
m) the consultation commenced by the University,
n) the fact that no decision has been made about where staff will be relocated,
o) the decision to cease all consultation after the NTEU lodge the present dispute.
Consideration
[37] I accept that in applying the Agreement I should not approach the task in a narrow or pedantic way. 65
[38] 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. 66
[39] For this reason, it is appropriate to again set out the opening clause of the Managing Workplace Change part of the Agreement.
“385 Where the University proposes to introduce changes in programs, organisation, structure or technology that are likely to have a significant effect on staff, the University will consult those staff who are directly affected by the proposed changes in accordance with clauses 385 to 394. For the purposes of clauses 385 to 394 “significant effects” include:
(a) termination of employment;
(b) change to the composition, operation or size of the University’s workforce or to the skills required staff;
(c) elimination or diminution of job opportunities (including opportunities for promotion or continuing employment);
(d) outsourcing of work;
(e) relocation of a significant proportion of the duties and responsibilities of staff;
(f) restructuring and/or relocation of work unit; and
(g) operation of hours of work that involves the kind specified in (a) to (f).” 67
[40] The first observation to be made is that parties to an enterprise agreement can define any term or concept however they like. For example, they could define “night” as “that period of a day when the sun is shining.” Although it is preferable that words in agreements are defined as they are commonly understood there is no requirement that the parties do so. So too the scope of a defined term is within the power of the parties to determine. The word “dog” when used in reference to a “dog handling allowance” could be defined broadly as “Canis lupus familiaris” meaning all domestic dogs or narrowly as just the Airedale Terrier breed. The point is, it is entirely a matter for the parties.
[41] In the present matter we are concerned to understand what is meant by the term “organisation” as it appears in cl 385. However, it is not a defined term. The parties could have expressly defined it to include factual situations that include the present concerning the Close-down Decision. Other examples of workplace change resulting in the relocation of staff were known to the parties. They could have expressly dealt with the same in the Agreement. They decided not to do so. Accordingly, we are left with the ordinary meaning of “organisation”.
[42] The NTEU correctly focused its submissions on the meaning of “organisation” and did not contend that the close-down decision was a change to “programs”, “structure” or “technology”. 68
[43] Before me the University abandoned its submissions 69 that the Close-down Decision was not likely to have a significant effect on staff. The University conceded that the Close-down Decision would result in the relocation of work units such that cl 385(f) is enlivened and, consequently, the decision is “likely to have a significant effect on staff.”70
[44] As the University correctly identified in paragraph 9 of its submissions, cl 385 requires three things to have occurred in order for it to be enlivened:
a) there must be a proposal by the University to introduce change;
b) the proposed change or changes must be in:
i. programs,
ii. organisation,
iii. structure or
iv. technology;
c) the proposed change or changes must be likely to have a significant effect on staff.
[45] In the present matter the evidence supports a finding that:
• (a) and (c) have been satisfied; and
• (b)(i), (iii) and (iv) are not relevant.
[46] Consequently, all we are concerned about is whether the Close-down Decision is a proposal “to introduce change in … organisation”?
[47] In formulating its argument the NTEU relied upon the definition of “organisation” in the Macquarie Concise Dictionary (Third Edition 2004) and the Cambridge University online dictionary. The NTEU contended that,
“In this sense, the way in which the work is organised in the Anderson Stuart Building forms a critical part of the “organisation” as referenced in clause 385.” 71
[48] The NTEU submitted that,
“Organisation: requires consultation where the University proposes to make changes to the way in which staff are required to do their work or how the University is organised.” 72
[49] The Macquarie Dictionary 73 defines “organisation” as follows:
“noun
1. the act or process of organising.
2. the state or manner of being organised.
3. that which is organised.
4. organic structure.
5. any organised whole.
6. a body of persons organised for some end or work.
7. the administrative personnel or apparatus of a business.
8. the functionaries of a political party together with the offices, committees, etc., which they hold or of which they are members.
9. an organism.”
[50] The Oxford online dictionary 74 defines “organisation” as follows:
1. An organised group of people with a particular purpose, such as a business or government department;
2. The action of organising something;
2.1 The way in which the elements of a whole are arranged;
2.2 The quality of being systematic and efficient
[51] The Cambridge online dictionary 75 defines “organisation” as follows:
In the context of an arrangement:
a. the way in which something is done or arranged;
b. the planning of an activity or event;
In the context of a group:
a. a group of people who work together in an organised way for a shared purpose.
In the contact of a system:
a. the way in which something is done or arranged.
[52] The only evidence about the way in which work is organised in the wet laboratories, in conjunction with the other work undertaken by academics, including their supervision, office work, collaborations and research was provided by the NTEU’s witnesses. That evidence was uncontested by the University. That evidence supports a finding that the manner in which that work is organised individually and across all of the responsibilities that academics have will change as a result of the Close-down Decision. The way in which their work is done and arranged at present will change. The way in which it is done will change because of the loss of benefits which arise from the colocation of office and research facilities. The uncontested evidence is that the Close-Down Decision will affect the way the supervision of higher degree students will occur and how researchers and teams will work together. There will be a change to the organisation of work.
[53] The second observation to make, relevant to context, is that cl 385 is cast in similar terms to the traditional termination, change and redundancy (TCR) clause and is, arguably, wider in scope than the Model Consultation term to be found in Schedule 2.3 of the Fair Work Regulations 2009 (Cth). In circumstances were both the University and the NTEU are experienced industrial players, the decision to cast cl 385 in such terms must have been deliberate and evidences the objective intention of the parties when they decided to draft a term which they intended to be enforceable.
[54] The original 1984 TCR clause was intended to cover not only technological change, but any change in an enterprise which was likely to significantly affect employment, irrespective of the cause of that change. The resulting clause provided as follows:
“1. (a) Where an employer proposes to make changes in production, programme, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and their union or unions.
(my emphasis)
(b) `Significant effects' include termination of employment; major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities, promotional opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs.” 76
[55] The Model Consultation term provides as follows:
“(1) This term applies if the employer:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees.
(my emphasis)
…
(9) In this term, a major change is likely to have a significant effect on employees if it results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.” 77
[56] The similarities and differences between the original TCR clause, the Model Clause and cl 385 are obvious. Clause 385 is more like the original TCR clause because it refers to an employer proposing to make change rather than the employer having already made a definite decision. Unlike in the TCR clause and the Model clause, cl 385 does not include a reference to “production”. That seems appropriate in a university context.
[57] Noting that the Agreement is intended to capture circumstances where the employer proposes to make changes it is relevant the context in which to consider the word “organisation”. The inclusion of cl 389 in the Agreement confirms this understanding. The parties clearly intended that the change provisions relate to a wide range of circumstances. The whole context suggests a wide obligation to consult.
[58] For these reasons the ordinary meaning of “organisation” in clause 385 must include the circumstances giving rise to the Close-down Decision. To find otherwise would see me adopt a pedantic definition that betrays the clear intent of the parties that the consultation provisions relate to any change in the University which is likely to significantly effect employment. Nothing in the ordinary meaning of “organisation”, when considered in the context of the change provisions in the Agreement, permits the narrow reading advanced by the University. I reject it.
[59] I am not satisfied that there is any ambiguity in the words used in the Agreement. Having not identified any ambiguity, it is then not permissible for me to consider evidence of the surrounding circumstances as an aid to the task of interpreting the Agreement.
[60] The task I have performed does not involve a rewriting of the Agreement to achieve what might be regarded as a fair or just outcome. That is not the role of the Commission in interpreting agreements. The Agreement before me is that which was produced by the parties and it was open to them to expressly define “organisation” as they liked. They chose not to do so. Having decided that the Agreement has a plain meaning I am not permitted to contradict the plain language of the Agreement. To adopt the contentions of the University would result in the plain language of the Agreement being contradicted and have me fall into error.
Conclusion
[61] For the reasons set out above, the Commission, as presently constituted, is satisfied that its jurisdiction under the Agreement is enlivened by the Close-Down Decision. The answer to the question “Is clause 385 of the University of Sydney Enterprise Agreement 2017-2021 enlivened by the decision of the University to close research wet laboratories in the Anderson Stuart Building?” is “Yes”.
[62] In circumstances were the Commission is invested with jurisdiction to deal with the dispute the NTEU’s application for a remedy must be allowed to proceed.
[63] The matter will now be programmed for further hearing. This does not mean that the wet laboratories in the Anderson Stuart Building will remain open. It means only that the University must consult about the same and that consultation must be genuine.
[64] Finally, I make the observation (again) that the fact that the matter will continue in the Commission is no impediment to the University continuing with its program of consultation, either about the proposal to close the wet laboratories or the consequences of the same. Proceedings in the Commission should never be seen as an impediment to direct engagement between an employer, its employees and their representatives. The University it entitled to know the information that was being sort by Professor Christie and the affected academics are obliged to provide that information and whatever other information the University requires to inform its decision making.
COMMISSIONER
Appearances:
Mr S Kempton, Industrial Officer, NTEU for the Applicant.
Mr D Stewart, Senior Solicitor, assisted by Ms J Dickson, Workplace Relations Director, University of Sydney for the Respondent.
Hearing details:
Sydney, 10 July 2019
Printed by authority of the Commonwealth Government Printer
<PR713186>
1 Transcript PN217.
2 Clause 469 of the Agreement.
3 Clause 469(d) of the Agreement.
4 University of Sydney [2018] FWCA 2265.
5 Ibid 1, [4].
6 Clause 6(c) of the Agreement.
7 University of Sydney [2018] FWCA 2265, 1, [3]. See also cl 6(b) of the Agreement.
8 The University had sort permission to be represented by an external lawyer. The NTEU opposed the application. In advance of the hearing the parties filed submissions about the operation of s.596 of the FW Act. On 5 July 2019 I advised the parties that, having considered the submissions, I was not persuaded that (1) the matter was invested with any complexity, and (2) even if the matter was complex, that I would be assisted in the efficient conduct of the matter if permission to be represented was granted to the University. Consequently, the necessary preconditions set out in s.596(2)(a) were not established and permission to be represented was denied to the University.
9 Not required for cross-examination.
10 Not required for cross-examination.
11 Not required for cross-examination.
12 Not required for cross-examination.
13 Not required for cross-examination.
14 Not required for cross-examination.
15 Exhibit 3, Annexure 2, page 2.
16 Ibid.
17 Exhibit 11, TL-3.
18 Exhibit 11, TL-6.
19 Exhibit 11, TL-5.
20 Exhibit 11, TL-4.
21 Exhibit 11, TL-8.
22 Transcript PN69-73.
23 [2014] FWCFB 7447 (‘Golden Cockerel’).
24 Ibid [41].
25 [2017] FWCFB 3005 (‘Berri’).
26 (2005) 222 CLR 241.
27 Ibid 246.
28 Berri (n 25) 10, [41] quoting Amcor Limited v CFMEU (2005) 222 CLR 241, 246 (Gleeson CJ, McHugh J); 262 (Kirby J) 262.
29 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355,382 per (McHugh, Gummow, Kirby and Jayne JJ).
30 [2017] FWCFB 1621 at [21].
31 Kucks v CSR Limited (1996) 66 IR 182 at 184.
32 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].
33 [2006] FCA 616.
34 Ibid at [26].
35 [2015] FCAFC 142.
36 Ibid [108].
37 NTEU v La Trobe University [2015] FCAFC 142 [109] (White J).
38 (2009) 188 IR 297, [19]-[22].
39 (1982) 149 CLR 337.
40 Ibid 352.
41 Ibid.
42 Ibid.
43 (1996) 66 IR 182, 184.
44 [2017] FCA 346, [29].
45 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.
46 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.
47 (2008) 251 ALR 322, [35]( Gummow, Hayne and Kiefel JJ); [163] (Heydon J).
48 [2009] NSWCA 407, [319] (Allsop P).
49 Ibid [330].
50 (1994) 36 NSWLR 290, 304.
51 Ibid 312.
52 Ibid.
53 (1978) 95 DLR (3d) 242, 262.
54 Berri (n 23) 22–23, [114].
55 Exhibit 4.
56 Exhibit 10.
57 Exhibit 12.
58 Berri (n 25).
59 Ibid.
60 Transcript PN56.
61 Transcript PN59.
62 Transcript PN62.
63 Transcript PN63.
64 Transcript PN65.
65 Kucks v CSR Limited [1996] IR 166, 182.
66 Berri (n 25).
67 Clause 385 of the Agreement.
68 See paragraphs 15 – 18 of the NTEU submissions, Exhibit 4
69 See paragraphs 29 – 37 of the University’s submissions, Exhibit 10.
70 Transcript PN167-178.
71 NTEU submissions (5 June 2019), para 18.
72 NTEU submissions (5 June 2019), para 37.
73 Macquarie Dictionary Publishers, 2019.
74 Oxford Online dictionary, < Cambridge online dictionary, < Termination, Change and Redundancy Case Mis 250/84 MD Print F6230, 77.
77 Fair Work Regulations 2009 (Cth) sch 2.3.
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