[2015] FWC 5356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

National Tertiary Education Industry Union
v
University of South Australia
(C2015/4095)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 12 AUGUST 2015

Dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] – standing of the NTEU – party to the agreement – dispute resolution provisions – obligation to resolve dispute – agreement interpretation.

[1] On 27 May 2015, the National Tertiary Education Industrial Union (the NTEU) lodged an application pursuant to s.739 of the Fair Work Act 2009 (the FW Act) and the dispute resolution provisions of the University of South Australia Enterprise Agreement 2014 (the Agreement).

[2] That application was the subject of an extensive conciliation conference with me, but the parties were unable to resolve their differences and both agreed that the following issue should be referred for arbitration:

The NTEU and the University of South Australia are in dispute over the operation and meaning of the provisions of Cl 28(1)(b) of the Agreement. Whilst the NTEU is concerned over the potential for broad misapplication of this provision, the immediate issue in dispute goes to whether Cl 28(1)(b) precludes the University from making fixed term contract appointments to proposed Foundation Fellow positions in the Future Industries Institute.

[3] The background to this dispute lies in the decision of the University of South Australia (the University) to form a Future Industries Institute (the FII) consisting of a consolidation of three existing research institutes. Within this consolidated structure, the University intends to establish up to twelve, five year fixed term contract appointments known as Foundation Fellows to deliver research projects. There is no dispute that these positions are research only functions, which do not involve teaching activities. There is no agreement about the source of the funding for these functions. Consequently, the matters in dispute go to what is permitted in terms of the fixed term nature of these positions and the source of the funding for them. It is also appropriate that I note at the outset that the University has shortlisted candidates for these positions. No appointments have been made as yet because the University agreed that Clause 49.12 and 49.13 required that these appointments not be finalised until this matter is resolved.

[4] This matter was the subject of a hearing on 22, 23, and 31 July 2015. Ms Buchecker represented the NTEU and Mr Pill, of counsel, represented the University pursuant to an unopposed grant of permission made under s.596(2)(a) of the FW Act.

[5] Clause 28 relevantly states:

“28. FIXED-TERM EMPLOYMENT

28.1 Categories of Work

The use of fixed-term employment for contracts offered on or after the date of commencement of this Agreement, shall be limited to the employment of a staff member engaged on work activity that comes within the description of one or more of the following circumstances:

…

b) Research

Work activity by a person engaged on research only functions or a person directly supporting such a person and funded by the same source (not being funding that is part of an operating grant from government or funding comprised of payments of fees made by or on behalf of students) for a contract period not exceeding five (5) years.

i) Staff employed in relation to a specific research grant should normally be offered a contract for the whole period for which work of the type they have been contracted to provide will be required.

ii) Staff should not be required to work prior to the signing of a contract for the services they are to provide. If funding for the research project is delayed the staff member should not be required to begin work or their contract should be funded by the cost centre within which the research project will be located and subsequently reimbursed from the project funding.

iii) Staff engaged on successive research projects shall be considered to have unbroken service with the University if the period between successive contracts in less than six (6) months, but the period between contracts will not count as service.”

[6] Before considering the issue in dispute, I have detailed my conclusions with respect to a number of initial issues fundamental to the application. These issues commence with the somewhat unusual nature of the application.

[7] The NTEU has made the application in its own right and has acknowledged at the outset that it is not made on behalf of employees or members who have articulated grievances. At the commencement of the hearing into the matter, I invited the provision of advice about whether the NTEU had the capacity to make the application in these circumstances, and whether the Fair Work Commission (the FWC) had the jurisdiction and, in that event, was then required to determine the application.

[8] The NTEU asserted that it had the capacity to make an application in its own right, as a party to the Agreement, and that the FWC was obligated, under the Agreement, to resolve that dispute with an arbitrated decision. The University disagreed with that position, but only to the extent that it asserted that it was open to the FWC to decline to determine the matter.

[9] I have based my conclusions in this respect on the provisions of the FW Act and the Agreement.

[10] Part 2-4 of the FW Act provides the capacity for employers and their employees to reach agreements which may then be approved by the FWC. With the exception of greenfields agreements, established under a different constitutional foundation, the role of unions in the agreement making process is defined on the basis that unions are bargaining representatives for their employee members in the agreement making process, rather than negotiating entities in their own right. The FW Act establishes the capacity for unions, in specified circumstances, to be covered by an agreement. In this respect, the concept of being covered appears to be separate from the concept of a party to an agreement.

[11] Section 595 states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;

(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.”

[12] Sections 738 states:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[13] Section 739 states:

“739 Disputes dealt with by the FWC

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

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[14] The NTEU is named as a union covered by the Agreement. It is also identified as a “party” in the Agreement. Clause 2 of the Agreement relevantly states:

“2.1 This Agreement has been negotiated between the University, National Tertiary Education Industry Union, Community and Public Sector Union – SPSF SA Branch and United Voice (“the parties”).

2.2 This Agreement will be binding according to its terms upon:

a) the University of South Australia;
b) United Voice (UV);
c) the Community and Public Sector Union – SPSF SA Branch (CPSU);
d) the National Tertiary Education Industry Union (NTEU); and
e) all academic, professional, security, grounds and document services staff employed by the University other than those outlined in sub-clause 2.3 of this Agreement.”

[15] Clause 49 relevantly states:

“49. DISPUTE RESOLUTION PROCEDURES

49.1 It is agreed that the University, its staff and the relevant unions have an interest in the proper application of this Agreement. This dispute clause applied where:

a) A personal grievance is notified by a staff member; or
b) A dispute arises out of a matter dealt with by this Agreement; and/or
c) A dispute arises in relation to the National Employment Standards.

but does not apply to decisions on merit related to selection or promotion. This reference to promotion does not include staff classification in accordance with clause 74 of this Agreement.

…

49.3 For the purposes of this clause, the term “parties to the dispute” shall mean and include the University and any staff member(s) and/or union(s) party to this Agreement who have notified the University of the existence of the dispute. At Stages 1 and 2 in sub-clauses 49.8 and 49.9, no party to the dispute shall be represented by a practising solicitor or barrister.

…

49.5 These procedures may be activated by a staff member (or their representative) and/or unions party to this Agreement by notifying the University, or by the University notifying the unions party to this Agreement and any affected staff members. Such notification of the matter must be made in writing.

…

49.11 Role of the FWC

a) Where the personal grievance or dispute has been referred to the FWC in accordance with sub-clause 49.10, the FWC may resolve the dispute by conciliation and/or arbitration and may exercise the procedural and other powers conferred to it under the Fair Work Act 2009.
b) Subject to the University or the staff member or union exercising a right of appeal against the decision to the Full Bench of the FWC in accordance with the requirements of the Fair Work Act 2009, a decision of the FWC is binding on the parties to the dispute.
c) Subject to the University or staff member or union exercising a right of appeal or review against the decision to any other Court where jurisdiction is granted, a decision of the Full Bench of the FWC is binding on the parties to the dispute.”

[16] Some limited guidance about the capacity for the FWC to deal with a matter referred to it by the NTEU in its own right, and as a party to the Agreement, may be found in the Full Bench decision in Boral Resources (NSW) Pty Ltd v Transport Workers Union of Australia 1 where the Full Bench addressed the matters that may be included in an enterprise agreement and concluded that:

[15] Section 738(b), on the plain meaning of its words, contemplates that an enterprise agreement may contain a term that provides a procedure for dealing with disputes that goes beyond the requirements of s.186(6). This is unambiguously suggested by the explication that commences with the word "including". We think that this is a conclusive indication that the Parliament intended s.186(6) to operate only as a minimum requirement and not as a restriction on the inclusion of dispute resolution procedures that, although, within the ambit of "permitted matters" as specified in s.172, have an operation outside the categories specified in s.186(6)(i) and (ii).

[16] This construction is supported by a consideration of the objects of the FW Act, in particular, the object s.3(e) which refers to "enabling fairness and representation at work by ... providing accessible and effective procedures to resolve grievances and disputes ...". It is a matter of common experience that disputes can arise between an employer and employees bound by an enterprise agreement that manifestly pertain to the employment relationship but are about matters that are not dealt with, or otherwise regulated in the enterprise agreement, typically because the circumstances giving rise to the dispute were not contemplated at the time the agreement was made. The construction advanced by Boral would leave such disputes without any mechanism by which they could be addressed by denying parties to a proposed agreement the option of including a term in their agreement that allows Fair Work Australia to resolve such disputes by whatever means therein agreed.

[17] Any doubt that the construction we have adopted is correct is removed by the Explanatory Memorandum which states:

2733. Modern awards and enterprise agreements must include a term providing a procedure for settling disputes about matters arising under the modern award or enterprise agreement (as the case may be) and in relation to the NES (these requirements are set out in clause 146 for modern awards and in clause 186 for enterprise agreements). A modern award or enterprise agreement may also provide a procedure for settling other disputes at a workplace. This Division [Div 2 of Part 6-2 - "Dealing with Disputes"] will also apply to those matters.

(underline emphasis added)

[18] For completeness we note that under the pre-WorkChoices WR Act, the Australian Industrial Relations Commission (AIRC) had no jurisdiction to deal with a dispute referred, pursuant to a dispute settlement procedure in a certified agreement, unless the dispute was properly characterised as a "dispute over the application of the agreement." However, that limitation was held to arise from the words of s.170LW of the pre-WorkChoices WR Act. Accordingly, it was always necessary for the AIRC, when it was asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that was before it in order to determine whether the matter was a dispute over the application of the agreement. In National Tertiary Education Union v Charles Sturt University a Full Bench of the AIRC, referring to provisions of the pre-WorkChoices version of the WR Act, summarised the position as follows:

[10] The jurisdiction of the Commission, as a creature of statute, is limited to the jurisdiction conferred on it by the Parliament. The Parliament has authorised the Commission to accept appointment as a private arbitrator for the resolution of disputes over the application of certified agreements (s.170LW). When the Commission acts as private arbitrator under the dispute settlement procedure in a certified agreement it does so pursuant s.89(a) and an approval given pursuant to s.170LW of the Act. [CFMEU v AIRC (2001) 203 CLR 645, para [39]] In its capacity as private arbitrator, the jurisdiction of the Commission is limited to disputes over the application of the agreement – a limitation arising from the terms of s.170LW. However, the jurisdiction and power of the Commission as private arbitrator under a dispute settlement procedure is also subject to any limitations in the agreement conferring power on the Commission. [CEPU v Telstra Corporation (2003) 128 IR 385 (Giudice J, Harrison SDP and Simmonds C)]

[19] The words of limitation in s.170LW and its predecessor were not retained in the WorkChoices version of the WR Act and no such language has been included the FW Act.” 2

(references removed)

[17] I have concluded that the provisions of clause 49 of the Agreement establish a jurisdiction for the FWC to deal with disputes, which include disputes referred to it by the NTEU as a party to the Agreement. That dispute resolution is a part of the Agreement such that I consider that the University and its employees endorsed the capacity of the NTEU to act in this manner. To the extent that the Agreement provides the NTEU with that capacity, it must then recognise that the NTEU is able to act in a manner which may, or may not, expressly benefit or be in the interests of all of its members or all of the employees of the University. Whilst that is a matter between the University, its employees, and the NTEU, these dispute resolution provisions differ substantially from the normal function of a union to represent its members in the resolution of their grievances.

[18] In this particular matter, that capacity then gives rise to other issues. Of primary significance is the extent to which there is any information before me which establishes that the NTEU application is consistent with the interests of the employees, and particularly, employees who may be directly affected by any conclusion in this matter. Those directly affected employees obviously include the persons who have been shortlisted for appointment to the FII fixed term research positions. I note the provision of correspondence to the NTEU 3 of 10 July 2015 on the part of 16 of the 19 shortlisted FII Foundation Fellow candidates who are currently employees of the University. In this correspondence those candidates express their concern about the disruption to the recruitment process caused by the position adopted by the NTEU. They request the NTEU to “justify its position by consultation with the individuals this section is directly impacting, or to withdraw the case so that appointment of the positions can continue without delay”.4

[19] My concern over whether, and, depending on that position, how, the interests of those employees who may be adversely affected by a decision in this matter should be taken into account, caused me to issue an interlocutory decision 5 on 23 July 2015. In that decision, I concluded that the employees must be given the opportunity to fully and directly participate in the proceedings. Those employees were given the opportunity to appear themselves or to be represented. As a consequence, advice was provided to those directly affected employees and arrangements were made to enable those employees to access the material provided to me by the University and the NTEU.

[20] Six employee responses were subsequently received in this matter. The majority of those responses indicated concern that the NTEU’s pursuit of this matter was not appropriate and was not supported. As a result of concern about the potential for a perception that those employee responses could be seen as influencing the University selection process, I provided those submissions to the University and the NTEU without disclosure of the employee names. In the hearing on 31 July 2015, four short-listed employees, three of whom had provided written responses, made statements expressing their positions in this matter.

[21] The position adopted by these four directly affected employees, together with the majority of the written responses can be broadly summarised. They considered that fixed term contract appointments for research only work represented the generally accepted norm for professional researchers who were establishing elite reputations, which would enable them to achieve credentials which would enable confidence in their capacity to attract research funding and the capacity for tenured employment. These affected employees advised that five year contract appointments were well regarded in their professional field. A number of these employees expressed concern that, if the University was not able to offer fixed term contract appointments on this basis, their employment prospects could be substantially reduced.

[22] One of the written responses supported the NTEU position in this matter and the Union’s interpretation of Clause 28.1 of the Agreement. This response expressed concern that the absence of tenured employment restricted opportunities for promotion and the capacity to seek external funds.

[23] Whilst I return to the content of these positions later in this decision, the immediate question they raise goes to the authenticity of the NTEU position and the extent to which that position appears to have the direct capacity to disadvantage employees covered by the Agreement. I accept the NTEU position is that the University is misapplying the Agreement so that fixed term research and direct research support positions at the University can only be made from funding other than that which is part of an operating grant from government or funding comprised of payments of fees. 6

[24] However, the effect of that objective may be to disrupt existing arrangements which are considered appropriate by at least a range of employees. The absence of clearly articulated concern about the issues agitated by the NTEU gives rise to doubt that the determination of the dispute is appropriate in these circumstances and whether the FWC is obliged, under the Agreement dispute resolution provisions, to determine this dispute or whether the FWC has the discretion not to determine the matter in dispute. In this respect it is appropriate that I acknowledge that a decision in this matter has the potential to impact on a far broader group of University employees, being employees engaged on fixed term contracts in other functions within the University. There is simply no information available to me about the potential for that impact.

[25] The NTEU assert that the role of the FWC, specified in Clause 49.11 of the Agreement, effectively requires that the FWC decide the matter. The University position is that the FWC should resolve the dispute but that it has the discretion to elect not to do so.

[26] I have concluded that Clause 49.11 must be read so as to oblige the FWC to resolve a dispute of this nature. A refusal to exercise the jurisdiction available to the FWC would of itself be a jurisdictional error. 7 Such a refusal would not only leave the dispute not addressed, but it has the capacity to effectively deprive the parties of their appeal rights. This conclusion does not mean that the FWC is required to rule on every issue about which there may be a dispute, but I consider that the FWC is required by Clause 49 to reach a conclusion on the matter referred to it. I have proceeded to deal with the dispute on this basis. This conclusion is reached with some misgivings. The structure of the Agreement provides the capacity for the NTEU to pursue this application, which could profoundly affect employees covered by the Agreement, in a manner about which those employees have little or no capacity to influence. This, however, reflects the Agreement provisions which were endorsed by both the University and by its employees.

[27] The NTEU position is that it is well established that the University’s Operating Grant and Student fees are regarded as core funding. The NTEU asserted that there is no evidence of ambiguity relative to the provisions of Clause 28.1(b) and that this clause should be read on its plain words such that research only functions and persons providing direct support to those research only functions cannot be employed on the basis of that core funding. The NTEU advised that it considered that Clause 28.1(h) provided the capacity for the University to agree with it, alternative arrangements for fixed term employment but no approach to that effect had been made. To the extent that the FWC regarded Clause 28.1(b) as ambiguous, the NTEU argued that the application of the normal principles of interpretation enabled consideration of the history of this provision, which again supported its contention that core funding could not be used as the basis for establishing fixed term research only positions or positions which directly supported those functions.

[28] A second consideration relevant to the dispute referred to me emerged in the course of the hearing of this matter. This related to the source of the funding for the FII. The NTEU position was that the Final Organisational Plan for the creation of the Future Industries Institute 8 addressed funding in the following terms:

“However, this investment, in and of itself does not mean that the Institute will be successful; the success of the Institute will also require the Institute’s researchers to be demonstrably successful in leveraging the university’s investment to secure substantial additional external funding while delivering high impact papers and translational outcomes. A culture of success, driven by the Director, Strand Leaders and senior researchers will ensure that researchers within the Institute will become increasingly more competitive in winning external funding which will enable the Institute to grow through increases in fully externally funded research positions, fellowships and HDR scholarships.

Our aspiration is for the Institute to support many more externally funded researches, at all levels, into the future. Significantly, in cases where researchers funded from within the university’s investment envelope are successful in securing external salary funding, the liberated funds will be reinvested in the Institute’s future research capacity in the form of replacement or supporting positions for the successful applicants.

For clarity, and in response to a range of feedback, the $14m p.a. core funding will provide:

n Core research and leadership team of the Institute: the Institute Director and Strand Leaders (one named Chair in each of the 4 strand/applications areas): 5 positions
n University funded researcher leaders (levels D-E): up to 12 positions in total
n University funded 5-year Foundation Fellowships (levels A-C): 12 positions in total
n Additional HDR scholarships, beyond the University allocation to the Division to support domestic and international HDR students
n A core team of specialist technical staff: up to 10 positions (including a Laboratory Manager)
n A dedicated Industry engagement position
n Administrative support: 5 positions (including an Institute Manager)
n Non-salary expenses” 9

[29] The NTEU advised that it had not been given access to information which allows a definitive conclusion about the source of funding for the FII, but that the University’s accounting processes enabled identification of funding sources for this purpose. I have taken this submission as expressing concern that the FII is not being funded consistent with the NTEU interpretation of the Agreement.

[30] The University position is that Clause 28.1(b) should be read and interpreted in the context of the Agreement as a whole and that:

“19. The clause specifically identifies two circumstances where fixed term research contract can be offered:

(a) For work activity by a “person engaged on research-only functions”;
(b) For work activity of a person, who is not themselves performing research only functions, but is directly supporting such a person. In respect of this second limb, there is a further requirement, the person can only be employed on a fixed term contract where the person is funded by the same source as a researcher, but not where funded by the same source as the researcher, but not where funded by the Commonwealth Government operating grant or student fees.” 10

[31] The University asserts that the approach sought by the NTEU would be impractical in that it would require on-going employment in situations where funding for that employment was not assured. Further, that this approach would disadvantage the University as distinct from other similar institutions and make it difficult to employ overseas staff pursuant to visa arrangements. The University’s position was that the NTEU approach would generally limit the number of early and mid-year research positions that were able to be offered.

[32] In terms of funding for the FII, the University asserted that the evidence confirmed that the reference in the FII Organisational Plan 11 to the provision of “some core funding” does not establish that this funding was recurrent funding from the government or funding from student fees. I note that the University disagreed with the NTEU’s manner of characterisation of its funding sources and accounting arrangements.

[33] In terms of the employee submissions, there was limited comment over the manner of construction of Clause 28.1(b). Most observations went to the reasonableness of the University’s approach. However, one submission asserted that I should interpret Clause 28.1(b) in the following manner:

“I support the NTEU position in this dispute. I personally agree with the NTEU that clause 28.1b as written is abundantly clear and specifically indicates that a research-only staff member cannot be funded by an operating grant from the government nor from student fees. I note that in clause 281a the same wording is also used to preclude funding of persons on specific tasks and projects from the same sources. However, the wording in clause 28.1a also seems to indicate that a period of external funding is expected for a project specific position, and while the external period cannot be funded by government grants or student fees, the period no externally funded could be. This clarification seems to be lacking from clause 28.1b.” 12

[34] Whilst I have taken into account all of the material before me in this matter, I have summarised the witness evidence in the following brief terms.

[35] Ms Buchecker is the NTEU Industrial Officer with primary responsibility for dealing with the University. She was a member of the NTEU University of South Australian negotiating group for the 2000, 2004, 2006 and 2011 enterprise bargaining negotiations. Her evidence went to those negotiations with particular reference to fixed term contract arrangements and her knowledge of the Higher Education Contract Employment Award (1998) (the HECE Award) and the relationship of that HECE Award to Clause 28.1(b) of the Agreement.

[36] Ms Buchecker’s evidence was that the provisions of Clause 28.1(b) are clear in their own right and that:

“…. There is no ambiguity in the language and nor is there any linguistic construction that would enable the words to be interpreted so that the funding restriction applies only to staff supporting a research-only position and not to the research-only position itself.” 13

[37] Ms Buchecker advised that:

“At no stage in any of the bargaining negotiations at the University was it contemplated that research-only positions funded through ‘recurrent money’ could be made as fixed-term contracts.” 14

[38] Ms Fuller is a Branch Organiser for the University of South Australia Branch of the NTEU. Her evidence went to her role and the steps she took, after May 2011, to request information from the University about the basis of fixed term contract appointments.

[39] Emeritus Professor Rowan was a former long standing employee of the University. His evidence went to his involvement in the engagement of academic and non-academic staff performing research and research support functions specifically. His evidence was that:

“8. However, while the employment of staff needed to undertake research only functions is often contingent upon gaining external funding to support the research effort, the salaries of research-only academic staff cannot always be drawn from grant or external funding, since:

(a) where the needed expertise is a core part of the research being undertaken, the staff providing this expertise will generally be accorded the status of principal investigators; and

(b) the rules of Australia’s principal research granting bodies, the Australian Research Council (ARC), and the National Health and Medical Research Council (NHMRC), do not allow the salaries of the principal researchers to be drawn from the grant in most cases.

9. Thus universities will often need to employ research-only academic staff from funds other than the research grants which support their work, typically using monies from the operating grant for this purpose.

10. Universities might also use operating grant monies or recurrent funding to provide a short-term contract to a research only staff member to ensure they have continuity of employment between one externally funded research project ending, and the next being won, particularly if the university is concerned that the staff member might be lost to a competitor before the next research contract if awarded. This is a practice I have employed myself to provide stable employment to valuable staff engaged in contract or commercial research, whose salaries were for the most part met by the grants they attracted to the University.” 15

[40] Further, and in the context of his negotiation of the current Agreement Clause 28.1(b), his evidence was that:

“PN1133
Can you tell me what you understood the term “funded by the same source” to mean in the context of that paragraph? The logical structure of the paragraph is a disjunct. A classic one, give me liberty or give me death. So as I read it there are two circumstances provided for in that paragraph where a person can be employed on contract by the university. The first is if they are a person engaged on research only functions, and the second is a person supporting a person in category A, and whose position is funded by the same source. That is, supporting the research of the person referred to in category A. So, for example, should a professor of the university get a research grant and hire a research assistant, that research assistant could be hired on contract and their salary funded from the research grant that is supporting the research of the research professor.

PN1134
But with respect, Professor Rowen, that is not in fact what it says. If I can take you again very carefully to the words:

PN1135
Work activity by a person engaged on research-only functions.

PN1136
? Yes.

PN1137
Or:

PN1138
A person supporting such a person and funded by the same source.

PN1139
What is the application of “funded by the same source” in your understanding? What does “same source” mean and what relationship does it have back to the research-only staff member, because the answer that you gave was not clear on that?

PN1140
MR PILL: Perhaps my friend could break the question down. I think there were about three parts to that.

PN1141
THE SENIOR DEPUTY PRESIDENT: Yes, it was a complicated question. Are you able to break it into its components, please.

PN1142
MS BUCHECKER: I can break it into its parts.

PN1143
THE SENIOR DEPUTY PRESIDENT: Thank you.

PN1144
MS BUCHECKER: In fact, perhaps if I can deconstruct your answer, because the answer that you gave said that if a professor who could be employed under any contractual arrangement, won a research grant, that research grant could be used to employ a support person. Can we work out how the words say that because “funded by the same source” must read back, should it not, to the – or does it not, to the work activity and the person engaged on research. Implicit in that – in fact, even explicit in that, is that the researcher - - -

PN1145
THE SENIOR DEPUTY PRESIDENT: Ms Buchecker - - -

*** MICHAEL BERNARD ROWEN XXN MS BUCHECKER

PN1146
MS BUCHECKER: I’m sorry, yes.

PN1147
THE SENIOR DEPUTY PRESIDENT: - - - you managed to make a complicated question about four times more complicated.

PN1148
MS BUCHECKER: Even more complicated. Okay.

PN1149
THE SENIOR DEPUTY PRESIDENT: You need to have regard to simple souls like me, and if I don’t understand the question, I’m not expecting the professor to.

PN1150
MS BUCHECKER: Okay. Just give me a moment.

PN1151
THE SENIOR DEPUTY PRESIDENT: That’s fine.

PN1152
MS BUCHECKER: How can “funded by the same source” not read back to the research staff member’s employment arrangement? Because a researcher needs two different kinds of support. One is salary support and one is research infrastructure support. I spent quite a lot of time in the waiting room out there and one of the more pleasant parts of the view is that beautiful new research institute. If all of the money going into that institute was simply the salaries of the staff, it could do no research. They need to be funded by research income from whatever source, in order to give them the wherewithal to conduct their research. As I read that clause it says precisely that. Work activity engaged – a person can be hired on contract if they are engaged on research-only functions, typically an academic staff member, level B, level E, whatever. Or, secondly, a person directly supporting the person engaged in the research-only functions and funded by the source that is supporting the research of the research-only academic.

PN1153
But, again, with respect, you’ve added extra words to that clause in your answer. It says “funded by the same source as the researcher” does it not? It does say that but you shouldn’t add a conversational implication to that, that it means that the funding serves the same purpose in respect of both the positions that are being referred to in the clause. The first words come straight from the HECE award, which as I understand it just said universities can employ on contract academic staff that are involved in research-only work. Nothing that has been added to that clause, to my logical way of looking at things, takes away that meaning.

*** MICHAEL BERNARD ROWEN XXN MS BUCHECKER

PN1154
But the words do, and so I’m still not clear on your answer about funded by the same source? I think, Ms Buchecker you’re wanting me to read that clause as if it read as follows, “Work activity by a person engaged on research whose salary is drawn from an external source, or a person directly supporting such a person, and their salary also being drawn from the same source.” But the additional implication is simply not there in the HECE award and it’s not there in that paragraph.

PN1155
We’re not talking about the HECE award. We’re talking about the words that were negotiated between you on behalf of the university and the unions in 2004, which flowed on from words negotiated by you as the lead negotiator in 2000? They do, and to understand the meaning of a text one always looks to its history. I’ve been trying to remember what the technical term for that is. We have an excellent scholar in my former division, Robert Prothy, who is an expert on the various versions of the bible, and to understand the modern, you go back to the King James and you go right back to the Greek. Well, this goes back to the HECE award and the words are unchanged, and there’s a disjunct.

PN1156
Do you understand that interpretation to translate across as applicable to the law as well?

PN1157
MR PILL: Well, I object. I’m not sure what the nature of the question is.

PN1158
THE SENIOR DEPUTY PRESIDENT: Ms Buchecker, how does that – it probably doesn’t help us a lot in terms of this matter.

PN1159
MS BUCHECKER: Well, I wouldn’t like the notion that history and context inevitably and always has purpose in the understanding of the text to stand on the record without me contradicting it in some way.

PN1160
THE SENIOR DEPUTY PRESIDENT: But unfortunately for me, that issue probably falls to a question for me to determine rather than the professor.

PN1161
MS BUCHECKER: Yes, your Honour, but he did raise it.

PN1162
THE SENIOR DEPUTY PRESIDENT: Yes, I understand that but I’m regarding the professor as an expert in terms of his involvement in the negotiation process that led to the formulation of the agreement in its various forms.

*** MICHAEL BERNARD ROWEN XXN MS BUCHECKER

PN1163
MS BUCHECKER: Can you explain to me, Professor Rowen, how it is that the bracketed provision doesn’t read back to the first cohort of staff? Because the logical construction of the sentence is a disjunct. A disjunct comprises two complete propositions which are joined with the word “or” in the English language. You know, you could have said give me liberty or give me death in the afternoon. It wouldn’t follow from that that you only wanted your liberty after lunch.” 16

[41] Professor Rowan gave evidence about his role as the University’s lead negotiator in various of the Enterprise Agreement negotiations and his experience relative to the University’s practices with respect to the engagement of research only staff.

[42] Mr Gladigau is the Manager, Workplace Strategy for the University. His evidence was not disputed and went to his involvement in negotiations about the last four iterations of the University’s Agreements. Mr Gladigau’s evidence went to his understanding of what was agreed in the course of these negotiations. His evidence also detailed the consultation and planning processes associated with the establishment of the FII. This went to the extent to which all 56 of the applications for the Foundation Fellow roles were fixed term research-only staff. 17 Mr Gladigau’s evidence went to the absence of disputation with employees about the staffing arrangements for the FII and the provision in 2012 and again in 2014 of a guide to fixed term employment within the University. He advised that this guide was provided to the NTEU and that its content had not been disputed to date.

[43] Professor Evans is a professor in Pharmaceutics and the Provost & Chief Academic Officer for the University. His evidence went to the practices generally followed by the University with respect to the fixed term employment of research-only staff. Specifically, he stated:

“10. Accordingly, the fixed term category has consistently been applied as applying to two groups:

(a) research-only staff (predominantly academics, including chief investigators, postdoctoral fellows, researchers); and

(b) support staff (predominantly professional staff), where they are specifically funded by a particular research project that they are supporting- eg a technician providing maintenance for a piece of equipment for a specific research project, or a research analyst/statistician involved in data entry and data collection for the project.” 18

[44] Professor Evans’ evidence went to the variety of funding sources for the University. He stated:

“11. The funding for activities and staffing within the University comes from a variety of sources that all contribute to the University's funding. This includes funding used for research that is derived from Commonwealth Government funding (made up of the Commonwealth Grants Scheme (CGS) funding and the Higher Education Contribution Scheme (HECS)), together with student fees, Australian Research Council (ARC) and National Health and Medical Research Council (NHMRC) grants, state-based funding, investment revenue (including dividends and interest), royalties, consultancy and contract research fees, donations/bequests, and scholarships and prizes also contribute to the University’s funding.

12. There are a variety of circumstances in which University funding from student fees or CGS funding has been used to support the activities of research-only positions to which staff are appointed on a fixed term basis. These include:

(a) where the University determines to support a particular research area, researcher or project. This includes:

(i) a strategic funding investment in a particular research activity, project or centre;
(ii) small internal grant funding awarded to staff to conduct a specific project;

(b) in relation to an employee who has won a grant which may fund part but not all of their salary (for example, 50%, and the University funds the other 50%);

(c) where following the expiration of a particular research project or grant the University has provided an additional one or two year appointment funded by the University as bridging to assist the researcher whilst they are seeking to obtain further external funding; and (d) where the University is providing top-up funding so that a researcher who has won an external grant for a research project can employ another person to assist in that project.” 19

[45] In terms of the funding for the FII Professor Evans stated:

“16. The change proposal for the Future Industries Institute refers to the University providing some "core funding" for the Research Institute. The fact that it is described as "core" does not mean that it was identified as recurrent funding from the Government operating grant or student fees or a term that relates to our budgeting processes in the University. It is core in the sense that it will provide a central part of the funding for the Future Industries Institute to fund activities that are central to its mission.

17. As noted earlier in my statement, the University receives funding from a variety of sources, including the Government operating grant, student fees, research grants, investment income, income from a variety of retail activities, interest and donations. Sources of funding and University budgeting processes are complex and it is not a budgeting process that specifically identifies line in/line out. The budgeting has to take into account, and is impacted by and adjusted for matters such as capital grants, delays in projects and expenditure, projected provisions for long service leave with an ageing workforce, and a variety of similar issues.

18. In that context, funding for initiatives and projects is complex. However, the ability to innovate and fund initiatives such as the Foundation Fellowships in FII, and any aspects of such initiatives that are not anticipated to be income bearing, means that those initiatives are significantly contributed to by investment income. Investment income includes funds provided by dividends, payments from Open Universities Australia (of which UniSA is a member), interest, retail income and similar payments. Any project/initiative of this type requires investment income and a projection that there will be likely future investment income to fund the initiative beyond the first year.” 20

[46] Professor Monro is the Deputy Vice-Chancellor (Research and Innovation) of the University. Her evidence went to her role in over sighting and leading the University’s research portfolio, which incorporates the FII. Professor Monro’s evidence went to funding arrangements for University staff. She stated:

“16. If the role is a research-only role, then universities can and generally do employ the staff on a fixed term contract. This is driven by a combination of matters, including:

(a) the nature of research and research projects themselves which generally have a finite life. For example they may form a particular research project or more generally are seeking to determine answers to a particular question or deliver an articulated outcome (which is true of most research);

(b) the evolving nature of research. The expertise and skills required to carry out relevant research activities change over time and this can happen rapidly. For example researchers in specific fields have been replaced by automated procedures/processes and the critical research questions of 5 years ago are different from that of today, with continuing developments and advancements in various ways;

(c) because the funding for their role has been provided for a specific period (such as appointment under a 3 year fellowship). This could be an external fellowship such as a DECRA or a similar fellowship but offered directly by the University; (d) that the researcher's role intersects with other research, organisations or researchers who are involved or employed for a fixed period of time;

(e) the researcher may be undertaking research that requires particular materials or assets that are only available to the University for a particular period of time or funded for a particular period of time.” 21

[47] Professor Monro provided evidence about the proposed operation of the FII. She provided the following advice:

27. The intention is for the University to provide "seed" funding for the research positions, but with a very clear intention and requirement that those researchers over the 5 year fellowship period develop and be successful in securing external funding sufficient to grow the university’s research capacity, specifically employing significant numbers of new researchers, and, ideally, bringing in funding to cover their own salary, enabling the University to re-invest in the Institute's future research capacity in the form of replacement Fellowship positions for the successful applicants.

28. The 5 year period will enable the early to mid-career researchers them? to develop high quality research teams through their research project and to establish a track record through the external grant cycle (which is generally 3 years). The 5 year period will also provide enough time to demonstrate strong HDR supervision outcomes, which generally takes approximately 3-4 years. At no time were the positions designed or intended to be continuing positions. Rather, as the name identifies, they are discrete fellowships providing support for a 5-year period. It is fully intended and that the staff will undertake research activities that are funded by external funding and many of the existing research staff from the existing research institutes who have applied for the positions and been shortlisted, hold competitive grants. This is reflected in the selection criteria which includes "a record of obtaining research income, including as a chief investigator or competitive grant applications and/or a fellowship".

29. There is no doubt that the Foundation Fellowships are research-only positions and accordingly, can be offered on a fixed term contract basis.

30. Further, the positions are ill-suited to continuing employment for a number of reasons, including: the 5 year research projects that will need to be conducted in the institute will evolve over time, requiring researchers with different skill bases. This is driven by changes in the external environment – eg the evolution of new directions in research, discoveries that make current projects obsolete, opportunities to take a lead in promising emerging research questions.” 22

[48] Professor Monro’s evidence detailed her concerns about the consequences of the adoption of the NTEU interpretation of Clause 28.1(b). Finally, her evidence about the funding sources for the FII was that:

*** TANYA MARY MONRO RXN MR PILL

“PN1388
So if you looked at the first year of operation of the FII? Yes.

PN1389
What proportion of the funds used to underpin that FII come from teaching income and student fees? I would argue that it’s the minority of the funding. I can’t give you a number.” 23

Findings

[49] The determination of this dispute requires consideration of the provisions of Clause 28.1(b) and the funding arrangements for the FII. I have initially considered Clause 28.1(b) before considering the relevance of funding arrangements for the FII.

[50] Both the NTEU and the University have asserted that their positions relative to Clause 28.1(b) are supported by the application of the established principles applicable to the construction of enterprise agreements. Their submissions in this respect differ somewhat but I have applied the general approach to the consideration of the disputed clause. This approach has been consistently described in numerous decisions. 24 In straightforward terms I have initially considered the ordinary meaning of the clause. To the extent that there is doubt about that ordinary meaning I have had regard to the history of the provision and its apparent purposes.

[51] Clause 28 specifically refers to fixed-term employment. Clause 28.1 clearly specifies that the use of fixed term employment is limited to the situations subsequently detailed in that clause. These relate to employment for specific tasks projects, research, the replacement of staff on authorised leave or temporary secondment, situations where a retirement is foreshadowed, graduate or traineeship circumstances, limited teaching academic functions, employment of staff classified at HEO10 or above, and other circumstances agreed with the NTEU.

[52] Clause 28.1(b) effectively performs a number of discrete functions. Firstly, sub- clauses (i), (ii) and (iii) establish obligations which relate to fixed term contract work arrangements for research staff which relate to the duration of those contracts, the commencement of the work or contracts and recognition of employee service.

[53] Secondly, I consider that the opening paragraph of this Clause must be read, on its plain words, as providing an overall definition of the circumstances which enable fixed-term employment to be offered for research purposes. This paragraph provides that fixed-term employment applies to persons engaged on research only functions, which I have referred to as “researchers” as or persons directly supporting those “researchers” and who are funded by the same source as that which funds the “researcher”, may be engaged under fixed-term contracts for periods not exceeding five years. The application of fixed-term contracts to persons supporting “researchers” is further limited by the requirement that, not only is that funding for those support persons required to be from the same source, it must not be funding which is part of an operating grant from government or funding comprised of payments of fees made by or on behalf of students. That is, the words in parentheses can only be applied to the persons directly supporting “researchers” and funded by the same source. In this respect, the word “or” clearly differentiates between the fixed-term contract provisions applicable to “researchers” and those which are applicable to persons supporting those “researchers”. If the clause had intended to limit the application of fixed-term contracts to persons on research only functions and persons directly supporting them it would have been phrased in an entirely different manner. The “or” may well have been replaced with the word “and” and, in addition the parentheses would not have been necessary. Consequently, research only functions permit use of fixed-term contracts for periods not exceeding five years. Fixed-term contracts of up to 5 years for persons supporting research only functions can only be applied when those positions are funded by the same source as that which funds the research only function and that source is not part of an operating grant or fee payments.

[54] Notwithstanding this conclusion must be reached on the plain words in the clause, I have considered the history of the provision and the circumstances under which it has come to exist.

[55] In terms of the history of the limitations on the application of fixed-term contract employment, I have noted the significance of the Higher Education Non-Continuing Contract of Employment (Interim) Award 1996 (the HECE Award). This Award was made in 1996. It provided for fixed-term employment in a range of circumstances which generally reflect the categories identified in Clause 28.1(b). In terms of research, it simply referred to “research only functions for a contract period not exceeding five years”. 25 The University’s position with respect to those provisions of the HECE Award in the context of what would be included in the agreement to apply to the University, is set out correspondence to the NTEU of September 1990.26 That correspondence does not indicate that the University intended to apply any substantive limitations to the capacity to engage research only staff, of any description, on fixed-term contracts.

[56] The University of South Australia Academic and General Staff Enterprise Agreement 2000 relevantly referenced fixed-term employment at clause 43.2 in the following terms:

“43.2 Research

"Research" means work activity by a person engaged on research only functions (or a person directly supporting such a person and funded by the same grant/external source) for a contract period not exceeding five years.”

[57] This provision is significant in that the parentheses appear to make it clear that the intention, at that time was also that fixed-term contracts could apply to research only functions but that fixed-term contracts for persons supporting those research only functions were limited by the requirement that the support persons be funded from the same grant or external source.

[58] The NTEU submission was that:

“32. A potential ambiguity arising from the term ‘grant/external source’ in Clause 43.2 of the EA 2000 was discussed by the bargaining parties in 2004. The debate centred on the fact that most university funds are derived through grants from an external source and that technically the operating grant from federal government fell under this frame. The bargaining parties agreed that Clause 43.2 of the EA 2000 was not intended to enable fixed-terms positions to be made against the operating grant or student fees. Accordingly, a revised set of words was made for the University of South Australia Enterprise Agreement 2004 (EA 2004) at Clause 32.2 as follows:

Work activity by a person engaged on research-only functions or a person directly supporting such a person and funded by the same source (not being funding that is part of an operating grant from government or funding comprised of payments of fees made by or on behalf of students) for a contract period not exceeding five (5) years.” 27

[59] The extensive material provided to me confirms that the negotiations about fixed-term contracts were substantially influenced by the collective union desire to achieve an improved definition of research only functions 28 and the University’s desire to expand the circumstances in which it could offer fixed-term employment when it was introducing new programs or courses, undertaking reviews of particular work functions, or discontinuing courses.29

[60] The relevant provisions of that 2004 Agreement have not altered in the subsequent agreements, including this 2014 Agreement. However, it is appropriate to note that, in addition to this change to the opening paragraph in the then clause 32.2 of the 2004 Agreement, that clause included the three additional requirements now shown as Clause 28.1(b)(i), (ii) and (iii).

[61] I also note that the advice provided to employees about the changes made in the 2004 Agreement did not identify any significant change relative to the manner of funding for those fixed-term employment arrangements. 30

[62] Finally, the University has produced two versions of a Fixed Term Employment User Guide. Neither version can be read as indicating any intention to limit the funding source for research roles. 31

[63] Having considered all the material before me I am not satisfied that the history of this provision demonstrates that the clause should be read in any manner other than that which I have concluded it operates.

[64] Consequently, in terms of the meaning which should be attributed to Clause 28.1(b) there is no restriction on the funding source for research only staff. Staff supporting those research only staff can only be engaged on fixed-term contracts if their position is funded from the same source as that applicable to the research only person and that source does not represent operating grant funds or student fees. There is a limited caveat in this respect in that clause 28.1(b)(ii) refers to interim arrangements pending the finalisation of research funding.

[65] In terms of funding arrangements, this issue is relevant only to staff engaged in supporting roles. In this context it does not seem to be relevant to the issue put to me for determination. Nevertheless, because of the significant material before me, I have made the following brief observations that go to the characterisation of funds. Professor Evans’ evidence confirms the variety of funding sources for research work. Those sources clearly include circumstances where the University has used operating grant funding and income from student fees in some circumstances to fund research only work. Notwithstanding this, Professor Evans’ evidence was that:

“PN1284
If I can now take you to paragraph 16 of your statement, as you will be aware the core to this dispute is a dispute over the funding type being applied to the 12 research fellows in the FII? Yes.

PN1285
And the contractual arrangement that can therefore be made on that basis. At paragraph 16 you make reference to core funding as something other than what it would typically be understood to be, which is money from the operating grant or fees derived through students? Correct.

PN1286
Can you please explain what you mean by that and what is the distinction between the core funding your refer to here and what we would normally refer to as the recurrent budget of the university? Well, as a researcher and a person who has led research activities before, we would often receive an amount of money from the university that was provided to us for the purpose of establishing or building a research activity. Some of that funding we would need to – we would be provided to be able to have some guarantee that it’s available for a period of time. Other funding we would have to compete for. It may well be that we’re competing for scholarships or other sources of funding. In this particular case, and in the case that I’m used to it, the core funding is sort of a minimum amount of funding provided for a period of time to enable the establishment of the research institute.

PN1287
What is the source of that funding? Where does the university get that money? Is it philanthropic or is it from the operating grant against a different budget line? What do you mean by the operating grant?

*** ALLAN MARK EVANS XXN MS BUCHECKER

PN1288
The money that comes – the recurrent money that the university receives each year. The money that we know as the operating grant and the funds derived by or on behalf of student fees, the core money that is the current budget of the university year after year? Well, that varies from year to year, as you would be aware.

PN1289
It does. It varies, yes? It varies based on student numbers and research performance. Whereas, I mean, in past years there was more of a notion of an operating grant, we’ve now moved to performance-based grants for the universities, but what you’re saying is that the funding for this particular initiative, as I’ve said in my statement, is not siloed or delineated from other sources of funding. That’s not the way the budget of the university operates. What I’ve tried to explain is that within the university we have a series of fundamental activities that we need to source, we need to provide support for, and they are the activities that we are paid to do, and that is primarily teaching, and if we generate additional income, we therefore we use that money to invest in activities such as research which we hope ultimately will become self-sustaining. So in this particular case there is no identified source of the funding but what I’ve tried to explain in my statement is that this is the sort of investment that a university can make when it has funds from a variety of sources that allows it to do so.”

[66] Professor Evans provided further clarification in response to a complex question:

“PN1290
It’s the variety of sources that I’m interested in because the statement you’ve made at paragraph 16 is fundamental to this dispute because if the university can show that the money is not from the operating grant, the recurrent money that the university gets year after year, albeit a different amount each year, depending on student numbers and so forth – if the university can substantiate the evidence provided by you at paragraph 16 that there is in fact another bucket of money that has been invested in the FII separate from that, then that would be a very interesting matter, and that’s the question I’m asking you. Can it be ascertained from looking at the university’s budget, that the FII money, the 14 million that has been invested in the FII is in fact derived from a source other than the recurrent money that the university brings in and divides up for various purposes? So the issue here is that the university doesn’t operate an in/out budget where every cost is attributed to a particular source of income. All of the sources of income are accumulated and then costs are determined by an annual budget that’s established based on that amount of income. What I am saying is that because we have various sources of income over and beyond what we would normally have referred to as the operating grant, because we have those additional sources of income, we can invest in activities that are not necessarily linked to the recurrent operating grant. The reason I say that is because if you look at investing in a research institute as such, we don’t get enough student fees from this type of activity to be able to sustain this type of activity. So without those additional sources of income – for example, the levies that we take out of research income across the whole university, we wouldn’t be able to make these type of investments.” 32

[67] Notwithstanding that advice Professor Evans was unable to provide specific evidence about the specific sources of the funding for the FII. His evidence identified differences in the concept of “core funding” as that term was referenced in the Final Organisational Plan for the FII 33 in that use of that term should not be taken to mean that the funding was sourced from the operating grant or from student fees. The Professor advised that the term referred to a central element of the funding for the FII.

[68] Professor Monro’s evidence in this respect was more definitive. Her evidence was that:

“27. The intention is for the University to provide "seed" funding for the research positions, but with a very clear intention and requirement that those researchers over the 5 year fellowship period develop and be successful in securing external funding sufficient to grow the university’s research capacity, specifically employing significant numbers of new researchers, and, ideally, bringing in funding to cover their own salary, enabling the University to re-invest in the Institute's future research capacity in the form of replacement Fellowship positions for the successful applicants.” 34

[69] I have already noted the evidence of Professor Monro to the effect that, whilst she could not be precise she considered that a minority of the funding of the FII came from teaching income and student fees. 35 When that evidence is considered in the context of Professor Evans’ advice about the difficulty in identifying the source of funds available to the University, and particularly funds gained in previous years, it becomes difficult to make any assessment of whether the source of the funds used for research only roles in the FII, then restricts the University from offering fixed-term contract appointments to support staff. That would require consideration of specific positions and the source of the funding for the research staff themselves. The information before me certainly does not permit a conclusion that any particular research only support staff within the FII cannot be employed on fixed-term contracts.

[70] If anything, the evidence before me seems to suggest that the terminology in Clause 28.1(b) may now be outmoded and may require future review in the course of renegotiation of the agreement so as to reflect a meaningful limitation on the capacity to offer fixed-term contracts to support staff.

Conclusion

[71] For the reasons I have specified, I do not consider the source of funding represents a constraint on the University’s capacity to offer fixed-term employment contracts. The information before me does not establish that the University is limited in its capacity to offer fixed-term contracts to support staff.

[72] Consequently, the answer to the question put to me for determination must be that Clause 28.1(b) does not preclude the University from offering fixed-term contract employment to the Foundation Fellow positions within the Future Industries Foundation.

Appearances:

A Buchecker for the Applicant.

S Pill of counsel for the Respondent.

Hearing details:

2015.

Adelaide:

22, 23, 31 July.

1 [2010] FWAFB 8437

2 [2010] FWAFB 8437, paras [15] – [19]

3 Exhibit U2

4 Exhibit U2

5 [2015] FWC 5013

6 Exhibit N1, NTEU Outline of submissions, para 35

7 see Craig v South Australia (1995) 184 CLR 163

8 Exhibit N1, Attachment OS2

9 Exhibit N1, Attachment OS2, para 4.4

10 Exhibit U1, para 19

11 Exhibit N1, Attachment OS2

12 Employee Submissions provided to FWC by email on 29 July 2015, para 7

13 Exhibit N2, para 24

14 Exhibit N2, para 23

15 Exhibit U4, paras 8 - 10

16 Transcript, 23 July 2015, PN1133 – PN1163

17 Exhibit U5, para 11

18 Exhibit U6, para 10

19 Exhibit U6, paras 11 and 12

20 Exhibit U6, paras 16 - 18

21 Exhibit U7, para 16

22 Exhibit U7, paras 27 - 30

23 Transcript, 23 July 2015, PN1389

24 The Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 and Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241

25 Exhibit U3, tab 8

26 Exhibit U3, tab 10

27 Exhibit N1, para 32

28 Exhibit U3, tab 20

29 Exhibit U3, tab 22

30 Exhibit U3, tabs 30, 31 and 32

31 Exhibit U3, tab 37

32 Transcript, 23 July 2015, PN1290

33 Exhibit N1, Attachment OS2

34 Exhibit U7, para 27

35 Transcript, 23 July 2015, PN1389

Printed by authority of the Commonwealth Government Printer

National Tertiary Education Industry Union v University of South Australia

[2015] FWC 5356

12 AUGUST 2015

DECISION