National Tertiary Education Industry Union v University of South Australia

[2015] FWC 5013

[2015] FWC 5013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

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

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 23 JULY 2015

Alleged dispute about any matters arising under the enterprise agreement and the NES ; [s186(6)] – procedural decision – union acting of its own motion – natural justice – opportunity for employees to be involved in proceedings.

[1] On 27 May 2015 the National Tertiary Education Industry Union (NTEU or the Union) 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). The matter was the subject of a conference with me on 10 June 2015. That conference did not resolve the dispute and the parties subsequently agreed to refer the following question to the Fair Work Commission (the FWC):

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.

[2] The matter was listed for hearing on 22 July 2015. Ms Buchecker appeared for the NTEU and Mr Pill, of counsel represented the University of South Australia pursuant to an unopposed grant of permission made under s.596(2).

[3] At the commencement of these proceedings I put a series of questions to the NTEU and to the University of South Australia (the University). Both the NTEU and the University have provided some information to me in response to these matters. I have also considered correspondence (MFI1) which I am told has been sent to the NTEU by certain of the directly affected employees in this matter.

[4] The matter upon which I have reached a partial conclusion relates to one of these questions, which I characterised as a jurisdictional and representational issue. It is necessary that I only refer to this particular question which was put in broadly the following terms:
The application has been made pursuant to s.739 of the Fair Work Act 2009 and accordingly the jurisdiction of the Commission is dependent upon the Agreement Dispute Resolution terms.

The Agreement is an agreement between the University and its employees. The NTEU is covered by the Agreement by virtue of the Agreement Approval Decision ([2014] FWCA 3638) and ss.183 and 201(2) of the FW Act.

Whilst the Agreement describes the NTEU as a “party”, the concept of a party and its contingent rights, is unclear.

Clause 49 of the Agreement deals with disputes. Clause 49.1 appears to establish the jurisdiction or application of that dispute resolution provisions. Clause 49.5 refers to the activation of the dispute resolution procedures.

The material before me makes somewhat oblique references to employee concerns over fixed term contracts. I seek advice as to whether the parties are in agreement that the dispute has been initiated by, or on behalf of a specific group of employees, or is it the case that the NTEU has initiated this application on the basis that it considers that it has the capacity to do so as a party.

If the NTEU is acting simply as a party, I seek advice on the jurisdiction available to the Fair Work Commission (FWC). Further, and independently of this, I invite advice about whether, and, if so, how the interests of those employees who may be adversely affected by a decision in this matter are to be taken into account.”

[5] Clause 49 of the Agreement 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 applies 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.

49.2 For the purposes of sub-clause 49.1 a), a personal grievance occurs when a complaint is made by a staff member about a decision or act of the University on the basis that the decision or act will have an adverse affect on their employment, except insofar as it alleges a failure to apply this Agreement or the National Employment Standards.

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.

49.4 A staff member may be represented in these procedures by a Union or by another representative as defined.

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.

49.6 In order to maintain the integrity of the Agreement, where a dispute is notified by a staff member, the University shall notify the unions covered by this Agreement, in writing, that a dispute exists, the nature of the dispute and that the dispute resolution procedures have been activated.

49.7 Where the personal grievance or dispute is in relation to the staff member's immediate supervisor, the matter shall be handled by the next level of management.

49.8 Stage 1

a) All disputes and personal grievances shall be formally notified to the Director: Human Resources in writing and in sufficient detail for the nature of the dispute to be identified.

b) Reasonable attempts will be made to resolve the matter at the local level by those involved and/or any representatives within ten (10) working days.

49.9 Stage 2

If the personal grievance or dispute remains unresolved, the parties to the grievance or dispute, or their representatives, shall discuss the matter with appropriate representative(s) nominated by the Director: Human Resources within five (5) working days of the matter being referred to Stage 2 and attempt to reach written agreement. Such agreement shall be subject to ratification between the University and the parties to the grievance or dispute.

49.10 Stage 3

a) If the personal grievance or dispute remains unresolved, the University, the union and/or the staff member who has notified the dispute may refer the matter to the Fair Work Commission (FWC). Where the matter is referred by a staff member, the University will provide details of the parties to the dispute to the relevant unions.

b) During the process before the FWC, the University, the union and staff member may be represented by a person or organisation of their choice.

c) A staff member may also submit the same personal grievance or dispute to any other external agency that is competent to handle such matter. In this instance, the matter will be dealt with according to rules and procedures of the external agency concerned and the matter ceases to be a dispute in accordance with this Agreement.

49.11 Role of the FWC

a) Where the personal grievance or dispute has been referred to the FWC in accordance with subclause 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.

49.12 The University shall not, at any stage of the dispute resolution procedures, including referral of the matter to the FWC, move to restrict the employment continuity of the staff member in question or terminate, or allow to expire, the employment of a staff member who is the subject of the personal grievance or dispute. In the case of a fixed-term contract, the staff member shall have their contract period extended with no break in service to cover the entire period of the dispute resolution process and shall be deemed to be on leave without pay for the extended contract period. This sub-clause does not apply to a decision by the University to terminate the employment of a staff member on probation provided all probationary procedures have been properly followed.

49.13 Until a personal grievance or dispute has been resolved in accordance with sub-clauses 49.8 to 49.11, the University shall not move to change those elements of work, staffing or the organisation of work which are the subject of the matter, if, or to the extent that, the proposed change would deny the staff member(s) concerned an appropriate remedy to the matter, or in the case of the University and the staff member, take other action likely to exacerbate the matter, except where, by agreement of the parties to the dispute, an identifiable occupational health, safety and welfare risk requires otherwise.

49.14 A dispute or personal grievance notified in accordance with clause 48 of the University of South Australia Enterprise Agreement 2011, shall continue as a dispute or personal grievance under this Agreement and follow the processes outlined in this clause.”

[6] I have not concluded a final position in relation to the jurisdiction available to the FWC so as to be able to act in this matter in a circumstance where an application is made by the NTEU in its own right as distinct from circumstances where the NTEU is acting on behalf of its members. Further, even if that jurisdiction is established I have yet to determine if it is appropriate that, in these circumstances, the FWC should decide the dispute.

[7] I have however, reached a conclusion relative to natural justice issues that reflect the nature of the application which has been made and which is now subject to consideration.

[8] No issue has been taken with the proposition that this dispute directly affects 19 employees. The advice provided to me is to the effect that the finalisation of proposed appointments for these employees is currently deferred pending the conclusion of this matter.

[9] The NTEU has confirmed that it has made this application on the basis that it is a party to the Agreement and that it has initiated the matter in its own right rather than acting on complaints made by employees or members. The NTEU position is that the provisions of clause 49 of the Agreement permit an action of this nature. I do not understand that the University disagrees with this position.

[10] The 10 July 2015 correspondence (MFI1) indicates that 16 of the 19 directly affected employees have asked the NTEU not to continue to pursue this dispute. I have concluded from this advice that there is the very real potential that some, or all of the directly affected employees, may have different views to those being promulgated by the NTEU in this matter. Equally, some or all of those directly affected employees may have different views to those being put by the University. The limited information before me about advices provided to the affected employees indicates that both the NTEU and the University have provided advice from their particular perspectives about the matter in dispute, but I am not satisfied that this advice extends to any form of invitation to those employees to participate in these proceedings.

[11] Had it been the case that the NTEU application was made on behalf of the 19 directly affected employees, issues of either a jurisdictional or representational nature would not have arisen.

[12] However, even if I ultimately accept that the jurisdiction to pursue the matter in these circumstances exists and should be exercised, the circumstances before me are such that, because the NTEU is pursuing the matter in its own right there is substantial doubt about whether the 19 directly affected employees share the Union’s position.

[13] I do not consider that the University, as the employer has an obligation, or necessarily a capacity, to speak on behalf of those employees.

[14] In these circumstances I consider that the employees must be given the opportunity to fully and directly participate in these proceedings. Those employees may elect not to participate. Alternatively, if they participate they should be at liberty to express any views on the issues in dispute. Consistent with the Agreement dispute resolution provisions principles, the employees may appear themselves, or they may elect to be represented in this matter.

[15] This conclusion means that advice will be provided to the directly affected employees about the future conduct of this matter.

Appearances:

A Buchecker for the National Tertiary Education Industry Union.

S Pill counsel for the University of South Australia.

Hearing details:

2015.

Adelaide:

July 22.

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