National Tertiary Education Industry Union v University of South Australia T/A University of South Australia

[2022] FWC 10

[2022] FWC 10

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739—Dispute resolution

National Tertiary Education Industry Union
v

University of South Australia T/A University of South Australia

(C2021/6823)

COMMISSIONER PLATT ADELAIDE, 7 JANUARY 2022

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

Background

1. On 11 October 2021, the National Tertiary Education Industry Union (NTEIU) filed an application under s.739 of the Fair Work Act 2009 (the Act) which contended that consultation in respect of the proposed workload allocations (and in particular the student consultation time component) at the University of South Australia (the University or the Respondent) had not been conducted in accordance with the obligations of the University under the University of South Australia Enterprise Agreement 2019 (the Agreement).

1. The matter was first listed for conference on 15 October 2021. The University was granted permission to be represented by a lawyer pursuant to s.596 of the Act.

1. The University contend there are jurisdictional issues concerning the hearing of this application.

1. Two conciliation conferences have been conducted but were not successful in resolving the dispute. On the last occasion, I advised the parties that I proposed to issue a recommendation. The NTEIU supported this approach. The University also supported the approach whilst reserving its jurisdictional objections.

1. Subject to those jurisdictional concerns, it appears that if the matter cannot be resolved between the parties, the Commission has arbitral powers in accordance with the Agreement.  It is for this reason that this recommendation goes to process and not to any merit considerations.

1. The parties provided written submissions on the content of my recommendation.

1. A portion of those submissions went to the meaning of the term ‘consultation’.  I note that consultation is referred to in the Agreement. I also note that the recent decision of the Full Bench in CFMMEU v Mt Arthur Coal[1] provides a useful commentary on the meaning of that term.  I do not believe it is necessary to add to that commentary.

1. Having considered the subject matter of the dispute and the submissions of both parties, I make the following recommendation.

Recommendation

1. In so far as the proposed workload allocations change the student consultation time component, it would be prudent (but not compulsory) for the University to consider the current data. 

1. There are many methods of collecting data. These may include seeking voluntary feedback (anonymous and named), conducting surveys or interviews, organising focus groups, and no doubt others.  Given the skillset of the parties in this matter, I do not consider that it is necessary for such processes to be prescribed. The focus should be on collecting the best data to inform the decision-making process and identify impacts.  Such a process should assist the acceptance and/or durability of any outcome.

1. Having collected any additional data, considering the entire data set against the obligations of the Agreement, the University will publish the proposed workload models (including details of student consultation times) in respect of each Academic Unit not later than Friday, 4 March 2022.  Whilst I note that the University has also proposed to publish Developmental Guidelines (and I have no objection to it doing so), it appears that it is the content of the workload models which will be the key to resolving the dispute.

1. The University should then consult with the persons impacted (and their representatives) about the proposed workload models and give genuine consideration to the responses.  This consultation process should be completed by Friday, 1 April 2022.

1. The University should then consider the feedback and publish its final proposed workload model no later than Friday, 29 April 2022.

1. Any feedback on individual impacts of the final workload model should be provided by individuals (or their representatives) not later than Friday, 13 May 2022 to allow for consultation and decisions regarding reasonable adjustments to occur not later than Friday, 10 June 2022.

1. The revised workload model will then be implemented for the 2023 academic year.

1. The key dates listed above are summarised in the table below:

Paragraph	Task	Deadline
11	Develop and Publish Draft Models	Friday 4 March 2022
12	Feedback and Consultation Period Closes	Friday 1 April 2022
13	Publish Final Proposed Models	Friday 29 April 2022
14	Individual Impact Feedback Closes	Friday 13 May 2022
14	Individual Reasonable Adjustments	Friday 10 June 2022

1. Both parties are to advise if they accept this recommendation by 4.00pm (SA time) Friday, 14 January 2022.  If accepted, parties will have liberty to apply.

COMMISSIONER

[1] Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059

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