National Tertiary Education Industry Union v University of Southern Queensland
[2025] FWC 432
•13 FEBRUARY 2025
| [2025] FWC 432 |
| FAIR WORK COMMISSION |
| RECOMMENDATION |
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
University of Southern Queensland
(C2024/8720)
| COMMISSIONER HUNT | BRISBANE, 13 FEBRUARY 2025 |
Alleged dispute about any matters arising under the enterprise agreement and the NES
On 6 December 2024, the National Tertiary Education Industry Union (NTEU) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 54 of the University of Southern Queensland Enterprise Agreement 2023 – 2026 (the Agreement). The application was stated by the NTEU to have been raised on behalf of one of its members, Professor Andrea Lamont-Mills.
The Agreement came into operation on 29 December 2023 and has a nominal expiry of 30 June 2026. The Agreement covers the NTEU and the University of Southern Queensland (the University) and its relevant employees.
Background
The dispute concerns the application of the consultation clause in clause 49 of the Agreement in relation to proposed changes within the University. The University’s proposed changes include alterations to the organisational structure of the University, potentially resulting in a number of staff redundancies. The NTEU asserts in its dispute that the University has failed to meet its consultation obligations under clause 49.1 of the Agreement in respect of the proposed changes. The University maintains that it is not seeking to avoid its obligations, nor has it failed to meet its obligations under clause 49.1.
Clause 49.1 of the Agreement provides as follows:
“49.1 Major Change
49.1.1This clause applies if the University has made a decision to propose a major change to production, program, organisational structure, or technology, that is likely to have a significant effect on employees.
49.1.2This clause does not apply if two positions or less are identified as surplus to the University’s requirements. In this case, the University will consult directly with affected employees and, where chosen, their Nominated Representative, on the nature of the change and the effect the change is likely to have on the employee.
49.1.3Affected employees may elect to appoint a Nominated Representative for the purpose of consultation in relation to the processes referred to in in this clause and must notify the University of the identity of their Nominated Representative.
49.1.4A major change which is likely to have a significant effect on employees includes any of the following:
(a) redundancy of more than two positions;
(b) major changes in the composition, operation or size of the University’s workforce, or in the skills required;
(c) significant alteration of hours of work;
(d) the need for significant skills retraining; and
(e) position restructuring.
49.1.5If this Agreement makes provision for variation of any of the matters referred to in clause 49.2, the variation is deemed not to have a significant effect on employees and does not constitute a major change.
49.1.6If the University has made a decision to propose a major change, the University will notify all employees who may be affected by the decision and, as soon as practicable after making its decision, commence consultation with affected employees.
49.1.7The University will notify affected employees by providing them with a proposal, in writing, setting out the details of the change.
49.1.8The change proposal will include all relevant information about the change, including:
(a) the nature of the change;
(b) the effect the change is likely to have on employees; and
(c) measures the University is taking to avert or mitigate any adverse effect of the change on employees.
49.1.9Affected employees, and/or their Nominated Representatives, will be provided with an opportunity to provide a response to the change proposal during a consultation period of at least 10 working days.
49.1.10The University will promptly and genuinely consider any responses received from affected employees, and/or their Nominated Representatives, during the consultation period.
49.1.11Following the consultation period, the University will notify affected employees and, where chosen, their Nominated Representative, of the outcome of its decision, and provide feedback on the responses received.
49.1.12If the outcome of the decision to propose a major change involves positions becoming surplus to requirements, the provisions in relation to redundancy will apply.”
On 8 October 2024, the Provost of the University sent the following email to all staff:
“Our efforts to increase enrolments and continue delivering strong research outcomes remain essential. We are seeing some positive signs, including improved student application and progression rates and growth in the QTAC market for the first time in three years.
However, given the significant reduction in revenue, additional cost-saving measures are required. The University will be presenting change proposals to affected staff in the coming weeks, with further changes expected in 2025. There are change proposals involving work units in the Provost Portfolios. Impacted staff and teams will be consulted before any final decisions are made. Voluntary redundancies will not be offered as part of this process.”
Consultation
The NTEU argues that through the 8 October 2024 email, the University has made a decision to propose a global level major change to its organisational structure, resulting in the redundancy of more than two positions and major changes in the composition or size of the University’s workforce. The NTEU contends that many staff members have advised that they were not genuinely consulted in relation to these proposals in accordance with clause 49. The NTEU estimates that over 100 employees may be affected.
The NETU considers that there is one overarching change proposal made by the University, arising out of the 8 October 2024 email. It understands that staff in three Divisions of the University will be affected, and describes the effects as “significant and widespread, involving numerous interconnected work areas”.
The University acknowledges that there have been a number of recent change proposals within the University, but states that of those, 12 were minor change proposals and not captured by clause 49 of the Agreement. In these circumstances, the University states that it consulted directly with the affected employees in accordance with clause 49.1.2 of the Agreement.
In respect of those change proposals that were major change proposals, the University states that consultation was conducted in accordance with clause 49, as all affected employees were consulted.
The University rejects the NTEU’s assessment of the situation as involving a single global level or overarching change. Instead, it argues that there have been a number of distinct major change proposals, quarantined by specific work areas. The University’s position is that major change proposals must necessarily be quarantined by work area, unless there is a genuinely university-wide circumstance necessitating a global change. The University referred to NTEU v Deakin University,[1] which considered the impact of the COVID-19 pandemic, as a possible example of a genuinely university-wide circumstance that may necessitate a single global major change proposal.
The NTEU argues that the University is avoiding its consultation obligations by artificially dividing its major change proposal into a number of smaller proposals. It states that the University has then sought to rely on clause 49.1.2, which applies where two positions or less are identified as surplus and allows the University to consult directly with affected employees without engaging in university-wide consultation. The NTEU argues that the University cannot make change proposals and conduct its consultation in a piecemeal manner. Despite the University’s approach thus far, the NTEU argues that there is in fact one major change proposal affecting multiple staff, and the University has not consulted with all employees who may be affected by the proposed change in accordance with clause 49.1.6 of the Agreement.
In relation to the University’s obligations under clause 49.1.6, the NTEU highlights an example where a staff member in the Academic Transformation unit was made redundant, but did not receive a change proposal. The NTEU also argues that this staff member’s colleagues were not advised of the redundancy proposal, which was in breach of the obligation in clause 49.1.6 to notify all employees who may be affected by the proposed changes. In response to this example, the University relies on clause 49.1.2, stating that the affected staff member was not obliged to receive a change proposal as less than one position was identified as surplus. It further states that the staff member’s colleagues were not required to be advised, as the proposal did not affect any wider areas because the tasks undertaken by the position had already been consumed by other positions for longer than 12 months.
Confidentiality
The NTEU argues that the University has directed staff to keep change proposal documents confidential. For example, the NTEU referred to a proposal of the University to reduce the number of ICT staff. The NTEU states that this proposal was not shared with any academic or professional staff outside of the ICT work area, despite the fact that all staff rely on ICT services. It argues that the University’s approach is not compliant with the obligation to consult with all employees who may be affected by a change, and denies staff the opportunity to influence the decision-making process.
The University denies that employees in broader work areas are “affected employees” within the meaning of clause 49. It argues that employees in work areas that are only “tangentially affected” by a change cannot be said to experience “significant effect” in accordance with clause 49.1.1, and therefore cannot be “affected employees”. The University maintains that the relevant change proposals are distinct and do not have any significant impact on broader work areas. In relation to the ICT example, the University notes that the proposal was shared within the ICT work area. As no ICT Support Assistants or Support Officers were made redundant, there was no impact on wider areas, and therefore no obligation to consult more broadly.
Nominated representatives
The NTEU argues that the University is refusing to recognise it as the nominated representative of affected staff members. It states that a number of affected employees have elected it as their representative for the purpose of consultation, and the University has been notified of this. The NTEU contends the University is asserting that staff in each affected work area must nominate the NTEU as their representative. Again, the NTEU argues this artificially divides what is a genuine university-wide proposal into a number of contrived, discrete proposals.
The University denies that it has failed to recognise the NTEU as the nominated representative when the NTEU has been duly appointed. It states that it has ensured that the nominated representative for an employee is included in any consultation process in respect of a change that affects the employee.
Jurisdiction
The University argues that the NTEU does not have standing to make this application before the Commission. Clause 54 of the Agreement states that employees may raise a dispute, and that either party to the dispute, or their nominated representative, may refer the dispute to the Commission (provided the dispute resolution procedure has otherwise been complied with). The University notes that while the NTEU may be appointed by and represent an employee in a dispute brought by that employee, this has not occurred.
The NTEU argues that it is raising the dispute on behalf of an employee as their nominated representative, being Professor Lamont-Mills. However, the University argues that Professor Lamont-Mills, who is the Associate Dean (Research), is not an affected employee in respect of any recent change proposal.
Latest developments
In correspondence dated 29 January 2025, the University confirmed that it is likely to consult with employees in 2025 in respect of further potential redundancies. The University states that if there are university-wide changes, it intends to deal with them solely in accordance with clause 49.1.6 of the Agreement.
The University states that where there is a change proposal affecting one work area which is not associated with an organisational-wide change proposal, and where two positions or less are identified as surplus to requirements in the affected work area, it intends not to treat the issue in accordance with clause 49.1.6, and instead in the less formal manner in clause 49.1.2.
Opinion and Recommendation
With the information presently before the Commission, my opinion on the University’s position is that it is not correct, and it is not entitled to treat discussions with two or less employees in separate work areas as not constituting a major change when many redundancies across the University are anticipated.
With the information presently before the Commission, my opinion is that the University is not entitled to read into clause 49.1.2 that work areas form an artificial ring, particularly when regard is had to the concurrence of redundancy discussions across multiple work areas.
It is not appropriate for the University to discuss with up to two employees in one work area the potential of making them redundant, when it is having approximate or relatively contemporaneous discussions with up to two employees in another work area, and not treat that as a major change in accordance with clause 49.1.6.
It is clear that the University is faced with significant issues and many of its employees will be affected by its decisions in 2025. It is my strongest recommendation that the University adhere to clause 49.1.6 in respect of any and all consultations with employees throughout the regrettable and expected upheaval in 2025. It ought not to apply clause 49.1.2 in respect of any of its consultations with employees in 2025, having regard to the significant number of redundancies contemplated.
As for which employees constitute “all employees who may be affected by the decision” in clause 49.1.6, that is a matter that cannot presently be determined by the Commission. The Commission recommends the University not unnecessarily narrow the groups of employees it consults with.
The parties may seek further, urgent assistance of the Commission in the event that this Recommendation does not resolve the matters in dispute.
COMMISSIONER
[1] [2020] FWC 4013.
Printed by authority of the Commonwealth Government Printer
<PR784327>
0
0
0