National Tertiary Education Industry Union v University of Western Sydney

[2014] FWCFB 2836

[2014] FWCFB 2836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

National Tertiary Education Industry Union
v
University of Western Sydney
(C2014/2712)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
DEPUTY PRESIDENT SAMS
COMMISSIONER DEEGAN SYDNEY, 1 MAY 2014

Appeal of decision - right of appeal under dispute settlement provision - construction and application of clause in Enterprise Agreement - meaning of phrase “work load equivalent to the employee’s existing full or part time workload” - no significant error established - appeal dismissed.

[1] This is an appeal by the National Tertiary Education Union (NTEU) against a decision 1 of Vice President Lawler made pursuant to s.739 of the Fair Work Act 2009 (the Act). The decision related to a dispute concerning the interpretation and application of the University of Western Sydney Academic Staff Agreement 2009-2012 (the Agreement).

[2] Clause 9 of the Agreement provides processes for the settlement of disputes regarding inter alia any matters arising under the Agreement. Where a dispute cannot be resolved through such processes it may be referred to Fair Work Australia (now the Fair Work Commission) for conciliation and, if necessary, arbitration. Clause 9(12) of the Agreement provides that an arbitrated decision of the Commission will be binding subject to a right of appeal. The sub clause is in the following terms:

“(12) The arbitrated decision of Fair Work Australia will bind the parties to the dispute, subject to either party exercising a right of appeal against the arbitrated decision to the Full Bench if they believe there has been a significant error of fact or law in the first instance.”

[3] It was not contested in the proceedings before us that the requirement for the granting of permission to appeal pursuant to s.604 of the Act from the decision of the Vice President is not required as clause 9(12) creates a right of appeal which is not constrained or conditioned by the need for the grant of permission. 2 However it is noted that the right of appeal under the sub clause is contingent upon a party’s belief that there has been a significant error of fact or law in the first instance decision. We have therefore proceeded to deal with the appeal on the basis of considering whether it is demonstrated that there was any significant error of fact or law in the decision appealed against.

Background to appeal

[4] The background to the dispute before the Vice President may be set out briefly as follows.

[5] The University of Western Sydney (the University) has been engaged in a major restructuring in response to changed operational requirements arising from declining student numbers and other issues. This has included a restructure at the School of Business which involved inter alia the reduction of the number of professors in the discipline of Economics and Finance from five to one.

[6] Following a merit selection process, the University determined that the position of Professor Satya Paul was no longer required. Professor Paul is a long standing employee of the University (over twenty years) and is a category E professor. The University informed Professor Paul that it was unable to find a suitable position for him as an ongoing category E professor and that he would therefore be retrenched. In May 2013 the University advised Professor Paul that he was a “displaced employee” as a consequence of the organisational change within the School of Business. In around July 2013 the University proposed to the professor that he either enter a redeployment period or that, alternatively, he would be retrenched. The professor rejected both options and, following discussions and efforts under the dispute settlement processes, the NTEU commenced proceedings before the Commission.

[7] In the proceedings the NTEU contended that the University was not entitled to retrench Professor Paul by reason of the operation of clause 50(24) of the Agreement. That sub clause, so far as presently relevant, is in the following terms:

“(24) A displaced academic employee will only be retrenched in circumstances including, but not limited to:

(a) absence of other ongoing teaching, including teaching performed by casual academic employees or fixed-term academic employees near the end of their contract period, for which the employee is qualified, willing and able to teach and which would constitute a work load equivalent to the employee’s existing full or part time workload;”

[8] The NTEU maintained that there was ongoing teaching work performed by casual or fixed term academics that Professor Paul was qualified and willing to teach in the fields of Economics and Finance and that this was sufficient to constitute a workload equivalent to his current workload. It was therefore submitted that the professor’s retrenchment was prohibited by clause 50(24)(a).

The decision appealed against

[9] The Vice President determined that the University was not obliged by clause 50(24) to offer Professor Paul an ongoing position carrying out teaching work and that it was entitled to retrench him. This was on the basis that the ongoing teaching work available, namely, entry level tutorial work, would not constitute a workload equivalent to the professor’s existing workload.

[10] The relevant part of the Vice President’s decision is as follows:

“[14] The determinative issue in relation to Professor Paul is whether a full time workload consisting of the available tutorial work presently performed by casuals in the School of Business was work “for which [Professor Paul] is qualified, willing and able to teach and which would constitute a work load equivalent to the employee’s existing full or part time workload” within the meaning of clause 50(24)(a). There is no doubt that Professor Paul is “willing and able” to teach tutorial work in the School of Business, nor is there any doubt that he is qualified for that work - indeed, on one view, he is over-qualified. Instead, argument focussed on whether the tutorial teaching role proposed by the NTEU “would constitute a workload equivalent to [Professor Paul’s] existing full ... time workload”.

[15] On the NTEU’s submission equivalence is a matter of hours provided only that the employee is qualified, willing and able to perform the work in question. On behalf of Professor Paul, the NTEU submits that category E professors still take tutorials and there is sufficient tutorial work being performed by casuals to enable Professor Paul to be retained in employment undertaking tutorial teaching.

[16] The University contends that equivalence of workloads must take account, not only of hours of work, but also the quality of the work that is to be performed. The University contends that a workload that consists entirely of undergraduate tutorials that would ordinarily be taken by academics with a Lecturer A or Lecturer B classification is not a work load that can properly be said to be “equivalent” to Professor Paul’s existing full-time workload as a category E professor. I agree with that contention. When clause 50 is construed in the context of the Agreement as a whole, equivalence is a function of both hours and nature of the work being performed. The following matters that can properly be seen as providing support for that construction:

(i) The Agreement makes express provision in relation to redeployment in a “lower position” (clauses 50(16) and (20)). Implicit in those provisions is a recognition by the parties, objectively determined, that the work of a lower position is not equivalent to the work of a higher position. It is not to the point that some Professor E employees take some tutorials. The primary work of that classification is work at a much higher level.

(ii) A category E professor is a far more expensive employee for the School than a Lecturer A or B employee. The retrenchment and redundancy provisions of the Agreement are objectively intended to allow the University to address commercial imperatives arising from changed business circumstances. A practical approach to the construction of the Agreement favours a conclusion that does not oblige the University to retain that far more expensive employee to perform work that can be, and is presently, performed by significantly less expensive casual employees in the Lecturer A or B classification.

(iii) The differences between the retrenchment and redundancy provisions of the predecessor agreement and the current Agreement suggest that the parties objectively intended to expand the capacity of the University to make ongoing employees redundant on account of genuine operational reasons. This supports a broader interpretation of the notion of “equivalent” workloads in clause 50(24)(a).

[17] The NTEU’s submission that, under the Agreement, the ongoing academic position is privileged above all fixed-term and casual employees may be accepted as correct, but this does not mean that an ongoing academic cannot be retrenched. However, acceptance of that proposition does not advance the arguments in the present case. The University’s arguments do not contradict that general proposition. The offers made to Dr Yoo and Ms Lewin demonstrate that the University accepts that proposition.”

Grounds of appeal and submissions

[11] In the appeal, the NTEU contended that there are a number of significant errors of law and fact in the Vice President’s construction and application of clause 50(24)(a) of the Agreement.

[12] The Notice of Appeal lists the following grounds of appeal:

“1. The Vice President erred in his construction of clause 50(24) of the [Agreement], and the error was a significant error.

2. The Vice President made a significant error of fact in concluding, at paragraph [16] of his reasons, that a workload consisting entirely of undergraduate tutorials that would ordinarily be taken by academics with a Lecturer A or Lecturer B classification is not a workload that could properly be said to be equivalent to Professor Paul’s existing full time workload as a category E professor.

3. His Honour erred in having regard to matters of cost in interpreting the meaning of the phrase “a workload equivalent to the employee’s existing full or part-time workload” in clause 50(24)(a) of the Agreement and its application to the circumstances of Professor Paul.

4. (Not Pressed).

5. The Vice President made a significant error in giving weight to the terms of the predecessor agreement, in construing the meaning of the terms of clause 50(24)(a) of the Agreement, in circumstances where he had already concluded at paragraph 12 of his reasons that each of the circumstances in clause 50(24) are required to be satisfied before an academic may be retrenched. Properly considered, the difference between the terms of the predecessor clause could only be relevant to the question whether the sub-paragraphs of clause 50(24) created circumstances which were exhaustive and to be read cumulatively.

6. His Honour erred in his consideration of the application of clause 50(24)(a) to the circumstances of [Professor] Paul by considering only the teaching work that would be performed by Professor Paul and by failing to have regard to the research activities that would constitute a component of Professor Paul’s workload.”

[13] The NTEU provided an overview of the operation of clause 50 of the Agreement which deals with Redeployment and Redundancy. It was noted that under the heading “Specific Duties” in Schedule 4 - Position Classification Standards of the Agreement for each of the academic levels from A to E, the duties include “the conduct of tutorials, practical classes, demonstrations, workshops, student field excursions, clinical sessions and studio sessions” as well as “the preparation and delivery of lectures and seminars”.

[14] In general, it was submitted by the NTEU that a proper understanding of clause 50(24) requires an analysis of clause 50 as a whole. It was said that sub clauses (16) to (20) of clause 50 provide a regime in which displaced employees gain preference in respect of vacant positions, even positions at a lower level than they currently occupy. An employee may not be compelled to accept a lower level position (clause 50(16)), but is entitled to insist on being given a lower level position for which he/she is qualified. The provisions thereby provide a regime of preference for existing ongoing employees. In particular, the effect of sub clauses (16) and (18) is to give employees the right to a lower level position for which they are qualified. However, employees are not obliged to accept the position (clause 50(16)) but if they do, they take precedence above other employees (clause 50(18)). An employee who is redeployed to a lower level position is entitled to 12 months’ salary maintenance and will thereafter move to the highest salary step for the lower classification (clause 50(20)).

[15] An employee is not required to elect to take a redundancy or to elect to be considered for redeployment. If the University wishes to retrench the employee, clause 50(23) and 50(24) must be satisfied. The NTEU submitted that even if the employee did not elect to take a redundancy, or elect to be considered for redeployment or has not been placed in an alternative position, retrenchment is not automatic as the obligations in sub clauses (23) and (24) of clause 50 must nevertheless be satisfied.

[16] In relation to grounds 1 and 2 of the appeal, the NTEU submitted that the Vice President erred in concluding that “a workload that consists entirely of undergraduate tutorials that would ordinarily be taken by academics with a Lecturer A or Lecturer B classification is not a workload that can properly be said to be “equivalent” to Professor Paul’s existing full-time workload as a Category E professor.” 3 It was said that the relevant teaching work which was identified in the proceedings was not limited to “tutorial” work or to undergraduate students. Further it was submitted that the evidence did not demonstrate that the work referred to was ordinarily undertaken by academics with a Lecturer A or Lecturer B classification. The work in question was carried out by casual employees to whom the classification system does not apply. It was further submitted that even if all the work had been tutorial work, there was no proper basis to regard such work as being incapable of constituting part of an equivalent workload of the professor for the purposes of clause 50(24). In this regard it was noted that the conduct of tutorials is a duty at each of the academic levels in the classification structure.

[17] In relation to ground 3 of the appeal, the NTEU submitted that the Vice President erred in having regard to matters of cost in considering the meaning of the expression “a work load equivalent” in clause 50(24)(a). It was said that on a proper analysis, those words invite a comparison of the work performed by the employee before and after taking on the new role, and not the different costs associated with the employment of the persons undertaking the work.

[18] In relation to ground 5 of the appeal, the NTEU submitted that the relevant difference between the Agreement and the predecessor agreement does not warrant giving a broader meaning to the notion of “equivalent” workload in clause 50(24)(a).

[19] In relation to ground 6 of the appeal, the NTEU submitted that the Vice President erred in not having regard to Professor Paul’s capacity to negotiate a research component as part of his duties and taking this into account, together with teaching duties, in considering the projected workload of the professor. It was said that a consideration of the respective workloads for the purpose of clause 50(24)(a) required that regard be had to such research allocation. However the Vice President did not take this into account, confining himself to a consideration of teaching work only.

[20] The University submitted that the NTEU has sought to run a different case on appeal than that which was put to the Vice President. It was said that before the Vice President the NTEU accepted the characterisation of the dispute to be determined as being whether Professor Paul should be given the available Level A and B undergraduate tutorial work notwithstanding that he was a Level E Professor. In other words, that Professor Paul could not be retrenched so long as there was ongoing teaching work of any kind, regardless of the qualitative equivalence between the ongoing work and the professor’s previous duties. It was submitted that the NTEU now contends in the appeal that there is some qualitative equivalence between full-time tutorial teaching and the work of a professor; that in any case the available teaching work is not limited to basic tutorial teaching; and that the professor’s research activities should have been considered in assessing equivalence.

[21] It was submitted by the University that the fresh contentions of the NTEU should not be entertained. 4 It was said that there are no exceptional circumstances in this case and accordingly the scope of the appeal should be limited as to whether the consideration of an “equivalent” workload under clause 50(24) only requires an assessment in relation to the overall burden of duties, namely the time taken to perform all the components of the workload and not the quality of the work.

[22] Alternatively, the University submitted that the fresh contentions of the NTEU are unmeritorious and should be rejected by the Full Bench.

Consideration

[23] In his decision, the Vice President identified the main issue for determination in relation to Professor Paul as being whether a full-time workload consisting of the available tutorial work presently performed by casuals in the School of Business was work “for which [Professor Paul] is qualified, willing and able to teach and which would constitute a work load equivalent to the employee’s existing full or part-time workload within the meaning of clause 50(24)(a) of the Agreement.” 5 The Vice President referred to the essential differences between the submissions of the parties on this matter, namely whether in assessing the equivalence of workloads both the hours of work and the quality of work to be performed must be taken into account.6 The Vice President then proceeded to consider the proper interpretation of clause 50(24) and its application in the case of Professor Paul having regard to the evidence and submissions presented.

[24] It is clear from the evidence before the Vice President that there was ongoing teaching performed by casual academic employees for which Professor Paul was qualified, willing and able to teach. It would seem that this teaching was mainly tutorial work normally performed by employees in the level A or B Lecturer classifications or by casual academic employees. The evidence before the Commission included that provided by Professor Paul himself and by Professor Clive Smallman, the Dean of the School of Business at the University. Professor Smallman gave a detailed explanation of the changes affecting the School including the reduction in enrolments, elimination of certain degrees, and the quantity and nature of the work remaining after the restructure. He pointed out that the casual teaching referred to by Professor Paul in his statement was performed by staff who operate at a level equivalent to a level A or B academic.

[25] The question for determination was therefore whether such teaching work would, within the meaning of clause 50(24)(a), constitute a work load “equivalent” to Professor Paul’s existing workload as a Level E Professor. The Vice President took the view that this meant that not only the hours of work, but also the quality of the work to be performed, was to be taken into account in considering the equivalence of workloads for the purposes of clause 50(24)(a). We consider that his Honour was correct in this regard and in the conclusion he reached that the available teaching undertaken by employees at the lecturer A or B level would not constitute a workload equivalent to Professor Paul’s full time workload as a Level E Professor.

[26] The starting point in the consideration of the proper interpretation of clause 50(24) is to read the words of the sub clause having regard to their ordinary and common meaning. The Macquarie Dictionary defines “equivalent” as “equal in value, measure, force, effect, significance, etc.” or “corresponding in position, function, etc.” 7 The ordinary meaning of the word “equivalent” therefore imports notions of correspondence in terms of value, position and function. This accords with an approach whereby, in considering whether there is an equivalence of workloads, regard should be had not merely to the hours of work involved but also to the quality of the work performed.

[27] The ordinary meaning to be given to the concept of equivalence in clause 50(24)(a) is confirmed by the contextual matters identified by the Vice President in his decision. 8 The Vice President considered that a practical approach to the construction of the Agreement supported a conclusion that did not oblige the University to retain a level E professor to perform work that could be and was being performed by lower level employees. In the absence of the clearest language, it would be difficult to conclude that the intention of the parties in making the Agreement was to so oblige the University.

[28] It was contended by the NTEU that the Vice President erred in having regard to matters of cost in interpreting the relevant phrase in clause 50(24)(a). However the Vice President was entitled to have regard to the consequences of a particular construction when interpreting the Agreement. It is permissible to look to the operation of an instrument when construing it. 9 The authorities emphasising this point in respect of industrial instruments are numerous and uncontroversial: it has been said that the words of an award “must not be interpreted in a vacuum divorced from industrial realities”10 and that the process of construction should be one which “contributes to a sensible industrial outcome such as should be attributed to the parties”.11

[29] The effect of the NTEU’s submission as to the operation of clause 50(24)(a) would be that the University was required to keep Professor Paul employed, at the highest salary level, to perform work otherwise performed by lower level academics at lower pay levels. We consider that it was appropriate and open to the Vice President to have regard to the financial and practical consequences of a particular construction as a consideration in discerning the proper interpretation of the relevant provisions of the Agreement.

[30] It was also contended by the NTEU that the Vice President erred in “giving weight” to the terms of the predecessor agreement. We accept that the relevant difference between clause 50(24)(a) of the Agreement and the similar provision in the predecessor agreement 12 does not provide support for a broader interpretation of the notion of “equivalent” workloads in clause 50(24)(a). However the changes between the retrenchment and redundancy provisions of the agreements might be considered to support the taking of a broad rather than a narrow view of the provisions of clause 50 of the Agreement. In any event, we do not consider that this is a significant factor in the interpretation of the relevant provisions of the Agreement or that its consideration by the Vice President led to any error in relation to the overall conclusion reached by him.

[31] Finally, it was contended by the NTEU in the appeal that the Vice President erred in failing to have regard to the research activities that would constitute a component of Professor Paul’s workload. We note that the issue regarding research was not raised in the first instance proceedings. In any event, we consider that the inquiry required to be undertaken under clause 50(24)(a) is primarily directed at “teaching” work and whether the ongoing teaching work available would constitute an equivalent workload to the professor’s existing workload. For the reasons already given, we agree with the conclusion reached by the Vice President, namely that the prospective teaching work would not constitute an equivalent workload to the existing workload of the professor. The need to consider the possible inclusion of a research component as part of the professor’s future workload does not therefore arise.

Conclusion

[32] We have carefully considered the submissions of the parties in the appeal proceedings.

[33] It is recognised that in several respects the case put by the NTEU on appeal is significantly different from that which was put to the Vice President. This is a factor which might in other circumstances lead an appeal bench to refuse permission to appeal. In the present case, however, which concerns the proper interpretation and application of an industrial agreement and where the nature of the appeal right is as prescribed in the Agreement, we have taken the view that it is appropriate in determining the appeal to consider the various submissions of the parties.

[34] We are not persuaded by the submissions of the NTEU that there is any significant error of fact or law in the decision reached by the Vice President. We consider that the Vice President’s conclusions regarding the construction of the relevant provisions of the Agreement and their application in the case of Professor Paul are correct and not attended by any error which would warrant the appeal succeeding.

[35] We therefore dismiss the appeal.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms L Doust of Counsel for the appellant.

I Taylor of Senior Counsel with O Fagir for the respondent.

Hearing details:

2014.

Sydney:

April 8.

 1   National Tertiary Education Union v University of Western Sydney[2013] FWC 10223.

 2   See University of Western Sydney v Fletcher [2009] AIRCFB 368; (2009) 183 IR 256 at 258 to 259. See also AMWU v Silcar Pty Ltd[2011] FWAFB 2555 and DP World Brisbane Pty Ltd v MUA[2013] FWCFB 8557.

 3  [2013] FWC 10223 at [16].

 4   The University relied upon Coulton v Holcombe (1986) 162 CLR 1 at 7-8; ASU v Yarra Valley Water Corporation[2013] FWCFB 7453 at [24].

 5  [2013] FWC 10223 at [14].

 6   Ibid [15] and [16].

 7   Butler, S. (ed), Macquarie Concise Dictionary (5th Ed, 2009)

 8   Ibid [16] (i) and (ii).

 9   Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) [1981] HCA 26; (1981) 147 CLR 297 at 320; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384 [78].

 10   City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at 440 [57].

 11   Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at 270 [96]; Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [18].

 12   See clause 47(20)(a) of the University of Western Sydney Academic Staff Enterprise Agreement 2005-2008.

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