National Tertiary Education Industry Union v Victoria University

[2010] FWA 3299

Note: An appeal pursuant to s.604 (C2010/3658) was lodged against this decision.

[2010] FWA 3299

FAIR WORK AUSTRALIA

DECISION

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

National Tertiary Education Industry Union
v
Victoria University
(C2010/87)

Educational services
COMMISSIONER GOOLEY	MELBOURNE, 27 APRIL 2010

Dispute relating to workloads of Academic Staff.

[1] The National Tertiary Education Industry Union (NTEU) applied pursuant to section 739 of the Fair Work Act 2009 (FW Act) for Fair Work Australia (FWA) to deal with a dispute between it and Victoria University (VU).

The background to the dispute

[2] VU and the NTEU were parties to and bound by the Victoria University (Academic & General Staff Enterprise Bargaining Agreement 2005 1 (the 2005 Agreement). The 2005 Agreement established a process for developing and implementing an academic workload model.2

[3] In 2006 an academic workloads model was adopted 3 and it provided that the model “includes the principles above and any implementation provisions described below.”4 The model provided for the establishment of a Workload Model Review Reference Group (WMRRG)5 to monitor the implementation of the academic workloads model. The WMRGG could change aspects of the model during the life of the model only to remedy errors or consider recommendations based on its research provided the changes were consistent with the architecture of the model. Decisions of the WMRGG were to be reached by consensus, and if consensus could not be reached, the Vice Chancellor was required to consult with the Chair and members of the WMRGG before determining proposed changes.

[4] In December 2007 the WMRGG changed the model by consensus 6 and in November 2008 the Vice Chancellor made a determination after the WMRGG could not reach consensus.7

[5] It was not contested that the three documents 8 together made up the academic workload model (the Model) prior to 12 January 2010.

[6] The 2005 Agreement passed its nominal expiry date on 30 June 2008. It is not clear when negotiations for a new agreement commenced but at March 2009 the evidence establishes that bargaining was taking place. On 2 March 2009 the Vice Chancellor of VU wrote to Richard Gough the President of the VU branch of the NTEU 9 and attached a draft Heads of Agreement setting out the matters that might be addressed in an Enterprise Agreement to cover the period to 31 December 2009.10 One of the issues was the Model and principles.

[7] The Vice Chancellor set out in that correspondence the improvements that she considered were needed to the Model and those improvements included, but were not limited to, such matters as finding a means:

• To ensure that all academics (other than those on research-only contracts) are required to undertake a minimum level of teaching;



• For staff to move between research-active and teaching-focused periods in either direction during their employment;



• To review the points allocated for unit and course co-ordination;



• To review inconsistencies in the points awarded to new staff;



• To ensure the right balance between coursework teaching, supervision, research and administration; and



• To remedy the problem of staff with points in excess of 100, in greater proportion than the VU staff-student ratio suggests should be the case, compared to the rest of the sector.

[8] The Vice Chancellor proposed that the WMRRG was the obvious means to agree on improvements to the Model.

[9] On 22 June 2009 a meeting of the Workload Working Party occurred. 11 This was not a meeting of the WMRRG.12 Professor McCullum the Deputy Vice Chancellor (DVC) made notes of the meeting and he noted:

“the meeting discussed the NTEU issues with the Framework presented by management at the previous meeting. These included:

• Providing value to the role of teaching-focused academics

• The metrics for scaling Scholarship of Teaching

• Dean approved carryovers

• Issues of consistency in application of the model

• Course co-ordination point metrics

• Supervision points

• New to academia points

• Easy movement to and from teaching and research focused roles

A broader issue discussed was the nature of the Workloads as policy and the relationship of this document to the text of the EBA and to procedures and handbooks. A key issue was the process for modifying policy documents related to workloads.”

[10] The document then set out that, after the Heads of Agreement was signed, a new committee will revise the Workload Model by October 2009 and set out a timetable for this process.

[11] On 23 June 2009 a Heads of Agreement was signed by VU and the NTEU 13 which provided a framework for concluding negotiations in 2009. It provided at clause 13 for the regulation of workloads as follows:

“13.1 An agreed General Staff Workloads clause is provided at Attachment F.

13.2 The parties agree that outstanding matters relating to the academic workload model will be subject to ongoing negotiation by a union and management working party with the intent of resolving these matters by October 2009.

13.2.1 Subject to resolution of these matters the parties agree to vary the collective agreement arising out of this Heads of Agreement as is necessary.

13.2.2 No changes will be made to the existing model until agreement is reached on the outstanding matters referred to under point 13.2 above.”

[12] A union and management working party was established. On 1 October 2009 Professor McCallum provided a summary of VU’s position about improvements to the Model. 14 In that paper Professor McCallum set out the background to the discussions about improvements to the Model. He said that these discussions initially occurred in the context of the Heads of Agreement and then in the joint working party.

[13] He provided a list of issues that VU proposed and they were:

1. Minimum allocation of teaching points

2. Scholarship of Teaching and Learning

3. Marking

4. Supervision as Teaching

5. Unit of Study Co-Ordination

6. New to Academia

7. Research Items

8. Course Co-ordination

9. LIWC

10. Unit of Study Development

[14] Professor McCallum said that any amendments to the Model would need to be resolved no later than 16 October 2009.

[15] However no changes were agreed and no changes to the Model were made prior to the finalisation of enterprise bargaining negotiations.

[16] Once the terms of the Victoria University (Academic & General Staff) Enterprise Agreement 2009 (the 2009 Agreement) were finalised and, as part of its obligations under the FW Act to explain the effect of the proposed agreement to employees, VU circulated to staff a schedule of changes from the 2005 Agreement. 15 That document advised employees as follows:

• Update as per Point 13.2 of Heads of Agreement- the current Academic Workload Model will remain as University Policy for the life of this Agreement, however it will be varied subject to agreement between VU Management and NTEU.

[17] The 2009 Agreement was signed by the NTEU on 17 December 2009 and by VU on 22 December 2009 16. It was made17 on 21 December 2009 when a valid majority of employees to be covered by the agreement approved the 2009 Agreement.18 The 2009 Agreement was approved by FWA on 22 January 2010 and came into operation on 29 January 2010.

The dispute

[18] On 18 December 2009 Professor Baxter, the Chair of the WMRRG, by email to members of the WMRRG, sought to convene a meeting of the WMRRG in January 2010 to seek to reach consensus on a number of matters in advance of term 1, 2010. 19 On 22 December 2010 Dr Paul Adams on behalf of the VU NTEU Executive advised that January was not a convenient time to meet.

[19] On 8 January 2010 Professor Baxter circulated a number of proposals to be considered by the WMRRG. 20 In that document he set out his summary of the outstanding issues and the key outstanding issues for resolution by the WMRRG at this time were.

• Minimum Allocation of Points for Teaching



• Scaling of Scholarship of Teaching and Learning



• Over pointing of course co-ordination



• Resolution of the points allocation to staff new to academia



• Double counting of research transition, new to academia and PhD enrolment



• Reducing the points allocated for honours supervision below that allocated for postgraduate supervision.

[20] The document set out the proposed changes and also proposed a change to the model to correct an error in reading of clause 47.3 of the 2005 Agreement.

[21] On 11 January 2010 both Dr Doughney and Dr Bevan resigned from the WMRRG. 21 Both challenged the WMRGG’s role in making changes to the Model.

[22] The WMRGG met on 12 January 2010 and in her determination 22 the Acting Vice Chancellor noted that three members of the WMRGG had resigned and while the remaining members reached consensus the proposed changes were referred to her for determination. The Vice Chancellor then issued her determination and made seven changes to the Model.

[23] Those changes related to:

1. The minimum allocation of points for teaching

2. Scaling of scholarship of teaching and learning

3. Points for course co-ordination

4. Points for unit co-ordination

5. Allocation of points to staff new to VU/Higher Education

6. Double counting of research active, research transition and PhD enrolment

7. Points allocated for honours supervision

[24] Each of these matters are within the categories set out by the Vice Chancellor in her letter dated 2 March 2009 and were consistent with the issues raised by VU throughout the bargaining process.

[25] On 1 February 2010 the NTEU wrote to VU seeking VU’s agreement not to make any changes to the academic workloads model as it stood on 11 January 2010 unless “agreement is reached in accordance with the workloads provisions of the Heads of Agreement between the University and the NTEU and the new agreement [Victoria University (Academic & General Staff) Enterprise Agreement 2009]” 23

[26] On 3 February 2010 the NTEU further advised VU that the NTEU was in dispute with VU over the application of clause 47 of the 2009 Agreement.

[27] On 4 February 2010 VU wrote to the NTEU and set out its response to the matters raised by the NTEU.

“(a) the 2009 Enterprise Agreement did not come into operation until 29 January 2010;

(b) over the course of 2009 the Workload Model Working Group met under the auspices of the Workload Model Review Reference Group (WMRRG) to consider further changes to the Workload Model consistent with the provision in the Model permitting changes to the Model. 24 The negotiations leading to the Heads of Agreement and ultimately the approval of the 2009 Enterprise Agreement operated under a different track and were separate;

(c) prior to 11 January 2010 a document outlining proposed changes to the Workloads Model (and within the architecture of the Model) were distributed for consideration by a meeting of the WMRRG on 11 January 2010;

(d) on 11 January 2010 a number of members of the WMRRG resigned as members of that body. Nevertheless the WMRRG met (there being no quorum requirements in the provisions of the Model establishing the WMRRG) to consider the proposed changes;

(e) as it appeared to the members of the WMRRG who met on 11 January 2010 that there was no clear consensus in relation to the changes, the matter was referred to the Acting Vice-Chancellor. The Acting Vice-Chancellor consulted with the Chair and the remaining members of the WMRRG and determined proposed changes;

(h) consequently by the time the NTEU notified a dispute on 13 January 2010 the changes to the Model had been determined, consistent with the Model;

(i) subsequently a disputes committee was convened and prior to the coming into operation of the 2009 Enterprise Agreement the disputes committee process concluded in accordance with clause 63.5 of the 2005 Enterprise Agreement (the procedures described in clause 63.3 and 63.4 having been exhausted).

Consequently any dispute now initiated by the NTEU over the application of clause 47 of the 2009 Enterprise Agreement and pursuant to clause 63.3 of the 2009 Enterprise Agreement cannot in a jurisdictional sense relate to the matters described in paragraphs (a) to (g) above. The change has been made and implemented prior to the coming into operation of the 2009 Enterprise Agreement.”

[28] On 9 February 2010 the NTEU wrote again to VU advising of the dispute and called on VU not to make any changes to the work, staffing or the organisation of the work if such is the subject of dispute and not to take any action likely to exacerbate the dispute.

[29] On 11 February 2010 VU again wrote to the NTEU advising their position that any dispute initiated by the NTEU over the application of clause 47 and pursuant to clause 63.3 of the 2009 Agreement cannot in a jurisdictional sense relate to the Acting Vice-Chancellor’s determination of 12 January 2010.

[30] On 18 February 2010 the NTEU notified a dispute to FWA pursuant to clause 63 of the 2009 Agreement and the matter was listed for hearing on 4 March 2010. That hearing was adjourned until 10 March 2010 when VU made application that the Tribunal as currently constituted not hear the matter. I reserved my decision on that application and handed down my decision rejecting the application on 17 March 2010. The matter was then listed for hearing on 19 March 2010. Mr O’Grady of Counsel was granted permission to appear for VU and Ms Gale and Mr McAlpine appeared for the NTEU. An application for an adjournment by VU was rejected and the matter proceeded on the 19 and 22 March 2010. Dr Doughney gave evidence for the NTEU and Mr Newman and Mr Farley gave evidence for VU.

The industrial instrument

[31] VU and the NTEU are parties to the 2009 Agreement 25 and by order of FWA the Agreement covers the NTEU.

[32] The Agreement at clause 63 provides for the resolution of disputes as follows:

“63.1 It is agreed that the University and all of its staff members have an interest in the proper application of this Agreement, and in minimising and settling disputes about matters arising under this Agreement and the National Employment Standards in a timely manner.

63.2 To facilitate their timely resolution, disputes about matters arising under this Agreement or relating to the National Employment Standards will, as far as is practicable, be raised and resolved at their source, therefore:

63.2.1 in the first instance the affected staff member(s) should discuss the matter with the relevant Supervisor,

63.2.2 where the dispute is not resolved under sub-clause 63.2.1, the affected staff member(s) may request further discussions with the Director Human Resources for resolution. If no such request is made within five working days of the discussions under sub-clause 63.2.1, the matter will be deemed to have been resolved, unless it is agreed to extend the time for discussions. Where a meeting is requested, it will be convened within five working days of the request or at such later time as the parties may agree.

63.2.3 An employee may be represented in these procedures by the Union or by a Representative.

63.3 The University or the Union may also initiate a dispute regarding matter(s) arising under this Agreement by providing written advice detailing the particulars and circumstances upon which the dispute is based. The dispute will be progressed by direct discussions between officials of the Union and senior officers of the University, rather than under the process in sub-clause 63.2.

63.4 Until the procedures described in sub-clauses 63.2, or 63.3 (as applicable) have been exhausted:

66.4.1 work shall continue in the normal manner;

66.4.2 no industrial action shall be taken by either party to the dispute or any party bound by this Agreement;

the University shall not change the work, staffing or the organisation of the work if such is the subject of dispute, nor take any action likely to exacerbate the dispute; and

the subject matter of the dispute shall not be taken to Fair Work Australia by the parties to the dispute.

63.5 If the dispute remains unresolved either party to the dispute may refer the matter to Fair Work Australia. If no party to the dispute refers the matter to Fair Work Australia within ten working days of concluding the discussions referred to under sub-clause 63.2 or 63.3, the matter will be deemed to have been resolved, unless the parties agree to extend the time for discussions.

63.6 Fair Work Australia may exercise any method of dispute resolution permitted by the Act and any recommendation, decision or order of Fair Work Australia will be binding on all parties covered by this Agreement.

63.7 Nothing in this clause prevents the parties to the dispute from agreeing to refer an unresolved dispute to a person or body other than Fair Work Australia for resolution. Any decision or recommendation of the Third Party shall be binding on all parties covered by this Agreement.”

[33] The Agreement provides at clause 47 for workloads for academic staff as follows:

“47.1 The current Academic Workloads Model will remain as University policy for the life of this Agreement.

47.2 In the model the normal average teaching contact hours per calendar year for each staff member shall be 336 (288 if research active) and the normal numbers of semesters taught shall be two (or four semesters of six).

47.3 The Academic Workloads Model will be subject to ongoing negotiation by a NTEU and management working party with the intent of resolving outstanding matters.

47.3.1 Subject to resolution of these matters the NTEU and the University agree to vary the enterprise agreement as is necessary.

47.3.2 No changes will be made to the existing model until agreement is reached on the outstanding matters referred to under point 47.3.”

The Jurisdictional Objection

[34] VU submitted that FWA did not have jurisdiction to hear the dispute. Mr O’Grady, counsel for VU, submitted the VU was able to change the Model in accordance with the procedures in the 2005 Agreement. Mr O’Grady submitted that because the decision of the Vice Chancellor to change the Model occurred before the 2009 Agreement came into operation, no dispute about the Vice Chancellor’s decision on 12 January 2010 could give rise to a dispute under the 2009 Agreement. If the decision was taken contrary to the 2005 Agreement then that is a dispute arising under the 2005 Agreement not the 2009 Agreement. 26 If the determination of the Vice Chancellor was valid there is no dispute because “we are doing what the agreement requires us to do, namely give effect to the workloads model.”27 Mr O’Grady submitted that I “must proceed on the basis that the model that was in place at the time the 2010 agreement came into operation was a model as varied by the determination made by the Vice Chancellor.”28

[35] Ms Gale submitted that the dispute “is about the fact that since the commencement of effect of the current enterprise agreement at the university, the university has been applying the wrong workload model. We say that the terms of the current agreement refer to “existing” and refer to “current” in reference to the workload model. The only meaning that can properly be ascribed to those words is a reference to the workload model as it existed at the time that the agreement was reached, at the time the agreement was made in December.” 29 Ms Gale submitted that whether the University was within its rights to change the Model between 12 and 29 January is not an issue before the Tribunal.30

The legislative framework

[36] Division 2 of Part 6-2 provides that FWA may deal with disputes if “an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6).”

[37] Section 186(6) relevantly provides for the settlement of disputes arising under an agreement. However the enterprise agreement may provide a procedure for settling other disputes at a workplace. 31

[38] The 2009 Agreement permits the parties to initiate a dispute “regarding matter(s) arising under this Agreement.”

The Characterisation of the Dispute

[39] This is a dispute about what academic workload model VU is required to apply under the 2009 Agreement. The parties are in dispute about the meaning to be given to the words “the current Academic Workloads Model” and the words “the existing model” in clause 47 of the Agreement. 32

[40] The parties are also in dispute about whether the “implementation provisions” in the Model can be used to vary the Model during the life of the 2009 Agreement. It is not in dispute that the Model includes the “implementation provisions”. The NTEU submits that the express provision in the 2009 Agreement which provides that “no change can be made to the existing model until agreement is reached on the outstanding matters referred to in under point 47.3” overrides the “implementation provisions” in the Model. Mr O’Grady contends that the Model can be changed using the “implementation provisions”. He agrees that changes to the Model outside of the scope of the “implementation provisions” must be made by agreement between VU and the NTEU.

[41] I find that a dispute about the meaning to be given to the words “current Academic Workloads Model” and “current model” and hence what academic workload model VU is required to apply is a dispute regarding a matter arising under the Agreement and hence FWA has the jurisdiction to deal with the dispute in accordance with the disputes resolution procedure. I further find that a dispute about whether the implementation provisions can be used to vary the Model is a matter arising under the Agreement and hence FWA has the jurisdiction to deal with the dispute. VU has not since the 2009 Agreement came into operation attempted to vary the Model using the implementation provisions and, as such, this dispute does not have to be resolved at this time. However my findings in this matter may provide some assistance to the parties about how the clause should be applied in the future.

Interpretation of Industrial Instruments

[42] Mr O’Grady set out some of the principles that should be followed when interpreting industrial instruments.  33

[43] Madgwick J in Kucks v CSR Limited 34 in a passage that was approved by two members of the High Court in Amcor Ltd v CFMEU35 said in dealing with the construction of awards that:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[44] I have adopted these principles in interpreting the 2009 Agreement.

What is the current academic workloads model?

[45] VU contends that to determine what the “current academic workloads model” or “the existing model” is, one must ask what the Model was at the date the 2009 Agreement came into operation. The NTEU contend that the time for determining what the current model is, is the date when the 2009 Agreement was approved by employees.

[46] I do not consider either of these dates to be the relevant date for determining the meaning to be given to the relevant words.

[47] The FW Act permits an employer to make an agreement with its employees. It sets out in Part 2-4 of the FW Act the procedures to be followed by an employer when making an agreement.

[48] One of the objects of the Part is to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits. 36

[49] Section 180(2) requires employees to have access to the written text of the agreement and any other material incorporated by reference in the agreement during the access period.

[50] The access period is the seven day period ending immediately before the start of the voting process referred to in subsection 181(1). 37

[51] Further section 180(4) requires the employer ensure that the terms of the agreement and the effect of those terms are explained to the relevant employees.

[52] VU in part complied with section 180(4) by providing employees with a copy of the schedule of changes from the 2005 Agreement. 38

[53] During the access period the Model was as described in Dr Doughney’s witness statement. 39

[54] At the time the employees voted on the 2009 Agreement the Model was as described in Dr Doughney’s witness statement.

[55] The word current is defined by the Oxford Dictionary as “belonging to present time; happening now.”

[56] In my view the reference to “current Academic Workloads Model” referred to in clause 47.1 in the 2009 Agreement is the Model in place at the commencement of the access period.

[57] To find otherwise would accept that after an agreement was circulated to employees and after it was voted on by employees, it could be varied by the employer.

[58] Mr O’Grady contended that the FW Act contemplates that “an agreement as made and as it comes into operation may be materially different in a number of respects.” 40 This is undeniably true. However none of the mechanisms cited by Mr O’Grady permits an employer to unilaterally change an agreement between the commencement of the access period and the date the agreement comes into operation.

Could VU change the Model using the implementation provisions after that date?

[59] Mr O’Grady contends that both the NTEU and the employees knew that the Model contained the implementation provisions and that they knew that the implementation provisions had previously been used to change the Model and could be used to change the Model in the future.

[60] These submissions ignore the context in which the 2009 Agreement was made. It is clear on the evidence that VU wanted changes made to the Model. 41 Some of the changes sought by VU were the changes made by the determination made by the Vice Chancellor on 12 January 2010.42 Mr O’Grady submitted that the Model permitted non architectural changes to be made by consensus by the WMRRG or by a Vice Chancellor if no consensus was reached by the WMRGG.

[61] Despite the Vice Chancellor wanting those changes agreed to prior to semester 2, 2009 the WMRGG was not convened in 2009. In June 2009 VU entered into the Heads of Agreement with the NTEU. 43 While the Heads of Agreement could not override the operation of the 2005 Agreement it is relevant to note that at that time VU agreed that “no changes will be made to the existing model until agreement is reached on the outstanding matters referred to under point 13.2 above.”

[62] Despite their legal rights and despite the clear desire of VU to have the amendments to the Model made by October 2009 VU did not exercise its rights under the 2005 Agreement to vary the Model during the negotiations for the 2009 Agreement.

[63] Mr O’Grady put to Dr Doughney that the NTEU never said to VU that the proposed agreement meant that VU couldn’t use the implementation provisions in the Model.

[64] Mr Doughney was not able to point to any statement of that intent being made during the negotiations, and the NTEU accepted that no document existed which set out that VU couldn’t use the implementation provision in the Model existed. 44

[65] Dr Doughney’s evidence was that such advice was not necessary because of the Heads of Agreement. 45

[66] Now Mr O’Grady is correct when he identified that the Model contained the implementation provisions. However the 2009 Agreement expressly provided that “no changes will be made to the existing model until agreement is reached on the outstanding matters referred to under point 47.3.”

[67] Mr O’Grady submits that the changes referred to are “architectural changes” and not changes that could be made by the WMRRG.

[68] In making those submissions Mr O’Grady relied on the evidence of Mr Newman to support his contention that it was the intention of the parties that changes only referred to “architectural changes”. 46 It is worth noting that Mr Newman’s evidence was qualified to the extent it was his evidence that he was speaking on his own behalf and not behalf of all other members when he said that the “outstanding matters that were being referred to in the context of the agreement were those matters that could not be resolved because they were fundamentally architectural changes.”47

[69] However it is not the task of the Tribunal to interpret the 2009 Agreement on the basis of the intention of one of the parties or in this case the views of one member of negotiating team.

[70] Mr O’Grady further submits that the outstanding matters referred to in clause 47.3 and 47.3.2 is inherently ambiguous. However it is unambiguous that VU had set out in its correspondence of 2 March 2009, its notes of the working party of 22 June 2009 and in its position paper of 1 October 2009 what it considered were the outstanding matters and those outstanding matters and the matters determined by the Vice Chancellor on 12 January 2010 overlapped significantly.

[71] The problem for the construction proposed by Mr O’Grady is that is not supported by the words in the 2009 Agreement says. In this case Mr O’Grady asks that I look beyond the plain and ordinary meaning of the words used in the Heads of Agreement and the 2009 Agreement. To do otherwise is, he says, to take “narrow and pedantic approach.” 48

[72] However there is no evidence before me to support the conclusion that clause 47.3.2 of the 2009 Agreement should be read to include the words ‘apart from non architectural changes’ after the words ‘no changes’.

[73] Despite Mr O’Grady’s submissions, on the evidence, no distinction was made by either party, at any time during the negotiations, not in March 2009, June 2009 or October 2009 that the reference to changes in the Heads of Agreement or the proposed 2009 Agreement only meant architectural changes and that VU retained the right and would exercise its rights to change the Model using the procedure set on the Model.

[74] Mr O’Grady submitted parties who incorporate another document into an agreement are “taken to have intended to have incorporated that document in its entirety save and except to the extent that there is a direct inconsistency between the incorporating document and the document being incorporated.”  49 If the Model was incorporated by reference into the 2009 Agreement then there is a direct inconsistency between the Model and the 2009 Agreement because the Model provides for a mechanism to change the Model without the agreement of the NTEU and the 2009 Agreement expressly prohibits such changes without the agreement of the NTEU, until the outstanding matters are resolved. This is a direct inconsistency and therefore the terms of the 2009 Agreement prohibiting change, until the outstanding matters are resolved, overrides the change mechanism in the Model. If the Model is not incorporated by reference into the 2009 Agreement and remains as University Policy the express terms of the 2009 Agreement prevent VU form changing the Model without the agreement of the NTEU until the outstanding matters are resolved.

[75] A further factor that militates against the interpretation put forward by Mr O’Grady is that the WMRGG as defined in the Model is composed of, in part by three nominees of the Chair of the Workplace Consultative Committee. Dr Doughney’s uncontested evidence was that the WMRGG was included in the 2005 Agreement as a result to the higher education workplace requirements (the HUER) and that as part of the negotiations for the 2009 Agreement the old HUER mechanisms were taken out of the agreements and the universities agreed and the 2009 Agreement did away with the Workplace Consultative Committee. 50

[76] The Workplace Consultative Committee was a creature of the 2005 Agreement and no such body exists under the 2009 Agreement. If it had been the intention of the parties that the WMRGG was to be a vehicle for changing the non architectural parts of the Model under the 2009 Agreement then one would have expected the parties to have provided for a new mechanism in the 2009 Agreement for the filling of positions on the WMRGG. That no such provision was included in the 2009 Agreement is strongly supportive of the contention that the parties agreed that there would be direct negotiation between the NTEU and VU on changes to the Model and the WMRGG would no longer operate.

[77] Mr O’Grady submits that the approach suggested by the NTEU involves retrospectively undoing the determination made in January 2010 for the 2010 academic year. This submission misunderstands the NTEU’s submissions. The NTEU does not, for the purpose of this application, say that the Vice Chancellor was not able under the 2005 Agreement to make the decision she did. The NTEU submission in effect is that the Vice Chancellor’s determination was ineffective in changing the Model referred to in the 2009 Agreement. What the NTEU submits is that the reference in the 2009 Agreement to the existing or current model is a reference to the Model that existed when the Agreement was made. This is submission does not rely upon any retrospective application of the 2009 Agreement.

Remedy

[78] Having found that the Model referred to in the 2009 Agreement is the Model as it existed prior to the Vice Chancellors changes in January 2010 I am asked by the NTEU to make the following orders:

“In this order:

• The Agreement workload model shall mean the Victoria University Academic Workloads Model as it existed at 21 December 2009; namely as specified in the document Attachments 2 as amended by Attachments 3 and 4 of NTEU2;

• The January workload model shall mean the Agreement workload model as amended by the Determination of the University published on 12 January 2010.

• Excess workload allocation means an allocation above 110 points.

Determination:

In settlement of the dispute, Fair Work Australia directs Victoria University:

1. To allocate and measure academic workloads in a manner consistent with the Agreement workload model;

2. Not to change the method of allocation or measurement except with the Agreement of the NTEU; and

3. In a case where the application of the Agreement workload model would have resulted in an excess workload in 2010, then, notwithstanding the above, the employee shall be allowed to carry forward a credit into 2011 (additional to any other credit carry-forward to which he or she may be entitled); such credit to be determined by subtracting from his or her allocation, the greater of 110 points and the work allocation which applies under the January workload model.” 51

[79] Mr O’Grady on behalf of VU submitted that even if I rejected the submissions of VU I should not grant the relief sought by the NTEU. He submitted that the orders sought would be impossible to implement in respect of semester 1, would cause significant disruption in respect of semester 2, and would entail significant expenditure on the part of the VU. 52 He further submitted that I should have regard to the failure of the NTEU to raise this matter when the 2009 Agreement was being approved.

[80] That the reversion to the Model as it existed during the access period will cause disruption to VU is not disputed by the NTEU. The NTEU submitted that VU “avoided attempts by the union to discuss and resolve this problem in early February, [and] instead persisted in implementing the wrong workloads model for first semester. They now complain that it’s too late to revert to the 2009 Model without inconvenience and expense. No weight should be given to such a complaint.” 53

[81] I find that VU was aware, before it implemented the Vice Chancellor’s determination of January 2010, that there was a dispute with the NTEU about whether the 2009 Agreement permitted VU to make the changes it proposed. It has been on notice about this since, at the latest, 1 February when the President of the VU Branch of the NTEU wrote to the Vice Chancellor advising of the opposition to the changes. It might in fact be suggested that VU was on notice as early as 11 January 2010 when Dr Doughney wrote to the Chair of the Workplace Consultative Committee Victoria University and described what was happening contrary to the new collective agreement and in breach of the heads of agreement. 54 VU chose not to engage in the dispute resolution procedure set out in the 2009 Agreement and chose to rely on its view that no dispute existed. In that situation VU cannot be heard to complain that, having been found to be acting contrary to the 2009 Agreement, the consequences are expensive and difficult to implement.

[82] The failure of the NTEU to raise this matter at the time the 2009 Agreement was before Fair Work Australia for approval does not in my view militate against the appropriateness of making an order. The NTEU was entitled to take the view that VU’s actions were contrary to the 2009 Agreement and have any dispute over the 2009 Agreement should be resolved using the dispute resolution procedure of the 2009 Agreement.

The orders

[83] Section 595 of the FW Act says that I must not make an order inconsistent with the FW Act or a fair work instrument that applies to the parties. The 2009 Agreement provides that FWA may exercise any method of dispute resolution permitted by the FW Act and any recommendation, decision or order of FWA will be binding on all the parties.

[84] Mr O’Grady rightly submitted that the provisions confer a broad discretion on the Tribunal as to how it determines a dispute referred to it.

[85] Having found that the reference to the “existing academic workloads model” and the “current model” in the 2009 Agreement means the Model that existed at the commencement of the access period I have decided that it is appropriate in all the circumstances that I make order 1 as sought by the NTEU.

[86] I am not prepared to make order 2 as it is an order that VU comply with its existing obligations. Should VU continue to apply the Model as amended by the decision of the Vice Chancellor on 12 January 2010 the NTEU can seek a remedy in an appropriate court.

[87] In relation to order 3 sought by the NTEU, the Model provides that “carry forwards will normally be restricted to 10% of points per year with Executive Dean approval required for situations of exceptional circumstances. As a transitionary arrangement points from 2007 will be honoured for 2008.”

[88] If an order of the type sought in order 3 by the NTEU was not made then employees may be required to have a workload in 2010 in excess of what is permitted under the 2009 Agreement. Alternatively VU may be required to make significant reductions to workloads in semester 2 to balance the over allotments in semester 1 which may cause more disruption than if the effect of VU’s failure to apply the correct Model were ameliorated over a longer period of time.

[89] I find that making an order to permit the amelioration of the effect of VU’s implementation of the incorrect Model is consistent with the 2009 Agreement as this is an exceptional circumstance which may have caused some employees to have been allocated workloads in 2010 in excess of that permitted by the 2009 Agreement.

[90] I am prepared to make an order to allow VU to ameliorate the effect of the application of the wrong Model over a longer period of time. Of course VU may chose to resolve the over allocation from semester 1 in semester 2 and this order is not intended to prevent this occurring.

Orders:

1. VU is ordered to allocate and measure academic workloads in a manner consistent with the academic workload model (the Model) 55 as it existed at the commencement of the access period for the making of the 2009 Agreement. Nothing in this order prevents VU making changes to the Model by agreement with the NTEU.

2. Where an employee accumulates more than 110 points (or pro rata if part time) in 2010 as a result of the implementation of the Vice Chancellor’s decision of 12 January 2010, the Executive Dean is directed to approve the carry over of the excess points accumulated as a result of the implementation of the Vice Chancellor’s decision of 12 January 2010 to 2011. All other points in excess of 100 points will be treated consistently with the Model.

COMMISSIONER

Appearances:

L. Gale and K. McAlpine for the National Tertiary Education Industry Union

C. O’Grady and R. Sterry for Victoria University.

Hearing details:

2010.

Melbourne:

March 19, 22.

 1   Print PR 965491

 2   Ibid clause 47

 3   Exhibit VU 3

 4   Ibid page 1

 5   Ibid page 8

 6   Exhibit NTEU 2 at [8]

 7   Ibid at [8]

 8   Ibid at [8] and Transcript PN698 and 699

 9   Transcript PN 315

 10   Exhibit NTEU 2 at tab 1

 11   Exhibit VU6

 12   Transcript PN 371

 13   Ibid at tab 5

 14   Ibid at tab 6

 15   Ibid at tab 7

 16   Ibid page 90

 17 FW Act section 182

 18   Exhibit NTEU 2 at [11]

 19   Exhibit VU 7

 20   Exhibit VU 8

 21   Exhibit VU 9

 22   Exhibit NTEU 2 tab 8

 23   Attachment to NTEU Form F10 dated 1/2/2010

 24   Apart from the letter of the VC dated 2 March 2009 there is no evidence before FWA that these meetings occurred under the auspices of the WMRRG and the WMRGG did not meet during the negotiations for the enterprise agreement.

 25   [2010] FWAA 441 clause 6

 26   Transcript PN 183

 27   Ibid

 28   Ibid PN 203

 29   Transcript PN 196

 30   Ibid PN 197

 31   Explanatory Memorandum para 2733

 32   Exhibit VU 10 at [2]

 33   Ibid at [187]

 34 (1996) 66 IR 182 at 184

 35 (2005) 222 CLR 241

 36   Ibid s171(a)

 37   FWA s180(4)

 38   Exhibit NTEU 2 at tab 7

 39   Ibid at [8]

 40   Exhibit VU10 at [31]

 41   Exhibit NTEU 2 at tab 1

 42   Ibid at tab 8

 43   Ibid at tab 5

 44   Transcript PN 425

 45   Ibid PN 417, 420,429

 46   Ibid PN 659 and 660

 47   Ibid PN 660

 48   Exhibit VU 10 at [18]

 49   Ibid at [12]

 50   Transcript PN 473-475

 51   Exhibit NTEU 3

 52   Exhibit VU 10 at [41]

 53   Transcript PN 907-908

 54   Exhibit VU 9

 55   In this order the Model consists of the 3 documents found at Exhibit NTEU 2 at tabs 2,3 and 4

Printed by authority of the Commonwealth Government Printer

<Price code C, AE873372  PR996465>