National Tertiary Education Industry Union v Victoria University

[2019] FWC 2854

[2019] FWC 2854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
Victoria University
(C2019/1677)

COMMISSIONER BISSETT MELBOURNE, 30 APRIL 2019

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

[1] The National Tertiary Education Industry Union (NTEU) has made an application to the Fair Work Commission (Commission) for the Commission to deal with a dispute arising under the Victoria University Enterprise Agreement 2013 1 The dispute is in relation to a decision by Victoria University (University) to suspend without pay NTEU member Mr Michael Agrotis. The dispute goes to the scope of the serious misconduct clause of the Agreement and the capacity of the University to suspend an employee whilst misconduct allegations are investigated.

[2] On 2 April 2019 I issued a decision 2 and interim order3 on an interlocutory application by the NTEU that Mr Agrotis should be returned to work. I did so on the basis that I considered that there was a serious question to answer as to whether the University did have the power in the circumstances of the case to take the action it had and that the balance of convenience supported the issue of an interim order.

[3] Whilst the University was granted permission to be represented by a lawyer in the hearing for the interim orders I advised that the parties would need to make further submissions with respect to representation in relation to the hearing of the final application.

[4] The University seeks permission to be represented by a lawyer. The NTEU opposes such permissions being granted. This decision is in relation to that application.

[5] Section 596 of the Fair Work Act 2009 (FW Act) sets out the basis on which permission may be granted. It is not disputed by the parties that a decision of the Commission in relation to an application for permission is a two-step process. First, the Commission must be satisfied that one of the conditions set out in s.596(2)(a)-(c) are satisfied. Upon reaching the requisite satisfaction the Commission must then consider whether to exercise the discretion available under s.596(2) to grant permission. The finding that one of the conditions has been met does not mean that permission shall be granted.

Are any of the conditions in s.596(2)(a)-(c) met?

[6] The University says that the matter is complex, that the terms of the relevant clauses and the interaction between the conduct of Mr Agrotis and protected industrial action taken by members of the NTEU on 17 February 2019 raises difficult issues with respect to construction of the Agreement and, potentially, the FW Act.

[7] Further, the University submits that this matter arises in the context of bargaining for a new enterprise agreement.

[8] The University says that it intends to advance a number of legal propositions in support of its contention that the conduct of Mr Agrotis, if proven, would amount to serious misconduct.

[9] The University submits that the hearing for interim orders referred to above exposed the complex factual and legal background to the matter.

[10] The NTEU says that the matter is not complex, that there is bargaining occurring is not relevant and that there is no claim that Mr Agrotis had engaged in unprotected industrial action.

[11] The NTEU says that the matter before the Commission is simply whether the preconditions for initiating the serious misconduct provisions of the Agreement have been met.

Consideration

[12] I have had the benefit of having heard arguments from the parties in relation to the application by way of the interlocutory hearing. I am therefore broadly aware of the matters each of the parties will raise and expand upon in the final hearing of the application.

[13] I am satisfied that the question to be answered is not a simple question. It will require a consideration of the actions of Mr Agrotis (in which the context may well have some relevance), the intent of these actions, the result of those actions and whether this all amounts to conduct that could be characterised as enough to enliven the processes embarked upon by the University.

[14] My review of the matters to the extent necessary in determining the interim orders satisfy me that the matter is complex.

[15] I am also satisfied that the matter could be dealt with more efficiently if permission was granted. I am therefore satisfied that the requirements of s.596(2)(a) have been met.

Should I grant permission?

[16] I am satisfied, in this case at this time, that I should exercise my discretion and grant permission to the University to be represented. Whilst claim and counterclaim have been made as to the skills that exist within the University to deal with such an application before the Commission the material before me does not support a finding that I should not exercise my discretion to grant permission.

[17] My reasons for exercising my discretion are those same reasons that I found the requirements of s.596(2)(a) above had been met.

Conclusion

[18] Having found that the requirements of s.596(2)(a) have been met and that I should exercise my discretion to grant permission I do not need to consider if the requirements of s.596(2)(b) or (c) have been met.

COMMISSIONER

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 1   AE406376.

 2   [2019] FWC 2029.

 3   PR706234.