DECISION

Fair Work Act 2009
s.739—Dispute resolution

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

COMMISSIONER BISSETT

MELBOURNE, 27 MARCH 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – application for interim orders.

[1] The National Tertiary Education Industry Union (NTEU) has made an application to the Fair Work Commission (Commission) to deal with a dispute it has with Victoria University (University) pursuant to s.739 of the Fair Work Act 2009 (FW Act). The application has been made in accordance with the dispute settlement procedure of the Victoria University Enterprise Agreement 2013 1 (Agreement).

[2] The dispute relates to a decision by the University to investigate NTEU member Mr Agrotis for serious misconduct and, in doing so, suspend him from his role at the University. This suspension is without pay.

[3] The NTEU seeks interim orders to the effect that the investigation into the conduct of Mr Agrotis be stopped and the suspension of Mr Agrotis be set aside until such time as the Commission hears and determines the matter is dispute.

[4] To this effect the NTEU says that the question to be answered in the arbitration of the matter is whether the University has properly enlivened the serious misconduct process under the Agreement. That is, whether the conditions necessary to commence serious misconduct procedures against Mr Agrotis and to suspend him have been made out.

[5] The immediate question is to determine if the interim orders sought by the NTEU should be granted.

[6] I have carefully considered the submissions and evidence of both the NTEU and the University.

[7] On balance I have decided that the NTEU has an arguable case and the balance of convenience favours the NTEU.

[8] I have therefore decided to issue an order in the form sought by the NTEU.

[9] The parties may apply to vary the order by consent should that be necessary.

[10] The reasons for my decision and the Order 2 will be issued separately.

COMMISSIONER

Appearances:

E. Barnes-Whelan for the Applicant.

K. Sweatman for the Respondent

Hearing details:

2019.

Melbourne:

March 21.

Printed by authority of the Commonwealth Government Printer

1 AE406376

2 PR706234.

CaseChat Overview and Summary

In the case of National Tertiary Education Industry Union versus Victoria University, the dispute arose in the Fair Work Commission, a tribunal established under the Fair Work Act 2009. The National Tertiary Education Industry Union (NTEU), acting on behalf of university employees, filed the application against Victoria University, seeking interim orders concerning alleged disputes. The union alleged that the university had breached the terms of an existing enterprise agreement and had contravened the National Employment Standards (NES). The crux of the application was the urgency and need for immediate intervention to prevent further harm to the employees.

The legal issues before the tribunal involved the interpretation and application of both the enterprise agreement and the NES. The union argued that Victoria University had failed to adhere to the terms of the enterprise agreement and had violated the NES in various respects, including in relation to minimum wages, leave entitlements, and procedural fairness in workplace decisions. The tribunal had to determine whether there was a genuine dispute about these matters, and if so, whether the circumstances warranted interim orders to protect the employees' rights until the substantive dispute could be resolved.

The tribunal carefully examined the evidence and arguments presented by both parties. It found that there were genuine disputes regarding the interpretation and application of both the enterprise agreement and the NES. The tribunal concluded that the university's actions had indeed caused harm or were likely to cause harm to the employees, thereby justifying the grant of interim orders. These orders were intended to provide immediate relief to the employees and to preserve the status quo pending a final resolution of the dispute. The tribunal issued orders to address the specific breaches identified, ensuring that the employees' rights were protected until the matter could be fully adjudicated.

In summary, the tribunal granted the union's application for interim orders, recognising the urgency and need for immediate intervention. The orders were designed to mitigate the harm to employees and maintain the existing conditions until the substantive dispute was resolved. The tribunal's decision underscored the importance of protecting employee rights and ensuring fair treatment in the workplace.

National Tertiary Education Industry Union v Victoria University

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established