National Tertiary Education Union v University of New England

[2014] FWC 325

[2014] FWC 325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Union
v
University of New England
(C2013/1391)

VICE PRESIDENT LAWLER SYDNEY, 13 JANUARY 2014

[1] On 3 September 2013 the National Tertiary Education Union (NTEU) filed an application under s.739 of the fair Work Act 2009 (FW Act) to have the Commission deal with a dispute notified pursuant to the dispute resolution procedure in the University of New England Academic Staff - Union Collective Agreement - 2010-2012 (Agreement).

[2] The dispute relates to particular actions taken by the Head of School in relation to a particular academic, specifically:

● Dealing with a student complaint about a mark allocated by Dr Game-Lopata to a particular assessment.

● Re-marking that assessment without reference to Dr Game-Lopata.

● Requiring Dr Game-Lopata to change the assessment criteria for her unit.

in circumstances where it is alleged that Dr Game-Lopata was not consulted by the Head of School about any of these actions.

[3] During the hearing, Dr Game-Lopata contended that these actions amounted to bullying and harassment and formed part of a broader course of bullying and harassment by the Head of School. The originating application, as filed, does not make that claim with any clarity but it is open to the NTEU to seek to amend its characterisation of the dispute to bring it in line with the contentions of Dr Game-Lopata. The University of New England (University) has not yet had a formal opportunity to respond to that claim but I assume for present purposes that these allegations of bullying and harassment will be denied by the Head of School.

[4] The NTEU contends that the actions of the University, through the Head of School, contravened clauses 9 and 62 of the Agreement.

[5] This is a decision in relation to a jurisdiction objection raised by the University. In particular, the University contends:

(i) Clauses 9 and 62 are aspirational in nature and, on their proper construction, do not give rise to enforceable obligations.

(ii) in any event, the dispute is properly characterised as a personal grievance and on the proper construction of the Agreement, grievances must be pursued through the Grievance Procedure in clause 52 and may not be pursued through the Dispute Settlement Procedure in clause 53, or certainly not until there has been a “determination” by the Vice Chancellor pursuant to clause 52.9.

Do Clauses 9 and 62 give rise to enforceable obligations?

[6] Clauses 9 and 62 provide:

“9. COMMITMENTS

9.1 The University and its staff agree that they are committed to:

9.1.1 improve the performance, competitiveness and success of the University in order to achieve sustainable future growth;

9.1.2 a flexible approach to change that reflects the demands in operational requirements;

9.1.3 a culture of mutual respect with consultation, participation, trust, flexibility, collegiality and continuing improvement;

9.1.4 treating each other in a fair and reasonable manner and being accountable for their responsibilities;

9.1.5 providing an inclusive workplace by preventing and eliminating discrimination, bullying and harassment in the workplace and achieving equal employment opportunity;

9.1.6 achieving and maintaining a healthy and safe working environment;

9.1.7 enhancing flexibility and streamlining administrative processes.

9.1.8 acting in a manner consistent with the protection and promotion of intellectual freedom within the University where staff are able to:

(a) express opinions about issues and ideas related to their professional area of expertise and higher education issues; participate in public debates and debates relating to decision-making processes and express unpopular or controversial views, which do not defame, harass, vilify or intimidate;

(b) pursue critical and open academic inquiry;

(c) express their opinions in their private capacity as an individual member of society, not as a University spokesperson unless authorised to do so; and

(d) participate in professional and representative bodies, including unions, and engage in community service without fear of harassment,

intimidation or unfair treatment.

9.2 Intellectual freedom carries with it the duty of employees to use the freedom in a reasonable manner consistent with a responsible and honest search for, and dissemination of, knowledge and truth.

...

62. DIGNITY AND RESPECT AT WORK

62.1 The University is committed to creating and maintaining a working environment of dignity and respect for all its employees. The University and all its employees are bound to the principles expressed in the Dignity and Respect in the Workplace Charter (the Charter) signed by the Vice-Chancellor in July 2006. In particular, employees shall be entitled to rely on definitions and examples contained in the Charter to address any instance of bullying or harassment.

62.2 The University will not accept bullying or harassing behaviour of any employee, irrespective of position. Bullying or harassing behaviour is behaviour that demeans, humiliates or intimidates employees either as individuals or as a group, by: unwelcome and unreasonable behaviour that creates a hostile, uncomfortable or offensive work atmosphere; and/or the misuse of relative and/or assumed power, including unjustifiable differential treatment. Further information can be found in the Charter.”

(emphasis added)

[7] Neither party sought to rely on any extrinsic evidence on the construction of the Agreement.

[8] In Shop, Distributive and Allied Employees Association v Big W Discount Department Stores (PR924554) a Full Bench of the AIRC was concerned with a clause that provided:

“(a) BIG W, its Associates and the SDA are committed to achieving and maintaining healthy and safe working conditions in all BIG W workplaces by abiding by all relevant Occupational Health and Safety legislation.”

(emphasis added)

[9] The Full Bench held (at [27] to [29]) that this language, on the proper construction of the particular agreement in the circumstances of that case, did create a binding legal obligation under the agreement for the employer to abide by “all relevant Occupational Health and Safety legislation” such that a dispute over whether anti-fatigue matting was required for door greeters was a dispute over the application of the agreement. That case does not stand for the proposition that the use of the expression “committed to” in a clause will invariably give rise to binding legal obligation. Each agreement needs to be considered by reference to the language of the agreement as a whole constructed in the particular circumstances in which the agreement was made.

[10] In Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62 an agreement called up an employer policy document that contained a statement “JBWere will take every practicable step to provide and maintain a safe and healthy work environment for all people”. The trial judge this statement amounted to implied term of the agreement. That conclusion was upheld by the Full Court in the particular circumstances of the case. Black CJ held:

“[20] [The policy] was apparently intended to serve several purposes. One was to make it plain that GSJBW is an excellent place to work by reason of the pervasive nature of its “culture and ‘family’ approach” as reflected in WWU. In this way the firm no doubt held itself out as being more attractive to talented people who would value and respond to such a culture. Other purposes were to inform and to inspire employees. Much of the content of WWU is directed to these ends.

[21] The language and content of the document speaks also of a contractual purpose, as the appellant accepts. As I have noted, some of the language and content is clearly contractual. The circumstance that prospective employees, including the respondent, were required to sign attachments is also suggestive – although by no means conclusive – of a contractual purpose and strengthens the conclusions that may be drawn from some of the language used.

[22] The difficult question is not whether [the policy] had any contractual effect, for this is now rightly conceded, but whether the portions relied upon by the respondent and found to be terms by the primary judge did indeed have that character or whether, on the other hand, they were at most mere representations of the firm’s aspirations.”

[11] Black CJ then identified the governing principle:

“[23] The principles to be applied in determining whether any, and if so what, parts of WWU were terms of the contract of employment are not in doubt. It is well established that if a reasonable person in the position of a promisee would conclude that a promisor intended to be contractually bound by a particular statement, then the promisor will be so bound. This objective theory of contract has been repeatedly affirmed as representing Australian law by the High Court. Thus, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179, the Court said:

“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.” “

[12] Black CJ applied that principle to the facts of that case in the following way:

“[28] In contending that the trial judge was wrong in finding that there was a term of this nature the appellant argued that the language was not contractual and that the statement was merely aspirational. It was said that to construe these statements in WWU as contractual terms involved giving a meaning to them that could not have been reasonably intended.

[29] As I have noted, the test is objective. What matters is what the language used, in context, would have led a reasonable person in the position of Mr Nikolich to believe. Context is very relevant. Here, it is plain that in WWU the firm was holding itself out as having a commitment, which it regarded as very important, to provide a caring and safe working environment based upon mutual respect and concern. To repeat examples referred to earlier: “The JBWere culture and ‘family’ approach means each person is able to work positively and is treated with respect and courtesy” and “Although we are aggressive in the market place, we are not aggressive with each other”.

[30] The difficulty is that the statement in issue is not explicitly contractual in its language and could be seen as merely aspirational. It appears in a document of mixed content and purposes and, although these include contractual purposes, at least the primary repository of the employment contract is unambiguously elsewhere. The context is, however, decisive. In the context of WWU as a whole, if the statement that the firm “will take every practicable step to provide and maintain a safe and healthy work environment for all people” were no more than an aspirational representation, imposing no obligation on the maker, it would be seen as an exercise in hypocrisy. The statement is a reflection of, and is central to, WWU’s expression of the “culture” of the firm and its approach to its staff, and its aspirations about the approach its employees will take to each other. The language used, taken in the context as a whole, points to the statement embodying a contractual obligation and the trial judge was correct in holding that it was a term of the contract.

[31] This conclusion is supported by the broad equivalence of the content of the statement with an employer’s common law duty of care to an employee, to commonly imposed statutory duties and to the term that the law will imply in a contract of employment. Contracts of employment that are silent about an employer’s obligations carry with them an implied term that the employer will take reasonable care to provide a safe place of work and a safe system of work. To take “every practicable step to provide a safe and healthy working environment” may be putting the standard somewhat higher, but not very much higher. The term found by the trial judge in this case, as interpreted reasonably according to the language used, does not greatly extend the obligation that would exist by implication at common law.

[32] Moreover, whilst it might well be an answer to say that such could not have been the intention if, as a term, it was impossible to comply with, that argument cannot be sustained on the proper construction of the language used in this instance.”

[13] Applying the governing principle in this case, and construing the Agreement as a whole and adopting the practical approach to construction required by cases such as Short v F W Hercus Pty Ltd (1993) 40 FCR 511 and Kucks v CSR Limited (1996) 66 IR 182, in my view, clause 9 is aspirational and, objectively determined, was not intended to create binding legal obligation. The sub-clauses in clause 9 are characterised by broad and vague statements where the subject matter is often addressed elsewhere in the agreement in terms that are clearly intended to have binding effect.

[14] While the opening sentence of clause 62.1 is aspirational, the emphasised words in clause 62.1 are unambiguous in stating that “the University and all its employees are bound” to observe the Charter. Clause 62.1 recites that employees “are entitled to rely on definitions and examples contained in the Charter” to address any instance of bullying and harassment. Clauses that bind the parties to observe employer policies are common in enterprise agreements. I am satisfied that the NTEU is entitled to raises a dispute over whether clause 62.1 (other than the opening sentence) was contravened by the University in relation to Dr Game-Lopata.

Grievance Procedure vs. Dispute Resolution Procedure

[15] The present matter has been pursued as a dispute under clause 53 rather than a personal grievance under clause 52. The University contends that the present matter is properly construed as a personal grievance and, on the proper construction of the Agreement, must be pursued in the first instance as a grievance under clause 52 before it can be pursued as a dispute under clause 53.

[16] Part K of the Agreement is entitled “Grievances and Dispute Resolution Procedures”. It contains two clauses. Clause 52 is entitled “Grievances” and runs for three pages. It opens with the following:

“PART K- GRIEVANCES and DISPUTE RESOLUTION PROCEDURES

52. GRIEVANCES

52.1 This clause covers grievances and complaints which may arise in the workplace. It should be read in conjunction with UNE’s policies with regard to harassment, bullying, unlawful discrimination or vilification. This clause does not cover the resolution of disputes relating to the correct application, implementation or interpretation of the terms of this agreement, as these disputes are industrial disputes settled in accordance with clause 53. This clause does not apply to grievances between students and employees. Decisions relating to appointment, or termination of employment under probation, or decisions about which there is a designated alternative appeal/ review procedure, will not be covered by this clause.

52.2 A complaint or grievance may be made by an employee about:

52.2.1 his or her workplace or another employee,

52.2.2 a decision affecting their employment,

52.2.3 unfair treatment,

52.2.4 harassment,

52.2.5 bullying,

52.2.6 unlawful discrimination or vilification.

52.3 Definitions

52.3.1 A complaint is an informal concern expressed by an employee about an issue relating to their employment.

52.3.2 A grievance is a formal complaint made in writing by an employee about an issue relating to their employment.

52.3.3 For the purposes of this clause, the definition of bullying in Clause 62: Dignity and Respect at Work will apply.

52.3.4 Natural justice involves decision-makers informing people of the case against them, giving them a right to be heard, not having a personal interest in the outcome, addressing the issue without undue delay and acting only on the basis of sound reasoning and relevant evidence.”

(emphasis added)

[17] Sub-clause 52.4 lays down principles underpinning the intended operation of the grievance procedures. Sub-clause 52.5 and following require the employee and relevant supervisor to attempt to settle the grievance informally. Subclause 52.8 provides that “[i]f resolution is not reached, the aggrieved employee may choose to lodge a formal grievance.”

[18] The formal portion of the grievance process is provided for in clause 52.9 and following:

“Grievances

52.9 A grievance must be lodged in writing with the Head of Cost Centre, setting out the specific nature of the grievance. (Where the grievance is with the Head of Cost Centre, the grievance should be lodged with the relevant senior executive officer.)

52.1 0 Any grievance which is put in writing will be made available to the person/s identified in the grievance for their response. No formal action can be taken if the aggrieved employee asks that their grievance be anonymous or is not specific.

Grievance relating to a decision

52.11 A grievance regarding a decision affecting the employee’s employment or about his/her workplace must normally be made within five (5) working days of the employee becoming aware of the decision or the workplace issue. This time period may be extended up to 10 working days to take into account issues such as the need to seek advice and assistance, or availability.

...

Grievance relating to another employee

52.15 A grievance regarding another employee may not be notified later than three (3) months after the date on which the action (last action or pattern of actions) is alleged to have taken place.

52.16 In exceptional circumstances a grievance may be considered after three (3) months, if good reason is shown.”

...

[19] Clause 52.9 (second appearing, on page 58) provides for the last step in the grievance procedure:

“52.9 If the grievance is not resolved, the Head of Cost Centre (or the relevant senior executive officer) will refer the matter and all associated documentation to the Vice Chancellor (or nominee) for a final determination.”

[20] The University’s case assumes that a dispute over that “final determination” can be raised under the dispute settlement procedures in clause 53.

[21] Clause 53 is entitled “Disputes Settlement Procedures”. Sub-clause 53.1 provides:

“53. DISPUTE SETTLEMENT PROCEDURES

53.1 The following Industrial Dispute procedure must be used to settle any industrial dispute that may arise about the application of, or matters arising under, this Agreement or the National Employment Standards.”

[22] Sub-clause 53.2 lays down principles for dealing with disputes. Sub-clause 53.3 specifies the procedures to be followed in relation to an industrial dispute:

“53.3 If there is an industrial dispute the following procedure must be followed:

53.3.1 In the first instance, an employee/s and/or their NTEU representative/s, and the University representative/s will discuss the dispute and attempt to reach agreement within seven calendar days of the dispute first being notified in writing unless agreed otherwise.

53.3.2 At the election of either party to the dispute, where they believe it would be beneficial to have further discussion, within seven days or other agreed timeframe, at least one further meeting will be held to attempt to resolve the matter.

53.3.3 During this internal process, the employee and/or the University may request representation by a person or the NTEU but not a member of the legal profession in private practice.

53.3.4 Should the dispute not be resolved by the process referred to above, the matter may be referred by any party to the dispute to Fair Work Australia (FWA) for resolution by conciliation, or where conciliation does not resolve the dispute, by arbitration. In resolving the dispute FWA can exercise any of its powers under the Fair Work Act. The parties to the dispute will be bound by and implement any recommendation or decision of FWA subject to an appeal to the Full Bench of FWA.”

[23] In my view, construing the Agreement as a whole, and adopting the practical approach to construction required by the authorities, it is apparent from the language and structure of the agreement that, objectively determined, the parties did intend that certain personal grievances be dealt with in accordance with the procedures in clause 52 in the first instance, rather than as disputes under clause 53. To conclude otherwise would set clause 52 at nought.

[24] A personal grievance is a form of “dispute”. Not every “dispute” will be a personal grievance, however, every personal grievance will be a dispute.

[25] The language of sub-clause 52.1 is telling. It contains a series of statements about what clause 52 covers and what it does not cover. Objectively determined, the parties intended that personal grievances, as defined in clause 52.1, should be dealt with under clause 52 in the first instances unless, in accordance with the language of clause 52.1, they should be dealt with under clause 53.

[26] Relevantly for present purposes, clause 52.1 provides that “[t]his clause does not cover the resolution of disputes relating to the correct application, implementation or interpretation of the terms of this agreement, as these disputes are industrial disputes settled in accordance with clause 53.” The difficulty, of course, is almost every conceivable dispute could be constructed (as this case has) as a dispute over the “correct application, implementation or interpretation of the terms of this agreement”.

[27] While the precise line of delineation between those disputes that are personal grievances that must be dealt with under clause 52 in the first instance, and those that may be dealt with under clause 53, without resort to clause 52, is not entirely clear, clauses 52.2.3, 52.2.4 and 52.3.3 make it plain that actions that are characterised by the employee as bullying and harassment must be dealt with under clause 52 in the first instance.

[28] That is the way Dr Game-Lopata characterises the dispute. She is obliged to follow the process in clause 52 before the Commission can become seized of the dispute under clause 53. It is trite that the Commission has no jurisdiction under a dispute resolution procedure while ever mandatory procedural steps that are a precondition to a referral of the dispute to the Commission have not been taken. On the findings I have made, that is this case.

Summary

[29] It follows that the present application is premature and the University is entitled to the relief it seeks and the originating application must dismissed on the basis that the Commission does not presently have jurisdiction to deal with the matter. However, that is a pyrrhic victory for the University. Dr Game Lopata is entitled to pursue her dispute under clause 62 as a personal grievance under clause 52 and then as a dispute under clause 53 and it appears all but inevitable that the matter will return to the Commission as a dispute within jurisdiction in the not too distant future.

VICE PRESIDENT

Appearances:

Mr R. Chaudhry of the National Tertiary Education Union on behalf of the Applicant.

Ms R. Trevaskis of the Australian Higher Education Industrial Association on behalf of the Respondent.

Hearing details:

2013.

Sydney:

2 December

Final written submissions:

Filed by the Respondent on 29 November 2013.

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<Price code C, PR546760>