Nick Trakakis v Australian Catholic University Limited

[2020] FWC 3976

[2020] FWC 3976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Nick Trakakis
v
Australian Catholic University Limited
(C2020/3386)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 JULY 2020

Dispute arising under an enterprise agreement – whether a dispute about academic workload is excluded from the disputes procedure – Commission asked to express a view

[1] Dr Nick Trakakis has lodged an application under s 739 of the Fair Work Act 2009 (Act) and the dispute settlement procedure in clause 1.12 of the Australian Catholic University Staff Enterprise Agreement 2017-2021 (Agreement). Clause 1.12.1.4 states that, if the parties to a dispute do not agree about whether a dispute falls within the dispute settlement procedure, it ‘may be referred to the Fair Work Commission for a determination as to whether the dispute should be dealt with pursuant to these procedures.’

[2] The underlying dispute between the parties concerns Dr Trakakis’ claim that his academic workload for 2020 was not ‘allocated as fairly and equitably as possible’ in accordance with clause 5.2.2 of the Agreement. His employer, Australian Catholic University Limited (ACU), denies this. However, the immediate dispute concerns Dr Trakakis’ contention that the underlying dispute is one that falls within the dispute settlement procedure in the Agreement, and that ACU should engage with his efforts to resolve the dispute under that procedure. Dr Trakakis’ application seeks to have the Commission direct the university to activate its dispute settlement procedure so that his dispute can be discussed and resolved. In effect, he asks that the Commission determine, under clause 1.12.1.4 of the Agreement, that his dispute is one that falls within clause 1.12.

[3] ACU contends that the underlying dispute is about the application of policy and not the Agreement, and that in any event it is covered by an exclusion that prevents it from being dealt with under the dispute settlement procedure in clause 1.12. The university further submits that the dispute has already been dealt with under other procedures and has been reviewed by the Deputy Vice Chancellor for Research and the Chair of the Academic Board.

[4] The application was listed before me for conciliation but remained unresolved. As an alternative to then programming and listing the matter for a jurisdictional hearing on the question of whether the dispute falls within clause 1.12 of the Agreement, I suggested to the parties that, in the exercise of further conciliation, I could invite them to submit a concise summary of their respective arguments on the jurisdictional point and then relist the matter for further conference and express a view on the matter. This would be without prejudice to the parties’ right to seek a formal determination under the dispute procedure. It could offer a faster and less formal means to resolve the jurisdictional dispute. The parties agreed. Dr Trakakis and ACU then proceeded to exchange concise summaries of their positions on the jurisdictional question. I listed the application again for conference on 29 July 2020.

Submissions of the parties

[5] ACU contended that, pursuant to clause 1.12.1.1, the disputes procedure only applies where a dispute arises ‘about the application of this Agreement and/or the National Employment Standards’. It submitted that Dr Trakakis’ claim was not such a dispute, as it concerned the application of policy.

[6] Secondly, ACU submitted that the underlying dispute is in any event excluded from the dispute settlement procedure by clause 5.2.7.1 of the Agreement, which states: ‘Matters that specifically relate to the operation of the ACU Academic Workload Policy must be discussed directly between the academic staff member and their National Head of School. These matters cannot be subject to review under these provisions, including but not limited to review by any constituted Peer Review Panel or WAC [Workload Advisory Committee] convened to review an individual matter.’ ACU said that Dr Trakakis’ grievance is about the operation of the Academic Workload Policy and is therefore excluded from any form of review under the Agreement, including the dispute resolution procedure in clause 1.12.

[7] Dr Trakakis contended that there is a dispute about whether ACU has breached clause 5.2.2 of the Agreement by not determining his workload in a fair and equitable manner, and that this is a dispute about the application of the Agreement, and can therefore be brought under the dispute settlement procedure in clause 1.12.

[8] Dr Trakakis submitted that the exclusion in clause 5.2.7.1 was confined to the operation of clause 5.2.7 of the Agreement, and means only that a dispute about the operation of the Academic Workload Policy cannot be subject to the particular review mechanisms in that sub-clause, namely the peer review process and the Workload Advisory Committee review process. Dr Trakakis submitted that clause 5.2.7.1 does not refer to the dispute resolution procedure in clause 1.12 and that it does not preclude him from bringing a dispute about the Academic Workload Policy under the dispute settlement procedure in clause 1.12.

[9] Dr Trakakis relied on clause 1.9.2, which states that the university’s policies and procedures ‘will not be used as a mechanism to reduce any entitlements set out in this Agreement.’He also said that if his dispute could not be brought under clause 1.12, this would mean that a contravention of the principle of fairness in workload allocation in clause 5.2.2 could not be challenged.

View as to jurisdiction

[10] In response to the parties’ request, I express the following view as to whether the present matter falls within the dispute settlement procedure in clause 1.12 of the Agreement.

[11] First, the parties’ disagreement about whether the dispute falls within the dispute resolution procedure is a matter that the Commission can determine under clause 1.12.

[12] Secondly, the dispute appears to me to be subject to the exclusion in clause 5.2.7.1. Under that clause, matters that specifically relate to the operation of the ACU Academic Workload Policy ‘cannot be subject to review under these provisions, including but not limited to review by any constituted Peer Review Panel or WAC convened to review an individual matter.’ The review procedures from which matters specifically relating to the Academic Workload Policy are excluded ‘include’ the WAC and the Peer Review Panel. These are clearly not the only mechanisms of ‘review’ from which such matters are excluded. The dispute settlement procedure in clause 1.12 is a procedure that might otherwise allow for ‘review’ of the matters referred to in clause 5.2.7.1. In my view, clause 1.12 is a procedure from which disputes about the Academic Workload Policy are excluded by the operation of clause 5.2.7.1.

[13] The reference in clause 5.2.7.1 to ‘these provisions’ is perhaps not entirely clear. On one view, they could be read as referring only to the particular review procedures in the sub-clause. But the better view appears to be that these words refer to the provisions of the Agreement as a whole, not just the provisions of clause 5.2.7. This interpretation is in keeping with the context of the clause, under which some matters are reviewable (see clause 5.2.7.2 to 5.2.7.4) but others are not. Further, it would be unusual for disputes about the workload policy to be excluded from internal review but be subject to review by the Commission under clause 1.12.

[14] As to Dr Trakakis’ contention regarding clause 1.9.2 of the Agreement, I do not see how policy is said to have been used to reduce any entitlement under the Agreement.

[15] Finally, the fact that the Commission may not be able to deal with Dr Trakakis’ dispute under clause 1.12 does not mean that he cannot challenge an alleged contravention of clause 5.2.2. He can bring proceedings in a court for alleged breach of s 50 of the Act (contravening an enterprise agreement). I note that it is very common for certain matters to be excluded from review by the Commission under a dispute resolution procedure in an enterprise agreement. The Commission does not have general powers to deal with disputes under enterprise agreements. Its powers are circumscribed by the terms of the agreement (see s 739(3) to (5)).

[16] In my view the dispute does not fall within clause 1.12 of the Agreement.

DEPUTY PRESIDENT

Conference details:

2020
Melbourne
29 July

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