Prof. Masud Behnia v Macquarie University
[2022] FWC 160
•25 JANUARY 2022
| [2022] FWC 160 |
| FAIR WORK COMMISSION |
| reasons for decision |
Fair Work Act 2009
s.739 – Application to deal with a dispute
Prof. Masud Behnia v Macquarie University
(C2021/6424)
| Commissioner Matheson | SYDNEY, 25 JANUARY 2022 |
Application to deal with a dispute about matters arising under an enterprise agreement - dispute regarding whether reasonable adjustments made or required to be made on account of disability in redundancy selection - jurisdictional objection raised by Respondent - jurisdictional objection upheld.
On 30 December 2021, I issued an order dismissing an application brought by Professor Masud Behnia (Applicant) against Macquarie University (Respondent). These are the reasons for my decision explaining why the Fair Work Commission (Commission) does not have the jurisdiction to arbitrate the substantive underlying dispute.
The matter was listed for hearing before the Commission on 20 December 2021 (Hearing) due to Applicant’s impending termination at that time, the time sensitive nature of the application and the request of the parties that orders be made on an urgent basis ahead of the Applicant’s impending termination of employment.
Background to the dispute
The dispute has arisen following the Applicant’s selection for redundancy by the Respondent in June 2021.
The Applicant commenced employment with the Respondent as Professor in the Graduate School of Management at the beginning of 2015.
In April 2016, the Applicant was hit by a car while riding his bicycle resulting in an injury to his right shoulder and multiple surgeries since that time. It is uncontested that prior to the process leading to the Applicant’s selection for redundancy, the Respondent made reasonable adjustments for the Applicant in relation to the injury.
In 2020, the Respondent undertook engagement activities and consultation with academic staff about the challenges it was facing financially and in response to COVID-19, as well as systemic challenges it said it had been facing for some time. The Respondent sought to reduce academic staff costs and developed a framework for the selection of individuals for redundancy. The Respondent decided that it would rank staff based on merit and relative performance and that each individual assessment would be ‘relative to opportunity’.[1]
The Respondent developed criteria for assessment, drawing on the principles in the Macquarie University Academic Promotion Criteria. The Respondent also formed a Redundancy Assessment Committee (Assessment Committee) which was responsible for assigning a ranking to employees in impacted roles.
In late 2020 and early 2021, the Respondent consulted with employees in relation to possible redundancies in some of its faculties, including the Macquarie Business School. The change included voluntary redundancies in 2020 and early 2021 and, following that process, the Respondent embarked on a process of selecting employees for redundancy in May and June 2021.
The Final Implementation Plan[2] in relation to the change provided that the comparative assessment upon which the selection for redundancy was to be based was to be focused on the past five years with some caveats, including an ability for employees to request adjustments to the assessment period in the context of ‘relative to opportunity’ factors. The Final Implementation Plan indicated that these ‘relative to opportunity’ factors included:
· identifiable interruptions in service (including parental leave, medical leave or other breaks);
· career breaks for childcare or caring responsibilities;
· part-time employment;
· absence for ill health or disability (short-term or ongoing);
· year of appointment;
· recent promotion to current academic level;
· where actual individual workload allocation varied significantly from the default job family workload allocation; and
· significant impacts of COVID-19 (which may have included impacts on research grants or ability to carry out research due to home schooling or other circumstances).[3]
As a part of the assessment process, impacted employees were provided with resources to assist them including an individual submission form, which included a section inviting employees to disclose any ‘relative to opportunity’ factors which they would like to be considered.[4] The Final Implementation Plan stated that it was intended that employees who identify ‘relative to opportunity factors’ would also be asked to suggest any specific accommodations or adjustment they would like the Assessment Committee to consider.[5]
The Final Implementation Plan stated that:
“The Individual Submission form will be one of the primary sources of information for the Faculty Committee. It is expected that all staff members in scope for the Stage 2 process will complete the Individual Submission form to ensure that the Faculty Committee has sufficient data and information available to assess each individual. If a staff member does not complete the Individual Submission, the Faculty Committee may seek from the relevant Head of Department (if appropriate) available data on teaching and service roles undertaken…”[6]
The Final Implementation Plan also stated that the individual submission may include attachments with a maximum page limit of 20 pages and referred to the following as examples of documents employees may wish to attach:
· LEUs or LETs;
· evidence of service contribution;
· evidence of contribution to discipline or industry;
· publication references not otherwise captured in research metrics; and
· documentation or information supporting ‘relative to opportunity’ considerations.[7]
The Final Implementation Plan stated that it was intended that the Researcher Performance Dashboard would be used as a source of individual research data and metrics but also acknowledged that it was only one set of research data and metrics and employees were encouraged to use the Individual Submission form to provide additional information about research achievement and performance.[8]
By way of summary, the Final Implementation Plan indicated that the process for redundancy selection would be as follows:
employees would receive a PDF copy of their final individual Researcher Performance Dashboard by 7 May 2021;
employees would have 2.5 weeks to prepare and submit an Individual Submission in the prescribed form;
each member of the Assessment Committee would receive these documents;
all members of the Assessment Committee would individually assess employees against the assessment criteria and based on default workload allocation unless a variation was requested and agreed under ‘relative to opportunity’ considerations;
the Assessment Committee would convene to review the assessments and scoring;
the Assessment Committee would seek additional input where required;
the Assessment Committee would determine a preliminary scoring and ranking of employees within each cohort;
the preliminary scoring would be reviewed in consultation with the Head of Department (if appropriate) and others; and
the Assessment Committee would determine the final selection of employees for redundancy.[9]
The Final Implementation Plan stated that:
· these steps would not preclude the Assessment Committee from convening at any time to discuss and resolve issues as they arose;
· if the Assessment Committee considered a significant deviation from the process may be required, advice would be sought from an Employee Relations representative;
· all assessments and rankings would be kept confidential to the Assessment Committee and senior members of the Human Resources team and would only be used for the purposes of undertaking the assessment and ranking process; and
· Assessment Committee selections for redundancy would be subsequently reviewed and confirmed by the Director, Human Resources.[10]
The Respondent identified the Applicant’s role as among those impacted by potential redundancy. On 3 June 2021, the Applicant made an Individual Submission to the Assessment Committee. The Applicant included ‘relative to opportunity’ factors in his Individual Submission. The Individual Submission referred to the incident in April 2016 in which the Applicant was hit by a car whilst riding his bicycle and indicated:
· the accident caused severe damage to the Applicant’s right shoulder;
· the Applicant had eight operations and procedures over a period of three years;
· the Applicant provided all medical records and monthly reports from his treating doctor to a Human Resources representative and those documents should be available on his Human Resources file (sample medical certificates were attached);
· in November 2020, the Applicant had open heart surgery and was on personal leave for about four months after which he returned to work on 23 March 2021. The Applicant again stated that all medical records were provided to a Human Resources representative and those documents should be available on his Human Resources file (a sample medical certificate was attached); and
· the Applicant was happy to provide additional documents if required.
In June 2021, the Assessment Committee assessed employees being considered for redundancy, including the Applicant. A ranking was assigned to the Applicant via that process. The notes of an Assessment Committee meeting taken by Ms Justine Kay of the Respondent dated 16 June 2021 state:
“The Committee considered Masud’s injury and other health concerns since 2016 and adjusted their expectations to factor this into the scoring and his opportunity relative to others. The Committee did not change the preliminary rank for Masud, after reconsidering Masud’s circumstances”[11]
The Assessment Committee prepared a report dated 17 June 2021 for the Director, Human Resources which recorded the decisions made by the Assessment Committee in relation to employees selected for redundancy (Selection Report).[12] In relation to validation and final selection of staff members for redundancy, the Selection Report stated:
“The Committee convened on 16 June 2021 to discuss and consider validation information. This included revisiting requested relative to opportunity considerations and adjustments to workload for staff in the preliminary ranking, then input from the Head of Department around potential impacts on diversity, gender balance and department operations.
The Committee then considered the validation information and discussion in context of the preliminary rank and if any adjustments to the preliminary rank was necessary. The Committee then came to agreement on the selection and rank of staff for redundancy as listed below. The Committee Chair provided guidance around the estimated range of FTE and savings target outlined in the MQBS Final Implementation Plan to inform the number of staff selected for redundancy for each department.”[13]
The Selection Report indicates that out of six employees under consideration for redundancy within the Department of Management, the Applicant was ranked third.[14] This resulted in his selection for redundancy. The Applicant was notified of his selection and provided with notice of redundancy on 25 June 2021 (Redundancy Notice).
The email from Mr Nick Crowley, the Respondent’s Director, Human Resources to the Applicant dated 25 June 2021 and attaching the Redundancy Notice noted that the letter included a form so the Applicant could choose from one of the following options:
“1. Option 1 – Voluntary Redundancy with a proposed end date of 14 July 2021
2. Option 2 – Voluntary Redundancy with a proposed end date of 11 August 2021
3. Option 3 – A reduced notice period (from 6 to 3 months) with an end date of 30 September 2021
4. Option 4 – Working out your 6-month notice period with an end date of 30 December 2021.”
The Redundancy Notice also set out these options and included a table showing the difference between each option in terms of the portion of the notice period to be worked, last date of employment, payment of compensation for portion of notice period worked, total notice period (or equivalent payment) and access to career transition and redeployment support.
The Redundancy Notice also states:
“The table below sets out the detail of the various options for clarity and ease of reference. Please note that you will be entitled to a severance payment (calculated in accordance with subclause 45.14 of the Enterprise Agreement) and any accrued and untaken annual and (if applicable) long service leave entitlements as at your final date of employment regardless of which option you choose. Indicative estimates for all four scenarios are attached to this letter so that you can consider your options and make an informed decision.”
Indicative severance payment calculations were attached to the Formal Notice, setting out total gross figures ranging between $366,187.73 and $442,190.17 depending on the option selected.
While the Redundancy Notice presents the potential outcomes as “options”, each of the options identify a termination date. The Redundancy Notice also states:
“If you do not make an application for Voluntary Redundancy which is accepted by the University, then you will continue to work during your notice period and your employment will conclude by reason of redundancy no later than 30 December 2021.”
On 2 July 2021, the Applicant applied for a review of the decision to declare his position redundant (Decision) in accordance with clause 45.21 of the Macquarie University Academic Staff Enterprise Agreement 2018 (Agreement). On 9 July 2021, Ms Mandi Larsen of the Respondent wrote to the Applicant to advise that the Respondent had established a Redundancy Review Committee (Review Committee) in accordance with the Agreement.
On 3 September 2021, the Applicant wrote to the Respondent notifying it of a dispute pursuant to clause 50.3 of the Agreement. In this email, the Applicant stated:
“The dispute relates to the University’s non-adherence to clause 25.9 of the EA, which relevantly provides that:
The University will make Reasonable Adjustments for Staff with disabilities to enable them to perform their duties and participate fully in the University community.
Specifically, the dispute is that, in the course of selecting me for termination by reason of redundancy, the University failed to make reasonable adjustments given my disability to its assessment criteria and I will thus not be enabled to perform my duties and participate fully in the University community, because my employment is to be terminated.”
In this email, the Applicant also noted that the resolution he sought was that the Respondent withdraw the termination of his employment for redundancy. It is apparent to me from the materials before the Commission that the Applicant understood that the Respondent had made a decision to terminate his employment. In my view, this assumption was a valid one, noting the contents of the Redundancy Notice and events that followed.
On 10 September 2021, Ms Kay of the Respondent responded to the Applicant stating that the Respondent could not agree with the Applicant’s suggested resolution and that, in the context of the internal Review Committee process that remained underway, she did not believe it was appropriate to progress the dispute at that time. In that response, Ms Kay did not dispute that the Respondent had made the decision to terminate the Applicant’s employment.
On 13 September 2021, the Applicant’s representative wrote to the Respondent noting that it was apparent the dispute had not been resolved under clause 50.3 of the Agreement, that the process of the Review Committee had been attended by significant delay and, given the termination of the Applicant’s employment was otherwise approaching, the Applicant wished to progress the dispute. The letter set out a request that a Disputes Committee be convened within five working days pursuant to clause 50.4 of the Agreement.
On 17 September 2021, a Disputes Committee meeting was held and the dispute was not resolved.
On 21 September 2021, the Applicant filed an application for the Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act).
The dispute was the subject of conferences before the Commission on 1 October 2021 and 14 October 2021. The Respondent agreed to participate in those conferences to explore resolution between the parties however reserved its right to press a jurisdictional objection to the application if the matter was not able to be resolved via conciliation or mediation with the assistance of the Commission. The dispute was not able to be resolved during the conferences and the Applicant seeks to have the dispute arbitrated pursuant to the dispute settlement term of clause 50 of the Agreement.
The Review Committee process had not been concluded when the Applicant made his application to the Commission.
The process for a review of a decision to declare a position redundant is set out in clauses 45.21 – 45.26 of the Agreement. At the conclusion of the review, clause 45.26 provides that the Deputy Vice-Chancellor or equivalent may:
“(a) confirm that the redundancy and retrenchment will proceed as advised; or
(b) request the Executive Dean reconsider the criteria used to identify redundant positions; and/or
(c) review the Staff chosen for retrenchment.”
On 17 December 2021, Professor Pretorius, Deputy Vice-Chancellor of the Respondent, wrote to the Applicant informing him that he found no ground to alter the Decision and that, if no alternative resolution was to be reached by 24 December 2021, the Applicant’s employment would cease on 30 December 2021. This meant the outcome of the review of the Decision had not been communicated to the Applicant until more than five months after he had made his application for a review of the Decision.
The substantive dispute
On 21 September 2021, an application was made by the Applicant under s.739 of the Act for the Commission to deal with a dispute in accordance with a dispute settlement procedure in the Agreement.
By way of summary, the Applicant submitted that clause 25.9 of the Agreement required the Respondent to make reasonable adjustments to the assessment it conducted and that the steps undertaken by the Respondent did not satisfy this requirement.
The Applicant further submitted that the Respondent has breached ss.7(a) and (b) of its Discrimination, Bullying and Harassment Prevention Policy (Policy).
The jurisdictional objection
The Respondent submitted that the Commission has no jurisdiction to hear the dispute in the context of clauses 45.21 and 45.26 of the Agreement, which establish a review process in relation to the Decision, and clause 50.10 of the Agreement.
Of note, clause 50.10 of the Agreement provides:
“Decisions in accordance with this Agreement to terminate employment will not be subject to further review or dispute.”
The Respondent submitted that, in any case, it has complied with clause 25.9 of the Agreement and the Policy.
I have first dealt with the jurisdictional objection and, for the reasons that follow, have decided to dismiss the application for want of jurisdiction.
Jurisdiction
Section 739 of the Act empowers the Commission to deal with certain disputes where an enterprise agreement includes a term that provides a procedure for dealing with disputes.
In particular, s.739 of the Act provides:
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.”
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.
The Agreement’s dispute settlement procedure is found at clause 50 and provides as follows:
“50. DISPUTE SETTLING PROCEDURES
50.1 It is agreed that the University, the Union and all Staff have an interest in the proper application of this Agreement, and in minimising and settling any disputes in a timely manner.
50.2 In the event of a dispute relating to this Agreement, the National Employment Standards or matters relating to a written policy of the University regarding employment, the Staff Member or the NTEU will raise the dispute with the University and attempt to resolve the matter in accordance with this clause. However, no University policy or part of a University policy will constitute a term of this Agreement. If a dispute relates to a request for flexible work as set out under subclauses 19.1-19.4, the procedures of this clause will apply up to FWC Conciliation stage.
50.3 Where a dispute involves a Staff Member, the Staff Member will discuss the matter with their relevant Supervisor or where appropriate, a Staff Member who is more senior than the Staff Member’s Supervisor and attempt to resolve the dispute within the workplace. A Staff Member may choose, at any stage, to be represented by their Union, or an organisation, association or person of their choice in relation to the dispute.
50.4 Where a dispute is not resolved under subclause 50.3, at the written request of a party to the dispute, a Disputes Committee will be convened within 5 working days of receipt of the request, unless agreed otherwise. The Disputes Committee will consist of equal numbers of nominees of the parties to the dispute (e.g. 2 University and 2 NTEU nominees; or the Staff Member and their representative and 2 University nominees; or the Staff Member’s representative and 1 University nominee etc).
50.5 The Disputes Committee will meet and attempt to resolve the dispute within 5 working days of the Disputes Committee being convened. Any resolution will be in the form of a written agreement subject, if necessary, to ratification by a party to the dispute.
50.6 If a dispute under this provision is unable to be resolved at the workplace, the parties to the dispute may agree to refer the dispute for mediation to a person or body other than the Fair Work Commission (FWC).
50.7 Where the matter in dispute remains unresolved, and the steps in subclauses 50.2 – 50.6, where appropriate, have been taken, a party to the dispute may refer the dispute to the FWC for conciliation (FWC Conciliation). If the matter cannot be resolved through conciliation, either party to the dispute may elect to have the FWC arbitrate the matter (FWC Arbitration).
50.8 If an application for arbitration is made, the FWC may exercise any of its powers under the Fair Work Act. A direction or decision of the FWC will be implemented by the parties, subject to either party exercising a right of appeal against the decision of the FWC to the Full Bench of the FWC.
50.9 Until the steps in subclauses 50.2 – 50.5 have been concluded:
(a) work will continue in the normal manner;
(b) no industrial action will be taken by a party to the dispute in respect of the matter that is the subject of the dispute; and
(c) the University will not change work, staffing or the organisation of work if such is the subject of the dispute, nor take any other action likely to exacerbate the dispute.
50.10 Decisions in accordance with this Agreement to terminate employment will not be subject to further review or dispute.”
Witness evidence
The Applicant filed two witness statements dated 18 November 2021 and 10 December 2021 and gave evidence on his own behalf at the Hearing.
The Respondent filed a witness statement of Ms Justine Brooke Kay and Professor Eric Knight, both dated 3 December 2021. Both Ms Kay and Professor Knight appeared at the Hearing to give evidence.
Respondent’s submissions – jurisdiction
The Respondent has raised a jurisdictional objection in relation to the application and relies on clause 50.10 of the Agreement, submitting that: [15]
· this provision talks about a particular decision (namely in relation to termination of employment) and states that the particular decision ‘will not be subject to further review or dispute’;
· the use of the words ‘further review or dispute’ are deliberate in the context of the Agreement as a whole; and
· these words identify an exclusion from the dispute resolution process in clause 50 when;
othe decision is to terminate employment (broad interpretation); and/or
oat least when the applicant has a review mechanism, such as that set out in clauses 45.21 to 45.26 of the Agreement.
The Respondent further submits that:
· the reference to ‘further review or dispute’ would not be read to only apply to actions after the Commission has tried to resolve the dispute, as:[16]
oclause 50.10 would then have no effect or meaning given the dispute resolution process is a private arbitration clause of which there can be no further review or dispute; and
oclause 50.10 needs to be given effect and work to do within the Agreement;
· the words ‘in accordance with’ do not otherwise limit the application of clause 50.10. Those words can have different meanings, and in the context of the Agreement as a whole, are to be read as covering any action taken under the Agreement, whether strictly conforming to it or not.
In this regard, the Respondent noted the Applicant does not suggest that the workplace change process was other than a process in accordance with clause 44, there is no dispute about compliance with clause 45 of the Agreement and there is no dispute that the Applicant received notice of termination by reason of redundancy.
Applicant’s submissions – jurisdiction
The Applicant pointed to clause 50.2 of the Agreement in submitting that the dispute settlement procedure is broader than the model clause in that it extends to matters relating to a written policy of the Respondent.
The Applicant submitted that clause 50.10 refers to decisions ‘in accordance with this Agreement’ to terminate employment and that the dispute arises in the context of a redundancy that was not in accordance with Agreement.
The Applicant submitted that the process undertaken by the Assessment Committee was a two-stage process in that:
firstly, it accepted the submissions made by the relevant employees and then ranked the employees; and
secondly, it considered the cost implications and drew a line as to how many and which employees ought to be made redundant.
The Applicant submitted that it is the process of ranking the employees that he is challenging and that that process did not comply with the Policy in assigning him a rank. The Applicant submitted that this process was quite separate from the decision made by the Respondent regarding redundancy selection, having regard to the cost consequences.
The Applicant conceded that the consequence of the Respondent’s non-compliance with the Agreement and Policy did lead to the Applicant’s employment being terminated and that his termination is ‘infected’ by the non-compliance, however submitted that the relevant decision that he is challenging is his ranking for redundancy undertaken by the Assessment Committee. The Applicant submits that this is not a decision that relates to termination of employment and which is ‘carved out’ by clause 50.10 of the Agreement.
In the alternative, the Applicant submitted that if he is wrong about this and that the decisions regarding ranking and selection for redundancy are so interlinked that they cannot be disassociated, the reference in clause 50.10 to ‘in accordance with this Agreement’ must be given work to do. In particular, the Applicant submitted that for the jurisdictional limitation to apply, the termination of employment must be ‘in accordance with the Agreement’. The Applicant provided the example that this included the requirement to give appropriate notice or to pay certain termination entitlements such as redundancy pay.
Given the Applicant’s position that the selection for redundancy was not in accordance with the Agreement, he submitted that the Commission does have the jurisdiction to hear and determine the matter.
This takes me to the submissions of the parties in relation to the substantive dispute.
Substantive dispute
Applicant’s submissions – substantive dispute
Clause 25.9 – staff with disabilities and reasonable adjustments
The Applicant submits that the Applicant had a disability. In support of this, it filed a range of documents as evidence including:
· a letter dated 9 April 2016 from the Emergency Department of St Vincent’s Hospital which sets out a medical diagnosis and refers to the accident that led to the injuries; and
· various medical certificates between April 2016 and December 2019.
The term ‘disability’ is not defined in the Agreement. The Applicant relied on the definition of disability in s.4 of the Disability Discrimination Act 1992 (Cth). The Applicant submitted that the information before the Respondent outlined the Applicant’s medical diagnosis, this diagnosis clearly falls within the definition of disability and the obligation in clause 25.9 of the Agreement is enlivened.
The key issue in dispute relates to clause 25.9 of the Agreement which provides:
“25.9 The University will make Reasonable Adjustments for Staff with disabilities to enable them to perform their duties and participate fully in the University community. To support this participation, the University will develop an Access and Inclusion Plan which provides a framework for equitable access and participation for people with disabilities.”
In particular, the Applicant submitted a key dispute is whether clause 25.9 of the Agreement required the Assessment Committee to make reasonable adjustments to the assessment it conducted, and whether it can be said that the steps undertaken by the Assessment Committee (whatever they may be) satisfied the requirement of clause 25.9.[17]
The Applicant submitted that the first sentence of the clause, requiring the Respondent to ‘make Reasonable Adjustments for Staff with disabilities to enable them to perform their duties and participate fully in the University community’, is important in that it creates an obligation for the Respondent. The Applicant submitted that the Respondent did not comply with this requirement.
In particular, the Applicant submitted that:
· the Respondent assessed the Applicant’s performance with a non-adjusted criterion that placed him at a substantial disadvantage;
· this assessment led to the Applicant receiving a notice of termination; and
· this ‘prevented the Applicant from being able to “perform [his] duties or participate fully in the University community”’ as ‘a person terminated cannot perform duties or participate fully (or at all) in their employer’s community’.[18]
‘Reasonable Adjustments’ is a term defined in clause 2 of the Agreement with the definition providing:
“Reasonable Adjustments means assisting people with disabilities to be able to be able to do their work by modifying some features of their work or work environment. It may include improving access to buildings and rooms, modifying equipment, redesigning jobs or work areas, or implementing more flexible work practices.”
The Applicant submitted that the definition in clause 2 is not confined to adjustments to work and that the examples provided were not exhaustive. It relied on the broader context of clause 25 which sets out the Respondent’s broader commitments to diversity and inclusion.
In the alternative, it submitted that, if the term ‘Reasonable Adjustments’ is narrowly construed, it is intended to deal with assisting employees to be able to do their work and this extends to the work of the Committee and workplace changes that have the ability to impact the way an employee participates in the ‘University community’.
The Applicant submitted it would be nonsensical and inconsistent for there to be a clause in the Agreement requiring the Respondent to make adjustments to its work or work practices but then not to require the Assessment Committee to assess the Applicant’s work on a modified basis. The Applicant put forward the example that if an adjustment was made for an employee to work reduced hours, it would be inconsistent with the obligations in the Agreement if the Respondent could take steps to assess the employee against a full-time workload. It submitted that it follows that the reference to reasonable adjustments to work relates to how work is assigned, directed, assessed and the like.
The Applicant also submitted that clause 25.9 of the Agreement needs to be understood in its context and having regard to its purpose. In particular, it submitted that clause 25.9 of the Agreement sits within Part 6 of the Agreement dealing with diversity and clause 25 which deals with diversity and inclusion. The Applicant pointed to clause 25.1 which states:
“25.1 The University recognises the benefits of a vibrant and diverse workforce and is committed to creating an inclusive environment where all Staff can fully participate, contribute and develop. The University aligns its policies and processes with leading practice in workplace include, monitors the diversity of our workforce on an ongoing basis, and regularly consults with Staff on workplace culture.”
The Applicant submitted that this sets out the Respondent’s commitment to place itself among the leading practices in terms of workplace diversity and inclusion which is an important contextual fact. The Applicant submitted that the broad scope of the provisions support a conclusion that clause 25.9 of the Agreement was not intended to have a narrow application.[19]
It submitted that the relevant statutory obligations also provide important context and in particular disability discrimination legislation at the state and federal level and these cannot be ignored when considering ‘leading practices’.
The Applicant submitted that clause 25.2 of the Agreement is also relevant and important. That clause provides:
“25.2 The University’s approach seeks to equally value and respect the different skills, experiences and interests that each member of our Staff community brings to the University. The University acknowledges the barriers to genuine equality of opportunity experienced by some people because of their gender, age, cultural background, sexual orientation, gender identity, disability and/or family status; and the University develops targeted strategies to address these barriers.”
The Applicant submitted that the reference to ‘targeted strategies to address these barriers’ would encompass the type of assessment undertaken by the Assessment Committee.
The Applicant also pointed to clause 44.8 of the Agreement which states:
“44.8 When the University confirms a decision to proceed with the change proposal, it will:
(a) inform affected staff and their Union;
(b) confer with affected staff and their Union with a view to reaching agreement about the implementation of the change, including the timeline of implementation and measures to mitigate any negative consequences for staff arising from the change and a process for monitoring the effects of the change after implementation;
(c) undertake an assessment of the potential impacts on women, staff with disabilities, LGBTQI staff, culturally and linguistically diverse staff, Indigenous employment strategies and the job security of Staff in the affected area; and
(d) where necessary, undertake an assessment of Staff training needs arising from the change.”
The Applicant submitted that when the Respondent confirms a decision to proceed with the change proposal, clause 44.8 commits it to undertake an assessment of the impact that the change would have on employees with disabilities.[20] The Applicant submitted that this is an important contextual consideration as to what the drafters of the Agreement intended in relation to clause 25.9 and that, properly understood, clause 25.9 required the Assessment Committee to make reasonable adjustments in relation to employees with a disability.
The Applicant submitted that the Assessment Committee did not make reasonable adjustments and further, that if it had, the Applicant’s position would not have been selected for redundancy. In support of this proposition, the Applicant pointed to the notes of the Assessment Committee’s Preliminary Committee Meeting, dated 16 June 2021, which he says demonstrate that the Committee gave superficial consideration to the Applicant’s disability after it had already assessed the Applicant against the default workload allocation and assessment period.[21] In particular, the Applicant pointed to the following paragraph:
“The Committee reconsidered Masud’s injury and other health concerns since 2016 and adjusted their expectations into the scoring and his opportunity relative to others. The Committee did not change the preliminary rank for Masud, after reconsidering Masud’s circumstances.”
The Applicant submitted that the Assessment Committee did not make reasonable adjustments and further, that if it had, the Applicant’s position would not have been selected for redundancy.
The Applicant also pointed to an email dated 10 September 2021 of Ms Kay to the Applicant in which Ms Kay stated:
“The Committee did not unilaterally apply any adjustments to [the Applicant’s] workload allocation or assessment period as this was not requested by you. However, the Faulty Committee did consider your relative to opportunity circumstances, as identified by you and based on the information you provided, adjusted their expectations for performance against the criteria.”
The Applicant submitted that this inferred that adjustments were not made because the Applicant had an obligation to request them and failed to do so.[22]
The Applicant submitted that clause 25.9 of the Agreement does not impose an obligation on an employee to identify or diagnose their disability or reasonable adjustments. It submitted that the obligation sits solely with the Respondent. The Applicant submitted that the fact that he did not request a specific adjustment is not a relevant matter as nothing in clause 25.9 imposes that obligation.
The Applicant also submitted that, despite putting forward that the Assessment Committee ‘adjusted its expectations’, the Respondent has failed to particularise these.
The Applicant submitted that the question as to whether an adjustment made was a ‘reasonable’ one is an evaluative exercise and that the Commission does not have evidence to give it a basis to assess whether the adjustment was a reasonable one.
The Applicant submitted that the evidence does not establish how the adjustment was made and, in particular, what the expectation was before the adjustment and what the expectation was after the adjustment.
In support of the Applicant’s position that the Committee did not make reasonable adjustments as required under clause 25.9 of the Agreement, the Applicant relies on the excel spreadsheet which contains the ‘overall raw scores’ for Professors within the Applicant’s department.[23] The Applicant noted that an email sent by Ms Kay to the Applicant on 31 August 2021 attaching the spreadsheet stated the ‘scores within the spreadsheet were “not necessarily the final scores” as the [Faculty] Committee “met to discuss the scoring and performance at which point some scores were changed”’.
In his submissions, the Applicant noted that his raw score was 305 and the bottom three raw scores were 235, 245 and 285.[24] The Applicant submitted that based on the raw scores it is implausible that the Committee made reasonable adjustments as it was required to under clause 25.9 or that it ‘adjusted its expectations’ as alleged because:
· despite the Applicant scoring higher than three of his colleagues, and at a considerable margin, the Applicant was one of two Professors subsequently selected for redundancy; and
· if reasonable adjustments were made, the Applicant’s total ‘raw score’ presumably would have increased rather than decreasing and resulting in him being selected for redundancy.[25]
The Applicant submitted that, as to the question of whether clause 25.9 was complied with, the evidence was ‘vague at best’ as the issue of disability was not considered because the Applicant had not used the term ‘disability’ in his submission. The Applicant contended that the evidence of Professor Knight supported this proposition.
The Applicant submits that the evidence of Professor Knight does not turn to the state of mind of the other members of the Committee and ‘at its highest’ turns to the adjustments that he made to the ranking of the Applicant in the assessment and that there was an agreement to:
“(a) adjust down the expectation of the Applicant being able to do his full teaching load because of his health concerns;
(b) adjust down the expectation of his ability to do research and other considerations you might expect because of his health concerns; and
(c) adjust down the expectations of his ability to fulfil service because of his health concerns.”[26]
The Discrimination, Bullying and Harassment Prevention Policy
The Applicant also submitted that further, and in the alternative, the Respondent has obligations under the Policy and that the dispute settling procedures in the Agreement apply to disputes ‘relating to a written policy of the University’ over which he says the Commission has jurisdiction.[27]
The Applicant pointed to section 2 of the Policy which states:
“(7) Macquarie University:
a. is committed to providing an environment where staff and students are able to work and study free from unlawful discrimination, bullying and / or harassment;
b. expects members of the University Community to act to create a fair, inclusive and safe University environment, where diversity is valued and unlawful discrimination, bullying and / or harassment in any form are considered unacceptable;…”
The Applicant also pointed to section 5 of the Policy which defines ‘Unlawful Discrimination’ as:
“less favourable treatment of a person or group on the basis of their…disability or presumed disability…
Unlawful Discrimination can be direct or indirect:
· Direct Discrimination is treating, or proposing to treat someone unfairly because of a characteristic (such a race, sex, age etc), in the same or similar circumstances;
· Indirect discrimination is imposing or intending to impose a requirement, condition or practice that is the same for everyone but which has an unequal or disproportionate effect on particular individuals or groups.”
The Applicant submitted that the Policy captures the Assessment Committee’s assessment and that, in breach of ss.7(a) and (b) of the Policy, the Respondent has not complied with the Policy by assessing the Applicant against a generic framework which, because of his disability, put him at a disadvantage.[28]
Respondent’s submissions – substantive dispute
Clause 25.9 – staff with disabilities and reasonable adjustments
The Respondent submitted that the Assessment Committee considered the matters raised by the Applicant in his submission to the Assessment Committee and ‘adjusted their expectations’ based on the information submitted to it.[29]
The Respondent submitted that ultimately, the Assessment Committee selected the Applicant when ‘relative’ to his opportunity and peers and assessed him to have:
· ‘average aggregate research performance’ with ‘varying quality, and limited funding or grants’;
· ‘decent…teaching contribution, however … little evidence around quality or innovation’;
· ‘average …service contribution’ but ‘relatively weak overall contribution to the Department’; and
· ‘little to no research impact as contribution is outside the discipline of management and the department’s relevant field of research code’ and there would be no adverse operational impact if he was selected for redundancy’.[30]
The Respondent submitted that the dispute before the Commission, as raised by the Applicant in his Form F10 application, is narrow: whether the Respondent has, in selecting the Applicant for redundancy, failed to apply clause 25.9 of the Agreement.[31]
The Respondent maintained its jurisdictional objection to the application however submitted:
· on the proper interpretation of clause 25.9 of the Agreement, it does not apply in the manner suggested by the Applicant, or at all;[32] and
· in any event, the Respondent complied with clause 25.9 of the Agreement by:
oimplementing ‘relative to opportunity’ factors into the selection process; and
ogiving the Applicant the opportunity to identify such factors and seek adjustments; and
othe Assessment Committee considering the Applicant’s submission on those factors and adjusting their expectations.[33]
The Respondent submitted that ‘it is trite that the existence of a ‘relative to opportunity’ factor or disability does not itself provide immunity from consideration and selection for redundancy’.[34]
The Discrimination, Bullying and Harassment Prevention Policy
As noted above, the Respondent submitted that the dispute before the Commission, as raised by the Applicant in his Form F10 application, is narrow: whether the Respondent has, in selecting the Applicant for redundancy, failed to apply clause 25.9 of the Agreement. The Respondent submitted that the Applicant’s outline of submissions dated 19 November 2021 represented an attempt to expand the dispute to suggest that the Respondent has failed to comply with the Policy.
The Respondent submitted that, notwithstanding this, there has been no breach of the Policy.[35]
The Respondent submitted that, in any event, the Commission should exercise its discretion to dismiss the dispute on the basis that the Applicant has availed himself of the Review Committee process and / or was assessed by the Assessment Committee based on the merits of his own submission.[36]
The Respondent submitted that any suggestion by the Applicant that the Assessment Committee had to ‘guess or know, as if by osmosis’ what adjustment to make to the assessment criteria as a result of his ‘relative to opportunity factors and then unilaterally make an unidentified adjustment…is misguided.[37]
The Respondent submitted that it is for the Applicant to establish the need for the Commission to intervene and issue a direction[38] and that the Applicant does not demonstrate his ‘relative to opportunity’ factor dictates a different outcome.[39]
Consideration – jurisdictional objection
Section 739 of the Act empowers the Commission to deal with certain disputes where an enterprise agreement includes a term that provides a procedure for dealing with disputes. However, in dealing with a dispute, the Commission must not exercise any powers limited by the term.
The principles that apply to the interpretation of an enterprise agreement have been set out by a Full Bench of the Commission in AMWU v Berri Pty Ltd,[40] drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.[41] Those principles were articulated by the Full Bench as follows:[42]
“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”
Clause 50.10 of the Agreement provides:
“Decisions in accordance with this Agreement to terminate employment will not be subject to further review or dispute.”
On a plain reading of the Agreement, clause 50.10 sets out a limitation on the Commission’s jurisdiction under s.739 of the Act. That limitation arises when all three of the following conditions are met:
There needs to be a decision.
That decision needs to be made in accordance with the Agreement.
That decision needs to be to terminate employment.
In these circumstances, the decision will not be subject to further review or dispute pursuant to the dispute settling procedure in clause 50 of the Agreement. That is not to say that an employee is not without recourse to other heads of jurisdiction outside of s.739 of the Act and the Agreement in relation to termination of employment.
In considering whether the Commission’s jurisdiction under s.739 is limited by clause 50.10 in relation to the present matter, I need to identify what the dispute is about.
As I have noted in the background facts to the matter above, the dispute has arisen following the Decision, that is, the Applicant’s selection for redundancy by the Respondent.
The Applicant received a Redundancy Notice from the Respondent on 25 June 2021. In my view, the fact that all four options set out in the Redundancy Notice contemplated that the Applicant’s employment would come to an end is indicative that the Respondent had, at the time of issuing the Redundancy Notice, made a decision to terminate the Applicant’s employment by reason of redundancy.
It is clear to me that:
the Respondent made a decision; and
the decision was to terminate the employment of the Applicant.
This takes me to the question of what the dispute before me is actually about.
During the Hearing, the Applicant, aware of the Respondent’s jurisdictional objection, submitted that it is the process of ranking the employees that he is challenging and that that process did not comply with the Agreement and Policy. The Applicant submitted that this process was quite separate from the decision made by the Respondent regarding redundancy selection, having regard to the cost consequences.
The Applicant conceded that the consequence of the Respondent’s non-compliance with the Agreement and Policy did lead to the Applicant’s employment being terminated and that his termination is ‘infected’ by the non-compliance however submitted that the relevant decision that he is challenging is his ranking for redundancy as determined by the Assessment Committee. The Applicant submits that this is not a decision that relates to termination of employment and which is ‘carved out’ by clause 50.10 of the Agreement.
The Applicant’s response to the Respondent’s Decision to terminate his employment supports the proposition that the dispute is directly related to that decision. As I have noted above, on 3 September 2021, the Applicant wrote to the Respondent notifying it of a dispute pursuant to clause 50.3 of the Agreement. In this email, the Applicant stated:
“The dispute relates to the University’s non-adherence to clause 25.9 of the EA, which relevantly provides that:
The University will make Reasonable Adjustments for Staff with disabilities to enable them to perform their duties and participate fully in the University community.
Specifically, the dispute is that, in the course of selecting me for termination by reason of redundancy, the University failed to make reasonable adjustments given my disability to its assessment criteria and I will thus not be enabled to perform my duties and participate fully in the University community, because my employment is to be terminated.”
The letter goes on to set out the relief the Applicant was seeking as follows:
“For the reasons set out above, the resolution I am seeking to this dispute is that the University withdraw the termination of my employment for redundancy, given the process adopted involved a contravention of clause 25.9 of the EA” (emphasis added).
The Applicant’s Form F10 application to the Commission stated that the relief he is seeking is:
“A. a determination that, taking account of the Applicant’s disability, the Respondent failed to make reasonable adjustments for the Applicant to the assessment undertaken in June 2021;
B. a determination that the decision to terminate the Applicant’s employment by reason of redundancy was based upon an assessment undertaken in June 2021, in which the Respondent failed to make reasonable adjustments for the Applicant” (emphasis added).
It is apparent to me from the materials before the Commission that the Applicant understood that the Respondent had made a decision to terminate his employment. In my view, this assumption was a valid one, noting the contents of the Redundancy Notice and events that followed. It is also apparent to me that the Applicant was seeking to dispute that decision.
While the Assessment Committee’s ranking of individuals is one input that fed into the decision to terminate the Applicant’s employment by reason of redundancy, the assessment process and ranking cannot be divorced from the decision to terminate on the grounds of redundancy. The dispute would not be before the Commission but for the decision to terminate the Applicant’s employment. If the Applicant had been assigned a ranking that did not lead to his selection for redundancy, he may not have even become aware of that ranking and the consequence of that ranking would have no known impact on him. As noted above, the Final Implementation Plan foreshadowed that all assessments and rankings would be kept confidential to the Assessment Committee and senior members of the Human Resources team and would only be used for the purposes of undertaking the assessment and ranking process.[43]
I have set out above three conditions which would have the effect of limiting the Commission’s jurisdiction. It is clear to me that two of the three conditions have been met:
There is a decision.
The decision is to terminate employment.
In my view, this dispute arises as a direct consequence of that decision and would not be before the Commission otherwise.
This takes me to the remaining condition that would need to be met in order to give rise to a limitation of the Commission’s jurisdiction in this matter, i.e. that the decision needed to be made in accordance with the Agreement.
I accept that both clause 50.10 of the Agreement and the words ‘in accordance with this Agreement’ have work to do and that if a decision regarding termination is not in accordance with the Agreement, it is a dispute about which the Commission may have jurisdiction.
As noted above, the Applicant submitted that clause 50.10 refers to decisions ‘in accordance with this Agreement’ to terminate employment and that the dispute arises in the context of a redundancy that was not in accordance with Agreement and as such, the jurisdiction of the Commission is not limited by the clause.
The Respondent submitted that clause 50.10 identifies an exclusion from the dispute resolution process in clause 50 when:
· the decision is to termination employment (broad interpretation); and or
· at least when the applicant has a review mechanism, like in clauses 45.21 to 45.26 of the Agreement (narrower interpretation).[44]
The Respondent submitted that the words ‘in accordance with’ do not otherwise limit the application of this exclusion and that these words can have different meanings. The Respondent submitted that, in the context of the Agreement as a whole, it is to be read as covering any action taken under the Agreement, whether strictly conforming to it or not.[45]
I accept that the reference to the words ‘in accordance with’ can give rise to contested interpretations, as evident in the matter before me. The resolution of a dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose. As noted above, context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.[46]
The Agreement sets out detailed provisions regarding termination of employment, as well as procedures for managing performance and conduct, which may result in the decision to terminate an employee’s employment. For example, clause 46 of the Agreement deals with ‘Unsatisfactory Performance’, clause 47 of the Agreement deals with ‘Misconduct and Serious Misconduct’ and clause 48 of the Agreement deals with ‘Research Misconduct’. Each of these clauses sets out detailed escalation processes that need to be followed before a decision to take disciplinary action is made.
The Respondent also points to clause 13, dealing with probation, as providing contextual support. This clause sets out an appeal process in relation to decisions to terminate employment.[47]
The Respondent submitted that where there is a termination of employment these provisions recognise:
· the decision of the Respondent is final (referencing clauses 13.21, 46.16, 47.31 and 48.19); and
· the right to challenge any dismissal externally in a court or tribunal such as by making an unfair dismissal or unlawful termination claim (referencing clauses 13.21, 47.31 and 48.19).[48]
The Respondent submitted that these provisions, against the backdrop of elaborate processes and review, support the existence of clause 50.10 being interpreted as excluding decisions in relation to termination of employment from further review or dispute under the clause 50 dispute resolution process.[49]
Clause 45 of the Agreement deals with ‘Redundancy, Redeployment and Retrenchment’ and is relevant in the context of the current matter. Clause 45.21 of the Agreement provides employees with the right to seek a review of the decision to declare their position redundant and in these circumstances a Redundancy Review Committee is required to be established. That committee is required to review documentation relevant to the decision and report in accordance with clause 45.23 of the Agreement. Following the review processes set out in clauses 45.21 to 45.25 of the Agreement, clause 45.26 provides that the Deputy Vice-Chancellor may:
· confirm that the redundancy and retrenchment will proceed as advised; or
· request that the Executive Dean reconsider the criteria used to identify the redundancy positions; and/or
· review the employees chosen for retrenchment.
The decision to terminate the Applicant’s employment was a result of a detailed and protracted process and was also the subject of an internal review mechanism as set out in clause 45 of the Agreement. The considerable time it took to conclude the review of the decision to terminate the Applicant by way of redundancy is unfortunate. However, the Respondent ultimately completed the review and advised the Applicant of the outcome on 17 December 2021 when Professor Pretorius, Deputy Vice-Chancellor of the Respondent, wrote to the Applicant informing him that he found no ground to alter the decision.
I find that the decision made by the Respondent was a decision made in accordance with the Agreement, specifically a decision to terminate the Applicant’s employment by reason of redundancy in accordance with section 45 of the Agreement, and that the context of clause 45 and the Agreement as a whole supports this finding. Even if there had been a breach of clause 25.9 of the Agreement or the Policy as the Applicant contends, this would not, in my view, prevent the decision made to terminate the Applicant’s employment by reason of redundancy from being a decision within the meaning of clause 50.10 of the Agreement. As I have found earlier, it is this decision to which the dispute relates.
By way of summary, I find that:
the Respondent has made a decision;
that decision was to terminate the Applicant’s employment by reason of redundancy; and
the decision was made in accordance with the Agreement
In these circumstances, I find that clause 50.10 of the Agreement sets out a limitation on the Commission’s jurisdiction under s.739 of the Act.
Conclusion
For the reasons set out in this decision, I find the dispute is not one that falls within clause 50 of the Agreement and the Commission has no authority to arbitrate it. The jurisdictional objection is upheld. On 30 December 2021, I issued an order dismissing the application on this basis.
COMMISSIONER
[1] Respondent, ‘Macquarie University Briefing and Consultation Paper: Proposed Framework for Academic Workplace Change in 2021’, filed 3 December 2021, 10.
[2] Respondent, ‘Final Implementation Plan Macquarie Business School’, filed 3 December 2021.
[3] Respondent, ‘Final Implementation Plan Macquarie Business School, Attachment 1 – Final Framework for Stage 2 – Comparative Performance Assessment’, filed 3 December 2021, 4-5.
[4] Ibid, 5.
[5] Ibid.
[6] Ibid.
[7] Ibid, 6.
[8] Ibid.
[9] Ibid, 7-8.
[10] Ibid, 8.
[11] Ms Justine Kay, ‘Final Committee meeting notes’, filed 3 December 2021.
[12] Respondent, ‘MQBS Selection for Redundancy Report’, filed 3 December 2021, 3.
[13] Ibid, 4.
[14] Ibid, 16.
[15] Respondent, ‘Outline of Submissions’, filed 3 December 2021, [16].
[16] Ibid, [17].
[17] Applicant, ‘Outline of Submissions for the Applicant’, filed 19 November 2021, [14].
[18] Ibid, [18].
[19] Ibid, [16].
[20] Ibid.
[21] Ibid, [32].
[22] Ibid, [33].
[23] Ibid, [35].
[24] Ibid, [37].
[25] Ibid, [38].
[26] Statement of Professor Eric Knight, filed 3 December 2021, [47].
[27] Applicant, ‘Outline of Submissions for the Applicant’, filed 19 November 2021, [22].
[28] Ibid, [26].
[29] Respondent, ‘Outline of Submissions’, filed 3 December 2021, [6]; Statement of Professor Eric Knight, filed 3 December 2021, [48].
[30] Respondent, ‘Outline of Submissions’, filed 3 December 2021, [6].
[31] Ibid, [8].
[32] Ibid, [9.3].
[33] Ibid, [9.4].
[34] Ibid, [10].
[35] Ibid, [9.5].
[36] Ibid, [9.6].
[37] Ibid, [10].
[38] Ibid, [9.2].
[39] Ibid, [10].
[40] [2017] FWCFB 3005.
[41] [2014] FWCFB 7447.
[42] [2017] FWCFB 3005 at [114].
[43] Respondent, ‘Final Implementation Plan Macquarie Business School, Attachment 1 – Final Framework for Stage 2 – Comparative Performance Assessment’, filed 3 December 2021, 8.
[44] Respondent, ‘Outline of Submissions’, filed 3 December 2021, [16].
[45] Ibid, [18].
[46] [2017] FWCFB 3005, [114], point 1.
[47] Respondent, ‘Outline of Submissions’, filed 3 December 2021, [29].
[48] Ibid, [31].
[49] Ibid, [32].
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