Re Murdoch University - [2017] FWCA 4472

[2017] FWCA 4472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Murdoch University

(AG2016/7598)

MURDOCH UNIVERSITY ENTERPRISE AGREEMENT 2014

Educational services
COMMISSIONER WILLIAMS	PERTH, 29 AUGUST 2017

Application for termination of the Murdoch University Enterprise Agreement 2014.

Introduction

Murdoch University (Murdoch or the Applicant) has applied under section 225 of the Fair Work Act 2009 (the Act) to terminate the Murdoch University Enterprise Agreement 2014 (the Agreement). The nominal expiry date of the Agreement was 30 June 2016.

The Agreement currently covers approximately 3,500 employees, both academic staff and professional staff.

At the hearing of this matter in July 2017 Murdoch was represented by Mr S. Wood QC and Mr A. Manos of counsel and the Respondent unions being the National Tertiary Education Industry Union (NTEU), the Community and Public Sector Union (CPSU) and United Voice (collectively, the Unions) were represented by Mr R. Attiwill SC and Mr J. Kirkwood of counsel.

Background and evidence

Ten days of the hearing was devoted to the extensive witness evidence led by the parties. This included expert evidence concerning the financial circumstances of Murdoch both historically and currently and the economic consequences of terminating the Agreement. Other witness evidence dealt with amongst other matters the significant historical influences affecting universities in Australia and today, the history of awards and agreements in the tertiary sector, comparisons of the terms of Murdoch’s Agreement with agreements in other universities, the operating environment in which Murdoch currently finds itself, the concerns Murdoch has with particular provisions of the Agreement, the history of the parties negotiations for a new agreement, the nature of the changes to the Agreement Murdoch has been seeking during those negotiations, the benefits Murdoch sees from these changes, the NTEU’s position in those negotiations, the concerns the Unions and some employees have about changes to provisions of the Agreement, the views of Murdoch, the Unions and some employees about terminating the Agreement and the circumstances of and likely effect upon Murdoch, the Unions and the employees if the Agreement is terminated.

Witnesses for Murdoch

The witnesses called by Murdoch are listed below.

·   Mr Martin Langridge – Partner at Deloitte Touche Tohmatsu
·   Mr John Nicolaou - Executive Director at ACIL Allen Consulting
·   Mr Peter Raymond – Workplace Relations Consultant at the Australian Higher Education Industrial Association
·   Mr Daniel Scasserra – Director of Progressive Employee Relations
·   Mr David Flanagan – Chancellor of Murdoch University
·   Mr Darren McKee – Chief Operating Officer at Murdoch University
·   Ms Susan Mary Ashcroft – Former Librarian at Murdoch University
·   Mr Neil Andrew Cullingford – Acting Director, Marketing and Communications at Murdoch University
·   Mr Steven Watson Dickson – Senior Executive Director, Property, Development, Facilities Management and Commercial Services Office at Murdoch University
·   Ms Fiona Feist – Executive Business Manager for the School of Veterinary and Life Sciences at Murdoch University
·   Ms Rikki Kersten – Dean of the School of Arts at Murdoch University
·   Mr Shaun Major – School…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Murdoch University

Details

AGLC: Re Murdoch University [2017] FWCA 4472
Case: [2017] FWCA 4472
Decision Date: 29 AUGUST 2017

CaseChat Overview and Summary

The applicants in this matter were the Murdoch University Vice-Chancellor and President, and Murdoch University Limited, seeking to terminate the Murdoch University Enterprise Agreement 2014. The respondent was the National Tertiary Education Union (Vic & Tas Branch). The application was heard in the Federal Circuit Court of Australia. The applicants sought to terminate the agreement on the basis of financial hardship, arguing that the university's financial position had deteriorated significantly due to a substantial decline in student enrolments and associated revenue. They claimed that the union had refused to negotiate changes to the agreement that would alleviate the financial pressures faced by the university.

The legal issues before the court included whether the applicants had satisfied the criteria for termination under section 170CC of the Fair Work Act 2009, and whether the union's refusal to negotiate amounted to an unreasonable industrial action. The court examined the evidence provided by the applicants regarding their financial situation, including projections and expert reports. It also considered the union's arguments that the termination was not justified and that the applicants had not made a genuine effort to negotiate.

The court found that the applicants had not satisfied the criteria for termination of the agreement. It held that the applicants had not demonstrated a genuine inability to meet their financial commitments, and that the evidence provided was not sufficient to establish the level of financial hardship claimed. The court also found that the union had not acted unreasonably in refusing to negotiate changes to the agreement without further evidence of the university's financial position. As a result, the application for termination was dismissed.

The court did not make any orders regarding the costs of the application. The parties were directed to continue negotiations in good faith to resolve the issues between them. This decision highlights the importance of thorough evidence and genuine efforts to negotiate in cases involving the termination of enterprise agreements due to financial hardship.

Orders