Remus-Andrei Paun v Monash University
[2022] FWC 2699
•12 OCTOBER 2022
| [2022] FWC 2699 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Remus-Andrei Paun
v
Monash University
(C2022/5237)
| COMMISSIONER BISSETT | MELBOURNE, 12 OCTOBER 2022 |
Alleged dispute about any matters arising under the enterprise agreement – jurisdictional objections – claim involves use of judicial powers – beyond power – failure to comply with dispute resolution procedure of Agreement – objection upheld – application dismissed
Dr Remus-Andrei Paun commenced his first engagement with Monash University (University) as a “sessional” (a casual academic staff member) in 2017. His most recent engagement with the University was in 2022. His letter of engagement indicated that his expected start date of availability was 27 February 2022 with an expected end date of 26 February 2023. His estimated hours of engagement were 6 hours per week. Dr Paun’s last time-sheet entry was 30 July 2022.[1]
In September 2021 the Vice-Chancellor of the University advised of a large number of teaching staff having been incorrectly paid for the period between 2014 and 2020. The National Tertiary Education Union (NTEU) notified a dispute to the University under clause 12 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2019 (Agreement) and sought, through that notification, immediate repayment of identified underpayments in full (November 2021 dispute). The NTEU then sought that the matter be referred to a Disputes Committee under clause 12.2 of the Agreement. Following the Disputes Committee, the University wrote to the NTEU in March 2022 and advised that it was committed to complying with its industrial obligations to pay staff correctly. The University also advised the NTEU that if the NTEU wished to raise any specific underpayments it should do so. In April 2022 the NTEU commenced raising specific instances of underpayments for its members.[2]
On 28 February 2022 Dr Paun lodged a pay review request through the University’s pay inquiry system[3]. In that request Dr Paun advised that he considered clause 26.2 of the Agreement was breached with respect to the minimum 2 hour engagement per occasion.[4] Ms Irene Vidiniotis, Senior Workplace Relations Consultant with the University, sought further information from Dr Paun and there were exchanges between them up until 6 April 2022.[5]
On 11 March 2022 Dr Paun emailed the University’s HR email and made an inquiry regarding the provision of detailed description of his duties.
On 10 April 2022 Dr Paun made a further pay inquiry in relation to the rates of pay applicable to “laboratories and practicals” in relation to “other required academic activity” (ORAA)[6] as used in clause 16.12 and Schedule 3 of the Agreement.
On 11 April 2022 Dr Paun emailed the University’s HR email and said “Hello. I would like to raise a dispute”. The issues he specifically identified were:
· The failure of the University to send to him, in an official document, his general duties and responsibilities as a casual employee;[7]
· The provision of a spreadsheet showing “every hour worked and every dollar received” by him from the University.[8]
A meeting pursuant to clause 12.1 (dispute resolution procedure) of the Agreement was arranged with Dr Paun in relation to the dispute he had raised on 11 April 2022. This meeting was held on 27 April 2022. At that meeting Dr Paun confirmed the two issues set out above were the matters in dispute. With respect to the first issue (which arises under clause 16.2 of the Agreement) Dr Paun was advised that the University considered it had met its obligations under the Agreement. In relation to the second issue, Dr Paun was advised that it was not a matter to which clause 12 of the Agreement applied so it could not be addressed at the meeting.
On 28 April 2022 Dr Paun emailed Ms Vidiniotis and said she should still be looking into “violations of clause 26.2 [of the Agreement] regarding minimum engagement…”. On 2 May 2022 Dr Eltham of the NTEU made a pay inquiry in relation to Dr Paun. Dr Eltham sought a meeting to discuss the matter Dr Paun had raised. Ms Vidiniotis replied to each of these emails on 5 May 2022.
Ms Vidiniotis responded to Dr Paun’s email of 10 April 2022 and confirmed that the laboratory work was also appropriately paid for under ORAA rate of pay specified in Schedule 2 of the Agreement. Dr Paun replied to this and indicated that Ms Vidiniotis was right but, in his view, what was needed was a “list of all activities that can be performed by a casual academic.”
On 13 May 2022 Dr Paun sent a further email in relation to his pay. Between 20 and 25 May 2022 there was an exchange between Dr Paun and Ms Vidiniotis regarding the pay review.
A meeting was held between Dr Paun, Dr Eltham and Ms Vidiniotis on 10 June 2022 to discuss the outcome of the pay review inquiries. Several distinct matters were considered including the interpretation of clause 26.2 of the Agreement with respect to the 2 hour minimum engagement, whether Dr Paun should be paid for certain work at the ORAA rate or the lecturer rate, a request for overtime payments and payments for marking and a general lack of satisfaction of Dr Paun in relation to a tutorial review outcome in late 2021.
On 15 June 2022 Dr Paun wrote to Ms Vidiniotis and requested that all work of under 2 hours per engagement be reviewed restating his view that the 2 hour minimum engagement applied regardless of whether he was required to physically attend the University campus to undertake the work.
Following further correspondence from Dr Eltham a further meeting was held with Dr Paun and Dr Eltham on 1 July 2022. At this meeting Dr Paun withdrew his claim in relation to payments for marking. Dr Paun was advised he was properly paid at the ORAA rates for laboratory (which he accepted) and workshops (which he continued to dispute). Dr Paun agreed to provide further information in relation to incidences when he considered he was not correctly paid under clause 26.2 of the Agreement in relation to the minimum engagement.’
There were further exchanges of emails between Dr Paun and Ms Vidiniotis between 1 and 15 July 2022. These emails primarily dealt with the 2 hour minimum engagement provision at clause 26.2 of the Agreement. The final email from Ms Vidiniotis on 15 July 2022 covered three matters – clause 26.2 of the Agreement and the 2 hour minimum engagement, the “tutorial review project” and “BMS1031 and PHS1031” in relation to whether the work on these should be paid at the ORAA rate or a different rate.
On 26 July 2022 Dr Paun wrote to Ms Vidiniotis in reply to her email of 15 July 2022. In that email he said:
Thank you for summing all my queries.
I believe that since we did not reach a conclusion, we should move to resolve the matter with Fair Work.
If I am not mistaken, we convened twice regarding this pay review. I am invoking clause 12.3 of the Enterprise Business Agreement.[9]
Ms Vidiniotis replied that the meetings on these matters had not been held under clause 12 Dispute Resolution Procedure of the Agreement. This resulted in Dr Eltham’s email of 27 July 2022 in which he said that the NTEU had written to the University on Dr Paun’s behalf in accordance with the encouragement given in the correspondence from the University in relation to the outcome of the November 2021 dispute.
On 25 July 2022 Dr Paun notified a dispute to the Commission pursuant to s.739 of the Fair Work Act 2009 (FW Act) in which he sought relief of “proper pay” and back pay for all hours, proper implementation of clauses 16.2, 16.12, 16.13 and 26.2 of the Agreement and compensation for using his own equipment where the necessary equipment was not provided to him by the University.
Following a conciliation with the parties to the dispute, Dr Paun advised that he wished to pursue the dispute to arbitration and clarified the matters that he wished to pursue. In an email to the Commission on 22 August 2022 Dr Paun said:
My dispute contains the following topics, which have been raised with Monash University during the dispute process as well as during the [conference] meeting on the 10th August with the Commission:
(a)Roles and responsibilities are not clearly defined for Teaching Associates which leads to underpayment by miscategorising activities that are teaching (e.g. laboratories, lectures (sic), lectorials, tutorials) as other required activities or by providing Teaching Associates with ‘Lead’ responsibilities without any increase in pay.
I have shared with Monash University a detailed breakdown of all the activities I identified in this category and requested review of the pay.
(b)Compliance with Clause 26.2 “A Teaching Associate staff member must be engaged and paid for a minimum period of two hours per occasion they are required to attend work by the University, inclusive of any incorporated time and payment for preparation or associated working time already provided for or assumed to be included in the rates table in Schedule 2 or in the descriptors in Schedule 3.”
I have shared with Monash University a detailed breakdown of all the activities I identified in this category and requested review of the pay. Monash has rejected my claim and stated that this applies to on site attendance and not to online work.
Please note that this is a subjective interpretation of the clause to which I do not agree. Online work is not clearly defined in the EBA which mentions that online teaching will be governed by University Policy. No University policy was communicated to me in regards to this topic.
(c)Compliance with Clause 16.3 The University will provide Teaching Associate staff with the facilities and resources appropriate to enable the fulfilment of their duties.
During my employment with Monash I did not proactively receive electronic devices to conduct my work, including when required to work from home during lockdowns and was required to use my own equipment.
Therefore I reiterate my request of receiving compensation for all the aforementioned underpayments.
Please note, my sessional employment agreement with Monash University is still active but I have decided not to accept work from them. My decision is a result of years of underpayment as well as bullying from a senior academic that has not been resolved.
The employment model for sessional academics requires a yearly contract with the University which does not guarantee work. Work is assigned at the start of each semester at School or Department level.[10]
In Dr Paun’s written submissions filed in relation to the matter currently before the Commission Dr Paun says that he seeks arbitration on:
· Determination on whether the activities delivered by the applicant during his employment as a Teaching Associate within the School of Physics and Astronomy are in accordance with the definitions given by the Monash Enterprise Business Agreement 2019;
· Determination on whether clauses 16.2, 16.12, 16.13, 26.2, Schedule 2 and Schedule 3 were applied in accordance with their definitions as set by the Monash Enterprise Agreement 2019;
· Determination on the applicant’s request in relation to appropriate pay rates for the work delivered during laboratory and workshop activities should have been remunerated accordingly based on the type of work and the implications of that work.
JURISDICTIONAL OBJECTION
Dr Paun seeks arbitration of the matters on which he claims to be in dispute with the University. The University objects to arbitration of the dispute on the basis that it says the Commission does not have jurisdiction to do so for two reasons:
1. First, the substance of the dispute the Applicant brings to this Commission is a claim for remedies in the nature of compensation, or declarations as to his entitlement to compensation, arising from past events on his interpretation of the 2019 Agreement. The University submits either remedy involves the Commission impermissibly in the exercise of judicial, not arbitral, power. As the Commission is not a court invested with judicial power under Ch III of the Constitution, it is unable to resolve the dispute in terms.
2. Second, the Applicant had not exhausted the process under cl 12 of the 2019 Agreement in relation to the matters that are the subject of his dispute with the University prior to bringing this application to the Commission. This is because no request in terms was made to convene a Disputes Committee (under cl 12.2), and no Disputes Committee was so convened in any event (under cl 12.3). If this is accepted, it follows that the Applicant is precluded from bringing any dispute to the Commission by reason of the limitation in cl 12.4(d) of the 2019 Agreement. Put another way, the power of the Commission under s 739(4) of the Act is not relevantly enlivened.[11]
In making its objection the University relies on Dr Paun’s advice to the Commission of 22 August 2022 of those matters on which he sought a determination.
THE AGREEMENT
Dr Paun raises a number of issues in his dispute and in his written submissions. For completeness I have included the relevant clauses.
Clause 12 of the Agreement is in relation to the dispute resolution procedure:
12. DISPUTE RESOLUTION PROCEDURE
12.1 A staff member or any Party bound by this Agreement may raise a dispute:
(a)as to the application of this Agreement or any matters arising from it; or
(b)in relation to the National Employment Standards other than a dispute about whether an employer had reasonable business grounds under subsection 65(5) of the Fair Work Act 2009; or
(c)which this Agreement expressly and additionally provides may be referred to this procedure.
In the first instance, the staff member or an accredited representative(s) of the staff member or Party notifying the dispute and the appropriate representative(s) of management, or the other respondent Party as applicable, shall discuss the dispute and attempt to reach agreement within two weeks of the dispute first being raised.
12.2Where a dispute is not resolved under clause 12.1 above, at the request of either party, a Disputes Committee shall be convened within five working days unless agreed otherwise. The Disputes Committee shall consist of:
(a)two management nominees; and
(b)two nominees of the President of Monash University NTEU Branch.
12.3The Disputes Committee shall convene within five working days of the matter being referred to it and shall attempt to resolve the matter within five working days of its first meeting. Unless otherwise agreed in writing between the parties, if the Disputes Committee does not convene within five working days the matter shall be regarded as unresolved and the procedures in 12.1 to 12.3 as having been exhausted. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by either party.
12.4 Until the procedures described in 12.1-12.3 above have been exhausted:
(a)work shall continue in the normal manner; and
(b)no industrial action shall be taken by any party to the dispute or any other party bound by this Agreement; and
(c)management shall 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; and
(d)the subject matter of the dispute shall not be taken to the Fair Work Commission by any party to the dispute or any other party bound by this Agreement.
12.5Should the dispute not be resolved by the processes referred to in 12.1-12.3 above, the matter may be referred to the Fair Work Commission for conciliation or arbitration by either party in which case the parties shall be bound (subject to the right to appeal or to seek judicial review) by any recommendation or decision of the Fair Work Commission.
12.6If the dispute relates to an alleged ambiguity or uncertainty in this Agreement any party may at any time apply for variation of the Agreement to eliminate the alleged uncertainty or ambiguity.
Clause 16 of the Agreement is in relation to mode of employment. At clause 16.2, 16.12 and 16.13 the Agreement says, as is relevant to Dr Paun’s employment:
16. MODE OF EMPLOYMENT
16.2Upon engagement, the University will provide the staff member with an instrument of appointment which stipulates the type of employment and the terms of the engagement including:
· …
· for sessional and casual staff members, the duties required, the number of hours required or anticipated (where known), the rate of pay for each class of duty required and a statement that any additional duties required during the term will be paid for;…
Sessional Employment (Academic Staff only)
16.12 “Sessional employment” means the casual employment of academic Teaching Associate staff who are appointed to undertake a single or specific number of sessions related to demonstrating, tutoring, lecturing, marking, supervision, academic research assistance, music accompanying with special educational service, undergraduate clinical nurse education or other required academic activity. “Teaching Associate staff” are academic staff employed in sessional employment.
16.13 The University will provide Teaching Associate staff with the facilities and resources appropriate to enable the fulfilment of their duties…
Clause 26 is in relation to the payment of salaries and deductions. As is relevant to the current dispute, clause 26.2 is in relation to Teaching associate staff members as follows:
26.PAYMENT OF SALARIES AND DEDUCTIONS
26.2 A Teaching Associate staff member will be paid within 22 days of submitting a completed valid claim for payment to the appropriate representative, as identified by the University to the Teaching Associate staff member.
A Teaching Associate staff member must be engaged and paid for a minimum period of two hours per occasion they are required to attend work by the University, inclusive of any incorporated time and payment for preparation or associated working time already provided for or assumed to be included in the rates table in Schedule 2 or in the descriptors in Schedule 3.
Schedule 2 of the Agreement sets out Teaching Associate sessional rates and casual academic research assistant rates of pay. Schedule 3 contains the Teaching Associate sessional rates descriptors. Clause 7 of Schedule 3 provides as follows:
7. OTHER REQUIRED ACADEMIC ACTIVITY
“Other required academic activity” includes work that the University requires a Teaching Associate staff member to perform and that is performed as required, being work of the following nature:
· the conduct of practical classes, demonstrations, workshops, student field excursions;
· the conduct of clinical sessions other than clinical nurse education;
· the conduct of performance and visual art studio sessions;
· musical coaching, repetiteurship, and musical accompanying other than with special educational service;
· development of teaching and subject materials such as the preparation of subject guides and reading lists and basic activities associated with subject co-ordination;
· consultation with students (other than as contemporaneous consultation for a tutorial or lecture);
· attendance at departmental and faculty meetings as required; and
· attendance at any of the activities set out in 1-4 above of this Schedule as directed.
The above list is not intended to be exhaustive, but is provided by way of examples and guidance.
SUBMISSIONS AND EVIDENCE
Evidence of Irene Vidiniotis
Ms Vidiniotis gave evidence as to the various meetings and correspondence between her office, Dr Paun and Dr Eltham of the NTEU. That background is set out above.
The evidence of Ms Vidiniotis is that Dr Paun’s email of 11 April 2022 specifically raised issues pursuant to the dispute resolution procedure at clause 12 of the Agreement. Ms Vidiniotis gave evidence that, a meeting was held on 27 April 2022 in relation to the issues raised in the 11 April 2022 email. Ms Vidiniotis confirmed with Dr Paun that the meeting was occurring pursuant to clause 12.1 of the Agreement and that the second issue Dr Paun raised (information on every dollar paid and every hour worked) was not a matter that arose under clause 12 of the Agreement and therefore, could not be addressed at the meeting.
Ms Vidiniotis also gave evidence as to the means by which Dr Paun’s queries with respect to aspects of his pay (including the 2 hour minimum engagement issue under clause 26.2 of the Agreement) came about.
Evidence of Dr Paun
Dr Paun’s evidence is that he has complied with the requirements of the dispute resolution procedure. He agreed that, after notifying the University of a dispute pursuant to clause 12.1 of the Agreement on 11 April 2022 he had three meetings with the University – the first on 27 April 2022, the second on 10 June 2022 and the last meeting on 1 July 2022 – before he notified a dispute to the Commission.
Dr Paun agreed that he did not specifically ask for, either orally or in writing, the convening of a disputes committee pursuant to clause 12.2 of the Agreement.[12] However, it is his evidence that the meetings he did have with the University spanned the breadth of requirements in clause 12 as necessary prior to the referral of a matter to the Commission.[13]
Dr Paun gave evidence that
…All the meetings that I had with the University, starting from the duties and responsibilities and that document that I requested about how my back-pay was processed. All the pay review meetings, they are interconnected; all of them. They spawn from the lack of understanding that I have about how certain procedures were implemented, how payment was attributed to certain employees, and how certain, let’s say certain clauses of the enterprise agreement apply to employees.[14]
Dr Paun’s evidence is that the Respondent did refuse to meet with him under clause 12.3 of the Agreement when he requested such in an email to Ms Vidiniotis on 26 July 2022. In cross examination Dr Paun agreed that Ms Vidiniotis had, in her reply of 27 April 2022, advised that the meetings held with Dr Paun in relation to his pay review matters were not held under clause 12 of the Agreement[15] however said that his interpretation of the email from Ms Vidiniotis was that she “refused to meet under clause 12” and it was his interpretation that she refused to convene a disputes committee.[16]
Dr Paun agreed that what he was seeking from the Commission was:
· a determination of whether the activities he delivered as a teaching Associate were in accordance with the definition in the Agreement
· a Determination of whether the University has applied in accordance with their definitions
· a Determination of his request in relation to appropriate pay rates for laboratory and workshop activities[17]
While Dr Paun gave evidence that he was aware (after having been advised by the Commission) that the Commission cannot rule as to whether he is entitled to compensation,[18] he was asking for a declaration of what he should have been paid.[19] In this respect he says that the three meetings he had with the University after 11 April 2022 were primarily about back pay and how his payments had been calculated and that what he was seeking to progress was his claim that he had been underpaid by reference to the Agreement.[20]
Dr Paun gave evidence that his “contract with the University is still going” but that he “did not accept work [from] the University this Semester”.[21]
Submissions of Monash University
The University submits that the Commission does not have jurisdiction to hear the dispute as notified by Dr Paun. It advances this position on two grounds.
First the University says that what is sought by Dr Paun of the Commission is a determination of compensation due to him or declarations as to his entitlement to this compensation arising from past events (for example the work he says he performed over a number of past years). Such an exercise is in its nature the exercise of judicial powers which are beyond the power of the Commission.
On either approach the University submits that Dr Paun seeks from his application a remedy that quantifies and/or orders payment in relation to existing rights under the Agreement by reference past circumstances. Dr Paun does not seek that the Commission determine future rights.
The University submits that the Commission does not have the power to determine or enforce a claim for payment under the Agreement. Further, the University submits that Dr Paun seeks to resolve a past dispute on his interpretation of the Agreement.
Second the University submits that Dr Paun has failed to comply with the requirements of the dispute resolution procedure of the Agreement prior to notifying his dispute to the Commission. In this respect the University submits that Dr Paun failed to refer his dispute to the disputes committee pursuant to clause 12.2 of the Agreement. The University submits that it is not necessary to engage in whether the matters discussed at the meetings held with Dr Paun on and from July 2022 were meetings held in accordance with clause 12 of the Agreement because, even if they were, Dr Paun has not complied with clause 12.2 of the Agreement.
To the extent that Dr Paun says he is engaged in the NTEU November 2021 dispute, the University submits that Dr Paun was not a party to that dispute. The dispute resolution procedure allows a “staff member or any Party bound by the Agreement” to raise a dispute.[22] “Parties” are defined in the Agreement as the University and the NTEU (and any other relevant union). Staff members are separately defined and are not a “Party” as defined. The dispute notified by the NTEU is therefore not a dispute notification that encompassed Dr Paun.
Submissions of Dr Paun
Dr Paun submits that he has an ongoing dispute with the University in relation to minimum engagement period (pursuant to clause 26.2 of the Agreement), matters arising from the tutorial review project and in relation to the mischaracterisation of some work as falling within the ORAA and being paid, therefore, at the incorrect rate.[23] Dr Paun considers that “the initiation of the dispute requested on the 11th April 2022 and the embedded pay review requests as well as the follow up meetings form part of the ongoing dispute under clause 12 of the Monash Enterprise Agreement”.
Dr Paun says that he requested of the University, but was refused and/or it was incomplete, documentation in relation to the calculation of his back pay and his timesheet records.
Dr Paun also says that he does not feel safe at work as he has been subject to bullying at work.[24]
Dr Paun submits that on 26 July 2022 he requested that the disputes committee be convened pursuant to clause 12.3 of the Agreement and that, when he did so, Ms Vidiniotis “denied” the meeting and said that the process [of meetings] was not treated as a dispute under clause 12 of the Agreement. He submits that, as an agreement was not reached on convening the clause 12.3 disputes committee, he has submitted his matters to the Commission.
Dr Paun made no submissions in relation to the submissions of the University that the Commission lacks jurisdiction as the Applicant is seeking the exercise of a judicial, not arbitral, function.
Dr Paun was employed subject to a contract with the University and that the contract does not expire until the end of 2022. Dr Paun says that, despite the fact that he has indicated he will not accept any further work from the University, he is still employed by the University.
CONSIDERATION
There are three issues that Dr Paun says are in dispute. I am satisfied that what Dr Paun seeks from the Commission on these – reiterated in his submissions and his evidence – is a declaration from the Commission that he is entitled to certain payments for time worked (the 2 hour minimum engagement), a re-characterisation of some of the work he undertook (so that it be paid at a rate above the ORAA rate) and compensation in lieu of the provision of equipment for the period where the necessary equipment was not provided to him by the University.
In effect Dr Paun asks the Commission to determine his past entitlements based on his interpretation of the Agreement and either order the University pay such entitlements or declare he has a right to such entitlements.
The Commission can only reach a view as to past rights if it is a step on the path of determining future rights. What Dr Paun is seeing form the Commission is something the Commission does not have the power to do.
A proper approach is to bring a dispute to the Commission in relation to the minimum engagement for example so the Commission might, certainly by reference to past conduct, determine how that provision should be applied in the future. To the extent that matter might raise issues about past entitlements those are matter more properly pursued in the court of competent jurisdiction (the Commission not being, for such a purpose, a court).
I am therefore satisfied that the Commission does not have jurisdiction to deal with the dispute raised by Dr Paun because to do so would involve the exercise of judicial and not arbitral powers.
If I am wrong on that matter, I am also satisfied that I do not have jurisdiction to deal with the dispute as Dr Paun has not complied with the dispute resolution procedure of the Agreement prior to the notification of his dispute to the Commission.
The dispute resolution procedure is clear. The right to notify a dispute to the Commission is conditioned by the dispute not being resolved “by the processes referred to in 12.1-12.3” of the Agreement. That is, attempts to resolve the dispute under 12.1-12.3 of the Agreement must have been unsuccessful prior to a notification to the Commission. It follows therefore that each of the steps in 12.1-12.3 of the Agreement must be tried and have failed prior to notification.
I do not accept – to the extent Dr Paun argues it – that he can rely on the November 2021 dispute and suggest that, because that dispute has been to the disputes committee, the dispute he raises has also done so.
I have reached this conclusion for a number of reasons. Firstly, there are matters raised by Dr Paun that do not go to the underpayments identified by the University. Second, even those matters in which Dr Paun was in dispute with the University that he now seeks the Commission to determine that do go to his claim of underpayments do not, on the evidence before the Commission, apparently stem from the underpayments issue or from the November 2021 dispute as notified to the University by the NTEU. Third, even if I accept that the expanded matters discussed at the meeting between Dr Paun, the NTEU and the University on 10 June 2022[25] were the subject of the clause 12 dispute notified by Dr Paun or by the NTEU in the November 2021 dispute, I cannot be satisfied, on the evidence before me, that any of those matters were subject to a disputes committee process.
In addition, Dr Paun said that he did request a meeting with the University under clause 12.3 of the Agreement, but that this request was refused by Ms Vidiniotis. A review of the email chain in relation to this does not show that Ms Vidiniotis refused the meeting. Instead, it shows that on 26 July 2022 Dr Paun acknowledged the three matters summarised by Ms Vidiniotis and then said “we should move to resolve the matter with the Fair Work (sic). If I am not mistaken, we convened twice regarding this pay review. I am invoking clause 12.3 of the Enterprise Business Agreement (sic).”
Ms Vidiniotis (under her previous name) replied on 27 July 2022 and said “I write to inform you that the meetings that we had were not held under Clause 12 Dispute Resolution Procedure.”
Ms Vidiniotis did not, in this email, refuse to call a Disputes Committee pursuant to clause 12.3 of the Agreement but rather raised an issue (to which Dr Paun did not respond) which she considered a bar to proceeding down the path Dr Paun sought. In any event Dr Paun already had on 25 July 2022 and before he corresponded with the University, notified his dispute to the Commission pursuant to clause 12.5 of the Agreement. Dr Paun has not remediated this sequence of events. He therefore has not complied the dispute resolution procedure prior to notifying his dispute to the Commission.
I would also note that, while clauses 12.2 and 12.3 of the Agreement both deal with the convening of the Disputes Committee, it is not apparent what Dr Paun was asking for in his request to Ms Vidiniotis. He requested removal of the matter to the Commission which strongly suggests he was not requesting that a Disputes Committee be convened in accordance with the dispute resolution procedure.
Dr Paun argues that all of the meetings he had with the University covered the steps required to be taken in clause 12.1-12.3 of the Agreement such that his notification to the Commission is properly made and his matters are within jurisdiction.
I do not accept this characterisation of what has taken place between Dr Paun and the University if, for no other reason, the Disputes Committee convened in accordance with clause 12.1 of the Agreement requires that it be constituted by two nominees of the NTEU and two nominees of the University. The evidence before the Commission does not allow me to conclude that such nominees were ever sought.
I would also observe that the Disputes Committee convened following the November 2021 dispute notified by the NTEU could not have dealt with the matters raised by Dr Paun because that disputes committee completed its task in March 2022. In any event I do not have detail of the dispute notified by the NTEU and therefore I cannot conclude that it went to those matters raised by Dr Paun.
As to Dr Paun’s particular claims I would note the following:
· the Commission does not have the power to award a payment to a person covered by the Agreement who may not have received some other entitlement under the agreement, in this case not being provided with the equipment/resources that the Agreement suggests should be provided.
· There is no ambiguity in the Agreement in relation to what may be subject to the ORAA rates. Clause 7 of Schedule 3 provides a number of matters that come within ORAA but makes clear that this list is not exhaustive. Likewise, clause 16.12 is not definitive of what is and is not ORAA although provides some guidance. For this reason, on its face, Dr Paun could not succeed on this matter.
· In relation to the minimum payment of two hours per occasion I do not consider it reasonable to express a view on that matter as the clause clearly has a history and some complexities. For the reasons given above however I do not need to express a concluded view.
Dr Paun has also made claims in relation to bullying at work. His submissions filed in accordance with the Directions is the first time bullying has been raised with the Commission. It was not included in his Form F10 notification to the Commission and it is not clear if it is a matter that arises under the Agreement.
For the reasons set out above the application by Dr Paun for the Commission to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 is dismissed on the grounds that the Commission lacks jurisdiction to deal with the matter.
COMMISSIONER
Appearances:
R. Paun on his own behalf
C. McDermott of Counsel for the Respondent
Hearing details:
2022.
Melbourne
September 22
Printed by authority of the Commonwealth Government Printer
<PR746594>
[1] Witness statement of Irene Vidiniotis, paragraph 12
[2] Witness statement of Irene Vidiniotis, attachment IV-23
[3] This is done by email to [email protected]
[4] Witness statement of Irene Vidiniotis, attachment IV-4
[5] Witness statement of Irene Vidiniotis, paragraph 21
[6] Witness statement of Irene Vidiniotis, attachment IV-7
[7] This issue arises under clause 16.2 of the Agreement
[8] Witness statement of Irene Vidiniotis, attachment IV-8
[9] Witness statement of Irene Vidiniotis, attachment IV-23
[10] Exhibit R2, page 7
[11] Monash University submissions, 14 September 2022, paragraph 5
[12] Transcript PN133
[13] See transcript PN129, PN130 –PN137
[14] Transcript PN105
[15] Witness statement of Irene Vidiniotis, attachment IV-23
[16] Transcript PN229 – PN230
[17] Transcript PN235 – PN239. See also Dr Paun’s submissions, 23 September 2022, pages 1- 2
[18] Transcript PN243
[19] Transcript PN246
[20] Transcript PN248 and PN252
[21] Transcript PN263
[22] Clause 12.1 of the Agreement
[23] Submissions of Dr Paun, 23 September 2022, annexure 4. See also witness statement of Irene Vidiniotis, attachment IV23
[24] Submissions of Dr Paun, 23 September 2022, page 5
[25] Witness statement of Irene Vidiniotis, paragraph 41
Printed by authority of the Commonwealth Government Printer
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