Russell Proud v Monash University

[2018] FWC 2973

[2018] FWC 2973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Russell Proud
v
Monash University
(C2017/6530)

COMMISSIONER BISSETT MELBOURNE, 1 JUNE 2018

Application to deal with a dispute - jurisdictional objection – objection upheld - application dismissed.

[1] Mr Russell Proud has made an application to the Fair Work Commission (Commission) to deal with a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act) and in accordance with the provisions of the Monash University Enterprise Agreement (Academic and Professional Staff) 2014 1 (the 2014 Agreement). Mr Proud is employed by Monash University (Monash) in the Monash Academy of Performing Arts (MAPA). MAPA is responsible for managing the performing arts venues at Monash. Mr Proud manages and oversees all creative and technical services provided by MAPA.

Background

[2] Mr Proud was employed by Monash in MAPA in 2010 as Team Leader - Technical Services at classification HEW Level 6 (the first position description 2). In about 2014 he was appointed Manager, Technical Services for MAPA at classification HEW Level 7 (the second position description3), a position he still holds although with a slight variation to the duties and now named Technical Manager at classification HEW Level 7 (the third position description4).

[3] Mr Proud’s position requires him to liaise with hirers of venues, oversee rostering arrangements, manage occupational health and safety compliance and ensure technical equipment is maintained. MAPA venues operate both within and outside ordinary hours. Mr Proud would, from time to time, receive calls out of hours from staff hired to work in the venues. Those calls would go to staffing issues, paperwork and equipment failure or misplacements and calls from suppliers. He dealt with such issues by phone or, if necessary, attendance.

[4] Mr Proud says that he was entitled to be paid an on-call allowance for those periods of time that he was required to be available to take such calls from 2012 to 2016. He says that this entitlement arises from clause 28 of the 2014 Agreement. He seeks back-pay of “the on-call allowance the same as that offered to IT staff for all times that there is an event in one of the MAPA venues outside normal hours. This would be approximately 2000hr per year for 2012 through to 2016 inclusively.”

[5] Mr Proud has not been required to take any calls after hours since 17 October 2016.

[6] Clause 28 of the 2014 Agreement is the only clause of the 2014 Agreement that deals with on-call arrangements. It states:

28. ON-CALL AND CALL-BACK FOR IT STAFF

28.1 Continuing or fixed-term HEW Levels 1-9 staff employed in information technology services provision may be rostered or directed to be “on call” outside of normal working hours for physical attendance (or remote log-in where applicable).

On-Call Arrangements

28.2 Where a staff member is rostered on call by the Dean/Divisional Director:

(a) Roster times may be any hours outside of 8:00am to 6:00pm week days, and hours between 6:00pm Friday to 8:00am Monday.

(b) He or she must be contactable by telephone or pager and be fit and ready for on-site attendance (or remote log-in) within one hour.

(c) Payment for being on-call will be 25% of the hourly ordinary rate with a three-hour minimum payment period.

(d) A rostered on-call period will not normally be greater than one week without one week off-call.

[7] Clause 28.3 then sets out the payment arrangements for time spent on-call or when called back to work.

[8] The 2014 Agreement came into operation on 7 October 2014.

[9] Prior to that date the Monash University Enterprise Agreement (Academic and Professional Staff) 2009 5 (the 2009 Agreement) was operative. It commenced on 29 January 2010. It had a clause in the same terms as clause 28 of the 2014 Agreement although numbered clause 27.

[10] The application by Mr Proud was subject to conciliation before the Commission. Monash indicated at that time that it had a number of jurisdictional objections to Mr Proud’s application and that, whilst it was prepared to participate in conciliation in an attempt to resolve the dispute, it would seek to have the jurisdictional matters dealt with prior to a consideration of the merits of the application should the application proceed to arbitration.

[11] The application did not settle at conciliation. It was therefore listed for arbitration of the jurisdictional matters.

Jurisdiction

[12] The dispute resolution procedure of the 2014 Agreement states:

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...

[13] The dispute resolution procedure then sets out in detail the steps to be taken.

[14] I do not understand there to be any dispute that Mr Proud complied with the requirements of dispute resolution procedure in so far as his dispute arises under the 2014 Agreement. There is some dispute that he has followed the procedures insofar as they relate to the 2009 Agreement but, for the reasons given below, I do not need to decide that question.

[15] As set out above, Mr Proud seeks back payment of an on-call allowance “the same as that offered to IT staff.”

[16] Monash’s jurisdictional objections to the application are:

(a) The relief sought by the application would require the Commission to exercise jurisdictional power;

(b) Further to (a), or in the alternative, the Application is not a “matter” that “arises under” the 2014 Agreement, and thus lies outside the disputes clause that would otherwise vest jurisdiction in the Commission;

(c) Further to (a) and (b), or in the alternative to the extent that Mr Proud purports to deal with a “dispute” purportedly raised under the 2009 EA, the Commission lacks jurisdiction to deal with that dispute because the 2009 EA ceased to operate once the 2014 EA commenced operation, namely, on 7 October 2014. 6

[17] For the reasons given below, I do not consider that the Commission has jurisdiction to deal with the dispute.

Resolution of the jurisdictional objection

[18] Prior to the hearing of the application I sought from Monash the questions it considered required to be answered by the Commission to resolve its jurisdictional objections. Monash proposed, and Mr Proud did not object, that the questions to be answered are:

1. Was Mr Proud ever employed by Monash University “in information technology services provision” within the meaning of either clause 27 of the 2009 EA or clause 28 of the 2014 EA and therefore eligible for entitlement to be paid an on call allowance under either clause 27.2(c) of the 2009 EA or clause 28.2(c) of the 2014 EA?

Note:

(a) If the answer to 1 is “yes”, then any questions about whether Mr Proud was at any times actually rostered or directed to be “on call” can be addressed in a later hearing;

(b) If the answer is “no” then there is no need for the Commission to answer the other questions below, other than question 3.

2. If the answer to question 1 is “yes”, does the Commission have jurisdiction to order back payment of on call allowance to Mr Proud for any or all of the period 1 January 2012 to 31 December 2016? In determining question 2 the following sub questions are to be determined:

(a) Is Mr Proud’s claim for back pay, as framed in his Form F10 dated and filed 27 November 2017, a dispute “as to the application of the 2009 EA or any matters arising from it” within the meaning of the 2009 EA? Note this question may involve determining when the dispute was invoked and became a dispute for the purposes of the relevant enterprise agreement. It will also involve a determination as to the effect of s.58(1) of the FW Act.

(b) Is Mr Proud’s claim for back pay as framed in his Form F10 dated and filed 27 November 2017 a dispute “as to the application of the 2014 EA or any matters arising from it” within the meaning of the 2014 EA? Note this question may involve determining when the dispute was invoked and became a dispute for the purposes of the relevant enterprise agreement. It will also involve a determination as to the effect of s.58(1) of the FW Act.

(c) If the answer to (a) or (b) or both is “yes”, would an order of the Commission to the effect that Monash make the back payment involve the exercise of judicial power, and is therefore prohibited or beyond the power of the Commission?

3. If the answer to question 1 is “no”, does the Commission have jurisdiction to entertain the dispute when the dispute in effect relates to entitlement of employees other than Mr Proud, or seeks to extend the entitlements to Mr Proud solely because he has invoked a dispute under clause 12?

Note:

This will involve a determination of whether a “dispute” raised by an employee (Mr Proud), who is covered by the 2014 EA where the remedy sought is for a benefit to which the employee is not entitled, would require orders that are inconsistent with the terms of the EA (and thus contrary to s.739(5) of the FW Act). It will also require consideration of the Federal Court decision in CFMEU v Anglo Coal (Callide Management) [2016] FCAFC 57.

1. Was Mr Proud ever employed by Monash University “in information technology services provision” within the meaning of either clause 27 of the 2009 Agreement or clause 28 of the 2014 Agreement and therefore eligible for entitlement to be paid an on-call allowance under either clause 27.2(c) of the 2009 Agreement or clause 28.2(c) of the 2014 Agreement?

[19] This is the first question to be considered in resolving the jurisdictional objection of Monash.

[20] If Mr Proud is not employed in “information technology services provision” as provided for in clause 28 of the 2014 Agreement or clause 27 of the 2009 Agreement he cannot be entitled to the benefits of clause 28. This is because clause 28.1 applies to:

•  continuing or fixed-term staff at HEW levels 1-9; and

•  who are employed in information technology services provision; and

•  who are rostered or directed to be “on call” outside of normal working hours.

[21] Only in such circumstances and then only when “rostered on-call by the Dean/Divisional Director” is the allowance specified in clause 28.2(c) payable and, if the staff member on-call is called back to work, the payments in clause 28.3 operate.

[22] If Mr Proud does not meet one of these circumstances it is difficult to see how he could be entitled to the benefit of the clause.

[23] Monash submits that, on the basis of his job descriptions and the evidence given, Mr Proud was not employed in the provision of information technology services and therefore is not entitled to the benefit of the allowance in clause 28 of the 2014 Agreement or clause 27 of the 2009 Agreement.

[24] Further, Monash says that the relief sought by Mr Proud in his application for the Commission to deal with the dispute, his correspondence to the Vice-Chancellor and his claims with respect to bargaining for the replacement to clause 28 of the 2014 Agreement all indicate that Mr Proud knows that he is not employed in information technology services provision and is not entitled to the provisions of clause 28.

[25] Mr Proud submits that he is engaged in the provision of such services and hence is entitled to the benefit of clause 28 of the 2014 Agreement.

History of on-call provision in the 2014 Agreement

[26] Clause 28 of the 2014 Agreement is in precisely the same terms as clause 27 of the 2009 Agreement. The 2009 Agreement replicates (with one inconsequential addition) clause 28 of the Monash University Enterprise Agreement (Academic and Professional Staff) 2005 7 (2005 Agreement).

[27] The on-call provisions were included in the 2005 Agreement as a result of a Heads of Agreement signed by Monash and the National Tertiary Education Industry Union (NTEU) in January 2005. 8

[28] The 2005 Heads of Agreement provided, at clause 30, that “[o]n-call and call-back allowances and conditions as per the Information Technology Services Guidelines will be introduced for the nominal life of the Agreement.”

[29] The Information Technology Services Division On-Call and Call Back Policy Guidelines (Information Technology Services Guidelines) applied within the Information Services Division of Monash. 9 That Division is now known as eSolutions.

Mr Proud’s role with MAPA

[30] Mr proud has worked for MAPA since 2010. Over that period of time he has had three different position descriptions.

The first position description – “Team Leader – Technical Services”

[31] The “Position summary” in the first position description says that the occupant of the position “leads the team that provides creative and technical services for projects generated by hirers…the role develops the efficiency and workplace culture of the team, to sustain a skilled, proactive, engaged team delivering creative technical customer service…”

[32] The key responsibilities under “Event Technical Management” include:

•  …plan and deliver appropriate technical services for events, by rostering appropriate staff and equipment…

•  Undertake some event based technical work to maintain clear understanding and connection between planning teams and delivery teams…

[33] Under “Facilities Technical Planning and Maintenance” the position description requires of the occupant to:

•  Maintain technical stock and equipment;

•  …deliver technical and venue maintenance.

[34] The key section criteria for the position are:

1. Relevant Tertiary qualifications and/or experience in Theatrical and Venue Production management…

2. Extensive technical production experience within professional theatre, music, festival or venue industry, knowledge of production requirements for live theatre…

7. Well developed computer literacy with ability to use software to stage productions…

The second position description – “Manager, Technical Services”

[35] The “Position purpose” in the second position description, which came into operation around February 2014 states that “The Manager, Technical Services manages and oversees the end-to-end delivery of all creative and technical services provided to…clients…[and] provides performing arts technical expertise and knowledge to deliver maintenance, servicing and upgrade projects for all venues…”

[36] The key responsibilities of the positon include:

1. Manage and oversee all technical services provided to internal and external clients…

2. Devise and provide technical service solutions to clients…

3. Deliver maintenance, servicing and upgrade projects…ensuring MAPA venues continue to operate to meet current and future needs…

[37] The “Key selection criteria” includes, under “Education/Qualifications”, that the appointee to the position will have:

•  relevant qualifications in Arts and Entertainment Management, technical or business discipline and extensive relevant experience, or

•  extensive experience and management experience in theatre and venue production management, or

•  an equivalent combination or relevant expertise and/or education/training.

[38] The position description also states that “[o]n-call will be required to provide technical support to staff for events held outside of normal business hours.”

The third position description – “Technical Manager”

[39] The third position description does not substantially alter the second although the “on-call” requirement is no longer specified. The position description does require that “[o]ut of hours work (including evenings, weekends and public holidays) will be required from time to time.”

The evidence

Mr Edward Messina

[40] Mr Edward Messina, IT Security and Risk Manager at Monash 10, gave evidence that the IT Security and Risk team forms part of “eSolutions”. eSolutions provides IT support services to Monash staff and students. There are staff in eSolutions who are rostered to be on-call and who receive payments as stipulated in clause 28 of the 2014 Agreement for that work.

[41] Mr Messina said that different types of systems at Monash receive different levels of support. Class A systems receive 24 hour support seven days a week. On-call support is therefore provided outside normal business hours and on weekends. Class B systems receive support between 8.00am and 10.00pm weekdays and between 9.00am to 5.00pm weekends. On-call support is therefore rostered for these times. Class C systems are supported between 8.00am and 5.00pm Monday to Friday. On-call support is not provided for Class C systems.

[42] There is also a dedicated AV team within eSolutions. That team is responsible for Monash’s AV architecture, design and installation and providing optional AV support. The AV team may do some work out of hours to upgrade, fit out and repair AV architecture or to provide support at a hirer’s request. AV staff are paid overtime for work out of normal business hours or arrange time off in lieu. They are not on-call or paid an on-call allowance.

[43] Mr Messina also gave evidence that “information technology” is “at heart, concerned with the transfer and storage of information and data using computer technology.” 11 He said that information technology services, in his experience, is used as a reference to the services of information technology.

[44] Mr Messina said that he had reviewed Mr Proud’s position descriptions. His analysis of those is that there is nothing in them to suggest that Mr Proud is employed in information technology services provision, the key responsibilities have nothing to do with IT, the education/qualification requirements are not what would be expected of an IT person (there is no requirement for a qualification in a computer related discipline) and the role does not require knowledge and skills in IT.

[45] Mr Messina also said that he reviewed the log kept by Mr Proud of the after hours calls received by him 12. His assessment is that the majority of the calls “appear to relate to an art/theatre technical and rostering issues as opposed to IT issues.” Mr Messina identified three exceptions which related to a laptop problem and projector problems. He said that there may have been potential IT issues does not mean that Mr Proud is engaged in the provision of IT services.

Mr Damien Boyle

[46] Mr Damien Boyle is the General Manager of MAPA 13 and is responsible for the day-to-day operations of MAPA. He gave evidence that he was Mr Proud’s direct manager from August 2012 to November 2017. Mr Boyle said that during this time Mr Proud was responsible for, amongst other things, the provision of technical services. This was the process of “liaising with the hirer of a MAPA venue regarding their performance or production and working out the logistics of how to make it happen at the venue. For instance, identifying equipment required, staff numbers and identifying and managing potential occupational health and safety risks, and other matters of a similar nature.”14

[47] For events held outside standard working hours at MAPA venues, MAPA provides staff (usually casuals) to provide technical, front of house and box office services. Technical services includes lighting, sound, flying systems, audio-visual presentations, staging, stage management, loading, unloading and setting up client equipment and operating technical equipment during a show. 15

[48] Mr Boyle’s evidence is that on occasion technical staff working at a MAPA venue would call Mr Proud with queries. The primary reasons for the calls were staffing matters when a staff member could not attend their shift, a dispute that could not be solved by on-site technical staff for example, with a client, failure of operating equipment or queries with respect to paperwork. 16 Mr Boyle said that based on his knowledge of Mr Proud’s role, he “is employed to provide managerial services in respect of technical services in performing arts venues” and that these services do not fall within the meaning of “information technology services.” 17

[49] Mr Boyle agreed with Mr Proud that there have been technology advances in equipment used in performing arts and said that this makes it easier for staff to operate the equipment although said he had limited capacity to comment on the technical equipment. He said the technical equipment used in venues is specialised equipment. He agreed that most events held at MAPA venues outside normal working hours would involve the use of lighting and sound equipment.

[50] Mr Boyle gave evidence that any other staff who may be called on after hours do not get paid an on-call allowance as there is no provision in the 2014 Agreement for staff in MAPA to be paid an on-call allowance. He said however they were entitled to be paid at the appropriate overtime rates.

Professor Paul Grabowski

[51] Professor Paul Grabowsky AO is employed by Monash as Executive Director of MAPA. 18 Professor Grabowsky is a pianist, composer and conductor. He is also the founder to the Australian Arts Orchestra and has directed various music festivals.

[52] Professor Grabowsky said that MAPA is dependent on “various information technology platforms in order to communicate, internally within Monash, and externally… These platforms are overseen and maintained by eSolutions.” 19

[53] Professor Grabowsky said that Mr Proud’s specialist area of expertise is in audio technology. He said that the technical matters referred to in Mr Proud’s position description refer to things such as sound and lighting technology required to run the services of MAPA as opposed to information technology services.

Mr Gregory Crundall

[54] Mr Gregory Crundall, Manager, Workplace Relations (Strategy), gave evidence that the on-call provisions in the 2005 Agreement arose from a Heads of Agreement between the NTEU and Monash reached in 2005. The Heads of Agreement included a provision that the on-call and call-back arrangements as per the information technology services guidelines would be introduced for the life of the 2005 Agreement.

[55] Mr Crundall also gave evidence that in negotiations for the 2014 Agreement the NTEU had a claim to extend the on-call provisions. This was resisted by Monash and ultimately was not agreed to for the 2014 Agreement.

Mr Russell Proud

[56] Mr Proud submitted that there was ambiguity and uncertainty in the 2014 Agreement (that also existed in the 2009 Agreement). He said that the uncertainty commenced in 2005 when on-call provisions were first included in the 2005 Agreement in relation to IT staff. Mr Proud said that, at that time, MAPA did not exist so was not included in the on-call provisions. This uncertainty he said was then carried over to the 2009 Agreement and 2014 Agreement and it is this he seeks to have amended.

[57] Mr Proud said that it was clear there was a need for out-of-hours work to be done, he had the qualifications to meet the need and he did meet that need. He said that Monash had known of the demand he was required to meet in 2012 and should have addressed the matter at that time. That it is not in the 2014 Agreement creates the uncertainty.

[58] Mr Proud submitted that the work he does is closely aligned to the work done by eSolutions and IT staff. He said that eSolutions staff do no support the technical area he works with and it is outside their area of expertise.

[59] Mr Proud gave evidence that it is clear that he was on-call after hours and that he should have been paid the “appropriate rate” for that work. 20 Further, he said that it was evidence that he had raised the issue as early as 2012 with Professor Grabowsky21 but nothing had been done about the amount of after hours work he was doing. He considers that the “appropriate rate” is the rate paid to staff in eSolutions. Mr Proud did not agree that the reference to “appropriate rate” was the overtime rate but rather said that Professor Grabowsky was aware and believed from 2012 that he should be paid an on-call allowance.

[60] Mr Proud wrote to the Vice-Chancellor in December 2016 22 seeking payment for being on-call. He described the situation he was in as “untenable” and noted that the 2014 Agreement had no provision that recognised or remunerated him for being on-call. Mr Peter Marshall, Chief Operating Officer and Senior Vice-President, responded to that letter in February 2017 noting that the 2014 Agreement did not provide for the payment of an on-call allowance to staff other than those in information technology services, that he did receive overtime payments for work undertaken and he was receiving the correct entitlements.23

Consideration

[61] This consideration goes to the question of whether Mr Proud was employed in “information technology services provision” such that clause 28 in the 2014 Agreement or clause 27 of the 2009 Agreement provide some benefit to him.

[62] I am not satisfied, on the basis of the evidence before me, that Mr Proud was employed in information technology services provision. Rather, he was engaged in the provision of technical services at MAPA.

[63] I accept the definition of “information technology” as put in evidence by Mr Messina. This accords with the definition of information technology in the Encyclopaedic Australian Legal Dictionary: “A broad term referring to all fields of technology that enable a user to create, store, display, manipulate, transmit, or manage data, whether in academia, business, art or science, or for personal use” and that in the Macquarie Dictionary, Fifth Edition: “the use of computers to produce, store and retrieve information.”

[64] There is no evidence before me that the work of Mr Proud fits these definitions. There is no basis on Mr Proud’s past or current position descriptions to make a finding that his work satisfied the definition of “information technology” or that he was engaged in information technology services provision.

[65] Mr Proud produced nothing that would allow me to conclude that the work he does closely aligns to that of IT staff as he claimed. Even on Mr Proud’s own log of after hours calls there is nothing that indicates that the work he was doing was “information technology services”. The issues went to staffing, equipment queries (no keyboard stand, stage damaged, speaker not working, "comms” system ceased working, where are the batteries etc), venue matters (lift not working, locked out, etc) with only those matters identified in the evidence of Mr Messina as coming near a definition of information technology services.

[66] That the equipment used in MAPA is technologically advanced does not mean that anyone working with that equipment is engaged in “information technology services”.

[67] In addition, material provided by both Mr Proud and Monash suggests that Mr Proud is aware that the work he does is not “information services”. In his letter to the Vice-Chancellor in December 2016 Mr Proud raised his concerns about the failure of Monash to remunerate him as he considered appropriate. He said in that letter that he was “responsible for the management of technical resourcing (including staffing and equipment) to meet the operational needs of all MAPA venues” and that he considered it “untenable…there being a requirement…to be on-call after normal hours to address technical and operational issues…yet there is no provision in the Enterprise Agreement that either acknowledges this critical function nor remunerates me for my work.” He goes on to say that while the “highly specialised technical services (E Solutions)…are acknowledged and remunerated for being on-call” the EA failed to include MAPA roles from being remunerated when on-call. 24 This letter appears to confirm, from Mr Proud’s perspective, that he knew he was not entitled to be paid the on-call allowance because he was not in information services technology provision.

[68] The history of clause 28 of the 2014 Agreement supports the contention that it does not apply to Mr Proud. Its origins are based on staff in the “Information Technology Services Division”, a term replicated in clause 28.1 of the 2014 Agreement. That the clause remains unchanged from 2005 is supportive of a conclusion that the breadth of the clause has not changed.

[69] As Mr Proud conceded, MAPA came into existence after the 2005 Agreement. Had it been intended that the clause would apply to staff beyond those in information technology services (that is, those that worked in that Division) it could reasonably be expected that this would be reflected in the clause in the 2009 Agreement or the 2014 Agreement. It is not. Further, there is no suggestion that MAPA was part of what was known as the Information Technology Services Division, or is part of eSolutions. 25

[70] I do not consider Mr Proud’s involvement in the bargaining for an agreement to replace the 2014 Agreement says anything of his view as to whether clause 28 of the 2014 Agreement is relevant to his employment. That a party in bargaining may seek greater clarity in an agreement clause cannot be taken to indicate any particular view of the current clause. This, however, does not assist Mr Proud’s claim.

[71] For these reasons I am satisfied that Mr Proud is not employed in information technology services provision.

[72] Because Mr proud is not engaged in information technology services provision it must follow that he is not entitled to the benefits under clause 28 of the 2014 Agreement or clause 27 of the 2009 Agreement.

2. Does the Commission have jurisdiction to deal with Mr Proud’s dispute when the dispute relates to entitlements of employees other than Mr Proud?

[73] Having found that Mr Proud has no entitlement to the benefits of clause 28 of the 2014 Agreement or clause 27 of the 2009 Agreement, I am not satisfied that there is a dispute before the Commission that can be dealt with by the making of a determination.

[74] Section 739(5) of the FW Act states:

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

…

(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.

[75] Clause 28 of the 2014 Agreement is the only clause that deals with the payment of an on-call allowance.

[76] I have found above that Mr Proud is not entitled to the benefit of that clause. To issue a determination that found otherwise (that is, to find he was entitled to some benefit under the clause) would be inconsistent with the terms of the 2014 Agreement and hence is barred by s.739(5) of the FW Act. That Mr Proud sought to invoke a dispute in relation to the payment of an on-call allowance does not vest the Commission with jurisdiction to grant the relief he seeks.

[77] Mr Proud also sought in his application back pay of the on-call allowance he says is due to him but that he did not receive. I accept that such an exercise is beyond the jurisdiction of the Commission. To the extent that Mr Proud considers he does have an entitlement under the 2009 Agreement or 2014 Agreement and seeks to have that enforced that is an exercise of judicial power, is a matter for the Courts and is beyond the powers of the Commission.

Conclusion

[78] In respect of the questions Monash put to the Commission to be answered:

Question 1 the answer is no.

Question 2 does not require answering as the answer to Q1 is no.

Question 3 the answer is no, the Commission does not have jurisdiction to deal with the dispute.

[79] In reaching my conclusions I make no finding as to whether or not it is “fair” that staff, other than those in information technology services provision, are not entitled to an on-call allowance should they be required to be on-call. That is, at the present time, a matter for Monash and/or bargaining. I would observe however that, even if the on-call provisions are broadened in the next agreement, this will not create any historical rights to such payment unless explicitly stated.

[80] I would also observe, because Mr Proud did raise it in his submissions and cross-examination, that clause 28 of the 2014 Agreement not providing for the payment of the on-call allowance beyond information technology services provision does not make the clause ambiguous or uncertain. In any event, there was no application before me to resolve such ambiguity or uncertainty if it does exist in accordance with clause 12.6 of the 2014 Agreement. There was no evidence before me that the clause had been intended to apply beyond information technology services provision as it has provided since 2005.

[81] I would also observe that it is unfortunate that this dispute has gone on for so long. Mr Proud did raise the issue with Professor Grabowsky in 2012 and has regularly since then raised his concern with the amount of time he was on-call to deal with issues at MAPA venues. His own call log, whilst not supporting that he dealt with information technology issues, does support that he was regularly called out of hours including weekends.

[82] For the reasons given above, Mr Proud’s application to the Commission is dismissed.

COMMISSIONER

Appearances:

R. Proud on his own behalf.

J. Bourke of counsel for the Respondent.

Hearing details:

2018.

Melbourne:

May 8.

Printed by authority of the Commonwealth Government Printer

<PR607430>

 1   AE410374.

 2   Exhibit Monash 1, tab 12.

 3   Ibid, tab 13.

 4   Ibid, tab 14.

 5   AE873347.

 6   Exhibit Monash 1, tab 2, paragraph 5.

 7   AG844599.

 8   Exhibit Monash 1, tab 10.

 9   Ibid, tab 11.

 10   Ibid, tab 4.

 11   Ibid, tab 4 at paragraph 18.

 12   Ibid, tab 19.

 13   Ibid, tab 6.

 14   Ibid, tab 6 at paragraph 9.

 15   Ibid, tab 6 at paragraphs 11-13.

 16   Ibid, tab 6 at paragraph 15.

 17   Ibid, tab 6 at paragraph 19.

 18   Ibid, tab 5.

 19   Ibid, tab 5 at paragraph 10.

 20   Exhibit Proud 1, document 79.

 21   Ibid, document 3.

 22   Ibid, document 85.1.

 23   Ibid, document 88.1.

 24   Exhibit Monash 1, tab 17; Exhibit Proud 1 document 85.1.

 25   There was no dispute between the parties as to the change of name.