Toby Priest v Flinders University of South Australia
[2022] FWC 478
•13 MAY 2022
[2022] FWC 478
The attached document replaces the document previously issued on 13 May 2022 to correct a typographical error in paragraph [43].
Associate to Commissioner Platt
Dated 16 May 2022
| [2022] FWC 478 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.66M - Application to deal with a dispute about the right to request casual conversion
Toby Priest
v
Flinders University of South Australia
(C2021/8498)
| COMMISSIONER PLATT | ADELAIDE, 13 MAY 2022 |
Application to deal with a dispute about the right to request casual conversion
On 14 December 2021, the National Tertiary Education Industry Union (NTEIU) lodged an application on behalf of their member, Mr Toby Priest (the Applicant), under s.66M of the Fair Work Act 2009 (Cth) (the Act) concerning a dispute between the Applicant and his employer, Flinders University of South Australia (the Respondent or the University), as to the University’s obligations under s.66B of the Act in relation to an offer of part-time employment to the Applicant, who is currently employed as a casual employee.
The Flinders University Enterprise Agreement 2019 to 2022[1] (the Agreement) covers and applies to the Applicant and the University.
Mr Priest contends that he has met the criterion of s.66B such that the University is required to offer him a part-time role. Mr Priest (with the assistance of the NTEIU) corresponded with the University between September and December 2021 seeking to be converted to a part-time role. The University denied the request.
On 14 December 2021, the dispute was referred to the Commission.
A conference was conducted by telephone on 17 December 2021. Ms Melissa Kaharevic, along with Mr Mark Schultz and Mr Ronan O’Brien, represented the University, whilst Ms Annie Buchecker (NTEIU Industrial Officer) represented the Applicant.
During the conference, the parties requested that the matter proceed to arbitration. Directions were issued for the filing of materials in respect of the dispute and the matter was listed for Hearing.
Mr Andrew Short (of counsel) represented the University, and Ms Buchecker represented the Applicant. Permission was granted pursuant to s.596 on the basis of complexity and efficiency.
The Application was originally made under s.66M of the Act, however s.66M states that the section does not apply in relation to a dispute if a fair work instrument applies to the employee, and that instrument includes a term that provides a procedure for dealing with the dispute. The Agreement has a Dispute Settlement provision at clause 16 which gives the Commission the power to arbitrate a dispute arising out of the Agreement or the National Employment Standards (NES). Given that s.66M did not seem to apply, the parties were given an opportunity to confer. The Applicant applied to amend the application such that it was made under s.739 of the Act to which the Respondent consented, and I exercised my discretion to amend the Application accordingly.
It was not disputed by the parties that the Commission had the power to arbitrate the dispute and make a determination under clause 16 of the Agreement.
The dispute is summarised as follows:
·The Applicant contends that he was employed by the University for a period of at least 12 months.
·The Applicant contends that during at least the last six months, he had worked a regular pattern of hours on an ongoing basis.
·The Applicant contends that he could continue to work as a part-time employee without significant adjustment.
·The University contested these contentions.
A Hearing was conducted, by way of videoconference, on 17 and 18 February 2022. A Digital Court Book was produced, comprising of the materials submitted by the parties prior to the Hearing, and was distributed to the parties and received in evidence.
Further submissions as to the wages received by Mr Priest in his current role were received on 21 February 2022.
The Applicant submitted a statement[2] and a supplementary statement[3] and gave evidence.
The Respondent submitted statements from:
·Dr Shane Pill[4], Associate Professor within the College of Education, Psychology and Social Work; and
·Professor Mary Katsikitis[5], Dean of People resources within the College of Education, Psychology and Social Work.
Each of the witnesses were cross-examined. Whilst there were some portions of Mr Priest’s evidence in which it appeared he was being evasive, no substantial issues of credit arise.
The Legislative Framework
The Applicant contended, and there was no dispute, that the dispute concerned the Respondent’s obligations to make an offer under s.66B of the Act. There has been no suggestion by either party that the dispute refers to an employee request under s.66F of the Act. The relevant section is as follows:
“66B Employer offers
(1) Subject to section 66C, an employer must make an offer to a casual employee under this section if:
(a) the employee has been employed by the employer for a period of at least 12 months beginning the day the employment started; and
(b) during at least the last 6 months of that period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full‑time employee or a part‑time employee (as the case may be).
Note: An employee who meets the requirements of paragraphs (a) and (b) would also be a regular casual employee because the employee has been employed by the employer on a regular and systematic basis.
(2) The offer must:
(a) be in writing; and
(b) be an offer for the employee to convert:
(i)for an employee that has worked the equivalent of full‑time hours during the period referred to in paragraph (1)(b)—to full‑time employment; or
(ii)for an employee that has worked less than the equivalent of full‑time hours during the period referred to in paragraph (1)(b)—to part‑time employment that is consistent with the regular pattern of hours worked during that period; and
(c)be given to the employee within the period of 21 days after the end of the 12 month period referred to in paragraph (1)(a).
Note: If an offer is accepted, the conversion to full‑time employment or part‑time employment has effect for all purposes (see section 66K).
(3) For the purposes of paragraph (2)(b), in determining whether an award/agreement free employee has worked the equivalent of full‑time hours, regard may be had to the hours of work of any other full‑time employees of the employer employed in the same position as (or in a position that is comparable to) the position of the employee.”
Section 66C of the Act deals with when an employer is not required to provide an offer under section 66B:
“66C When employer requests are not required
(1) Despite section 66B, an employer is not required to make an offer under that section to a casual employee if:
(a)there are reasonable grounds not to make the offer; and
(b)the reasonable grounds are based on facts that are known, or reasonably foreseeable, at the time of deciding not to make the offer.
(2) Without limiting paragraph (1)(a), reasonable grounds for deciding not to make an offer include the following:
(a) the employee’s position will cease to exist in the period of 12 months after the time of deciding not to make the offer;
(b) the hours of work which the employee is required to perform will be significantly reduced in that period;
(c) there will be a significant change in either or both of the following in the period in that period:
(i)the days on which the employee’s hours of work are required to be performed;
(ii)the times at which the employee’s hours of work are required to be performed;
which cannot be accommodated within the days or times the employee is available to work during that period;
(d) granting the request would not comply with a recruitment or selection process required by or under a law of the Commonwealth or a State or a Territory.
(3) An employer must give written notice to a casual employee in accordance with subsection (4) if:
(a) the employer decides under subsection (1) not to make an offer to the employee; or
(b) the employee has been employed by the employer for the 12 month period referred to in paragraph 66B(1)(a) but does not meet the requirement referred to in paragraph 66b(1)(b).
Note: If an employer fails to give notice to a casual employee, the employee has a residual right to request conversion to full-time or part-time employment in certain circumstances: see Subdivision C.
(4) The notice must:
(a) advise the employee that the employer is not making an offer under section 66B; and
(b) include details of the reasons for not making the offer (including any grounds on which the employer has decided to not make the offer); and
(c) be given to the employee within 21 days after the end of the 12-month period referred to in paragraph 66B(1)(a).”
The relevant sections of the Act in question were introduced through amendments contained in the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (the Amending Act) and came into effect on 26 March 2021. Given its relative infancy, there do not appear to be any Decisions in the Commission interpreting the application of s.66B.
I have interpreted the relevant sections based on material contained in the Explanatory Memorandum[6] and Supplementary Explanatory Memorandum[7] and the accepted concepts of statutory interpretation.
The Explanatory Memorandum, which gives some guidance in terms of the necessary requirements for an employee to receive an offer under s.66B, states the following:
“26. Whether a person has been employed for a period of 12 months will depend on the particular circumstances. For example, a person who is employed to perform an afternoon of casual work in March, and is then employed to perform another afternoon of casual work in the April of the following year will not have been employed ‘for a period of 12 months’, so that employer will not have to consider whether to make an offer in relation to that employee at that time.”
27. The term 'regular pattern of hours' is adopted from the FWC's model casual conversion term. Whether an employee meets this requirement will depend on the particular circumstances and involves consideration of the pattern of hours worked during the relevant 6 month period. For example, if an employee has worked shifts of 8 hours each on every Monday and Tuesday for the most recent 9 months of their employment, it will be clear they have worked a regular pattern of hours for the requisite 6 months. Depending on the circumstances of any particular case, the employee may still have worked a regular pattern of hours even with some fluctuation or variation in specific times and days worked, including (for example) if the employee took time away from work when ill or on holiday.
28. Additionally, the assessment of whether the employee worked a 'regular pattern of hours' is qualified by the contextual requirement that the pattern of hours must be able to be continued as a full-time or part-time employee without significant adjustment.
29. The note to new subsection 66B(1) explains that an employee who is eligible for conversion would also be a 'regular casual employee' (item 9 inserts this definition in section 12, which requires such an employee to have been employed on a regular and systematic basis). This is because an employee who has worked the required regular pattern of hours for a period as required by section 66B would also necessarily have been employed on a regular and systematic basis for that period.
…
31. The requirement for the offer of part-time employment to be consistent with the regular pattern of hours worked during the relevant period is intended to ensure that the offer is not made only on the basis that the employee would have to significantly change their working patterns in order to accept the offer.”
In relation to when employer offers are not required under s.66C, the Explanatory Memorandum states the following:
“35. New section 66C provides for when an employer is not required to make an offer to convert. Despite section 66B, an employer is not required to make an offer if there are reasonable grounds not to do so (paragraph 66C(1)(a)). The reasonable grounds must be based on facts that are known or reasonably foreseeable at the time of deciding not to make the offer (paragraph 66C(1)(b)).
…
38. There may be other reasonable grounds on which an employer can decide not to make an offer, including those specific to their workplace or the employee's role. Whether a ground is reasonable is to be assessed taking into account all of the circumstances, including the needs of the employer's business and the nature of the employee's role.”
Section 66B appears to impose requirements on an employer to make an offer based on three pre-conditions.
The first is that that the employee must have been employed for (at least) 12 months.
The second is that in the last 6 months of the period, the employee must have worked a regular pattern of hours. On this point it appears a review of the Explanatory Memorandum suggests that Parliament intended that the term ‘regular’ include ‘regular and systematic’. The term ‘regular and systematic’ also appears in s.384 of the Act and accordingly previous Decisions which on the meaning of that term are relevant to its interpretation in the context of s.66B.
The third is that without significant adjustment, the employee could work as a full‑time employee or a part‑time employee (as the case may be).
The Agreement
The following provisions of the Agreement appear relevant to the considerations in this matter.
Clause 5 of the Agreement provides that it displaces all other Agreements and/or Awards.
The Agreement covers professional staff and academic staff. There is no dispute that common and academic provisions of the Agreement apply to Mr Priest.
Clause 9.1 appears to contemplate fractional non-casual appointments.
Clause 28 provides for a Professional Staff Development Fund of $350,000 per annum accessible (subject to criteria) by staff engaged on a continuing or fixed-term basis.
Clause 29 provides for incremental progression for Teaching Staff members who are paid a salary of less than the maximum step within their level.
Clause 56 of the Agreement advises that there is an Academic Profile for each of the five defined levels of academic appointment. It appears that Academic Profiles were developed from the Minimum Standards for Academic Levels contained in Schedule 11 of the Agreement. These profiles include the range of activities that a staff member should be expected to undertake and minimum qualifications. The profiles also provide the basis for performance management (including reviews), incremental progression, probation, promotion and recognition of exceptional performance.
Clause 57 details the types of academic staff employment, which includes continuing employment, convertible employment, contingent-funded employment, fixed-term employment (full or part-time in accordance with Schedule 9 of the Agreement), and casual employment (which is discussed in more detail on Clause 59 of the Agreement).
Clause 61 provides for conversion from academic casual to sessional fixed-term employment at the discretion of the University for a limited time. This application has not relied on this provision.
Clause 61 appears to contemplate part-time (referred to as fractional) sessional fixed-term engagements.
Clause 66 (which is contained in Part 13 – Hours of Work) concerns academic workloads and appears to ensure that each staff member’s workload provides reasonable opportunity for research and creativity as appropriate for the position and recognises the various tasks (as applicable) and responsibilities detailed in clause 66.2. Clause 66.2.4 requires that each academic’s workload will be such that it can be undertaken in 1725 hours per year. This figure incorporates an adjustment for 4 weeks annual leave and 10 public holidays. This appears to be the closest the Agreement gets to an ‘Hours of Work’ provision and infers that the ordinary hours of work are 37.5 hours per week averaged over a year.
Clause 68 details a merit based academic promotion process.
Schedule 4 of the Agreement provides for salary rates and specifies that the minimum annual salary for full-time Level A academic staff ranges between $78,340.00 and $94,938.00.
Schedule 5 provides rates and descriptors for casual academic staff including tutoring. Mr Priest is currently engaged under this clause to provide tutoring, marking and some meeting attendances.
Schedule 9 concerns fixed-term employment.
Schedule 11 details the Minimum Standards for Academic Levels (MSAL). Clause 2 of Schedule 11 provides the MSAL for a Level A academic as detailed below:
“2 Teaching and Research academic staff
2.1 Level A
A Level A academic will work with the support and guidance from more senior academic staff and is expected to develop his or her expertise in teaching and research with an increasing degree of autonomy.
A Level A academic will normally have completed four years of tertiary study or equivalent qualifications and experience and may be required to hold a relevant higher degree.
A Level A academic will normally contribute to teaching at the institution, at a level appropriate to the skills and experience of the staff member, engage in scholarly, research and/or professional activities appropriate to his or her profession or discipline, and undertake administration primarily relating to his or her activities at the institution. The contribution to teaching of Level A academics will be primarily at undergraduate and graduate diploma level.”
There does not appear to be a provision in the Agreement which expressly provides for a part-time engagement performing the work that Mr Priest is presently engaged to perform.
It appears that the parties to the Agreement intended to restrict access to part-time employment for academics to fixed-term employment (Clause 57.2.4) and sessional fixed-term employment (Clause 61) and in so far as it is properly characterised as part-time employment, a fractional academic undertaking work described in Schedule 11. Schedule 5 appears to be the only provision of the Agreement that expressly deals with the majority of the work performed by Mr Priest, and that schedule does not contemplate any employment other than casual engagement. I note that the approach in Schedule 5 is similar to that taken in Clause 16.4 of the Award that would otherwise apply.
Has Mr Priest, during at least the last 6 months of that period referred to in s.66B(1)(a), worked a regular pattern of hours on an ongoing basis?
Mr Priest commenced casual employment with the University in July 2006.
Mr Priest gave evidence that since 2006, he has tutored EDUC3524 Primary Health and Physical Education Topic (or other identical topics of another code) in Semester 1, and since 2011, he has taught HLPE2531 Sport and Physical Health in Semester 2. In 2021, Mr Priest worked for 688 hours as set out in the table below. By comparing this total workload to the full-time annual hours for academic staff at Flinders University (1725 hours) it is apparent that Mr Priest’s workload equates to 0.4 FTE.
| SEMESTER ONE | Descriptor code | Number of classes | Hours per week | Total hours | |||
| EDUC3542/9309 | TUT01 | 1 | 3 x Delivery hours | 6 x Additional hours | 9 | x 13 weeks | 117 |
| EDUC3542/9309 | TUT02 | 3 | 9 x Delivery hours | 9 x Additional hours | 18 | x 13 weeks | 234 |
| EDUC3542/9309 | MRK | 4 | x Average of 23 students per class @ 1 hour/student | 92 | |||
| EDUC3542/9309 | TA1 | 2 | |||||
| SEMESTER TWO | Descriptor Code | Number of classes | Hours per week | Total hours | |||
| HLPE2531 | TUT01 | 1 | 3 x Delivery hours | 6 x Additional hours | 9 | x 13 weeks | 117 |
| HLPE2531 | TUT02 | 1 | 3 x Delivery hours | 3 x Additional hours | 6 | x 13 weeks | 78 |
| HLPE2531 | MRK | 2 | x Average of 23 students per class @ 1 hour/student | 46 | |||
| HLPE 2531 | TA1 | 2 | |||||
| Total hours worked in 2021 | 688 |
| Full-time hours as per Clause 66.2.4 of the EA | 1725 |
| 688 hours divided by 1725 = 0.3988 full-time equivalent | |
The table indicates that Mr Priest is predominantly engaged to perform Tutoring (TUT01, TUT02) and Marking (MRK) duties. These descriptors are detailed at Clause 5.2 of the Agreement. The applicable rates of pay are detailed at Clause 5.3 of the Agreement. TUT01 is currently $141.50 per hour, TUT02 is $94.34 per hour, MRK01 is $65.10 per hour and TA1 is $47.16 per hour. In 2021, Mr Priest’s wages were $30,114.65 gross.
The University contends that owing to the casual nature of his employment, Mr Priest has not been employed by the University for at least 12 months as required by s.66B(1)(a). In my view the reference to employment in s.66B is a reference to the employment relationship rather than the contract of employment. There was no action taken by the University to terminate its employment relationship with Mr Priest at the end of each contract. On that basis, I find that Mr Priest meets the employment requirements in s.66B(1)(a) of the Act.
It appears that Mr Priest has tutored the same topics in each semester of the year since 2011 in a consistent manner. I accept that the hours worked by Mr Priest may vary with the level of enrolments and extend beyond the semester dates for some students who require additional support or where marking is delayed. I accept that on occasions, Mr Priest has been contracted to perform additional hours.
Section 66B(1)(b) refers to a period of ‘at least the last 6 months.’ In my view, this permits the consideration of a greater period such as the 12 month period proposed by Mr Priest.
The Explanatory Memorandum informs me that the term ‘regular pattern of hours’ is adopted from the Commission’s model casual conversion term. The consideration of this term will involve an examination of the circumstances. Depending on the circumstances of any particular case, the employee may still have worked a regular pattern of hours even with some fluctuation or variation in specific times and days worked. It is also a relevant consideration if the person has been employed on a regular and systematic basis.
The evidence before me indicates that the University structures its teaching on an annual basis and it is understood that Mr Priest may not work (unless assigned other duties) the same hours each week of the year, or for every week of the year. In my view, the work performed by Mr Priest in the University context can appropriately be described as a regular pattern of hours as required by s.66B(1)(b).
The next issue for determination is whether the regular pattern of hours could be worked as a part-time employee without significant adjustment.
Significant adjustment
Mr Priest seeks conversion to permanent employment as a 0.4 Level A Step 6 Teaching Specialist.
There was wealth of evidence about the tasks performed by Mr Priest. It was contended that Mr Priest performed tasks which were beyond his role as a casual academic and overlapped with the duties of a Teaching Specialist. Some of these duties (such as providing feedback on course materials) were an optional (but valued) component. Other duties, such as ‘Scholarship’, appeared to be consistent with both a tutoring role and a Teaching Specialist role. I accept that the University provided Mr Priest with Course Material which it said was normally sufficient to allow the tutoring function to be performed with minimal additional research.
A number of the activities Mr Priest sought to attribute to his role appeared to be extraneous to his role or of a private nature. Examples include when Mr Priest attended a Tennis Australia event that coincided with the tennis competition, and when he attended a farewell of a colleague. Mr Priest contended that whilst not formally part of his role, these events allowed him to network in a social setting
Mr Priest took on roles (for example on the board of the Australian Council for Health Physical Education and Recreation (ACHPER)) which I do not accept were part of his role but would have improved his knowledge and allowed him to serve the community.
The Applicant contends that there would not be a significant adjustment because in his current role he is already performing the bulk of the duties required in a part-time academic role.
Dr Pill (who is both a friend and Supervisor to Mr Priest) advised that Mr Priest is currently not required to undertake duties associated with permanent academic appointment such as administrative functions, course development, engaging in scholarly research, or partaking in the annual performance development process. In addition, in his casual role there is no requirement or expectation for Mr Priest to represent the University externally at any engagements or forums. Dr Pill was an impressive witness and I accept his evidence on this topic where it differs with Mr Priest.
Whilst I accept Mr Priest is performing some of the duties of a part-time academic staff member, I do not accept that he is required to. In addition, this is not the sole criterion upon which the question of reasonable adjustment is based.
Professor Katsikitis gave evidence about the impact of appointing Mr Priest as a part-time academic staff member. Professor Katsikitis contended Mr Priest would:
·Be subject to the Minimum Standards for Academic Levels.[8]
·Receive increased remuneration in accordance with Agreement rates applying to Teaching Specialist, Teaching and Research, and Research Academic staff.[9]
·Be required to be provided an academic pathway from Academic A-E (subject to completing further study) in Accordance with the Academic Profiles Policy.[10]
It was also submitted[11] that Mr Priest would have the benefit of Clause 66 of the Agreement in respect of Academic Workloads.
It also appears that if he moved to a part-time role, Mr Priest would have access to the Staff Development Fund.
The Respondent contends that there would be significant adjustment in changing Mr Priest to a part-time role. The Applicant rejects this contention.[12]
In 2021, Mr Priest was paid $30,114.65. Having reviewed Schedule 6 of the Agreement, it appears that if Mr Priest was successful in his application, his wage would increase to $37,975 (based on 0.4 FTE). In addition, Mr Priest would receive pro rata leave entitlements.
The provisions of the Agreement significantly complicate this matter. Had the Agreement allowed for a position equivalent to Mr Priest’s current role (in terms of duties, obligations and entitlements) with only consequential changes (for example to his leave entitlements) to take account of the part-time nature of the future of employment, I suspect there would be no significant adjustment.
However, as canvassed above, the obligations under the Agreement in respect of a part-time academic role result in marked differences in Mr Priest’s responsibilities and the University’s obligations when contrasted to Mr Priest’s current casual role. These changed entitlements and obligations, together with the financial impact of the differing pay structures (which would result in a salary increase of $7860.35 per annum (or 26%)), lead me to conclude that the proposed change to part-time employment would not be without significant adjustment. On that basis, I find the University was not obliged to make an offer to Mr Priest under s.66B.
COMMISSIONER
Appearances:
A Buchecker on behalf of the Applicant.
A Short on behalf of the Respondent.
Hearing details:
2022.
Adelaide, by videoconference.
17,18 February.
Final submissions 21 February
[1] AE505269.
[2] Exhibit A1
[3] Exhibit A2
[4] Exhibit R1
[5] Exhibit R2
[6] Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 Explanatory Memorandum
[7] Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 Supplementary Explanatory Memorandum
[8] P.144 of the Court Book
[9] See Schedule 5 of the Agreement - Rates and Descriptors for Casual Academic Staff
[10] P.149 of the Court Book
[11] PN1228-1229
[12]Applicant’s submissions paragraphs 40-43.
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