University of Technology Sydney v National Tertiary Education Industry Union
[2025] FWC 2528
•29 AUGUST 2025
| [2025] FWC 2528 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
University of Technology Sydney
v
National Tertiary Education Industry Union
(C2025/6612)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 29 AUGUST 2025 |
Dispute about matters arising under the enterprise agreement – application for interim orders
Introduction
This decision deals with an application by the National Tertiary Education Industry Union (NTEU) for interim orders pursuant to section 589(2) of the Fair Work Act 2009 (Cth) (FW Act) arising from a dispute between the NTEU and the University of Technology Sydney (UTS or the University) pursuant to the University of Technology Sydney Staff Agreement 2021 (the Agreement),
The NTEU seeks that the Commission make the following orders:
(1) The University be restrained from taking any further step to implement the ‘Operational Sustainability Initiative’ (OSI) pending the final hearing and determination of the dispute.
(2) The University withdraw the decision to temporarily suspend student intake pending the final hearing and determination of the dispute.
(3) Further or alternatively, the University pause all work associated with their decision to temporarily suspend student intake pending the final hearing and determination of the dispute.[1]
On 25 August 2025, UTS filed an application pursuant to s.587(1)(c) of the FW Act for the NTEU’s application for interim orders to be dismissed on the grounds that it has no reasonable prospects of success. On 25 August 2025, the Fair Work Commission (Commission) made orders for both applications to be heard together on 27 August 2025.
Background
The genesis of the dispute is that on November 2024, UTS announced the OSI, through which it intended to find $100 million of annual savings. As part of this announcement, UTS published an Initial Consultation Discussion Paper (ICDP) and invited staff to provide feedback via an online form.[2]
Two primary reasons were advanced in the ICDP for why the saving was necessary, first, the Commonwealth Government’s proposed cap on international student visas and second, UTS’s obligation to repay a $300 million bond by 2027.[3]
By November and December 2024, it became apparent that the Commonwealth Government would not cap international student visas, Between December 2024 and March 2025, the NTEU sought additional information from UTS in relation to the reasons for change discussed in the ICDP.[4]
In March 2025, the NTEU obtained certain relevant documents through Government
Information (Public Access) Act 2009 (NSW) (GIPA Act) processes. The NTEU claims that this that information showed the following:
that UTS was not required to fully repay the $300 million bond in 2027;
UTS planned substantial capital expenditure in 2028 and 2029;
that UTS had compiled a list of academic staff not meeting research expectations.[5]
The Dispute
On 24 June 2025, Mr Scott Rickard, NTEU Industrial Officer, wrote to UTS Workplace Relations Specialist Ms Janelle Sheather notifying a dispute under clause 12.7 of the Agreement.[6]
In the dispute notification, the NTEU asserted by reference to the information available to the NTEU that the international student reason and the bond repayment reason were not true or valid reasons for the possible change. The NTEU claimed that the University’s failure to provide accurate information regarding its reasons for the change directly contravened clause 52.9 of the Agreement, and led to consequential breaches of clauses 52.10-52.11. The NTEU also asserted by reference to information obtained under the GIPA Act process that that the projected increase in capital expenditure and the use of redundancy as means of circumventing performance management constraints under the Agreement were additional reasons for the possible change which had not been communicated to staff in contravention of cl 52.9.[7]
On 30 June 2025, UTS replied to the dispute notification stating that it did not agree with the NTEU’ assertions. The parties attended two dispute settlement meetings in June 2025 in accordance with the clause 12.7 of the Agreement.[8] On 17 July 2025, UTS filed a dispute with the Fair Work Commission in accordance with clause 12 of the Agreement which was allocated to me. The dispute application relevantly provided:
The University seeks the assistance of the Commission to resolve the dispute, which is unnecessarily impeding progression of and consultation about the Change Proposal, and prolonging UTS’s unsustainable financial position.
The dispute was initially listed for conciliation on 4 August 2025. The parties agreed to progress a number of matters at the conciliation conference and the matter was subsequently listed for report back on 20 August 2025.
Following the conciliation conference, Professor Andrew Parfitt, Vice Chancellor and President of UTS sent an email to all staff which outlined the agreement that was reached at the conciliation and also referred to the following:
In addition, the key dates for student recruitment for the Autumn 2026 session were discussed. An outcome of conciliation was that the university can proceed with temporarily suspending new student intakes for some courses, before the result of the Change Proposal. This was in recognition that the university has a responsibility to provide accurate course information to support prospective students to make infirmed and timely decisions. Many students are already making decisions for 2026.
This is an operational step and will not impact staff employment. Any decision to permanently cease course intakes and commence the process of discontinuation would only be made after consultation with staff and unions has been completed as part of the change proposal process. Further information will be provided as soon as possible.[9]
On 13 August 2025, the NTEU sent a letter to my Chambers which referred to commitments that the parties had made to each other on 4 August 2025 in order to resolve the dispute and asserted that the management of the University are not complying with the commitments they made. The letter referred to problems in relation to a number of matters including ‘Commencement of the two-week timeframe’ and Course suspensions.[10]
In relation to ‘Commencement of the two-week timeframe’, the NTEU referred to an agreement between the parties to a two week extension of the initial consultation phase and that it was to commence once requested documents were provided to staff. In relation to course suspensions, the NTEU advised that:
At the hearing on 4 August, as part of the process of reaching a conciliated outcome, the NTEU
accepted UTS management’s plan to suspend intake on certain courses. During the hearing the
NTEU sought, and was given, assurances from management that this would take place within normal processes and procedures. The NTEU has become aware that normal processes and procedures are being by-passed.[11]
The letter concluded by seeking the assistance of the Commission to address these concerns.[12]
In response to the NTEU’s request, the matter was listed for further conciliation on 15 August 2025.
On 18 August 2025, UTS wrote to the NTEU in relation to the agreed actions arising from the conciliation conference on 15 August 2025. The letter included references to the provision of further documents and that the NTEU would provide ‘additional written options, ideas, and suggestions for the University’s consideration by Wednesday, 27 August 2025.’[13] The University sent further correspondence regarding information sought by the NTEU to the NTEU by letters dated 18 August 2025[14] and 19 August 2025.[15]
The report back listed on 20 August 2025 went ahead as scheduled, however there was no appearance for the NTEU. My Chambers subsequently received an email from Mr Rickard that afternoon which provided:
Dear [redacted],
I am emailing in response to the voicemail you left me at 3:30pm this afternoon. I returned your call but it went to voicemail. My understanding was that although a conference had been scheduled for this afternoon, following our Conciliation hearing of 4 August, it was subsequently cancelled. My understanding, shared by my colleagues, was that DP Wright left the question of contacting her for assistance to the parties to decide whether or not it was necessary. The Teams invite that had been in my Outlook calendar was removed from my calendar, and from my colleague’s calendars, presumably by the organiser of the meeting.
Please accept my sincere apologies if any of this information is not correct.
Regards,
Scott Rickard — Industrial Officer
Later that day, my Chambers sent the following email to Mr Rickard:
Dear Mr Rickard,
RE: C2025/6612 - University of Technology Sydney v National Tertiary Education Industry Union (283V)
I refer to the above matter which was listed for a report back conference before Deputy President Wright at 3:30pm today 20 August 2025 and to your email below.
Deputy President Wright advised the parties at the Conference that the listing today would remain as scheduled unless the parties advised her that it was not necessary. I note that Chambers did not notify the parties that the listing was cancelled which is the usual practice if a listing is, in fact, cancelled.
The University provided a verbal report to the Commission today which indicated that the agreement reached before Deputy President Wright last Friday has been implemented.
On the basis of this report, Deputy President Wright proposes to close this matter.
If the NTEU has any objection to this course of action, please advise Chambers by no later than 12pm on Thursday 21 August 2025.
Kind regards,
[redacted]
On 20 August 2025, Mr Rickard sent the following email to my Chambers:
Dear [redacted],
I respectfully request that the matter remain open until at least Wednesday 27 August (being the end of the agreed extended period for initial consultation). The NTEU does not regard the matter as closed, and is considering its options regarding a number of issues that have arisen with regards to this matter.
Once again, I offer my sincere apologies to yourself and DP Wright for the miscommunication.
Regards,
Scott Rickard
Industrial Officer
On 22 August 2025, the application for interim orders was filed. The application indicated that it should be referred to arbitration of the questions:
a. Has UTS failed to comply with clause 52 of the Agreement?
b. Has UTS failed to comply with clause 12.3(b) of the Agreement?
The NTEU submitted that it continues to regard the University’s initial consultation through the ICDP as being deficient with ‘information regarding the reasons for the possible change, and details of the University’s desired outcomes’ in that UTS:
(a) Continued to assert that decreased international student enrolments were a reason for the possible change despite evidence that international student enrolments had not decreased and in fact increased;
(b) Continued to assert that repayment of the $300 million bond by 2027 was a reason for the possible change despite evidence that UTS could repay the bond by 2027 without the need to restructure;
(c) Failed to disclose evidence that capital expenditure and the performance management of staff were matters relevant to its reasons for the possible change.
The NTEU submitted that if the matter is arbitrated, it will ask the Commission whether these matters constituted a breach of clauses 52.8-52.11.
Course Suspension
There is no dispute between the parties that during the conciliation conference on 4 August 2025, the NTEU agreed that it would not object to UTS suspending courses. In a letter dated 8 August 2025 to the NTEU, UTS described the purpose of the suspension was ‘intended to ensure that prospective students receive timely and accurate information, minimise potential adverse impacts on students and reduce associated legal and reputational risks to the University.’[16]
The NTEU contends that its position in this regard was conditional on the suspension being undertaken in accordance with normal established processes as business-as-usual. The NTEU contends that at no stage did any representative of the University suggest that it might suspend 140 courses.[17]
During the period from 5 August 2025 to 13 August 2025, the NTEU and UTS exchanged correspondence about the procedure that would be undertaken with respect to the suspension of courses.[18] In its letter dated 8 August 2025 to the NTEU, UTS described the suspension as an operational decision and relied on UTS’ Course Approval Policy and in particular clause 6 which provides that suspension of intake for a course is to be provided by the Provost. UTS also referred to the Standing Orders for Faculty Boards and noted that a Faculty Board has an advisory role in respect of matters including the introduction of or changes to courses, which in practice has been focussed on curriculum and not operational changes. UTS concluded by stating that under this governance framework, the Provost, rather than the Faculty Boards, will consider and approve the temporary suspension of intake for the affected courses for Autumn 2026.[19]
The NTEU responded to UTS’ letter on 12 August 2025 by asserting that while the Course Approval Policy designates the Provost as the final approval authority for a suspension of intake, the Standing Orders require Faculty Boards to consider and make recommendations on all major changes, including suspensions of intake. The letter relevantly stated:
On the current reading of the University’s governance instruments, the Provost cannot approve
a suspension of intake as a unilateral executive action without prior faculty-level consideration.
Proceeding on this basis would contravene the Standing Orders for Faculty Boards, disregard the Course Approval and Publication Procedure’s two-stage process, and contradict the operational workflow set out in the official CourseLoop Guide. Ignoring the CourseLoop process would breach the University’s own published operational system for course changes.[20]
On 14 August 2025, Professor Parfitt sent an email to staff which advised that the Provost has now formally approved the temporary suspension of new student intakes for some courses up to and including for Autumn 2026, that no decision has been made to discontinue any course and that it is an operational decision that is intended to minimise potential disruption and dissatisfaction for prospective students that could arise if, during the key recruitment period, applications are made for Autumn 2026 courses that may subsequently be changed or discontinued.[21] The email advised that any decision to discontinue course offerings will only be made following consultation with staff and unions through the upcoming Academic Change Proposal Process. The email stated that the courses to be temporarily suspended were recommended by the faculties and are courses for which there has been low student enrolments over a period of time. The email said that the decision needed to be made at that time for the following reasons:
Recruitment and admissions deadlines: Open Day (30 August 2025) and Universities Admissions Centre (UAC) offer rounds (beginning 4 September 2025) are key events in our student recruitment cycle. Acting now avoids promoting courses that may not be offered in 2026 and protects prospective students from making plans based on potentially incomplete or uncertain information.
Information accuracy: The 2026 UTS Handbook (to be published 1 September 2025), along with updates to UAC, international agent portals and the UTS website, require confirmed course availability. Temporary suspension of intakes for some courses, pending the outcome of consultation on the upcoming Academic Change Proposal, is the most effective way to prevent confusion or possible misrepresentation to stakeholders and to ensure consistent and accurate information across all platforms.
Supporting prospective students: Many domestic and international students are already making decisions for 2026, including financial commitments, visa applications and relocation arrangements. Providing timely and reliable course information supports their planning and reduces the risk of unnecessary disruption or stress that might be occasioned if courses they applied for were later discontinued.
As noted above, the NTEU sought further assistance from the Commission on 13 August 2025, the day before Professor Parfitt announced the course suspensions, for reasons which included that the NTEU had become aware that normal processes and procedures were being by-passed with respect to course suspensions. At the conciliation conference in the Commission on 15 August 2025, the NTEU proposed that the course suspension announcement be withdrawn, but the University refused to do this.
Mr Chris Riddett is a Curriculum and Quality Coordinator at UTS.[22] In this role, he is responsible for processing and managing course changes in relation to the Faculty of Design and Society. This includes the suspension and discontinuation of courses, as well as the approval of new courses.[23] Mr Riddett explained that suspension of intake refers to the cessation of new student enrolments into a course for a particular teaching period, typically lasting one year. It is typically done when there are plans to discontinue a course, usually because of low enrolments. In ordinary circumstances, a suspension of intake follows extensive consultation with course coordinators and academic staff involved in teaching the course. This consultation has not occurred in relation to the suspensions announced on 14 August 2025.[24] Mr Riddett explained that it is not routine for courses to be suspended en masse. Typically, suspensions occur when a course is deemed unviable, and the process originates at the school level.[25]
Mr Riddett said that the suspension of student intake into a course is typically the first step in a process that may lead to the course’s eventual discontinuation. Suspensions are typically for one year but may be extended upon request in the following year. There is a process for reversing a suspension, however, Mr Riddett is only aware of one instance where a suspension of intake has been reversed. Mr Riddett has reviewed data on course suspensions and noted that only 16 courses or suites of courses were suspended between 2020 and 2024. Of those, 14 of the 16 courses were subsequently phased out or discontinued within three years of the suspension. One was reinstated and the other remains under suspension. Mr Riddett said that this trend aligns with his experience that once a course is suspended, it is rarely reinstated.[26]
Dr Keiko Yasukawa is a casual academic and Honorary Associate in the UTS’ School of International Studies and Education. Dr Yasukawa was previously employed as an academic in Education from 1993 until her retirement in June 2025. Dr Yasukawa was also the UTS NTEU Branch Secretary from 2014 to 2024.[27]
Dr Yasukawa explained that the immediate impact of course suspensions is felt by casual academics, particularly those who teach first-year subjects, which are often the first to be affected when intake into a course is paused.[28]
Dr Yasukawa explained that if new student enrolments are suspended for Autumn 2026, first-year subjects will either not run, or run in a limited way to enable those who need to repeat these subjects. There will be no new students commencing those courses, and therefore significantly less teaching required for first-year subjects. This will directly affect staff who are normally scheduled to teach those subjects.[29]
Dr Yasukawa explained that affected staff will have significantly less teaching work. Some staff may continue teaching second or later-year subjects for students already enrolled, as the University has advised current students that their courses will continue. However, this ‘teach-out’ period is expected to last only two to three years when the final students complete their course.[30]
Dr Yasukawa said that during the teach-out, the University will likely not require the full complement of current staff to deliver the remaining coursework. Only a fraction of the existing staff may be needed, which will have a substantial impact on staff workloads. Staff who lose first-year teaching allocations may be asked to take on other subjects to make up their workload. This may be feasible in areas with large enrolment subjects that rely on casual tutors. However, in specialist disciplines, it is much harder for staff to transition into other teaching areas.[31]
Dr Yasukawa explained that where teaching allocations cannot be met, staff may be asked to take on additional service roles. However, these roles are unlikely to fully compensate for the loss of teaching hours if entire courses are suspended.[32]
Dr Yasukawa said that in the Faculty of Design and Society, and particularly within the School of International Studies and Education, the proposed suspension of new student intake
into courses is likely to result in staff redundancies, particularly if UTS plans to discontinue or phase out the courses after the current cohort of students graduate. Education programs at UTS are highly specialised, which significantly limits the ability of academic staff to be redeployed into other teaching areas.[33]
Professor Kylie Readman is employed by UTS as the Deputy Vice Chancellor (Education and Students).[34] Professor Readman said that the temporary suspensions of new student intakes for Autumn 2026 were not imposed on a ‘top down’ basis by central management but that each Faculty Dean submitted a memorandum to the Provost in August 2025 requesting temporary suspension of specified courses and majors. Those requests were based on course data, including enrolment trends and alignment with faculty and UTS strategy. Professor Readman said that the Deans identified that the courses were not viable in their current state and recommended suspension. The Provost then approved those faculty recommendations in accordance with her authority under the Course Approval Policy and the Course Approval and Publication Procedure.[35]
Professor Readman referred to sections 7.1 and 7.2 of the Higher Education Standards Framework (Threshold Standards) 2021 which relevantly require higher education providers to ensure that:
(a)Representations about courses are accurate and not misleading; and
(b)Prospective students are given timely and reliable information to support informed decision making.[36]
Professor Readman said that in her view, if UTS had not temporarily suspended intakes by 13 August 2025, there was a real risk that inaccurate course information would have been published contrary to these requirements.[37]
Professor Readman said that between 11 and 19 August 2025, the University conducted a series of workshops with the NTEU nominated representatives covering financial and course viability issues. One of those workshops, held on 19 August 2025, was specifically focussed on course viability and was attended by Professor Readman and members of her portfolio. Temporary suspension of intake was also discussed at the meeting.[38]
Ms Blackwell said that reversing the temporary suspension, then potentially needing to discontinue courses and majors later, would impact approximately 900 students at UTS, which could include international students who could experience particularly great inconvenience and financial loss from such a change.[39]
Relevant provisions of the Agreement
Clause 51 of the Agreement deals with managing workplace change. It provides:
Application
51.1. The provisions of this Clause apply to continuing, fixed-term and casual staff
Principles
51.2. Sound management of workplace change includes consultation with, and the involvement of staff who will be directly impacted by the change. The University is committed to a transparent workplace change process.
51.3. The University will use a variety of communication and consultation mechanisms so staff are kept informed of issues in the workplace and are provided with the opportunity to contribute their views about changes within the workplace that directly affect them. A staff representative will have the same rights to consultation and access to documents as conferred on a staff member under this Clause.
51.4. The University recognises that job security is important for staff and is committed to exploring strategies to limit or mitigate negative consequences of any proposed change on staff.
51.5. Retrenchment in accordance with Clause 55 of this Agreement will be a last resort. The University will minimise the need for retrenchment by exploring appropriate alternative measures to mitigate any negative consequences of workplace change, these measures will include:
(a)consideration of vacant positions and process improvement; and/ or
(b)consulting with impacted staff throughout major workplace change processes regarding appropriate voluntary measures such as voluntary separation in accordance with Clause 54; fixed-term transition to retirement contracts; change of appointment fraction; leave without pay; long service leave; and/ or redeployment in accordance with Clause 53.
Minor Workplace Change
51.6. The University will provide all relevant information to staff who are likely to be affected by minor workplace change matters and allow a reasonable period for consultation to take place prior to the implementation of any minor change.
51.7. ln circumstances where the University intends to change regular rosters or ordinary hours
of work, the University will:(a) provide staff with information about the proposed change;
(b) invite staff to give their views about the impact of the proposed change, including any impact on family and caring responsibilities; and
(c) consider any views given by the staff, prior to implementing such a change.
51.8. To avoid doubt, where the proposed change is likely to have a significant effect on
continuing or fixed-term staff, the provisions of Clause 52 will apply.
Major Workplace Change
51.9. Major workplace change applies to changes in operational requirements that could reasonably be expected to have a significant impact on continuing or fixed-term staff. Such
significant impacts may arise from:
(a) changes to the organisation structures where these are likely to give rise to reductions in staffing that may lead to redundancy, or significant and sustained changes to workloads;
(b) Significant changes to the functions, duties and responsibilities of positions that may lead to a need for different skills, qualifications and/or experience for positions;
(c) phasing out or discontinuing an existing program of teaching and/or research where these are likely to give rise to reductions in staffing that may lead to redundancy, or significant and sustained changes to workloads;
(d) potential outsourcing of functions where these are likely to give rise to reductions in staffing that may lead to redundancy, or significant and sustained changes to workloads; or
(e) major alterations to work arrangements such as the introduction or removal of shiftwork, or the relocation of staff to another campus that involves unreasonable additional travel.
Clause 52 of the Agreement deals with Major Workplace Change. It provides:
Application
52.1. The provisions of this Clause apply to continuing and fixed-term staff
52.2. Providing that the staff member has been employed in the same or substantially similar position and identically classified position in the same department (or equivalent), that staff member cannot be subject to more than one change process involving the potential redundancy of their position in any two-year period.
Definitions
52.3. ‘Change Proposal’ is a document used by the University to propose changes in the workplace.
52.4. ‘Position’ means a collection of functions, duties and responsibilities undertaken, as part of the University’s organisation, by a staff member or group of staff.
52.5. ‘Placement’ occurs when the University directly places a staff member in a suitable position without the requirement for a staff member to participate in a selection process in accordance with sub-clause 52.17.
52.6.’Redeployment opportunities’ may include:(a) the ability to participate in Expression of lnterest processes for new or vacant roles in the staff member’s current work area; or
(b) identification of other suitable vacant positions across the University.
52.7. ‘Redundancy’ occurs when the University decides that it no longer requires the position a
staff member has been performing to be done by anyone and this is not due to the ordinary and customary turnover of labour, or the duties have so changed that for all practical purposes the original position no longer exists. This can occur when:(a) all or a significant proportion of the substantive work performed in the position is no longer required by the University;
(b) the University changes the position with the effect of substantially changing the skills, qualifications and/or experience required for the position or the hours of work required; or
(c) the University decides to reduce the aggregate number of like positions that are
surplus to requirements.
lnitial Consultation
52.8. Before developing a Change Proposal, the University will consult with potentially affected staff about a potential change that may have a significant impact on them.
52.9. The initial consultation phase will include information regarding the reasons for the possible change, and details of the University’s desired outcomes.
52.10.The University will invite potentially affected staff to provide any options, ideas or suggestions to assist the University achieve its desired outcomes.
52.11 The University will consider feedback from staff and will propose actions that will address the reasons for change, where possible and appropriate.
Change Proposal
52.12. Following the initial consultation process, if the University decides to propose a major workplace change as described at sub-clause 51.9, the University will develop a Change Proposal for consultation with staff directly affected by such a change and Unions. The Change Proposal will include:
(a) why the change is necessary, the nature of the change and expected outcomes;
(b) the likely impact of the proposed change on staff, including changes to positions, work processes, workloads, placements, redeployment opportunities and possible redundancies (as relevant);
(c) the process for consultation and proposed implementation strategies, including anticipated timelines;
(d) a proposed approach for a review of the implemented change; and
(e) information on the support available for staff.
52.13. Where relevant, the Change Proposal will also include:
(a)organisational charts outlining the current structure and proposed structure, and any proposed new or changed position descriptions;
(b)copies of, or extracts from, any reports that have led to the proposed change;
(c)anticipated financial implications of the proposed change;
(d)an assessment of the psychosocial health and safety impact of proposed changes on staff, including workload matters, and proposed mitigation strategies; and
(e)an assessment of the impact on workforce diversity in relation to the University’s equity and lndigenous employment objectives, and proposed mitigation strategies.
52.14. Where a reduction in numbers of the same or substantially similar positions in a work area is contemplated, objective criteria will be developed and will form part of the Change Proposal to facilitate consultation regarding how potentially redundant positions will be
identified.
52.15. Feedback and input from impacted staff will inform decisions made by the University to proceed with the change as proposed, or in a revised form. The University will consider any measures put forward by a staff member to limit or mitigate negative consequences of the change on them and will implement such measures, where possible and appropriate,
52.16. lmpacted staff and Unions will be given reasonable time to provide feedback on the Change Proposal before any final decisions are made by the University.
Placement Decisions
52.17. When determining the placement of staff members in any new structure, the following
principles will apply:
(a) a staff member employed on either a continuing or fixed-term appointment whose position remains in the new structure, and is not significantly changed, will continue to hold the same or substantially similar position in the new structure; or
(b) a staff member whose position does not remain in the new structure will be placed in any vacant suitable position in the new structure, or elsewhere within the University, contingent upon the following requirements:i. the staff member holds the necessary skills, qualifications and/or experience for the position; or
ii. staff member will be able to acquire the necessary skills and experience for the position within a reasonable period of time, or with relevant training; and
iii. the position requires similar skills, qualifications and/or experience and involves a similar level of: task complexity; judgement; problem solving; and independence as the substantive position held by the staff member; and
iv. the placement of the staff member will be made at their existing terms of appointment or higher, including category of appointment and classification level.
Implementation
52.18. Before commencing implementation, the University will advise affected staff in writing of its decision to proceed with the change as proposed or in a revised form. Advice of the University’s decisions will address:
(a) the University’s response to consultation feedback;
(b) any changes to what was initially proposed, arising from consultation feedback;
(c) confirmation of the change impact on staff, including changes to positions, work processes, workloads, placements, redeployment opportunities and redundancies (as relevant);
(d) confirmation of the implementation plan and anticipated timelines; and
(e) the timeframe and approach for reviewing the implemented change against the expected outcomes. The timeframe for reviewing the implemented change will be within 12 months of the University communicating its decision regarding the change, or within a timeframe agreed to between the University and the Unions.
The Dispute Settling Procedure is at clause 12 of the Agreement. Clause 12.1 requires clause 12 to be followed to settle a dispute about the interpretation, application or operation of any provision of the Agreement or in relation to the National Employment Standards (NES). Clause 12.3 provides that until the steps in the Dispute Settling Procedure have been concluded, which includes referral to the Fair Work Commission:
(a) work will continue in the normal manner;
(b) the University will not change work, staffing or the organisation of work, if such action is the subject of the dispute; and
(c) the parties to the dispute will not take any action likely to exacerbate the dispute.
Submissions
Prima facie case
NTEU’s submissions
The NTEU submitted that the Agreement clearly and expressly requires UTS to provide during the initial consultation phase ‘information regarding the reasons for the possible change’. That obligation will not be satisfied where the stated reasons for the possible change are inaccurate or incomplete. The failure to provide true or complete reasons for the possible change flows through to UTS’s obligation to consult with potentially affected staff and the rights of those staff to have an opportunity to provide feedback in relation to the possible change. Without knowing the true reasons for the change, any opportunity to consult afforded to staff is not meaningful.
The NTEU submitted that it has uncovered evidence, reproduced to the Commission on this application, that tends to suggest that UTS has not been completely frank in the reasons it has provided to affected staff for possible change. The strength of that evidence and the extent to which it exposes UTS’ true reasons are matters that may only be fully resolved at a final arbitration of the issues, however for the purposes of this application, the Commission can be satisfied that the NTEU has a cogent case with reasonable prospects of success.
UTS’ submissions
UTS submitted that the only submission of substance by the NTEU on the existence of a serious issue to be tried appears to its submission that it has ‘uncovered evidence’ to suggest that UTS has not been completely frank in the reasons it has provided to affected staff for possible change. It has not identified or analysed in its submissions the evidence at and its submission that the Commission can be satisfied that the NTEU has a cogent case with reasonable prospects of success is implausible.
UTS submitted that the NTEU has not specified in its application for interim relief any conduct or omission by UTS that is alleged to constitute a contravention of clauses 52 or 12.3(b) of the UTS Agreement. Further, there is no submission at all in relation to why interim orders are needed by reference to its allegation that clause 12.3(b) of the UTS Agreement has been contravened.
Balance of Convenience
NTEU’s submissions
The NTEU relied upon the statements of Mr Riddett and Dr Yasukawa in relation to balance of convenience and submitted that the following points could be drawn from those statements:
The direct immediate effect of the suspensions is likely to be a reduction of workload of casual academics, particularly those who teach first year subjects;
All academic staff who would normally be scheduled to teach first-year subjects would have their teaching load reduced. Some staff may be able to take on other subjects, however in specialised disciplines that is harder;
The indirect consequence of the suspensions is the likelihood that they will become permanent discontinuations of the suspended courses.
The NTEU submitted that there is sufficient evidence before the Commission for it to be satisfied that the suspensions are, in truth, a step in the implementation of the OSI. In particular, the internal progress report provided to the NTEU on 19 August 2025 states clearly that it was an aspect of UTS’ initiative that it commences the discontinuance of courses before key dates such as the publication of the student handbook and the deadline for enrolment. It is out of order and contrary to the Agreement for UTS to take any step to implement the OSI before the Initial Consultation and Change Proposal phases have been completed.
The NTEU submitted that UTS has always acknowledged that the implementation phase of the OSI would involve a substantial reduction of academic staff numbers. When viewed through this lens, the ultimate impact of the suspensions as a substantive aspect or step in the implementation of the OSI on the NTEU’s members is likely to be significant, involving mass job loss and substantial changes to staffing and the organisation of work. This should factor heavily in the Commission’s assessment of the balance of convenience.
The NTEU submitted that it has not offered and does not intend to provide any undertakings as to damages. It accepts that the absence of any undertaking may be a matter relevant to the Commission’s calculation under the balance of convenience. However, the Commission would have to be satisfied, by cogent evidence, that the reversal of the suspensions would have an adverse economic impact on UTS before weighing the absence of undertakings against the grant of the interim orders.
UTS’ submissions
The University submitted that if the interim orders are made:
(a) UTS will be delayed in addressing the financial deficit that the OSI strategy is designed to mitigate, and this will have adverse consequences for its financial position;
(b) prospective students may be significantly inconvenienced in that students are already making commitments, including accommodation, relocation and visa applications, based on the availability of courses; and
(c) if suspensions on course intakes are withdrawn, but those courses are later discontinued, this could also expose UTS to claims by students, for example who could allege misrepresentation or seek redress for late course cancellations.
UTS submitted that it is not suggested by the NTEU that it has not been able to prepare its documented response to the Initial Consultation which was due on 27 August 2025. Nor is it submitted by the NTEU that the temporary suspension of course intake has in fact changed any work, staffing or the organisation of work of NTEU members at UTS.
UTS submitted that no evidence has been adduced from any member of the NTEU who contends that they have not been fully consulted by UTS in accordance with its obligations.
UTS submitted that there is simply no case advanced to indicate any real prejudice to the NTEU or its members if the interim orders are not granted.
UTS submitted that the NTEU has unduly delayed the bringing of the application in circumstances where it represented that did not oppose the temporary suspension of course intakes and further that the NTEU withheld from the Commission and UTS on 20 August 2025 the fact that it had retained lawyers to bring this application.
UTS submitted that the NTEU’s representation to the Commission and UTS on 4 August 2025, that it did not oppose the temporary suspension of course intake as a business-as-usual process, is disentitling conduct that strongly counts against the exercise of any discretionary powers by the Commission.
UTS submitted that an applicant for an injunction is required to give the court an undertaking as to damages to secure such relief. The usual undertaking as to damages is an undertaking to the court to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as it may direct) to any person (whether or not a party) affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation (with or without variation) of the interlocutory order or undertaking. The NTEU has expressly stated that is does not intend to provide an undertaking as to damages in any form. It accepts that the absence of any undertaking may be a matter relevant to the balance of convenience.
UTS submitted that the proposed OSI is intended to introduce initiatives to mitigate UTS’s ongoing financial deficits. Proposed order 2(a) sought by the NTEU is specifically framed to stop all work associated with the OSI pending the outcome of an arbitration. Based on financial modelling prepared by the University’s Finance Division, UTS is losing approximately $2 million in additional costs or foregone savings for every week of delay. Any delay in stemming those losses is likely to be considerable if the NTEU application for proposed order 2(a) is granted. Yet, the NTEU does not want to assume any responsibility for that outcome if its contentions about UTS contravening clause 52 or 12.3(b) are not upheld at arbitration. This is another discretionary factor weighing against the grant of the interim relief, in particular Proposed Order 2(a).
UTS submitted that the NTEU represented at the conciliation on 15 August 2025 before the Commission that when it had produced and submitted its feedback document to UTS on 27 August 2025, and UTS has considered it, initial consultation would be concluded. The application for interim orders ‘flies in the face’ of that representation and is disentitling conduct, given that the grounds now relied upon for the seeking the interim orders are grounds that were well known to the NTEU when it made the representation on 15 August 2025.
Consideration
The application for interim orders has been made by the NTEU pursuant to section 589(2) of the FW Act.
Section 589 of the FW Act provides:
589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.
The power granted under section 589(2) of the FW Act to make an interim decision in relation to a matter also incorporates a power to make an interim order. The power to make an interim order is discretionary.
In determining whether to exercise that discretion the Commission applies principles substantially similar to those applied by the Courts in determining whether interlocutory relied ought to be granted.[40]
Those principles require the Commission in considering whether to make an interim order to determine whether there is a serious question to be tried or that the applicant has made out a prima facie case; and whether the balance of convenience favours the granting of the interim order sought.[41]
Prima facie case
In his witness statement, Mr Rickard stated that if the matter is arbitrated, it will ask the Commission whether the following matters constituted a breach of clauses 52.8-52.11:
(a) UTS’ continuing assertion that decreased international student enrolments were a reason for the possible change despite evidence that international student enrolments had not decreased and in fact increased;
(b) UTS’ continuing assertion that repayment of the $300 million bond by 2027 was a reason for the possible change despite evidence that UTS could repay the bond by 2027 without the need to restructure;
(c) UTS’ Failure to disclose evidence that capital expenditure and the performance management of staff were matters relevant to its reasons for the possible change.
Mr Rickard referred to the following documents in his witness statement which he suggested contradicted the assertions of the University about the reasons for possible change:
· Document 33 GIPA 2025/04 which showed that UTS could repay the $300 million bond by 2029 2027 without resorting to a restructure.
· Document 39 2025/04 University of Technology Sydney Debt Refinance Strategy (UTS DRS), suggested that UTS projects a significant increase in capital expenditure in 2028 and 2029.
· Schedule 1B, which suggested that UTS engaged KPMG to compile a list of academic staff members not meeting research expectations.
Mr Rickard also referred to UTS’ acknowledgement that the Commonwealth Government had abandoned its plan to cap international student numbers and questioned UTS’ reference to Ministerial Direction 111 as an alternative lever to limit international student numbers and the associated revenue.
The matters and documents referred to above are all referred to in the NTEU’s dispute notification dated 24 June 2025, so it has been open to the NTEU to seek arbitration of these matters since the dispute was first listed on 4 August 2025.
It is therefore unclear to me how the matters which the NTEU is now seeking to arbitrate have not been addressed during the conciliation process and remain outstanding. If it is the case that these matters are not resolved, the material filed does not establish that the NTEU has a prima facie case that the NTEU is in breach of clauses 52.8-52.11 of the Agreement. Apart from the document provided to Mr Rickard by UTS on 19 August 2025 which I will deal with shortly, the NTEU has not pointed to any specific actions or omissions of UTS during the period from the first conciliation on 4 August 2025 to the date of filing for interim orders apart from reiterating the general concerns about UTS not being entirely frank about the reasons for the possible change which were raised in the dispute on 24 June 2025. The contention that the dispute is not resolved is also inconsistent with the parties’ agreement, referred to in UTS’ correspondence of 18 August 2025, that the NTEU would provide ‘additional written options, ideas, and suggestions’ for the University’s consideration by Wednesday, 27 August 2025. The reference to ‘options, ideas, and suggestions’ corresponds to the language used in clause 52.10 of the Agreement and suggest that the parties had agreed that compliance with clause 52.10 would take place on 27 August 2025 and that initial consultation would cease once UTS considered the NTEU’s feedback.
It is, of course, possible that there are outstanding issues arising from the dispute, but it is not apparent what these issues are based on the material before me. It seems to me more likely, that the application for interim orders has been triggered by UTS suspending courses on 14 August 2025 rather than any actions or omissions by UTS with respect to the provision of information since the dispute was filed. There is no correspondence between the NTEU and UTS after 15 August 2025 which indicates that there continues to be a dispute about the matters raised in the original dispute notification. The only material in this regard before the Commission is the email from Mr Rickard to the Commission dated 22 August 2025 which relevantly stated that, ‘the NTEU does not regard the matter as closed, and is considering its options regarding a number of issues that have arisen with regards to this matter’.
It is understandable that staff are concerned about the extent of the course suspension and that courses subject to suspension may be discontinued. Although the NTEU did not object to some courses being suspended at the conciliation on 4 August 2025, I accept the evidence of Mr Rickard that the NTEU expected that this would be undertaken with normal established processes as business as usual and that no representative of UTS suggested that 140 courses would be suspended. Further, I note that the NTEU raised its concerns about the process that UTS intended to undertake with respect to the suspensions soon after 4 August 2025 and that the NTEU sought assistance from the Commission about this issue on 15 August 2025.
There is clearly a link between the suspended courses and those that may be discontinued. This is implicit from the emails from Professor Parfitt to staff and demonstrated by the criteria applied by Faculty Deans when recommending courses to suspend. Related to this matter is that UTS referred the NTEU’s dispute to the Commission on 17 July 2025 which it said was ‘unnecessarily impeding progression of and consultation about the Change Proposal, and prolonging UTS’s unsustainable financial position’. It is in this context that the document titled ‘Transformation Portfolio Insights’ dated July 2025 which UTS provided the NTEU with on 19 August 2025 must be understood. On page 13 of that document, there is a comment in relation to “‘Sustainable Teaching and Learning’ which states:
Resource gaps are being addressed to ensure activities around proposed discontinued courses & subjects can be managed to meet key dates (e.g. external notifications, handbook publication, open day, enrolment date).
Mr Rickard said that he understood this comment to mean that the temporary suspensions, which have occurred before the key dates mentioned, including handbook publication, open day and enrolment deadlines, are a step in UTS’ plan to discontinue rather than temporarily suspend those courses.
In my view, when read together, the dispute application to the Commission and page 13 of ‘Transformation Portfolio Insights’, which were both issued in July 2025 indicate that UTS was proposing to conclude the initial consultation and issue its change proposal in or about July 2025 and that it believed that it would be in a position to make a final decision about which courses to discontinue by the ‘key dates’. I do not believe that suspension was being considered by UTS when it issued ‘Transformation Portfolio Insights’ in July 2025 and that this only occurred in August 2025 once UTS agreed to extend initial consultation following conciliation of the dispute in the Commission.
However, given that the reasons behind suspension of courses are likely to be relevant to any subsequent discontinuation of those courses, it is likely that UTS was required to consult with employees at the initial consultation stage about the proposal to suspend courses as part of informing any subsequent workplace change proposal under 52.12 in relation to discontinuing any of those courses. In this regard, the NTEU has raised a dispute about this matter dated 22 August 2025 however that dispute is not before me so I do not have jurisdiction to deal with it.
In conclusion, there is insufficient evidence before me to establish that there is a prima facie case in relation to the NTEU’s claim that UTS is in breach of clauses 52.8-52.11 with respect to the matters that were raised in the dispute of 24 June 2025. I do not accept that the ‘Transformation Portfolio Insights’ establishes that the temporary suspensions, are a step in UTS’ plan to discontinue rather than temporarily suspend those courses. However, I believe that it is likely that the reasons for suspension of courses will inform any subsequent discontinuation of those courses and note that concerns about this matter can be dealt with through the dispute raised about this matter by the NTEU on 22 August 2025.
Balance of convenience
It is not necessary for me to deal with the balance of convenience issue, because of my findings in relation to prima facie case, but I deal with this for completeness.
In my view, the interests of students and staff are very finely balanced. The immediate effect of the suspensions is that a large number of courses will not be available for the first semester of 2026. The NTEU has provided evidence which I accept that all academic staff who would normally be scheduled to teach first-year subjects will have their teaching load reduced. The indirect consequence of the suspensions is the likelihood that they will become permanent discontinuations of the suspended courses which will have an impact on job security.
Against these considerations are those in relation to students who may be disadvantaged if they apply for and make arrangements in relation to a course which is later discontinued due to the change proposal, and obligations by UTS to provide timely and reliable information to prospective students to support informed decision making.
Ultimately, if I was required to, I would find that balance of convenience favoured the making of the order. However in my discretion, I would not make the order, given that:
the NTEU could have sought an expedited arbitration of the alleged breach of clauses 52.8-52.11 on or soon after the conciliation on 4 August 2025 which would likely have resulted in the matter being determined to finality by now;
it is unclear how the matters which the NTEU is now seeking to arbitrate have not been addressed during the conciliation process and remain outstanding; and
that evidence indicates that that the parties agreed that compliance with clause 52.10 would take place on 27 August 2025 and the NTEU did not indicate that it had withdrawn from this position until filing the application for interim orders.
Conclusion
I dismiss the NTEU’s application for interim orders. In these circumstances, it is not necessary for me to deal with UTS’ application pursuant to s.587(1)(c) of the FW Act.
DEPUTY PRESIDENT
Appearances:
Mr S. Meehan, Counsel for the Applicant
Mr A. White, Counsel for the Respondent
Hearing details:
2025
27 August 2025
In person, Sydney and online
[1] NTEU’s Outline of Submissions, [32]
[2] Ibid [4]
[3] Ibid
[4] Ibid
[5] Ibid
[6] Statement of Scott Rickard dated 26 August 2025 (Rickard Statement), [18]
[7] Ibid, [19]-[20]
[8] Ibid, [21]-[23]
[9] Affidavit of Jo Blackwell affirmed on 27 August 2025 (Blackwell Affidavit), Exhibit JB-1, 398
[10] Ibid, 444
[11] Ibid
[12] Ibid
[13] Ibid, 449-450
[14] Ibid, 451-452
[15] Ibid, 453
[16] Blackwell Affidavit, Exhibit JB-1, 401-402
[17] Rickard Statement, [29]
[18] Blackwell Affidavit, Exhibit JB-1, 399-402; 442-443
[19] Ibid, 401-402
[20] Ibid, 442-443
[21] Ibid, 454-456
[22] Statement of Chris Riddett dated 26 August 2025, [2]
[23] Ibid [3]
[24] Ibid [5]-[6]
[25] Ibid [9]
[26] Ibid [17]-[21]
[27] Statement of Dr Keiko Yasukawa dated 26 August 2025, [1]-[4]
[28] Ibid [3]
[29] Ibid [6]
[30] Ibid [7]
[31] Ibid [8]-[9]
[32] Ibid [10]
[33] Ibid [11]
[34] Affidavit of Professor Kylie Readman dated 27 August 2025
[35] Ibid, [3]-[5]
[36] Ibid, [9]
[37] Ibid, [10]
[38] Ibid, [16]
[39] Blackwell Affidavit [91]
[40] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corp (2003) 125 IR 88, [88].
[41] Construction, Forestry, Maritime, Mining and Energy Union v DP World (Fremantle) Ltd (t/as DP World ) [2019] FWC 4603, [44]-[46].
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