Victoria University v National Tertiary Education Industry Union

[2017] FWC 1199

[2017] FWC 1199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Victoria University
v
National Tertiary Education Industry Union
(C2017/1043)

COMMISSIONER BISSETT MELBOURNE, 2 MARCH 2017

Alleged industrial action at Victoria University.

[1] On 24 February 2017 Victoria University (University) made an application to the Fair Work Commission (Commission) seeking orders be issued against the National Tertiary Education Industry Union (NTEU) pursuant to s.418 of the Fair Work Act 2009 (FW Act). The application was filed late in the day and, in circumstances where it was not possible to finalise the matter within two days, I issued an interim order 1 on 24 February 2017 that certain information provided by the NTEU to its academic members at the University.

[2] The application proper was heard before me on 27 February 2017.

Background

[3] There are a number of on-going disputes between the University and the NTEU currently before the Commission in relation to workload allocation matters for academic staff at the University. The most recent application was made on 24 January 2017 (January application). These applications have all been allocated to me to deal with.

[4] The University has various frameworks for the allocation of work to academic staff (academic workload framework). These frameworks are developed through a process set out in clause 45 of the Victoria University Enterprise Agreement 2013 2(Agreement) and vary from College to College within the University. The frameworks provide for time allocation for a variety of functions including teaching, research and course and unit co-ordination roles (amongst others).The January application relates to the appropriate allocation of time for course and unit co-ordination work and the consultation process for changes in this from existing workload allocation frameworks. The earlier disputes relate generally to the process of making changes to allocation frameworks and/or the development of frameworks in Colleges that do not yet have one.

[5] The January application was listed for conference on 31 January 2017. At that conference the University raised a jurisdictional objection to the matter being dealt with by the Commission because it said that the NTEU had not met the necessary requirements of the dispute settlement procedure prior to an application being made to the Commission. Instead of making any finding with respect to jurisdiction I recommended further meetings between the University and the NTEU. One further meeting occurred. Following a report to the Commission of that meeting a further meeting between the parties was recommended. This meeting occurred on 22 February 2017.

[6] The January application primarily goes to questions of the allocation of time for the work of course and unit co-ordinators in the various Colleges of the University. Some Colleges have made alterations to the functions performed by course and unit co-ordinators and altered time allocations whilst others have not made changes but are working towards some change.

[7] On 14 February 2016 Dr Paul Adams, President of the NTEU Victoria University Branch, issued an email to all academic NTEU members with the heading “The Great Academic Workload Swindle but it’s the students who will really be getting robbed”. The email said:

“Dear Academic NTEU member

As many staff will now be aware, University management have either abolished coordination roles in most Colleges or have significantly reduced allocations for these tasks as well as other roles and tasks.

The effect of these changes is squarely aimed at massively intensifying workloads, dudding students and white-anting courses and units. This is despite the endless stream of rhetoric coming from management that claims that they are concerned with ‘student success’.

Taking the U out of VU

As the NTEU has been saying for some time now – the current management of the University is only narrowly concerned with ‘rescuing’ the University as a financial entity but not with saving the University as a University with quality programs which are supported by staff who are well resourced to undertake their professional duties so that they are able to support students. The NTEU is continuing [to] raise these issues with management locally and at the Fair Work Commission.

Advice to staff

However, as coordination roles are rapidly being abolished or reduced in allocation for the start of semester one for ongoing, contract and sessional staff while these discussions are continuing, the NTEU would tender the following advice.

1. If workloads are indicative, do not commit to any actual work until your work is clarified in writing.

2. If workloads have been finalised, seek detailed clarifications of any anomalies (e.g. research metrics, coordination points etc.) in writing and pass them on to the Union.

3. If the coordination role (i.e. stream, unit or course etc.) has been abolished all together in your College, don’t do these tasks. Be aware also that unit coordination, for example, normally includes a range of tasks such as preparation of teaching material for other staff in a unit, including setting up a collaborate site if it, for example, involves multiple teaching staff. A full list of coordination tasks that have either been agreed upon by management or presented in the past by management as coordination tasks in various forums can be found here.

4. If you have been given a coordination allocation, please check to see it is the correct allocation. The formulas for calculating coordination allocations in each College can be found here.

5. If the allocation is wrong, you can advise your discipline coordinator or the Dean that you no longer wish to do this role because the allocation is not correct. Please advise the union if you have any problems resigning from your role.

6. If you decide to do a coordination role with a reduced allocation or in fact any other role (e.g. selection, discipline coordinator, etc.), then we would suggest that you keep a diary of hours spent on those tasks. 1% or 1 point of a 100% load = 17.1 hours. Once you have exhausted the reduced allocation that you [have] been allocated for your role, we would suggest that you advise your Dean that you either need more workload allocation to fulfil your role or that you are no longer able to carry out the duties of the role any further because you have exhausted your workload allocation.

7. Please also be aware that any time you decide to ‘donate’ work to the University without a workload allocation you will tend to ‘normalise’ these arrangements, and you will probably be expected in the future to ‘absorb’ these activities into other parts of your workloads as a routine activity. So think carefully if this is what you want to do.

8. If you are bullied or threatened, please contact the Union. Please pass on also all email correspondence to us should problems arise.

9. Various example emails can be also found here if you are not sure what to write to your discipline leader or Dean.

The NTEU is also developing a public campaign to attempt to address the deterioration of teaching conditions at VU and the first year college. Watch this space for more information and actions.

Yours in Union

Paul Adams

President, NTEU VU Branch

[8] The University says that some aspects of the email constitute the organising of industrial action by the University.

Submissions

Victoria University

[9] Evidence was given for the University by Professor Greg Baxter. His evidence is that the University has undertaken an extensive review of course and unit co-ordinator roles in consultation with staff. This review identified tasks that were no longer required to be done, could be done by other (administrative) staff or could be redefined. His evidence is that allocations (of time) for the redefined roles has occurred in two of the Colleges of the University on an interim basis whilst the remaining four Colleges having not changed their allocations from existing frameworks.

[10] Professor Baxter says that, in his view, paragraph 5 of the email suggests that staff may refuse roles allocated to them. Professor Baxter said that, whilst he acknowledges that there is some confusion amongst staff, the NTEU is contributing to this confusion.

[11] The University says that:

● The “advice” in the email is in the form of directions to NTEU members as to how they should perform their work in the event that circumstances arise pertaining to changes being made by the University;

● The changes relate to academic workloads being implemented by way of clause 45 of the Agreement;

● Clause 45.3.5 and clause 45.4.9 of the Agreement provide specific arrangements as to how academic staff may seek a review of workloads;

● Clause 45.4 of the Agreement provides a specific framework for monitoring workloads;

● The email gives direction to NTEU members in circumstances where the NTEU “strongly implied” that the changes sought by the University are not in accordance with the Agreement and where the matters are subject to industrial negotiations;

● The email gives directions aimed at implementing industrial action by NTEU members that ignores the specific and clear arrangements for dealing with such matters in clause 45 of the Agreement.

[12] The University says that, on an objective analysis, parts of the email constitute directions to NTEU members to work in a particular manner. The direction therefore constitutes industrial action, as defined in s.19(1) of the FW Act, the industrial action is being organised and is probable. It therefore says that there is a breach of s.418(1) of the FW Act and the Commission must issue orders.

[13] In particular, the University says that paragraphs numbered 3, 5 and 6 in the email constitute directions to NTEU members to work in a way different to that prescribed in the Agreement. During submissions the NTEU withdrew the complaint with respect to paragraph 6.

[14] With respect to the NTEU’s submissions that the status quo provisions of the Agreement apply because the internal dispute resolution step has not been completed, the University says that whilst it maintains that the Commission does not have jurisdiction to deal with the dispute, it does not accept that the status quo provisions at clause 59.4 apply.

[15] With respect to the further NTEU submissions, the University says that the changes to workload allocation is lawful and reasonable.

National Tertiary Education Industry Union

[16] Dr Adams gave evidence for the NTEU that he has been contacted by members who are confused and distressed with changes that had occurred to workload allocation for course and unit co-ordinators. He says the reference to “while these discussions are continuing” in the introduction to the numbered paragraphs is a reference to discussions with the University under the dispute settling procedure of the Agreement. Dr Adams says that the email was to do no more than advise members of what they should do if they had concerns about their allocations, including talking to their Dean.

[17] Dr Maree Keating gave evidence that, even though the teaching year has commenced, she has received no allocation for the co-ordination duties she undertakes. Dr Keating also gave evidence of a kit produced by the University and sent to staff on 24 February 2017 which purported to set out workflows for various functions under the revised allocations. Dr Keating said that her experience to date was that administrative staff who have taken on some of the re-allocated work do not have the skills or knowledge to do those tasks without reference back to academic co-ordinators.

[18] The NTEU says that the email issued by Dr Adams was designed to provide advice to members of the NTEU who had raised concerns with the NTEU about changing workload allocations. Further, it says that nothing in the email is or could be construed as a direction to NTEU members. The NTEU says that the important words are those above the numbered paragraphs which read “while discussions are continuing the NTEU would tender the following advice.”

[19] Of the numbered paragraphs in the email, the NTEU says that:

● Paragraph 1 advises staff not to commit to work until that work is clarified in writing. This it says accords with the provisions of clause 45.3.6 of the Agreement;

● Paragraph 2 advises staff to seek clarification of any anomalies in work that has been allocated;

● Paragraph 3 advises staff that if roles have been abolished it is best not to undertake the work until clarification is given as there would be no allocated time for the work;

● Paragraph 4 advises staff to check the allocations against the formula for their College developed in accordance with clause 45 of the Agreement;

● Paragraph 5 advises staff to raise any incorrect allocations with the Dean of the College;

● Paragraph 6 advises staff to keep records and, again, raise any concerns with the Dean.

[20] The NTEU says that the advice accords with the provisions of the Agreement. It therefore cannot be industrial action

[21] In addition or in the alternative the NTEU submits that the dispute the subject of the January application concerns the alteration of workloads outside the provisions of clause 45 of the Agreement. It submits that this matter is still subject to the disputes settling procedure of the Agreement at clause 59.3 and the matter is therefore subject to the status quo provisions of clause 59.4. Relying on the decision of the Commission in AGL Loy Yang v Construction, Forestry, Mining and Energy Union 3 (AGL Loy Yang)it says that even if the Commission was to find that the NTEU was organising industrial action it should not grant orders under s.418 of the FW Act in circumstances where this would circumvent the intent of the dispute settlement procedure in the Agreement.

[22] In addition or in the alternative the NTEU says that the directions issued by the University with respect to alterations to co-ordinator roles, in circumstances where there has not been genuine consultation and where the change has not been confirmed in accordance with clause 45 of the Agreement, is not a lawful and reasonable direction. A refusal to comply with a such a direction that is not lawful or reasonable does not constitute industrial action.

Legislation

[23] Industrial action is defined in s.19 of the FW Act:

19  Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

[24] An order to stop industrial action can be made pursuant to s.418 of the FW Act. Section 418 states:

418  FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

Consideration

[25] I am satisfied that an application for an order pursuant to s.418 of the FW Act has been made by the University.

[26] I am satisfied that there is no industrial action occurring (the University concede this).

[27] It is necessary to determine if industrial action is threatened, impending or probable or if it is being organised.

[28] In the first instance, this requires a consideration of whether the purported direction in the email from Dr Adams constitutes industrial action.

[29] To the extent that paragraph 3 and paragraph 5 purport to be a direction to NTEU members to not do work that is properly within their skills and experience and is work generally required of them under the workload allocation frameworks, then it is industrial action in that it is a restriction on the performance of work or a refusal to perform work. That work, in this case, being course or unit co-ordination tasks.

[30] This difficulty is not cured by the introductory words that the NTEU “tender the following advice.” The words in each of the paragraphs is clear. Paragraph 3 says “don’t do these tasks”. That is an apparent direction. Paragraph 5 advises that staff “can advise your…Dean that you no longer wish to do this role” because of the incorrect allocation. These clauses do indicate an intent that there is some restriction on the performance of work should be imposed and that these restrictions are countenanced by the NTEU.

[31] There is however a need to consider the context within which the advice was given to academic members of the NTEU. The email also says that “The NTEU is continuing [to] raise these issues with management locally and at the Fair Work Commission” and that “while these discussions are continuing, the NTEU would tender the following advice.”

[32] Matters associated with workload allocation for course and unit co-ordinator roles are the subject to the January application to the Commission. The University has raised a jurisdictional objection to the Commission dealing with the matter as it says the NTEU has not completed the internal discussions.

[33] The dispute settlement procedure is set out at clause 59 of the Agreement. It requires that, prior to the referral of a matter in dispute to the Commission under clause 59.5 of the Agreement, internal discussions (in this case under clause 59.3 of the Agreement) must be exhausted. The Commission does not have power to deal with the dispute until such time.

[34] The dispute settlement procedure also states that, until the processes under clause 59.2 or 59.3 (as applicable) have been exhausted:

● work shall continue in the normal manner (clause 59.4.1);

● the University shall not change the work, staffing or the organisation of the work if such is the subject of dispute, nor take any action likely to exacerbate the dispute (clause 59.4.3); and

● the subject matter of the dispute shall not be taken to the Fair Work Commission by the parties to the dispute (clause 59.4.4).

[35] Clause 59.4.2 also says that no industrial action will be taken in relation to the matter.

[36] In this case, the University has sought to maintain its jurisdictional objection to the Commission dealing with the January application but at the same time claim that the “status quo” provisions of clause 59.4 do not apply. The NTEU says that, following the raising of the jurisdictional objection, it has engaged with the University to try and resolve the dispute through the internal phase of the dispute settlement procedure and there is at least one further meeting scheduled for that purpose.

[37] The position of the University is not sustainable and is contrary to the dispute settlement procedure. The University cannot maintain that the Commission does not have jurisdiction because the internal process is not complete but then claim that a key component of the dispute settlement procedure associated with that internal process does not apply. That is to impermissibly re-write the dispute settlement procedure.

[38] Because internal meetings directed at resolving the dispute are continuing and the jurisdictional objection to the Commission dealing with the dispute is maintained, it must be concluded that the provisions of clause 59.4 (the “status quo” provisions) continue to apply.

[39] In AGL Loy Yang the employer had sought orders pursuant to s.418 of the FW Act with respect to a refusal by members of the CFMEU to undertake certain training. The employer argued that the refusal to obey a lawful and reasonable direction amounted to industrial action. I found in that matter that the direction to employees was a lawful and reasonable direction but that, in circumstances where a status quo provision existed within the dispute settlement procedure, the granting of the order would circumvent the intent of that dispute settlement procedure. In particular I found:

[117] I do not intend to grant the order sought by AGL LY. To grant the order sought would circumvent the intent of the disputes settling procedure. To grant the order suggests that a dispute about the application of the Agreement or any matter arising out of employment which results in work being done in a way not agreed to by AGL LY may be subject of an order to stop industrial action.

[118] In any event the dispute resolution procedure requires that ‘normal work’ continue while the dispute is being resolved. ‘Normal work’ is defined at clause 24.1(d) to include the performance of work prior to the introduction of a change where the dispute relates to that change.

[119] I am satisfied in this case that the change subject to the dispute is the requirement that employees complete the Module. The continuation of normal work is therefore the practice in place immediately prior to the introduction of the requirement to complete the Module.

[40] I consider the reasoning in AGL Loy Yang has direct relevance to the matter before me.

[41] I am satisfied that the action directed by the email from Dr Adams to academic NTEU members does not more than seek to maintain (in albeit a convoluted manner) the status quo as specified in clause 59.4 of the Agreement. As such, the action cannot be industrial action. It is action that appears lawful under the Agreement and for that reason alone cannot be industrial action.

[42] To grant the orders sought by the University in circumstances where the specific provisions of the dispute settlement procedure apply would hand to the University an outcome contrary to the operation of the Agreement.

[43] For this reason, the order sought by the University pursuant to s.418 of the Act is not granted. The application is dismissed.

[44] The interim order 4 issued on 24 February 2017 will be set aside.

[45] In reaching this conclusion I make no finding with respect to the reasonableness or validity of the actions of the University in seeking to make alterations to the workload allocation. I would recommend however that the NTEU take care with the form of the advice it provides to members.

COMMISSIONER

Appearances:

C. Martin for Victoria University.

E. McGrath for National Tertiary Education Industry Union.

Hearing details:

2017.

Melbourne:

February 27.

 1   PR590533.

 2   AE406376.

 3   [2014] FWC 8093

 4   PR590533.

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