[2011] FWA 3693 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Catholic University Limited T/A Australian Catholic University
(AG2011/6986)
VICE PRESIDENT LAWLER |
MELBOURNE, 10 JUNE 2011 |
Application for approval an enterprise agreement - differential redundancy benefits depending upon whether the employee was passed “normal retirement date as defined by the staff member’s superannuation fund” - whether discriminatory term and therefore an unlawful term.
[1] This is an application by the Australian Catholic University Ltd (University) pursuant to s.185 of the Fair Work Act 2009 (FW Act) for approval of The Australian Catholic University Staff Enterprise Agreement 2010 (Agreement).
[2] The National Tertiary Education Industry Union (NTEU) and CPSU, the Community and Public Sector Union (CPSU) contend that clause 7.3.6.3 is a discriminatory term within the meaning of s.195 of the FW Act, and therefore an unlawful term within the meaning of s.194 such that the Agreement cannot be approved without an appropriate undertaking by the University pursuant to s.190.
[3] Apart from this issue I am otherwise satisfied that the requirements of the FW Act are met in relation to the application for approval of the Agreement.
[4] The Agreement provides relative generous redundancy benefits to employees (staff members) in clause 7.3.5. However, clause 7.3.6.3 of the Agreement provides:
“7.3.6.3 A staff member whose employment has proceeded beyond staff member’s normal retirement date as defined by the staff member’s superannuation fund will receive severance payments in accordance with the National Employment Standards, enhanced as follows: ...”
(emphasis added)
[5] The clause then sets out a table the details of which are unimportant save to note that the benefits payable upon redundancy pursuant to clause 7.3.6.3 are very much less than those payable under clause 7.3.5.
[6] The Agreement contemplates that employees may belong to one of a number of superannuation funds specified in clause 2.3.2 (Funds). I do not have comprehensive evidence before me as to the written terms governing the entitlements of members of each of the Funds. One of the Funds, UniSuper, has a trust deed that defines “normal retirement date” to mean:
“(a) The date on which the member attains the age of 65 years; or
(b) Such later date upon which the Member’s employment determines in accordance with their conditions of employment (being not later than the end of the calendar year in which the Member attains the age of 65 years).”
[7] In other words, the member’s “normal retirement date” will be a date falling in the period from the date when the member turns 65 years and ending on the last day of the calendar year in which the member turns 65 years. It appears that UniSuper has the largest membership of the Funds among employees covered by the Agreement. Another of the Funds, the Catholic Superannuation Fund, defines “retirement age” as 65 years of age. It was submitted without contradiction that none of the Funds, other than UniSuper, define or otherwise refer to the expression “normal retirement date”. It was submitted without contradiction that, apart from UniSuper, none of the Funds define or use the expression. There is an issue as to whether clause 7.3.6.3 can operate in relation to an employee who is a member of a Fund that does not define that expression. It is unnecessary to resolve that issue here because clause 7.3.6.3 certainly operates in relation to employees who are members of UniSuper.
[8] One of the requirements of which FWA must be satisfied is the requirement in s.186(4) that the Agreement does not contain any unlawful terms. The expression “unlawful term” is defined in s.194. Pursuant to s.194(a) a term of an enterprise agreement is an unlawful term if it is “a discriminatory term”. The expression “discriminatory term” is defined in s.195:
“195 Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory terms
(2) A term of an enterprise agreement does not discriminate against an employee:
(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or
(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.”
[9] Several bargaining representatives contended that the Agreement could not be approved, without an appropriate undertaking by the University, on that basis that clause 7.3.6.3 is a discriminatory term within the meaning of s.195 and therefore and unlawful term within the meaning of s.194 such that the requirement in s.186(4) is not met.
[10] One employee in particular is affected by this state of affairs. He is due to be made redundant later in the year but will, by that time, have passed his 65th birthday. It is suggested that he is a member of UniSuper and, as such, will receive redundancy benefits under clause 7.3.6.3 rather than the more generous benefits under clause 7.3.5.
[11] The FW Act does not define discrimination. The law recognises that discrimination may be direct or indirect. In Waters v Public Transport Corporation 1 (Waters) Dawson and Toohey JJ summarised the distinction between direct and indirect discrimination as follows.
“A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v. Duke Power Co. [1971] USSC 46; (1971) 401 US 424. Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.
[12] In 1995 Safety Net Review and Section 150A Review 2 the Full Bench of the AIRC prepared to accept as practical and appropriate the following definitions, agreed by a central working party:
“Direct discrimination occurs when a person is treated less favourably in the same circumstances than someone of a different race, colour, sex, sexual preference, age, marital status, religion, political opinion, national extraction or social origin would be; or is treated differently in relation to pregnancy or physical or mental disability or family responsibilities.
Indirect discrimination occurs when apparently neutral policies and practices include requirements or conditions with which a higher proportion of one group of people than another in relation to a particular attribute can comply, and the requirement or condition is unreasonable under the circumstances. For example a job advertisement may contain a requirement that the job applicants must be over 180 centimetres tall, which may exclude many applicants, including most women and most members of particular racial groups. If there is no reasonable explanation for why applicants had to be so tall, the height requirement may be unlawful.”
[13] The way in which indirect discrimination can arise is well illustrated in the landmark decision of the High Court in Australian Iron & Steel Pty Ltd v Banovic 3. In that case the High Court held that a decision to select employees for redundancy on a “last on, first off” basis involved indirect discrimination contrary to the prohibition on indirect discrimination in s.24(3) of the Anti-Discrimination Act 1977 (NSW) because past hiring practices that were directly discriminatory against women meant that a disproportionate number of female employees were among the recently hired and would therefore be disproportionately selected by the “last on, first off” criterion: the criterion perpetuated the previous direct sexual discrimination.
[14] There is a real issue as to whether the definition of “discriminatory term” in s.195 is confined to direct discrimination or extends to indirect discrimination. As was noted by Mason CJ and Gaudron J in Waters, “[w]ithin the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect.” 4 Banovic and Waters were cases where the complaints relied upon the statutory prohibitions against indirect discrimination, which prohibitions invariably contain a reasonableness qualification. It is arguable that the absence of any reference to indirect discrimination means that the legislature intended s.195 to apply only to terms that discriminate directly. The explanatory memorandum does not assist in this regard. While I have not been assisted by full argument on the topic, I am inclined to the view that the notion of discrimination in s.195 extends to indirect discrimination because that construction would seem to be a construction that better furthers the objects of the FW Act. I proceed on the basis that s.195 extends to terms that are only indirectly discriminatory. Obviously, reasonableness is a factor in determining whether a clause is indirectly discriminatory.
[15] Mr Wedgewood on behalf of the ACU developed forceful arguments in his written submissions for the proposition that clause 7.3.6.3 should not be regarded as discriminatory. The central argument relies several decisions of the AIRC. The first is a decision of Wilks C in BHP Coal 5. Wilks C was dealing with a matter referred by a Full Bench who had dealt with an appeal against a decision of Harrison C in relation to the award simplification process. Harrison C had found that a retrenchment pay cap in a particular award was discriminatory. Item 51(7)(f) of the Workplace Relations and Other Legislation Amendment Act 1996 required the AIRC to be satisfied in relation to that award that:
“(f) it does not contain provisions that discriminate against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[16] It will be noted that the definition of a discriminatory term in s.195(1) of the FW Act is expressed in substantially identical terms.
[17] Notwithstanding the finding that the retrenchment pay cap was discriminatory, the Commissioner did not remove it from the award. The Full Bench was not convinced that this was simply an oversight and it remitted the matter to Wilks C to determine whether the retrenchment pay cap was discriminatory within the meaning of item 51(7)(f) and should therefore be removed. Wilks C held that the retrenchment pay cap was not discriminatory.
[18] Wilks C first concluded that there was no direct discrimination:
“[20] Clearly, the clause is applicable to all employees. There is no different formula applied to any employee on any of the bases which would be prohibited by the definition of direct discrimination. For example, if an employee retires at the "normal retiring age" of 60 years, he or she could not earn more than that. It follows therefore, that the clause is intended to avoid the potential for employees to obtain an unintended or "windfall" gain from being made redundant at a point where he or she is coincidentally nearer to the normal retirement age than another employee who, for no different reason is also made redundant, but may be much further from the normal retiring age of 60 years.
[21] Any differential in monetary entitlement is a function of the point in time at which the retrenchment occurs and is not based on some formula which relies upon the age of the individual concerned to differentiate directly. Accordingly, I find that the clause does not involve direct discrimination as described by the definition of it which I have set out above.”
(emphasis added)
[19] I have some discomfort with a translation of the reasoning in the first sentence of paragraph [21] to clause 3.7.6.3 in this case. As has already been noted, clause 7.3.6.3 operates by reference to an employee’s “normal retirement date as defined by the staff member’s superannuation fund” and, as such, is based on a formula which relies upon the age of the individual concerned.
[20] Wilks C then turned to consider indirect discrimination:
[23] The definition is comprised of two operative parts. The first is that "indirect discrimination occurs when apparently neutral policies and practices include requirements or conditions with which a higher proportion of one group of people than another in relation to a particular attribute can apply". The second is that "and the requirement or condition is unreasonable under the circumstances".
[24] The use of the conjunctive "and" means, in my view, that both of the operative parts of the definition must apply before a finding that this clause is indirectly discriminatory can be made.
[25] In relation to the second of those parts it is clear to me that, dependent upon the point in time at which an individual employee is retrenched, the quantum of retrenchment pay is affected. For example, an employee who is 58 years and 6 months of age and who has 30 years continuous service with a company would be entitled to 60 weeks retrenchment pay, while another employee who is 59 years of age and has the same amount of service with the company would only be entitled to 52 weeks retrenchment pay. This apparent discrimination is, as I have already said, not primarily caused by the clause but rather by the timing of the decision to retrench employees. Both of the employees in the example given above would not be entitled to any retrenchment pay at all if they had taken early retirement at age 55 or, alternatively, had worked on until the normal retirement age of 60 years. It is the fact of the redundancy which determines an employee's entitlement, the clause merely ensures that no employee can receive more than he or she would have received if no redundancy had occurred at all. In my view, such a clause is, in all of the circumstances, reasonable.
[26] Having formed the view that the clause is, in all of the circumstances reasonable, it is not necessary for me to assess the clause against the first part of the definition of indirect discrimination which I have set out above.
[27] I am fortified in my view that the clause is, in all of the circumstances reasonable, by the decision and proposed order of the Full Bench in the Award Simplification Decision [Print P7500].
[28] In that decision, the Full Bench proposed the following order in relation to severance pay in redundancy at 16.3.3:
"16.3.3 Provided that the severance payments shall not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee's normal retirement date."
[29] For practical purposes there is no difference between the clause proposed by the Full Bench in that case, and the clause before me. In addition, many awards of the Commission are couched in similar terms in respect to the retrenchment pay cap.
[30] Reference to age 60, on the evidence before me, is reasonable, as that is the normal retiring age for workers covered by this award. Any potential ambiguity is avoided by retaining it.
[31] In conclusion, it is my view that the clause as it stands does not contain provisions that discriminate against an employee because of or for reasons including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
[32] Rather, it exists to ensure that no employee will derive an economic benefit arising from redundancy or retrenchment which would not otherwise have been available to him or her had retrenchment not occurred. Equally, the clause acts to protect employers against possible economic cost which it would not otherwise be required to bear.
[33] Accordingly, I find that the clause contains no discriminatory provision of the type which would require an amendment under item 51 of the WROLA Act.”
(emphasis added)
[21] Clearly the fact that in the Award Simplification Decision 6 the Full Bench had seen fit to endorse a standard clause for a cap on redundancy pay was properly seen by Wilks C as a significant factor favouring a conclusion that the redundancy cap with which he was concerned was not discriminatory. Wilks C’s decision in BHP Coal was effectively endorsed by Giudice J in Metropolitan Daily Newspapers Redundancy Award 19967.
[22] In the Redundancy Case 8 the Full Bench of the AIRC was concerned applications to vary the standard provisions governing termination of employment in the Commission’s safety net awards. Part of the ACTU’s application was “to remove the provision in the TCR standard clause which limits severance payments to the maximum amount a retrenched employee would have earned had their employment proceeded to their retirement date”. The basis for that part of the application was a contention that “this provision is no longer needed because the concept of a ‘normal retirement date’ is ceasing to have relevance ‘because of an ageing workforce and the passage of age discrimination legislation’”. The Full Bench held:
“[163] We have decided to reject the ACTU's claim to delete the retirement date limitation. In our view the current provision should be retained. The original purpose of the provision - to ensure that employees who are retrenched in reasonable proximity to their projected retirement date should not receive more than they would have earned had they remained employed until retirement - is still apposite. The principle underpinning the existing provision is sound. The amount of money paid to a retrenched employee by way of severance pay should not cause that individual to be better off than if they had never been retrenched.
[164] The ACTU did not seek to challenge the original rationale for including this restriction in the TCR standard clause. Rather, as we have noted, it argued that the provision ought to be removed because the concept of a normal retirement date will cease to have relevance. We do not find these arguments persuasive. It seems to us that despite the passage of age discrimination legislation, the concept of a normal retirement date will continue to be relevant where a particular occupation or industry continues to have a fixed retirement date.
[165] Where employees and employers agree in advance to a retirement date the principle underlying the current provision will also continue to be relevant. It is not uncommon for employees and employers to discuss and plan retirement dates in advance. Where they do so, the principle underlying the existing retirement age provision remains relevant - if the employee is retrenched before the agreed retirement date, severance pay should be capped so that the employee does not receive more than if the employee had worked through to the retirement date.”
[23] It will be noted that the ACTU did not contend that the provision should be removed because it was discriminatory and the Full Bench did not address that issue. Nevertheless, that decision lends some support to the ACU’s contention that clause 7.3.6.3 is not discriminatory.
[24] In 1995 Safety Net Review and Section 150A Review 9 the Full Bench arbitrated a standard anti-discrimination clause for inclusion in federal awards. It did not expressly address the issue of whether redundancy cap clauses were discriminatory although it was under the statutory duty in s.150A(2)(b) to take remedial action if:
“(b) the award contains a provision which discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[25] In another case not referred to by the parties, Health Services Union of Australia 10 (HSU), MacBean SDP was concerned with an application to vary an award to insert a clause prohibiting discrimination on the basis of age. MacBean SDP noted:
“...the issue of whether a person's age should be taken into account in redundancy situations was considered by a Full Bench in the Termination, Change and Redundancy decision [Print F6320] (TCR decision). The Full Bench, in considering the issue of severance pay, discussed the basis on which severance pay was justified. At page 46, the Full Bench said:
"Furthermore, we do not believe that it is appropriate, having regard to the equity considerations and the fact that we are prepared to make the redundancy provisions effective in all cases of redundancy no matter what the cause, to have regard to the third consideration referred to by CITCA.
We prefer the view that the payment of severance pay is justifiable as compensation for non-transferable credits and the inconvenience and hardship imposed on employees. In this respect we agree with the conclusions contained in the CITCA Report but would indicate, at this stage, that in fixing the quantum we have been prepared to take into account the standards established in recent decisions of this Commission and the State Industrial Tribunals.
We are aware that extended notice, which we have granted, will not be sufficient to ensure that all employees find alternative employment and we are aware that these provisions will not solve the problems of the chronically unemployed. However, these must remain, in our view, primarily a social rather than an industrial responsibility.
Nevertheless, as we have indicated earlier, it would be misleading to assume that success in obtaining a new job indicated that an individual made redundant had managed to recover the security built up over years of service in the redundant job and we are prepared to grant severance pay, in addition to the measures we have awarded to assist employees to find alternative employment.
We are prepared to have regard to length of service in determining an appropriate quantum but, for the reasons outlined by the ACTU and because the problems of age on the evidence before us are related more towards the attempt to find alternative employment, we have decided not to provide for age related payments. Of course, indirectly, older employees will benefit from a scale of payments based on years of service."
The Full Bench, in discussing age related payments, were doing so in the context of whether additional payments should be made to older employees not that they should receive less. The Department has provided a number of reasons justifying the "less generous incentives" to the older employee. These related to financial considerations as a result of a greater demand for VDPs from employees in the 55 years and over age group; substantial superannuation benefits; the need to retain a balance of age and experience and the VDPs are not intended to reward employees for "long and meritorious service".
The Department did not bring any evidence to support their stated reasons justifying "less generous incentives" to older employees. While the VDP is voluntary, that is an employee has to make application to be considered for a VDP, the terms of the offer are less beneficial at 55 years of age or over. Most of the matters raised by the Department ignore the fact that, at the end of the process, it is the Department who determines who will be offered a VDP of those expressing an interest.
The level of superannuation benefits, raised as another consideration as to why older employees are treated less advantageously, cannot be regarded as a relevant factor. Apart from the absence of any details, the benefits available will no doubt vary according to years of contribution, level of salary, in addition to the age of a person when entering the particular scheme. For example, an employee over 55 years of age at lower levels of contribution and lesser service in the scheme will receive lower benefits.
I am not satisfied therefore that the Department has made out a case which justifies the different treatment in the offer to employees of 55 years of age and over. Accordingly, I have concluded that such employees are subject to direct discrimination in that employees 55 years and over are "treated less favourably in the same circumstances" than other employees less than 55 years of age under the terms of the VDP.
Having concluded that the treatment of employees at 55 years of age and over, under the terms of the VDP is discriminatory, the issue now to be determined is whether the Commission should exercise its discretion in the matter in favour of the HSUA.”
[26] This decision seems to be a contrary authority; one that supports the objectors’ contentions.
[27] I think it relevant to observe that all these decisions were made in a context where compulsory retirement upon reaching a particular age was still relatively common. With the passage of the Age Discrimination Act 2004 (Cth) (AD Act) that position has now changed. There is no longer any compulsory retirement age for employees. This change removes some, but not all, of the foundation for Wilks C’s conclusion that a redundancy cap clause is necessary to prevent an inappropriate “windfall” to employees who are approaching retirement age at the time they are made redundant. Wilks C considered that such a clause “merely ensure that no employee can receive more than he or she would have received if no redundancy had occurred at all”. The windfall may remain if an employee is able to access superannuation benefits once reaching their normal retirement age notwithstanding that the person continues in employment. I have no evidence or submissions in this case on whether the funds referred to in the Agreement allow that to occur.
[28] Clause 7.3.6.3 is not a redundancy cap provision of the sort considered in the cases referred to above. It has the effect of reducing an employee’s redundancy entitlement if the redundancy occurs after the employee’s “normal retirement date” and is in fact more generous to such an employee than a redundancy cap clause of the sort at issue in the cases referred to above. It would be strange if a clause which is more generous to older employees than the redundancy cap clause considered by Wilks C was regarded as discriminatory when that redundancy cap clause was not discriminatory. On the other hand, in the present case it cannot be said that clause 7.3.6.3 “merely ensures that no employee can receive more than he or she would have received if no redundancy had occurred at all” because there is no requirement that an employee retire at their normal retirement date.
[29] I think it also relevant to note that while Part 4 of the AD Act contains a series of prohibitions against age discrimination, Division 4 of Part 4 provides for a series of general exemptions. One of those exemptions, in s.38(1), relations to superannuation:
“38 Superannuation legislation
(1) This Part does not make unlawful anything done by a person in direct compliance with:
(a) a Commonwealth Act (or a provision of a Commonwealth Act) relating to superannuation; or
(b) a regulation or any other instrument (or a provision of a regulation or instrument) that:
(i) relates to superannuation; and
(ii) is made under a Commonwealth Act.”
[30] The operation of the exemption in s.38(1) of the AD Act is confined to the AD Act: it does not have any operation in relation to the FW Act. Clearly enough, the legislature considered the exemption in s.38 as necessary to ensure that the AD Act did not proscribe as age-based discrimination some differential treatment in relation to superannuation.
[31] The legislature has not seen fit to provide this type of exclusion in the exclusions in s.195(2) and (3). This may have been an oversight. However, it may be noted that the FW Act itself embodies differential treatment on the basis of age: see, for example, the additional notice to which employees over the age of 45 are entitled under s.117.
Conclusion
[32] This is a difficult case. The answer to whether clause 7.3.6.3, considered in conjunction with clause 7.3.5, is a discriminatory term is not clear cut. I consider that I must adopt the approach to ascertaining what constitutes discrimination laid down in the High Court by Dawson and Toohey JJ in Waters and that I cannot simply rely on BHP Coal and the other cases relied upon by ACU on the basis that because they support the proposition that a redundancy cap clause is not discriminatory then clause 7.3.6.3 is not discriminatory. I have identified the ways in which those clauses are different in their operation and effect.
[33] I am satisfied that, in the context of the more generous benefits provided by clause 7.3.5, clause 7.3.6.3 “discriminates against an employee” namely employees who are reaching or who have passed their “normal retirement date” “because of, or for reasons including, the employee’s ... age”. Whether an employee who is made redundant is entitled to the more generous benefits in clause 7.3.5 or the less generous benefits in clause 7.3.6.3 is determined directly by reference to the employee’s age, namely whether they have passed their “normal retirement date”. While the retirement age applicable to different superannuation funds may differ, I take judicial notice of the fact that a person generally has to be relatively old (older than 55) to have reached a retirement age in Australia. I am inclined to the view that this is a case of direct discrimination. If the expression “normal retirement date” is not properly to be seen as a reference to age then clause 7.3.6.3 does not involve direct discrimination but certainly does involve indirect discrimination because only older employees can have reached their “normal retirement date” and therefore only older employees can be subject to the reduced benefits provided for in clause 7.3.6.3. In the absence of evidence that relevant employees, upon reaching their “normal retirement date”, were able to access superannuation benefits whilst remaining in employment, I am not persuaded that the “windfall” considerations that are applicable to a redundancy cap clause of the sort considered in BHP Coal are applicable to a consideration of clause 7.3.6.3. In short, I am not persuaded that the differential treatment to employees selected for redundancy, depending upon whether they have passed their “normal retirement date”, is reasonable in circumstances where there is no compulsory retirement age and where employees may otherwise continue in employment for an indefinite period (particularly in a context of an aging population and a policy imperative to seek to retain a greater proportion of aging employees in employment). It follows that I must proceed on the basis that clause 7.3.6.3, considered in the context of clause 7.3.5, is a discriminatory term within the meaning of s.195 and is therefore an unlawful term.
[34] Assuming that I am correct in this conclusion, whether this is a sensible outcome from a policy perspective is another issue altogether. However, that is an issue for the legislature and, in particular, consideration as to whether s.195(2) and (3) should be amended to allow for direct or indirect discrimination of the sort effected by clause 7.3.6.3. If I am incorrect in my conclusion then my error can be corrected on appeal.
[35] It follows from my conclusion that I am only permitted to approve the Agreement if I receive an undertaking from ACU that addresses the concern that I have that clause 7.3.6.3 is an unlawful term. I propose an undertaking with the following operative term:
“ACU will not rely upon clause 7.3.6.3 of The Australian Catholic University Staff Enterprise Agreement 2010 and will, when making employees to whom the Agreement applies redundant, provide redundancy benefits in accordance with clause 7.3.5.”
[36] The bargaining representatives have already expressed views on whether there should be an undertaking (or had an opportunity to do so). If any bargaining representative wishes to express any views on the form of the proposed undertaking, they should indicate this to my associate by 12.00 noon on Tuesday, 14 June 2011. If no such communication is received, the Agreement will be approved upon receipt from ACU of an undertaking in the above terms. A supplementary decision formally approving the Agreement and noting that it covers the NTEU and the CPSU will then be issued.
VICE PRESIDENT
Appearances:
D Wedgwood of the Australian Higher Education Industrial Association with P Croxon and
D Robinson for the Australian Catholic University.
P Summers for the National Tertiary Education Industry Union.
N Keats for the CPSU, the Community and Public Sector Union.
Hearing details:
2010.
Melbourne and Sydney (video hearing)
April 4.
1 (1992) 173 CLR 349
2 (1995) 61 IR 236
3 (1989) 168 CLR 165
4 (1992) 173 CLR 349 at 357
5 Print S8070
8 (2004) 129 IR 155. The written submissions for AHEIA refer to the 1995 Safety Net Review and Section 150A Review ((1995) 61 IR 236 however this appears to be an error and the correct reference is to (2004) 129 IR 155.
9 (1995) 61 IR 236
10 Print N7261, 13 December 1996
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510441>