[2012] FWA 1202

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

National Tertiary Education Industry Union
v
The University of Melbourne
(C2011/1163)

COMMISSIONER ROE

MELBOURNE, 10 FEBRUARY 2012

Alleged dispute concerning the engagement on fixed term contract of Ms Lo Schiavo contrary to the Clauses 20, 22 and 23 of The University of Melbourne Collective Agreement 2010.

[1] On 22 December 2011 the National Tertiary Education Industry Union (NTEU) made an application under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure. The dispute is pursuant to The University of Melbourne Collective Agreement 1 (the Agreement). The Agreement was approved under the Fair Work Act 2009 (the Act) on 8 June 2010. The employer covered by the Agreement is The University of Melbourne (the University).

[2] The dispute relates to the employment by the University of Ms Lo Schiavo. The matter was subject to conciliation by Vice President Lawler on 13 January 2013. Vice President Lawler concluded that conciliation was unsuccessful and was exhausted. The matter was then allocated to me for arbitration.

[3] The relevant provision of the Act is as follows.

[4] The parties agree and I am satisfied that each of the steps provided for in the disputes resolution provision of the Agreement (Clause 90) have been properly followed. The matter was referred to FWA pursuant to Clause 90.8 by the NTEU. The dispute is about the “application of the agreement” and hence is within the scope of Clause 90 of the Agreement, and meets the requirements of Section 739(1) of the Act. Section 739(2) is not relevant. In respect to Section 739(3) of the Act, Clause 90.9 does not limit the power of FWA to arbitrate the dispute “to the extent that it relates to the application of the Agreement or the NES”. The Application has been made by a party to whom the Agreement applies, the NTEU, and the requirements of Section 739(6) of the Act are met. Therefore, having regard to Section 739(5) of the Act I can arbitrate the dispute provided that any decision I make is not inconsistent with the Agreement.

[5] The matter was arbitrated on 2 February 2012. Written submissions were provided by the NTEU and the University. I granted permission for Mr Pill to appear for the University.

[6] Evidence for the NTEU was given by:

[7] Evidence for the University was given by:

The Background

[8] Ms Filomena Lo Schiavo was employed by the University on a 12 month fixed term contract for the period from 24 January 2011 to 24 January 2012. Her contract was not renewed. The University decided to restructure the job performed by Ms Lo Schiavo. The restructured job was advertised in October 2011. The main difference between the job performed by Ms Lo Schiavo and the restructured job advertised related to IT and data management skills and responsibilities. Ms Lo Schiavo did not apply for the advertised job. Interviews for the replacement job have been completed but the appointment is on hold pending the resolution of this dispute.

[9] In November 2010 the placements section in the Education Student Centre, which is located within the Melbourne Graduate School of Education, employed a team leader and four Placement Officers, one of whom was part time. All were ongoing employees; none were fixed term or casual employees. Ms Kennett was appointed as the team leader in August 2010.

[10] A Placement Officer resigned in November 2010 and the University decided that the replacement officer should be a fixed term position. The duties of the replacement officer were essentially the same as those of the previous ongoing position. Ms Lo Schiavo was appointed to this position. The placement work was distributed amongst the Placement Officers and there was some redistribution of placement areas at the time of the appointment of Ms Lo Schiavo but no substantial change in the nature of the requirements of the position. At the end of 2011 there was a further retirement amongst the Placement Officers and the number of ongoing positions has been reduced as a consequence. The officer who retired has been engaged on a casual basis to fulfil some of the duties but this is not anticipated by the University to be long term. In October 2011 the position occupied by Ms Lo Schiavo was advertised as an ongoing position but with some changes to the position description.

[11] The terms of the Agreement limit the circumstances in which the University can use fixed term employment. These limitations are set out in clause 20.

[12] The terms of the Agreement require the University to advise fixed term employees in writing which of the circumstances set out in clause 20 is the reason for the decision to use fixed term employment in their case. This requirement is set out in clause 17.

[13] When Ms Lo Schiavo was employed, she received a letter which identified the reason for her employment being fixed term as “New Organisational Area”. This was the only correspondence she received which dealt with the matters set out in clause 17. It is clear that the work activity she was engaged to perform did not come within the description of the circumstances found in subclause 20.4 – New Organisational Area. This is not disputed by the University.

[14] It is not in dispute that Ms Lo Schiavo understood that her employment was fixed term. It is not in dispute that at the time of her interview and appointment Ms Lo Schiavo enquired about the prospects of further employment at the end of the 12 month period. It is not in dispute that no one on behalf of the University guaranteed Ms Lo Schiavo ongoing employment. Ms Lo Schiavo gave evidence that she was led to believe that the prospects of ongoing employment were good as there was no reason to believe that the requirement for the University to organise and manage teaching placements would come to an end. The witnesses for the University agree that Ms Lo Schiavo was advised that further work may be available and they did not raise any issues about potential changes to the job or the demand for the work.

[15] In November 2011 Ms Schiavo and her union, the NTEU, queried this apparent error in her type of employment, and while the University conceded that the New Organisational Area category did not apply, it then sought to attribute the use of fixed term employment for Ms Lo Schiavo to other circumstances described in clause 20. None of these other reasons was provided to Ms Lo Schiavo at the time of her appointment, or at any time prior to November 2011.

[16] The dispute is properly characterised as being about the alleged failure of the University to properly apply Clauses 17 and 20 of the Agreement to the employment of Ms Lo Schiavo. It is also alleged that there are other consequential failures to implement provisions of the Agreement such as Clauses 22 and 23.

Clauses of the Agreement

[17] The relevant clauses of the Agreement are as follows.

Did the Agreement provide a basis for the appointment of Ms Lo Schiavo on a fixed term contract?

[18] It is not in contention that the reason for fixed term appointment given on the notice provided to Ms Lo Schiavo pursuant to Clause 17 in late 2010, “new organisational area”, was not correct or sustainable. Once the dispute was raised by the NTEU in late 2011 the University raised a number of other bases on which the appointment could have been made under the Agreement. In particular at various times 20.1 - Specific Task or Project, 20.5 - Sudden and Unanticipated Increase in Enrolments and 20.7 - Measures to provide security of employment were raised.

[19] The NTEU submit that there was nothing about the work activity to be performed by Ms Lo Schiavo which comes within the description of a specific task or project. Arranging placements for teacher education students is a work activity that has been performed for many years in the School and that will continue to be required for so long as teacher education students are required, for pedagogical or registration reasons, to undertake placements in educational settings as part of their courses.

[20] The University submit that, the work activity could be characterised as a specific task being to undertake teaching placement activities pending the review of the function and the role and skills required. As specified in clause 20.1 there was a definable work activity of teaching placements to be performed with an anticipated timeframe of 12 months before a new role and function was identified and implemented in the Professional Practice Team.

[21] The decision of Branson J in NTEIU v University of Wollongong 9 addresses the issue of how to interpret the term specific task or project in the context of university employment. Her Honour analysed the meaning of similar but not identical clauses in her decision and makes the following observation:

[22] The circumstances which existed at the end of 2010 when the job was advertised and when Ms Lo Schiavo was appointed do not support a conclusion that the work activity which constituted the task or project had a starting time and was expected to be completed within an anticipated time frame. The teaching placement activities had continued for many years prior to the vacancy arising and there was no basis for anticipating that they would not continue. The evidence does not support a conclusion that there had been a definite decision that there was to be a new role or function at the time Ms Lo Schiavo was appointed. If this had been the case then surely Ms Lo Schiavo would have been told this. In fact the evidence supports a conclusion that the internal management review of the role only really commenced in the middle of 2011.

[23] Having considered the evidence and the submissions, I am satisfied that Clause 20.1 - Specific task or project, could not provide a basis for the fixed term appointment of Ms Lo Schiavo.

[24] After the dispute had been notified by the NTEU and following a meeting of the parties to seek a resolution, Mr Bown on behalf of the University wrote to Mr Thomas from the NTEU on 7 December 2011 stating that the reason for the fixed term twelve month appointment was “to cover this period given the sudden increase in work in this area as outlined in the attached document.” 11 The attached document was a summary of the requirements of the position and did not provide any information about the basis for the appointment.

[25] The University did not provide any evidence of the increase in work load or the basis for any anticipation of increase in workload. Clause 20.5 is not about increase in workload but is specifically about “increase in enrolments.” There was evidence that there were changes in the course offerings in teacher education at Melbourne University. One course was being phased out and new courses being phased in. However, there was no evidence produced that demonstrated an increase in student teacher placements which is the aspect of enrolments which directly affected the work of the placements officers. The appointment of the Applicant was to replace a Placement Officer who resigned and there was no increase in employee numbers with the appointment of Ms Lo Schiavo. The lack of anticipated increase in enrolments is also borne out by the fact that the number of Placement Officers has recently been reduced by one and the evidence is that it was not anticipated that the person who has recently retired was planned to be replaced. The only evidence that was before me suggested that the number of placements was relatively stable over the period 2009 to 2012. Mr Bown conceded that the argument about increased workload was not strong. 12

[26] Having considered the evidence and the submissions, I am satisfied that Clause 20.5 - Sudden and unanticipated increase in enrolments, could not provide a basis for the fixed term appointment of Ms Lo Schiavo.

[27] Once the dispute had been notified to FWA the University raised a further and final basis for the fixed term appointment, Clause 20.7 - Measures to provide security of employment.

[28] The University submit that this category is not limited to where there has been a series of casual engagements or a history of casual engagements and extends to wherever, due to the nature of the work or particular circumstances of the area, the employer would have otherwise used a casual to perform the work. Clause 15 does not limit the engagement of casual professional staff under the Enterprise Agreement. The University argues that this category implicitly recognises a preference for fixed term employment over casual engagements and permits the fixed term contract to be used at the University’s discretion where the University would otherwise use casual employment.

[29] The University argues that the circumstances confronting the area in late 2010 when the fixed term position was offered to Ms Lo Schiavo are the types of circumstances addressed by this category. They argue that where there is no clear need for an ongoing role and if the area were otherwise precluded from offering a fixed term contract, it would use casual employees, this category enables the University to offer fixed term employment at its discretion. The University say that this is what has occurred in this matter.

[30] The University says that the workload requirement was such that there was a need for the departing employee to be replaced. Accordingly, whilst it was not their preference Ms Pickett and Ms Kennett gave evidence that they would otherwise have engaged additional casual staff to meet the workload requirements pending the determination of the review and function of the Placements Role.

[31] The only contemporaneous evidence about the planning of the University at the time the decision was made to advertise the position as a fixed term position is the submission dated 17 December 2010 made by Ms Pickett seeking approval to advertise the fixed term position which was later filled by Ms Lo Schiavo. 13 After considering all of the evidence I prefer the contemporaneous evidence of this submission to the statements of Ms Kennett and Ms Pickett about the reasons for a fixed term position. Ms Kennett and Ms Pickett use almost identical words in their statements to set out specific changes they say created a need to review the roles in the Professional Practice Team that led to them seeking a temporary rather than an ongoing position.14 I was not convinced by this evidence. I am satisfied that there was no clearly formed decision to review the specific roles in the Professional Practice Team in November 2010. I accept that Ms Kennett, as the new Team Leader, was expected to and was motivated to consider reform but that the nature of the changes required was not identified or considered in any detailed way until the second half of 2011,15 and these identified changes were not the basis for the decision to seek a temporary rather than an ongoing appointment.

[32] The submission of 17 December 2010 begins with the statement “Veronica Plozza has resigned, effective from November 26, 2010. This proposal is to replace Veronica.” 16 This in my view puts beyond doubt that the proposed fixed term position was replacing the ongoing Placement Officer position. I have already noted that there was no significant change in the work requirements for the two positions.

[33] The submission then outlines why the Placement Officer role is a critical one which fits with the priorities of the graduate school and the university. The pro-forma for the submission then requires an examination of opportunities to critically review the work to remove or reduce the need for the role. Under this heading the submission argues that there is a current need for the position and likely to be an ongoing need for the position:

[34] The reference to the structure and work being reviewed and streamlined is in my view a reference to the general requirement of the University to review and streamline functions to reduce costs and to ensure the effective introduction of the Melbourne Model. As discussed earlier, I do not take it to be a clearly formed decision to review specific roles to meet a series of known changes in the work environment.

[35] The pro-forma for the submission then requires consideration of how filling the vacancy is consistent with the target of a 10% overall reduction in administrative staff costs. Under this heading the submission states:

[36] There are two reasons given in the submission as to why the position should be fixed term rather than ongoing:

[37] I consider far more weight should be given to this contemporaneous account than should be given to the reasons developed by the University almost 12 months after the event in response to the NTEU dispute notification. This is particularly the case given the inconsistencies in the recent explanations.

[38] I am satisfied that the replacement of the position of Veronica Plozza with a fixed term appointment doing essentially the same work is not consistent with the requirement of Clause 20.7.

I do not consider this requirement to be aspirational but rather I consider that it prevents the clause from being used if the effect is to replace a continuing position with a fixed term position. In this case the University replaced a continuing position with a fixed term position.

[39] I also consider that the contemporaneous submission does not support the use of Clauses 20.1, 20.4 or 20.5. There is nothing unanticipated about the workload.

[40] In any case the reasons given in the submission do not support the contention that the reason for the fixed term employment is because otherwise the position would be filled by casual staff. The submission specifically says that a casual appointment is not tenable and outlines legitimate reasons why this is the case. Furthermore, the reasons given for use of fixed term employment relate to the desire to retain flexibility and to be able to identify further efficiencies in the future. I am satisfied that the management were and continue to be under budget pressures and I understand why it was management’s aspiration to have flexibility to be able to review and change positions and structures. However, I consider that the parties in reaching the Agreement agreed to limit the scope of the flexibility available to management by balancing this against the need for employment security. Clause 20 does not allow management to used fixed term employment simply because it seeks flexibility to refine and reduce staff over time or because it may wish to review operational requirements and seek further efficiencies in the future. Fixed term employment is only permitted in the circumstances set out in each of the sub-clauses in Clause 20. To seek to create a fixed term position for the reasons set out in the submission in my view amounts to a clear breach of the Agreement which is likely to have the affect of denying to an employee the benefit of the Agreement provisions and particularly the redeployment, redundancy and retraining provisions.

[41] The University submitted that with the introduction of the Melbourne Model in 2008 the University was moving from an undergraduate model to a graduate offering (Master of Teaching) and the final year of undergraduate students was concluding in that coming year, 2011. The University also submitted that there was also increasing work being undertaken by academic roles in the University to support placements and teacher candidates in schools as part of MTeach which would impact upon the work required by the Placements Team. Having considered all of the evidence I believe that this was an incremental change and that has not yet led to a significant reduction in the workload of the Placement Officers and it was not a major factor in the decision to change the position from ongoing to fixed term in late 2010. 20 It was not mentioned in the submission seeking approval to fill the position late in 2010. However, I am satisfied that this was a consideration in the development of the proposed new position description in September 2011.21

[42] The University also submitted that funding for MTeach beyond 2011 was uncertain as funding had only been approved for 2008 to 2011. However, the evidence does not suggest that there was any real uncertainty about the continuation of the MTeach program beyond that which exists for any university course.

[43] There is no doubt that Ms Kennett and Ms Pickett reviewed the functions and skills required in the Professional Placements team from mid 2011 and this resulted in the proposed revision to the job occupied by Ms Lo Schiavo in the advertisement for the ongoing position in October 2011. A firm proposal was not developed until September 2011. 22 However, I am not satisfied that any firm decision to review the functions and skills required had been made at the time the decision was made to convert the position from ongoing to fixed term in November 2010.

[44] It is not consistent with the evidence to suggest that the decision was made to appoint for an interim period whilst the future job role requirements were finalised. I am satisfied that the reason why the position was offered as fixed term related to the general requirement to cut back positions and costs at that time in the University and it was easier to get approval for a fixed term position than an ongoing position. Ms Kennett and Ms Pickett wanted to maximise the chances of getting approval to fill the position given that the workload had not significantly changed. I accept that there was a risk that if they had applied for the position to remain ongoing that application may have been rejected due to the budget circumstances of the University.

[45] Having considered all of the evidence and the submissions I find that there was no basis under the Agreement for filling the Placement Officer vacancy created by the resignation of Veronica Plozza on a 12 month fixed term basis.

Was the position advertised in October 2011 substantially the same as the position occupied by Ms Lo Schiavo?

[46] The effect of Clauses 22 and 23 is that if the University decides to continue a fixed term position on a continuing or fixed term basis then the incumbent must be given the position if their performance has been good and if they achieved the position initially through a merit process. I am satisfied and the parties agree, that if the position advertised in October 2011 is substantially the same position as that occupied by Ms Lo Schiavo then she meets the other criteria and is entitled to be appointed to the position. Pursuant to Clause 25 Ms Lo Schiavo may be entitled to four weeks’ severance pay if someone else fills the position.

[47] I am also satisfied that if there is some minor change to the position and the incumbent would be capable of fulfilling the new requirement with reasonable training or within a reasonable time period then the incumbent should be appointed to the changed position. If the change to the position is significant then there is no requirement to appoint the incumbent.

[48] As part of the process of trying to resolve the dispute the University produced a table with three columns which compared the requirements of the position held by Ms Lo Schiavo and the requirements of the advertised position and a column for comments explaining the differences and in some cases the rationale. 23 This document was produced for and tabled at the meeting involving Rhidian Thomas from the NTEU, Ms Lo Schiavo, Ms Pickett, Ms Kennett and Mr Bown on 2 December 2011.

[49] After considering all of the evidence given by each of the participants at that meeting concerning the document, I am satisfied that the two positions are essentially the same except for the requirement for the new position to include “responsibility for IT systems maintenance and improvement”. Ms Lo Schiavo gave evidence that in 2011 she had been required to use IT tools to produce reports for academic and school centre staff, to record assessments, on occasion to implement process and enrolment changes, to contribute to the review of publications, report issues with the database and suggest improvements, and have some role in respect to the website. However, Ms Lo Schiavo did not have expert knowledge in the management of the database systems, was not able to train others in those systems, was not responsible for the maintenance and improvement of the website, did not play a key role in the maintenance and improvement of the IT systems or manipulate the data in the production of reports. I am satisfied that these expanded IT related responsibilities are new elements in the position.

[50] There is no doubt that the majority of the work is still Placement Officer work which has not significantly changed. The table produced by the University on 2 December 2011 suggests that the employee in the new job “is expected to spend approximately 40% of their time on business process analysis and improvement”. 24 As can be seen from the above summary not all of this work is new but a significant proportion of it is new.

[51] The NTEU say that the new position had the same job title and position number. The University say that once the position was approved internally to be advertised it was given a new position number. Ms Lo Schiavo was given a position description which had the old job title and position number. The evidence from the University is that the advertisement had the new job title and position number.

[52] After considering the evidence of Ms Lo Schiavo, Ms Kennett and Ms Pickett I am satisfied that the 40% estimate for the new roles is an exaggeration of what is required. Given the level of placement workload and the reduction in the number of Placement Officers with the retirement of a Placement Officer at the end of 2011 it is difficult to accept that the person appointed would be able to spend 40% of their time on the new IT management duties. I accept the evidence of the University that there has been some change in the role of Placement Officers and academic staff in the management of some placements which may reduce Placement Officer workload but the evidence suggests that this is an incremental change at this stage. Ms Kennett and Ms Pickett gave evidence that some of the IT Management skills could not be acquired through training but also required a degree of experience in the field. They did accept that other elements could be acquired through training. The evidence was inadequate for me to able to assess how much training and experience would be required to achieve competence in the IT skills the University was seeking in the revised job role.

[53] If I consider what would be fair and reasonable given all the circumstances once the dispute had been notified it would have been appropriate for the University to consider some modifications to their plans for the new position. I consider that Ms Lo Schiavo could fill the position if provided with appropriate training and if some of the IT responsibilities were phased in.

[54] However, if I consider the position as advertised and if I consider what those responsible for the management of the work area say they want from the position to achieve their work requirements and objectives, then I have to conclude that the fixed term position held by Ms Lo Schiavo in 2011 and the position advertised as an ongoing position in October 2011 are not sufficiently similar to be regarded as the same position. It follows from this conclusion that the requirements of Clause 22(ii) are not met. That is, the University has not decided to “continue the fixed term position on a continuing basis.” It follows from this that the University is not obliged pursuant to Clause 23 to appoint Ms Lo Schiavo to the new position.

Was Ms Lo Schiavo prepared to do the ongoing job?

[55] Having carefully considered all of the evidence I am satisfied that Ms Lo Schiavo strongly and repeatedly expressed her view that the proposed alterations to the job were not appropriate and that some of the IT functions could be better performed by others. This was certainly the case in the 2 December 2011 meeting between Ms Lo Schiavo, Ms Kennett, Ms Pickett, Mr Bown and Mr Thomas. I do not doubt that similar sentiments were also expressed in earlier meetings Ms Lo Schiavo had with Ms Kennett. However, I am satisfied that Ms Lo Schiavo did not say that she was not prepared to do the job and she did not say she was not interested in the job. Ms Kennett says that on 2 December 2011 Ms Lo Schiavo said she cannot do the new position but she was not sure about this in cross examination. 25 Ms Pickett on the other hand recalls that at the 2 December 2011 meeting Ms Lo Schiavo said “No I can’t do it now but I’m sure that if I had 12 months of professional development courses that then I may be able to do it.”26 Ms Lo Schiavo and Mr Thomas gave evidence that at no time did Ms Lo Schiavo say she was not interested in the job or was not prepared to do the job. Ms Lo Schiavo says that at the 7 October 2011 meeting with Ms Kennett and subsequently she made it clear that she would be prepared to do the necessary training to do the job.27 I am satisfied that ultimately Ms Lo Schiavo said that she was prepared to do the job with appropriate training and that this was communicated to the University in a conversation between Mr Thomas and Mr Bown after the 2 December 2011 meeting.

[56] I am also satisfied that Ms Kennett, from the time she conceived of the revised job role, did not believe that Ms Lo Schiavo had the skills and experience to do the job and she did not believe Ms Lo Schiavo was suitable for the job. 28 I am also satisfied that Ms Kennett discouraged Ms Lo Schiavo from applying for the job by overstating the extent of change to the job, emphasising the difficulty of the IT requirements, and failing to provide any advice about the accessibility and nature of training available for Ms Lo Schiavo to bridge the gap.29

[57] Ms Kennett says that on 6 October 2011 she told the Applicant that her position would not be renewed and that a changed position would be advertised.

[58] On 7 October 2011 in response to queries from Ms Lo Schiavo about the skills required for the job Ms Kennett outlined in detail the extent of the IT skills Ms Kennett thought were required. Ms Kennett says that in response to this list Ms Lo Schiavo said words to the effect that she was not certain she had the skills to meet these new requirements. 31 Ms Kennett says that at a meeting to discuss the changed position on 11 October 2011 “members of the Professional Practice Team indicated.... that Filomena did not have the requisite skills for the New Position.”32 Under cross examination it became clear that one person made a comment and that comment was not to the effect that Ms Lo Schiavo did not have the requisite skills but was simply to note that Ms Lo Schiavo would be leaving in January 2012.33

[59] In fact it was clear that Ms Kennett and Ms Pickett had not considered in any detail what training might be required and available, including courses offered by the University or other providers. 34 In this situation it is understandable that Ms Lo Schiavo expressed strong doubts about whether or not she had the skills to do the job in the meetings with Ms Kennett on 6 and 7 October 2011. It was also understandable that Ms Lo Schiavo focused on why the proposed changes were inappropriate.

[60] I am satisfied that Ms Lo Schiavo did not apply for the revised job because Ms Kennett discouraged her from applying. Subsequent to the applications closing Ms Lo Schiavo was advised by the NTEU about problems with the processes around her appointment and the advertising of the revised position. Following the 2 December 2011 meeting Ms Lo Schiavo through Mr Thomas confirmed that she wanted to do the revised job if provided with appropriate training and this remained her position in the proceedings. 35

Impact of the breaches of the Agreement.

[61] Ms Lo Schiavo was entitled to rely on the University to act in accordance with the Agreement. The requirement to notify correctly of the reasons for a fixed term employment is not some administrative technicality. It enables an employee and the NTEU to properly monitor and enforce entitlements under the Agreement. Incorrect notification may mislead employees as to their entitlements. The provisions restricting the circumstances in which fixed term employment can be utilised are important provisions of the Agreement. Ms Lo Schiavo may have been denied the opportunity for ongoing employment and many years of income and security because the University has made a fixed term appointment in a circumstance where this is not permitted.

[62] It is not in contention that Ms Lo Schiavo was employed by RMIT for many years in a similar role to the role she accepted at the University. She left an ongoing position at RMIT to take up a fixed term position at the University.

[63] I have considered the evidence from Mr Goldstraw, Ms Kennett and Ms Lo Schiavo about what was said around the time of the appointment in late 2010 as to the likelihood of further employment at the end of the one year contract. I am satisfied that Ms Lo Schiavo was clearly told and understood that there was no guarantee that further employment would be offered. 36 I am however satisfied that she was encouraged to believe that further employment was likely and was told that the requirement for Placement Officer work was likely to remain as long as courses involving teaching placements remain. Ms Kennett conceded that she may have said that “it wasn’t likely that the university was going to stop needing Placement Officers.”37 There is some doubt as to exactly who on behalf of the University gave Ms Lo Schiavo this reassurance but I am satisfied that it did occur.38 It was reasonable for Ms Lo Schiavo to assume that the University will continue to offer teaching courses. The University does not suggest that Ms Lo Schiavo was told around the time of appointment that there was a review or likely to be a review of the job role or of the Placement Officer functions.

[64] I accept the account of Ms Lo Schiavo that:

[65] In my view fixed term positions vary greatly in respect to the likelihood that they will lead to further employment. The background information about the reason that the position is fixed term and about the probability of further employment is therefore very important to an employee assessing whether or not to accept the position. The provisions of Clause 17 and Clause 20 of the Agreement are in part designed to assist employees to make informed judgments.

[66] The NTEU also argue that had the appointment been ongoing Ms Lo Schiavo would have been entitled to superannuation at a rate of 17% rather than 9%.

Discretion and Remedy

[67] The NTEU seeks that Ms Lo Schiavo be reinstated to continuing employment in the position to which she was appointed in 2011 with effect from 24 January 2011. The NTEU also seek that Ms Lo Schiavo receive the additional superannuation contributions. The NTEU argued an alternative possibility that Ms Lo Schiavo be appointed to the new or revised position. The NTEU also argued that if the University did not accept the appointment, that the University make Ms Lo Schiavo redundant which would entitle Ms Lo Schiavo to 12 months pay under the Agreement.

[68] The University acknowledged that in the disputes settlement process it had offered 8 weeks pay to Ms Lo Schiavo as a settlement to the dispute. They argued that should I find that a remedy was appropriate despite their arguments that it was not, I should require the payment of such monetary compensation as the settlement of the dispute.

[69] I regard the harm done to Ms Lo Schiavo to be significant. In my view that harm stems from three sources. Firstly, the significant breaches of Clause 17 and Clause 20 of the Agreement surrounding the fixed term appointment in late 2010. Secondly, from the process of discouraging Ms Lo Schiavo from applying for the modified ongoing position. Thirdly, once the dispute was notified the failure to fully consider a resolution involving some further modifications to the position and what could be achieved through an appropriate training program to facilitate Ms Lo Schiavo being able to be successfully appointed to the revised position. I also note the evidence of Ms Lo Schiavo that she has not been successful in finding new employment and that work in the placements field is normally advertised for the start of the year. 40 I also note that Ms Lo Schiavo would most likely have received higher superannuation contributions during 2011 if the Agreement had been complied with.

[70] There is nothing in the Agreement which sets out what is the remedy in cases where an employee is wrongly appointed to a fixed term position or restricts the remedy which might be arrived at in resolution of a dispute about a process of appointment in conflict with the provisions of the Agreement.

[71] The University argues that to impose a continuing contract would be inconsistent with the provisions in Clause 15 which enables the University to offer casual, fixed term or continuing employment. They also argue that it would be a disproportionate remedy. The University argues that if it had been prevented from offering a fixed term position to Ms Lo Schiavo because of the terms of Clause 20 then it may not have filled the position at all, it may have offered casual employment or it may have offered ongoing employment. The University argues that it is a matter for the University under the Agreement to determine which of these options it chooses.

[72] The University also argues that the remedy sought is beyond the scope of the Agreement. I do not accept this argument. A decision to resolve the dispute by requiring the parties to act as if the provisions of the Agreement had been properly applied is a proper exercise of my functions. The disputes settlement clause restricts the disputes which can be dealt with to those which “relate to the application of the Agreement or the NES”. It does not restrict the resolution of those disputes to the specific provisions of the Agreement. However, the resolution cannot be inconsistent with the terms of the Agreement. The present Act allows for disputes settlement which goes far beyond disputes over the application of the agreement and therefore allows for a resolution of the dispute which requires something which would not be possible under the agreement. However, in this case disputes settlement is restricted to disputes over the application of the agreement and it is unlikely that the resolution of such a dispute can require something which would not be possible under the agreement.

[73] The University argues that any failure to meet the terms of the Enterprise Agreement may lead to potential proceedings for breach of the Enterprise Agreement and result in the imposition of penalties. Of course proceedings for breach of an agreement is a course of action open to the parties, however, this should not be seen as the primary option. The primary option should be consistent with the commitments the parties freely entered into in reaching the Agreement and that is to deal with disputes over the application of the Agreement using the disputes settlement procedure of that Agreement. This approach was recently reinforced by a Full Bench decision in Boral Cement Ltd v Australian Workers’ Union: 41

[74] The parties referred to three main cases I should have regard to in considering what is an appropriate decision to resolve the dispute.

[75] The first two of these cases concerned actions for breach of agreements. The third relates directly to the resolution of a dispute under an agreement which is germane to this matter.

[76] The University argues that the Sunshine Coast matter 46 supports the contention that a breach of the job security clauses in the agreement does not bring about an alteration to the character of the contract. The NTEU is not arguing that the breach of the Agreement results in the contract of employment changing from fixed term to ongoing. The second of the cases makes the same point.47

[77] The third of the cases is relevant to the exercise of my discretion in this matter. In that case Senior Deputy President Harrison noted that the NTEU had already successfully prosecuted the University of Wollongong for the breach of the agreement in appointing Dr Rodwell to a fixed term position in breach of the agreement. 48 The Senior Deputy President also noted that because of the time taken in the various cases it was now many years since the ending of Dr Rodwell’s employment and that to require the re-employment of Dr Rodwell would therefore result in a windfall gain.49 The Senior Deputy President does not suggest that the re-employment of Dr Rodwell would be beyond power, rather she suggests it would be neither appropriate nor equitable in the circumstances. The Senior Deputy President makes the point that it cannot be assumed that had the Agreement been properly applied Dr Rodwell would have been engaged on a full time continuing basis. It is possible that no offer of employment would have been made if a fixed term option was not available to the university.50 The Senior Deputy President emphasised that the decision was made on the particular facts and that other outcomes may be appropriate in differing circumstances.51

[78] I do not consider that to impose a continuing contract as a resolution to a dispute about an inappropriate fixed term appointment would generally be inconsistent with Clause 15 of the Agreement or any other provision of the Agreement. The University does have the discretion about whether or not to create a position and whether or not that position should be casual, fixed term or continuing subject of course to the other provisions of the Agreement some of which limit that discretion. However, if a position has been created in breach of a term of the Agreement then in settlement of the dispute to require the nature of the appointment change so that it is no longer in breach of that term of the Agreement is not inconsistent with the Agreement. I am therefore satisfied that if Ms Lo Schiavo was an employee under a fixed term contract in breach of Clause 17 and 20 that a resolution of the dispute which changed the nature of that employment to ongoing would not be inconsistent with Clause 15 of the Agreement. Such a resolution to the dispute is equitable and reasonable as it would provide for Ms Lo Schiavo to be placed in the circumstances she would most likely have been in if the employer had properly implemented the terms of the Agreement.

[79] The appointment was in fact a fixed term appointment notwithstanding my finding that such an appointment was not open to the University under the Agreement. If the University had been aware that they could not make a fixed term appointment there is no certainty that they would have decided to make an ongoing appointment. However, I am satisfied that ongoing employment was the most likely outcome given the contemporaneous evidence of the University concerning the workload requirements, that it is a specialised position and that casual employment was seen as untenable.

[80] I consider that if the dispute had arisen at the time of the appointment or early in the term of the appointment the remedy sought by the NTEU would have been the appropriate resolution to the dispute.

[81] However, in this case I have to consider two subsequent developments. Firstly, the fixed term contract has expired and Ms Lo Schiavo is no longer an employee. Secondly, a new job has been created which I have found is different to the job originally advertised in late 2010.

[82] I consider that if Ms Lo Schiavo had been appointed as an ongoing employee in January 2011 as she most likely would have been if the University had acted in accordance with the Agreement, then the University would have taken one of three courses of action in October 2011 when it sought to modify the role. It may have decided to modify the extent of the change and or provided Ms Lo Schiavo with appropriate training to adapt to the new role; it may have decided to make Ms Lo Schiavo redundant; or it may have redeployed Ms Lo Schiavo.

[83] If the dispute had come to me in October 2011 I would have considered that it may have been an appropriate resolution to the dispute to require some appropriate alterations to the proposed new ongoing position and for Ms Lo Schiavo to then be directly appointed to that revised position subject to the provision of an appropriate training program and some modification or phasing in of some of the IT duties. At that time the particular organisational changes required to meet the Universities’ objectives were not completely set. However, to do so at this point of time would involve a greater intervention on my part in determining what the operational requirements of the University are and how they should be met than I consider appropriate.

[84] At this point in time I do not consider it appropriate for me to direct management to alter or reorganise the job requirements particularly as I am uncertain as to the extent of training which would be required for Ms Lo Schiavo to take up the position.

[85] The fact that the employment has been terminated does not alter the fact that I have jurisdiction to settle the dispute over the matter. 52 Consistent with the disputes settlement process under the Agreement the process of filling the disputed position was put on hold pending the outcome of the FWA process. Ms Lo Schiavo was an employee at the time of the notification of the dispute.

[86] I must consider the fairness and equity of a decision to deem Ms Lo Schiavo to have been appointed as an ongoing employee from 24 January 2011 in the context that after October 2011 a decision had been made not to continue with the position occupied by Ms Lo Schiavo. The dispute in this matter was not notified to the University by the NTEU or Ms Lo Schiavo until after applications for the new position had closed. A decision to deem Ms Lo Schiavo to have been appointed as an ongoing employee would restore the position to what would most likely have occurred if the provisions of Clause 17 and 20 had been complied with. That decision would also be consistent with the importance of the commitment of the parties to abide by the Agreement. However, against this, in the circumstances of this case, I do not consider it appropriate for me to interfere in the business decision of the University to not continue with the position after that decision has been effectively implemented by advertising the position in October 2011 and not renewing Ms Lo Schiavo’s employment. This is in a context that Ms Lo Schiavo accepted a one year fixed term appointment and understood that she had no guarantee of ongoing employment.

[87] I consider that the most appropriate course of action is for me to make the following findings in resolution of the dispute.

[88] I direct the parties to discuss the most appropriate resolution to the dispute in light of this decision and the findings I have made.

[89] If the parties cannot reach agreement on an appropriate resolution they should advise FWA by 17 February 2012. The parties may provide any supplementary written submissions about the appropriate remedy by 21 February 2012. I will then issue a supplementary decision about the appropriate remedy.

COMMISSIONER

Appearances:

Ms L Gale appeared for the Applicant.

Mr S Pill appeared for the Respondent.

Hearing details:

2012
Melbourne
2 February 2012

 1   PR997806.

 2   Exhibit NTEU 1.

 3   Exhibit NTEU 2.

 4   Exhibit MU 3.

 5   Exhibit MU 1.

 6   Exhibit MU 5.

 7   Exhibit MU 4.

 8   Exhibit MU 2.

 9   [2002] FCA 31.

 10   NTEIU v University of Wollongong [2002] FCA 31 at paragraph 30.

 11   Exhibit NTEU 2, Attachment 2.

 12   PN774 to PN778.

 13   Exhibit MU 5, Attachment CP 1.

 14   Exhibit MU 3 at para 8 and Exhibit MU 5 at para 18.

 15   PN537.

 16   Exhibit MU 5, Attachment CP 1.

 17   Ibid.

 18   Ibid.

 19   Ibid.

 20   See for example PN 160, PN564 and PN623.

 21   Exhibit MU 5 at para 28.

 22   Exhibit MU 3 at para 28.

 23   Exhibit MU 3, Attachment AK8.

 24   Ibid.

 25   Exhibit MU 3 at para 48 and PN642.

 26   Exhibit MU 5 at para 44.

 27   PN116.

 28   PN509 to PN513.

 29   Exhibit NTEU 1 at para13 and PN122, PN231 and PN518 to PN519.

 30   Exhibit MU 3 at para 32.

 31   Ibid at paras 34 to 36.

 32   Ibid at para 39.

 33   PN629 to PN633.

 34   PN600 to PN604.

 35   Exhibit MU 4 at para 21 and PN87.

 36   Exhibit MU 3 at para 21.

 37   PN531.

 38   PN229.

 39   Exhibit NTEU 1 at para 23 and PN54.

 40   Ibid at para 24.

 41   [2012] FWAFB 350.

 42   Boral Cement Ltd v Australian Workers’ Union [2012] FWAFB 350 at para 6.

 43   PR937250.

 44   [2002] FCA 31.

 45   PR945759.

 46   PR937250 at paras 40 to 42.

 47   [2002] FCA 31 at paras 36 to 38.

 48   PR945759 at para 47.

 49   Ibid at para 48.

 50   Ibid at para 49.

 51   Ibid at para 52.

 52   ING Administration v Jagoo [PR974301] and Deakin University v Rametta [2010] FWAFB 4387.

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