[2012] FWA 2418

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Fair Work Act 2009
s.739—Dispute resolution

RMIT University
National Tertiary Education Industry Union



Alleged dispute in relation to workloads, staff development and dispute settling procedure.

[1] These are edited reasons for decision given in transcript earlier today (21 March 2012) for refusing an application by the NTEU for me to disqualify myself from dealing with the matter of an order under s.418 of the Fair Work Act 2009 (Act) which I considered might be made on my own initiative pursuant to s.418(2) of the Act.

[2] On 17 March 2012, I delivered a decision in matter number C2012/203 (RMIT University v National Tertiary Education Industry Union [2012] FWA 2208). That decision (primary decision) dealt with a dispute over the entitlement of the University to require academic and professional staff to use the 2012 online Performance Workplan tool for the purpose of negotiating their 2012 work plan (which the University has required academic and professional staff to complete by 31 March 2012).

[3] The matter was relisted by me in response to a letter from the University to Fair Work Australia dated 20 March 2012. Given the contents of the letter and in light of the history of the matter, I determined that, rather than seek an application from the University, the more appropriate course was to list for consideration the making of an order under s.418 on my own initiative (in accordance with the power conferred on me by s.418(2)(a)). That is what I did. For administrative convenience, the listing was under the matter number of the primary proceeding.

[4] These reasons deal with an application (put by Mr Kirkwood in the most proper fashion) for me to disqualify myself from dealing further with this matter. The ground for disqualification is set out in a short written submission of nine paragraphs dated 21 March 2012 (Exhibit D2).

[5] I accept applicability and correctness of the principles that are set out in paragraphs 2 to 4 of that written submission, and I note that those principles have most recently been restated in a major decision of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. However, it should be noted that judicial officers have a duty not to accede too readily to a disqualification application In Re J.R.L ex parte C.J.L 1, Mason J, in an oft-quoted passage, stated:

[6] If a judge or judicial officers reaches a conclusion that the test for disqualification is satisfied they must disqualify themselves. If they reach a conclusion that the test is not satisfied, their duty is to continue sitting.

[7] The ground of disqualification relied upon by the NTEU is simply stated and relies upon the last sentence in paragraph [45] of the primary decision. I think it important to set out the full context of paragraph 45. It reads:

[8] In short, the NTEU contended that the last sentence of paragraph [45] demonstrates pre-judgment in relation to whether the jurisdictional prerequisites for an order under s.418 are made out.

[9] Reliance was placed on the fact that the sentence in question appears in the section called “Conclusion”. In my view, any fair-minded reader of the decision, considering it as a whole, would realise that it is only the very first part of paragraph 45, which is the conclusion in the sense of a summary that describes the outcome by reference to the reasons given and that what follows (from and including the second sentence in paragraph [45], are additional remarks which I now observe were directed at trying to encourage a collaborative and non-confrontational path forward, rather than a confrontational path forward.

[10] It is for these reasons that I set out the undertakings which had been volunteered by the University so that any academic staff member or professional staff member who read the decision would be aware of the assurances that the University had given in respect to the BCF and the use to which it would be put. I underscored the very positive intention of the University in relation to the BCF and sought to pre-empt unnecessary or disproportionate negative responses to particular instances of misuse which are, I think, inevitable on the evidence before me in an organisation with more than 800 employees who have a relevant managerial role.

[11] I do not accept that a fair-minded and impartial observer would interpret what follows in the first sentence of paragraph 45 as indicative of any prejudgment whatever. In summary, a fair reading of the reasons shows that the conclusion in respect of the matters agitated in the primary hearing, as stated at the beginning of paragraph [45], is then followed by observations that were intended to foster a constructive response to the parties to the conclusion I reached.

[12] I note that during the course of the hearing of the primary matter, there were several points at which the issue of whether there was a ban in place and whether it would ground a section 418 order were adverted to. Indeed, Mr McIlroy, for the University, at one point indicated that the University had contemplated making a s.418 application but had decided instead upon notifying a dispute as a less confrontational way of addressing the problem. There was an exchange commencing at transcript PN1282 in the following terms:

[13] I note that the proposition in the last sentence of paragraph [45] is a clearly correct proposition. If there is a ban imposed by a union which affects the performance of work, as is obviously the case here, then that will constitute industrial action within the meaning of s.19 of the Act without any serious prospect of contradiction. If that action is then unprotected, it follows that the action will be unprotected industrial action. That is, the ban will constitute unprotected industrial action.

[14] I note that there is no discretion in section 418; once the jurisdictional prerequisites exist, an order must issue. Having concluded that the requirement of the University for relevant academic and professional staff to use the 2012 online performance work plan tool to complete the 2012 work plan is not prohibited by the Agreement and is a lawful exercise of the University’s right to give reasonable and lawful directions to employees, it follows automatically that any ban that is advised or organised by the NTEU following the handing down of my decision will involve the taking of industrial action.

[15] It is common ground between the parties that the current agreement is at a point where protected industrial action is not yet permissible and that, consequently, any industrial action must be unprotected industrial action. The fact of the ban being imposed by the NTEU in the period prior to the primary decision was a matter that was conceded in substance by Ms Gale, if not formally, during submission at the primary hearing. At transcript PN1090-1, Ms Gale said this:

[16] That represents a concession, in unambiguous terms, that the NTEU was advising its members at the University not to use the online tool for the preparation of the 2012 Performance Workplan. It may be noted that the distinction drawn by Ms Gale between “imposing” a ban and “merely advising our members to avoid participating [in the manner required by the employer]” is not a relevant distinction for present purposes. A union “merely advising” its members not to comply with a direction from the employer is properly to be regarded as advising a ban in relation to such direction.

[17] Whilst I proceed on the basis that the proposition in the last sentence of paragraph [45] to which objection is taken is a manifestly correct proposition, I also recognise that before any s.418 order can issue, I have to be satisfied that there is, in fact, a ban amounting to industrial action within the meaning of the Act in place following my decision.

[18] I have not reached a conclusion in that regard because I have not had a hearing in relation to it. If I had already reached a conclusion in that regard - that is, that a ban that was unprotected industrial action existed - I would not have held the hearing on 21 March 2012; rather, I would simply have issued the order without further ado, as s.418(2) appears, on its face, to empower me to do. It is precisely because I did not have a proper basis to reach a final conclusion that there was a ban in place following the primary decision without first hearing evidence and according the NTEU (and, through it, relevant employees) procedural fairness such that a hearing was required. Far from exhibiting prejudgment, this would demonstrate to a fair-minded and impartial observer a preparedness on my part to being persuaded that an order should not issue because, on the evidence, the requirements of s.418 are not met because there was no ban in place.

[19] In short, on any fair reading of the decision as a whole, the last sentence of paragraph [45] is predicated upon a ban that is a ban on what is otherwise a lawful and reasonable direction of the employer in respect of academic and professional employees using the 2012 online Performance Workplan tool. I do not accept that a fair-minded and impartial observer would accept that, viewed in that fashion, the statement indicates prejudgment as to whether or not a s.418 order should issue against the NTEU as a consequence of the hearing held on 21 March 2012.

[20] For these reasons, the application for me to disqualify myself is rejected.



A McIlroy for RMIT University.

J Kirkwood of Counsel for the National Tertiary Education Industry Union.

Hearing details:

March 21.

 1   (1986) 161 CLR 342

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