| [2017] FWC 2529 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
Victoria University
(C2017/1940)
DEPUTY PRESIDENT HAMILTON |
MELBOURNE, 9 MAY 2017 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – Interim Order.
[1] On 11 April 2017, the National Tertiary Education Industry Union (the NTEU/applicant) made an application under s.739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission to deal with a dispute in accordance with the Victoria University Enterprise Agreement 2013 (the agreement).
[2] The NTEU sought an interim order restraining Victoria University (the university/respondent), until further order, from determining any expression of interest in voluntary separation, change of employment arrangements, or application for a role in the First Year College.
[3] The applicant is at liberty to re-apply for an interim order at any stage in proceedings, and it will be granted if it is merited. To some extent the respondent raised this issue by asking what we would have a full hearing on, given that it has undertaken to comply with the agreement, and given the nature of the evidence.
The hearing and submissions
[4] At the hearing on 8 May 2017 to 9 May 2017:
[5] Permission to appear was sought by the legal representatives to appear on behalf of their respective parties and I granted it pursuant to s.596 of the Act.
[6] Evidence was tendered on behalf of the NTEU from the following witnesses:
[7] Professor Kerri-Lee Krause, Provost and Deputy Vice Chancellor, of Victoria University Footscray Park Campus gave evidence on behalf of the university.
[8] I have had regard to all the submissions and evidence.
Consideration
[9] In determining whether to make an interim order under s.589(2) of the Act, I consider the following questions:
[10] It was accepted by all that the disputes procedure in the agreement enables the Commission to issue a stay order, and I so find. I also note that there was a time constraint in these proceedings, and in formulating this decision, given the undertakings given by the university.
[11] Overall there was limited difference between the parties in their interpretation of the agreement. The respondent for example accepted that the agreement provides a ‘code’ for employment of academics, and said that it would comply with the agreement. I note that the NTEU quite properly has concerns about the effects on individual academics, and academics as a group. Ms.McGrath’s evidence was of a hearsay nature, and of limited relevance, but does reflect the NTEU’s endeavours to represent its members. However I have to apply the agreement as it is.
Serious question to be tried
[12] In relation to the allegation that the university is not entitled to employ academics in ‘education focussed roles’ 2, a number of allegations were advanced by the applicant. It described the obligations in clauses 12, 13, 26-31, 45-46 and Schedule 9 of the agreement. It alleges that the only way that such academics could be employed is as Academic Teaching Scholars pursuant to clause 46. Dr.Paul Adams3 gave evidence (clause 12) that the proposed employment would be contrary to the Academic Workload Framework4. However Professor Krause gave evidence that workloads in the First Year College would be allocated in accordance with the Academic Workloads Model (clause 54). I see no reason to doubt this evidence.
[13] I also note that the Academic Workload Framework for one college 5 in 2015 provided for a position described in the following terms:
‘Learning/Teaching Focussed Academic (LTFA) – Designed for an academic with highly developed and evidenced teaching skills who would normally restrict their research to ‘scholarship of teaching’. Appointment to the LTFA category is by mutual agreement between the Dean of the College of SES and the individual staff member.’
[14] The President of the NTEU, Dr.Paul Adams, was involved in developing this document, which was also apparently approved in a vote. There appears to be a similarity between the LTFA position, accepted by all and implemented, and positions in the First Year College under challenge in these proceedings. There does not appear to be a serious question to be tried.
[15] I note that Johns C considered a similar issue in University of NSW v. NTEU 6. As the respondent correctly stated, that decision was made with regard to an agreement which has a different wording to the agreement before me. In particular there are references in the NSW agreement to predominant teaching or research roles which are not present in the agreement before me, and various other provisions which I discuss in this decision are different. I have to consider the wording of the agreement before me.
[16] In relation to the allegation about preparedness to undertake a 14 hour teaching load 7 it must be noted that Schedule 10 allows for up to 14 hour teaching loads. However, again Professor Krause has undertaken to apply the Academic Workloads Model, which includes any additional restrictions.
[17] In relation to the allegation that there are limitations on research, the applicant quotes the requirements of Schedule 9 in relation to each of the levels of academic, A to E. It states that the position descriptions for the ‘Academic with an education focus’ refer to teaching of the discipline, in contrast with the discipline itself 8. It says these limitations are contrary to the agreement.
[18] Schedule 9 does not refer to teaching of the discipline but to various types of research ‘appropriate to their discipline’, and to varying levels of independence.
[19] Dr.Adams gave evidence that this is contrary to the various academic disciplines 9. Professor Krause gave evidence that the scholarship undertaken will be consistent with the Boyer Model of Scholarship, which she said was a highly regarded academic model, and outlined what it involved. She explained the references to an education focus as a reference to the priority of an academic being to support the learning, teaching and educational experiences and outcomes of students. She says that she will comply with Schedule 910. She also gave evidence that the Tertiary Education Quality and Standards Agency monitors compliance.
[20] I am unable, on the material before me, to find that there is a serious issue to be tried. On the material before me, both the requirements of Schedule 9 and the position descriptions can be complied with and that is the stated intention of the university.
[21] The applicant alleges that obligations under clause 65.2 have not been complied with in that it has not utilised internal transfer, and claims that its documents are not consistent with the agreement, and refers to the statement of Ms.McGrath 11. However there seems to be no issue that the documents are not consistent with the agreement. Academics may apply for positions with the First Year College. I also note the respondent submission that there are at this stage no forced redundancies, and voluntary separation is being sought. If the requirements of the agreement with respect to forced redundancies are not met the NTEU has a remedy in relation to this agreement or other remedies. There is no serious issue to be tried in relation to this issue.
[22] The applicant claims that the university has not complied with its obligations under clause 66.3 to provide relevant information. However the references to 14 hours are consistent with Schedule 10, and the university has repeatedly stated that it will comply with the Academic Workloads Model and other requirements. I note that the applicant referred to various university documents, including Information Session overheads 12, which did not specifically refer to the requirements of the agreement. However it has to be read in context, and uses language which is compatible with the agreement. It states for example under ‘FYC Academics’, that such academics will be involved in research in teaching, which is similar to the position described above in a college LTFA. It states under ‘FYC Positions’ that such positions will have a ‘strong teaching focus and undertake a maximum of 14 hour teaching load’. This is consistent with Schedule 10 of the agreement, which provides for a maximum 14 hour teaching load. It states under ‘Research and Scholarship’ that 14 hours teaching is a 70% allocation. This is compatible with Schedule 10. I do not think that academics have been misled in this and other statements made. I also note that Professor Krause explained these presentations, stating that academics were told that the college would be expected to teach up to, or at, the maximum permissible teaching load of 14 hours. I accept this evidence.
[23] The applicant also referred to the Formal Change proposals, which refer to an applicant for the First Year College being prepared to undertake a 14 hour teaching load 13. However this is not necessarily inconsistent with Schedule 10, which provides for 14 hour teaching loads. Given the wording of presentations and documents academics have not been misled by the university. In any event I have made observations below about how any individual or later problems can be addressed. It is not with respect necessary that the university state to academics that it will comply with the agreement, provided that proper explanations are given of its proposals.
[24] In my respectful view there is no serious issue to be tried.
Balance of convenience
[25] In relation to the balance of convenience, the applicant refers to the difficulty of reversing acceptance of voluntary separation or acceptance of jobs, and that academics should not be held to their election, and other matters.
[26] The university refers to the substantial cost impacts of a delay to implementation of the First Year College 14, and the overall ‘precarious position of the University’. She says that the university has sustained reported losses in four of the past five years, with another estimate for this year of a shortfall in the order of $30 million15. She stated that the figures she advanced were ‘estimates’16, and this is an important qualification, and an understandable one in the circumstances. She also said that she worked with accountants to produce the figures, which is also an understandable concession. However this does not mean that the estimates provided are wrong. I accept both that the university is in some financial difficulty, and that a delay in the introduction of the new First Year College will increase costs.
[27] I also note the evidence of Professor Krause that the university is required to develop an offer for the market and attract new students, and that delays on the ability of the university to promote its First Year College to the market could be a serious matter. She even suggested that a delay could threaten the introduction of the First Year College which is important to the university’s strategy for dealing with its financial predicament. I note that there is a drop in full time enrolments, which means that marketing is of some importance. I do not necessarily accept that this matter could be completed within two weeks. That would depend on the availability of the Commission and parties, the evidence led, and the time taken in writing a decision. I am reluctant to interfere with the marketing strategy of the university under the difficult financial constraints that it finds itself in.
[28] It may be that individual academics have legitimate issues which warrant them not being held to elections that they might make, or which raise issues of research requirements in Schedule 9, or some other issue which is of a more general nature involving many academics such as forced redundancies, or other issues. The NTEU is at liberty to make applications in relation to such issues, or others, including interim relief if necessary. To some degree this application may be premature. This to some degree mitigates against the NTEU’s submissions on the balance of convenience.
Conclusion
[29] In my view the balance of convenience favours the university. Even if I were to accept that the balance of convenience favours the applicant, given the lack of serious questions to be tried I have decided as a matter of discretion to refuse to issue a stay order.
DEPUTY PRESIDENT
Appearances:
L Doust for the National Tertiary Education Industry Union.
N Ruskin for Victoria University.
Hearing details:
2017.
Melbourne:
May 8 to 9.
1 HSU v. VHIA [2012] FWAFB 2901 at 5
2 Applicant submissions, paragraphs 21-31
3 Exhibit NTEU1
4 Exhibit NTEU1, tab 3
5 Exhibit V3, pp.1,5
7 Applicant submissions, paragraphs 32-43
8 Exhibit NTEU1, tabs 7 and 8, p.1
9 Applicant submissions, paragraphs 44-53
10 Exhibit V1, paragraphs 47-53
11 Applicant submissions, paragraphs 54-60
12 Exhibit V1, KLK7
13 Exhibit NTEU1, tab 6, tab 13
14 Exhibit V1, paragraphs 65-72
15 Exhibit V1, paragraphs 14-18
16 Exhibit V1, paragraph 28, 17, 65
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