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Workplace Relations Act 1996

s.99 notification of industrial dispute

National Tertiary Education Industry Union


Australian Higher Education Industrial Association

The University of Melbourne and others

(C No. 31520 of 1998)

Academic employees

Educational services




Section 89A(2)(a) - position classification standards.


[1] This decision is by way of supplement to a decision issued in National Tertiary Education Industry Union and Australian Higher Education Industrial Association and others on 15 February 2001 [Print PR901141]. That decision was concerned with a claim for the inclusion of Position Classification Standards (PCS) in a consolidated academic award regulating the employment relationship between universities and staff members or eligible to be members of the National Tertiary Education Industry Union (NTEU).

[2] In that decision the Commission as currently constituted refused to accept the PCS sought by the NTEU but found that some were both allowable and necessary. The parties were given the opportunity to develop their own PCS with regard to considerations set by the Commission. Those considerations were:

The position classification descriptions should remain based on full equality between the former two academic sectors of universities and colleges of advanced education.

[3] The parties have been developing their own PCS for some time. During that period I issued directions (on 19 September 2001) in which it was stated:

[4] In October the parties advised that the documents they were filing in accord with the directions were identical except for the third sentence of the third paragraph of the preamble in relation to the dispute resolution procedures. I set out the terms of the preamble including the disputed sentence (the parties had dropped the description Position Classification Standards for Minimum Standards for Academic Levels (MSAL):

The disputed sentence is emphasised. The NTEU does not wish the sentence included the universities (both members of Australian Higher Education Industrial Association (AHEIA) and those separately represented) do.

[5] At the conclusion of the hearing on 1 November 2001 I sought and obtained a release from the parties of my commitment to last chance arbitration in respect of the second and third sentences in the third paragraph of the preamble set out above.

[6] The primary position of the NTEU was that the third sentence should not appear. Mr Solomon argued:

[7] The AHEIA, through Ms Pugsley, sought the inclusion of the third sentence, it was submitted that:

[8] Mr Ruskin, for eight universities outside AHEIA said:

[9] In reply, Ms Floyd for NTEU submitted:

[10] In considering what should be done I am influenced principally by the conclusion found in paragraph [64] of the earlier decision which is set out in paragraph [7] above. I intend nothing be done which encourages or even permits competition between merit promotion and the MSAL.

[11] This is particularly important because the parties are agreed on it. Further, in the MSAL generally, the parties have produced a set of minimum standards which are clearly expressed and, particularly in the preamble as noted by Mr Ruskin, address and resolve a number of problems. The Miller situation is referred to as an example. It is addressed by the first sentence in the second paragraph of the preamble. Similarly the last sentence of the first paragraph removes an existing source of dispute.

[12] With these matters in mind I have considered the value of the third sentence in the third paragraph. I am not convinced that it adds anything to the first sentence. If MSAL are not to be used as a basis for claims for reclassification then claims on the basis of MSAL can not result in reclassification. Mr Ruskin's explanation of the meaning or effect of the third sentence reduces the impact of the sentence to nothing more than the corollary of the first. As such it is not an explanation of it. I also have the view that it is unwise to restrict an outcome in a dispute as the sentence does when one has no idea of the content of the dispute. A dispute over a flawed merit promotion procedure may necessitate a reference to MSAL and create the opportunity that it would be argued that it was a reclassification dispute. The problem would be one of characterisation of the dispute and the remedy should not alone determine that characterisation.

[13] It was argued that the first sentence would be rigid without the third. For my part, if the first sentence means, as I think it does, that a claim for reclassification on the basis of MSAL is not, in a word, justiciable, then let the sentence be rigid. What will have to be determined in the future in particular circumstances is whether a claim for reclassification is based on MSAL. If it is not it can proceed. It is not necessary at this stage to try and identify such a claim.

[14] A lesser factor which enters consideration is the wisdom and more relevantly the efficacy of dictating to bodies outside the Commission what they can or can not do. I would have thought the statute under which such bodies operate would determine what they can or can not do subject only to the potential for a s.109 argument in relation to State legislation.

[15] For these reasons I reject the inclusion of the third sentence in the third paragraph.

[16] That is not the end of the matter. I have already noted that the parties released me from the confines of last chance arbitration and in view of that and because Mr Ruskin had an alternative position I have considered whether within the limitations of such release [see paragraph [5] above] there is anything I should do which assists implementation of the conclusion in the earlier decision and referred to in paragraphs [8] and [9] above.

[17] The first thing I consider I raised with the parties and that is the deletion of the second sentence. I hold that without the third sentence the second sentence is stating the obvious. It is doubtful even whether it should appear in a simplified award unless it has a specific purpose. I suspect that purpose goes with the deletion of the third sentence. For these reasons I will delete it.

[18] Consideration has been given to whether anything should be added to the paragraph, consisting now of the first sentence. During proceedings I indicated to the parties that much of the background to the document that emerged from the consultative approach adopted by the parties is contained in the latter pages of the earlier decision. I do not wish to add to that.

[19] However I think that the reason the first sentence of the paragraph is there is worth being adapted as a guide to its application. Having heard the parties I indicate that the first sentence in the third paragraph of the preamble arose out of the parties agreement that there should not be two methods of promotion and that tension between the MSAL and merit based promotion should be reduced. To that end the sentence is incorporated and it should be applied in every case from that point of view.




E. Floyd and R. Solomon for the National Tertiary Education Industry Union.

C. Pugsley for the Australian Higher Education Industrial Association.

N. Ruskin, solicitor for University of Melbourne, University of Sydney, University of Queensland, University of New South Wales, University of Adelaide, University of Western Australia, Australian National University and Monash University.

Hearing details:



November 1.

Printed by authority of the Commonwealth Government Printer

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