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Workplace Relations Act 1996

s.99 notification of industrial dispute

s.170LW application for settlement of dispute

National Tertiary Education Industry Union


University of Wollongong



s.45 appeal against decision [PR919784]

issued by Commissioner Lawson on 5 July 2002

National Tertiary Education Industry Union


Educational services




Dispute settlement procedures - referral by Full Bench


[1] This decision deals with a matter referred to me by a Full Bench of which I was the presiding member. To put this decision into context I should refer to the Full Bench ruling and also a decision of Justice Branson of the Federal Court of Australia (Federal Court). I will refer to the Full Bench decision first. That decision dealt with an appeal lodged by the National Tertiary Education Industry Union (NTEU) against a decision of a Commissioner to dismiss two applications. Both applications had related to a dispute between the union and the University of Wollongong (the University). One was a notice under s.99 of the Workplace Relations Act 1996 (the Act) the other a notice under a dispute settlement procedure contained within the University of Wollongong (Academic Staff) Enterprise Agreement 2000-2003 (the Agreement). In both applications it was said that a dispute existed between the union and the University concerning the type of employment, classification, redundancy payments and notice of termination relating to the employment of a Dr Rodwell.

[2] The appellant had asserted that the Commissioner had been in error in dismissing the two applications. The Full Bench referred to the decision of Justice Branson in National Tertiary Education Industry Union v University of Wollongong [2002] FCA 31. Her Honour there dealt with applications concerning the failure of the University to comply with certain requirements of the Agreement when it engaged Dr Rodwell as a Lecturer on a fixed term contract. The nature of the relief claimed in the Court was pursuant to sections 178 and 356 of the Act and sections 21, 22 and 23 of the Federal Court of Australia Act 1976 (Federal Court Act). Her Honour concluded that Dr Rodwell had not been engaged on one of the work activities specified within clause 19 of the Agreement which allowed for a fixed term appointment. She found that by entering into a contract with Dr Rodwell for a fixed term the University had failed to comply with clause 19.6 of the Agreement. She also found that the University had failed to comply with certain requirements of clause 20 of the Agreement, which clause imposed an obligation upon the University to provide certain information to a staff member in an instrument of appointment. Her Honour referred to a submission made by the union that, as Dr Rodwell had been employed in circumstances that did not justify the use of fixed term employment, he was in fact employed on a continuing basis. She was not persuaded by that argument. The Agreement was silent as to the consequences of the University using fixed term employment in circumstances other than those identified in clause 19.6. Her Honour said that nothing in the applications before her or in s.178 of the Act supported an argument that a breach of a certified agreement could alter an express term of a contract of employment. No declaration was issued nor was there any order made requiring the University to employ Dr Rodwell on a continuing basis. No injunction was made restraining the University from treating his employment as ceasing in January 2002.

[3] Two breaches of the Agreement were found to have been established and penalties were imposed. The penalties were for the sum of $4000 in relation to the breach of clause 19.6 and $1000 in relation to the breach of clause 20. The day after the Federal Court decision was published the union filed the two applications which subsequently became the subject of the appeal.

[4] It is not necessary for me to refer in detail to that part of the Full Bench appeal decision which concerned jurisdictional issues. It refers to relevant provisions of the Act and decisions of the High Court of Australia concerning the role of the Commission when dealing with dispute settlement procedures. It considered the proper categorisation of what was said to be the matters in dispute between the parties particularly in the notification given under the dispute settlement procedure. It found that the Commissioner was in error in the manner in which he characterised the matters that were in dispute and in finding he had no jurisdiction to entertain them.

[5] The Full Bench noted that the findings made by Justice Branson and the penalties imposed by her did not constrain the jurisdiction of the Commission in so far as a dispute had been notified under the dispute settlement procedure. It said that the relevance of Her Honour's decision to the remedy the Commission may decide upon as a matter of discretion when resolving the dispute (ie. the exercise now before me) was not in issue in the appeal. The appeal was upheld and the matter referred back to me to take further action consistent with the Full Bench's reasons for decision. So it was that the matters in dispute were referred to me, in terms of clause 8 of the Agreement, for "conciliation or arbitration in resolving the dispute". That clause also provides that a decision of the Commission shall be accepted by the parties as final and shall be implemented.

[6] It is not necessary for the purposes of this decision that I refer in detail to Justice Branson's decision. Much of which is relevant to this exercise is referred to in the above summary. The only additional matters I should note is that Her Honour referred in some detail to the evidence relating to Dr Rodwell's applying for the position, his letter of appointment and the teaching duties that were undertaken by him. She also referred to correspondence that had been exchanged between Dr Rodwell, his union and the University. Her Honour found that although the breaches of the Agreement were of substance they were not at the most serious end of the scale. She said that the circumstances of the case suggested that the penalties to be imposed should carry with them some element of deterrence.

[7] Against that background I turn to the evidence before me.

[8] A document containing agreed facts was tendered (NTEU 4). The document contains some thirty facts that were agreed as well as numerous attachments relevant to those facts. I have taken into account all of that document but for the purposes of this decision I intend to refer only to some matters. I also do not refer here to a number of the agreed facts relating to proceedings in the Federal Court and in this Commission already referred to by me.

[9] Dr Rodwell applied for a position at the University as a Lecturer in the area of Human Society and its Environment (HSIE). He was offered that position. His letter of offer, dated 19 December 2000, advised him that the position was a fixed term appointment. He was advised that his term would be for a period of 12 months, the appointment being available from 1 February 2001. He was advised that his conditions of appointment would be in accordance with the Agreement. The letter records that the conditions of appointment, as set out in the letter of offer, could not be varied other than by variation to relevant awards or agreements or by written advice from personnel. Dr Rodwell signed a copy of that letter of offer and returned it to the University. He commenced employment on 1 February 2001.

[10] After some months of employment Dr Rodwell raised with his union a concern that his engagement was not one properly categorised under the Agreement as fixed term employment. He met with Professor Harper in August 2001 and raised this issue with him. A difference of opinion existed between the University and Dr Rodwell. The University asserted that Dr Rodwell was employed for a specific task or project, an allowable category for fixed term employment, and Dr Rodwell took issue with that view.

[11] In September 2001 the union wrote to the University indicating that it believed the University was in breach of clause 19 of the Agreement and that the nature of Dr Rodwell's engagement was in a continuing position and should be converted to that status. Subsequently the union wrote to the University to notify the existence of an industrial dispute in accordance with clause 8 of the Agreement. The dispute was said to be that Dr Rodwell's current fixed term contract did not meet the requirements and definitions of fixed term employment provided for in the Agreement. The University continued to assert that the appointment was a fixed term contract and consistent with the provisions of the Agreement.

[12] In November 2001 the University advertised a full-time continuing position for a Lecturer HSIE in the Faculty of Education. Dr Rodwell applied for that position but was unsuccessful.

[13] Dr Rodwell was not paid any severance or redundancy payments upon the cessation of his fixed term contract on 31 January 2002. At the time he ceased employment his classification was at step 6, Level B, Academic Lecturer. His salary was $60,511.00

[14] I will now summarise the evidence given by numerous witnesses each of whom had filed a statement. I should indicate that much of the evidence of Dr Rodwell was also in the agreed facts so I do not refer to this again. I intend to deal briefly with many of the statements of witnesses as much of evidence was of limited assistance in relation to the matter referred back to me by the Full Bench.

Dr Grant Rodwell

[15] Two statements of Dr Rodwell were in evidence. He referred to an advertisement in late 2000 for positions at the University and his decision to apply for a Lecturer position. He referred to the interview process and the letter of offer received from the University. He addressed a conversation he had with a Dean at the University of Newcastle where he was then working. He said he queried whether the fixed term contract was consistent with the relevant award.

[16] Dr Rodwell described the subjects he was engaged to teach at the University. He said that after he had been working there for a few months he obtained a copy of the Agreement and studied its provisions. He came to the view that his position did not fit into any of the categories referred to in the Agreement for which fixed term contracts could be offered. Through his union he arranged to see the Dean of the Faculty of Education and a discussion took place in August 2001. He raised his concern about the nature of his engagement and was subsequently informed that the University believed that he had been engaged on specific task or project; one of the alternatives allowable in the Agreement.

[17] Dr Rodwell referred to claims made on his behalf that he receive special consideration for the continuing position advertised in late 2001. One reason was said to be that the selection criteria for that position was substantially the same as the selection criteria that had applied to his fixed term position. He referred to his interview for the continuing position and that his application was unsuccessful.

[18] He addressed the personal, professional and financial impact ceasing employment with the University had on him. He said that no concerns about his performance were raised with him during his employment with the University.

[19] He addressed his suitability for the full-time continuing position, the selection criteria, duties required and teaching workload and compared that with his fixed term position.

[20] Dr Rodwell referred to two dispute notifications lodged in the Commission on 11 December 2001 about the terms of his contract and the Agreement. (These were matters C2001/6354 and 6355 which I refer to later in this decision). About those disputes he said they were withdrawn "in favour of the application to the Federal Court".

Ms Joanne Kowalczyk

[21] She was a Branch Executive Officer for NTEU. She had been involved in discussions about the provisions of the Higher Education Contract of Employment Award 1998 (HECE Award) and the Agreement with union members and representatives of the University. The policy agreed between the union and University for the conversion of fixed term academic staff into continuing appointments was referred to. Ms Kowalczyk was not required for cross-examination.

[22] The following witnesses were called on behalf of the University.

Dr Ian Brown

[23] He is a Senior Lecturer and Associate Dean in the Faculty of Education at the University. He referred to positions in the Faculty that were advertised in November 2001. He was appointed the Chair of the Selection Committee for the Lecturer HSIE position. He referred to the interviews undertaken by the Committee including the interview of Dr Rodwell who had applied for the position.

[24] Dr Brown was not required for cross-examination.

Dr Andrew Wells

[25] He is an Associate Professor at the University. He was a member of the Selection Committee established in late 2001 to consider the applications for the Lecturer HSIE position. He was not engaged within the Faculty of Education and was the independent person on the Selection Committee. He referred to the participation by Dr Rodwell and another candidate in the interview. He referred to the manner in which the interviews were held and the Committee's consideration of the applicants.

[26] Dr Wells was not required for cross-examination.

Mr Christopher Grange

[27] He is Director, Personnel and Financial Services at the University. He identified the key award and enterprise bargaining agreements applying to the University. He described the impact upon the University of decisions made by the Commission in the late 1990's. In particular he referred to the manner in which the University implemented the HECE Award decision in 1998. He referred to the finances of the University and in particular grants provided in the late 1990's. He referred to the staffing levels within the Faculty of Education.

Ms Yvonne Kerr

[28] She is the Dean of Students and a Senior Lecturer in the Faculty of Education at the University. She had been the chair of a selection committee established to consider applications for the position of fixed term Lecturer HSIE in late 2000. She gave evidence about what she recalled was said in the interview with Dr Rodwell and his performance in the interview. She remembered the issue of a 12 months appointment was raised and had indicated that this was the only position on offer at that time. The committee had agreed to offer the position to Dr Rodwell. She recalls he contacted her in early 2001 and raised the issue of the fixed term appointment. She had indicated to him that he needed to speak to the Dean of the Faculty about that matter.

[29] She was also a member of the Selection Committee established to consider applicants for the continuing Lecturer HSIE position in late 2001. She gave evidence of her recollection of the interviews that were held and the performance of the candidates in those interviews.

Professor Barry Harper

[30] He is a Professor and the Dean of the Faculty of Education at the University. He was appointed Dean in May 2001. He had caused the records of the Faculty to be reviewed in relation to staff appointments and recruitment during 2000 and 2001. Similarly the records of the Faculty were reviewed in relation to the Graduate Diploma in Education and a working party which was reviewing that diploma course. He gave evidence about what the University's justification had been from time to time for its view that the appointment of Dr Rodwell was appropriate to be fixed term. A broad review of the Faculty was undertaken at his instigation and a three-year template for subjects was developed. He gave evidence concerning a number of positions within the Faculty and the incumbents in those positions. He also gave evidence in relation to the selection criteria for the position held by Dr Rodwell and the position subsequently advertised as a full-time continuing position. Evidence was given relating to workload summary sheets which reflect various teachers and lecturers working activities and course content in 2001, 2002 and 2003.

[31] He recalled a meeting with Dr Rodwell in August 2001 after which he sought advice from relevant persons within the University. He addressed the evidence of Dr Rodwell about comments attributed to him in discussions in August and November. He addressed the current needs of the Faculty and the need for any further continuing appointments. He gave evidence of what would typically be the steps taken by him or at his instigation in ascertaining and justifying the Faculty's staffing needs.

Professor Temmerman

[32] A statement of Professor Temmerman was tendered and she did not give evidence. She is Dean of the School of Social and Cultural Studies in Education at Deakin University.

[33] From about August 2000 until May 2001 she was Interim Dean of the Faculty of Education. During that time a review of the Graduate Diploma in Education was being undertaken. Future staffing needs were contingent on the outcome of that review.

[34] She referred to evidence given by Dr Rodwell about a conversation he said he had with her. She indicated that although not able to recall the conversation specifically it was highly unlikely she would have led him to believe he would be converted to a continuing appointment. She recalled no other comment made to him that should have led Dr Rodwell to believe that the position being offered to him was anything other than a 12 months fixed term contract.

[35] The parties acknowledged there was a conflict in the evidence between her and Dr Rodwell about whether she said anything to him about being converted to a continuing position.

[36] Against that background I now turn to the outcome sought by the union.

[37] It is to be recalled that clause 8.2 of the Agreement provides that a matter, not earlier resolved, is referred to the Commission for "conciliation or arbitration in resolving the dispute" and a "decision of the Commission shall be accepted by the parties as final and shall be implemented".

[38] The NTEU argued for a number of remedies. They were described as alternative decisions that I should consider making. The alternatives contain a number of similar components. In summary they range from re-employment of Dr Rodwell as a Lecturer HSIE or in a comparable Lecturer position on a full-time continuing basis, the provision of a five-year fixed term pre-retirement contract through to proposals for redundancy and severance payments. Each of the alternative decisions requires the payment to Dr Rodwell of the difference between what he had earned and what he would have earned had his employment not been terminated in early 2002. The specific relief is described in detail in written submissions filed by the union.

[39] The decision I am required to make involves the exercise of my discretion. Clause 8.2 of the Agreement places no constraint or condition upon the exercise of that discretion. I have taken into account a number of matters in reaching my decision. I commence first with some general comments. Dr Rodwell applied for, and was offered, a position for a 12 month fixed term. I am not persuaded he was told at any time prior to the letter of offer and his acceptance of it, that his status was likely to be converted to a continuing engagement. If he was so advised it is inexplicable why that was not a matter deposed to by him in the Federal Court proceedings. If he in fact had doubts when considering to accept the offer of employment he should have raised them immediately. He should not, as he did, sign the letter accepting its terms without reservation.

[40] I have taken into account the fact that two applications were lodged in the Commission by the NTEU on 11 December 2001 and each was subsequently withdrawn. The first of these is C2001/6354. This was a notification of an alleged dispute under s.99 of the Act. The dispute was described as concerning the type of employment, classifications and dispute settling procedures relating to the employment of Dr Rodwell. It can be seen that the matters in dispute are similar (but not identical) to those referred to in the subsequent notification in January 2002 which gave rise to the ruling of Commissioner Lawson and the subsequent Full Bench appeal decision.

[41] The s.99 notification was said to be urgent and a hearing was listed before Senior Deputy President Duncan on 20 December 2001. Although there is no transcript of proceedings it appears from the file that a hearing occurred on that day and there was a further report back set by His Honour for the following day. That subsequent hearing was cancelled following the NTEU informing His Honour, in a letter dated 21 December 2001, that it wished to withdraw the matter and another related matter "as a result of the Federal Court proceedings". His Honour was advised that the union understood the University had no objection to the withdrawal and that the union would not be attending the hearing set for that afternoon. The hearing was cancelled and the file closed.

[42] Another notification was also lodged on 11 December 2001 (C2001/6355), this one being under the dispute settling procedure in the Agreement. The matters in dispute between the union and the University concerned, amongst other matters, the proper application of clause 19 of the Agreement, types of academic appointments and the failure of the University to advise the circumstances in which a fixed term contract may be offered. The union complained that the University had proceeded to interview applicants for the academic position which was in dispute and declined to maintain the status quo. And urgent hearing was requested. Senior Deputy President Duncan listed this matter at the same time as C2001/6354. There is no transcript of the proceeding of 20 December. His Honour adjourned the matter for a report back to the following day. This matter was withdrawn by the NTEU in the letter I have earlier referred to in the preceding paragraph.

[43] On 18 December 2001 an application was filed by the NTEU and Dr Rodwell in the Federal Court. The relief there sought was for the imposition of penalties on the University for breaching clauses 19 and 20 of the Agreement, the imposition of a penalty for breaching clause 8 of the Agreement by failing to agree to maintain Dr Rodwell's pre-existing working arrangements and also relief pursuant to certain provisions of the Federal Court Act. Such relief included a declaration that Dr Rodwell was employed on a continuing basis, an injunction to restrain the University from treating his employment as ceasing on 31 January 2002, an injunction restraining the University from taking any further steps to fill the position advertised for a Lecturer HSIE on a full-time continuing basis, and an order for specific performance that the University treat Dr Rodwell's employment as continuing.

[44] The Union and Dr Rodwell chose, no doubt in a considered way, to proceed in the Federal Court. The scope of the remedies it there sought was broad. The matters raised in its application traversed the same matters it had referred to in its s.99 and s.170LW notifications that it withdrew. Having not succeeded in the Federal Court in gaining all of the relief it sought it again returned to the Commission. This practice is not to be encouraged, at least not without a better explanation than, as Dr Rodwell put it, those disputes were withdrawn "in favour of the application to the Federal Court".

[45] I refer next to the relief sought by the union which contains a component requiring re-employment of Dr Rodwell in some capacity with the University. I deal first with the forms of relief which require re-employment into either a position of Lecturer HSIE or into a comparable Lecturer position.

[46] As I have earlier observed the union, on behalf of Dr Rodwell, sought relief in the Federal Court in relation to the breach by the University of the relevant provisions of the Agreement and sought and obtained a penalty in that respect. The relief sought now by the union relies again on the same act or acts of non-compliance by the University with the same provisions of the Agreement and seeks additional penalties (although not described as such) be imposed on the University.

[47] The Federal Court determined the appropriate penalty for the University's breach of the relevant clauses of the Agreement. A strong case needed to be made out to persuade me to impose in effect a greater penalty - a requirement the University create a position with a status Dr Rodwell never had.

[48] I am not persuaded that any decision requiring the re-employment of Dr Rodwell is an appropriate or equitable resolution of this matter. The windfall gain he would acquire is not justified.

[49] It appears that the union's case relies in part on an assumption that had the Agreement been properly applied Dr Rodwell would have been engaged on a full-time continuing basis. I am not persuaded that there is any evidence upon which to base this. It is just as likely that, had the University known of the constraints placed upon it by a proper application of the Agreement in relation to fixed term appointments, no offer at all would have been made to Dr Rodwell.

[50] The alternative relief sought by the union requires a redundancy payment be made to Dr Rodwell equivalent to that he would have received had he been a continuing employee. I am not persuaded there is any merit in granting that relief. Some of the claims made seek a payment to Dr Rodwell in excess of the amount he earned during the period he was in employment. That result is not justified on any equity or good conscience basis. Nor, in my opinion, is it justified that he gain access to severance payments of some 40 weeks pay. Again I am not persuaded that there is any equity in allowing Dr Rodwell access to payments of that magnitude.

[51] Clearly no provisions within the Agreement provide for the precise circumstances in which the employment of Dr Rodwell came to an end. There are provisions that provide for the payment of a severance amount when a fixed term contract comes to an end in certain circumstances. In this respect I note in particular clause 58 of the Agreement. That clause provides for severance payments to be made to staff on fixed term contracts which are not renewed. Subject to certain prescribed circumstances existing the entitlement for a staff member with less than 2 years service is 4 weeks severance pay. One consideration the clause requires is whether the existing fixed term contract duties continue to be required but another person is appointed to undertake the same or similar duties. Subject to the comment I make below that clause provides a better guide to the level of payment that might be appropriate to resolve this dispute.

[52] Much evidence was concerned with the similarity of the position in which Dr Rodwell was engaged to that advertised as a full-time continuing position in late 2001. Given the limited merit of Dr Rodwell's claim little is to be gained in dealing with this evidence. I make no finding that the continuing Lecturer HSIE and the fixed term position were the same or similar. Also evidence was given about the interview process and the basis upon which the decision was made as to who would be the successful candidate. I have not considered it necessary or appropriate to make any comment about the relative suitability of applicants for the appointment or the merit or otherwise of the successful candidate by comparison with Dr Rodwell. Nothing in this decision should be taken to have found in any way against the qualifications and capability of Dr Rodwell.

[53] I also consider it unnecessary to refer to the numerous cases each party provided to me. I note many of the cases were in the tertiary education industry. Each case turns on its own facts and it is not persuasive that in some other matters re-employment in some form has been considered. This matter has been decided by me on its own facts.

[54] I have decided an appropriate resolution of this dispute is the payment to Dr Rodwell of a sum equivalent to four weeks wages. The sum should be paid within 14 days of today's date.



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