FEDERAL COURT OF AUSTRALIA

National Tertiary Education Union v La Trobe University [2014] FCA 1452

THE COURT ORDERS THAT:

1.    The application for an expedited hearing of the appeal is refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an application for an expedited hearing of an appeal from a judgment of a single judge of this Court. The appellant is the National Tertiary Education Union and the respondent is La Trobe University.

2    In 2012 the respondent adopted a five-year strategic plan, “Future Ready: Strategic Plan 2013 – 2017”, part of which involved a restructuring by which the University’s five faculties would be moved to a two-college model. The effects of the restructuring would include job losses to university employees.

3    On 19 November 2014, the appellant filed an originating application in this Court seeking, inter alia, declarations that by terminating or proposing to terminate the employment of employees by way of compulsory redundancy other than as a last resort, the respondent acted in breach of a term of the La Trobe University Collective Agreement 2014 (the collective agreement) and thereby contravened s 50 of the Fair Work Act 2009 (Cth) (the FWA). The appellant also sought a permanent injunction restraining the respondent from terminating the employment of employees other than in accordance with cl 74 of the collective agreement.

4    On 8 December 2014, Tracey J published reasons for judgment, see National Tertiary Education Union v La Trobe University [2014] FCA 1330. The judgment primarily concerned the construction of cl 74. The clause provides:

The University is committed to job security. Wherever possible redundancies are to be avoided and compulsory retrenchment used as a last resort. The University reserves the right to use the agreed redundancy procedures and provisions set out in this Agreement when all reasonable attempts to mitigate against such action and to avoid job losses have been unsuccessful.

5    An issue of the construction of the clause was dealt with as a separate question, before the issue of whether the respondent acted in breach of the clause.

6    On the separate construction issue Tracey J determined that the clause created aspirational expressions only and did not create binding legal obligations on the respondent.

7    The appellant filed a notice of appeal on 15 December 2014. On 16 December 2014, the appellant filed an interlocutory application by which it sought an order that the hearing of the appeal be expedited.

8    The applicant submitted that expedition was necessary because there were about 263 employees of the respondent, being administrative, clerical support and academic employees, who had either received notices of termination under the collective agreement, or who will receive such notice before the end of the year. The effect of the operation of the notices is that employees who take no other action, such as electing for early departure, will become redundant and have their employment terminated after a period of approximately eight weeks. The application for expedition seeks to have the appeal determined before that time in order to protect the employment of those employees.

9    Ground 3 of the relief which the appellant sought in the originating application before the primary judge is relevant to this application. The appellant claimed:

An [sic] permanent injunction restraining the respondent from terminating the employment of any employee by reason of compulsory redundancy pursuant to the Future Ready program, other than in accordance with section 74 of the La Trobe University Collective Agreement 2014.

10     An injunction would not flow from a determination of the appeal in favour of the appellant. In order for the appellant to obtain that injunction, it would need not only to succeed on the construction issue on the appeal, but there would then need to be a separate trial on the question of whether the respondent had acted in breach of cl 74 of the collective agreement and thereby contravened s 50 of the FWA. The appellant would need to succeed in that trial, and furthermore, would need to satisfy the Court that an injunction should be granted in the exercise of the Court’s discretion.

11    It is critical to the determination of this application that the appellant has not sought any interim restraint on the respondent to prevent it issuing notices of termination to the approximately 263 employees in question. Nor has it sought any interim restraint on the respondent acting on any notices already served. The consequence is that the notices will have taken effect, and the employment of those employees will have been terminated by approximately early or mid-March. Even if the appeal were to be expedited, it is highly unlikely that the other necessary steps which would protect the approximately 263 employees could be completed within that timeframe.

12    There is uncertainty regarding the parameters of any trial, and a difference of opinion between the parties about the likely length of the trial. The estimates range from the appellant’s estimate of three days, to the estimate of an indeterminate number of weeks by the respondent. Viewed objectively on the material before the Court, it is unlikely that a trial would be completed under at least one to perhaps two weeks.

13    Thus, in the absence of any application for any interim restraint, the value of any expedition of the appeal is illusory. No case has therefore been made to justify an order for expedition of the hearing of the appeal.

14    The respondent also argued that the application for expedition should be refused on the ground of the appellant’s delay in bringing the proceeding to the Court. In view of my conclusion, it is unnecessary to consider that issue.

15    Consequently, the application for an expedited hearing of the appeal is refused.

Associate:

Dated:    27 February 2015