FEDERAL COURT OF AUSTRALIA
National Tertiary Education Union v Victoria University [2008] FCA 1630
NATIONAL TERTIARY EDUCATION UNION v VICTORIA UNIVERSITY
VID 122 of 2007
RYAN J
3 NOVEMBER 2008
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 122 of 2007 |
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BETWEEN: |
NATIONAL TERTIARY EDUCATION UNION Applicant
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AND: |
VICTORIA UNIVERSITY Respondent
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RYAN J |
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DATE OF ORDER: |
3 NOVEMBER 2008 |
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WHERE MADE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
VID 122 of 2007 |
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BETWEEN: |
NATIONAL TERTIARY EDUCATION UNION Applicant
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AND: |
VICTORIA UNIVERSITY Respondent
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JUDGE: |
RYAN J |
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DATE: |
3 NOVEMBER 2008 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1 By its amended application the applicant (“the NTEU”), seeks the following relief;
‘1. A declaration that the Respondent has contravened section 719(1) of the Act by breaching clauses 63.3, 63.5 and 63.6 of the Victoria University (Academic & General Staff) Enterprise Bargaining Agreement 2005 (“the 2005 Agreement”).
2. The imposition of penalties on the Respondent under section 719(1) of the Act in respect of breaches of clauses 63.3, 63.5 and 63.6 of the 2005 Agreement.
3. An order under section 841 of the Act that any penalty or penalties be paid to the Applicant.
4. A declaration and orders that on its true meaning and intent clause 63 of the 2005 Agreement permits a staff member to raise a dispute over the application of the 2005 Agreement even if the subject matter of the dispute does not involve the individual staff member.
5. A declaration and orders that on its true meaning and intent, clause 63 of the 2005 Agreement permits a staff member who has a dispute over the application of the 2005 Agreement to refer the dispute to the disputes committee whether or not the staff member first raised the dispute with the supervisor.
6. A declaration and orders that on its true meaning and intent clause 63 of the 2005 Agreement if a staff member who has a dispute over the application of the 2005 Agreement requests the disputes committee be convened the Respondent must:
(i) nominate two members to the Disputes Committee; and
(ii) convene or permit to be convened the Disputes Committee.
7. A declaration and orders that on its true meaning and intent clause 63 of the 2005 Agreement does not permit the Respondent to refuse to participate in the dispute resolution procedure in clause 63 on the grounds that they have formed the view that:
(i) the dispute is not a dispute over the applicant of the 2005 Agreement; or
(ii) the subject matter of the dispute does not involve as an individual the staff member notifying the dispute.’
2 At the hearing, Mr Bromberg SC for the NTEU indicated that it no longer pursued the relief sought in pars 4 to 7 of the amended application.
3 The respondent (“VU”) has at all material times been a party to and bound by the 2005 Agreement, cl 63 of which provided as follows;
‘63 Dispute Settling Procedures
63.1 It is agreed that the University and all of its staff members have an interest in the proper application of this Agreement, and in minimising and settling disputes about matters specific to this Agreement in a timely manner.
63.2 Where the dispute involves an individual staff member they may first raise the matter with their supervisor. The staff member shall have the right to be represented at any time during the dispute settling procedure if they so choose.
63.3 Where a dispute is not resolved under clause 63.2 above, at the request of either party to the dispute a Disputes Committee shall be convened within five working days unless agreed otherwise. The Disputes Committee shall consist of, unless otherwise mutually agreed:
63.3.1 two nominees of the University; and
63.3.2 two members nominated by the Chair of the WCC from the pool of elected staff members of the University.
63.4 The Disputes Committee shall attempt to resolve the matter within five working days of its first meeting. Any resolution shall be in the form of a written agreement subject, if necessary, to ratification by either party.
63.5 Any staff member involved in the dispute shall be entitled to put their position to the meeting in person, and shall be advised of the outcome of the meeting's deliberations.
63.6 Until the procedures described in clause 63.3 and clause 63.4 have been exhausted:
63.6.1 work shall continue in the normal manner;
63.6.2 no industrial action shall be taken by either party to the dispute or any party to this Agreement;
63.6.3 the University shall not change the work, staffing or the organisation of the work if such is the subject of dispute, nor take any action likely to exacerbate the dispute; and
63.6.4 the subject matter, of the dispute shall not be taken to the Australian Industrial Relations Commission by the parties to the dispute (except in the case of any matter where the time limit of notification would otherwise expire).
63.7 In the event that the dispute remains unresolved by the process specified in clause 63.3 and clause 63.4 the matter may be referred to the Australian Industrial Relations Commission.
63.8 The Australian Industrial Relations Commission can resolve the dispute and any recommendation, decision or order of the Commission will be binding on all parties to the dispute.
63.9 Nothing in this clause prevents the parties to the dispute from agreeing to refer an unresolved dispute to a person or body other than the Australian Industrial Relations Commission for resolution. Any decision or recommendation of the third party shall be binding on all parties to the dispute.’
Background to the issues raised by the application
4 Dr Doughney was, at the relevant time, a Senior Lecturer in the Faculty of Business and Law at VU. On 11 December 2006 he wrote the following letter to Professor Colin Clark, who was then Executive Dean of the Faculty of Business and Law at VU;
‘Re: Dispute between Jamie Doughney and Victoria University re Workloads Model and Implementation
In the absence of my designated supervisor, Professor Lindsay Turner, I write to you in accordance with clause 63 of the Victoria University (Academic and General Staff) Enterprise Bargaining Agreement 2005 ("the Agreement") to inform you that a dispute exists between myself and the University in relation to the proposed Workloads Model and in relation to the proposed implementation of that model in Semester 1 2007.
The workloads model adopted by the Vice Chancellor, together with the proposed plan for implementation, breach the terms of the Agreement in the following ways:
1. Breach of Clause 11
Clause 11 - Intent of Agreement - provides that the intent of the Agreement is, inter alia, to provide fair employment provisions that are of benefit to both the university and its staff. Further, the clause provides that the University will recruit, develop and retain skilled and committed staff who work in an enriching and stimulating environment free from discrimination.
The detail of the workloads model as adopted by the Vice Chancellor, and the proposed manner of its implementation, breach the Agreement since they fly in the face of its stated intention.
A system of workload allocation which restricts future opportunities for research on the basis of an arbitrary assessment of past activities, without any transitional period or other practical provision for people to move from "research inactive" to "research active", is unfair, does not enable staff to develop their skills or to work in an enriching and stimulating environment, and it is discriminatory in its effect. A workloads model which assumes a basic workload of more than 38 hours per week averaged across teaching semesters is also unfair in that it requires excessive working hours of staff, reducing their capacity to work in an enriching and stimulating environment, and unfairly leading to occupational health and safety risk.
2. Breach of Clause 47
Clause 47 - Workloads - Academic Staff - requires that the workloads model implemented as a result of that clause must be "flexible, transparent, fair and straightforward". The unfairness of the model and its implementation breaches this provision for the same reasons that it breaches Clause 11.
3. Breach of Clause 65
Clause 65 - Organisational Change - applies where the University proposes major changes to workplace arrangements where that change is likely to have an impact on the work, conditions or career prospects of staff. The adoption and implementation of the new workloads model is clearly a change of this nature, and therefore the University must comply with the requirements of Clause 65 in relation to it. In particular, Clause 65.4 requires the University to involve affected staff (and their chosen representative(s)) in consultation, exploration of options, consideration of written information about the proposed changes, the expected effects of the changes on staff, and any other matters likely to affect staff, to consider the views of staff members who will be affected, and to explore, with staff and their chosen representative(s), alternatives and options to mitigate adverse consequences for staff. The University has failed to do so.
Clause 65.5 requires the University, within reasonable resource constraints, to implement an appropriate process to support staff to enable them to adjust to the change process. The University has failed to do so.
Read in light of the Intent of Agreement as expressed in Clause 11, it is clear that, to the extent there might be argued to be any ambiguity, Clauses 47 and 65 should be interpreted and applied in a manner which prioritises fairness and the need to develop and maintain an enriching and stimulating environment free from discrimination.
There are fundamental flaws in the workload model as determined by the Vice Chancellor which fail to meet this standard. For example:
* a definition of "research active" which arbitrarily values some forms of research activity over others;
* the measuring of "research active" status on the basis of past performance only, without regard to prospective expectations;
* allocation of teaching load in a manner which effectively minimises the opportunity for “research inactive” staff to become “research active”;
* a total average workload allocation which causes occupational health and safety risks by imposing excessive working hours as an expected standard;
* allocation of teaching load in a manner which has the tendency to place some staff in a 'teaching only' category, with consequent damage to their career prospects and work satisfaction;
* allocation of teaching load in a manner which reduces employment opportunities for current and future casual staff.
There are fundamental flaws in the proposed implementation process which fail to meet this standard. For example:
* the absence of any transitional period for all staff prior to implementation of the new model in order to enable staff to meet the new criteria for "research active" status;
* imposition of an implementation timeline which precludes meaningful consultation with affected staff or consideration of alternatives which might mitigate or avoid the negative impact of the model on staff.
Through this letter I am raising this dispute with you as my supervisor.’
5 The letter was written to Professor Clark because Dr Doughney’s director supervisor, Professor Lindsay Turner, was absent from VU at the time. Dr Doughney’s letter elicited this reply dated 14 December 2006 from Jon Hickman, the Deputy Vice-Chancellor, Capital and Management Services of VU (“Hickman”);
‘Advice of dispute re Workloads Model and Implementation.
Thank you for your memorandum to Prof Colin Clark regarding the new Workloads Model. I am responding on behalf of Colin.
Jamie, as you will be aware it is a principle in industrial matters that a party notifying a dispute should have 'standing' in that the party should face some disadvantage in relation to the subject of the dispute.
As you are 'Research Active' under the new model the matters raised in your letter do not directly effect [sic] your employment with the University.
Against this background the purpose of this letter is to advise you that we do not recognise the existence of a dispute with you. We are, of course prepared to discuss with you the issues that you have raised, given your role as Chair of the Committee that developed the new model. Such discussions would however be outside the framework of our EBA dispute resolution process.
If you would like to take up the offer to discuss your concerns on this basis please contact me on 9919 4013.’
6 In the light of that response, Ms Linda Gale, a Senior Industrial Officer of the NTEU, at Dr Doughney’s instigation, sent emails to Hickman and to Dr Bevan and Dr Adams, each of whom was a member of the academic staff of VU and had been nominated pursuant to cl 63.3.2 of the 2005 Agreement to be a member of the Disputes Committee. Those emails advised the recipients that a Disputes Committee would be convened on 16 January 2007. On 12 January 2007 Hickman wrote to Ms Gale a letter which concluded with this paragraph;
‘In relation to the matter that Dr Doughney has raised, I confirm our earlier advice that we do not believe that there is a dispute. I reiterate my offer to discuss the matters raised by Dr Doughney outside the framework of a Disputes Committee.’
7 On 12 January 2007, Ms Sue Thomas, the Director of Human Resources for VU sent an email to Dr Bevan and Dr Adams in these terms;
‘I believe the NTEU has been in touch directly with you re your participation on a Disputes Committee next week.
I'm sure you will understand that that it is inappropriate for University staff to take direction from anyone outside the University. Also, given the need to be HEWRR compliant it is important that appropriate practices are followed,
To prevent any inappropriate direction, or even the perception of such, if/when you (or any other VU staff) are nominated for such committees please be aware that you will be contacted by a University staff member and University staff will make all necessary arrangements. Please disregard any approach from the NTEU you may have had or may have in the future.
I can be contacted on ext 4940 if you need to discuss.’
8 Despite Ms Thomas’ contention, Dr Bevan and Dr Adams attempted, on 16 January 2007, to meet as members of the Disputes Committee but no nominee of VU met with them and VU thereafter declined to nominate two members of the Disputes Committee and to convene a meeting of that Committee to consider the matter notified by Dr Doughney.
9 Clause 47 of the 2005 Agreement provided for the development, trial and adoption of an “Academic Workload Model”. It stipulated;
‘47 Workloads Academic Staff
47.1 During semester 1 2006 the University's Academic Workloads Committee (AWC) will develop an academic workload model for trialing in one faculty during semester 2 2006, with full implementation occurring in semester 1 2007.
47.2 The AWC will base its work on rigorous research and evidence from Victoria University and other universities. The model must be comprehensive, contain quantitative measures and caps, reflect all aspects of academic work (MSALS), allow for leave arrangements and be flexible, transparent, fair and straight forward.
47.3 In the model the normal average teaching contact hours per calendar year for each staff member shall be 336 (288 if research active) and the normal numbers of semesters taught shall be two (or four semesters of six).
47.4 Before implementation the Vice-Chancellor will approve a model recommended by the AWC arrived at with consensus. If consensus is not achieved on aspects of the model the Vice-Chancellor will consult with the Chair and members of the AWC before determining those aspects of the model.
47.5 The approved model will become University policy for the life of this Agreement.
47.6 Clause 18 of the Victoria University of Technology Enterprise Bargaining Agreement 2000 - 2003 will continue to apply until the new model is implemented.
47.7 The AWC will be comprised of the following members:
47.7.1 Three members nominated by the Vice-Chancellor; and
47.7.2 Three members nominated by the Chair of the WCC from the pool of directly elected staff representatives, one of whom will be the committee Chair.
47.8 All members will have the relevant experience and expertise necessary for the development of the model.’
10 It appears that, as contemplated by cl 47 of the 2005 Agreement, the Academic Workloads Committee (“AWC”) developed an Academic Workload Model which, in accordance with cl 47.5, was to become University policy from the time of its promulgation for the balance of the life of the 2005 Agreement. However, the AWC was unable to reach consensus on one aspect which concerned the transitional arrangements for 2007 in respect of academic staff who did not have a Research Active Index (“RAI”) score which would entitle them to workload points. It seems to be common ground that some such transitional arrangements were necessary to accompany the adoption of the AWC’s Academic Workload Model. Accordingly, in the absence of consensus within the AWC in respect of transitional arrangements, the Vice-Chancellor of VU, pursuant to cl 47.4 of the 2005 Agreement, made a determination in respect of the transitional arrangements. That determination was recorded in a memorandum dated 4 December 2006 in which the Vice-Chancellor recounted the work done by the AWC in framing a new workload allocation model. The memorandum then recited:
‘The only area in which the AWC was not able to reach consensus relates to the introduction of the new RAI Policy, for staff who do not yet have an adequate RAI score. Agreement was reached on the workload points allocation for those who do have an RAI …’
11 By way of paraphrase, the Vice-Chancellor indicated:
‘The matter on which the AWC was unable to reach consensus is whether or not some form of transition provision should be made in 2007 for academic staff who do not have an RAI sufficient to receive workloads points based upon their RAI score.’
12 The Vice-Chancellor then referred to appendix 1 to her Determination which explained the competing views taken by different members of the AWC and summarised the arguments in favour of or against transitional arrangements. She then recorded that she had consulted “with the chair and members of the AWC on this matter where they had failed to reach consensus.” After some “discussion” of what had occurred to the Vice-Chancellor in her review of the controversy, the memorandum recorded the following “determination”;
‘It is my determination that for 2007, and for the period that the academic workload model as developed by the AWC remains University policy, that a workload allocation category headed “Research Transition” be included in the Academic Workload Model. Further, that in each School there be set aside an annual discretionary workload budget representing up to 2.5% of the total time of the FTE academic staffing of the School for the sole purpose of providing under this heading workload allocations to staff with a realistic prospect of attaining the benchmark RAI that applies for their level of appointment.’
13 There followed a statement of procedures and protocols that were to apply in giving effect to the determination. The memorandum then contained certain observations of a somewhat speculative kind under the sub-heading “How the Research Transition Category Might Work”. Some indication of the non-prescriptive flavour of this part of the memorandum is given by the last two sentences:
‘There is in fact, a whole raft of circumstances in which this workload allocation may be utilised, many of which we cannot anticipate in advance. But allowing for the complexity of staff career paths and providing scope for the exercise of judgment is precisely my intention in providing for an ongoing research transition category in the new workload model.’
14 The memorandum ended with “Some Concluding Comments” in which the Vice-Chancellor expressed her satisfaction that “the determination set out above meets many of the concerns raised by both those for and those against some form of transition provision in 2007”. The concluding paragraph of the memorandum was under that sub-heading and in these terms:
‘In many senses the arrangements now set out are a continuation for what has operated at VU for a number of years. Staff members are in a position to make a case for a workload allocation on the basis of a research plan. And Heads of School are in a position to exercise their judgment and provide their area specific knowledge to the related decision making process. The key differences are that the procedures around these processes and the related decisions are now better specified and subject to a reasonable and clear resource constraint. I believe that this is in the best long run interests of the University and every one of its academic staff members.’
15 The purpose of the Academic Workload Model has been variously described in evidence by Dr Doughney and Professor Clark but, in essence, it seems to have been designed to achieve, for each semester, an appropriate distribution of work which would enable each member of the VU’s academic staff to achieve a balance appropriate to that staff member between teaching, research, administrative duties, student supervision, service to VU and maintenance and development of personal learning and skills. VU had, independently of the Academic Workload Model, compiled an RAI after assessing the amount of research, including research-generated publication and research, undertaken by each member of its academic staff during an earlier three year period. The Workload Model then limited the number of teaching hours which could be required of a particular staff member who had been placed on the RAI.
16 After refusing to convene a Disputes Committee as requested by Dr Doughney, VU implemented the Academic Workload Model with the transitional arrangements which had been determined by the Vice-Chancellor. Dr Doughney acknowledged under cross-examination that he was, throughout 2007, on the RAI but contended that he could cease to be on the RAI if the type of research he was undertaking were to change, as it had begun to do.
Submissions on behalf of the NTEU
17 Mr Bromberg SC for the NTEU submitted that the notification of what was claimed to be a dispute was sufficient to enliven the operation of cll 63.2 and 63.6 of the 2005 Agreement whether or not the claimed dispute was ultimately regarded as justiciable by a Disputes Committee convened in accordance with cl 63.3 of the 2005 Agreement. The contrary interpretation, he argued, would implicitly give VU a power, by the expedient of declining to convene a Disputes Committee, to veto the performance by a Disputes Committee of its functions which was a prerequisite to access to the private arbitration by the Australian Industrial Relations Commission (“AIRC”) provided for by cll 63.7 and 63.8 of the 2005 Agreement.
18 In the same context, Mr Bromberg pointed to cl 63.4 of the 2005 Agreement which imposes on the Disputes Committee an obligation to “attempt to resolve the matter.” The word “matter”, in that phrase and in the expression “matters specific to this Agreement” in cl 63.1 was, he contended, of wide import; Fencott v Muller (1983) 152 CLR 570, at 603, and includes, not only the complaint of the notifier, but also the preliminary issue of whether the notified dispute was justiciable by the Disputes Committee. That view was said to be supported by what was then s 170LT(8) of the Workplace Relations Act 1996 (Cth) (“the WRA”) which required the insertion of a settlement of disputes clause in agreements like the 2005 Agreement by providing;
‘The agreement must include procedures for preventing and settling disputes between;
(a) the employer; and
(b) the employees whose employment will be subject to the agreement;
about matters arising under the agreement.’
19 Counsel for the NTEU also relied on an unreported judgment of Fullagar J in the Supreme Court of Victoria in Robertson v Asva Holdings Pty Ltd and Barrass (25 September 1989) to the effect that a person nominated as an arbitrator in a submission to arbitration has power to decide the preliminary or collateral issue of whether or not an occasion for the exercise of the arbitral power has arisen. His Honour there said;
‘Where the jurisdiction of a tribunal is dependent upon the existence of a particular state of affairs, that state of affairs may be described as preliminary to or collateral to the merits of the issue. If at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction the tribunal has to make up its mind whether to act or not, and can give a ruling on the preliminary or collateral issue but that ruling is not conclusive.’
20 It was next submitted on behalf of the NTEU that the purpose of cl 63 of the 2005 Agreement was to provide a simple, timely and effective means of resolving all disputes about matters specific to the Agreement. That purpose, so the argument went, would be frustrated if VU were able, at will, to prevent the convening of a Disputes Committee. As well, the intended access to binding arbitration by the AIRC could also be denied by a refusal by VU to co-operate. A person affected by the presumptive dispute would have no remedy other than to institute proceedings like the present for imposition of a penalty.
21 In the alternative, Mr Bromberg submitted that VU was wrong in its contention that Dr Doughney had not given notice of a dispute justiciable by the Disputes Committee. Dr Doughney had standing to raise such a dispute because the facility to invoke the dispute settlement procedure conferred by cl 63 was not restricted to an individual staff member “involved” in the dispute as the language of cl 63 in isolation might suggest. In particular, Mr Bromberg contended that, as recited in cl 63.1 all of the staff of VU had “an interest in the proper application of” the 2005 Agreement and he referred to cl 63.10 and Schedule 6 which contained a mechanism for the resolution of “grievances”.
22 According to Mr Bromberg, cl 63.2 of the 2005 Agreement was concerned with a sub-species of dispute concerning the grievances or complaints of individual employees and so provided for an attempted resolution of those matters immediately between an individual employee and his or her direct supervisor.
23 The NTEU next sought to rebut, in anticipation, a contention attributed to VU that cl 47 of the 2005 Agreement governing the erection of an Academic Workload Model was self-contained and was not capable of giving rise to a dispute justiciable by a Disputes Committee pursuant to cl 63. According to the NTEU, cl 47 required the adoption of a fair model and any member of VU’s academic staff who thought that the model formulated by the AWC was not fair could ventilate that complaint before a Disputes Committee in accordance with cl 63. The process contemplated by cl 47, unlike that provided for by cl 63, was not entirely consensual or “bipartisan” because it was capable of culminating in a determination by the Vice-Chancellor completely contrary to any recommendation or preference of the AWC other than one based on complete consensus. As well, Dr Doughney’s notification on 11 December 2006 of the presumptive dispute which he identified, complained, not only of the result reached in applying cl 47, but of an infringement of cl 11 of the 2005 Agreement which provided;
‘Intent of Agreement
11.1 This Agreement exists to provide fair and flexible employment provisions that are tailored to the circumstances of the University and benefit both the University and its staff.
11.2 The University's long-term viability and sustainability will be ensured through the recruitment, development and retention of skilled and committed staff who are rewarded for excellence and who work in an enriching and stimulating environment free from discrimination. The University values and encourages intellectual freedom and respects the intellectual property and moral rights of its staff.
11.3 The University recognises that in the climate of change, security of employment is an important issue for its staff members. The goal of the University is to endeavour that there be no net reduction in jobs. The University is committed to exploring all reasonable measures, to avoid forced redundancies. Where possible, it will pursue the options of retraining, natural attrition, voluntary separations, fixed term retirement contracts, leave without pay, voluntary conversion to part-time employment, long service leave, or internal transfer before proceeding with forced redundancies.’
Submissions on behalf of VU
24 The primary contention advanced by Mr Parry SC, who appeared with Mr O’Grady of Counsel for VU, was that, provided that the process ordained by cl 47 of the 2005 Agreement had been followed, the adoption of an Academic Workload Model pursuant to that clause was incapable of giving rise to a dispute which could be referred to a Disputes Committee constituted under cl 63.
25 In a related way, it was argued that the particular procedure framed by cl 47 for resolving issues or disputes concerning the distribution of the academic workload was intended to prevail over the general mechanism for dispute resolution embodied in cl 63. In other words, cl 47 was one of several mechanisms chosen by the framers of the 2005 Agreement to resolve various kinds of issues or disputes. The particular procedure ordained by cl 47 was designed to provide for the allocation of academic workloads in such a way as to exclude, in respect of that issue, the general application of cl 63; see Anthony Hordern & Sons Ltd v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1, at 7 and R v Wallis, Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, at 550. There was nothing in s 170LT(8) of the WRA to require the adoption only of a particular form of settlement of disputes procedure corresponding with that to be found in cl 63. Nor was the provision of an ultimate resolution by arbitration an essential prequisite for the creation of a valid settlement of disputes procedure; see the decision of a Full Bench of the AIRC in Ampol Refineries v Australian Institute of Marine and Power Engineers (Print 8620). Other mechanisms, apart from that to be found in cl 63, were the grievance procedure ordained by cl 64 and the disciplinary regime provided by cll 67 to 69, each of which, like cl 47, reposed the ultimate resolution of the matter in the Vice-Chancellor. Reference was also made to Schedule 6 to the 2005 Agreement which emphasised the use of counselling, mediation and conciliation as the preferred mode of dealing with grievances and concluded by providing in par 13;
‘Failing resolution of the grievance within a reasonable time, the independent conciliator shall provide a written report and recommendation on the terms of resolution to the Vice-Chancellor who shall determine the matter. The aggrieved member of staff shall normally receive a copy of the conciliator’s report from the Vice-Chancellor. If the Vice-Chancellor decides not to provide the conciliator’s report to the aggrieved staff member reasons will be provided within ten working days.
26 Counsel for VU urged a number of considerations said to demonstrate the inconvenience of a construction which allowed the adoption of an Academic Workload Model under cl 47 to be the subject of the dispute settlement procedure mandated by cl 63. They included the possibility of multiple and overlapping disputes arising from the impact on various members of the academic staff of the model adopted and the resultant delay in implementing any model. Attention was also drawn to the stultifying effect which the obligation imposed by cl 63.6 to preserve the status quo would have if “disputes” of the kind notified by Dr Doughney could be subjected to all of the steps provided for in cl 63.
27 Counsel for VU accepted, for the purposes of the argument, that cl 63 of the 2005 Agreement was directed to two types of dispute, one general, about the application of the Agreement to the whole academic workforce or a broad section of it, and the other concerning its impact on a particular member of staff. However, drawing that distinction, the dispute notified by Dr Doughney was of the latter kind, invoking in his own name cl 63.2. Because he always had the benefit of the RAI, he was not “involved” in the dispute as required by cl 63.2 since the impact of the Academic Workload Model or, at least, the transitional aspect determined by the Vice-Chancellor, was confined to staff members who were not on the RAI.
28 It was also argued on behalf of VU that cl 63.2 of the 2005 Agreement made it clear that the whole clause was concerned with disputes between VU and individual staff members. Sub-clauses 63.3 and 63.4 were said to operate on disputes of the type described in cl 63.2 and cl 63.5 conferring a right on “any staff member involved in the dispute to put their position” to the meeting of the Disputes Committee. It did not extend the class of dispute to which cl 63 applied and did not widen, beyond the individual staff member contemplated by cl 63.2, the class of employees in respect of whom an applicable dispute might arise.
29 As well, it was urged that the construction of the 2005 Agreement for which VU contended was supported by the history of industrial regulation of the salaries and conditions of academic staff and by the context, including that provided by the Higher Education Workplace Relations Regulations, in which cl 63 came to be incorporated in the 2005 Agreement.
30 A separate contention advanced on behalf of VU was that, in notifying the “dispute” which he did, Dr Doughney was not concerned solely to challenge the Vice-Chancellor’s determination in respect of transitional arrangements. Rather, Counsel imputed to Dr Doughney on behalf of the NTEU an intention to pursue a broader campaign against the whole Academic Workload Model. The whole “dispute”, it was said, had been contrived with a view to invoking the status quo provisions in cl 63.6 of the Agreement as an industrial tactic to prevent or delay the implementation of the Model.
31 Counsel for VU next referred to s 718(6) of the Australian Workplace Relations Act 1996 (Cth) in support of an argument that the NTEU could not seek the imposition of a penalty for a breach constituted by VU’s failure either to convene a Disputes Committee or apply the status quo provisions in cl 63.6 of the 2005 Agreement. Sub-section 718(6) provides, so far as is relevant;
‘An organisation of employees must not apply for a penalty or other remedy under this Division in relation to a breach of an applicable provision that is:
…
(b) a term of a collective agreement; or
…
unless:
(f) a member of the organisation is employed by the respondent employer; and
(g) the breach relates to, or affects, the member of the organisation or work carried on by the member for the employer.’
32 That sub-section was said to deny NTEU standing to bring the present proceedings because neither of the alleged breaches related to, or affected, Dr Doughney as the Vice-Chancellor’s determination had no real, actual and temporal impact upon him.
33 The final submission for VU was that the NTEU bore an onus of persuading the Court that the construction of the 2005 Agreement for which it contended was correct. Unless the Court were persuaded affirmatively of its correctness, the application should be dismissed; see AFMEPKIU v Qantas Airways Limited [2001] FCA 547, at [65]-[70].
Submissions of the NTEU in reply
34 Counsel for the NTEU joined issue with VU over the competing interpretations of cl 63 and contended that a Disputes Committee should have been convened and allowed to decide for itself whether it was open to it to attempt to resolve the “dispute” notified by Dr Doughney. As well, Mr Bromberg criticised VU’s reliance on authorities like Anthony Horden & Sons Ltd v The Amalgamated Clothing & Allied Trades Union of Australia (supra) and R v Wallis, Ex parte Employers Association of Wool Selling Brokers (supra). He adopted the description in Houssein v Under-Secretary, Department of Industrial Relations and Technology (N.S.W.) (1982) 148 CLR 88, at 94 of the maxim expressum facit cessare tacitum as “a valuable servant but a dangerous master”. In particular, it was claimed, extreme care should be used in applying canons or maxims of statutory construction to industrial awards and agreements. The authorities reveal that they must not be interpreted in a vacuum divorced from industrial realities. There was nothing in the character or terms of cl 47 to indicate that it had been framed as a code for the resolution of even a limited class of disputes. The task assigned to the AWC was developmental and not concerned with settling disputes. Mr Bromberg acknowledged the presence elsewhere in the 2005 Agreement of separate dispute resolution codes such as that erected by cll 67 and 68 in relation to disciplinary matters which did displace the general application of cl 63. It was next pointed out that the Academic Workloads Model developed by the AWC had built into it its own procedures for resolving grievances or disputes about the implementation of the Model. That was said to indicate that there was no intention to exclude recourse to cl 63 for the resolution of such disputes and that the AWC was not intended to be the final arbiter of them.
35 Finally, Mr Bromberg submitted in reply that it was highly unlikely that the framers of cl 47, which was concerned with a matter of great importance to the parties, had intended to leave to the Vice-Chancellor the ultimate resolution of that matter. It was far more likely, so the argument went, to have been intended that the AIRC, a specialist tribunal, should be entrusted with the final resolution of a matter as important as workload allocation.
Consideration
36 In common with similar provisions in other industrial instruments, cl 63 is concerned to provide a mechanism for the settlement of disputes about “matters” arising under the Agreement itself. Although I accept that the word “matters” is capable of having a wide connotation, it is confined, in this context, to controversies between parties to the agreement or award about the proper application of the instrument itself. It does not extend to controversies which have been resolved by the making of the award or agreement or new disputes between the same parties which have arisen subsequently. This interpretation, I consider, is borne out by the recital in cl 63.1 of the 2005 Agreement that “the University and all of its staff members have an interest in the proper application of this Agreement and inminimising and settling disputes about matters specific to this Agreement” (emphasis added). The same understanding was reflected by the reference in s 170LT(8) of the WRA to “disputes … about matters arising under the agreement.” The interpretation which I favour also receives some support from the presence, as in similar industrial instruments, of a “no further claims clause” (cl 8) in these terms:
‘8 No Further Claims
8.1 The parties agree not to pursue any further claims relating to matters covered by the Agreement prior to the nominal expiry date unless specifically contemplated in this Agreement.’
37 These features, in combination, suggest that the framers of the 2005 Agreement left the ultimate formulation of an Academic Workplace Model, in the last resort and in the absence of complete consensus within the AWC, to the Vice-Chancellor. In that sense, the Agreement recognised the allocation of academic workloads as within what used to be called, in industrial parlance, the “management prerogative”.
38 I accept that an arbitrator or other dispute-settling entity has a power to decide as a preliminary or collateral issue whether the dispute is within the submission to arbitration or otherwise within jurisdiction. However, that acknowledgement, which occurred in Robertson v Asvar Holdings Pty Ltd and Barrass (supra), does not entail that each party to the dispute or the agreement containing the arbitration clause is obliged to join in the appointment of an arbitrator or otherwise to facilitate the arbitrator’s ruling on the preliminary or collateral issue. That obligation only arises if the dispute or controversy is conclusively within the submission to arbitration or otherwise within the jurisdiction of the dispute-settling entity.
39 In my view, it begs the question which I have just identified to ask whether a party to a dispute can frustrate its resolution by refusing to co-operate in the appointment and proceedings of an arbitrator or other dispute-settling entity. There must first be an affirmative answer to the question whether the dispute or controversy is of a kind which the parties have agreed should be resolved by arbitration or some cognate procedure.
40 I note parenthetically that, even if the dispute about the Academic Workloads Model were of the kind to which cl 63 is directed, the conduct of VU has not necessarily prevented its referral to the AIRC. That is because referral to the AIRC is conditioned by cl 63.7 on “the event that the dispute remains unresolved by the process specified in clause 63.3 and 63.4.” In the events which have happened, it is at least arguable that the condition stipulated by those words in cl 63.7 has been satisfied.
41 I agree with the submission of Counsel for the NTEU that the facility to activate the settlement of disputes mechanism in cl 63 was not confined to an individual staff member whom the dispute “involves”. The language of cl 63.1 was wide enough to comprehend an interest in the proper application of the Agreement extending beyond an individual staff member. Nor is it difficult to conceive of disputes about “matters specific to the Agreement” which involved all, or a substantial number of, members of VU’s academic staff. It would unduly restrict recourse to cl 63 if it were only applicable to a dispute involving an individual staff member as contemplated by cl 63.2. I therefore uphold Mr Bromberg’s contention that cl 63.2 is confined to a sub-species of dispute involving an individual staff member and does not preclude recourse to the dispute resolution procedure for disputes of a wider kind affecting more than a single staff member. The introductory words of cl 63.3 “Where a dispute is not resolved under clause 63.2 above, …” are not inconsistent with this construction. Those words are at least equally capable of applying to both a dispute involving an individual staff member which has not been resolved after being raised with his or her supervisor and a wider dispute involving more than one staff member and therefore not susceptible of resolution by reference to a supervisor. However, acceptance that a dispute justiciable under cl 63 can be raised in more than one way, and on behalf of more than one individual staff member, does not obviate the necessity, which I have earlier discerned, for the dispute to be about the proper application of the Agreement or a matter “specific to the Agreement.”
42 Because of the conclusion to which I have just referred, it is strictly unnecessary to resolve the question agitated between the NTEU and VU about whether cl 47 was a self-contained code for the resolution of matters affecting the workloads of academic staff. However, out of deference to the careful arguments directed to this question, I venture the opinion that cl 47 did not, on its proper construction, embody a disputes settlement procedure at all. Rather, the framers of the 2005 Agreement had, by inserting cl 47, delegated to the AWC the resolution of a specific industrial matter forming part of the foundational industrial dispute between the NTEU and VU. That was the matter of the allocation of workloads from the beginning of 2007. This view receives support from the fact that all members of the AWC were required by cl 47 to have “the relevant experience”. Significantly, there was no suggestion that the members of the AWC should be nominated because of their ability to represent the competing interests of the VU and the members of its staff or because of any experience or skill in the resolution of industrial disputes.
43 On this analysis, the Academic Workload Model as formulated by the AWC together with any necessary determination by the Vice-Chancellor pursuant to cl 47.4, became incorporated by reference in the 2005 Agreement. To that extent, the proper application of the Model to an individual member of staff or to a class of staff members was capable of being the subject of a dispute which cl 63 could be invoked to resolve. However, for the reasons already indicated, a complaint that the Model as formulated was unfair or otherwise an inappropriate resolution, as between VU and its staff, of the issues of workload allocation generally, was incapable of raising a dispute which a Disputes Committee could entertain under cl 63.
44 The conclusion to which I have come as to the proper construction of cl 63 also makes it unnecessary to rule on whether the present application by the NTEU satisfies the requirements of s 718(6) of the Australian Workplace Relations Act. Nor am I required to make findings about whether Dr Doughney’s notification of a “dispute” was part of a tactic by the NTEU to revive the controversy about the Academic Workload Model as a whole. Objections were raised going to the admissibility or sufficiency of evidence directed to that issue but it is unnecessary to resolve them because of the anterior conclusion that Dr Doughney’s notification, whether concerned with the Academic Workplace Model as a whole or only with the Vice-Chancellor’s determination, did not raise a dispute within the jurisdiction conferred on a Disputes Committee by cl 63.
Conclusion
45 For the reasons which I have endeavoured to explain, I have not been persuaded that cl 63 of the 2005 Agreement should be applied in the way for which the NTEU has contended to disputes about the propriety or appropriateness of a particular Academic Workloads Model. The application must therefore be dismissed. I trust that the attempts which I have made to resolve some of the competing contentions about the interpretation of the salient provisions of the 2005 Agreement may, in the future, assist the parties and others in the framing of awards or agreements containing provisions for the regulation of relevant areas of their industrial relations.
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I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 3 November 2008
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Counsel for the Applicant: |
Mr M Bromberg SC |
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Solicitor for the Applicant: |
Maurice Blackburn Cashman |
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Counsel for the Respondent: |
Mr F Parry SC with Mr C O’Grady |
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Solicitor for the Respondent: |
Dr Steven Stern |
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Date of Hearing: |
10, 11 and 12 September 2007 |
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Date of Judgment: |
3 November 2008 |
