C2015/482, Transcript of Proceedings [2015] FWCTrans 218 (13 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009                                    1051643-1

COMMISSIONER BOOTH

C2015/482

s.739 - Application to deal with a dispute

National Tertiary Education Industry Union

 and

University of the Sunshine Coast Enterprise Agreement (EA) 2010-2013
(C2015/482)

Brisbane

5.34 PM, FRIDAY, 27 MARCH 2015

PN1

THE COMMISSIONER: This is National Tertiary Education Industry Union v The University of the Sunshine Coast, a dispute brought under section 739 of the Fair Work Act.

PN2

This is a decision following an application for an interim order and final determination and dispute brought by the National Tertiary Education Industrial Union, called the Union.

PN3

This extempore decision has been made at the conclusion of the hearing of the interim order. It is in the interests of justice that there be a speedy resolution of the interim application.

PN4

While not all evidence and submissions will be referred to in this decision, all evidence and submissions have been considered.

PN5

The application brought by the union seeks resolution by this Commission of a dispute pursuant to the Dispute Settlement Procedure in the University of The Sunshine Coast Enterprise Agreement. The respondent is the University of The Sunshine Coast.

PN6

The Union was represented by Mr Danby and Mr Williams was granted permission to appear at this interim order application on behalf of the University.

PN7

The dispute alleged by the Union arises from a decision to increase teaching workload of a significant proportion of continuing staff commensurately reducing the staff and sessional staff and apparently impacting on class sizes.

PN8

The decision of the University followed a reduction in the budget available to the University's Faculty of Arts and Business.

PN9

The Act 10 application indicates the dispute is brought by the Union as a party to the agreement on behalf of two members, Dr Christine Morley and Dr Francesco Ricatti.

PN10

The Union seeks both an interim and final order. As I have indicated, the present decision concerns only the interim order which is sought in the following terms; an interim order, effective immediately but until the disputed is resolved the University is to ensure that work continues in the normal matter and take no action likely to exacerbate the dispute by (a) returning academic workloads back to what they were immediately before the dispute arose in February 2015 and (b) refraining from taking any other action that has any impact on academic workloads including the altering of tutorial class sizes. The Union also seeks such other interim orders as the Commissions deems appropriate.

PN11

I turn now to the power to make an interim order. The power for a Commissioner to make an interim order is found in section 589 of the Fair Work Act, which provides as follows:

PN12

Procedural and Interim Decisions.

PN13

(1) The Fair Work Commission may make decisions on how to deal how, when and where a matter is dealt with.

PN14

(2) The Fair Work Commission may an interim decision in relation to a matter before it.

PN15

And there are other sections.

PN16

The power under section 589 to make procedural and interim decisions has been described as very broad. This was done by Lawler DP in the DP World case. There is some authority that the principles governing interlocutory injunctive relief are relevant interim decisions under section 589 and I quote here The National Tertiary Education Industry Union v The University of Sydney Industrial Relations Office [2004] AIRC 901. The principles are whether there is a serious issue to be tried, whether the applicant might suffer irreparable injury unless the interim order is made, and the balance of convenience lay not with the making of the usual order.

PN17

The interim order sought was rejected in that case in the University of Sydney case at first instance on the basis that while His Honour found a serious issue to be tried, the Union, also the NTEU in that case, had difficulty making out any irreparable injury and that the balance of convenience lay against making the interim order. Leave to appeal was refused.

PN18

The principles cited in that case appear to have been accepted by the Full Bench in the Health Services Union v Victorian Hospital Industrial Association & Ors [2012] FWAFB 2901.

PN19

In Kentucky Fried Chicken & Anor the Full Bench refused an interim order on the basis there was no clear status quo to be preserved. It said at paragraph 13:

PN20

There is no clear status quo that should be preserved by making an order. Indeed in some respects it can be said that the making of the interim orders will alter the status quo. We are not satisfied the balance of convenience favours the making of the interim order.

PN21

As well, recently it was said in The Association of Professional Engineers, Scientists and Managers Australia v Rail Corporation NSW, at paragraph 46:

PN22

Parties in that judgment

PN23

referring to Quinn v Overland

PN24

sets out the principles which are relevant to the question of whether or not to grant interim relief.

PN25

The relevant passages are at paragraphs 45 and 46.

PN26

Paragraph 45:

PN27

In determining an application on interlocutory relief the court addresses two main enquiries. First, whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the applicant will be held entitled to relief. Second, whether there is inconvenience or injury which the applicant would be likely to suffer if an injunction were refused, outweighs or is outweighed by the injury which the respondent would suffer if an injunction were granted.

PN28

At paragraph 46:

PN29

The requirement of a prima facie case does not mean that the applicant must show that it is more probable than not that the applicant will succeed at trial. It is sufficient that the applicant show a sufficient likelihood of success to justify the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends on the nature of the rights that the applicant asserts and the practical consequences likely to flow from an order the applicant seeks. In that context there is no objection to the use of the phrase “serious question” to convey the strength of probability.

PN30

I turn now to the submissions, firstly to the union. The union argues in written and oral submissions that the workload changes amount to a significant change of work organisation as contemplated by the management of change clause in the agreement, and that the university has failed to consult in the way it contemplated under the agreement. It lists a number of matters that it says give rise to significant change and that trigger the agreement’s consultation requirements, including the budget reduction of $1.4 million, the effect of the workload allocation increases for continuing and fixed term staff on sessional rates, effectively removing the employment prospects of a number of sessional staff.

PN31

The changes that were undertaken outside the context of the PPR process - and that is the only process under the agreement for workload allocations to change - are changes to payment categories and increases in class sizes, effectively changing the nature of certain work and the attendant workload.

PN32

The union says that it has a serious matter to be argued before the Commission based on these matters, triggering the agreement’s consultation requirements and its contention that timely and sufficient information was not provided, effective consultation was not undertaken before an irrevocable course of action was embarked upon. There was not sufficient time or appropriate arrangements for the exchange of information.

PN33

This list is drawn from a longer list of matters enumerated by Booth DP in Australian Licensed Aircraft Engineers Association v Forstaff Avalon, which I will refer to as Avalon. The union contends, without an interim order, sessional academics’ employment expectations will be irrevocably lost. On the balance of convenience the union argues that it tips strongly towards a requirement the university return to the status quo regarding sessional employment and thereby the original teaching allocations reached in performance planning and review. Further, it is contended that the interim order is required else the loss of the casual cohort will mean that workload matters cannot be brought to finality in a time frame that would allow an effective remedy.

PN34

The union’s witnesses were Dr Weeks and Professor Morley, one of the two named employee applications. Doctor Weeks provided a statement. In evidence she gave personal account of the changes. She indicated that she was taken aback by the increase in hours when it was only a day before she had her performance planning and review. She noted that the contact hours reflected other professional work such as research projects and external commitments. She indicated that as a result of an email exchange she was not required to work the additional hours.

PN35

Professor Morley, who had completed her PP&R in December 2014, was of the view that she already had a fair allocation of teaching and she considered the increased workload unsustainable in the light of - and would affect teaching standards and commitments to students. She has not had her workload increased.

PN36

In Professor Morley’s role as branch president of the NTEU she has had contact with members. She has suggested that members are too fearful to say no to the increased load. In cross-examination she indicated that she provided support to members and that they could take advice from the union. She indicated this advice included that they were not required to take up the extra hours. Further, she agreed it was permissible to work up to 12 hours within the parameters but it was automatic and required discussion. It was up to the university to decide how workloads are calculated. Professor Morley’s hours have not changed.

PN37

I turn now to the submissions of the university. The university submits as follows. Each faculty of the university has workload guidelines in place which are set pursuant to clause 8.2.2 of the agreement. The relevant workload guidelines for the faculty of arts and business were put into evidence. The workload guidelines for the faculty of arts and business provide for a normal expectation of academic staff to deliver up to 12 contact hours per week across semesters. The workload guidelines include the following paragraph in the first section:

PN38

Workload allocation is normally completed as part of the PPR process. However, changes may be made from time to time in response to changed circumstances, for example, the commencement of a major externally funded grant.

PN39

The university further submitted that prior decisions by the executive dean to take steps to reduce costs in the faculty as a consequence of the business requirement of the university, most members of academic staff in the faculty were not working to the agreed normal expectation of contact hours per week. The changes which have been proposed do not require any staff member to work in excess of the levels described in the faculty workload guidelines. The vast majority of academic staff in the faculties, all but six, have accepted the proposed new arrangements. Teaching in accordance with the new arrangements has now been proceeding for a month.

PN40

Although the university submitted that what I have just read out were uncontested facts, in submissions it is clear that the NTEU does not see the facts as uncontested - in particular, whether there is a normal expectation to deliver up to 12 hours a week - and that there is no indication that the vast majority of academic staff in the faculty have accepted the changes. What the union and the university have agreed, however, is that work is being done in accordance with the new arrangements by the vast majority of staff.

PN41

There is however a dispute over whether it has been accepted or not. On this question the university evidence is that work allocation decisions have been agreed with 86 of 92 of the affected staff, and those staff have implemented the necessary changes to their work allocation. The university argues on this basis the status quo should be observed in this matter, and it is the current workload allocations that are implemented, not those from the earlier date. The university argues that the work allocations are in fact consistent with the pre-existing status quo, namely the agreed standards and processes for work allocation, and that there is no dispute amenable to the Commission’s jurisdiction. This argument relies at least in part on the normal expectation of up to 12 hours a week mentioned earlier.

PN42

Further, the university says that for the purposes of an interim application, the real status quo is not the pre-existing workload but one under which the vast bulk of staff have been acting, under which students are taught and have been so since the academic year started. It argues the effect of the order would be to require the university to engage and pay casual staff to carry out teaching duties already allocated to other staff and would be in the nature of a mandatory injunction given at an interlocutory stage in proceedings. That is it would require the university to expend money it could never recover.

PN43

There are two witnesses on behalf of the university, Professor Maher and Associate Professor McCulloch. Professor Maher is head of the school of social sciences. His evidence was that after the email was sent to staff advising of the extra hours required, at least half of the staff emailed back how they could meet the targets. He then went to see as many staff members as he could, and others made appointments. Following these discussions, final changes in hours were proposed for each staff member. This resulted in a table of final workloads where on average an extra two hours per week was allocated to each staff member.

PN44

In his faculty Dr Phillip Ablett, an academic staff member who resisted the change to his teaching load following a discussion with Professor Maher, had no changes made. Similarly, Dr Morley and Dr Weeks, who were supporting the union’s position, were not required to change their allocated contact hours. He noted that depending on the outcome of these proceedings, any extra allocations could be accommodated.

PN45

On the question of sessional staff he made the following comments. He is proud and grateful to the sessional staff. There may be either a lighter allocation or less staff as a result of budgetary restraints, and engagement of sessional staff generally happens once enrolments are known.

PN46

I turn now to Associate Professor McCulloch. His evidence was in similar terms to Professor Maher. In cross-examination he confirmed that no discussions were held with staff prior to the decision to reduce the sessional spend. He also accepted that other activity allocations of six hours which had been provided to sessional staff would no longer be available. He considered that if the order was made there would be major inconvenience to students and movement of staff, and he was not aware of any negative comments about the changes as proposed.

PN47

I turn now to my conclusions. First is the question of whether there was a serious question to be determined. The university’s argument is that the workload allocation process is not significant change and does not trigger the relevant agreement provisions. Further, it says workload changes can take place outside PPR, even though the agreement envisages such matters being addressed within that process, or that in any case the changes are within the already agreed parameters. On that basis the university says the union has no reasonably arguable case.

PN48

The union argues that there is a serious question and relies heavily on Avalon to support its arguments. There are significant differences between this case and that one, and it may be that it is distinguishable, but as I have not heard the evidence for the parties on this question, I have formed no firm view, but it is worth setting out the full list of considerations contemplated by Booth DP.

PN49

This is now quoting from Booth DP.

PN50

I conclude that the approach taken in the decisions of the Commission, its predecessors in the Federal Court puts the obligation in the following way. The importance of timely and sufficient information, both in relation to the reason for the decision and the likely impacts thereof. The need to commence consultation before an irrevocable course of action has been embarked upon. Sufficient time and appropriate arrangements such as meetings for a thorough exchange of information and views take place. The obligation on those being consulted to engage and consider other parties’ interests. Consultation is not to be used as a means of frustrating change.

PN51

The modification of one party’s decision is not a necessary outcome. However, listening and considering any proposed modification is essential. Consultation is a fetter on the unilateral right of a party with authority to make decisions. However, ultimate decision making rests with that party. For example, in the case of an employer considering the introduction of new technology, the decision on whether to do so, what technology to install, how to go about it, including the changes in employee numbers or roles, is ultimately their decision.

PN52

I turn now to the oral evidence, in particular final submissions by Mr Danby where he considered that there was a prima facie case on the basis there had been substantial change in workloads without consultation on the basis of reduction of sessional staff with its flow-on major effects, which were increase in tutorials and the two-hour extra contact time for permanent staff.

PN53

While Mr Williams in his final submissions noted the interim order was only sought on behalf of two employees, it is my view the case has been brought by the union and they are entitled to do so, as well as on behalf of the named employees.

PN54

For these reasons, on the question of the prima facie case I am not satisfied on the basis of material before me there is no serious question in dispute. Even if there is a strongly put argument from the university that the contended matters are not matters amenable to the relevant clauses of the agreement. Determination of that question will require consideration of evidence and relevant law.

PN55

I turn now to the second part that I am required to consider, the balance of convenience. On the balance of convenience question, the effect of the interim order sought would be for the Commission to determine substantive work allocations in a different pattern to that currently implemented. There would clearly be implications for the budget of the university.

PN56

In my view, the balance of convenience does not favour the order. As was said by Cargill C in the Peezma v Corporation of New South Wales trading as Sydney Trains case, there are too many unknowns in such a scenario to provide a proper basis for any relief at this stage. These unknowns include the vast majority of employees who are working under the current arrangements, and to disturb this arrangement goes against the balance of convenience. Additionally, there is no evidence of the availability or otherwise of sessional staff.

PN57

I note the university’s submission that the status quo envisaged that the union’s application is no longer the status quo. It is the case that the union does seek a decision that might have future implications and a reversal of a thing already done. In my view, the orders sought as interim orders go to the substantive question and make the interim order of a type that would have the effect of determining the substantive question, albeit in a way that might be reversed should the union not ultimately succeed.

PN58

The university would be required to engage sessional staff that it does not presently require, revert to previous workloads from those already agreed and implemented with most of the faculty staff, and incur expenditure beyond its current available budget.

PN59

For all of these reasons, the balance of convenience lies against the granting of the interim order. Additionally I note the fact that without an interim order, and if the union is ultimately successful, there is a potential proper process in place to reallocate contact hours in accordance with any successful order. In conclusion, the interim order is refused.

PN60

I consider that a speedy hearing will serve the balance of convenience more appropriately than an interim order, and that has the effect of undoing changes that would be reinstated should the application be unsuccessful. I propose to issue directions for an expedited process and invite the parties to a directions conference as soon as possible to discuss those directions.

ADJOURNED INDEFINITELY                                                           [5.58 PM]