1
Fair Work Act 2009
s.604 - Appeal of decisions
National Tertiary Education Industry Union
v
Monash University
(C2013/5357)
Monash University
v
National Tertiary Education Industry Union
(C2013/5409)
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMMISSIONER LEE SYDNEY, 26 AUGUST 2013
Appeal against decision [[2013] FWC 5124] and Order PR539479 of Vice President Lawler
at Melbourne on 27 July 2013 in matter number B2013/1050.
Introduction
[1] On 30 June 2012 the Monash University Enterprise Agreement (Academic and
Professional Staff) 2009 reached its nominal expiry date. Monash University (the University)
and the National Tertiary Education Industry Union (the NTEU) commenced negotiations for
a replacement enterprise agreement in August 2012. After twelve months and many meetings,
little progress has been made towards reaching a new agreement. Apparently this is normal in
enterprise bargaining between these parties.1
[2] Things reached a new stage when on 26 April 2013 the NTEU obtained from this
Commission an order for a protected action ballot. The ballot was subsequently conducted on
17 May 2013, and the employees of the University who were entitled to and did participate in
the ballot approved the taking of various forms of industrial action.
[3] On 7 June 2013 the NTEU sent a “Notice of Intention to Take Protected Industrial
Action” to the University (Notice). The Notice stated that, commencing 14 June 2013,
members of the NTEU employed by the University would take industrial action in eight
different identified forms. The Notice did not identify any cessation date for any of the
1 Appeal hearing transcript PN903
[2013] FWCFB 5982
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCFB 5982
2
industrial action, meaning that it was indefinite in nature. One of the forms of industrial action
was described in the following terms:
“A ban on recording, or transmission to the employer, of assessment results, with the
exception of results for which an exemption has been granted by the NTEU
Exemptions Committee”.
[4] It is this ban (Results Ban) which is the centre of the controversy before us. It has
affected the release of results for Semester 1 subjects, which was due to occur on 15 July
2013.
[5] On 22 July 2013 the University applied for an order under s.424(1) of the Fair Work
Act 2009 (Act) suspending the Results Ban. Section 424(1) provides:
“(1) The FWC must make an order suspending or terminating protected industrial action
for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is
threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the
population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part
of it.”
[6] Under s.424(3), an application for an order under the section must as far as practicable
be determined by the Commission within 5 days after it is made; if this is not possible,
s.424(4) requires an interim suspension order to be made pending the determination of the
application.
[7] The University’s application was heard by Vice President Lawler on 25 and 26 July
2013. On 27 July 2013, his Honour issued an order suspending “protected industrial action”
for a period of one hour commencing on midnight on 27 July 2013 (Order)2. His Honour
issued his reasons for the making of this order on 28 July 2013 (Decision)3.
[8] On 29 July 2013, the NTEU filed an appeal, for which permission is required, against
the Decision and Order. The NTEU’s appeal notice included an application for a stay of the
Order. That application was heard by Vice President Catanzariti on 30 July 2013. On 31 July
2013 the Vice President issued an order staying the Order effective from 27 July 2013.4 His
Honour issued his reasons for making the stay order on the following day.5
[9] On 2 August 2013 the University filed a cross-appeal against the Decision. The parties
sought that the appeal and the cross-appeal be heard together on an expedited basis.
Accordingly we heard both appeals on 12 August 2013.
2 PR539479
3 [2013] FWC 5124
4 PR539619
5 [2013] FWC 5256
[2013] FWCFB 5982
3
[10] On 13 August 2013 we announced that we had determined the appeals as follows:
(1) In respect of the University’s cross-appeal, we granted permission to appeal
and upheld the appeal. We re-determined the University’s application for an
order under s.424(1) of the Act, and granted an order for a two-week
suspension of the Results Ban effective from 9.00 am on 14 August 2013.6
(2) We refused the NTEU permission to appeal.
[11] In giving the above decision, we indicated that we would give our full reasons for the
decision at a later time. This decision sets out those reasons.
The Decision
[12] In the Decision, Vice President Lawler, after setting out the background to the matter,
described the system of exemptions from the Results Ban which had been established by the
NTEU pursuant to the Notice in the following terms:
“[7] The NTEU established an exemptions regime involving general exemptions for
specified categories of students and specific exemptions on application by individual
students. The categories of general exemption have grown over time and presently
include:
a. Students graduating at the end of Semester 1, 2013 (notified on 21 June
2013)
b. Students completing Honours in 2013 (notified 21 June 2013):
c. Students who have been granted a deferred exam (notified on 21 June 2013);
d. Students who have applied for mid-year Honours entry (notified on 21 June
2013);
e. Students who have applied for a course transfer within Monash (notified to
on 21 June 2013);
f. Students in the Faculty of law who are applying for Practical Legal Training
Courses and/or clerkships and graduate positions with law firms (notified on 2
July 2013);
g. Students In the Faculty of Medicine, Nursing and Health Sciences who are
required to undertake clinical placements in Semester 2, 2013 (notified on 2
July 2013) - with the exception of students in the school of Nursing and
Midwifery;
h. Students applying for graduate entry into medicine through the GEMSAS
process (notified to Monash on 8 July 2013); and
i. Students in the Study Abroad programme and those applying to be part of the
Exchange Programme in 2014 (notified on 9 July 2013).
(General Exemptions)
[8] On the evidence, and subject to three qualifications dealt with below, these
categories covered every category of student for whom it is foreseeable that by virtue
of the category circumstance, the student was exposed to a rational risk of adverse
consequences. It will be noted that these categories were added progressively.
6 PR540162
[2013] FWCFB 5982
4
[9] The NTEU posted information in relation to the exemption regime on its website.
Monash sent a general email to students inviting comment on the Results Ban. It also
drew students’ attention to the availability of exemptions by application to the NTEU.
[10] Students have been advised that they can consult their lecturer. Lecturers have
been encouraged to informally provide marks to students (while emphasising that the
mark is\not final).
[11] The NTEU used a group of volunteer members to assess applications for special
exemption. Every effort appears to have been made to turn around such applications in
an expeditious fashion. The volunteer members could grant an exemption. If they
considered that an exemption was unwarranted, the application was then considered by
a meeting of the Exemptions Committee. That Committee contained a student
representative.
[12] On the evidence at the hearing, the NTEU had processed 881 applications for
special exemption and had granted 660 of them. That is, 75% of applicants were
granted an exemption.”
[13] The Results Ban having been engaged in since 14 June and continuing since then
without any definite end point, his Honour found7 that the requirement in s.424(1)(a), namely
that protected industrial action for a proposed enterprise agreement was “being engaged in”,
was satisfied. His Honour then identified the question to be determined by him in the
following way:
“[21] The central issue for determination is whether the Results Ban “has threatened, is
threatening, or would threaten... to endanger the... health, or the welfare” of a group of
students at Monash who can properly be described as “part” of “the population” within
the proper meaning of s.424(1)(c). In Coal & Allied Operations Pty Ltd (1998) 80 IR
14 Guidice J, with whom Larkin C concurred, addressed the meaning of the language
that now finds expression in s.424 (at pp 32-33):
6.4 Causative of harm to specified public interests: “...is threatening to...
endanger ... or to cause damage to ... “
In the context, the verb “is threatening to” may be given its ordinary meaning
in the sense of giving an ominous indication of being the source or cause of a
relevant danger or damage. The industrial action must itself be giving ominous
indication of being the direct or reasonably proximate cause of effects that are
productive of, or are likely to be productive of a relevant danger, peril or
damage to welfare or the economy. The phrase imports the temporal element of
the circumstance by using the present continuous to require satisfaction as to
there being a threatening situation contemporaneous with the exercise of
jurisdiction.
In the context, the words “to endanger” and “to cause” each import a direct
relationship, and a relatively high degree of causative impact in producing the
specified danger or damage. Construction of the phrases in this manner is
consistent with the constructions applied in a number of cases to similar
7 At [13]
[2013] FWCFB 5982
5
expressions used in Commonwealth anti-dumping legislation (ICI Australia
Operations v Fraser (1992) 34 FCR 564 at 568-522 per Black CJ, Neaves and
von Doussa JJ; Swan Port Land v Minister for Small Business and Customs
(1991) 28 FCR 134 at 144-145 per Lockhart J).
6.5 “ ... the welfare of the population or of part of it ...”
The ordinary meaning of the expression “the welfare of the population” is a
general invocation of the considerations that go to the well being of the total
number or body of the inhabitants of Australia. Any application of the
expression to action threatening to endanger the welfare of a “part of” the
population must give adequate meaning to the generally inclusive character of
the total number or body of the inhabitants inherent to the term “population”.
There is a grammatical infelicity in the wording of the paragraph. Danger to the
life, or to the personal safety or health, of “a part of the population”, instead of
to individuals, appears a cumbersome form of expression. But that
awkwardness is no barrier to giving the reference to a part of the population its
more collective meaning when it is found in the expression “welfare of the
population”. Moreover, despite the generality of the concept “welfare of the
population”, the phrase “is threatening to endanger” imports a requirement for
there to be a danger or peril to welfare. There needs to be a basis upon which it
is reasonable to conclude, on an assessment of matters of fact and degree, that
the collective welfare is in peril or danger. (emphasis added)
[22] The decision of the majority was restored by the High Court and the approach of
Giudice J was effectively endorsed (Coal & Allied Operations Pty Ltd v AIRC (2003)
203 CLR 194 at [27] per Gleeson CJ, Gaudron and Gummow JJ). These passages have
been applied by other members of the Commission.
[23] In NTEU v University of South Australia (2010) 194 IR 30 (Uni of SA) a Full
Bench of Fair Work Australia held
[7] Section 424 provides that Fair Work Australia (FWA) must make an order
suspending or terminating protected industrial action if it is satisfied that the
action threatens to endanger the life, the personal safety, health or welfare of
the population or part of the population or to cause significant damage to the
Australian economy. The effect of making an order suspending or terminating
protected industrial action is to bring to an end the right to take protected
industrial action. This is achieved by the removal of the protection or immunity
which would otherwise attach to the action. The termination of protected
industrial action may also lead to FWA making a workplace determination
under Pt 2-5 of the Act (see ss 266 and 267).
[8] Within the scheme of the Act, the powers in relation to the suspension or
termination of protected industrial action are intended to be used in exceptional
circumstances and where significant harm is being caused by the action. This is
clear from the Explanatory Memorandum to the Fair Work Bill 2008:
“The Bill recognises that employees have a right to take protected
industrial action during bargaining. These measures recognise that,
while protected industrial action is legitimate during bargaining for an
[2013] FWCFB 5982
6
enterprise agreement, there may be cases where the impact of that
action on the parties or on third parties is so severe that it is in the
public interest, or even potentially the interests of those engaging in the
action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered
where the industrial action is merely causing an inconvenience. Nor is it
intended that these mechanisms be used generally to prevent legitimate
protected industrial action in the course of bargaining.” [paras. 1708-
1709]” (emphasis added).”
[14] The critical part of Vice President Lawler’s reasoning in the Decision was as follows:
“[48] I am satisfied that the inadequacies in the exemptions regime, particularly in its
early form, meant that there was a threat of endangerment to student welfare of the sort
outlined in paragraph [27](ii) during at least part of the period to 15 July 2013. There
was also a threat of endangerment to student health, of the sort outlined by Ms
Trembath, in that early period before the full set of general exemptions had been
established.
[49] The issue then becomes whether that threat of endangerment exists presently and
would continue into the relevant future for that group of students who still have not
received all their marks for Semester 1.
[50] Notwithstanding that the NTEU was slow to expand its categories of general
exemption and despite the imperfections in its materials identified by Mr Bourke SC, I
find that the NTEU has endeavoured to produce an exemption regime that properly
abates the threat of endangerment to student health and welfare arising from the non-
communication of results and that the regime as it is now in place makes proper
provision for general exemptions and operates a system of special exemptions that is
likely to see a student who can demonstrate a threat to their health or welfare
exempted.
[51] In assessing applications for special exemption the NTEU is erring on the side of
caution and granting an exemption to anyone who can point to any circumstances of
hardship. I am satisfied that any application for exemption properly based on
heightened stress or anxiety will be allowed. There is no evidence that the Exemptions
Committee has rejected any application for special exemption on the grounds of
heightened stress or anxiety. I accept the evidence of Dr Cockfield as a key member of
the Committee that such circumstances would attract the grant of a special exemption.
[52] I am satisfied that the NTEU is now conscientiously endeavouring to operate its
exemption regime in a manner that will exempt any student who had suffered, was
suffering or would suffer endangerment to his or her health or welfare.
...
[55] If, contrary to the decision in Uni of SA, the words of s.424(1)(c) are given their
ordinary meaning and applied to the facts in the present case then Monash has made
out the criterion. Monash has demonstrated, the existence of students among the
remaining group of 13,000 who, despite the exemptions regime, will be suffering
heightened stress and anxiety on account of not having received their results, with all
[2013] FWCFB 5982
7
the associated mental health risks identified by Ms Trembath that can properly be
hypothesised. The number cannot be quantified but on the balance of probabilities
some such students exist albeit the number is likely now to be small. It is also possible
to plausibly hypothesise that a few students who may have external course transfers
frustrated and thereby suffer material harm to their welfare and that a small number of
students may possibly be at risk of some harm.
[56] However, given the approach laid down in the Uni of SA case, in my view a
proper application of s.424(1) does not allow for a finding that the criterion in
s.424(1)(c) is established presently or in the relevant future.
[57] However, that said, I confess to some bafflement about what the Full Bench
intended when it stated that “exceptional circumstances” were required. Such a
requirement is not explicit on the language of s.424(1). Examples can readily be
constructed where a ban commonly applied is applied in a common industrial context
but where health or welfare is certainly endangered. Can those circumstances be
described as “exceptional” in a dictionary sense? In my view the remark of the Full
Bench was directed towards the quality or magnitude of the threat of endangerment
that the Parliament intended should be sufficient to activate the obligation to issue an
order suspending or terminating protected industrial action.
[58] In my view, what the Full Bench was seeking to convey was that, for the purposes
of s.424(1)(c), the threat must be clear and the endangerment to health or welfare must
be significant. Threats of endangerment that are small or too remote or speculative will
not be sufficient. It may be inferred that the Full Bench in the Uni of SA case did not
consider the circumstances of the Results Ban in that case as falling foul of any
requirement for “exceptional circumstances” - the Full Bench upheld the decision of
O’Callaghan SDP to make an order under s.424(1).
[59] It will commonly be the case that protected industrial action will adversely affect
third parties in some way or other. The employer’s clients or customers will typically
be affected by delays in the delivery of goods or services. Stress or anxiety as a result
of delay in the provision of goods or services will be a common effect of industrial
action. The Full Bench drew particular attention to the Explanatory Memorandum
which noted:
“Nor is it intended that these mechanisms be used generally to prevent
legitimate protected industrial action in the course of bargaining.”
[60] In relation to past effects, even adopting this approach, for the reasons concluding
at paragraph [46] above I find that the Results Ban did have effects that met the
description in s.424(1)(c) in that it did threaten to endanger student welfare in a
significant way during at least a portion of the period to 15 July 2013.
[61] Given the way in which the exemptions regime is now operating and the way in
which it will likely operate in the future, I do not consider that the present and
continuing threats of endangerment to health or welfare of the remaining group of
students to be sufficiently large to attract the description “significant”. The exemptions
regime, notwithstanding its minor continuing defects, is adequate in a practical, real-
[2013] FWCFB 5982
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world sense to abate the threat of endangerment on account of the Results Ban to a
level that falls below the threshold required by s.424(1).”
[15] On the basis that the only threatened endangerment to student health and welfare that
he had found had occurred in the past but was no longer occurring, his Honour concluded that
he was required by s.424(1) to make an order, but that that order should only be in the nature
of a nominal suspension. The terms of the Order reflected this conclusion.
The University’s cross-appeal
[16] It is convenient to deal with the University’s cross-appeal first, since the conclusion
we have reached in respect of that appeal significantly affects the utility of the NTEU’s
appeal.
[17] In its cross-appeal, the University advanced nine grounds in support of its contention
that Vice President Lawler had erred in not granting an effective suspension order. These
grounds included a detailed challenge to his Honour’s conclusion that the operation of the
NTEU’s exemptions regime was sufficient to abate the threatened endangerment to student
health and welfare which would otherwise be caused by the Results Ban. However, we have
found it necessary to deal with only one ground of the University’s cross-appeal, namely
ground 7. That ground was as follows:
“7. His Honour erred in law by imposing additional criteria not found in the language
of s.424(1) of the FW Act, namely, that in order for the section to be activated:
(a) there must exist “exceptional circumstances” (Decision [57]);
(b) the threat must be “clear” and the endangerment must be “significant”
(Decision [58]); and/or
(c) the threat of endangerment to safety, health or welfare must be “sufficiently
large to attract the description ‘significant’ ” (Decision [58] and [61]).”
[18] It is apparent from paragraphs [55]-[61] of the Decision, set out earlier, that his
Honour:
(1) concluded that if the language used in s.424(1) was given its ordinary meaning,
he would have found that the University had made out its case for an effective
order under the provision;
(2) characterised the decision in NTEU v University of South Australia8 as
requiring that the language in s.424(1) not be given its ordinary meaning, but
some other type of meaning because of the Full Bench’s use in that decision of
the expressions “exceptional circumstances” and “significant harm”;
(3) found that the Results Ban did not for the present or future satisfy the
s.424(1)(c) criterion because any threatened endangerment to health and
welfare it produced did not meet the standard, derived from NTEU v University
of South Australia, of being “significant”.
8 [2010] FWAFB 1014, 194 IR 30
[2013] FWCFB 5982
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[19] In taking this approach, we consider with respect that his Honour erred. It is a trite but
nonetheless fundamental proposition that the duty of the Commission is to apply the Act, and
it is the Act which states the applicable law.9 There is a danger inherent in using synonyms,
paraphrases and re-formulations of statutory language found in previous decisions or extrinsic
materials in lieu of the language of the legislation itself, as the High Court recently warned in
Baini v The Queen10:
“As the Court said in Fleming v The Queen, "[t]he fundamental point is that close
attention must be paid to the language" of the relevant provision because "[t]here is no
substitute for giving attention to the precise terms" in which that provision is
expressed. Paraphrases of the statutory language, whether found in parliamentary or
other extrinsic materials or in cases decided under the Act or under different
legislation, are apt to mislead if attention strays from the statutory text. These
paraphrases do not, and cannot, stand in the place of the words used in the statute.”
[20] In NTEU v University of South Australia we do not consider that the Full Bench, by its
use of the expressions “exceptional circumstances” and “significant harm” in the passages
quoted in the Decision, was intending to establish criteria or tests in substitution for or in
addition to those found in the language of s.424(1) itself. Rather the Full Bench used those
expressions only to characterise the legislative intention that could be gleaned from the
Explanatory Memorandum to the Fair Work Bill 2008. It is no doubt the case that the
circumstances which would satisfy the criterion in s.424(1)(c) are likely to be exceptional in
the sense of being atypical and out of the ordinary, and that a threatened endangerment to life,
personal safety, health or welfare under the subsection may well involve the affliction of
significant harm. However, that does not mean that in determining any particular case,
expressions of that nature not to be found in the actual language of the statute should be
determinative of the outcome, and we do not understand the NTEU v University of South
Australia to stand for any contrary proposition.
[21] In determining the matter on the basis that the threatened endangerment to health and
welfare was not “sufficiently large to attract the description ‘significant’”, his Honour applied
an incorrect, exteriorly derived test. It is not mere semantical nitpicking to find error on the
basis of his Honour’s use of the word “significant” in this way; his Honour’s own reasoning
makes it transparent that his application of the standard of “significant harm”, which he
regarded himself as bound to do by NTEU v University of South Australia, altered the
outcome of the case.
[22] We therefore grant the University permission to appeal, we uphold the appeal, and we
quash the Decision insofar as it rejected the University’s application for a substantive and
effective suspension order under s.424(1) of the Act.
Re-determination
[23] In the light of the conclusion we have reached as to the University’s appeal, it is
necessary for the University’s application for a suspension order to be determined afresh. We
have decided to undertake this task ourselves rather than remitting the University’s
application for re-hearing to another member, since this will save time in what has at all times
9 See Aktiebolaget Hassle v Alphapharm Pty Ltd (2002) 212 CLR 411 at 460 [135] per Kirby J
10 (2012) 246 CLR 469 at 476 [14] per French CJ and Hayne, Crennan, Kieffel and Bell JJ
[2013] FWCFB 5982
10
been regarded as an urgent matter. We re-determine the matter on the basis of the evidence
adduced at first instance before Vice President Lawler and the additional evidence adduced by
the parties at the appeal hearing.
[24] There was no contest that protected industrial action for a proposed enterprise
agreement, in the form of (inter alia) the Results Ban, was being engaged in at the time that
the appeals were heard. The criterion in s.424(1)(a) is therefore satisfied. The critical issue, as
was the case before Vice President Lawler, is whether the criterion in s.424(1)(c) is satisfied.
That is, the question (framed in relation to the University’s case) to be determined by us is:
are we satisfied that the Results Ban was threatening or would threaten the health or welfare
of any group of students capable of being characterised as constituting part of the population?
[25] In its submissions before us, the University identified three principal ways in which it
contended that the NTEU’s exemptions regime failed to abate the threatened endangerment to
student health and welfare which was otherwise caused by the Results Ban:
(1) Heightened stress and anxiety: There was no general exemption category for
students whose mental health might be endangered by heightened stress and
anxiety concerning unreleased assessment results, nor had the NTEU issued
advice that a specific exemption could be obtained on this basis. This,
combined with the lack of student engagement with the exemptions regime,
meant that the position of those students whose mental health might be
endangered by not receiving assessment results was not ameliorated by the
exemption system.
(2) Supplementary examinations: Students who received a fail mark of 45-49% in
a course were entitled to be offered a supplementary examination rather than
having to repeat a course provided that they received pass marks in their other
courses. The exemptions system allowed lecturers, if approached, to advise
students that they had received a fail mark in the 45-49% range. However, it
did not provide for a general exemption to allow for the release of the other
results for a student in that position in order for them to be offered a
supplementary examination, and it had provided no advice that a specific
exemption was obtainable on this basis. That meant that there was a group of
students who, without the Results Ban, would have been entitled to a
supplementary examination who could not be offered one. This threatened to
endanger their welfare.
(3) Pre-requisite courses: There was no availability of exemptions for students who
needed to pass certain courses in Semester 1 as a pre-requisite for undertaking
certain subsequent courses in Semester 2, with the result that students did not
have the information necessary to correctly select their courses for the
Semester 2. This threatened to endanger the welfare of students, particularly
those who had failed a pre-requisite course but did not know it.
[26] We are satisfied that the University has made out its case that, by reason of the above
matters, the criterion in s.424(1)(c) of the Act has been made out. We give more detailed
reasons for this conclusion in relation to each of the above matters a little later in the decision,
but we indicate that there are two general considerations which have assisted in guiding us
towards this conclusion.
[2013] FWCFB 5982
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[27] The first is that a critical feature of the Results Ban is that it is indefinite in nature. Not
only does the Notice not define any end point for the Results Ban, but there is currently no
sign that it will come to an end by reason of any decision on the part of the NTEU or any
resolution of the enterprise agreement negotiations. Indeed, we were advised that the
negotiations had ceased since the Results Ban was put into effect.11
[28] The indefinite nature of the Results Ban will necessarily aggravate its potential and
actual effects on students. A results ban with a defined duration, even a relatively long
duration, would allow students to adjust their expectations and framework of thinking,
knowing as they would that they would eventually receive their results on or about a certain
date. Practical accommodations between the University and students concerning matters such
as supplementary examinations and pre-requisite courses could be reached on the basis of an
identifiable timeframe for the receipt of results. By contrast, an indefinite ban means that
students who have not, for whatever reason, been able to access the exemptions regime are
left in a position of complete uncertainty as to when they might get their results. This makes
both psychological and practical adaptation to the situation difficult. The Results Ban has
currently only affected Semester 1 results, but there is no reason to think that if it continues it
will not ultimately affect Semester 2 results, with compounding effects on students’ academic
progression into 2014 and even beyond. This makes it difficult to avoid the conclusion that
there will be at least a future threat of endangerment to student health and/or welfare in
respect of the three matters identified by the University.
[29] The second is that the capacity of results bans by the NTEU’s members to
detrimentally affect at least the welfare of university students has been recognised in a
number of decisions in this Commission and its predecessors. In University of Wollongong v
NTEU12 Vice President McIntyre was satisfied for the purposes of s.170MW(3)(a) of the
Workplace Relations Act 1996 that a results ban was threatening to endanger the welfare of a
part of the population constituted by the University of Wollongong’s student body. His
Honour said:
“[14] The industrial action of banning the submission and transmission of students'
results will continue indefinitely. Some 1800-1900 students of the university are
expected to graduate this year. None of them will be able to do so while the ban
remains in force. I am satisfied, having regard to the evidence and submissions, that
the delaying indefinitely of the results of graduating students may prejudice their
future employment prospects and careers, perhaps irreparably. Also, it will place these
students at a disadvantage compared with students at other universities whose results
are not delayed.
[15] I have considered the evidence about the "exemptions committee." The NTEU
does not dispute that the committee may reject applications. In the circumstances
where the union has imposed a ban on submitting and transmitting results and has a
legitimate interest in making the ban bite, it does not seem to me that a union
exemptions committee can be relied upon to avoid prejudice to the students. When
such a committee rejects an application there is a possibility that a student's future
prospects may be damaged.
11 Appeal hearing transcript PN632
12 [1999] AIRC 1397
[2013] FWCFB 5982
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[16] In all the circumstances, I record that I am satisfied that the circumstances set out
in s.170MW(3) exist; that is, that industrial action (by way of a ban on the submission
and transmission of students' results at the university) that is being taken to support or
advance claims in respect of the proposed agreement is threatening to endanger the
welfare of that part of the population that is constituted by graduating students of the
university.”
[30] The NTEU approach to the grant of exemptions from results bans seems to have
become more sophisticated over the years, but this was not sufficient to prevent Senior
Deputy President O’Callaghan concluding in University of South Australia v NTEU13 that a
results ban would threaten to endanger the welfare of university students:
“[39] I have noted that the University elected not to promote the existence and hence the
use of the NTEU Exemptions Committee. It may be the case that actions taken, or not
taken by an employer in response to protected industrial action affect the extent to
which a necessary causal link between the action and the threat can be made out. In
this instance however, I am satisfied that the NTEU Exemptions Committee was a
union committee and that the University had a sufficient basis upon which to conclude
that it should not refer all students to that committee in order to seek an exemption
from the union's industrial action. I have noted that the evidence is that the Committee
approved all of the 240 exemption applications put to it. I am satisfied that the
operation of the Committee was not established such that the University could refer to
all students to this Committee with any substantial confidence and that the sheer
volume of student numbers made this impractical given the NTEU’s refusal to agree to
blanket exemptions. Further, that such a referral was inconsistent with the role of the
University as the employing academic institution.
[40] The evidence of Associate Professor Boyle was that the ban on recording and
transmitting examination results created a high level of uncertainty and heightened
stress at this stage of the academic year. Whilst I consider this to be a likely
consequence of the ban, I am not satisfied that the University has proven that a
significant number of its students are aware of that ban or that, from a student
perspective, the ban is causing or is likely to cause stress which could reduce the
health or well-being of the students.
[41] However, the evidence of the University witnesses collectively supports the
conclusion that the capacity of students to graduate, to successfully seek additional
studies or obtain supported funding or employment, could all be impacted on by a
delay in the recording and transmission of examination and assessment results. As I
have already noted, the University may be able to ameliorate this. I accept that the
evidence is that some subject results could be provided to students the day after they
were recorded. However, a failure to meet the specified time deadlines for recording
and transmission of results creates a very real risk that not all of the necessary overall
course academic checks and administrative processes will be completed to allow for
graduation on 22 December 2009 or for the publication of academic transcripts for
employment, additional study and funding and visa purposes. This risk or threat goes
13 [2009] FWA 1535
[2013] FWCFB 5982
13
beyond a potential inconvenience or disruption to the graduating student population as
it reflects the potential for real and actual harm.
[42] Consequently, I am satisfied that the protected industrial action, being the ban on
recording and transmission of assessment and examination results, is threatening the
welfare of graduating USA students. Accordingly, section 424(1) means that an order
suspending or terminating the protected industrial action must be made.”
[31] This decision was affirmed on appeal in the decision in NTEU v University of South
Australia to which we have earlier referred.
[32] Very recently, in an ex tempore decision given on 30 July 201314, Vice President
Lawler concluded that a results ban imposed at Swinburne University of Technology
threatened to endanger the welfare of part of the student population in a way which satisfied
the s.424(1)(c) criterion. His Honour said in this decision:
“I discussed the relevant principles governing this application in Monash University v
the National Tertiary Education Industry Union (2013) FWC 5124, a decision issued
on 28 July, and I do not propose to repeat that analysis here but propose to apply it.
This case, of course, although it involves a result ban broadly similar to that which was
at issue in the Monash University case, is a case with different facts and different
evidence. I was particularly impressed with the evidence of Mr Cullinan, the NTEU
industrial officer who has had principal responsibility for the industrial action being
taken at Swinburne, and accept that the goal of the NTEU has been to establish an
exemptions regime which as part and parcel of the protected industrial action would
ameliorate relevant threats to the life, personal safety, health or welfare of the students
of the university.
...
In the Monash University case there was a general exemption in respect of students
who received fail marks in the range 45 to 49; in this case there is no general
exemption in relation to students who have received a fail mark and it is not clear on
the evidence that a concern about having failed a course would satisfy the criteria
actually being used to determine specific exemptions. In relation to the first of four
categories of effect relied upon by the university, namely the impact of as yet
unreleased fail marks on students in subjects that were a prerequisite for semester 2 for
such students, it is clear from the evidence of Mr Cullinan that the fact that a subject
studied by a student in semester 1 was a pre-requisite to a subject that the student
proposed to study in semester 2 is not a sufficient basis alone to gain a specific
exemption.
I turn to the four categories upon which the university relies. The first category relates
to 1638 students who have undertaken one or more of 71 courses which are
prerequisites for a semester 2 course and whose results have not been released. Based
on statistics for previous years it is likely that about 17 per cent of that number - that
is, about 300 students - have failed the course. The university points to two adverse
consequences to the welfare of those students as a result of the continuing ban; the
first is the dislocation in course and career progress, and the second relates to the
14 In B2013/1065
[2013] FWCFB 5982
14
wasting of fees in respect of semester 2 courses where the pre-requisite has not been
satisfied but the date for withdrawal without financial penalty has passed.
The second category relates to some 1770-odd students, based on a historical average,
who would likely be identified as "at risk" upon release of their results. That number is
not in the order of 1770, but roughly 22 per cent of that number. I accept that so far as
the remaining 78 per cent is concerned, the causal argument advanced by Ms Richards
is operative, but I note that the university places no reliance on that 78 per cent, but
rather on the 22 per cent of the 1770 that the historical figure suggests will be
identified as being at risk because the 78 per cent that I have referred to will already
have all of their marks, and to the extent that those students would be identified as at
risk but have not yet been identified as at risk, that is because the university has
chosen not to separate the processes that it applies to students identified as at risk into
two stages and is awaiting the outcome of this application before it determines its next
step.
...
The power conferred by section 424 is concerned with effects on the population or a
part of it. The full bench in the University of South Australia case emphasised that the
remedy is concerned with effects on the collective rather than individuals, and I note
that section 426 provides a specific remedy in respect of individual third parties who
are suffering harm as a result of protected industrial action.
There is a difficult issue, not yet finally resolved in the authorities, as to what precisely
constitutes a collective that may properly be described as "a part of the population".
The relevant group affected by the protected industrial action in terms of the case
advanced by the University is not the whole student body, some 30,000 students; nor
is it the totality of the students who have not received their marks, some 22 per cent of
that 30,000; but rather it is students that fall into the four categories that I have
described. With some misgivings I am satisfied that students at Swinburne University
who have not received all of their semester 1 marks and fall into the four categories
are part of the population.
The issue then becomes whether the effects that I have described can properly be
characterised as endangering the welfare of the relevant students. And again with
some misgivings I find that the action does endanger the welfare of students in the
manner articulated by Mr McDonald SC for the university. The group in category 1 in
particular could find the time that it takes for them to complete their degrees extended
at significant cost and could suffer significant problems in relation to a completion of
their course in the way that is most advantageous to them. It seems to me that these are
not matters that could be regarded as insignificant or immaterial, and yet my misgiving
is founded in the observation that standing back from all of this, the magnitude of
harm that applies to the group as a whole is not so obviously serious as it is in many
cases in which orders under section 424 and its predecessors have been made.
This decision fundamentally turns on the absence of a general category of exemption
in respect of students who have failed who are studying courses in semester 2 for
which their semester 1 courses were prerequisites and the students in category 2 who
would be identified as at risk upon the release of results. In relation to that group I note
that the university conducts an academic success program [ASP], and I refer to
[2013] FWCFB 5982
15
paragraphs 22 and following, especially at paragraphs 31 and 33 of the statement of
Mr Reed in that regard.
The evidence is open to criticism as to its strength, but at the end of the day I am
persuaded by Mr Reed's evidence that there is a proper basis to suppose that the
participation in the ASP would likely have been substantially higher than it has been
this year, had there been no results ban, and that the ASP delivers material benefits to
students, indicated by the improved outcomes referred to by Mr Reed that those
students are deprived of as a result of the ongoing ban.
...
Ms Richards for the union has advanced a number of arguments that are not without
some attraction in relation to several of the categories identified by Mr McDonald, but
at the end of the day I am not persuaded that the case advanced by Swinburne is
sufficiently speculative, but rather I am satisfied that the sort of harm that I have
identified is harm in respect of which there is threatened endangerment.”
[33] Each of these decisions turned on its own facts, and none of the decisions relieves us
of our obligation to determine this case on the facts before us. However, the decisions
support at least two conclusions which are highly relevant to the outcome of this case:
(1) potential effects upon the academic progression of students produced by a
results ban may be of such a nature as to constitute a threatened endangerment
of students’ welfare; and
(2) students so affected may constitute a “part of the population” for the purpose of
s.424(1)(c).
[34] We also note the more specific conclusion in Swinburne University of Technology that
the lack of an exemption for students who had failed a prerequisite course contributed to the
Commission’s satisfaction that the s.424(1)(c) criterion had been made out.
Stress and anxiety endangering mental health
[35] The University’s case that the Results Ban threatened to endanger student health and
welfare by heightening student stress and anxiety founded upon the evidence of Sally
Trembath, a registered psychologist who was employed by the University as its Director,
Mental Health and Safer Community Programs. Ms Trembath’s role involves the
management of the University’s Counselling Service for students, and she also chairs the
University’s Risk Management Group, which seeks to prevent violence, self-injury and self-
harm on the University’s campuses. Ms Trembath was first employed in the University’s
counselling service in 1985, and directly counselled students from 1985 until approximately
2007, when she assumed her current role. She was the Manager of the Counselling Service at
the University’s Clayton campus from 2002 until 2007. She gave the following evidence
before Vice President Lawler by way of a statutory declaration:
“Impact of the Results Ban
12. The impact of the current NTEU membership action to withhold student
results needs to be considered in context of what we know about the student
[2013] FWCFB 5982
16
population and established patterns of behaving and coping with the pressures
of academic performance and formal University academic processes.
13. Our students face the challenges of tertiary study at a period of vulnerability to
mental illness with rates of emerging mental health disorders such as anxiety,
depression and substance use peaking between the ages 18-25. In Australia,
one in four young people struggle with a diagnosable mental health disorder in
any one year (Australian Bureau of Statistics 2007).
14. Recent studies of university student populations report higher levels of
disorders, especially anxiety related, than the norm for their age group
(Connell, Barkham & Mellor-Loark, 2007: Stallman 2008: Stallman 2010:
Stallman and Shochet, 2009). Mental health issues ranging from a normal
period of high stress through to serious illness such as anxiety disorders or
depression, can have a substantial impact on student engagement and learning
outcomes (Wajeeh, War & Shern, 2002).
15. Monash Counselling Service data over many years indicates that when
students seek help at the Counselling service the highest frequency issue they
seek assistance with is “concerns about Academic progress”. Students record
their key difficulties on a self-assessment sheet, and our clinicians also record
up to 6 issues which students report to them. The most prevalent issue is
concerns about academic progress. Although I currently no longer counsel
students, the data is consistent with my own observations when I was dealing
directly with Monash students. At the University, concerns regarding poor
performance or failing units or courses is a significant factor, together with
students who have high expectations or who are high performing students, and
yet their results do not match those expectations.
16. Students are not a homogenous group. They come from vastly different
backgrounds, have different levels of coping strategies and support networks.
Students who are doing well academically or are meeting their own
expectations, may have positive coping strategies and strong support networks.
However, there is a range of students who are likely to be impacted by the
NTEU action. ...
17. It is inevitable that at least some students are suffering significant increased
stress and anxiety since being confronted with the issues associated with not
having their results after the scheduled date of release of 15 July 2013.
18. When considering the possible impact of withholding results indefinitely, it
should be kept in mind that approximately one in four of the population
affected by this action may already be experiencing high stress or a more
serious mental health issue such as depression.
19. There is also a likelihood that a certain group of students who do not keep
themselves informed or who avoid following processes outside of usual
University procedures will not be considered for or will not apply for or obtain
an exemption. The students may find themselves “penalised” or disadvantaged
regarding their required academic pathways.
[2013] FWCFB 5982
17
20. For students who are already inclined to anxiety, the absence of results will
potentially cause additional stress and become the source of pre-occupation.
Other students may have plans which are dependent upon their results. For
example, students may be planning to visit their families, or may need to think
about their future course of study. The absence of results may impact on those
students.
21. The absence of results may also cause some students to feel aggrieved,
resentful and/or angry. Some students may experience emotional discomfort
because they are unaware as to how they are progressing. Further, the absence
of results may cause particular difficulties for some international students, for
example, some students will communicate to their families that they have no
results and this may cause tension, conflict or confusion. International students
and their families often invest substantially (both financially and emotionally)
in their tertiary education. Particularly as the Results Ban is an ongoing and
indefinite ban, students who are concerned that they may have failed units may
have a period of uncertainty and self-doubt, which may exacerbate anxiety and
depression. Further, if the students do fail their units, they will have less time
to deal with the issues.
22. I believe that there is some uncertainty among the faculties as to how to deal
with a situation whereby a student is enrolled in a semester 2 unit in respect of
which it is presently uncertain whether they have passed a semester 1
prerequisite unit. I understand that one option being considered by the Faculties
is that if, when the Results Ban is lifted, the faculty ascertains that a student has
failed a prerequisite, the faculty may need to retrospectively withdraw students
from a semester 2 unit. A very mature and well-adjusted student may accept
such action and stay committed to their other studies. However, the more likely
reaction of students in my experience is that this would be a significant
emotional blow resulting in the student feeling angry and aggrieved, which
often leads to disengagement and loss of motivation. There is also a danger that
some students will feel like an innocent victim, or collateral damage of a
conflict that they have nothing to do with. For some this is a life theme which
can plunge them into a position of powerlessness, helplessness, despondency or
resentful protest. When a basic trust is broken I think these students would
struggle to remain engaged with their studies or the University and perhaps for
international students, even the country, in a positive way.
23. Not all Monash students who are experiencing anxiety or stress will reach out
and seek assistance. Our group will be unaware of the full impact of the
Results Ban on students. I have grave concerns for students who are impacted
but who are unwilling or unable to seek assistance. In my experience, some of
the adverse consequences that can be associated with the increased stressors
and anxieties associated with academic performance extends to acts of self-
harm, threats to suicide and completed suicide. When students attend a
counselling session with a counsellor at Monash, the counsellor selects up to
five presenting issues for each session. Based on data obtained from 2011 and
2012 counselling sessions, counsellors identified self-harming behaviour as an
issue at 185 counselling sessions, while suicidality was identified at 805
[2013] FWCFB 5982
18
counselling sessions. Across those two years, students attended a counselling
session an average of 3.7 times per year.”
[36] Ms Trembath’s evidence was not contradicted by any evidence adduced by the NTEU,
nor was it suggested that her evidence should not be accepted. However the NTEU before
Vice President Lawler and/or at the appeal hearing made the following submissions as to why
that evidence was not capable of satisfying the s.424(1)(c) criterion:
(1) Stress and anxiety were normal concomitants of the examination process, and
the fact that a delay in the receipt of examination results might be a further
stressful event was not sufficient to elevate the matter into the category of an
endangerment to student health and welfare.
(2) There was no evidence adduced of any particular individual who had
undergone stress and anxiety to such a degree that their health had actually
suffered.
(3) It was possible that some individuals might be significantly affected, but this
did not rise to the level of a probability sufficient to allow the Commission to
be “satisfied” under s.424(1)(c); nor would any effects on individuals
constitute an endangerment to the welfare of part of the population in that it did
not have a collective effect on a body of people.
(4) Specific exemptions on the grounds of stress and anxiety had in any event been
granted by the NTEU, demonstrating that the exemptions regime was adequate
to deal with any individual cases which arose.
[37] We do not consider that these submissions answer the University’s case. It may be
accepted that the occasioning of stress and anxiety in the normally understood and
experienced sense is not sufficient to constitute an endangerment to health or welfare for the
purpose of s.424(1)(c). Stress and anxiety are part of the ordinary travails of human existence,
and in the university context it can readily be accepted that anything to do with examinations,
including the issuing of results or any delay thereto, is likely to lead to stress and anxiety to
some degree on the part of most students. That is not sufficient to attract a finding under
s.424(1)(c). However, Ms Trembath’s evidence had a different import. Four main
propositions emerge from her evidence: first, university students generally fall into an age
cohort which has a peak vulnerability to diagnosable mental health disorders, with university
students reporting higher levels of anxiety-related disorders than the norm for their age group;
second, the indefinite Results Ban constitutes a significant additional psychological stressor
which may either cause a diagnosable mental health disorder or exacerbate an existing one;
third, a proportion of students in this position will be unable or unwilling to seek assistance,
including accessing the NTEU exemptions system; fourth; the potential adverse consequences
for such students include acts of self-harm, threats to suicide and completed suicide.
Understood in that way, we consider that her evidence convincingly demonstrates a
threatened endangerment to student health and welfare capable of satisfying the s.424(1)(c)
criterion.
[38] The NTEU was correct in submitting that there was no evidence adduced of any
specific student suffering a mental health disorder as a consequence of the Results Ban
(although there was evidence of specific students reporting heightened stress and anxiety).
[2013] FWCFB 5982
19
However, at the time of the hearing before Vice President Lawler, Semester 2 had not yet
commenced, and on Ms Trembath’s evidence students who might come forward at all with
such problems would only do so once the semester had actually started.15 Furthermore,
s.424(1)(c) is concerned with threatened endangerment, so that the fact that no actual
detriment to health and welfare has been demonstrated to have yet occurred is not sufficient to
avoid a conclusion that the s.424(1)(c) criterion has been satisfied.
[39] The NTEU was also correct in submitting that a number of specific exemptions had
been granted to persons who applied for exemptions on the basis of heightened stress and
anxiety. However, as the University submitted, that did not mean that the exemptions regime
was adequate to deal with students in the category identified by Ms Trembath. As earlier
stated, her evidence was that a proportion of affected students would simply not seek
assistance, and it seems to us that there is real doubt that a student affected by a mental
disorder associated with the Results Ban would be likely to disclose that to a third party such
as the NTEU in order to gain an exemption. Additionally, as the University demonstrated, the
NTEU’s documents concerning the operation of its exemptions regime showed that there was
no general exemption available with respect to stress and anxiety affecting mental health, and
neither was there any clear indication that a specific exemption might be available on this
basis. The NTEU’s Exemption Committee Guidelines stated that the criterion for the grant of
a specific exemption was whether “the student can demonstrate that a ban on the release of
their result will have a significantly detrimental impact on their academic or professional
progression”. The NTEU’s website did indicate that granting an exemption involved a
decision “to relax a ban on the transmission of student results ... where failure to do so is
likely to harm the safety, health and welfare of students”, but its application form for an
exemption accessible from the same website location identified the need for supporting
documentation, and exampled in this regard “evidence of application for course transfer or
application for a scholarship or a need for visa renewal or a need for professional registration
to commence employment or some other compelling reason”. The NTEU’s explanation of the
exemptions system sent to the University on 27 June 2013 only referred to specific
exemptions being granted to students who could demonstrate that the Results Ban “will have
a significantly detrimental impact on their academic or professional progression”. Thus,
although we accept that the NTEU’s Exemption Committee has dealt sympathetically and
appropriately with those applications for exemptions based on stress and anxiety which it has
received, we do not consider that the exemptions regime has given any clear invitation to
students to apply for exemptions on that basis.
[40] We consider that the NTEU’s submission that any individual students whose mental
health is affected by the Results Ban could not constitute “part of the population” for the
purposes of s.424(1)(c) misconceives the analysis required by s.424(1)(c), which we repeat is
concerned with threatened endangerment, not actual harm. It may be correct that, ultimately,
any actual harm to mental health caused by the continuation of the Results Ban only occurs to
a number of students too small to be characterised as a “part of the population”. However, the
import of Ms Trembath’s evidence is that the psychological stress produced by the indefinite
Results Ban threatens to endanger - that is, imperils - the mental health and welfare of a
significant segment of the student body which has a pre-existing vulnerability to mental
health disorders arising from their general mental health condition and/or their current
personal circumstances. That segment cannot be quantified with any certainty, but given Ms
Trembath’s evidence that one in four young people suffer from a diagnosable mental health
15 Transcript 26 July 2013 PN759
[2013] FWCFB 5982
20
disorder in any one year, it may be a reasonably substantial proportion of the 13,000 students
who have not received one or more assessment results because of the Results Ban. We
consider therefore that such students are sufficient in number and are collectively affected in a
way which permits them to be characterised as “part of the population”.
[41] We are satisfied on the basis of Ms Trembath’s evidence that the Results Ban, which is
indefinite in nature and lacks any foreseeable endpoint, is threatening or will threaten to
endanger the mental health and welfare of a part of the population constituted by a significant
segment of the University’s student body. The s.424(1)(c) criterion is made out in this respect.
Supplementary examinations
[42] The issue raised by the University with respect to supplementary examinations has
earlier been described. A number of the University’s witnesses described the supplementary
examinations issue, but it is best summarised in the evidence of Neville Hiscox, the
University’s Director, Business Services. He said in his statement of evidence:
“34. Supplementary examinations may be awarded to students by the relevant
faculty if the student meets the criteria set by Monash through Statute and the
faculty. Generally the criteria is:
(a) a final examination mark in a unit of between 45% and 49%;
(b) a pass mark in all other units the student was enrolled in during that
semester; and
(c) the fact that there will be a detrimental effect on the student’s ability to
course progress or course complete if they do not pass that unit.
35. The Assessment Regulations stipulate that a student may only be granted two
supplementary examinations during their entire course. Students who may be
eligible to be granted a supplementary examination may accordingly be at risk
of failing their course.
36. A student’s eligibility to sit a supplementary examination is a matter that must
be determined by the relevant faculty’s Board of Examiners. The Board of
Examiners will need to take into account all of the student’s semester 1 unit
results to determine whether the student will be granted a supplementary
examination. Accordingly, in order for this assessment to take place, all of the
assessment results for the student need to be available.
37. Students who have been granted a supplementary examination should have
received a grade of “NS” (Supplementary Assessment) in their results, in
accordance with the Monash Grading Scale Policy, on 15 July 2013 (the
official results release date). Based on experience in the 2012 academic year,
approximately 450 students may need to sit a supplementary exam in any
semester.
The NTEU’s lack of exemption in respect of supplementary assessments
[2013] FWCFB 5982
21
38. In the NTEU’s 2 July 2013 letter, the Union states that students who are
eligible for a supplementary assessment will be exempt if they meet the
following conditions:
(a) they are due to course-complete at the end of semester 1; or
(b) they are enrolled in a unit that is a prerequisite in semester 2.
39. In respect of students eligible for a supplementary assessment who are due to
course complete, those students would already fall within the general
exemption for graduating students. Accordingly, there would appear to be little
utility to this purported additional exemption.
40. The exemption for students eligible for a supplementary assessment and who
are enrolled in a unit that is a pre-requisite in semester 2, appears to be
misconceived. The problem is that students will not know whether they are
eligible for a supplementary assessment until the Board of Examiners has
considered all their results and made this determination. However, where
results are not available because they are not recorded in Callista, this
assessment cannot be made. The NTEU’s reference to enrolment in a unit
which is a pre-requisite for semester 2 does not form part of the criteria for the
grant of a supplementary assessment. The exemption therefore appears to be
unworkable.
...
The timing of deferred and supplementary examinations
42. The University is scheduled to hold semester 1 deferred and supplementary
examinations during the period of mid-August 2013, and results for those
examinations are scheduled for release at noon on 28 August 2013. There are
significant logistics involved in the scheduling and arranging of these
examinations. It is important that all results are processed and finalised in a
timely way, so that (amongst other things) the deferred and supplementary
examinations can proceed in an orderly way. Further, it would seriously
prejudice students who sit deferred and supplementary examinations, if the
NTEU was able to re-impose the Results Ban in mid to late August 2013.”
[43] Glenda Key, the Academic Manager of the University’s Faculty of Science, described
in her statement of evidence the potential consequences of students not being able to sit
supplementary examinations:
“30. In respect of the results that are unknown, the awarding of supplementary
assessments is not able to be determined and granted. Supplementary
assessments are a critical tool for enhancing the prospects of students who may
be capable of progress in their course but need some extra time and assistance.
The fact that supplementary assessments cannot be granted, is significantly
prejudicing the academic progress of affected students and potentially their
career prospects.
...
32. This is also likely to cause difficulties for some course-completing
international students who need to return to their country and do not know
whether they need to seek an extension of their visa and stay in the country
[2013] FWCFB 5982
22
until they have a complete set of results (thereby incurring costs for things
such as accommodation) or returning to the country if they need to sit a
supplementary exam in the future. This would seriously prejudice and disrupt
those international students. At least one of the two students due to course-
complete who do not have a complete set of results is known to be an
international student who is enrolled at the Malaysia campus as an
international student.”
[44] There was some debate in the course of the proceedings about whether the number of
450 referred to in Mr Hiscox’s evidence provided a usable estimate of the numbers of students
who might have their capacity to obtain a supplementary examination affected by the Results
Ban. The NTEU submitted that the number of 450 needed to be scaled down very
significantly because the evidence demonstrated that approximately 75% of students generally
had received all of their examination results. However, we consider that the updated evidence
adduced during the appeal hearing provides a more accurate number for the purpose of our
consideration. Mr Gerard Peter Toohey, the University’s Executive Director, deposed in an
affidavit sworn on 8 August 2013 as follows:
“11. I am also informed by a report run from Callista on Tuesday 6 August 2013,
that there are 629 students enrolled in an Australian campus that have a raw
mark of between 45 and 49 recorded for a Semester 1 2013 unit, who are
missing one or more of their other Semester 1 2013 results. Under the relevant
University policies and procedures, in relation to students who achieve an
overall mark in a unit of between 45 and 49, in the absence of a special case,
the relevant faculty Board of Examiners will only grant a supplementary
assessment to the student following consideration of the student’s marks in the
other units they were enrolled in during that Semester.”
[45] Although Mr Toohey’s evidence by its nature cannot allow us to identify which
proportion of the 629 students referred to may actually be eligible for a supplementary
examination, it seems to us that it does identify the number potentially affected.
[46] The NTEU submitted that because it had told its members to informally advise
students who approached them whether they had passed or failed a course, this would give
students sufficient information concerning their results such as to allow them to be considered
for a supplementary examination. However, we consider that there are a number of difficulties
with this submission. The first is that it appears to be the case, based on the submissions of the
parties16, that official results approved by the Board of Examiners are necessary to obtain a
supplementary examination, so that an informal indication from a lecturer as to whether a
student has passed or failed may not be sufficient. The second is that it is the Board of
Examiners which requires the information concerning any student’s marks across the board in
order to determine whether a supplementary examination may be offered, not the student.17
The third, and most critical, is that supplementary examinations are due to be conducted in
mid-August 2013, with the results to be released on 28 August 2013. Taking these matters
together, and having regard to the fact that affected students need time to prepare for these
examinations, we do not consider that the “informal indication” process relied upon by the
16 Appeal hearing transcript, PN 375 (University), PNs 659-660 (NTEU)
17 Transcript 26 July 2013 PN868
[2013] FWCFB 5982
23
NTEU will allow for a proper opportunity for students to be considered for, be offered and
undertake supplementary examinations if the Results Ban continues.
[47] We accept the evidence of Mr Hiscox, Ms Key and Mr Toohey on this issue. On the
basis of that evidence, we conclude the Results Ban threatens to endanger the welfare of that
part of the population consisting of students potentially eligible to be offered a supplementary
examination. The endangerment to welfare consists of the probability that, if the Results Ban
continues, such students will lose the opportunity to sit supplementary examinations, with the
potential consequences identified by Ms Key. The s.424(1)(c) criterion is satisfied.
Prerequisite courses
[48] The main evidence adduced by the University in relation to prerequisite courses was
that of Ms Key, who said in her statement of evidence:
“34. Serious difficulties are being caused for students who were not course-
completing at the end of semester 1 and need to finalise their enrolment in
semester 2 units. In my view, continuing students are more at risk than students
who are graduating as a consequence of the Results Ban. The continuing
students are required to make ongoing important decisions regarding their
future course of Science study. The students need to select units and plan their
courses; these choices can significantly impact on the students’ academic
progress and potential career outcomes.
35. The majority of Science subjects have pre-requisites of successfully
completing a previous subject/unit. In Science disciplines, the content of units
build on prior knowledge. For example, to undertake the unit MTH1030
Techniques for modelling, students need to have successfully completed the
unit MTH1020 Analysis of change. Unit prerequisites are established to ensure
students have the appropriate background knowledge and skills and it is not
appropriate, nor is it in the interest of students, to suggest they can progress
without the required knowledge. After the second week of semester 2,
variations to enrolments are not permitted because students will have missed
too much class time and will be at a disadvantage compared to their peers.
36. As a number of students are unaware of their results, this will adversely affect
their capacity to choose their semester 2 subjects to best maximise their
academic progress. Based on results, students may need to tailor their
academic choices and this can affect their progress. The absence of results is
significantly impeding the capacity of students to progress. In addition, if
students continue with their planned semester 2 unit enrolment on the basis
that they may have failed a pre-requisite unit in semester 1 (but do not know at
the time they commence those units due to the Results Ban), students may
need to, or decide to, withdraw from a unit if it subsequently becomes known
that they have failed the semester 1 pre-requisite unit. If this occurs after the
census date of 31 August 2013, those students will incur fees in respect of
those units which are non-refundable.”
[49] Ms Key also gave evidence, based upon information and belief, as to the position with
prerequisite courses which applied in the University’s Faculty of Business and Economics:
[2013] FWCFB 5982
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“65. I am informed by Ms Nahal and believe that in respect of Business and
Economics results that are not available, students may nonetheless continue
their enrolment in semester 2 units even though they have not met the semester
1 prerequisites. The Results Ban is an indefinite ban, so it is unclear when
Business and Economics results will become available for students. If students
only discover that they have failed a prerequisite unit (for example) 4 to 6
weeks into semester 2, the Faculty of Business and Economics may withdraw
those students from the particular unit or units, or the student may ask to be
withdrawn because they may not be confident in continuing. This would have
serious implications for those students. This scenario would impact on the
academic progress of the students, the time they take to complete their courses,
and consequently when they are able to commence their careers. These are
serious matters.
66. Further, the Faculty of Business and Economics has the largest cohort of
international students at Monash, and these students may be particularly
disadvantaged if they only ascertain during semester 2 that they have failed a
semester 1 prerequisite. For example, there may be visa and cost of living
implications.”
[50] In the evidence adduced at the hearing of the appeals, there was some updating of the
position with respect to prerequisite courses. Mr Toohey deposed that there were 9,094
students enrolled in a Semester 2 course who did not have their results for a relevant Semester
1 prerequisite course. The NTEU tendered an email dated 31 July 2013 which was distributed
to students generally and which, with respect to prerequisite courses, stated:
“Semester 2 enrolment - Students missing results for prerequisite units
Previously you were advised that if you are missing semester one results and you are
unaware if you have met the pre-requisite requirements to undertake particular
semester two units, that you should contact your semester one lecturer (or unit
coordinator) to seek confirmation in writing that you have met the prerequisite
requirements using a Recommendation to Continue Studies form.
I regret to advise that the NTEU has recently sent a communication to their members
advising staff not to complete or sign the form. However, the NTEU has advised
members they should let students know if they have passed or failed a prerequisite
unit.
The University is extremely disappointed with the NTEU’s decision which again
places the responsibility for ascertaining your results back on you. Nevertheless, the
University strongly recommends that you approach your lecturer to find out your
missing result/s for any prerequisite units.
If the academic staff member declines to complete the form, then once you have
received confirmation of whether you have passed, record that advice as notation on
the Recommendation to Continue Studies form (including notation on the lecturer
consulted, and date of consultation) and return it to the teaching faculty office.
[2013] FWCFB 5982
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Students are required to pass all prerequisite units to meet the requirements of their
degree (or equivalent in their study area). Once the lecturer has advised you that you
have passed any prerequisite units, and you have noted this advice on the form, the
completed and submitted Recommendation to Continue Studies form will be regarded
by the faculty as confirmation that you have not failed the relevant prerequisite unit.”
[51] There was no dispute that the NTEU exemptions regime made no provision for the
release of results for prerequisite courses, and that applications for exemptions made solely on
this basis had been rejected. The NTEU submitted that despite this, the evidence did not
justify a finding that the s.424(1)(c) criterion had been satisfied because there was a lack of
evidence of significant disadvantage amongst students. It pointed to evidence given by
Andrew Picouleau, the University’s Deputy Executive Director, that the University would
permit students to enrol and remain enrolled in a Semester 2 course even if it was not clear
whether they had passed the prerequisite course. It also submitted that the NTEU’s advice to
its members that they should indicate to any student who approached them whether they had
passed or failed a prerequisite course (as evidenced by the email of 31 July 2013) meant that
no detriment to students should ensue.
[52] We consider that the Results Ban threatens to endanger the welfare of a part of the
population consisting of the over 9000 students who have enrolled in Semester 2 courses
without having their results for relevant Semester 1 prerequisite courses. Although the
University has allowed students to enrol in Semester 2 courses without knowing whether they
have passed Semester 1 prerequisite courses, there remains nonetheless a threatened
endangerment in one or more of the following forms:
(1) Students who at some time during Semester 2 find out they have failed a
prerequisite course (either because they have received an indication to that
effect from their lecturer or because the Results Ban is ended by the NTEU)
may be removed, or may have to decide to remove themselves, from the
Semester 2 course. The evidence of Mr Picouleau referred to by the NTEU
refers, we consider, only to the interim position which will apply until the
results for prerequisite courses are known. A removal from a Semester 2 course
in this way will mean that the time and effort spent on the course will have
been wasted and that the opportunity to repeat the prerequisite course in
Semester 2 may have passed. Further, if the removal occurs after 31 August
2013, such students will incur non-refundable fees for the course.
(2) In the alternative to (1), even if the student remains in the Semester 2 course,
his or her capacity to successfully complete that course will be compromised
because of a failure to pass the prerequisite course. That is, if the student’s
failure to pass the prerequisite course means that the student does not have the
knowledge to pass the Semester 2 course, the result may be that the student has
to repeat both courses in 2014, which would no doubt lead to significant
disruption to the student’s academic progression.
(3) The lack of any foreseeable endpoint to the Results Ban may mean that it
continues through to Semester 2 assessments in November, with compounding
effects in terms of prerequisites for courses to be taken in 2014.
[2013] FWCFB 5982
26
[53] These consequences cannot now wholly be avoided by students approaching their
lecturers at some stage during Semester 2 to receive an informal indication as to whether they
passed their Semester 1 prerequisites, because on the evidence they have already enrolled in
their Semester 2 courses. In any event, the evidence does not create any basis for confidence
that informal approaches by individual students to their lecturers will be an effective
mechanism by which over 9000 students can be informed of their Semester 1 prerequisite
results. We are satisfied that the s.424(1)(c) criterion is made out with respect to the potential
consequences flowing from the lack of any exemption to the Results Ban applicable to the
release of results for prerequisite courses.
Form of the order
[54] As a result of our conclusion that the s.424(1)(c) criterion has been satisfied in a
number of respects, we are required by the Act to make an order suspending or terminating
protected industrial action. The only protected industrial action to which the required order
may apply is that which we have found satisfies the s.424(1)(c) criterion - that is, the Results
Ban only.18 However, once such an order is made, any other industrial action notified by the
NTEU ceases to be protected by reason of s.413(7).19
[55] We have a discretion as to whether to make a suspension or termination order. We
initially considered making a termination order, on the basis that negotiations have been
occurring for about 12 months with little progress and that a suspension order might simply
lead to a later recurrence of the Results Ban during Semester 2 examinations. However both
parties expressed a strong preference for a suspension order if any order was required to be
made, and we accept the submission of the University that the evidence simply did not go to
the issue of the future prospects of the parties reaching an agreement should only a suspension
order be issued. We have therefore determined to issue a suspension order.
[56] There remains the issue of the duration of the order which we are required by s.427 to
specify. The University asked for an order of eight weeks’ duration in order to ensure that the
Results Ban did not recommence before the results of deferred and supplementary
examinations yet to take place could be recorded and issued. The NTEU submitted that a two
week suspension would be sufficient. In making that submission, the NTEU undertook that
that there would be no withholding of results that were “referable to this round of
assessments”, which we understood to encompass deferred and supplementary
examinations.20
[57] On the basis of the NTEU’s undertaking, we have determined to make an order
suspending protected industrial action in the form of the Results Ban for a period of two
weeks commencing at 9.00 am on 14 August 2013.
The NTEU appeal
[58] The NTEU appeal challenged the validity of the Order made by Vice President
Lawler. The gravamen of its challenge was that the protected industrial action which had
18 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [69]-[72] per Lander J,
[128]-[130] per Buchanan J, [179]-[180], [182] per Perram J.
19 Ibid
20 Appeal hearing transcript PNs 845-847
[2013] FWCFB 5982
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occurred up until 15 July 2013 which his Honour concluded satisfied the s.424(1)(c) criterion
was not the same industrial action which was being engaged in at the time his Honour made
the Order, because the expansion and refinement of the exemptions regime which occurred
after 15 July changed the nature of the industrial action. Therefore, the NTEU submitted, the
protected industrial action the subject of the s.424(1)(c) finding was not being engaged in or
threatened, impending or probable at the time the Order was made, meaning that neither of the
alternative jurisdictional prerequisites for the making of a suspension order in s.424(1)(a) or
(b) was satisfied.
[59] The Decision does raise a novel question as to whether s.424(1) requires the making of
an order in respect of protected industrial action which at some time in the past has threatened
to endanger the life, personal safety, health or welfare of part of the population but no longer
does so. Prima facie, we think it unlikely that it was the intention of the legislature that
s.424(1) would require or permit the making of orders which, at the time of their making, are
known to have no substantive operative effect.
[60] However, that question will remain one for another day, because we consider that the
NTEU’s appeal lacks sufficient utility to justify the grant of permission to appeal. As earlier
stated the Order was purely nominal in nature and expired some weeks ago now. Its only
practical effect was that, by virtue of s.430, the NTEU was required to issue a new notice of
protected industrial action. The issue of the stay order had the practical effect of making this
statutory requirement inapplicable pending the hearing of the appeals, and in any event we
were informed that the NTEU had, out of more abundant caution, promptly issued a new
notice. The order we have made prospectively suspending the Results Ban has rendered these
past events irrelevant. No identifiable practical purpose can be served by us determining the
NTEU’s appeal.
[61] The NTEU is refused permission to appeal.
Resumption of negotiations
[62] We would add one thing. As earlier stated, we were advised during the course of the
appeal hearing that negotiations between the parties for a new enterprise agreement had
ceased because of the Results Ban. Given the order we have made, we would expect that such
negotiations will now immediately resume and be conducted in good faith. The parties may of
course request the assistance of the Commission in that connection at any time.
VICE PRESIDENT
WORK COMMISSION -- AUSTRALIA THE SEAL OF FA
[2013] FWCFB 5982
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Appearances:
R. Niall SC with C. Dowling of counsel for the National Tertiary Education Industry Union
J. Bourke SC with M. Follett of counsel for Monash University
Hearing details:
2013.
Melbourne:
12, August.
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