1
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Union
v
University of Western Sydney
(C2013/1570)
National Tertiary Education Union
v
University of Western Sydney
(C2013/1571)
National Tertiary Education Union
v
University of Western Sydney
(C2013/1572)
VICE PRESIDENT LAWLER SYDNEY, 30 DECEMBER 2013
Alleged dispute about any matters arising under the enterprise agreement and the
NES;[s186(6)].
[1] This is a dispute referred to the Commission under the dispute resolution procedure in
the University of Western Sydney Academic Staff Agreement 2009-2012 (Agreement).
[2] For the best part of a year, the University of Western Sydney (University) has been
engaged in a major restructuring in response to changed operational requirements arising from
declining student numbers and other issues.
[3] The University determined that the number of courses being run within the School of
Business are to be significantly reduced with the result that it had more ongoing staff than it
required. A selection process was conducted from among existing staff in the School for the
positions available after the restructuring is fully implemented. The staff without positions at
the end of that process who did not accept an offer of voluntary redundancy became
“displaced employees” within the meaning of the Agreement.
[2013] FWC 10223 [Note: An appeal pursuant to s.604 (C2014/2712) was
lodged against this decision - refer to Full Bench decision dated 1 May
2014 [[2014] FWCFB 2836] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB2836.htm
[2013] FWC 10223
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[4] The Agreement contemplates that academic employees can be made redundant but
only if various conditions are satisfied and ameliorating measures taken. Clause 50 of the
Agreement provides:
“50. REDEPLOYMENT AND REDUNDANCY
Displaced Employees
(1) A displaced academic employee is an academic employee who cannot be gainfully
employed in the position in which they were engaged, due to factors including:
(a) the restructuring of an organisational unit;
(b) changes in technology or work practices;
(c) a decline in student demand or discontinuation of academic programs that
affects the amount of work available in an area;
(d) the discontinuation of, or a reduction in, funding; or
(e) the relocation of a position, which would result in an unreasonable increase
in travel to work or travel costs or an unreasonable impact on the academic
employee’s family responsibilities.
(2) Where positions are identified as discontinued in organisational change, affected
position holders will have access to calculations of estimated redundancy entitlements.
(3) Where an affected employee expresses an interest in voluntary redundancy and that
interest is approved for consideration by the Head of School/Manager a detailed
estimate of their redundancy entitlements including taxation, annual and long service
leave entitlements will be provided by the University.
(4) The University will advise an employee in writing if they are displaced, giving
them details of their redundancy payment including taxation, together with their
annual leave and long service leave entitlements.
(5) The University will fulfil its obligations to displaced employees under the relevant
provisions of the Act. This includes mitigating the likelihood of retrenchment (where
practicable) within the provisions of this Agreement and appropriate in relation to the
employee’s stated wishes, the University will:
(a) discuss with a displaced employee the options to elect to be considered for
redeployment or to elect redundancy; and
(b) pro-actively case manage and consult with the displaced employee.
...
Redundancy
[2013] FWC 10223
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(8) Within 10 working days of receiving advice that they are displaced, an employee
will advise the University whether they elect redundancy.
...
Redeployment
(12) Within 10 working days of receiving advice that they are displaced, an employee
may elect in writing to be considered for redeployment.” ...
[5] Clauses 50(13) and (14) provide for a “redeployment period”. Clause 50(16) provides:
“(16) A displaced employee who elects redeployment must not refuse a reasonable offer
of redeployment or training. This does not mean that the employee will be required to
accept redeployment to a position at a lower salary level or at reduced hours.
...
(18) A displaced employee who has elected redeployment and who has the essential
skills and qualifications to fill a suitable vacant position takes precedence over other
persons in appointment to that position.
(19) If there is more than one displaced employee being considered for a position, the
University will decide which one best meets the position requirements based on their
skills, qualifications and experience.
(20) A displaced employee who accepts redeployment to a position at a lower salary
level is entitled to maintenance of their previous salary level for a period of 12 months.
At the end of this period their salary will be reduced to the maximum salary step of the
new position.
...
Retrenchment
(23) A displaced academic employee will only be retrenched if their employment is
not sustainable for reasons including, but not limited to:
(a) a pattern of decline in student demand over 2 or more semesters in their
discipline despite reasonable efforts to address the problem;
(b) the University discontinues courses and/or units where student enrolment
patterns cannot reasonably justify the continued offering of those courses
and/or units either in their own right or at multi-locations and the employee
cannot be reasonably relocated or redeployed into other academic duties;
(c) the existing student/employee ratios in a discipline are well below the
University norm/average and maintenance of those ratios cannot reasonably be
justified despite reasonable efforts to address the problem;
[2013] FWC 10223
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(d) the funding of positions supported by research or other Department of
Education, Science and Training funding ceases or declines despite reasonable
efforts to maintain it or seek alternative funding.
(24) A displaced academic employee will only be retrenched in circumstances
including, but not limited to:
(a) absence of other ongoing teaching, including teaching performed by casual
academic employees or fixed-term academic employees near the end of their
contract period, for which the employee is qualified, willing and able to teach
and which would constitute a work load equivalent to the employee’s existing
full or part time workload;
(b) where after consultation with the employee and consideration of the
feasibility of appropriate training to facilitate redeployment, the University is
of the view that the employee cannot reasonably be redeployed to an area
where there are vacancies;
(c) the employee has declined an offer of redundancy.
(25) If at the end of the redeployment period or period of retraining, a displaced
employee who has elected redeployment is not redeployed, they will be retrenched and
will be entitled to:
(a) payment equal to 8 weeks at their base rate of pay; and
(b) payment equal to 3 weeks at their base rate of pay for each completed year
of continuous service up to a maximum of 60 weeks.”
(emphasis added)
[6] The present dispute relates to three academics, Dr Yoo, Ms Lewin and Professor Paul
all of whom are employed in the School of Business (School) who were identified as
“displaced” under the Agreement. Each was invited to make an election under clause 50(8).
None responded by making an election. The University has proceeded on the (correct) basis
that, in the absence of an election, each wished to be to be redeployed to a suitable position if
one could be found.
[7] The University accepts that the Agreement requires it to make efforts to redeploy each
of the three academics. The University has made offers to each of Dr Yoo and Ms Lewin that
would see them remain as ongoing employees at the same classification and receiving the
same pay as they presently receive. In those positions each of Dr Yoo and Ms Lewin will be
expected to teach up to 18 hours of tutorials each week. Those positions have been created by
allocating tutorials to Dr Yoo and Ms Lewin that would otherwise have been taught by casual
employees or employees on fixed term contracts that are close to expiry.
[8] The National Tertiary Education Union (NTEU) contends that, while the University is
obliged to create new positions for each of the employees, in the particular circumstances and
having regard to various clauses in the Agreement, especially clauses 50(23) and 19(13), the
[2013] FWC 10223
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University is prevented by the Agreement from requiring Dr Yoo and Ms Lewin to teach for
18 hours each week (a workload that it characterises as excessive).
[9] Professor Paul is in a different position. He is a long term employee of the University
who is employed in the classification “Professor E”, the most senior academic classification
provided for in the Agreement. The University contends in the case of Professor Paul that it is
unable provide him with an equivalent workload as an ongoing category E professor from
work being performed by casuals or fixed term employees nearing the end of their
engagement with the result that it has notified him that he will be retrenched.
Professor Paul
[10] It is convenient first to deal with Professor Paul.
[11] The number of category E professors required by the School of Business under the
restructuring has reduced from 5 to one (reflecting the substantial reduction in the size and
scope of the courses to be offered by the School into the future).
[12] The terms of sub-clauses (23) and (24) are confusing. Construing those sub-clauses in
the context of clause 50 and the Agreement as a whole it is tolerably clear that sub-clause 23
is concerned with specifying a non-exhaustive list of circumstances, one or more of which
must exist before the University can consider retrenching an academic and that,
notwithstanding the opening words of sub-clause 50(24), that sub-clause was intended to
specify requirements, each of which must be satisfied before an academic can be retrenched.
That is the only sensible and practical construction of clauses 50(23) and (24).
[13] There is no dispute that the broad precondition imposed by clause 50(23) is satisfied
for each of the employees in this case. Each of the requirements in clause 50(24) must be
satisfied. There is no dispute that the requirements in clause 50(24)(b) and (c) are satisfied in
relation to Professor Paul.
[14] The determinative issue in relation to Professor Paul is whether a full time workload
consisting of the available tutorial work presently performed by casuals in the School of
Business was work “for which [Professor Paul] is qualified, willing and able to teach and
which would constitute a work load equivalent to the employee’s existing full or part time
workload” within the meaning of clause 50(24)(a). There is no doubt that Professor Paul is
“willing and able” to teach tutorial work in the School of Business, nor is there any doubt that
he is qualified for that work - indeed, on one view, he is over-qualified. Instead, argument
focussed on whether the tutorial teaching role proposed by the NTEU “would constitute a
workload equivalent to [Professor Paul’s] existing full ... time workload”.
[15] On the NTEU’s submission equivalence is a matter of hours provided only that the
employee is qualified, willing and able to perform the work in question. On behalf of
Professor Paul, the NTEU submits that category E professors still take tutorials and there is
sufficient tutorial work being performed by casuals to enable Professor Paul to be retained in
employment undertaking tutorial teaching.
[16] The University contends that equivalence of workloads must take account, not only of
hours of work, but also the quality of the work that is to be performed. The University
contends that a workload that consists entirely of undergraduate tutorials that would ordinarily
[2013] FWC 10223
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be taken by academics with a Lecturer A or Lecturer B classification is not a work load that
can properly be said to be “equivalent” to Professor Paul’s existing full-time workload as a
category E professor. I agree with that contention. When clause 50 is construed in the context
of the Agreement as a whole, equivalence is a function of both hours and nature of the work
being performed. The following matters that can properly be seen as providing support for
that construction:
(i) The Agreement makes express provision in relation to redeployment in a
“lower position” (clauses 50(16) and (20)). Implicit in those provisions is a
recognition by the parties, objectively determined, that the work of a lower
position is not equivalent to the work of a higher position. It is not to the point
that some Professor E employees take some tutorials. The primary work of that
classification is work at a much higher level.
(ii) A category E professor is a far more expensive employee for the School than a
Lecturer A or B employee. The retrenchment and redundancy provisions of the
Agreement are objectively intended to allow the University to address
commercial imperatives arising from changed business circumstances. A
practical approach to the construction of the Agreement favours a conclusion
that does not oblige the University to retain that far more expensive employee
to perform work that can be, and is presently, performed by significantly less
expensive casual employees in the Lecturer A or B classification.
(iii) The differences between the retrenchment and redundancy provisions of the
predecessor agreement and the current Agreement suggest that the parties
objectively intended to expand the capacity of the University to make ongoing
employees redundant on account of genuine operational reasons. This supports
a broader interpretation of the notion of “equivalent” workloads in clause
50(24)(a).
[17] The NTEU’s submission that, under the Agreement, the ongoing academic position is
privileged above all fixed-term and casual employees may be accepted as correct, but this
does not mean that an ongoing academic cannot be retrenched. However, acceptance of that
proposition does not advance the arguments in the present case. The University’s arguments
do not contradict that general proposition. The offers made to Dr Yoo and Ms Lewin
demonstrate that the University accepts that proposition.
Dr Yoo and Lewin
[18] As noted, the University has recognised that the pre-condition to redundancy imposed
by clause 50(24)(a) cannot be met in relation to Dr Yoo and Ms Lewin because there is
sufficient teaching work being performed by casual employees that Dr Yoo and Ms Lewin are
each “qualified, willing and able to teach” and there is no dispute that that available teaching
work could “constitute a work load equivalent to the employee’s existing full or part time
workload”.
[19] The real issue in relation to Dr Yoo and Ms Lewin is whether the teaching load that
the University proposes for each of those academic is excessive such that, in each case, it
would not “constitute a work load equivalent to the employee’s existing full or part time
[2013] FWC 10223
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workload” within the meaning of clause 50(24)(a) with the consequence that that precondition
to retrenchment is not met.
[20] The NTEU contends that the workload proposed by the University is excessive and is
prohibited by the terms of the Agreement.
[21] Job security and reasonable workloads have been major industrial issues in the tertiary
education sector for many years. The Agreement addresses those matters in detail.
[22] Clause 39 demonstrates the priority placed on Job Security in the Agreement:
“39. JOB SECURITY AND OUTSOURCING
(1) Job security for employees is important for the University to function effectively
and achieve its strategic goals.
(2) The University recognises the value of attracting, developing and retaining high
quality staff on merit on a continuing employment basis and will initiate and pursue
active programs within the term of this Agreement to:
(a) maintain overall levels of employment at the University over the life of this
Agreement; and
(b) reduce systemic long term casualisation.
(3) The University will not increase the use of casual employment at the expense of
continuing employment.
(4) In the case of forecast reductions in workforce, under the requirements of clause
42: Organisational Change, the University will discuss with affected employees issues
that might lead to redeployment or redundancy before developing a formal change
proposal. Such discussions may include the preparation of an issues paper which
would be made available to employees of the work unit prior to the development and
release of a formal change proposal.
(5) In the event of workforce reduction, job security will be supported and facilitated
by the following measures:
(a) pro-active case management of notified ongoing displaced employees, with
retrenchment being a last resort;
(b) use of redeployment in consultation with the affected employee and their
nominated representative, who may be an official of the NTEU;
(c) natural attrition;
(d) voluntary conversion to a reduced employment fraction for an agreed fixed
period or on a continuing basis;
(e) voluntary transfer to another work unit;
[2013] FWC 10223
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(f) voluntary secondment;
(g) pre-retirement contracts;
(h) voluntary position swaps;
(i) voluntary leave without pay;
(j) voluntary taking of long service leave.”
(emphasis added)
[23] The NTEU places particular reliance on parts of clause 19. It is necessary to set out a
large portion of clause 19:
“19. WORKLOADS
(1) This clause describes how workloads are determined for all ongoing and fixed-
term employees covered by this Agreement other than those employees who are
expressly exempted from this clause by the Executive Dean due to their particular
circumstances.
(2) The University recognises the special attributes and demands of academic life and
supports a workplace culture providing for reasonable hours of work in work plans
which are collegially formulated, transparent, and underpinned by a healthy and safe
workplace.
University Work Plan Committee
(3) Within one month of the commencement of this Agreement the Vice-Chancellor,
or a nominee of the Vice-Chancellor from the Senior Executive of the University, will
establish a University Work Plan Committee, to draft overall workload principles and
a policy framework in accordance with this Agreement and to monitor outcomes of the
School Work Plan Committees and School Work Plan policies.
...
(7) The role of the University Work Plan Committee is to:
(a) develop a University-wide Work Plan Policy Framework aimed at
providing collegiality, equity, transparency and comparability, which allows
for adaptation at a School (or Unit) level that does not contradict the
University’s Work Plan Policy Framework or this Agreement;
(b) establish general procedures for ensuring consistent standards of workload
allocation having regard to:
(i) the mix of major areas of academic work;
(ii) maximum targets for different types of teaching in either face to
face hours or EFTSL load or both;
[2013] FWC 10223
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(iii) The impact of alternate modes of delivery; and
(iv) Equal opportunity principles and employee development needs;
(c) monitor the implementation outcomes of the policy framework and
principles at the level of individual Schools (or Units); and
(d) ensure that Schools and Units adhere to all of the terms of this Clause 19
Workloads.
...
(10) Upon receipt of the advice and recommendations from the Implementation
Committee, the University Work Plan Committee will again attempt to make a
decision by consensus. Where consensus cannot be reached a decision will be made by
a direct vote of the Committee and will take into account the advice and
recommendations made by the Implementation Committee.
School or Unit Work Plan Committees
(11) Each Head of School or Head of Unit is responsible for ensuring that workload
procedures are established for the School or Unit in accordance with this clause.
(12) School or Unit Work Plan policies will provide for a combination of the
following elements:
(a) teaching, including engaged teaching and/or curriculum development
and/or educational leadership and/or approved educational development and/or
approved learning development;
(b) research, including engaged research, and/or scholarship and/or approved
research-based professional consultancy activity;
(c) contribution to institutional leadership and/or governance at UWS and/or
approved university sector work and/or approved activities related to the
relevant profession or academic discipline and/or approved relevant service to
the community; and
(d) other approved related academic or professional development.
(13) Across the University in general, it is expected that weekly teaching allocations
will be up to 12 - 14 hours. It is, however, acknowledged that higher allocations may
be required in some circumstances for a limited number of staff whose modes of
teaching by their nature, involve minimal or no preparation. Teaching allocations will
take account of the varying circumstances, structure and mission of each School or
Unit.
(14) In applying this guideline each School or Unit will consider:-
(a) the balance of undergraduate and postgraduate teaching;
[2013] FWC 10223
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(b) the scale and scope of research activity, extramural commitments, links
with relevant professions and community and industry programs and
initiatives; and
(c) the balance between online/external delivery and face-to-face delivery of
lectures, tutorials, seminars and clinical practical sessions, noting that these
entail different time commitments for preparation, course/unit materials,
curriculum development, marking and student consultation.
...
(19) The role of the School or Unit Work Plan Committee is to:
(a) develop School or Unit Work Plan policy, methodology and procedures
consistent with the University-wide Work Plan Policy Framework and this
Agreement;
(b) resolve a range of Individual Work Agreement disputes which are not
major enough to require resolution by a formal Individual Work Agreement
Dispute Resolution process;
(c) review the application of the Work Plan Policy, methodology and
procedures in the School or Unit at least annually; and
(d) report on implementation issues to the Executive Dean and the University
Work Plan Committee at least annually.
(20) There will be an equitable distribution of workloads amongst employees and
flexibility in the proportion of time allocated to the wide range of academic work.
(21) Once the School or Unit Work Plan policy has been developed by the School or
Unit Work Plan Committee it will be presented as a draft policy to a meeting open to
all School or Unit staff to provide an opportunity for comment and discussion. Staff
will be given a period of ten (10) working days from the date of the meeting of all
School or Unit staff to make written submissions on the School or Unit Work Plan
policy. The School or Unit Work Plan Committee will take into account the
submissions made by staff before the policy is finalised.
...
Individual Work Agreements
(25) An employee engaged full time is required to work an average of 35 hours per
week averaged over a one-year period, or pro rata for an employee engaged part time.
These hours are outside annual leave and public holiday entitlements provided by the
Agreement and concessional days announced from time to time by the University.
(26) Each employee’s workload will be in an annual written Individual Work
Agreement. An Individual Work Agreement will be negotiated between the employee
[2013] FWC 10223
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and their supervisor in accordance with the terms of the University-wide Work Plan
Policy Framework, School or Unit Policy and this clause. It must include an annual
leave plan, and any approved long service leave and PDP leave (where applicable) for
the employee. All of the work plan provisions of this clause shall apply to part-time
staff on the basis of the work being in proportion to that fraction of employment.
(27) If an academic employee is located in other areas of the University, the relevant
Director will be responsible for ensuring that appropriate workloads are established for
those employees, consistent with their position requirements and professional
responsibilities and the principles in this clause.
...
Principles for Individual Work Agreements
(30) The procedures for developing Individual Work Agreements will be developed
and adapted to the needs and resources of individual academic Schools or Units, and
must:
(a) ensure that workloads are reasonable and equitable;
(b) be consistent with the strategic plans and academic mission of the
employee’s academic School or Unit;
(c) take into account the nature of work undertaken in previous Individual
Work Agreements;
(d) provide for an equitable contribution and balance between the employee’s
goals and aspirations as outlined in their Career Development Plan and the
goals, needs and commitments of the academic School or Unit;
(e) take into account class sizes;
(f) allow for Individual Work Agreements to be varied during the year, by
agreement between the employee and the supervisor, where circumstances
change;
(g) provide a reasonable basis for determining comparison of workload
quantum and content, taking into account factors which impact on the
complexity, intensity and level of the workload element; and
(h) be capable of being compared against each other, as well as against the
previous Individual Work Agreement of the staff member concerned.
(31) There will be published, open and accessible procedures in relation to the
allocation of workloads and each supervisor and employee will comply with the
Agreement. Individual Work Agreements are not confidential documents, and no
information should be included in them which would preclude them being viewed by
other staff members.
[2013] FWC 10223
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...
(34) Where there is more work to be done than in the agreed Individual Work
Agreements, this should be brought to the attention of the Head of School or Unit for
timely consideration in relation to staffing levels. Staff may be requested but will not
be pressured to work beyond the requirements of their agreed Individual Work
Agreements.
(35) The content of an employee’s Individual Work Agreement would normally make
provision for student consultation.
(36) All employees will have a right to negotiate some research duties as part of their
Individual Work Agreements; however, where an employee has had opportunities to
produce research outcomes and, over a period of time (eg the previous 3 years),
without good reason, has consistently not produced evidence of reasonable productive
engagement in research consistent with the expected outcomes for their academic
level, discipline and personal career plans, their entire workload may be allocated to
activities other than research. The Academic Career Planning and Review process is
the ongoing reference point for expected research outcomes. If the employee has
shown signs of positive research engagement, they will be invited to submit a research
plan within the workload allocation process and finalisation of their Individual Work
Agreement for the forthcoming period.
(37) Employees who have a demonstrated record of achievement in research related
activities may have a substantial part of their workload allocated to research related
activities in their Individual Work Agreement.
(38) An employee who is currently enrolled for a research higher degree may be
allocated, within their Individual Work Agreement, a proportion of time to undertake
such studies, provided that their research higher degree supervisor certifies that
adequate progress has been made.
...”
(emphasis added)
[24] Apart from reliance on the terms of a predecessor agreement, there was no properly
admissible extrinsic evidence tendered by any of the parties. The construction of the
Agreement proceeds in accordance with the well-established principles that do not need to be
repeated here.
[25] The principal issue is the effect of clause 19(13):
“(13) Across the University in general, it is expected that weekly teaching allocations
will be up to 12 - 14 hours. It is, however, acknowledged that higher allocations may
be required in some circumstances for a limited number of staff whose modes of
teaching by their nature, involve minimal or no preparation. Teaching allocations will
take account of the varying circumstances, structure and mission of each School or
Unit.
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(14) In applying this guideline each School or Unit will consider:-
(a) the balance of undergraduate and postgraduate teaching;
(b) the scale and scope of research activity, extramural commitments, links
with relevant professions and community and industry programs and
initiatives; and
(c) the balance between online/external delivery and face-to-face delivery of
lectures, tutorials, seminars and clinical practical sessions, noting that these
entail different time commitments for preparation, course/unit materials,
curriculum development, marking and student consultation.”
[26] The NTEU contends that clause 19(13) prevents the University from requiring a
weekly teaching allocation in excess of 14 hours per week. The NTEU contends that the
express exception “for a limited number of staff” is confined to certain Clinical Educators in
Health Disciplines. It relies on references to “Minimum Preparation Required” in
classifications “M”, “O” and “S” in Schedule 2 of the Agreement. That contention must be
rejected on the proper construction of the Agreement.
[27] Clause 19(14) describes clause 19(13) as a “guideline”. Clause 19(13) is expressed, in
terms, as a generalisation. It expressly acknowledges that “higher allocations may be required
in some circumstances for a limited number of staff whose modes of teaching by their nature,
involve minimal or no preparation”. I am not persuaded that, adopting a practical construction
of the Agreement, this general language can properly be confined in the manner for which the
NTEU contends. Further, clause 19(13) contemplates that “[t]eaching allocations will take
account of the varying circumstances, structure and mission of each School or Unit.” It is
implicit that those factors may result in a proper determination that a particular academic or
academics should have a teaching allocation beyond the 12-14 hours per week “guideline”.
[28] I am satisfied that clause 19(13), on its proper constructions, does not prevent the
University from determining that a workload in excess of 12-14 hours per week can properly
be allocated to a particular academic in their particular circumstances.
[29] Given the circumstances of the School of Business, the modes of teaching called for
by the University’s proposal for each of the two employees involve minimal preparation for
14 or 15 of the 18 hours of tutorial teaching each week.
[30] I agree with the University that clause 19(26) contains the primary obligation on
employees to perform work: “An employee engaged full time is required to work an average
of 35 hours per week averaged over a one-year period.”
[31] After making allowance for annual leave (4 weeks) and public holidays (2 weeks),
there are 46 working weeks or 1610 working hours (= 46 weeks x 35 hours per week) for an
academic in each calendar year.
[32] The University has two semesters, each of 13 weeks, during which courses are taught.
Thus, there are a total of 26 weeks in each year in which scheduled teaching occurs.
Academics can be required to work a total of 910 hours during those two semesters (= 2
semesters x 13 weeks per semester x an average of 35 hours per week).
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[33] The University has offered continued ongoing employment to each of Dr Yoo and Ms
Lewin on the basis that they will teach tutorials each week in three or four undergraduate
subjects and then teach repeats of those tutorials so that a total of 18 hours of tutorial teaching
is performed each week.
[34] I am satisfied on the evidence that there is minimal preparation required for the
teaching of repeat undergraduate tutorials in a given week and that, on the evidence, an
allowance of 2 hours preparation for each of the three or four ‘first’ tutorials in a given week
is a more than an adequate average allowance.
[35] The University’s proposed workloads for Dr Yoo and Ms Lewin make allowance for
the minimum period of student consultation required by the University and for assessment
making up to 120 students, the maximum marking load that will be required of each.
[36] Senior Counsel for the University took each of Dr Yoo and Ms Lewin through an
analysis of the hours required to perform the workload proposed by the University. The
written submissions on behalf the University demonstrate that when proper allowance is made
for the tutorial teaching time, preparation, student consultation, marking and administration,
what is required of Dr Yoo and Ms Lewin is well within the average weekly hours of work
that the University is entitled to require of them as full time, ongoing employees.
[37] The NTEU objects that such an analysis involves what the parties refer to as “micro-
counting”, a matter effectively admitted by the head of the School. There are various
workload policy documents, including the School’s “Work Plan Policy” that purport to
prohibit “micro-counting” and that suggest that the guideline in clause 19(13) has been treated
as a limit rather than a mere guideline. There is no reference to “micro-counting” in the
Agreement and nothing from which such a prohibition might properly be inferred.
[38] The practical point is this - it is impossible to assess whether a given workload “would
constitute a work load equivalent to the employee’s existing full or part time workload” as
required by clause 50(24)(a) without resorting to some quantitative analysis of this sort.
[39] University policies are subordinate to the terms of the Agreement - the stream cannot
rise above its source. Where a proper application of the Agreement calls for an analysis that
may be given the label “micro-counting”, such an analysis is permitted notwithstanding the
taboo against “micro-counting” apparent in the various policies. I observe also that a rational
foundation for such a taboo is far from clear. Moreover, polices made under the Agreement
after it has been made are not admissible on the proper construction of the Agreement.
Neither is evidence that, since the Agreement was made, the parties have treated, or tended to
treat, the 12-14 hours in clause 19(13) as a limit rather than a guideline.
[40] The 12-14 hours per week guideline in clause 19(13) is predicated upon the academic
undertaking some research (the minimum allocation for research is 15%). By agreement, Dr
Yoo has not been undertaking research, thus the case for a workload higher than the guideline
is even clearer in the case of Dr Yoo.
[41] Ms Lewin is in a different situation. She is partway through a post-graduate research
doctorate at the University of South Australia. In previous years she has been provided with a
research allocation as part of her workload. The position offered to Ms Lewin in lieu of
[2013] FWC 10223
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redundancy does not contain a research allocation. It will be recalled that clause 19(36)
provides:
“(36) All employees will have a right to negotiate some research duties as part of their
Individual Work Agreements; however, where an employee has had opportunities to
produce research outcomes and, over a period of time (eg the previous 3 years),
without good reason, has consistently not produced evidence of reasonable productive
engagement in research consistent with the expected outcomes for their academic
level, discipline and personal career plans, their entire workload may be allocated to
activities other than research. The Academic Career Planning and Review process is
the ongoing reference point for expected research outcomes. If the employee has
shown signs of positive research engagement, they will be invited to submit a research
plan within the workload allocation process and finalisation of their Individual Work
Agreement for the forthcoming period.”
[42] Professor Smallman gave evidence that the decision not to include a research
component in the offer to Ms Lewin was driven by a negative assessment that the exception in
clause 19(36) applied to Ms Lewin. That negative assessment is flatly contradicted by a letter
from Ms Lewin’s supervisor who is glowing in her assessment of Ms Lewin’s progress and
the quality of her doctoral research. There was no probative evidence to displace the
assessment of Ms Lewin’s research supervisor. I find that, but for Professor Smallman’s
negative assessment, Ms Lewin would have been given a research allocation of the minimum
15%.
[43] I find that, under the terms of the Agreement, Ms Lewin is entitled to the minimum
research allocation if she is retained as a full time ongoing academic employee pursuant to the
offer that the University is obliged to make because of the precondition on redundancy
contained in clause 50(24)(a). The present offer to Ms Lewin is predicated upon Ms Lewin
having no research allocation. Clearly, the teaching hours required of Ms Lewin will need to
be reduced slightly to provide for the inclusion of a research allocation.
[44] I am not persuaded that the number of excess hours yielded by the University’s
calculations should be seen as sufficient to accommodate 15% of Ms Lewin’s required
working hours being available for her research. There are limits to the practicability of that
approach given the various demands on an academic’s time that do not all fit wholly or
comfortably into the categories analysed in the University’s submissions. I determine that
when proper allowance is made for Ms Lewin’s research entitlement, the offer to Ms Lewin
must be confined to 16 hours of tutorial teaching each week.
[45] My determination that the required teaching hours in the offer to Ms Lewin must be
revised down from 18 to 16 is an impressionistic assessment based on all of the evidence,
including consideration of the requirement in clause 19(3)(a) that workloads be reasonable
and equitable.
Summary
[46] As private arbitrator I settle the dispute by making the following arbitral
determinations:
[2013] FWC 10223
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(1) The University is not obliged to offer Professor Paul an ongoing full time
position based on a tutorial teaching workload presently undertaken by casual
employees in the Lecturer A or B classifications. On the proper application of
the Agreement the University has discharged its redeployment obligations and
is now entitled to retrench Professor Paul on the grounds of genuine
redundancy.
(2) The University’s present offer to Dr Yoo to continue his ongoing full time
employment at his current classification and rate of pay, based on a tutorial
teaching workload presently undertaken by casual employees, complies with
the requirements of the Agreement and if that offer is not accepted the
University is entitled to proceed with the retrenchment of Dr Yoo on the
grounds of genuine redundancy.
(3) The same position obtains in relation to Ms Lewin save that she is entitled
under the Agreement to at least the minimum research allocation. Accordingly,
the University must make Ms Lewin a revised offer that includes a research
component (which, subject to changes in any replacement enterprise
agreement, will remain while ever she continues to meet the progress
requirements for her research degree). If that occurs, the revised offer will
necessarily need to reduce the number of weekly tutorial teaching hours
required of Ms Lewin to no more than 16 hours.
[47] The University has undertaken that it will provide each of Dr Yoo and Ms Lewin with
7 days to decide whether to accept the offers of redeployment made to them before
proceeding to retrench either of them.
VICE PRESIDENT
Appearances:
Ms. T. Talmacs of the National Tertiary Education Union on behalf of the Applicant.
Mr. I. Taylor of Senior Counsel and Ms. H. Eager of Minter Ellison Lawyers on behalf of the
Respondent.
FAIR WORK COM *** AUSTRALIA THE SEAL
[2013] FWC 10223
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Hearing details:
2013.
Sydney:
9, 10 and 20 December
Final written submissions:
Filed by the Applicant on 23 December 2013.
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