1
Fair Work Act 2009
s.739—Dispute resolution
National Tertiary Education Industry Union
v
Victoria University
(C2014/1067)
Educational services
COMMISSIONER BISSETT MELBOURNE, 11 NOVEMBER 2014
Alleged dispute concerning interpretation of agreement - Job Security clause - forced
redundancy - requirement to pursue all options to avoid forced redundancies.
[1] The National Tertiary Education Union (NTEU) has made an application to the
Commission to deal with a dispute pursuant to the dispute settling procedure of the Victoria
University Enterprise Agreement 2013 (the current Agreement). The dispute relates to the
process utilised by Victoria University to achieve a reduction in staff numbers.
[2] In February 2014 the University commenced consultation with the NTEU with respect
to major change in the Engagement, International & Governance area of the University. The
University commenced implementation of changes, including staff reductions in about June
2014. For a group of three employees known as ‘Pool B’ the University indicated that it
would require the three staff to apply for the two positions that would remain after the
restructure in that Pool.
[3] The NTEU raised a dispute and say that the University has not met the requirements of
clause 65 of the current Agreement in the process it has applied. It submits that the effect of
the process implemented by the University is that the unsuccessful candidate was made
forcibly redundant.
[4] The NTEU says that the Agreement is clear that, prior to proceeding with forced
redundancies, all other options must be exhausted. To this end it says that the University
failed to comply with its obligations under clause 65 of the Agreement by:
Not considering forced redundancy as a last resort;
Failing to pursue all other options before considering forced redundancies;
Failing to pursue the options of retraining, natural attrition, voluntary separations,
fixed term retirement contracts, leave without pay, voluntary conversion to part time
[2014] FWC 7711 [Note: An appeal pursuant to s.604 (C2014/8035) was
lodged against this decision - refer to Full Bench decision dated 8 May
2015 [[2015] FWCFB 2892] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB2892.htm
[2014] FWC 7711
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employment, long service leave, or internal transfer before proceeding with forced
redundancies.
[5] The University says that the suggestion in the clause that all other options must be
exhausted prior to forced redundancies is aspirational and cannot be construed to set an
absolute requirement on the University.
[6] Over the last few years the University has undergone ‘organisational reform’ in the
face of financial challenges. This has resulted in a substantial number of employees being
made redundant. This change has been implemented through the Organisational Reform
Program (ORP). The first phase of the ORP took effect in January 2013. In the second phase,
to which this dispute relates, the University seeks to ‘consolidate savings made during the
first phase.’1
[7] Until the current dispute there have been no forced redundancies with voluntary
separations being the primary means by which staffing numbers have been reduced. Whilst
this was satisfactory through the first phase of ORP the University says that it now needs to
retain staff that have the ‘qualifications, skills and competencies required in the new
structure.’2
The dispute
[8] The dispute has arisen through a decision by the University to not pursue all of the
options in clause 65.2 of the current Agreement prior to proceeding with forced redundancies.
[9] The matter in dispute is the proper construction of clause 65 of the Agreement such
that it can be implemented in line with its intent.
[10] The determination of this requires consideration of whether clause 65 places a
mandatory obligation on the University to exhaust a range of specified options prior to
implementing compulsory redundancies.
Jurisdiction
[11] I am satisfied that the matter in dispute is a matter arising under the current Agreement
and that the provisions of the dispute settling procedures at clause 59 are properly invoked.
[12] Further, I am satisfied, and it was not subject to dispute, that the requirements of the
dispute settling procedures have been complied with such that the dispute is properly before
the Commission and the Commission has jurisdiction to deal with the matter.
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Clause 65 of the agreement and its predecessors
[13] Clause 65 of the current Agreement states:
INTRODUCTION OF CHANGE, WORKPLACE CONSULTATION,
RELOCATION AND REDUNDANCY
65 Job Security
65.1 The University recognises that security of employment is an important
issue for its staff members. The goal of the University is to endeavour
that there be no net reduction in jobs.
65.2 The University will pursue the options of retraining, natural attrition,
voluntary separations, fixed term retirement contracts, leave without
pay, voluntary conversion to part-time employment, long service leave,
or internal transfer before proceeding with forced redundancies.
65.3 The University will seek wherever possible to avoid forced
redundancies, but reserves the right to adopt this approach. Forced
redundancies will be considered only as a last resort when all other
options have been exhausted.
[14] This is followed by clauses on organisational change (clause 66), relocation of staff
(clause 67), redundancy - general (clause 68), redundancy and redeployment for professional
staff (clauses 69 and 70) and redundancy for academic staff (clause 71).
[15] The predecessor to the current Agreement is the Victoria University (Academic &
General Staff) Enterprise Agreement 2011 (the 2011 Agreement). The Job Security clause and
following clauses in that Agreement are identical to the provisions of the current Agreement.
[16] The predecessor to the 2011 Agreement is the Victoria University (Academic &
General Staff) Enterprise Agreement 2009 (the 2009 Agreement). The Job Security clause
was at clause 69 of that Agreement. It is identical to clause 65 in the current Agreement.
[17] Prior to the 2009 Agreement was the Victoria University Academic & General Staff
Enterprise Bargaining Agreement 2005 (the 2005 Agreement). It provided, at clause 11:
11 Intent of Agreement
...
11.3 The University recognises that in the climate of change, security of
employment is an important issues for its staff members. The goal of the University is
to endeavour that there be no net reduction in jobs. The University is committed to
exploring all measures, to avoid forced redundancies. Where possible, it will pursue
the options of retraining, natural attrition, voluntary separations, fixed term retirement
[2014] FWC 7711
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contracts, leave without pay, voluntary conversion to part-time employment, long
service leave, or internal transfer before proceeding with forced redundancies.
Principles of construction
[18] The principles applicable to the interpretation of an industrial instrument are well
established. There is no great dispute between the NTEU and the University on this point.
Both have referred me to the decision of the High Court in Amcor v Construction, Forestry,
Mining and Energy Union3 (Amcor), and Kucks v CSR Limited4 (Kucks).
[19] In Kucks Madgwick J said:
It is trite that narrow or pedantic approaches to the interpretation of an award are
misplaced. The search is for the meaning intended by the framer(s) of the document,
bearing in mind that such framer(s) were likely of a practical bent of mind: they may
well have been more concerned with expressing an intention in ways likely to have
been understood in the context of the relevant industry and industrial relations
environment than with legal niceties or jargon. Thus, for example, it is justifiable to
read the award to give effect to its evident purposes, having regard to such context,
despite mere inconsistencies or infelicities of expression which might tend to some
other reading. And meanings which avoid inconvenience or injustice may reasonably
be strained for. For reasons such as these, expressions which have been held in the case
of other instruments to have been used to mean particular things may sensibly and
properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A
court is not free to give effect to some anteriorly derived notion of what would be fair
or just, regardless of what has been written into the award. Deciding what an existing
award means is a process quite different from deciding, as an arbitral body does, what
might fairly be put into an award. So, for example, ordinary or well-understood words
are in general to be accorded their ordinary or usual meaning.5
[20] In Amcor Gummow, Hayne and Heydon JJ stated:
Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not
only to the text of cl 55.1.1, but also to a number of other matters: first, the other
provisions made by cl 55; secondly, the text and operation of the Agreement both as a
whole and by reference to other particular provisions made by it; and, thirdly, the
legislative background against which the Agreement was made and in which it was to
operate.6
[21] Kirby J said in Amcor:
...However, certified agreements such as this commonly lack the precise drafting of
legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the
common hallmarks of colloquial language and a measure of imprecision. Doubtless
this is a result of the background of the drafters, the circumstances and possibly the
urging of the preparation, the process of negotiation and the omission to hammer out
[2014] FWC 7711
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every detail - including possibly because such an endeavour would endanger the
accord necessary to consensus and certification by the Commission.
...
The nature of the document, the manner of its expression, the context in which it
operated and the industrial purpose it served combine to suggest that the construction
to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible
industrial outcome such as should be attributed to the parties who negotiated and
executed the Agreement. Approaching the interpretation of the clause in that way
accords with the proper way, adopted by this Court, of interpreting industrial
instruments and especially certified agreements...7
[22] Callinan J in Amcor stated that there was substance in the observation of Madgwick J
in Kucks. He then said:
An industrial agreement has a number of purposes, to settle disputes, to anticipate and
make provision for the resolution of future disputes, to ensure fair and just treatment of
both employer and employees, and generally to promote harmony in the workplace. It
is with the third of these that cl 55 of the Agreement is particularly concerned. It is
important to keep in mind therefore the desirability of a construction, if it is reasonably
available, that will operate fairly towards both parties...8
[23] The treatment of extrinsic material in relation to interpretation of agreements was
considered in Codelfa Construction Pty Ltd v State Rail Authority of NSW9(Codelfa). In that
matter Mason J (with whom Stephen, Aickin and Wilson JJ agreed) said:
The true rule is that evidence of surrounding circumstances is admissible to assist in
the interpretation of the contract if the language is ambiguous or susceptible of more
than one meaning. But it is not admissible to contradict the language of the contract
when it has a plain meaning. Generally speaking facts existing when the contract was
made will not be receivable as part of the surrounding circumstances as an aid to
construction, unless they were known to both parties, although, as we have seen, if the
facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations.
Obviously the prior negotiations will tend to establish objective background facts
which were known to both parties and the subject matter of the contract. To the extent
to which they have this tendency they are admissible. But in so far as they consist of
statements and actions of the parties which are reflective of their actual intentions and
expectations they are not receivable. The point is that such statements and actions
reveal the terms of the contract which the parties intended or hoped to make. They are
superseded by, and merged in, the contract itself. The object of the parol evidence rule
is to exclude them, the prior oral agreement of the parties being inadmissible in aid of
construction, though admissible in an action for rectification.
Consequently when the issue is which of two or more possible meanings is to be given
to a contractual provision we look, not to the actual intentions, aspirations or
[2014] FWC 7711
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expectations of the parties before or at the time of the contract, except in so far as they
are expressed in the contract, but to the objective framework of facts within which the
contract came into existence, and to the parties’ presumed intention in this setting. We
do not take into account the actual intentions of the parties and for the very good
reason that an investigation of those matters would not only be time consuming but it
would also be unrewarding as it would tend to give too much weight to these factors at
the expense of the actual language of the written contract.10
[24] In Toll (FGCT) Pty Ltd v Alphapharm11 Gleeson CJ, Gummow, Hayne, Callinan and
Heydon JJ said:
The meaning of the terms of a contractual document is to be determined by what a
reasonable person would have understood them to mean. That, normally, requires
consideration not only of the text, but also the surrounding circumstances known to the
parties, and the purpose and object of the transaction.12
[25] In K & S Lake City Freighters Pty Ltd v Gordon and Gotch Limited13Mason J said:
Problems of legal interpretation are not solved satisfactorily by ritual incantations
which emphasize the clarity of meaning which words have when viewed in isolation,
divorced from their context. The modern approach to interpretation insists that the
context be considered in the first instance, especially in the case of general words, and
not merely at some later stage when ambiguity might be thought to arise.14
[26] I have been mindful of, and relevantly applied, these principles in coming to my
decision.
Submissions as to meaning of the clause
NTEU
[27] The NTEU submits that an industrial dispute in 2006 (the 2006 dispute) resolved by
arbitration in the Australian Industrial Relations Commission (AIRC) in relation to clause 11
of the 2005 Agreement15 is relevant to understanding the intent of clause 65 of the current
Agreement.
[28] The NTEU says that in renegotiating the 2005 Agreement (during 2008 and 2009) it
and the University were well aware of the decision in the 2006 dispute. On the basis of the
AIRC decision the NTEU advanced, throughout the negotiations, an improvement in the job
security provisions. The NTEU says it made three critical improvements in the provision:
Moved the provisions from an ‘intent of agreement’ clause to a dedicated ‘job
security’ clause;
Removed the words ‘where possible’ to indicate the parties intention that the
provision be complied with and could not be avoided;
Included a new sentence: ‘Forced redundancies will be considered as a last resort
when all other options have been exhausted’ to crystallise when forced redundancies
could be utilised.16
[2014] FWC 7711
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[29] The NTEU submits that correspondence between it and University in 2009 makes it
clear that these issues were ventilated in negotiations and that the University understood and
agreed to the effect of the proposed clause.
[30] The NTEU submits the resulting clause 69 of the 2009 Agreement reflects these
negotiations and understanding and is relevant as clause 65 in the current Agreement is in
identical terms to clause 69 in the 2009 Agreement.
[31] The NTEU says that the University guidelines for the implementation of major change
also reflects the shared view of the intent of clause 65 of the current Agreement. These
guidelines were promulgated by the University at the time the current Agreement was
approved by the Commission.
[32] The NTEU further says that, since the making of the 2009 Agreement it has been
custom and practice of the University to pursue one or more of the options in clause 65.2 of
the current Agreement prior to using forced redundancies.17
[33] The NTEU submits that clause 65 of the current Agreement contains no ambiguity. It
submits that the negotiated clause manifests a provision using ordinary and well understood
words. If, however, there is ambiguity the NTEU says that custom and practice should weigh
in its favour. Attempts by the University to disregard or re-write the explicit provision of the
current Agreement should be rejected. Clause 65.3, which requires the university to ‘seek
wherever possible to avoid forced redundancies,’ should be understood to mean the
imposition of a course of action on the University which attempts to avoid forced redundancy.
The word ‘pursue’ in clause 65.2 cannot be read down to a ‘mere analysis, consideration and
weighing of options.’18 The NTEU says there no basis to impute words into the obligation in
the clause that do not exist.
[34] In practical terms the NTEU submits that clause 65 places a clear obligation on the
University to implement the requirements of clause 65, including the provisions of clause
65.2, prior to a consideration of any forced redundancies. By determining who, of the three
effected employees in ‘Pool B’, would be appointed to the two available positions the
University determined who would be made forcibly redundant. This action denied the
employees their rights pursuant to clause 65.2.
Victoria University
[35] The University submits that clause 65.1 of the current Agreement is expressed in
aspirational terms. It says that the words are ‘incapable of importing a binding obligation.’ It
submits that the use of the word ‘goal’ in clause 65.1 indicates the party’s intention to aspire
to the position rather than setting an absolute obligation. To the extent that any obligation is
imposed by clause 65.2 that obligation is limited to ‘pursue’ various options prior to
‘proceeding’ with forced redundancies.
[36] With respect to clause 65.3 the University submits that to the extent that it imposes
any obligation on the University that obligation is to ‘seek’ to avoid forced redundancies
[2014] FWC 7711
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‘wherever possible’. Again it submits that there is no absolute obligation placed on the
University.
[37] The University says that its construction of clause 65 is consistent with the natural
meaning of the words, the circumstances of the negotiation of the clause and the workability
of the Agreement.
[38] The University says that the clause must be considered in context and the relevant
context is the text of the current Agreement. To this extent it is relevant that the clause is in
that part of the current Agreement dealing with the introduction of change, consultation,
relocation and redundancy.
[39] The University submits that any interpretation of the clause that leads to capricious or
unintended consequences should be avoided.
[40] In the context of the matter in dispute the University argues that to do as submitted by
the NTEU would require the University to ‘make concrete offers of voluntary separations,
even before it had determined to make employees redundant. In the financially challenging
environment confronting the University, a construction that puts significant impediments in
the way of the university commencing’ the redundancy process of the Agreement would result
in capricious or unreasonable consequences.19
The 2006 dispute and negotiations for the 2009 Agreement
[41] Clause 65 of the current Agreement must be considered in context of the Agreement as
a whole. Given that there has been no change in the provisions since the 2009 Agreement it is
reasonable to consider the context of the negotiations for the 2009 Agreement and the facts
and circumstances that were known to the parties at the time those negotiations took place.
[42] Clause 11 in the 2005 Agreement was subject to an industrial dispute resulting in an
arbitrated decision of the AIRC in 2006.20 That decision preceded negotiations for the 2009
Agreement. The words in the 2009 Agreement varied those of the 2005 Agreement and
shifted the placement of the clause from a section headed ‘Intent’ to the section headed
‘Introduction of Change, workplace consultation, relocation and redundancy’ section of the
2009 Agreement.
[43] In his decision in respect of the 2006 dispute SDP Kaufman said:
[39] In my view the university’s construction is to be preferred. Regard may be had to
headings to contextualize a particular provision. Clause 11, as its heading suggests,
deals with the intent of the agreement. It deals with several topics that are important to
the parties and sets out their aspirations in relation thereto. To the extent that clause
11.3 could be said to impose any obligations upon the university, it does so in relation
to the manner in which the university is to deal with redundancies under clauses 65
and 70. As I read clause 11, when acting under clause 65 or clause 70 the university is
required, where possible, to have regard to and pursue the matters set out in clause
11.3. To adopt the construction favoured by the union is to impose an unwarranted and
unrequired burden upon the university. On the NTEU’s construction the university
[2014] FWC 7711
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could not even contemplate major changes, as described in clause 65, before it had
gone through each and every option referred to in clause 11.3. Such a process is
clearly unworkable. The necessity for considering the clause 11.3 options does not
arise until it appears that a contemplated organizational change might have an impact
on the employment of academic staff. It is at that stage that clause 11.3 informs the
process that is to be undertaken under clause 65, or for that matter clause 70. There is
no warrant for reading into clause 11 a requirement that the options referred to in
clause 11.3 need to be explored before the university contemplates implementing
major change.
[footnote omitted]
[44] It is reasonable to conclude that the decision of the AIRC in 2006 had some bearing on
the position adopted by the NTEU in the negotiations for the 2009 Agreement. Such a
conclusion is supported by the evidence.
[45] In the lead up to the finalisation of the 2009 Agreement the NTEU received a letter
from the then Vice-Chancellor dated 2 March 2009 which said:
I am not able to agree to the “no forced redundancy” arrangements which the NTEU is
seeking to include in the new Agreement. However I give you my firm assurance that
targeted redundancies will be considered only as a last resort when all other options
have been exhausted.21
[46] It can be reasonably inferred from the correspondence that the NTEU sought to have
included in the 2009 Agreement a provision which would put an absolute bar on the ability of
the University to forcibly make any employee redundant. This was obviously not a position
acceptable to the University.
[47] On 3 March 2009 the then Vice-Chancellor sent a further letter to the NTEU. That
letter said, in part:
Thank you for your approach to the University to resolve outstanding issues that
would lead to the NTEU deferring its proposed strike action...
You have sought clarification around a number of issues in the draft Heads of
Agreement [the subject of the 2 March letter] and this letter responds to that request.
I am able to confirm:...
The University agrees to include the following words in the proposed Agreement:
“Targeted redundancies will be considered only as a last resort when all other
options have been exhausted”22
[48] Whilst these exact words are not replicated in the 2009 Agreement the sentiment they
reflect is clearly evident in clause 69 (and clause 65 of the current Agreement).
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[49] I am satisfied that the outcome of the correspondence between the University and the
NTEU following the decision in the 2006 dispute provides a framework within which the
final words in the 2009 Agreement were settled. The objective intention of the parties from
this framework is clear.
The University policy
[50] A policy document was promulgated by the University in January 2014, at the same
time as the making and approval by the Commission of the current Agreement. That
document further supports the submissions of the NTEU as to the operation of clause 65 of
the current Agreement.
[51] The NTEU submits that the PDF file containing the document downloaded from the
University website indicates that the document was created on 16 January 2014.23
[52] The policy document says:
Redundancy (as a result of major workplace change)
Step 1 - Job security and strategies to avoid forced redundancies (VU EA clause
65)
The Fair Work Act 2009, the Enterprise Agreement and University policy place a
significant onus on the University to avoid forced redundancies. Before proceeding
with redundancies, alternative strategies to avoid forced job losses must be pursued.
These alternative strategies include but are not limited to:
voluntary separations natural attrition retraining
redeployment leave without pay voluntary conversion to
part-time employment
long service leave fixed-term retirement
contracts
Once alternative strategies have been exhausted or deemed unsuitable, the University
reserves the right to adopt forced redundancies.24
[53] The existence of the Policy and its wording, and that it was developed and
promulgated by the University, supports the position put by the NTEU of a shared
understanding of the changes in the clause brought about by the negotiations for the 2009
Agreement.
[54] I am satisfied that the Policy document indicates that the provisions of clause 65 in the
current Agreement are more than merely aspirational in nature.
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The requirement in clause 65
[55] It is reasonable to have regard to the surrounding circumstances in the negotiation of
what became clause 65 in the current Agreement; in particular regard can be had to the 2006
dispute and the exchange of correspondence between the NTEU and the University in the lead
up to the 2009 Agreement. The letter of the Vice Chancellor of 3 March 2009 is highly
relevant. It evinces a shared understanding to use targeted redundancies only where all other
options have been exhausted. It makes clear the shared intentions of the parties in making the
2009 Agreement in respect to clause 69 (which became clause 65 in the current Agreement).
[56] The University policy recognises that the current Agreement places a ‘significant
onus’ on the University to avoid forced redundancies. It appears to accept that the clause is
more than ‘aspirational’ in nature and accepts that alternative strategies must be exhausted
prior to moving to forced redundancies. This is a University document. It does not support
what the University now says is the intent of clause 65 of the current Agreement.
[57] The provisions of clause 65 in the current Agreement must be read as a whole -
attempts to concentrate on the meaning of specific words in isolation of their context, and on
this basis find some alternative meaning of the clause, is not an acceptable approach to
interpretation.
[58] An interpretation of clause 65 of the current Agreement in the context of the
University’s ‘financially challenging environment’ is inappropriate and unhelpful. If the
current Agreement no longer meets the needs of the University there are means under the Act
by which the University can seek to have it varied. Reinterpreting the current Agreement to
accommodate the University’s changed circumstances is not the appropriate means by which
to determine the intent of the clause.
[59] An objective approach must be taken to the interpretation of the clause - the
University’s approach to the clause is subjective and should be avoided. This is not to say
there may not be merit in what the University has put to me in relation to its financial
situation, but the current Agreement cannot be considered a ‘fair weather’ agreement - to be
given one meaning when it suits the University and another when circumstances change.
[60] The paragraph reproduced above from the decision of SDP Kaufman indicates that he
put some weight on where the provision was placed in the 2005 Agreement as providing some
guidance as to interpretation. The contextualisation within the 2005 Agreement itself was of
some importance to him.
[61] I am satisfied that moving the provision to a ‘Job Security’ clause evinces an intention
that the clause should be more than aspirational in nature - it should impose some obligations
on the University in the context of major change.
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[62] I do not accept that the placement of the job security clause within the section of the
2009 Agreement dealing with introduction of change, consultation, relocation and redundancy
however should result in the obligation in 65.2 being read down to only require the University
to fulfil the obligations in the following clauses on redeployment, relocation and redundancy
and not the broader options set out in clause 65.2.
What is not in clause 65
[63] Clause 65 sets the framework as to how the University might achieve reductions in
staff numbers where this is necessary but, apart from the options offered, says little of how
this might be put into action.
[64] Nothing in clause 65 places any timeframe around how long the University should
pursue the identified options set out in clause 65.2 before it can be said that these are
‘exhausted’. This was not a matter subject to submissions and is perhaps a matter to be
addressed on a case by case basis.
[65] There is nothing in the clause that precludes the University from rejecting, for
example, a volunteer for separation or a request for conversion to part time employment.
Whilst clause 65.2 places some positive obligations on the University it does not place any
obligation on the University to accept a request for access to the options.
[66] There is also nothing in clause 65 which indicates how broadly the University must
call for voluntary separations, seek conversion to part-time employment etc. It does not make
sense that the University, in wishing to reduce the number of staff for example in its human
resources area would ask for volunteers for redundancy from its academic ranks.
[67] On any reasonable reading of the clause it would appear that it cannot become
operational before a change has been identified that will lead to a possible reduction in staff
numbers. Having identified the reduction (and therefore the aspiration in clause 65.1 cannot
be achieved) there are options to be pursued prior to any forced redundancies. For how long
these should be pursued or the breadth of such pursuit it seems are matters better resolved on
a case by case basis. Again this is not something on which there have been substantial
submissions made and is not a matter on which I intend to make any finding.
The matter in dispute
[68] The particular matter in dispute relates to the process by which the University
achieved a reduction in staffing numbers in Pool B. The NTEU submits that, in determining
who of the three employees would be appointed to the two remaining positions, the
University did not properly implement the requirements of clause 65 and, by this method
determined who would be made redundant. By the process adopted, the University forcibly
made an employee redundant.
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[69] The University says that it did explore all of the available options under clause 65.2 in
the context of the University seeking to retain particular skills. It requested the three
employees lodge an expression of interest in the two positions, resulting in two employees
receiving offers of employment and the third employee receiving a ‘voluntary separation
package’ in accordance with clause 65.2.
[70] I am not convinced that the University has met its obligations in respect of clause 65.2.
It is, in my view, disingenuous to suggest that, because one of the three employees received a
separation package the University met its obligations under clause 65.2. There is no evidence
that the University explored all options under clause 65.2. It may well have been that, had the
University explored the options in clause 65.2 with the affected staff, it would have resulted in
the same outcome. But this is not something that can be known.
[71] Ultimately the result of the process implemented by the University is that a person was
made redundant. This has occurred through a process which, at its very commencement (the
requirement to lodge an expression of interest for the positions and a selection process
occurring) left the person without a position. In the situation of the University where it is
going through a substantial reduction in staffing numbers the University effectively
determined who would be made redundant prior to determining if it could have achieved the
reduction in numbers through some other mechanism in clause 65.2.
Conclusion
[72] I accept that clause 65.1 of the current Agreement is aspirational in nature (the
University is to endeavour that there be no net reduction in jobs).
[73] Clause 65.2 however places a positive obligation on the University (the University will
pursue options...before forced redundancies) and clause 65.3 gives the University the right to
consider forced redundancies if all other options have been exhausted.
[74] I am satisfied that the approach adopted by the University in the Engagement,
International & Governance area, where, in the first instance in ‘Pool B’ it required three
employees to apply for two positions, was a mechanism by which it implemented a forced
redundancy program prior to exhausting the options required in clause 65.2.
[75] I will issue an order that requires the University to pursue the options in clause 65.2
prior to proceeding with forced redundancies. Whilst this will have little practical effect in
respect of ‘Pool B’ employees referenced above (I understand the third person has left the
University) this does not alter what the University should have done in that case. It may also
provide some guidance for the University in future.
[76] I decline to issue an order that requires the University in all circumstances to pursue
the options in clause 65.2 on a University wide basis as sought by the NTEU. I have not had
submissions or evidence led on this issue such that an order of this breadth could be
considered. As I have found, it seems to me that clause 65, whilst placing an obligation on the
University, is silent on how that obligation is to be achieved - on a University wide basis or
within an identified part of the University - and for how long such options must be pursued
before they can be said to be exhausted. This is perhaps a matter that needs to be addressed by
[2014] FWC 7711
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the parties. Given the situation the University now says it is in, this is perhaps a matter to be
addressed sooner rather than later.
COMMISSIONER
Appearances:
J. Cullinan of the NTEU.
C. O’Grady of Counsel with N. Ruskin of K&L Gates for the Respondent.
Hearing details:
2014.
Melbourne:
4 and 19 September.
Final written submissions:
Applicant: 12 September 2014.
Respondent: 17 September 2014
1 Exhibit VU4, paragraph 8.
2 Ibid, paragraph 9.
3 (2005) 222 CLR 241.
4 (1996) 66 IR 182.
5 Ibid, at 184.
6 (2005) 222 CLR 241, [30].
7 Ibid, [94], [96].
8 Ibid, [131].
9 (1982) 149 CLR 337.
10 Ibid, [22] - [24].
11 (2004) 219 CLR 165.
12 Ibid at 179 ,[40]
13 (1985) 157 CLR 309.
14 Ibid at 315.
15 PR973712 (SDP Kaufman, 23 August 2006).
16 Exhibit NTEU1, paragraphs 33-35.
17 Exhibit NTEU1, paragraph [26].
18 NTEU4, paragraph 31.
19 Exhibit VU4, paragraph 35.
20 PR973712 (SDP Kaufman, 23 August 2006).
21 Exhibit NTEU1, attachment PA-10.
THE FAIR WORK M$ COMMISSION SEAL OF THE F THE
[2014] FWC 7711
15
22 Exhibit NTEU1, attachment PA-11.
23 Exhibit NTEU3, paragraph 22.
24 Exhibit NTEU1, attachment PA-12.
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