1
Fair Work Act 2009
s.604—Appeal of decision
Monash University
v
National Tertiary Education Industry Union
(C2023/3720)
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER BISSETT
BRISBANE, 4 OCTOBER 2023
Appeal against decision [2023] FWC 1148 of Deputy President Bell at Melbourne on 7 June
2023 in matter number AG2022/4262.
[1] Monash University (the University) was established on 30 May 1958 under the since
repealed Monash University Act 1958 (Vic). Pursuant to s 4 of the Monash University Act 2009
(Vic) the University continues in existence and is a body politic and corporate. In September of
2022, the National Tertiary Education Industry Union (NTEU) commenced proceedings in the
Federal Court of Australia in which it alleged that the University had contravened s 50 of the
Fair Work Act 2009 (Cth) (Act), relevantly, by not paying casual Teaching Associates for
certain student consultation at the rate prescribed by clause 7 of Schedule 3 to the Monash
University Enterprise Agreement (Academic and Professional Staff) 2019 Agreement
(Agreement). In October of 2022 the University applied under s 217 of the Act to vary Schedule
3 to the Agreement to remove an ambiguity or uncertainty. The application was opposed by the
NTEU. On 17 November 2022, the Court (Snaden J) determined an interlocutory application
brought by the University by ordering that the NTEU initiated proceeding in the Court be stayed
until the Commission determines the University’s s 217 application.1 By a decision published
on 7 June 20232 Deputy President Bell dismissed the University’s s 217 application. The
University has applied for permission to appeal, and if granted appeals that decision.
[2] Schedule 3 of the Agreement deals with Teaching Associate sessional rates descriptors
and provides, for the purposes of payment of a tutorial or repeat tutorial rate (clause 1) and a
lecture or repeat lecture rate (clause 2), that “associated work” may encompass various
activities, including relevantly, “contemporaneous consultation with students involving face-
to-face and email consultation prior to and following a” tutorial (clause 1) or lecture (clause 2).
The University maintained that these provisions - specifically the phrase ‘contemporaneous
consultation’ - were ambiguous or uncertain and proposed variations which would have inserted
a sentence in the fourth dot point of clause 1 as follows:
“For the avoidance of doubt, “contemporaneous consultation” means
consultation associated with a tutorial that occurs proximate in time to the
[2023] FWCFB 181
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1148.pdf
[2023] FWCFB 181
2
tutorial, for example, within a week before or after the relevant tutorial but
prior to the next tutorial, and may be scheduled by either the Teaching
Associate or the University”.
[3] A sentence substantially to the same effect was to be added to the fourth dot point in
clause 2, save that the word “lecture” appears wherever “tutorial” is found in the sentence
above.
[4] Although the Deputy President found the provisions were ambiguous and uncertain (at
[87], [95], [104], [105]), he concluded that it was not appropriate to make the variation sought
by the University (at [166]).
[5] By its notice of appeal, the University sets forth four appeal grounds in which it
contends:
• First, in declining to exercise his discretion to remove ambiguity and uncertainty in
the Agreement, the Deputy President erred in finding that it was a mandatory
requirement that a “common intention” supportive of the proposed variation be
established before a variation could be made under s 217 of the Act;
• Second, the Deputy President impermissibly fettered his discretion by finding that
“common intention” was to be treated as a “significant” consideration in the exercise
of any discretion under s 217 of the Act;
• Third, the Deputy President misconceived how “common intention” is to be
ascertained, which resulted in his exercise of discretion miscarrying, including by:
o adopting the reasoning from jurisprudence concerning contract rectification,
holding that what is required to be established is “actual” or subjective mutual
intention (at [143]), as opposed to the objectively ascertained mutual intention;
o despite noting at [151] that the only material before him to discern mutual
intention was the Agreement, the prior industrial instruments, and some limited
material circulated during bargaining – the Deputy President failed to engage in
any considered reasoning of those materials in the Decision and the Agreement
itself;
• Fourth, the Deputy President took into account irrelevant or speculative
considerations in the exercise of his discretion, namely:
o potential for persons to be exposed to pecuniary penalties if a retrospective
amendment was made;
o what persons may have understood the provisions in question to mean after the
making of the Agreement;
o that substantial resolution of the disputed terms may be achieved through either
court determination or the bargaining process;
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o the variation sought was to have retrospective effect, meaning that it involved
“heightened considerations”.
[6] As we have already noted, the Deputy President determined that the Agreement was
both ambiguous and uncertain. The ambiguity and uncertainty identified by the Deputy
President arose in respect to whether a request or direction by the University to a Teaching
Associate to undertake student consultation precludes such consultation being “associated
work” and the temporal boundaries of the term “contemporaneous consultation”.3 These
conclusions are not challenged by the University nor by the NTEU, although the NTEU does
not concede the correctness of the conclusions.
[7] The issue in contention in this appeal is, in substance, whether the Deputy President’s
discretion miscarried in determining not to exercise the power under s 217 to vary the
Agreement in the terms proposed by the University, to remove the ambiguity and uncertainty
he identified. In so deciding, the Deputy President reasoned as follows.
[8] First, the Deputy President discussed the challenges in identifying any common
intention in respect of an enterprise agreement4 but concluded that in the instant case these need
not be resolved5 because the evidence did not establish a common intention concerning
Schedule 3 of the Agreement.6 The Deputy President noted that the University acknowledged
the evidence did not point to any meeting of the minds from the extrinsic material.7
[9] Second, the Deputy President accepted the University’s contention that the discretion
under s 217 of the Act is not confined by a requirement to give effect to a variation reflecting
the common intention of the persons who made the relevant enterprise agreement,8 thereby
rejecting the NTEU’s contention to the contrary.
[10] Third, the Deputy President found that evidence of common intention is relevant to the
question of whether the power in s 217 should be exercised which he noted the University also
accepted.9
[11] Fourth, the Deputy President concluded that the circumstances in which a variation
under s 217 would be made absent an established common intention are limited.10 This suggests
that the absence of an identified common intention in the instant case was given significant
weight.11
[12] Fifth, the Deputy President identified various considerations which, depending on the
circumstances of a particular matter, might bear on the question whether the variation power in
s 217 should be exercised.12 The non-exhaustive list of matters identified is set out below:
• The absence of an antecedent “common intention” or “substantive agreement”. The
Deputy President observed that the presence of this factor would ordinarily be a matter
of significant weight in favour of variation and, equally, its absence a significant factor
for refusal.
• The variation would not “give effect to a new and substantive change to the
agreement”.13 The Deputy President opined that this is a significant factor for refusal,
if not satisfied.
[2023] FWCFB 181
4
• The exercise of the power of variation granted by s 217 is only for the purpose of
removing “an ambiguity or uncertainty”.14 A variation extending beyond that required
to remove an ambiguity or uncertainty would be beyond the jurisdiction conferred by
s 217.
• The views of the employer and employees (and, for the latter, including the views
expressed on their behalf by an applicable union).15
• The utility of the amendments.16
• The stage of bargaining between the parties, where relevant.17 The Deputy President
considered that where an enterprise agreement has expired, it would be generally
preferrable for the parties to endeavour to reach an agreed position rather than having
the Commission determine a variation for the expired agreement.
• The timing of an application for variation, including delay.
• The specified date on which the variation is sought to be effective.
• The power under s 217 does not give rise to a general discretion to determine a matter
based on industrial fairness.18
[13] Sixth, the Deputy President determined that it was not appropriate, in all the
circumstances, to exercise discretion to vary the Agreement in the manner sought by the
University19 having earlier explained that:
• An enterprise agreement is not made by the Commission, and it represents an overall
bargain so that caution needs to be exercised against imposing changes to the bargain
expressed in that agreement;20
• The absence of any demonstrable common intention as to the operation of Schedule
3, risks any variation imposed by the Commission having the effect of improving (or
harming) the legal position of either the employees or employer unanchored by any
principled assessment of how those legal rights would or should be affected;21
• For the purposes of s 217, a variation needs to be anchored against a principled
assessment of the potential rights of those affected. By way of illustration, a reduction
in industrial disputation or greater certainty as to the operation of Schedule 3 could
also have been achieved by different variations that would confine any
contemporaneous consultation to a period of 1 hour from a tutorial (not 1 week as
proposed), and to further specify that the University was not permitted to schedule a
consultation time (which reflects the NTEU’s position). And, although the University
proposed variations are based on a genuine attempt to adopt a reasonable compromise,
that is not sufficient to support a variation under s 217;22
• There was no unreasonable barrier or difficulty in obtaining substantial resolution of
the disputed terms, either by court determination or through a bargaining process;23
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• The conclusions expressed conform with the requirement that the Commission’s
powers and functions must be exercised in a manner that is fair and just, promoting
harmonious and cooperative workplace relations; they take into account the object of
the Act and the objects of Part 2-4, and equity, good conscience and the merits of the
matter;24
[14] The Deputy President said that as the variations proposed would, on the University’s
application, operate retrospectively, this raises “heightened considerations”.25 One was that the
prospect of a retrospective variation resulting in a person being exposed to a pecuniary penalty
could not be ruled out.26 Another was the effect of the passage of time on new employees
following the commencement of the Agreement.27
[15] Before returning to the grounds of appeal it is necessary to say something about the Full
Federal Court judgment in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining
and Energy Union,28 considering some of the contentions advanced by the University. Both on
appeal and below,29 the University contends that Bianco Walling sets out a comprehensive
statement of principles concerning the proper construction and application of s 217 of the Act.
In so doing, the University argues that the Full Court described evidence of “common intention
and to the history” of the relevant clauses as permissible, but it did not say in its comprehensive
statement that the establishment of common intention was mandatory. The University says that
there is no support in Bianco Walling for the proposition that the exercise of discretion under s
217 is “strictly confined” to circumstances where common intention is established.
[16] These contentions by reference to Bianco Walling must be rejected. Bianco Walling was
not concerned with the principles applicable to the exercise of discretion under s 217 of the Act.
The judgment was in terms only concerned with the question of the proper approach to
determining whether there was ambiguity or uncertainty in an enterprise agreement. It is to be
remembered that the exercise of power under s 217 involves determining two discrete issues or
questions. First, whether there is ambiguity or uncertainty in the enterprise agreement under
consideration which by variation to the agreement could be removed. If so, then secondly,
whether to exercise the power to remove the ambiguity or uncertainty by varying the enterprise
agreement.30 The existence of ambiguity or uncertainty is a necessary precondition or
jurisdictional fact, the existence of which must be found before the power to vary is
exercisable.31
[17] The Full Court held in Bianco Walling that the Deputy President at first instance, erred
because identifying whether there is ambiguity or uncertainty for the purposes of s 217 of the
Act did not require the enterprise agreement to be construed and there was no need for the
Commission to feel constrained in the matters to which it may have regard by the principles
developed for the interpretation of enterprise agreements.32 The Full Court also held that the
decision of the Full Bench was affected by jurisdictional error because it too had misconceived
the task required under s 217, noting that the Commission was not required to “properly
construe” an enterprise agreement before determining whether there was ambiguity or
uncertainty,33 and the function under s 217 attracted the application of s 578 and did not require
the application of the rules of evidence.34 Accordingly the Full Bench did not address the
question required for its determination of the appeal which affected the discharge of the
appellate function.35
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[18] Bianco Walling did not deal with and so says nothing about the principles to be applied
by the Commission when deciding whether to vary an agreement that has been found to be
ambiguous or uncertain. The Full Court’s observation that the function under s 217 Act attracted
the application of s 578, although a timely reminder is not new, nor specific to s 217. Section
578 mandates that the Commission take account of the enumerated matters in performing its
functions and exercising its powers under the Act. Bianco Walling cannot therefore be regarded
as setting out a comprehensive statement of principles concerning the proper construction and
application of s 217 of the Act, concerned as it was with the first but not the second issue we
noted earlier.
[19] To the extent that the Full Court in Bianco Walling ventured into the second issue it did
so only to note that s 578 has application, and that the constraint to which the Deputy President
erroneously felt he was subject had the potential to be material in another way, namely:
In relation to s 170MD(6) of the WR Act, the AIRC held that a “significant
factor” for the Commission’s consideration in determining whether to exercise
its discretion to vary an enterprise agreement is “the objectively ascertained
mutual intention of the parties at the time the agreement was made”: Re
Australian and International Pilots Association at [17] (Watson VP).36
[20] We return to the appeal grounds. By ground 1, the University contends that the Deputy
President erred in finding that it was a mandatory requirement that a “common intention”
supportive of the proposed variation be established before a variation could be made under s
217 of the Act. This ground must immediately fail as it is plain the Deputy President did not so
find. To the contrary, the Deputy President accepted the University’s submission that mutual or
common intention could be a factor to consider and, where appropriate, a significant factor, but
it was not a mandatory matter as better reflecting the position under s 217 of the Act.37 He
posited some circumstances, by way of example, when it might be appropriate to vary the
enterprise agreement, absent an established common intention.38 But the Deputy President
formed the view that the discretion to vary an enterprise agreement under s 217 is not largely
unfettered and the relevance of an antecedent common intention is significant.39 The Deputy
President opined that although he was “prepared to accept that the discretion in s 217 is not
strictly confined by a requirement that any variation be supported by an established prior
common understanding, the circumstances are limited.”40 For our part, this is consistent with
the view expressed in Re Australian and International Pilots Association41 in relation to a
predecessor provision to s 217, that a “significant factor” in determining whether to exercise
the discretion to vary an enterprise agreement to remove ambiguity or uncertainty is “the
objectively ascertained mutual intention of the parties at the time the agreement was made”,42
a view we endorse.
[21] To the extent that the University suggested that despite the Deputy President’s express
acceptance of its submission that common intention was not a mandatory factor in s 217
applications the Deputy President nevertheless so held at [153] of the decision, we reject the
suggestion for the reasons we express below in dealing with ground 2.
[22] Ground 1 of the notice of appeal therefore fails.
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[23] By ground 2, the University contends that the Deputy President erred by impermissibly
fettering his discretion by concluding that evidence of common intention was a ‘significant’
consideration in the exercise of discretion under s 217 of the Act. The University argues that
the Deputy President erroneously elevates common intention to a mandatory weighting of
“significant” and so it was determinative in his reason to refuse to exercise his discretion. The
University says:
• That the imposition of a “strictly confined” requirement is not supported by the text
of the Act, or authority, and is in error;
• Bianco Walling, described evidence of “common intention and to the history” of the
relevant clauses as permissible, but the Full Court did not say “in its comprehensive
statement” that the establishment of common intention was mandatory;
• There is no support in Bianco Walling for the proposition that the exercise of discretion
under s 217 is “strictly confined” to circumstances where common intention is
established;
• The Deputy President was led into error in not acting on the guidance provided by the
President of the Commission as to the status and effect of Bianco Walling by accepting
the NTEU’s submission that the President’s observations as to Bianco Walling were
not correct.
[24] These contentions are rejected. First, it seems clear that the Deputy President’s reference
to “common intention” is used to capture “mutual intention”, “common understanding” and
“substantive agreement”, which are used synonymously in various authorities to discuss the
same notion.43 The Commission has discretion under s 217 to “remove ambiguity or
uncertainty”, but the exercise of power is not to give effect to a new and substantive change to
an enterprise agreement the subject of an application. And a decision to remove uncertainty or
ambiguity should give effect to the “substantive agreement” that was ambiguously or
uncertainly reduced to writing in the terms of the enterprise agreement.44 Enterprise agreements
are “made” under the Act in several ways. A greenfields agreement is made by industrial parties
(employer(s) and union(s)) when each industrial party expressed to be covered by the agreement
has signed it (s 182(3)), or if notice of a notification period has been given and other
preconditions are met, an agreement is taken to be made between the industrial parties when
the application to approve the agreement is made to the Commission (s 182(4)). A single
enterprise agreement is made when a majority of employees that will be covered by the
proposed agreement cast a valid vote to approve the agreement (s 182(1)). A multi-enterprise
agreement is made when a majority of employees to be covered by the agreement of at least
one of the employers who will be covered by the agreement cast a valid vote to approve the
agreement (s 182(2)). The variable ways in which enterprise agreements are made and the
absence of “parties” to such agreements, explains the Deputy President’s discussion of the
particular difficulties that the concept of mutual or common intention brings to an enterprise
agreement made under Part 2-4 of the Act. The way in which enterprise agreements are “made”
and the absence of traditional parties, all of which is a product of the statute, informs the
significance ascribed to mutual intention, or put another way, to identifying what is the
“substantive agreement” that was “made”, and provides a statutory context for the exercise of
the discretion under s 217.
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[25] Second, the Deputy President’s observation that common intention was a ‘significant’
consideration in the exercise of discretion under s 217 of the Act, was entirely consistent with
the authorities. It is to be recalled that the Deputy President did not accept the NTEU’s primary
submission that discretion under s 217 can only be exercised to give effect to a variation that
reflects the common intention of the persons who made the relevant enterprise agreement. The
rejection of that contention is consistent with previous decisions of the Commission identifying
common intention as one of the matters to which the Commission should have regard.45 Indeed
that mutual or common intention could be a factor to consider and, where appropriate, a
significant factor in the exercise of the discretion, was a matter the University accepted as the
Deputy President noted at [119] of his decision.
[26] Expressing that common intention was a ‘significant’ consideration is saying no more
than that the Deputy President gave the absence of common intention significant weight in the
circumstances. That common intention may be given significant weight is, as we have already
noted, consistent with what is said at [17] of Re Australian and International Pilots
Association,46which bears repeating:
The discretion of the Commission in the case of an ambiguity or uncertainty
involves two questions. First, is it appropriate to vary the agreement? If so then
secondly, what variations are appropriate? Similar considerations will often be
relevant to both questions and hence the two questions frequently overlap. It is
well established that a significant factor is the objectively ascertained mutual
intention of the parties at the time the agreement was made [citing Re Tenix
Defence Systems Pty Ltd Certified Agreement 2001-2004 [2002] AIRC 531].
It is not appropriate to rewrite an agreement or install something that was not
inherent to the agreement when it was made [citing Construction, Forestry,
Mining and Energy Union v Linfox Transport (Australia) Pty Ltd]. These
principles reflect the notion that an agreement is made by the parties usually
without any arbitrated content or independently determined standards of
industrial fairness. The exercise of the discretion conferred on the Commission
in relation to an ambiguity or uncertainty does not give rise to a general
discretion to determine a matter based on industrial fairness [citing Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union v Qantas
Airways Ltd (2001) 106 IR 307]. The task is to place the parties in the position
they intended by their agreement - insofar as the wording of the agreement does
not reflect that intention. Although a significant factor, the objectively
ascertained mutual intention of the parties is not the only consideration.
However it would be unusual for other considerations to weigh in favour of a
variation that was inconsistent with the intention of the parties [citing
Community and Public Sector Union v Telstra Corporation Ltd (2005) 139 IR
141]. [Underlining added].
[27] These observations also accord with the much more recent decision of a Full Bench of
the Commission in Construction, Forestry, Maritime, Mining and Energy Union & Ors v
Specialist People Pty Ltd47 which said:
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[42] Once ambiguity or uncertainty has been identified, the Commission must
then consider whether to exercise its discretion to vary the agreement. The
Commission has discretion to “remove ambiguity or uncertainty”, not to give
effect to a new and substantive change to the agreement. Applications that seek
the latter must be made under s 210 of the FW Act. A decision of the
Commission under s 217 to remove uncertainty or ambiguity should give effect
to the substantive agreement that was ambiguously or uncertainly reduced to
writing in the terms of the enterprise agreement.48 [Underlining added]
[28] Therefore, the Deputy President’s conclusion that common intention was a significant
consideration in the exercise of his discretion to vary the Agreement to remove the identified
ambiguity and uncertainty, and his observation that the circumstances in which the Commission
would exercise discretion without evidence of mutual intention are “limited”, finds support in
the authorities and is entirely orthodox.
[29] Third, for the reasons we have already stated, save for its reminder as to the effect of s
578 of the Act and the observation at [69] of Bianco Walling, which appears to endorse [17] of
Re Australian and International Pilots Association, the Full Court did not venture into the realm
of setting out the principles that may be applicable to the exercise of the Commission’s
discretion to vary an enterprise agreement once ambiguity or uncertainty had been established.
[30] Fourth, it is wrong to suggest, as the University does, that the President of the
Commission provided guidance as to the status and effect of Bianco Walling in Monash
University v National Tertiary Education Industry Union.49 The proceeding before the President
was in the nature of an interlocutory proceeding in which the President determined an NTEU
application for the s 217 application to be referred to a Full Bench of the Commission pursuant
to s 615 of the Act. Whether Bianco Walling determined how the Commission is to exercise its
discretion to vary an agreement under s 217 of the Act was not debated. Moreover, it is
important to note that in accepting the University’s contention that “the principles concerning
the proper construction and application of s 217 were comprehensively stated” in Bianco
Walling, the President added that this was undertaken “in part by reference to previous decisions
of this Commission and its predecessor tribunal”.50 And for the reasons we have already stated
the judgment in Bianco Walling is to be understood by reference to its terms, which on our
reading do not descend into a dissertation of the principles applicable to the exercise of the
Commission’s discretion to vary an enterprise agreement under s 217 once ambiguity or
uncertainty has been established.
[31] Ground 2 of the notice of appeal therefore fails.
[32] By ground 3 of the notice of appeal, the University contends, in substance, that the
Deputy President’s discretion miscarried because he misconceived how “common intention” is
to be ascertained. The University contends that the Deputy President adopted reasoning from
jurisprudence concerning contract rectification and determined that that which must be
established is “actual” or subjective mutual intention (at [143]), as opposed to the objectively
ascertained mutual intention. The University also contends that the Deputy President failed to
engage in any considered reasoning of the extrinsic materials and the Agreement to ascertain
whether objectively a mutual intention could be found. We reject these contentions.
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[33] First, the Deputy President concluded at [141]-[143] that a search for an ‘objectively
determined’ common intention is a search for ‘actual mutual intention’ assessed by reference to
objective evidence “in the sense that [a court] does not merely accept what a party says was in
his or her mind, but instead considers and weighs admissible evidence probative of intention”.51
In describing this as a way to ascertain common intention in relation to an enterprise agreement,
the Deputy President was correct. Contrary to the University’s contention, on our reading of the
decision, the Deputy President did not find that that which must be established is actual or
subjective mutual intention, rather than objectively ascertained mutual intention. The Deputy
President’s reference to ‘actual intention’ is not to a subjective intention but rather to objectively
identified actual mutual intention. So much is clear from [143] of the decision where the Deputy
President says that he “would approach that task ‘in the sense’ described by Kiefel J above,
namely as a search for actual mutual intention through a prism of considering and weighing the
admissible evidence probative of actual intention”.
[34] At [144] of the decision the Deputy President acknowledges that a common intention
may be objectively identified by engaging with the terms of an enterprise agreement and at
[145] he notes that whichever approach is adopted, common intention in the context of an
enterprise agreement is not lightly found. At [151] of the decision the Deputy President records
that the University acknowledged the evidence did not point to any meeting of minds.52
[35] Second, it is true that the Deputy President did not engage with the Agreement’s terms
to ascertain a mutual or common intention, but in the circumstances we identify below, he
cannot be criticised for not so doing.
[36] Neither the NTEU nor the University contended below that common intention could be
found or identified from the words of the Agreement. Although the University in its submissions
below undertook a textual analysis of the Agreement and some extrinsic material,53 it is
palpably clear from those submissions that the University’s textual analysis was undertaken for
the purposes of establishing the existence of ambiguity or uncertainty.54 It was not undertaken
for the purposes of establishing the existence of a common intention to guide the exercise of
the discretion to vary the Agreement. This also is unremarkable since it is to be remembered
that the University argued below that once the jurisdictional prerequisite of ambiguity or
uncertainty is established the Commission’s “unfettered” discretion is enlivened,55 and the
University proposed its variations as striking a “reasonable balance”56 rather than as reflecting
the substantive agreement earlier made.
[37] During oral argument before the Deputy President, the University averted to the fact
that common intention may be discerned through a textual analysis of the Agreement57 but
ultimately submitted that the variation for which it contended was advanced on the basis that it
was a reasonable balance to be struck rather than reflecting a common intention. So much is
clear from the following exchange:
PN346 MR BOURKE: We say, once you get to that, in terms of equity
good conscience, we have struck the appropriate balance in clarifying the
construction issues that are in dispute and coming up with, we would say, a
common senses industrial outcome to try and make the clause workable and
reduce or avoid disputation in the future.
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PN347 THE DEPUTY PRESIDENT: It could be workable if not within
a week, it could be within an hour. I’m guess one thing that I’m a little bit
cautious about is that there’s potentially other ways that things could be made
to work. They would work by giving clarity and reducing industrial
disharmony, but they can do so in a way that’s adverse to a party.
PN348 MR BOURKE: There’s consequences of the creation, no doubt.
But, in our submission, there invariably will be, that’s why this application is
opposed. That’s not a reason for the discretion not to be exercised.
PN349 But can we come back to the example of whether it should be
an hour either side? As we read the NTEU’s submissions, they don’t put any
temporal hold, it’s just before or after. They don’t say with any particular time.
As we’ve said, it could be the whole semester. Well, we’ve chosen what we say
is a practical common sense outcome, ‘Let’s make it a week either side’,
everybody knows where they stand.
PN350 One hour, in our submission, that is going to effectively be ripe
for abuse, because everyone’s going to make sure they don’t consult with
students within an hour of a tutorial. It’s contrary to the notion that there might
be email exchange, and it makes it difficult where someone has back-to-back
tutorials, effectively ruling out any consultation being associated work.
PN351 So, in our submission, the one hour is too strict. Reading the
statement of claim and the NTEU’s submission, I don’t think they’re even
pushing for that type of strict, immediate approach. As I said, I don’t think
they’re using the word ‘immediate’ anymore and ‘immediate’ is not used in the
language.
PN352 So, in our submission a week is a reasonable balance where the
tutorial, for example, the lecture is fresh in the teaching associate’s mind, the
student’s mind and issues come up and need to be resolved, whether by way of
scheduled consultation or not scheduled consultation, that’s beside the point.
PN353 THE DEPUTY PRESIDENT: Just on that, the proposition that
a week is a reasonable balance reflects - well, the proposition that I should
exercise a discretion to make it a week and clarify that it be scheduled by either
the university or teaching associates, is put on the basis that it’s a reasonable
balance, rather than there’s a common intention that I can divine and - - -
PN354 MR BOURKE: Correct.
PN355 THE DEPUTY PRESIDENT: I understand.
PN356 MR BOURKE: We can’t, straight faced, go, ‘On a proper
construction it’s one week’. It’s some reasonable amount and we could have
cases where you have to look at all the circumstances, maybe in certain
circumstances two weeks, or it could be on all semester. But weighing up your
discretion, exercising industrial common sense, equity, good conscience, put
[2023] FWCFB 181
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some boundaries around it because otherwise it’s just going to be more
disputation and the current disputation won’t go away.58
[38] The University did not contend below that its proposed variation would give effect to
an identified common intention found by reference to a textual analysis of the Agreement, much
less did it explain how, on a textual analysis, a common intention consistent with its proposed
variation could be found.
[39] Therefore, although we accept that a common intention may be identified by a textual
analysis of an enterprise agreement, any failure by the Deputy President to undertake such an
analysis in the circumstances described above does not sound in error. Proceedings under s 217
of the Act, unlike corresponding proceedings to remove ambiguity or uncertainty from a
modern award, may not be initiated on the Commission’s own motion. A s 217 application may
only be made by a person or body covered by the enterprise agreement. The University is
covered by the Agreement. It made an application under s 217 and advanced a case in support
of its contention that the Agreement contained ambiguity or uncertainty, which ought be
removed in the manner proposed by the University. It was no part of the University’s case that
common intention consistent with its proposed variation could be discerned from a textual
analysis of the Agreement. Nor did the University suggest that a common intention could be
identified at all. The Deputy President decided the case the University advanced. He did not
decide a case the University now, with the benefit of hindsight, thinks it ought to have advanced.
And he cannot be justifiably criticised for not doing so. Much less is appealable error
established in the result.
[40] Consequently, appeal ground 3 of the notice of appeal fails.
[41] By its final ground of appeal, the University contends that the Deputy President took
into account irrelevant or speculative considerations in the exercise of his discretion.
Specifically, the University argues that the Deputy President erroneously took into account the
potential for persons to be exposed to pecuniary penalties; what persons may have understood
the provisions in question to mean after the making of the Agreement; that substantial resolution
of the disputed terms may be achieved through either court determination or the bargaining
process; and that as the variations sought were to have retrospective effect, this involved
“heightened considerations”. The University says that these considerations are irrelevant for the
following reasons:
• As to the first consideration, because the potential for the imposition of a pecuniary
penalty is speculative and would arise in all applications for a retrospective variation,
the potential is in any event unlikely to eventuate given the nature of the proposed
variation and the fact that a contravention occurred in effect because of a retrospective
variation is a matter that would support a contention before a court that there be no
penalty, or a nominal penalty be imposed;
• As to the second, because it is speculative and does not advance matters;
• As to the third, because it ignores the observations of Snaden J that the Commission
is the specialist tribunal to determine the issues in this dispute when staying the Federal
Court proceeding between these parties until the s 217 application was heard and
determined;
[2023] FWCFB 181
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• As to the fourth, because s 217 expressly authorises the Commission to determine
when the date any variation is to take place and there is no added impediment imposed
by the legislation for a retrospective variation.
[42] Apart from the requirement that there be identified an ambiguity or uncertainty in an
enterprise agreement, the discretion thereafter exercisable is not conditioned by any mandatory
considerations. But that does not mean it is unfettered. Account must be taken of the object or
statutory purpose of s 217, the objects of the Act and of Part 2-4, and the manner in which the
Commission’s functions and powers are to be exercised. Moreover, a matter taken into account
must be relevant to the exercise of discretion. A matter will be relevant if it is rationally capable
of bearing on the Commission’s determination about whether to vary an enterprise agreement.
Subject to the caveat that the Deputy President is not free to ascribe undue or excessive weight
to a matter of no great moment or to ascribe no or minimal weight to a highly relevant matter,
the Deputy President is free to decide how much weight to give those matters he has assessed
as relevant.
[43] We do not accept that the matters raised by the University under this ground disclose
error. Firstly it is clear that the Deputy President refused to exercise his discretion to vary the
Agreement because of the absence of any demonstrable common intention as to the operation
of Schedule 3, and so any variation would risk having the effect of improving or diminishing
the legal position of either the employees covered by the Agreement or the University, and that
this would occur without any principal assessment of how those legal rights would or should
be affected (at [159]). Moreover, although the Deputy President accepted that the University
had proffered variations based on a genuine attempt to adopt a reasonable compromise, he did
not consider that this was sufficient to support the variations ([160]). Finally, the Deputy
President did not consider that there was any unreasonable barrier or difficulty in obtaining
substantial resolution of the disputed terms either by court determination or through the
bargaining process ([161]). At [162] the Deputy President opined that these conclusions were
consistent with the requirement that the Commission exercise its power in a manner that is fair
and just, promoting harmonious and cooperative workplace relations (s 577(1)(a) and (d)), take
into account the objects of the Act, Part 2-4, and equity, good conscience and the merits of the
matter (s 578(a) and (b)). Each consideration summarised above was relevant as each was
rationally capable of bearing on the Deputy President’s determination whether to vary the
Agreement.
[44] The matters about which the University complains in the first, second and fourth
impugned considerations, were taken into account only for the purposes of assessing whether a
variation if made, should operate retrospectively. The “heightened considerations” are said by
the Deputy President to arise when (as in the instant case) a retrospective variation is sought.
So much is clear from [163] of the decision and that which follows at [164]–[165]. We agree
with the NTEU that these matters can only give rise to error if the University first establishes
that the decision not to vary the Agreement at all was affected by error. This it has not done.
[45] In any event we do not consider the first, second and fourth impugned considerations to
be irrelevant. The Deputy President explained that, where a variation was to be retrospective,
there were “heightened considerations” - the fourth consideration about which the University
complains. In our view, the Deputy President intended to convey no more than that in
[2023] FWCFB 181
14
applications seeking a retrospective variation, additional considerations may arise. The use of
the word “heightened” merely conveys that in a variation operating prospectively, the
considerations do not arise. Here, the Deputy President’s observation is plainly correct and no
appealable error is disclosed. The heightened or additional considerations the Deputy President
identified were the statutory effect of a breach of an enterprise agreement (at [164]) – the first
consideration about which the University complains - and the effect of a variation on new
employees who were not among the cohort of people who “made” the Agreement (at [165]) -
the second consideration about which the University complains.
[46] The Deputy President’s observations that a retrospective variation to an enterprise
agreement may expose those who are covered by it to civil penalties for failure to comply with
it and that he could not rule out that a person might be so exposed if he made the variations
proposed by the University are frankly unremarkable. Both are accurate in the circumstances
of this case, and both were relevant. We do not accept, as the University contends, that the risk
to civil penalty exposure would arise in every case involving a retrospective variation. A
retrospective variation of a term of an enterprise agreement which accorded with an existing
practice in the workplace in relation to that term would have the opposite effect and the
consideration would likely not be relevant. But here the risk could not be ruled out, and so was
relevant. Moreover, the consideration involves no more speculation than the University’s
contention that the Court may take into account that a contravention occurred in effect because
of a retrospective variation in assessing penalty. But in any event that a court may do so does
not render irrelevant the legal effect of a retrospective variation identified.
[47] Further, the Deputy President, in our view, correctly identified that a retrospective
variation would affect both those who made the Agreement, and those who became covered by
it after it was made. Taking into account the position of the latter group, and the impact on that
group of the passage of time, was rationally capable of bearing on the Commission’s
determination about whether to vary the Agreement retrospectively. Moreover, as the NTEU
correctly points out, this last consideration is prefaced in the Deputy President’s decision by the
qualifying words that “even if a common intention could be established”,59 and since it could
not, the consideration does not properly form part of the Deputy President’s reasons for not
exercising his discretion to vary the Agreement.
[48] For these reasons, appeal ground 4 also fails.
[49] We are persuaded that the notice of appeal raises important questions about the exercise
of the discretion to vary an enterprise agreement under s 217 of the Act once an ambiguity or
uncertainty has been established. For this reason, we consider that it is appropriate to grant
permission to appeal. However, as is evident from our discussion above, the decision is not
attended by any appealable error for which the University contends and so the appeal will be
dismissed.
Order
[50] We order as follows:
1. Permission to appeal is granted.
2. The appeal in C2023/3720 is dismissed.
[2023] FWCFB 181
15
VICE PRESIDENT
Appearances:
J Bourke KC with A Denton of counsel for Monash University.
S Kelly of counsel for the NTEU.
Hearing details:
2023.
Melbourne:
August 22.
Final written submissions:
Monash University: 20 July 2023
NTEU: 10 August 2023
Printed by authority of the Commonwealth Government Printer
PR766788
1 National Tertiary Education Union v Monash University [2022] FCA 1368
2 Re Monash University [2023] FWC 1148
3 Re Monash University [2023] FWC 1148 at [80], [87], [95], [104], [105], and [166]
4 Re Monash University [2023] FWC 1148 at [121]-[149]
5 Re Monash University [2023] FWC 1148 at [150]
6 Re Monash University [2023] FWC 1148 at [150]
7 Re Monash University [2023] FWC 1148 at [151]
8 Re Monash University [2023] FWC 1148 at [119], [153]
9 Re Monash University [2023] FWC 1148 at [119]
10 Re Monash University [2023] FWC 1148 at [153]
AL OF THE FAIR WORY COMMISSION THE S
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16
11 See also Re Monash University [2023] FWC 1148 at [155] where the Deputy President observes that the presence of an
antecedent “common intention” or “substantive agreement” would ordinarily be a matter of significant weight in favour of
variation and, equally, its absence a significant factor for refusal
12 Re Monash University [2023] FWC 1148 at [155]
13 Citing Construction, Forestry, Maritime, Mining and Energy Union & Ors v Specialist People Pty Ltd [2019] FWCFB
6307 at [42]
14 Citing Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; 275 FCR
385 at [3]; Construction, Forestry, Maritime, Mining and Energy Union & Ors v Specialist People Pty Ltd at [42] and [50]
15 Citing The Hon. Christian Porter MP, Attorney General and Minister for Industrial Relations v Metropolitan Fire and
Emergency Services Board; United Firefighters' Union of Australia [2019] FWCFB 6255 at [58](3); Re Australian and
International Pilots Association (2007) 162 IR 121 at [17]; Re Energy Safe Victoria [2020] FWCA 6718 at [9]
16 Citing Construction, Forestry, Maritime, Mining and Energy Union & Ors v Specialist People Pty Ltd [2019] FWCFB
6307 at [50]
17 Citing Re Australian and International Pilots Association (2007) 162 IR 121 at [35]
18 Citing Re Australian and International Pilots Association (2007) 162 IR 121 at [17]
19 Re Monash University [2023] FWC 1148 at [166]
20 Re Monash University [2023] FWC 1148 at [156]
21 Re Monash University [2023] FWC 1148 at [159]
22 Re Monash University [2023] FWC 1148 at [160]
23 Re Monash University [2023] FWC 1148 at [161]
24 Re Monash University [2023] FWC 1148 at [162]
25 Re Monash University [2023] FWC 1148 at [163]
26 Re Monash University [2023] FWC 1148 at [164]
27 Re Monash University [2023] FWC 1148 at [165]
28 [2020] FCAFC 50; 275 FCR 385
29 Appellant’s outline of submissions, 20 July 2023 at [9]-[10]; Appeal Book (AB)332-333
30 For example, see Re Australian and International Pilots Association [2007] AIRC 303; (2007) 162 IR 121 at [16]-[17]
31 See CoInvest Ltd v Visionstream Pty Ltd (2004) 134 IR 43 at [46]
32 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; 275 FCR 385 at
[67]-[68]
33 Ibid at [96]-[97]
34 Ibid at [115]
35 Ibid at [116]
36 Ibid at [69]
37 Re Monash University [2023] FWC 1148 at [119]
38 Re Monash University [2023] FWC 1148 at [125]-[126]
39 Re Monash University [2023] FWC 1148 at [127]
40 Re Monash University [2023] FWC 1148 at [153]
41 [2007] AIRC 303; (2007) 162 IR 121
42 Ibid at [17]
43 Re Monash University [2023] FWC 1148 at [119]
44 Construction, Forestry, Maritime, Mining and Energy Union v Specialist People Pty Ltd [2019] FWCFB 6307 at [41]
45 See Re Australian and International Pilots Association [2007] AIRC 303; (2007) 162 IR 121 at [17]; Application by
Bradnam’s Windows and Doors Pty Ltd [2019] FWCA 979 at [11]; Construction, Forestry, Maritime, Mining and Energy
Union & Ors v Specialist People Pty Ltd [2019] FWCFB 6307 at [42]
46 [2007] AIRC 303; (2007) 162 IR 121
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17
47 [2019] FWCFB 6307
48 Ibid at [42]
49 [2023] FWC 611
50 Ibid at [11]
51 Simic v New South Wales Land and Housing Corporation & ors (2016) 260 CLR 85 at [42]
52 See also AB63-64, PN245
53 AB334-AB341
54 AB341-AB345
55 AB345 at [58]
56 AB74-AB76
57 AB63-AB64 at PN241, PN245; AB74 at PN345
58 AB74-AB76
59 Re Monash University [2023] FWC 1148 at [165]
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