[2014] FWCA 1133
Due to an administrative error the attached document replaces the document previously issued with the code [2014] FWC 936 on 13 February 2014.
The following changes have been made:
● The code [2014] FWC 936 and print PR547543 have been replaced with code [2014] FWCA 1133 and print number PR547810.
● The second paragraph that was unnumbered has been numbered. Every paragraph after [2] has been renumbered to accommodate this amendment.
No changes have been made to the wording of the Decision and attached Agreement.
Michelle Reynolds
Associate to Commissioner Bissett
Dated: 14 February 2014.
[2014] FWCA 1133 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
The University of Melbourne
(AG2013/12869)
UNIVERSITY OF MELBOURNE ENTERPRISE AGREEMENT 2013
Educational services | |
COMMISSIONER BISSETT |
MELBOURNE, 13 FEBRUARY 2014 |
Application for approval of The University of Melbourne Enterprise Agreement 2013.
[1] An application has been made for approval of an enterprise agreement known as the University of Melbourne Enterprise Agreement 2013 (the 2013 agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was made by The University of Melbourne (the University). The 2013 agreement is a single-enterprise agreement.
[2] The National Tertiary Education Industry Union (NTEU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), CPSU, the Community and Public Sector Union, Construction, Forestry, Mining and Energy Union (CFMEU), and United Voice (collectively ‘the unions’) are bargaining representatives for the 2013 agreement.
[3] To address issues raised by the unions and concerns I had with the approval of the 2013 agreement, approval of the 2013 agreement was subject to a hearing and detailed submissions of the University and the unions.
Flexibility provisions
[4] The 2013 agreement covers all employees of the university with staff classified as ‘academic’ or ‘professional’ staff.
[5] Section 202 of the Act states:
202 Enterprise agreements to include a flexibility term etc.
Flexibility term must be included in an enterprise agreement
(1) An enterprise agreement must include a term (a flexibility term) that:
(a) enables an employee and his or her employer to agree to an arrangement (an individual flexibility arrangement) varying the effect of the agreement in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer; and
(b) complies with section 203.
[6] Section 202(1)(a) suggests that the flexibility term must enable each employee to reach an agreement with their employer.
[7] Clause 9 of the 2013 agreement deals with the flexibility term:
9. INDIVIDUAL FLEXIBILITY ARRANGEMENTS
9.1 This clause constitutes the flexibility term referred to in section 202 of the Fair Work Act.
9.2 The University and a staff member covered by this Agreement may agree to make an individual flexibility arrangement to vary the effect of terms of this Agreement if:
(a) the arrangement deals with structuring a pattern of working hours (within the span of hours in this Agreement) to enable professional staff members to work on a full-time or fractional seasonal basis for a portion of a year receiving salary payments averaged across the whole year. Provided that the staff member will be eligible for overtime in the same manner as other staff in respect of any hours worked outside the agreed ordinary hours specified in the arrangement;
[underlining added]
[8] The agreement clause does not allow any employee of the University to make an individual flexibility arrangement as the only matter that can be subject to such an arrangement pertains to the working times for professional staff. An academic staff cannot make such an arrangement.
[9] The 2013 agreement therefore does not contain a flexibility term as required by the Act. It is therefore necessary that the model flexibility term be taken to be a term of the 2013 agreement but only in respect of academic employees.
[10] The model flexibility clause will be taken to be a term of the 2013 agreement in relation to academic staff.
Discriminatory terms
[11] The 2013 agreement provides the following with respect to parental leave for employees of the university:
● A woman who gives birth to a living child is entitled to a period of up to 52 weeks maternity leave, some of which, depending on length of service, is paid (clause 67.2) (maternity leave);
● A person who adopts or has a child placed permanently with them is entitled to adoption and permanent care leave, some of which is paid depending on the age of the child and the length of service of the employee (clause 67.6) (adoption and permanent care leave);
● The partner of a person taking maternity or adoption and permanent care leave is entitled to 52 weeks partner leave where that person is to be the primary care-giver of the child (clause 67.3);
● A staff member who takes maternity or adoption and permanent care leave is entitled to a return to work bonus as long as the person has completed 12 months continuous service at the time the leave is to begin (clause 67.20).
[12] The NTEU says, in its Form F18, that clause 67.20 is discriminatory primarily because the partner of a woman who takes maternity leave who becomes the primary care-giver of the child under clause 67.3 is not entitled to the return to work bonus. This position is supported by the ASU, CPSU, CEPU and CFMEU.
[13] For the purpose of this decision I have referred to maternity and adoption and permanent care leave collectively as ‘primary leave’. Partner leave is referred to as such.
[14] Section 195 of the Act states:
195 Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory terms
(2) A term of an enterprise agreement does not discriminate against an employee:
(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or
(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
[15] In approving an agreement the Fair Work Commission (the Commission) must be satisfied that the agreement contains no unlawful terms (s.194 of the Act). A term which is discriminatory is unlawful. I must be satisfied therefore that the provisions of the agreement, including those complained of by the unions, are not discriminatory.
[16] Mr Pill for the University submits that the matter to be determined is whether a return to work bonus for a person returning from the primary leave is discriminatory where that leave does not extend to a partner returning from partner leave.
[17] Mr Pill says that the partner leave provided for at clause 67.3 of the agreement is not gender specific in that it extends to the partner of the employee taking maternity or adoption and permanent care leave regardless of the gender of the partner or the person taking the primary leave. On its face, he submits, partner leave is available to, and does not distinguish between male and female partners.
[18] Mr Pill submits that the concept of direct discrimination requires the Commission to be satisfied that the term complained of by the unions ‘imposes some detriment or denies some benefit to an employee because of the employee’s gender, or, in the alternative, because of the employee’s carer’s responsibilities.’ 1 Clause 67.20 provides a benefit in the form of the return to work bonus to persons returning from the primary leave. Partner leave is not gender specific and hence the lack of access to that benefit because the person has taken partner leave cannot be discriminatory on the basis of sex.
[19] Mr Pill says that the NTEU is misconceived in its submission that, because male employees who take primary leave (in the form of adoption and permanent care leave) have access to the return to work bonus but birth fathers who take partner leave do not, the clause is discriminatory on the basis of carer’s responsibility. He says that the appropriate comparator to determine if the provision is discriminatory on the grounds of carer’s responsibility is a person who does not have carer’s responsibilities.
[20] At its highest Mr Pill says that, to the extent that persons on partner leave are predominantly birth fathers it could be argued that the provision is indirectly discriminatory.
[21] Despite this Mr Pill submits that purpose of the return to work bonus is to assist birth mothers returning from maternity leave and is therefore objectively reasonable. He cautions however that, in any event it is not clear that s.185 of the Act extends to indirect discrimination (Commissioner for Public Employment, Northern Territory Government 2).
[22] Mr Pill also submits that a provision which provides an entitlement to those on maternity leave is not unlawfully discriminatory (Tung v State of Queensland 3 (Tung)).
[23] Relying on the decision in Tung the University submits that the provision of a return to work bonus for a person on maternity leave that extends to a person on adoption and permanent care leave but does not extend to persons on partner leave is objectively reasonable.
[24] The NTEU, in its Form F18 - Statutory declaration of employee organisation, in relation to an application for approval of an enterprise agreement, said that it:
Disagree[d] with the employer’s statutory declaration at paragraph 2.13 in respect to discriminatory terms, Sub-clause 67.20 of the proposed Agreement discriminates against ‘birth’ fathers as it does not on its own provide the return to work bonus to natural fathers seeking primary care leave at the University. This has occurred because the University deleted a clause which is in the current 2010 Enterprise Agreement, without agreement. This sub-clause (75.5) makes it clear that natural fathers on primary care leave may be eligible for the return to work bonus.
[25] In a letter addressed to the University and attached to the Form F18, the NTEU says that clause 67.20 is discriminatory because, read as a whole, a staff member’s eligibility for the return to work bonus is confined to those on maternity or adoption and permanent care leave.
[26] The NTEU submits that I should seek an undertaking from the University to preserve the relevant provision from the previous agreement (the 2010 agreement).
[27] The 2010 agreement includes provisions not dissimilar to those outlined at [11] above. It also provides that:
...a staff member on partner leave would not normally have access to the return to work bonus. However, where both staff members work for the University and the staff member identified as the primary care giver is on partner leave, he or she may be eligible for the return to work bonus, provided the mother of the child does not access the return to work bonus and has returned to work... 4
[28] In its submissions the NTEU says that clause 67.20 would not be discriminatory if it only applied to birth mothers. It is discriminatory, the union argues, because it mentions men and women who take adoption and permanent care leave. It is discriminatory because the only employees who cannot access the return to work bonus is birth fathers.
[29] The NTEU submits that the clause in the 2013 agreement would not be
discriminatory if it was only applied to birth mothers, but it’s discriminatory because of the fact that the clause mentions men and women who take adoption leave and men and women who take permanent care leave. So it’s discriminatory by and large on the grounds of family responsibility, so the only people who can’t access it at the university are those who are taking...[partner] leave. 5
[30] The NTEU submits that birth fathers who take partner leave are discriminated against by the provision when compared to male carers of an adopted child or males who take permanent care leave as it is only the birth fathers who are excluded from access to the return to work bonus and there is no mechanism by which they can take the primary leave as a male partner can by accessing the primary adoption and permanent care leave.
[31] Whilst the NTEU also referred to the decision of Lawler VP referred to by the University they submit that not much turns on the indirect discrimination point as it considers the provision to be directly discriminatory. 6
Consideration
[32] The matter to be determined is if the 2013 agreement, as it has been put to the Commission for approval, discriminates on the basis of sex or family responsibilities. To this extent what was in the 2010 agreement is not relevant. The test must be based on what is in the 2013 agreement and whether it is discriminatory. If it is found to be there is then a question of if and how this may be overcome.
[33] I should observe that a reading of the clause 67.20 in the 2013 agreement does not indicate that the only people who cannot access the return to work bonus are birth fathers.
[34] Clause 67.20 of the 2013 agreement says:
67.20 Where a staff member is on maternity or adoption and permanent carer (sic) leave and he or she has completed more than twelve months service at the date the leave is to begin, a return to work bonus equal to twelve (12) weeks’ salary will be paid upon the member’s return to work...
[35] The return to work bonus is clearly only available to:
[36] The return to work bonus is therefore not available to:
[37] The operation of the clause should not be misunderstood through the use of shorthand in the language (that is, the description of those taking partner leave as the ‘birth father’). Whilst, in its effect, those most likely to not receive the return to work bonus are birth fathers who take partner leave, these are not the only employees excluded from access to the provisions of clause 67.20.
[38] In determining if the conditions established by clause 67 of the 2013 agreement are discriminatory it is useful to consider the terms of the Sex Discrimination Act 1984 (Cth). In doing so the question to be answered is if the clause is discriminatory – not whether the clause would be better if it included what was in the 2010 agreement.
Direct discrimination
[39] The Sex Discrimination Act 1984 states:
5. Sex discrimination
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
[40] That is, discrimination occurs if the University treats a man less favourably than it would a woman.
[41] The treatment at issue in these proceedings is access to the return to work bonus for employees taking partner leave.
[42] It is readily apparent that access to partner leave is not gendered – it is accessible equally to women and men with the only condition being that their partner has taken the primary leave – that is maternity or adoption and permanent care leave.
[43] No person taking partner leave, regardless of sex, is entitled to the return to work bonus.
[44] In this respect it is apparent that birth fathers are not directly discriminated against on the grounds of sex in the application of the provisions relating to parental leave and access to the return to work bonus when compared to women who take partner leave. That is, neither have access to the return to work bonus.
[45] Further, there is no evidence or material before me to indicate that that any condition has been imposed on ‘birth fathers’ that suggests they are disadvantaged. Birth fathers (or any other partner) are not required to take partner leave. No condition has been imposed on them.
[46] The Sex Discrimination Act 1984 provides:
7A Discrimination on the ground of family responsibilities
For the purposes of this Act, an employer discriminates against an employee on the ground of the employee’s family responsibilities if:
(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and
(b) the less favourable treatment is by reason of:
(i) the family responsibilities of the employee; or
(ii) a characteristic that appertains generally to persons with family responsibilities; or
(iii) a characteristic that is generally imputed to persons with family responsibilities.
[47] The NTEU says it is birth fathers who take partner leave who are discriminated against by the 2013 agreement provisions due to their family responsibilities.
[48] The ‘comparator’ in terms of considering the definition in clause 7A of the Sex Discrimination Act 1984 is a person without family responsibilities. The comparator is not, as erroneously put by the NTEU, men who take the adoption and permanent care leave.
[49] When the comparator is correctly identified it is easy to see that there is no discrimination of birth fathers on the grounds of family responsibilities by the operation of clause 67 of the 2013 agreement.
[50] A birth father accessing partner leave (and therefore not having access to the return to work bonus) is not treated less favourably than a person without family responsibilities. A person without family responsibilities is not eligible for partner leave. A birth father does have access to partner leave. There can be no suggestion of discrimination on these grounds.
Indirect discrimination
[51] There is some debate as to whether or not indirect discrimination is encapsulated by s.195 of the Act. In Commissioner for Public Employment, Northern Territory Government 8 and Australian Catholic University Limited9 Lawler VP considered if provisions of the agreements were indirectly discriminatory. He reached the same conclusion in each of the decisions. In Australian Catholic University,,after referring to the distinction between direct and indirect discrimination, his Honour said:
There is a real issue as to whether the definition of “discriminatory term” in s.195 is confined to direct discrimination or extends to indirect discrimination. As was noted by Mason CJ and Gaudron J in Waters, “[w]ithin the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect.” 4 Banovic and Waters were cases where the complaints relied upon the statutory prohibitions against indirect discrimination, which prohibitions invariably contain a reasonableness qualification. It is arguable that the absence of any reference to indirect discrimination means that the legislature intended s.195 to apply only to terms that discriminate directly. The explanatory memorandum does not assist in this regard. While I have not been assisted by full argument on the topic, I am inclined to the view that the notion of discrimination in s.195 extends to indirect discrimination because that construction would seem to be a construction that better furthers the objects of the FW Act. I proceed on the basis that s.195 extends to terms that are only indirectly discriminatory. Obviously, reasonableness is a factor in determining whether a clause is indirectly discriminatory. 10
[footnotes omitted]
[52] In Shop, Distributive and Allied Employees Association v National Retailers Association and Another (No 2) 11 Tracey J considered if provisions contained in the General Retail Award 2010 which allowed employers to employ school students on a casual basis for less than three hours was indirectly discriminatory. In considering this issue his Honour considered the operation of s.153(1) of the Act which stipulates that a modern award ‘must not include terms that discriminate against an employee because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’12.
[53] Tracey J found that:
The Act does not define the word “discriminate” or the words “discriminate against”. The ordinary and natural meaning of the word “discriminate” connotes the making of distinctions: cf HBF Health Funds Inc v Minister for Health and Ageing (2006) 149 FCR 291 at 295. In the context of s 153(1) this involves the making of distinctions between employees whose employment is regulated by the Award.
It is next to be noted that not all discrimination is proscribed. What is proscribed is discrimination against an employee. That means the making of an adverse distinction between employees: cf Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213 at [24] (per Ryan J). The adverse distinction must be drawn for one of the reasons, including age, which appear in the subsection.
As can be seen, the proscribed reasons for adverse discrimination are those which are commonly dealt with in federal and State anti-discrimination legislation. Typically, such legislation defines discrimination so that it covers both direct and indirect discrimination: see for example the Disability Discrimination Act 1992 (Cth), ss 4, 5 and 6; Sex Discrimination Act 1984 (Cth), ss 5, 6, 7 and 7B; Equal Opportunity Act 2010 (Vic), ss 8 and 9. The reason that this was considered necessary is, as Dawson and Toohey JJ pointed out in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392-393, because the proscription of discrimination, without more, is not apt to pick up “facially neutral” discrimination which is otherwise known as indirect discrimination. Indirect discrimination, as defined in anti-discrimination legislation requires the imposition of a requirement or condition which does not, in terms, distinguish between people on prohibited grounds but which, in practice, adversely impacts on such people. It must be established that the requirement or condition is one with which a substantially higher proportion of persons who are not aggrieved by its operation are able to comply, that the requirement or condition is not reasonable and that the aggrieved person is not able to comply with it.
No attempt has been made in the Act to provide an extended definition of the term “discrimination”.
It would be highly unlikely that the Parliament intended that s 153(1) could be contravened by indirect discrimination. Awards typically contain many provisions that discriminate between employees. Wage rates, for example, are usually fixed by reference to criteria such as length of service and qualifications held. It is unlikely that Parliament intended that such provisions could be impugned on the ground that they indirectly discriminated on the grounds of age because younger employees as a group would not have had the length of service, or the time to obtain the requisite qualifications, in order to qualify for placement in the higher classifications which attract higher wages. 13
[emphasis added]
[54] Whilst making no definitive finding that s.153(1) (and, by extension, s.195) does not extend to cover indirect discrimination the decision cannot be ignored. On this basis I would have to conclude that s.195 of the Act does not extend to indirect discrimination.
[55] Even if the Act did extend to indirect discrimination, I would find that the provisions in the 2013 agreement do not represent indirect discrimination.
[56] As Lawler VP said ‘reasonableness is a factor in determining whether a clause is indirectly discriminatory.’ 14
[57] The Sex Discrimination Act 1984 states that:
7B. Indirect discrimination: reasonableness test
(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances.
(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b) the feasibility of overcoming or mitigating the disadvantage; and
(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
[58] The University submits that the return to work bonus available to birth mothers and to the person who takes adoption and permanent care leave is a condition that is reasonable in that it acts as an incentive to women (who will be the group in the main who access the primary leave) to return to work following the primary leave. In this respect the University rely on the decision in Tung. In that case Mr Tung sought access to paid maternity leave. In that decision Member Toney QC considered the decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission 15 and observed that:
There was a detailed analysis in the judgements of each member of the Court as to what the test for reasonableness was...
Justice Sackville recognised that the starting point in determining whether a requirement or condition is “not reasonable having regard to the circumstances of the case” are the observations of Bowen CJ and Gummow J in Styles (at 263) that: “the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience....The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”
Since the test is objective, the subjective preferences of the aggrieved persons cannot be determinative of the reasonableness of the impugned condition requirement. Subjective preferences “may be relevant in determining the reasonableness of the alleged discriminatory conduct; but ultimately, the test must be an objective one, applied … after considering all the material facts.”
Next he said “it would be erroneous .. to assume that any difference of treatment between the complainants and (in that case) other employees of the Bank is prima facie discriminatory and therefore unreasonable [footnotes omitted]
Fourthly, reasonableness (or non-reasonableness), is a question of fact…for this Tribunal to determine, but it can only do so by weighing all relevant factors...
As Brennan J pointed out in Waters v PTC (at 378), reasonableness cannot be determined in the abstract...
Fifthly, and critically on the evidence in the present case, the role of the Tribunal here is “not to determine whether the decision to impose the condition or requirement was the “correct” one. The point was put this way by Heerey J in AMC v Wilson (at 61-62), adopting a passage in the judgment of Sheppard J in Dopking (No 2): “`reasonable’ in this context speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily in which all people or even most people agree”. 16
[59] The test of reasonableness was also summarised in McIntyre v Hastings Deering (Australia) Ltd & Anor 17 at [66].
[60] In Tung Member Toney QC, having also considered a number of cases referred to as the Dopking Litigation, 18 concluded that:
Having regard to those considerations I find that it was objectively reasonable that the provision of paid maternity leave only to mothers to be or new mothers parents to be who are employees of Queensland Health and not their male co parents, having regard to the undisputed benefits which it was seen that they would bring to mothers who worked in the relevant Agency. That others might equally be deserving of similar or even the same financial benefits does not affect the reasonableness of the regime insofar as it applied to those women. It is not my function to decide if it would have been reasonable to also provide them to co-parents. 19
[61] The University submits that it is objectively reasonable that the return to work bonus only be available to birth mothers and takers of adoption and permanent care leave.
[62] The matter to determine is not whether it is unreasonable that birth fathers do not get the return to work bonus but whether it is objectively reasonable that the bonus is paid to those returning from maternity leave or adoption and permanent care leave, and not those returning from partner leave.
[63] To this extent the level of disadvantage to those taking partner leave appears to be small. The NTEU did not provide evidence to demonstrate that birth fathers are the ones who will predominantly be away from the workplace for extended periods following the birth of a child and hence run the risk of losing attachment to the workplace or skills such that special measures should be put in place to support their return to work.
[64] Whilst there may be an argument that those taking partner leave are equally as deserving of access to the return to work bonus, as was observed in Tung, this does not affect the reasonableness of the return to work bonus as it applies to those taking the primary leave.
[65] For these reasons I do not consider the provision of the return to work bonus to those on maternity or adoption and permanent care leave to be indirectly discriminatory.
Conclusion on discrimination
[66] For the reasons given above I am satisfied that the agreement does not contain a discriminatory term. The 2013 agreement therefore does not contain an unlawful term.
[67] It is worthwhile observing at this point that the undertaking the NTEU would have me require of the University that it says is necessary to overcome the discrimination appears, on its face, to be discriminatory in that it would only provide access to the return to work bonus to those on partner leave whose partner also worked for the University. So a large cohort of birth fathers whose partner did not work for the University but who did take partner leave following the birth of a child would not, under any circumstances, have access to the return to work bonus. This was not however subject to submissions before me and I make no finding.
[68] I note in passing that when the NTEU realised the provision from the 2010 agreement was not included in the 2013 agreement (after the agreement had gone to vote) the University agreed to a request of the NTEU that the provision be continued in policy at least for the life of the 2013 agreement. The University also placed that commitment in correspondence to the NTEU and affirmed it in the hearing of this matter.
Other matters
[69] In accordance with s.190 of the Act the University has provided a number of undertakings with respect to the 2013 agreement. I have accepted the undertakings so provided.
[70] In accordance with s.191(1) of the Act the undertakings are taken to be a term of the 2013 agreement. A copy of the undertakings is attached as an annexure to this decision.
[71] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[72] The NTEU, CEPU, CPSU, CFMEU, and United Voice, being bargaining representatives for the 2013 agreement, have each given notice under s.183 of the Act that they want the 2013 agreement to cover them. As required by s.201(2), I note that the 2013 agreement covers each organisation.
[73] The 2013 agreement is approved. In accordance with s.54(1) it will operate from 20 February 2014. The nominal expiry date of the 2013 agreement is 30 June 2017.
COMMISSIONER
Appearances:
S. Pill for the University of Melbourne (the Applicant).
S. Kenna for the NTEU.
W. Townsend for the CPSU.
K. Marshall for the CFMEU.
Hearing details:
2014.
Melbourne;
January 16.
1 Transcript PN109.
3 [2013] QCAT 251.
4 The University of Melbourne Collective Agreement 2010 - clause 75.5.
5 Transcript PN175.
6 Transcript PN209.
7 Partner is defined in clause 5.2 of the 2013 agreement as ‘a person of the opposite or same sex who lives with the staff member on a bona fide domestic basis although he or she may not be legally married to that person (including a former spouse, a de facto spouse and a former de facto spouse)’.
10 Ibid [14].
11 (2012) 205 FCR 227.
12 The parties in this matter accept the s.153(1) and s.195 are relevantly in the same terms.
13 Ibid [52]-[56].
14 Australian Catholic University Limited [2011] FWA 3693 [14].
15 [1997] FCA 1311.
16 [2013] QCAT 251 [80]-[86].
17 [2013] QCAT 695.
18 Sullivan v Department of Defence(1991) EOC 92-366; Commonwealth v Human Rights & Equal Opportunity Commission (1991) 32 FCR 468; Sullivan v Department of Defence (1992) EOC 92-421; Commonwealth v Human Rights & Equal Opportunity Commission (1993) 46 FCR 191; Dopking v Department of Defence(Unreported, Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, 24 October 1994) (extract at (1995) EOC 92-669); Commonwealth v Human Rights & Equal Opportunity Commission (1995) 63 FCR 74.
19 [2013] QCAT 251 [90].
Printed by authority of the Commonwealth Government Printer
<Price code O, AE406763 PR547810>
Annexure
