DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

National Tertiary Education Industry Union-NSW Division
v
The University of New England T/A The University of New England
(C2018/1250)

Dispute under s.739 – Academic Workloads, Workplace Policy, Structure of Schools and Faculties.

Introduction

[1] On 8 March 2018, the National Tertiary Education Industry Union (NTEU) applied to the Fair Work Commission (Commission) to deal with a dispute under section 739 of the Fair Work Act 2009 (FW Act) with the University of New England (University).

[2] In short, the dispute is about whether the University complied with clause 20.3.2 of the University of New England Academic & ELC Teaching Staff Collective Agreement 2014-2017 (Agreement) and clause 20 more generally relating to Academic Workloads and how the same are to be determined. Clause 20.3.2 provides for the development, review and revision of Approved Workload Policies (AWPs).

[3] The NTEU complained that the Dean of the Faculty of Humanities, Arts, Social Sciences and Education (HASSE), in their words, unilaterally imposed a Work Load Policy on 20 February 2018 with the effect that teaching loads were increased. The NTEU submit that the Dean’s action was in breach of the Agreement. The University denies that the Dean acted inconsistently with the Agreement.

[4] The matter was listed for conference on 15 March 2018. The NTEU invited the University to maintain the status quo by applying the Work Load Policies that applied prior to 20 February 2018. The University declined.

[5] Consequently, on 20 March 2018 the NTEU made an application for interim orders preserving the status quo pending resolution of the dispute in accordance with the Agreement. The University opposed the application for interim orders.

[6] On 28 March 2018, I heard and determined the application for interim orders. I decided to issue Orders 1 (although not in the terms sought by the NTEU). In summary, I was satisfied that I should issue an interim order under s.589 of the FW Act because:

a) the NTEU had an arguable case with some reasonable prospect of success that the University had not complied with clause 20.3.2, and

b) the balance of convenience weighted in favour of granting interim orders that were to commence in Trimester 2.

[7] On 9 April 2018 I provided my reasons for deciding to issue the interim orders (Interim Orders Decision). 2

[8] In advance of the substantive hearing I encouraged the parties to jointly file in the Commission “the particulars of the exact question/s they want the Commission to determine.” However, the parties were unable to reach agreement on an articulated question and it fell to the NTEU to submit the same for the Commission to determine. Disagreement arose about the questions submitted by the NTEU.

[9] The matter was listed for hearing in Armidale on 30 May 2018. At the commencement of the hearing I proposed that there be a streamlining of the questions to be determined by the Commission. The parties agreed that the Articulated Questions would be as follows:

Question 1: As at 19 February 2018 were there in existence at the University of New England extant Academic Workload Policies that had application to the School of Education and or School of Humanities, Arts and Social Sciences?

N.B. If the Commission determines that the answer to Question 1 is “No”, then it will proceed to Question 3.

Question 2:  If the answer to Question 1 is “Yes”, then were those policies (or any one of them) invalid workload policies by reason of them being inconsistent with either the University’s Strategic Plan or academic mission of the School?

N.B. If the Commission determines that the answer to Question 1 is “Yes”, and the answer to Question 2 is “No”, then the extant policies will continue to apply.

Question 3: If the answer to:

(A) Question 1 is “No”, or

(B) both Questions 1 & 2 are “Yes”, then, 

In the absence of a valid Workload Policy being agreed in accordance with clause 20.3.2 of the University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017 was the Dean’s Direction on 20 February 2018 a lawful exercise of managerial prerogative (XPT Case: Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188).

[10] The parties were also encouraged to file an Agreed Statement of Facts. On 7 September 2018 (after I enquired of the parties whether they intended to comply with the direction) the parties advised that they were not filing an Agreed Statement of Facts. Such is the antipathy between the parties that, although they are experienced industrial players, they were apparently unable to agree upon any facts. Their failure in this regard reflects poorly on both parties and their representatives.

Jurisdiction

[11] Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.

[12] In the present matter the Agreement confers jurisdiction on the Commission to resolve “industrial disputes which may arise about the application of, or matters arising under, the Agreement or the National Employment Standards”,  3 including “by conciliation, or where conciliation does not resolve the dispute by arbitration, in resolving the dispute the [Commission] can exercise any of its powers under the Fair Work Act”.4 The dispute in this case falls within that description. It is common ground that the Commission has jurisdiction to arbitrate the dispute.

The Agreement

[13] The Agreement was approved on 13 October 2014 and commenced operation on 20 October 2014. It passed its nominal expiry date on 1 October 2017. 5 Consistent with their inability to reach agreement on the Articulated Questions or the Agreed Statement of Facts, the NTEU and the University have failed to reach agreement on an enterprise agreement to replace the Agreement.

[14] The parties to the Agreement are the University and,

“all employees who are employed in the classifications detailed in Schedules 5 and 6, and Part F of [the] Agreement. 6

[15] The NTEU is covered by the Agreement. 7

[16] The dispute is about whether the University has met its obligations under the clause 20 generally and clause 20.3.2 in particular.

[17] Clause 20.3.2 of the Agreement provides that,

“Each School, through collegial consultative processes with its academic staff, will develop, implement, review and revise an Academic Workload Policy on a School basis. The Academic Workflow Policy will be considered by the Deputy Vice-Chancellor who will provide input. A School meeting will be called to consider the policy and it will be ratified by consensus. Where consensus cannot be reached, a majority decision by vote of the applicable School staff, will determine the School Academic Workflow Policy. The School Academic Workload Policy must be consistent with the University’s Strategic Plan and academic mission of the School.”

Substantive hearing

[18] At the substantive hearing

a) NTEU was represented by Jeane Wells, Industrial Officer, and

b) the University was represented by Stuart Andrews, Executive Director, Australian Higher Education Industry Association (AHEIA).

[19] In advance of and following the substantive hearing the parties filed material in addition to that filed in advance of the interim orders hearing. For completeness I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.

[20] During the Hearing of 30 May 2018, the two statements of Dr Lynch, dated of 5 April 2018 and 28 May 2018, were not formally tendered. On request of the NTEU and without objection from the University, both statements were formally accepted into evidence on 23 July 2018.

Chronology of events

[21] At paragraph [43] of the Interim Orders Decision I set out the relevant chronology of events. Having regard to all that has been put in relation to the matter I make the following findings of fact:

a) On 20 October 2014 the Agreement commenced operation.

b) Academic Workload Policies were developed by the then Schools, including the Schools of:

i. Education;

ii. Behavioural, Cognitive and Social Science;

iii. Humanities; and

iv. Arts.

(Attachment 2 Workloads) 8

c) At least since January 2017 there have been meetings within the Schools aimed at developing new Academic Workload Policies in accordance with the terms of the Agreement.

d) In Trimester 3 of 2017 (i.e. from November 2017 to February 2018) workload allocations were in accordance with Attachment 2 Workloads.

e) On 20 November 2017 Professor Fitzsimmons was appointed the Dean of the Faculty of HASSE.

f) On 1 January 2018 the Faculty of HASSE commenced operations. The Faculty of HASSE comprises Schools of:

i. Education;

ii. Humanities;

iii. Arts;

iv. Social Sciences (disciplines of Linguistics, Sociology and Criminology, Geography and Planning part of the former School of Behavioural, Cognitive and Social Sciences).

Consequently, the new structure has two Schools:

A. School of Education; and

B. School of Humanities, Arts and Social Sciences (HASS)

g) By 13 February 2018 the University was in a position to put to a vote an Academic Workload Policy for each of the Schools of Education and HASS.

h) The Schools voted on their respective models during the week ending 16 February 2018. Neither vote was successful. The:

i. School of Education proposal was defeated 37 against: 10 in favour;

ii. School of HASS proposal was defeated 44 against: 25 in favour.

i) On 20 February 2018 Professor Fitzsimmons emailed all staff. He announced the results of the ballots and then wrote,

“… the Provost and Deputy Vice Chancellor, Professor Todd Walker, … has instructed me to work with the Heads of School as they continue with the consultative process for a new workload model with the two Schools.

In the meantime, Trimester 1 is looming, and we need to have something in place in terms of workload allocation.

The PDVC has approved the following approach…”

(Dean’s Direction)

j) At no time has the University asserted that the Dean’s Direction was in compliance with the requirements of clause 20.3.2 of (or otherwise with) the Agreement. The Dean’s Direction was always characterised as a “work around”.

k) A further vote occurred in the weeks prior to the hearing of the application for interim orders. The votes in both Schools were again unsuccessful.

Principles of interpretation

[22] In the Interim Orders Decision I observed that,

“[46] At the substantive hearing of the matter it will be necessary to interpret the Agreement having regard to the principles in AMWU v Berri.” 9

[23] The principles relevant to the task of construing an enterprise agreement were summarised in Golden Cockerel as follows: 10

“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”

[24] In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Ltd (Berri). 11 The Full Bench made the following observations:

“[41] The construction of an enterprise agreement, like that of a statute or a contract, begins with a consideration of the ordinary meaning of the relevant words. The disputed words must be construed in the context of the agreement as a whole. The process of interpretative analysis focusses upon the language of the agreement itself. In Amcor Limited v CFMEU,12 Gleeson CJ and McHugh J described the process in the following terms: ‘[t]he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose ...’.13 Or, as Kirby J put it in the same case, ‘[i]nterpretation is always a text-based activity’. 14

….

[44] There is considerable force in the Appellant’s contention that, as a general principle, all words in an enterprise agreement must prima facie be given some meaning and effect. It would seem to follow that the inclusion of a laundry allowance in Appendix 3 of the 2014 Agreement should not be regarded as superfluous or insignificant. Such an approach accords with the principles of statutory construction, 15 and, as a general proposition, the principles developed in the general law in the context of the interpretation of statutes are applicable to the interpretation of enterprise agreements. As the Full Bench observed in Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union:16

‘Australian Paper made the submission that no principle of statutory construction has any application to the interpretation of enterprise agreements, and relied upon the proposition stated in Golden Cockerel  that the Acts Interpretation Act 1901 (Cth) does not apply to the construction of enterprise agreements in support of that submission. The submission is rejected. It does not follow from the fact that enterprise agreements are not instruments to which the Acts Interpretation Act applies that modes of textual analysis developed in the general law in the context of the interpretation of statutes are incapable of application to enterprise agreements. While it undoubtedly remains necessary in interpreting a particular instrument to pay attention to the peculiar characteristics of that instrument, it is equally the case that there has been a convergence in the approach taken to the interpretation of statutes, agreements and other types of instruments - in particular, in the emphasis on the objective ascertainment of the instrument’s purpose and the move from textual to contextual interpretation. Additionally, many of the grammatical aides to the interpretation of statutes are equally applicable to other types of instruments. In the High Court decision in Royal Botanic Gardens and Domain Trust v South Sydney City Council, Kirby J said “... it would be indefensible for this Court, without good reason, to adopt a different approach in the ascertainment of the meaning of contested language in a contract from the approach observed in respect of legislation”. We therefore do not consider that Golden Cockerel should be taken as an exhaustive statement of the means by which the text of an enterprise agreement might be construed.’ (references omitted)

….

[46] There is a long line of authority in support of the proposition that a ‘narrow or pedantic’ approach to the interpretation of industrial instruments (such as enterprise agreements) is to be avoided, 17 and that ‘fractured and illogical prose may be met by a generous and liberal approach to construction’.18 A consequence of such an approach may be that some principles of statutory construction have less force in the context of construing an enterprise agreement. For example, in Shop, Distributive and Allied Employees’ Association v Woolworths Limited,19 Gray ACJ held that the presumption that a word used in one provision of a statute has the same meaning when it is used in another provision of the same statute, applied with less force in the context of an enterprise agreement:

‘Typically, such agreements are the product of hard negotiation, in which wording of particular clauses is often agreed without reference to other provisions of the same document. Provisions are commonly transmitted from one agreement to the next in a series, without regard to whether their terminology sits well with the words used in newly adopted terms. The use of other agreements, and awards, as precedents can often result in the borrowing of provisions, again without regard to whether the words used in them are consistent with the rest of the agreement under consideration. For these and other reasons, consistency will often be absent. It is easy to see that the same word can be used in different provisions with different meanings.’ 20

[47] We acknowledge that the fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. But it is also relevant that the instrument being interpreted in these proceedings is an enterprise agreement made pursuant to Part 2-4 of the FW Act and, as observed by White J in National Tertiary Education Union v La Trobe University, 21 it may be inferred that such agreements are intended to establish binding obligations:

‘The manner of making such agreements is subject to detailed prescription and their operation is contingent upon approval by the Fair Work Commission, the obtaining of which is itself a matter of detailed prescription. In my opinion, it is natural to suppose that parties engaging in this detailed process intend that the result should be a binding and enforceable agreement. To my mind, that is an important matter of context when approaching the construction of [the disputed clause in the agreement]’. 22

[48] Of course his Honour’s observation does not mean that an enterprise agreement may not include ‘matters which are in the nature of statements of aspiration or commitment and not themselves intended to be enforceable obligations or entitlements’ 23 – so much is clear from Reeves v MaxiTRANS Australia Pty Ltd.24 The fact that the 2014 Agreement is an enterprise agreement made pursuant to Part 2-4 of the FW Act is also relevant to the weight to be given to evidence of prior negotiations, a point to which we shall return shortly.

….

[60] It seems to us that there is an ambiguity in the 2014 Agreement regarding the laundry allowance referred to in Attachment 3. In particular, it is unclear in what circumstances the amount specified is to be paid and to whom. The frequency with which any such payment is to be made is also unclear.

[61] Having identified ambiguity it is permissible to consider evidence of the surrounding circumstances as an aid to the task of interpreting the agreement. As Mason J observed in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (Codelfa): 25

‘… 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 where it has a plain meaning.’ 26

[62] The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties and the subject matter of the contract. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations. As Mason J observed in Codelfa:

‘… 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 expectations of the parties before or at the time of contract, except insofar 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.’ 27

[63] As noted in Golden Cockerel, evidence of relevance to the objective framework of facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

[64] As to category (i), evidence of prior negotiations will be admissible – but only for a defined purpose. As Mason J observed in Codelfa:

‘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 parole 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.’ 28

[65] Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was. So much is clear from the oft-quoted statement of Madgwick J in Kucks v CSR Limited: 29

‘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.’

….

[88] The diversity of interests involved in the negotiation and making of enterprise agreements warrants the adoption of a cautious approach to the admission and reliance upon evidence of positions advanced during the negotiation process. As Rares J recently observed, in Australian International Air Pilots Association v Qantas Airways Limited: 30

‘Substantially, the Act provided that the agreement was a tripartite document between a body of employees, a corporation with numerous officers and an industrial association. The involvement of so many individuals in the formation of the agreement re-emphasises the importance of approaching the construction of that document in accordance with the principle of objectivity. It is important, in doing so, to be cautious and bear firmly in mind the fact that the agreement was formed by a diversity of persons who had sought to protect their differing interests by various formulations of words in it. Those disparate intentions cannot be determinative of the proper construction to be given to the words chosen. In Health Services Union v Ballarat Health Services [2011] FCA 1256 at [79], Gray J said:

“In the days when an award might be negotiated between a union and an employer, and made by consent, the existence of a common understanding between the union and the employer as to the meaning of terms might have had some role to play in their construction. Whatever were the terms of such an agreement, and whatever their meaning was, those terms were imposed upon the employees who became bound by the award. In the current era, most industrial instruments are required to be put to a vote of the employees whose work will be covered by them, before they can be certified or approved so as to become enforceable by statute. The union and the employer who negotiated the terms might have had a common understanding of the meaning of them, but that understanding might not have been shared by all or some of the employees who voted for the operation of the agreement. They may have been entirely ignorant of the common understanding. In those circumstances, the occasions on which it can be said that a party to an agreement who entered into it on a common understanding should not be allowed to resile from that understanding will be rarer than they have been in the past.”’

….

[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged.

[102] Some early High Court authority permitted the admissibility of post-contractual conduct as an aid to construction. 31 But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible.32

[103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, 33 a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash):34

‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’

[104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, 35 but no clear consensus appears to have emerged.

[105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd 36 gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract:

‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ 37

[106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties.

[107] We also note that in Spunwill 38 Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd 39:

‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’”

[25] The Full Bench in Berri then modified the summary set out in Golden Cockerel in light of the observations made in the course of our decision.

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding. “

[26] I adopt the Berri principles. Consequently, it is necessary to,

a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,

b) determine whether the Agreement has a plain meaning,

c) review the text of the Agreement as a whole,

d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,

e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,

f) not adopt an overly technical approach to the interpretation of the Agreement, and

g) not contradict the plain language of the Agreement.

Submissions - NTEU

[27] In its final submissions the NTEU submitted that,

“4. The Applicant submissions are in response to these questions below.

Question 1: As at 19 February 2018 were there in existence at the University of New England extant Academic Workload Policies that had application to the School of Education and or School of Humanities, Arts and Social Sciences?

5. Yes. On the 19 February 2018 there were in existence four policies which had application to the School of Education and the School of Humanities, Arts and Social Sciences. These were the extant policies provided to the Commission as attachments to Professor Fitzsimmons statement to the Commission dated 27 March, (UNE 2 at Attachment 2). These four policies were the School of Education Workload Policy, the School of Behavioural Cognitive and Social Sciences Workload Policy (BCSS), the School of Arts Workload Policy, and the School of Humanities workload policy. The School of Education policy applied to the Academic staff in the School of Education. The BCSS, Arts and Humanities workload policies applied to Academic staff in the newly formed School of Humanities, Arts and Social Sciences.

6. The Faculty of Humanities, Arts, Social Sciences, and Education came into operation on 1 January 2018. Employees in the Faculty of HASSE were advised of a change in line reporting, and were advised that: ‘All other terms and conditions will remain as set out in the University’s original letter of offer and as amended subsequently by any variations to the Agreement covering your employment.’ as demonstrated in the evidence of the NTEU witnesses.

7. The work that these employees perform did not change on 1 January 2018 (evidence of Dr Battin of the School of Humanities, Arts and Social Sciences; Professor Sims of the School of Education). As Professor Sims has noted at point 5 of her statement: ‘The work I am required to perform by the University has not changed after 1 January 2018, or at any date as a consequence of the restructure. I am just performing more work as a result of the Dean’s direction of Tuesday 20 February 2018.’

8. Between the 1 January 2018 and the 20 February 2018, no workplace change proposal was notified to the Academic staff in the Faculty of HASSE.

9. On the 19 February 2018, the four workload policies which had continued to exist during 2017 and after the 1 January 2018 continued to apply to staff in the Faculty.

10. The text of the agreement demonstrates that the allocation of workload will only occur in the following terms, by ‘...collegial consultative processes with its academic staff, will develop, implement, review and revise an Academic Workload Policy....’ (Clause 20.3.2) AMWU & Berri at paragraph 114 summarises the ‘…principles relevant to the task of construing a single enterprise agreement.., and this ‘begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

11. As per AMWU & Berri, the disputed provisions place and arrangement in the agreement are relevant to the interpretation of this Agreement. The placement of Clause 20.3.2 is part of a section named by the parties 20.3 Allocation of Workloads. A series of principles follows this title: Mix, Equity, Flexibility, Responsiveness and Transparency. Directly following these principles is Clause 20.3.2, outlining how these principles will be applied in the allocation of workloads to Academic staff, and providing clear obligations to the parties in respect of the allocation of workloads.

12. Only by following the text of Clause 20.3.2, is the employer authorised to allocate workloads to staff in the Faculty of HASSE. The terms of this provision provide for the principles of mix, equity, flexibility, responsiveness and transparency to be applied, but these principles will be applied as the terms of Clause 20.3.2 obligate. The Respondent has failed to allocate workloads in accordance with the text of Clause 20.3.2.

13. AMWU & Berri states at 114 (2) that: The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties. Conversely, the task of interpreting an agreement does not involve rewriting the agreement to achieve giving effect to the Dean’s invalid direction.

14. In this dispute, the Applicant asserts that meaning should be given to the plain meaning of the text of Clause 20.3.2 specifically, and Clause 20 generally.

15. In the alternative, if the Commission considered it possible there was an ambiguity in the text, the Applicant would argue that the subsequent conduct of the parties would be relevant the nature of this specific dispute, as per paragraph 114 (15) of AMWU & Berri, which provides that: In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

16. The Applicant does not seek to rely on the absence of a complaint or common inadvertence to demonstrate subsequent conduct, but rather the active conduct of the Applicant and Respondent in applying these clause through the life of this Agreement. While we note the failure to correctly apply elements of Clause 20.3.2 by the Respondent in January and February 2018 in detail below, we note the Respondent in this period still complied with the obligation to conduct a vote in the absence of consensus in January and February 2018, up to and including on 19 February 2018. The Applicant and our members and the Respondent have applied the terms of Clause 20.3.2 in accordance with the submissions of the Applicant since this Agreement came into effect, and as can be seen from the evidence, throughout the application of this agreement, prior to incorrectly applying elements of Clause 20.3.2 from 18 January and February 2018, and the direction of the Dean of HASSE on 20 February 2018 which subverts the terms of Clause 20.3.2 specifically and Clause 20 generally.

17. Specifically, this has been demonstrated in the School of Education. The Applicant and Respondent has demonstrated a ‘meeting of minds, a consensus’ as per AMWU & Berri in respect of what conduct would correctly apply the terms Clause 20.3.2 in the context of either an unsuccessful vote, or an invalid vote, as is demonstrated by the evidence of Dr McQueen in his statement of 28 May 2018, and specifically in KM Attachment 2. The history of Academic Workload Policy revision in the School of Education has demonstrated the consensus between the parties over a number of years that in the context of either an unsuccessful vote, or an invalid vote, the Academic Workload Policy approved in accordance with Clause 20.3.2 continues to apply.

The extant workload policy in the School of Education at 19 February 2018 that applied to Academic staff in the School of Education

18. In the School of Education, on the 19 February 2018 the extant policy, the School of Education policy approved in accordance with Clause 20.3.2 and Clause 20, was the School of Education Policy as identified in Attachment 2 of UNE 2. This policy applied in the School of Education on 19 February 2018.

19. In recognition of the School of Education policy (at Attachment 2 of UNE 2) continuing to apply to Academic staff in the School of Education for unknown reasons a rushed and poor attempt was made to replace this extant policy, and notably after the commencement of the Faculty structure on 1 January 2018. Unfortunately, as was the case in School of Humanities as outlined below, this Faculty management proposed workload policy not only excluded staff in the School from participating in the collegial development of the policy, as Clause 20.3.2 requires, but further was both rushed and proposed at a time of year which would certainly exclude staff from participation.

20. Management were clear in advice to staff that this policy was developed by Faculty management: ‘As part of the new Faculty Structure, the Heads of School, with the Dean and the Associate Dean Teaching and Learning and Associate Dean Research (protem) have worked over the past weeks to develop a faculty approach to Academic Workload Policy for 2018’ (see KM 33, email from Head of School of Education to all Faculty staff, 18 January 2018, attached to these submissions for the ease of the parties reference).

21. Further, it was clear to NTEU members in the School of Education that this management developed Workload Policy proposal had many problems.

22. Dr McQueen describes in his witness statement of 28 May 2018 at point 14 of this statement the short period of opportunity School of Education staff had to consider this proposed new workload policy: ‘After some corrections to the policy arising from two staff meetings in the School of Education, including making the policy a school-based one, the policy was put to the vote on 15 February 2018, a month after the first non-collegially developed policy was proposed. The re-drafted proposed policy was defeated in the vote concluding on 19 February 2018 – i.e. four days after staff had first seen the re-drafted version.’

23. This is not the first time in the School of Education that change was contemplated to the extant School of Education workload policy, although it is clear that the process conducted in January and February of 2018 did not follow the School Workload Policy process or elements of Clause 20. In respect of the School of Education Workload Policy, the extant policy, in accordance with Clause 20, contemplates review, at point 1.7 of the policy:

Review: this policy and implementation plan will be reviewed in two years (2016) for the School’s endorsement. Any proposed refinements will be discussed within the School and any resulting revision of the policy or implementation plan will be determined by consensus or by majority among the Academic staff of the School. A special meeting of the SOE Workload Committee can be called if any urgent matters to be discussed arise during the year. (KM Attachment 9)

24. Further, in 2016 collegial consultation was conducted to formulate a revised School Of Education workload policy. The draft policy was put to staff on 1 December 2016. There was a problem with the electronic voting process, and the Head of School advised staff it was an ‘invalid’ vote. The Head of School did not seek to have the electronic mechanism fixed to re-commence voting, advising that ‘with only weeks to go before the Christmas break I will not be calling another vote this year.’ The Head of School advised staff that voting was cancelled and that the ‘current 2016 academic workload policy will carry forward into 2017.’ Professor Tobias further stated: I thank all those staff who have participated in the workload committee meetings and associated discussions. It has been a constructive and informative process. (KM Attachment Two).

25. In School of Education the Workload Policy provides for the genuine participation of staff by Workloads Committee and meetings of the School to review and revise the School Workload Policy.

26. All School workload policies are able to be reviewed and revised in accordance with Clause 20.3.2

The extant workload policies in the School of Humanities, Arts and Social Sciences (HASS) at 19 February 2018 that applied to Academic staff in the School of HASS

27. In the School of Humanities, Arts and Social Sciences, the extant policies (BCSS, Humanities and Arts and Social Sciences) approved in accordance with Clause specifically and 20.3.2 and Clause 20 generally are the three named policies identified in Attachment 2 of UNE 2.

28. These three workload policies applied to the Academic Staff in these Schools when the Faculty restructure which announced in 2017, which proposed to locate these Academic staff in one School. The only change which was proposed to arise from this change was a change to the reporting lines of these Academic staff. These three workload policies applied to the Academic staff in the School of HASS on 1 January 2018 when the reporting line change occurred. Indeed, these staff did not even received advice of the reporting line change until 16 March 2018 (evidence of Dr Battin, Dr McQueen, Dr Lynch, Professor Sims).

29. While the assertions of the Respondent were that no change to the day to day work of employees would occur as a result of the Faculty restructure, if Faculty of HASSE management, or School of Humanities, Arts and Social Sciences (HASS) management, or the employees of this School, sought to review and revise these three extant policies into one School policy with application across the School, the text of the Agreement provides the opportunity to revise and review existing workload policies for this purpose. Clause 20.3.2 provides that: Each School, through collegial consultative processes with its academic staff, will develop, implement, review and revise an Academic Workload Policy on a School basis.

30. Indeed, as discussed above, this was attempted in the School of Humanities, Arts and Social Sciences by Faculty management after the commencement of the Faculty structure, but unfortunately, in the same manner as in the School of Education, poorly executed by way of a process that did not comply with the Agreement generally, and in particular Clause 20.3.2. That is, in seeking to change to extant policies applying in the Schools in 2018, Faculty management, and specifically a team of management representatives of the Faculty, developed proposed new workload policies to put to Academic Staff in the Schools.

31. This proposal by Faculty management was asserted to use existing features of the extant policies (see KM 33 attached).

32. Again, it was clearly communicated to all Academic staff in the Faculty of HASSE that these models were developed by Faculty management representatives – comprising the Heads of School, the Dean and the Associate Dean Teaching and Learning and Associate Dean Research (protem) - and would be put to School meetings. As Associate Professor Judy Miller, Acting Head of School in the School of Education wrote in the email of 18 January 2018: HASS has brought two schools together plus staff from BCSS. We worked with three school policies plus the School of Education one. Therefore, we have developed a proposed policy (and procedures) which aligns areas of commonality across the now current two schools. Humanities, Arts and Social Sciences and Education. (see KM 33, email dated 18 January 2018).

33. This lack of compliance with collegial development, i.e. the failure to develop the Workload Policy with members of the Academic ‘college’ (the Academic Staff in the School of Education and the School of HASS), combined with the time of year which would naturally exclude effective consultation as required by Clause 20.3.2, meant that the only effective attempt at compliance with Clause 20.3.2 was the organisation of a vote in the Schools.

34. Nevertheless, Faculty management did recognise the voting requirement of Clause 20.3.2 in seeking in this first Faculty management attempt to change the extant policies. The Dean acknowledges this process in his witness statement of 27 March 2018 when he states: ‘Schools voted on their respective models during the week ending 16th February. Neither vote was successful.’ (Paragraph 8 of Witness Statement of the Dean dated 27 March 2018, UNE 2).

35. When announcing the outcomes of these votes in the newly established Faculty of HASSE by email, the Dean directed all Faculty staff to the maximum of the TSI index (see UNE2, Attachment 5). This direction was invalid by the terms of Clause 20.

36. As there is no provisions in the text of Clause 20 to terminate a School workload policy, or declare or assert Workload Policy has expired, the extant School Workload Polices applied in the School of Education and the School of HASS.

37. The Dean has agreed at hearing on 28 March 2018, the term ‘expire’ does not appear in Clause 20 generally, or specifically in Clause 20.3.2.

38. Following the invalid direction of the Dean on 20 February 2018, in recognition of the requirement of a vote in the absence of consensus, again the Dean and Faculty management put proposed workload policies to Academic staff in the Schools. Again, unfortunately there was no attempt at consultation as defined by Clause 8 Consultation Arrangements, let alone collegial consultation requirements of Clause 20.3.2.

39. Even in the context of the Dean’s invalid direction, and Academic staff working at the maximum TSI, the votes were unsuccessful. It was clear to union members in the respective schools that these proposed workload policies did not comply with the terms of the Agreement, and the Applicant demonstrates this below.

40. In the absence of a process to review, revise and replace the extant policies by way of consensus of a majority vote of eligible staff, the School Workload Policies identified in UNE 2 Attachment 2 apply.

41. The answer to Question 1 is yes.

Question 2: If the answer to Question 1 is “Yes”, then were those policies (or any one of them) invalid workload policies by reason of them being inconsistent with either the University’s Strategic Plan or academic mission of the School?

42. The answer to Question 2 is no. The Respondent has supplied the Commission with the University Strategic Plan 2016 and School of Education Strategic Plan 2016. All extant workload policies were approved by or at the commencement of 2016. No representative of the Respondent, with the exception of the Dean subsequent to his direction of 20 February 2018, has asserted that there is inconsistency between the University Strategic Plan 2016 and the extant School Workload Policies.

43. The University Strategic Plan is a 7 page document found at Attachment 8 the Dean’s statement of 27 March 2018 (UNE 2). It consists of large pictures and a broad text which discusses the Respondent’s purpose and names elements of the University’s strategy: to deliver excellent research with a high impact, to deliver an outstanding student experience, to diversify and grow income, to achieve digital dominance, improve operational resilience and create a bold and innovative culture (UNE 2, Attachment 8).

44. The Deputy Vice-Chancellor advises staff in this document that ‘together, we can do this’ and states: ‘Our quality has been endorsed through the attainment of consistent 5 star ratings. Our latest Excellence in Research for Australia (ERA) results have demonstrated significant improvement across the University..’. These statements were made by the Deputy Vice- Chancellor in 2016 and according to the evidence of the Respondent, all extant School Workload Policies were applied to Academic staff and have been reviewed and/or implemented in 2016.

45. The assertion that there is inconsistencies between this document and the extant School Workload Policies has been asserted to the Fair Work Commission by the Dean subsequent to his direction of the 20 February 2018, yet throughout this dispute the Respondent has failed to identify any examples of this. The evidence of the Dean on 30 May 2018 demonstrates there is no discernible inconsistency. Indeed the evidence of NTEU witnesses shows the direction of the Dean has had a negative impact on at least two objectives of the Strategy – the capacity to deliver quality research, and the capacity to provide a quality student learning experience – see evidence of Dr Rogers and Dr Page in their witness statements, and in transcript at PN 396 Dr Page discusses the difficulty in finding time to write research, and Dr Rogers discusses the reduction in time provided for students at PN 465 of the transcript.

46. Further, the assertion implies that all of the management representatives involved in the direct development of the School policies as required by Clause 20.3.2 – the Heads of Schools, and the Deputy Vice-Chancellor, failed to identify the Dean’s alleged inconsistencies at the very time that had promoted the University Strategic Plan, and reviewed, revised and implemented the School Workload Policies. The assertion is absurd, and is only offered in attempt to justify the direction of the Dean.

47. The absurdity of the assertion is demonstrated by the evidence of Dr McQueen, a member of the School of Education Workload Committee, who at points 2 and 3 of his witness statement of 28 May 2018:

2. I have attended numerous formal meetings across many years in the School of Education that have been called to discuss, consult about and draft Academic workload policies.

3. On no occasion that I can recall, during any of these meetings, did any management representative ever raise the University Strategic Plan specifically in relation to impact on formulations in the School of Education Workload Policy.

48. The Respondent has not offered any examples of Academic mission statements addressing inconsistency. The Respondent has provided the Commission with a copy of the School of Education Strategic Plan, advised to School of Education staff in December 2016 (Attachment 9, UNE 2).

49. There is no inconsistency between the six page School of Education strategic plan, and the extant School of Education Workload Policy. The former Head of School in Education, Professor Stephen Tobias, is the author of the School of Education plan, dated December 2016.

50. Contemporaneous to the development of this plan and its implementation, Professor Tobias was directly involved in the review process of the extant School of Education review in 2016 – see KM Attachment 2.

51. There is no evidence before the Commission that Professor Tobias or any other representative of the Respondent identified any inconsistency between the School of Education Workload Policy Professor Tobias implemented in 2016 and 2017, and the School of Education Strategic Plan Professor Tobias authored in December 2016. The very notion is absurd. The belated assertion is made in a poor attempt to justify the invalid direction of the Dean.

52. Finally, the Applicant submits that if the Respondent was to ever develop, in accordance with Clause 8 Consultation Arrangements, a Strategic Plan and/or School Academic Mission in which, viewing the documents objectively, an inconsistency could be discerned with an extant Workload Policy, the Applicant submits that the Academic Workload Policy would not be invalid in its entirety in any event.

53. The Applicant submits that in these theoretical circumstances, the Academic Workload Policy would simply not apply to the extent of any inconsistency, and would need to be reviewed and revised in accordance with the terms of Clause 20.3.2.

Question 3: If the answer to: (A) Question 1 is “No”, or (B) both Questions 1 & 2 are “Yes”, then,

In the absence of a valid Workload Policy being agreed in accordance with clause

20.3.2 of the University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017 was the Dean’s Direction on 20 February 2018 a lawful exercise of managerial prerogative (XPT Case: Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188).

54. The Applicants submissions are that valid extant Workload Polices applied in the relevant Schools in the Faculty of HASSE on 19 February 2018. The Applicant submits that the correct answer to Question 1 is Yes, and the correct answer to Question 2 is No, and Question 3 is not necessary.

55. In the alternative, in the absence of a valid Workload Policy being agreed in accordance with Clause 20.3.2, the obligation of the parties would be to develop and implement a Workload Policy agreed in accordance with Clause 20.3.2.

56. Further, in the alternative, in the theoretical circumstances that Clause 20.3.2 did not comprise part of the Agreement, and was not placed squarely in a section of the Agreement clearly titled Clause 20.3 Allocation of Workloads, the Applicant submits the Dean’s direction of 20 February 2018 would still not have been a lawful exercise of managerial prerogative, as per the XPT case (attached).

The XPT case – unjust and unreasonable

57. The XPT case provides that:

It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of the employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.

58. More recently, CFMEU and Essential Energy, Senior Deputy President

Hamberger cited the XPT case at paragraph 104:

The CFMEU has raised the issue of whether the actions of Essential Energy are a valid exercise of managerial prerogative. The relevant principle to be followed in these types of matters was set down in the XPT Case:

‘…the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.’

59. Senior Deputy President Hamberger then examines the principle of reasonableness and application at paragraphs 105 and 106:

105. The meaning of the term ‘reasonable’ (and the related term ‘reasonably’) was considered by French J (as his Honour then was) in Bropho: ‘There is a number of definitions of “reasonable” in the Shorter Oxford English Dictionary. The relevant ones are:

3. agreeable to reason; not irrational, absurd or ridiculous.

4. Not going beyond the limit assigned by reason: not extravagant or excessive; moderate.

The adverb “reasonably” is defined as “in a reasonable manner; sufficiently, fairly.”

There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done “reasonably” in one of the protected activities in paras (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgement. In this context that means a judgement independent of that which the actor thinks is reasonable. It does allow the possibility that there

may be more than one way of doing things “reasonably”.’

106. The test is not whether Essential Energy could have acted more reasonably, let alone whether the Commission would have taken the approach adopted by Essential Energy if it was the employer.

60. SDP Hamberger concludes that the management decision in this case was not a lawful exercise of managerial prerogative, and states at paragraph 110:

… Such a situation is objectively irrational, absurd and ridiculous. It easily fits the definition of ‘unreasonable’.

Unjust and unreasonable – assessing the facts of this dispute – no consultation

61. Firstly, the Applicant submits that even if the provisions of Clause 20 did not apply to the Respondent; the Dean’s direction would be unjust and unreasonable simply by applying the consultation commitments of Clause 8 Consultation Arrangements.

62. Clause 8 Consultation Arrangements at 8.1 provides that:

8.1.1 The University is committed to open discussion and direct consultation with employees and Unions about workplace issues. It is recognised that there will be significant consultation during the period of the Agreement on matters involving implementation of this Agreement, operational and cultural change and matters affecting employees generally or in a particular case. Such matters will be discussed in a spirit of cooperation and trust to ensure that employees and the Unions have an opportunity to raise workplace issues, to receive all relevant information on issues that affect them, to have an opportunity to contribute their views on those issues and to have meaningful involvement in decision making.

63. The Dean’s direction of 20 February 2018 was not a lawful exercise of managerial prerogative as the direction to work at the maximum of teaching workloads is clearly a matter affecting employees generally and in particular cases, and the allocation of work is a matter that, even in the absence of a clause regulating the allocation of work, would as a result of the consultation commitment above, require that all employees in the Faculty of HASSE would have the opportunity to raise workplace issues, receive all relevant information on issues that affect them, have an opportunity to contribute their views on those issues and have meaningful involvement in decision making. The direction of the Dean on 20 February 2018 denied Faculty of HASSE Academic staff even these basic commitments.

64. Dr Page confirms no consultation regarding the direction and its implementation at PN363 of transcript:

Ms Wells: Were you given any opportunity to provide feedback in respect of the allocation made to you by the direction on 20 February 2018?

Dr Page: No, I wasn’t. We were instructed that that was how it was going to work when we were given our allocation.

Unjust and unreasonable – assessing the facts of this dispute – the unjust and unreasonable consequences of the Deans direction

65. The Applicant argues that the Dean’s direction is unjust and unreasonable, for as a result of this direction the Respondent does not even now know the allocation of work that has been applied to these employees arising from the Dean’s direction. The crude direction to teach at the maximum of the TSI does not measure or calculate all forms of work. The Respondent is not aware of the allocations of work to Academic staff in this Faculty as a result of the incorrect application of this direction.

66. The Respondent has proven this in hearing on 30 May 2018. The Respondent provided a document to Dr Marg Rogers which the Respondent concerns was a correct record of the allocation of teaching to Dr Rogers, and learnt on the day this was incorrect. The document marked as UNE 4, the allocation of work alleged to be allocated to Dr Rogers, was demonstrated to be inaccurate, underestimating the work allocated to Dr Rogers – see transcript PN 425.

67. The direction of the Dean was both unjust and unreasonable, for as a result of the incorrect application of this direction, the Respondent is unable to assess the workloads allocated to Faculty of HASSE staff, and cannot meet the obligations of Clause 20 generally, let alone the specific obligations of the employer to allocate workloads that a healthy and safe, and ensure equitable and transparent allocations to Academic staff in the Faculty.

68. Further, there continues to be a lack of understanding by the Respondent’s representatives as to the impact of the direction on the implementation of teaching. For example, the Dean’s direction increases all teaching allocations to the maximum of the TSI index, and does not allow management representatives to apply the allocation of student teaching time required in the School of Education workload policy, being 40 minutes per student. This 40 minute allocation applied to the engagement of casual employees. It is why Dr Rogers explains that Dr Rogers and indeed all Academic staff who co-ordinate casuals have had a further workload increase. Specifically, in refusing to apply the School of Education policy, the Dean has refused to engage casuals to perform teaching allocations of 40 minutes per student, in accordance with the School of Education Workload policy (see point 4.2 at page 3 of the extant School of Education Workload Policy at Attachment 2 of UNE 2).

69. At PN 464 of the transcript, when Dr Rogers demonstrates that some Academic staff had casual contracts approved that provided the 40 minutes per student in accordance with the School of Education workload policy, and then there were some, like Dr Rogers, who had the application of this allocation refused, Dr Rogers demonstrates the unjust and unreasonable consequences of the direction of the Dean to direct all staff to teach at the maximum TSI, and refuse to apply the School of Education Workload Policy. Dr Rogers explains:

It has a number of impacts. Because I have colleagues – which is good – who put in their contracts and they got the amount, they got allocated the 40 minutes, there has been, I feel, an inequity for my students and for those that got this type of contract with reduced loads. I feel there is an inequity there. I also had to just pick up those 29 hours because I had already set up my unit in a certain way and once it’s set up and it’s there for the students, I can’t in week 3 when I got these changed forms and changed formulas – I couldn’t go back and say, “Oh, well, hang on. No, we’re not going to do that and we’re not going to do this activity” so it had a huge impact.’

70. Like other Academic staff in the School, the Dean’s direction to Academic staff in the Faculty, and refusal to apply the extant Workload Policies has had a huge impact on staff, increasing their direct teaching hours, and increasing all teaching related activities. This is unjust and unreasonable.

Unjust and unreasonable – the basis of the Dean’s direction was not reasonable as it had no rational basis, and the assertions subsequently given for the direction are unreasonable

71. The arguments made by the Dean in making the direction of Tuesday 20 February are unjust and unreasonable. The Dean asserts the basis for his direction to the Commission at PN 709:

‘It was that trimester 1 was looming and we had to have an allocation model in place so that workloads could be allocated to staff. But I think as I mentioned in my earlier witness statement, I was hoping the next model presented to the two schools would be voted up. Turned out not to be the case.

Why couldn’t you just stick with what was there in trimester 3 2017? Because we took the view that those models had either expired because of the dates on them, or they were redundant because the new faculty had – and particular HASS – had three schools coming together with three separate workload models.

But at that point in time you didn’t sit down and do a financial analysis of those policies? Not specifically, no.

You say not specifically? We were waiting for a budget allocation to come from the chief financial officer, which turned up later in March.

72. The Applicant submits that the unreasonable and irrational basis of the direction, contained in the same email advice and following the announcement of the unsuccessful votes in the Schools, was simply the Dean’s response to unsuccessful votes of the workload polices authored by the Dean and four other Faculty management representatives.

73. Subsequent assertions to justify the direction have been equally irrational and absurd. As has been clearly demonstrated by the evidence of Dr McQueen PN 146 and the evidence of the Dean PN 619 there is no direct relationship between ERA rankings ad funding.

74. Indeed, the Dean has made a number of irrational assertions in respect to research funding being directly related to ERA funding, admitting at PN 619 it is indirect at best, and when corrected makes further assertions about ARC grants, subsequently admitting at PN 678 of transcript has not read the ARC application guidelines, and that the basis of his assertions are ‘conversations with colleagues’.

75. It has been inferred by the Dean repeatedly that somehow increasing the teaching allocations of Faculty staff would have the consequence of focusing Academic staff research in a particular research direction for an unclear benefit to the Respondent. However the Dean acknowledges the irrational nature of the direction of Tuesday 20 February in evidence to the Commission at PN 693:

You make the point that you’re encouraging people to focus their research in a different way by your direction of 20 February?

No, I didn’t make that point.

You have advised the Commission that you’re encouraging employees to perform ERA research? That was part of the models that were put up for vote and were voted down. It had nothing to do with my direction of 20 February.

76. Indeed, on the basis of the evidence of Academic staff in the Faculty, it is clear that the only consequence of the direction to increase teaching allocations would be for staff to have less capacity to research, as Dr Page has identified in evidence.

77. Further, the statement of Dr McQueen indeed demonstrates research output rating improvements have been identified during the ongoing application of these policies (further statement of Dr McQueen dated 28 May 2018 at point 7), further evidence of the irrational and absurd nature of the direction.

Unjust and unreasonable – the ongoing application of the direction of the Dean was an unjust and unreasonable reaction accompanying the assertion that union members in the Faculty would oppose any proposed Workload Policy

78. The assertions of the Dean have been based on incorrect understandings of the terms of the Agreement, the sources of external funding, and the asserted views of the NTEU UNE branch. The Dean is asked by the Commissioner: Why haven’t you fixed it?’ The Dean states in reply at PN 724 of the transcript: ‘I think because the dispute basically meant – because our information was that the branch was campaigning against any models that were put forward, we decided that we would wait for the outcome of the dispute. Perhaps unwisely, but that’s what we decided.’

79. This statement demonstrates the unreasonable view that union members would oppose any workload policy proposal. This unjust and unreasonable view has no basis for evidence, and a cursory review of the proposed School of Education workload model dated 14 March 2018 demonstrates some of the problems with this draft proposal:

• Section 1 pa. 2 in the proposed model allowed workloads to be updated after census dates, which contravenes the University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017

• Section 2.2.2 refers to HERDC categories, which were made redundant by the Commonwealth on 1 January 2017

• The proposed model used a cumbersome and confusing mixture of points, EFTSL and hours to calculate staff workloads which bear no relation to the Agreement provisions

• The model proposed to create new service roles – some with unknown quantities of EFTSL reductions;

• The model set an un-negotiated benchmarking of service related to hours;

• The model calculated service using a 40/40/20 formula that does not appear in the University of New England Academic & ELC Teaching Staff Collective Agreement 2014-2017.

80. It was unjust and unreasonable to put Academic workload models to staff which proposed to contravene the terms of the current Agreement.

Conclusion

81. The Applicant further relies on NTEU and Victoria University and the cases listed in the Applicants F1 and F10 in respect of the principles of statutory interpretation.

82. The Applicant seeks an order that the School Workload Policies previously approved by Academic staff in compliance with Clause 20.3.2 and Clause 20, being the Workload Policies which applied to Academic staff in two Schools in the Faculty of HASSE on Monday 19 February 2018 identified in UNE 2 Attachment 2, will be applied to Academic staff in the Faculty of HASSE until they are replaced by policies that are compliant with Clause 20.3.2 and clause 20.

83. The Applicant seeks in addition to the orders sought above that any teaching work performed by Academic Staff in the Faculty of HASSE which is beyond the teaching allocated in the extant School Workload Policies will mean that the workload allocations for these HASSE Academic staff will be varied accordingly by reducing the teaching load in the next workload allocation period, being Trimester 2 2018.

84. This determination is available to the Fair Work Commission by way of Clause 58 Dispute Resolution Procedures of the Agreement, and would indeed be available to these Academic staff if they had agreed to undertake additional teaching beyond that provided for in the Workload policy, as per Clause 20.7.7 of the Agreement, which provides that: If an employee agrees to undertake additional teaching beyond that provided for in the Workload policy, their workload allocation agreement will be varied accordingly by reducing other workload within the same period or reducing the teaching load in the next workload allocation period.

85. Or such other decision or recommendation as the Commission deems appropriate and fair.”

Submissions - University

[28] In its final submissions the University submitted that,

“Question 1: As at 19 February 2018 were there in existence at the University of New England extant Academic Workload Policies that had application to the School of Education and or School of Humanities, Arts and Social Sciences?

3. The Respondent submits that there were no Academic Workload Policies ("AWP"s) in existence in either school as at 19 February 2018. There are two separate reasons why that was the case. The first reason relates to AWPs ceasing to exist on their expiry dates. The second reason relates to the non- applicability in the new School of Humanities, Arts and Social Sciences ("HASS") of AWPs that were developed for schools that ceased to exist on 31 December 2017.

School of Education - No AWP in existence as at 19 February 2018 because the previous AWP had expired

4. There was no AWP in existence in the School of Education ("SOE") as at 19 February 2018 because the most recent SOE AWP in existence expired according to its own express terms on 31 December 2016. This AWP is Attachment 2 to the Witness Statement of Dr Rogers (Ex #NTEU5) and expressly states in its title: "Effective 01 January 2015 to 31 December 2016".

5. The duration of the AWP was a specific point of discussion at the SOE Meeting held on 24 November 2014 where the SOE AWP was endorsed. This is set out in the Draft Minutes of that meeting (Attachment 13 to the Witness Statement of Professor Fitzsimmons, Ex #UNE5), the content of which was unchallenged. Under Item 3, which sets out issues raised and clarified at that meeting, the first clarification states: “Time Frame- to be two years from 1 January 2015 to 31 December 2016”?

6. The Applicant's witness, Dr McQueen, was present at that November 2014 meeting and he confirmed at the hearing of this matter on 30 May 2018 that the document being discussed at that meeting was the AWP that came into existence due to the consensus reached at that meeting (PN 280).

7. The express term of the AWP as to its effective period of operation is unequivocal. The inclusion of an express period of operation in a multi-party agreement is compelling evidence of the mutual intention of the parties. The adoption of the word, “effective" before the dates, “01 January 2015 to 31 December 2016" also objectively evidences specific attention to recording the limit of its effective operation. The extrinsic evidence of the minutes of the meeting during which a definite period of operation was raised and was the subject of discussion serves to confirm the mutual intention that there be a fixed period of operation.

8. There is another textual indication in the AWP that demonstrates that the parties intended it to have a fixed duration ending on 31 December 2016. This appears in section 2 of the AWP, which deals with 'Research and Scholarship - Publications, HDR Completions and External Grants', and provides for how calculations are to be performed for 2015 and 2016 only.

9. It is inapt to draw comparisons between the AWP and an enterprise agreement for the purpose of interpreting an express term in the AWP as to its period of operation. University (in this case, school-based) policies are of a different character from enterprise agreements, which are creatures of statute and operate under a special statutory scheme that specifically provides for their continued operation beyond their nominal (not actual) expiry dates (Section 54, Subsection 186(5) of the Fair Work Act 2009 (Cth) (the "Fair Work Act")). The bargaining representatives have made clear in sub clause 5.2 of the UNE Academic and ELC Teaching Staff Collective Agreement 2014 - 2017 (the "EA") that policies are not incorporated as terms of the EA. Accordingly, there is no reason to construe them as having effect for the duration of the EA, unless the policies provide as such, which they do not. AWPs are to be construed according to their terms, and recognising that they are school-based policies capable of being revised, amended and replaced by consensus at any time. Moreover in this case the 'parties' to the AWPs are not the same as the parties to the EA. The AWPs are ratified by consensus at school meetings or otherwise by vote of school staff.

10. For completeness, the EA imposes no prohibition on AWPs being put in place for a specified period of time.

11. With no SOE AWP policy in existence from 1 January 2017, and with no replacement AWP having been subsequently developed under sub clause 20.3.2 of the EA, the then Head of SOE decided to apply the provisions of the 2015-2016 SOE AWP, with necessary variations, during 2017. The decision to carry forward these provisions into 2017 was conveyed to SOE staff by the Head of School by email on 7 December 2016 (Ex #NTEU2, Attachment 2). Whilst the document embodying those provisions for 2017 was then published as the "Interim 2017 Workload Policy" (Ex #UNE2, Attachment 2) this was clearly not an AWP developed and voted upon in accordance with Sub clause 20.3.2 of the EA for 2017.

HASS- No AWP in existence as at 19 February 2018

12. HASS is a new school that came into existence from 1 January 2018. It comprises staff from the former School of Humanities, staff from the former School of Arts, and staff from the former School of Behavioural, Cognitive and Social Sciences ("BCSS"). Each of those former schools ceased to exist on 31 December 2017.

13. The AWPs of the three former schools are contained in Attachment 2 of Ex #UNE2. They all ceased to exist when those three schools ceased to exist on 31 December 2017. In the case of the BCSS AWP, it also ceased to exist on 31 December 2017 due to its express period of operation being for 2016-2017 only. In addition, clause 1.2 states:

"For two years from Trimester 1 2016 to the end of Trimester 3 2017 (in early 2018), this policy will be used to determine target workloads for all academic staff in BCSS who are on fixed or continuing contracts of at least one full trimester."

14. It is implausible to contend that HASS is no more than a "straight continuation" of three former schools as three separate areas within one new school. The evidence is quite to the contrary. The breakdown of those former boundaries is already evident in the lines of reporting, which currently involve staff reporting to supervisors who were in different schools to those staff in
2017. This was acknowledged by the Applicant's witness, Dr Battin, at the hearing on 30 May 2018 (PN71).

15. Dr Battin also confirmed the ongoing discussion within HASS about the creation of six clusters from the beginning of the second half of this year. This will involve clustering of staff across former school boundaries, such as sociology and criminology (parts of the former BCSS) combining in a cluster with philosophy, politics and international relations (parts of the former School of Humanities). This will involve an intermingling of staff that had different workload policies applying to them in 2017 (PN72-76).

16. No HASS AWP has yet been agreed by consensus or vote and put in place. This is despite management attempts to do so in accordance with Sub clause 20.3.2 of the EA for both HASS and SOE. (Ex #UNE2, paragraphs 7, 8 and 16 and Attachments 3, 4 and 7). The proposed AWPs voted down by HASS staff were dated 13 February 2018 and 5 March 2018, and the proposed AWPs voted down by SOE staff were dated 14 February and 14 March 2018. All of these proposed AWPs are contained in Attachments 4 and 7 of ex #UNE2.

17. The EA provides the mechanism, via Sub clause 20.3.2, for the development of new AWPs. It is that mechanism that must be used for this purpose, rather than an artificial approach of applying AWPs in the new school that were developed in former schools for the purposes of those former schools.

18. A reasonable person reading the text of each of these AWPs noting:

a) reference to the circumstances that existed at the time they were developed (for example, the Arts, "School Workload Policy 2014" that dates back to 2012 (see reference on last page of the AWP to "Whole School Meeting held on 10 August 2012"), and was developed before the commencement of the current UNE Strategic Plan 2016-2020 and the current EA (refers to the 2010-2012 EA (Preamble page 1); and

b) the many variations between them (see table at Ex#UNE2 Attachment 12 Comparison of previous Arts, Humanities and BCSS policies) would not objectively conclude that the AWPs were intended to operate in a different school which did not then exist and which would involve merger and intermingling of staff from other schools and the creation of new cluster groupings across the pre-existing school boundaries.

19. As a new school, HASS requires an academic workload policy that is "manageable and equitable" (sub clause 20.1.1) which provides for equitable distribution of workload on a consistent basis for all academic staff in the new school. This is not possible in the context of the variations between the AWPs shown in the table at ex#UNE2 Attachment 12. HASS also includes academic staff from the former BCSS, which had an AWP that expired according to its own express terms at the end of Trimester 3, 2017 (Ex #UNE 2 Attachment 2).

Question 2: Were those policies (or any one of them) invalid workload policies by reason of them being inconsistent with either the University's Strategic Plan or academic mission of the School?

20. The UNE Strategic Plan 2016-2020 (Ex #UNE2, Attachment 8) has a primary focus on research excellence that is not evident in the four AWPs in question. For example (from the Table in Appendix A):

a) "Deliver excellent research with high impact";

b) "We will achieve international distinction in research in our chosen fields, which will positively impact and strengthen our communities";

c) "Maintain a culture of research excellence"; and

d) "The new Strategic Plan promises a bold, creative and innovative research culture at UNE, seeking ways to diversify and grow the University's income base".

21. The evidence before the Commission relating to the nexus between Excellences in Research Australia ("ERA") recognised publications and external research income derived by the Respondent as a result of those publications is as follows:

a) Professor Fitzsimmons gave uncontested evidence (Hearing PN632, PN685 and PN688) that in order to obtain Australian Research Council ("ARC") or National Health and Medical Research Council ("NHMRC") Grants, academic staff applying for such Grants must have top-level publications, such as A1, B1 and C1 publications (being scholarly book, scholarly book chapter, scholarly refereed journal publications, respectively, as described by Dr McQueen at Hearing PN154 and see Ex#NTEU7 Attachment 11, ERA 2018 Submission Guideline, page 17 "research outputs").

b) As well as the Respondent deriving income directly by way of the ARC or NHMRC Grant itself (which is an obvious direct consequence), the ARC and NHMRC Grants also constitute Category 1-4 R&D Income for the purposes of the criteria used for determining the quantum of the Research Block Grant awarded each year to the Respondent. This is made clear in the August 2017

Research Block Grants document, August 2017 (Ex #NTEU7 Attachment 12) at the bottom of page 1, and the evidence of Professor Fitzsimmons (at Hearing PN633). As Professor Fitzsimmons further stated in evidence: "So the more money you get in category 1 to 4 grants the more money you get in the block grant" (Hearing PN600)

c) Dr McQueen conceded that the Respondent's R&D income is directly relevant to what the research block grant ("RGB") will be (Hearing PN244) and that the ARC grant income that the Respondent receives is R&D income for the purpose of the block grant distribution (Hearing PN245). This is despite the fact that data on A1, B1 and C1 publications is no longer, itself, collected for Higher Education Research Data Collection ("HERDC") purposes (Hearing PN201), but is the major measure of institutional research rankings, which impact RGB funding and the research status of the University, which in turn influences the capacity to be successful in gaining grant income (Ex#UNE2 paragraph 21).

22. Professor Fitzsimmons acknowledged in evidence that the Respondent had not given formal directions to academic staff not to engage in research that is not recognized for ERA purposes, referring to the academic freedom issues involved if the Respondent sought to do so (PN636-644 and 652). However, the issue under EA Sub clause 20.3.2 is whether a policy is consistent with the UNE Strategic Plan, not whether an inconsistency with the UNE Strategic Plan can be overcome in some other way such as through a management direction.

23. Professor Fitzsimmons provided extensive further evidence regarding inconsistencies between (A) the Respondent's Strategic Plan, its attendant Research Plan and the SOE Strategic Plan; and (B) each of the 4 AWPs in question at paragraphs 18-27 and 35-42 of his witness statement of 30 May 2018 (Ex

#UNES). This evidence was unchallenged.

24. Appendix A to these submissions is a table that summarizes the unchallenged evidence before the Commission regarding the inconsistencies between (A) the Respondent's Strategic Plan, its attendant Research Plan and the SOE Strategic; and (B) each of the 4 AWPs in question. The Commission should make findings of inconsistency in accordance with Professor Fitzsimmons' evidence.

25. The Respondent submits that these are inconsistencies of the type contemplated by the express term of Sub clause 20.3.2 of the EA that "The School Academic Workload Policy must be consistent with the University's Strategic Plan and academic mission of the School"; and thus render the four AWPs in question invalid and of no effect for the purpose of the EA.

Question3: In the absence of a valid Workload Policy being agreed in accordance with clause 20.3.2 of the University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017 was the Dean's Direction on 20 February 2018 a lawful exercise of managerial prerogative? (XPT Case: Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188).

The XPT Principle

26. The XPT principle, namely that the Commission should not interfere with the right of an employer to lawfully manage its own business unless it is imposing something which is unjust or unreasonable to its employees, is long-standing. It is not a principle that informs the lawfulness of managerial action. The Dean's Direction would only be unlawful if it was impermissible under the EA.

27.The Respondent accepts that the XPT 'principle' is one which may be taken into account in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer.

28. The 'principle', so far as it can have application in the present case is subject to the provisions of the Fair Work Act which govern the Commission's power to arbitrate.

29. One limitation with respect to dispute proceedings is that the management decision the subject of the dispute must be within the scope of the matter in respect of which private arbitration powers have been conferred on the Commission by the EA. Section 739(4) of the Fair Work Act empowers the Commission but only if the parties, by the relevant term in the agreement, have agreed that the Commission may arbitrate.

30. The Respondent accepts that the Dean's Direction constituted action taken with respect to a matter covered by the EA (specifically, teaching load to be allocated to academic staff) and, as such, this dispute about the Dean's Direction can be said to constitute a dispute about "matters arising under" the EA. For that reason, the Respondent accepts that the Commission has jurisdiction to arbitrate the dispute about the Dean's Direction by the terms of Clause 58 of the EA.

31. However there is another important limitation on the Commission's power.

Section 739(5) of the Fair Work Act has the effect that in this arbitration the Commission must not make a decision that is inconsistent with the Fair Work Act or the terms of the EA. It places a limit on the range of arbitrated outcomes available to the Commission; see Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [33]; Lloyd v Australia Western Railroad Pty Ltd [2017] FWCFB 143 at [36]; Lend Lease v CFMEU [2015] FWCFB 1889 at [20] and [23].

32. 1t is submitted that the Commission may not, consistent with the limitations on its power, intervene by way of arbitrated decision in the Dean's Direction, by invocation of the XPT principle, if the Dean's Direction did not impose upon employees workloads outside the permissible bounds provided for by clause 20 of the Agreement. In this regard sub-clauses 20.4.3 to 20.4.8 (inclusive), 20.5.6-20.5.10 and 20.7.4 are relevant. Put simply, the XPT principle cannot be called in aid of intervention, if the Dean's Direction has not resulted in the imposition of workloads exceeding those mandated by the EA.

33. Given that the Dean's Direction does not result in the school-level allocation of the same workload to all academic staff, the application of the XPT principle in the present case does not admit of or require a universal outcome.

The Dean's Direction

34. The Dean, Professor Fitzsimmons, issued a Direction by email on 20 February 2018 that "All Faculty academic staff will be allocated workload at the top of the TSI range (in accordance with Clause 20.7 of the CA), pro-rata for Trimester 1 (i.e. 50%)". The Direction also advised that "There will be a limited number of discounts on this allocation for clearly defined service roles." (Ex #UNE2, Attachment 5)

35. The drivers for issuing the Direction were that:

a) there were no AWPs in place and Trimester 1 was looming (PN709 and Ex#UNE2 paragraphs 6-9); and

b) a $2million cut to the Faculty budget (PN734 and Ex#UNE2 paragraphs 23-4).

35. As put on the record at the commencement of the hearing of this matter on 30 May 2018, it is agreed by the parties to this dispute that the Dean's Direction did not constitute an allocation of workload by Professor Fitzsimmons. Rather, the Dean's Direction left it to management at all levels of the two schools to allocate workloads to academic staff within the parameters of the Direction (PN35-37).

36. The Respondent contends that in giving the Direction, the Dean did not contravene any provision of the EA, and the evidence before the Commission as to the actual allocation of teaching loads does not show that the Respondent was seeking something from its employees which was unjust or unreasonable.

37. With the exception of Dr Lynch (although Dr Lynch's witness statements dated 5 April 2018 and 28 May 2018 were not tendered in evidence) as referred to in paragraph 49 below, there is no evidence of anyone working above 14.5 EFTSL (SOE) or 15 EFTSL (HASS) for Trimester 1, 2018 (Ex #UNEZ, Paragraph 12, Attachment 5, Ex #NTEU5, Attachment 4 and Ex#UNEZ, Attachment 6). This contrasts to the EA annual TSI limits of 29 and 30 EFTSL for SOE and HASS respectively (EA Sub clause 20.7.4).

Evidence as to the impact of the Dean's Direction

38. With respect to the impact of the Dean’s Direction on teaching allocations to individual staff, made at school level, the Applicant produced witness statements by two academic staff (Dr Page and Dr Rogers) who claimed that their heavy teaching loads during Trimester 1, 2018 were stressful for them.

39. Dr Page and Dr Rogers were both cross-examined by the Respondent. Both gave evidence that, whilst their teaching load during Trimester 1, 2018 would have been less if not for the Dean's Direction (which the Respondent concedes), the principal reasons for the increase to their teaching load in Trimester!,2018 were unrelated to the Dean's Direction.

40. Dr Page's actual TSI for Trimester 1, 2018 is 14.25 EFTSL which is approximately 1.95 teaching hours per day (#UNE3 EFTSL TI FOR DR ANGELA PAGE and Ex#UNES, paragraph 52, hours estimate based on 14.5 EFTSL).

41. Dr Page's evidence was that the principal reasons for her workload increase during this trimester were she had "a lot of online students in terms of unit coordination management” (PN344) and she needed to rewrite a unit (PN347) because of a restructuring change relating to use of casuals. At PN348, Dr Page stated:

"In the first two weeks, I was spending a lot of time, nights and weekends rewriting a component that was axed by the Dean because of a shift in the casualisation contract. That's what I take issue with."

42. The increased workload referred to in paragraph 41 above, relating to the way casuals are to be utilised, clearly does not flow from the Dean's Direction, but stemmed from a separate decision of the Dean (see paragraph 45 below). Similarly, unit coordination did not attract a discount under the SOE AWP that previously applied, as conceded by Dr Page (PN359).

43. The actual teaching load to Dr Rogers for Trimester 1, 2018 was 8.75 EFTSL, which is approximately 1.5 teaching hours per day (#UNE4 UNIT COORDINATION ALLOCATION FOR DR ROGERS FOR 2016, 2017 AND NOTIONALLY 2018 and Ex#UNES, paragraph 51).

44. Quite separate from this allocated teaching load, Dr Rogers gave evidence that, of her own volition, she took on teaching responsibilities for an additional 45 students to avoid those students being taught by a new member of staff who lacked confidence (PN446).

45. Dr Rogers also gave evidence that she needed to do another 29 hours work due to a reduced allocation of casual support. Again this did not result from the Dean's Direction, as conceded by Dr Rogers at PN454.

46. Dr Page also conceded that the Dean's Direction related only to the teaching component of academic workload, and not to the research and service components of that workload (PN463). Professor Fitzsimmons gave evidence that trimester time is 16 weeks (SOE) and 24 weeks (HASS) leaving the rest of the year, including Trimester 3 mainly for curriculum development, refreshing and developing units, service work and research (PN773-778).

47. The witness statement of Dr Chan and Dr Lynch (noting Dr Lynch's statements dated 5 April 2018 and 28 May 2018 were not actually tendered as Exhibits by the Applicant) also do not show that the Dean's Direction imposed an unreasonable burden on them.

48. As set out in an email to her supervisor dated 21 March 2018, Dr Chan states she was above her teaching allocation for 3 weeks while waiting for casual contracts to be processed (#NTEU4 paragraph 5 and Attachment 1). The evidence as to Dr Chan's actual teaching load is 13.850 EFTSL (#NTEUS, Attachment 4) or 14.125

EFTSL (#UNES, paragraph 56).

49. ln his first witness statement dated 5 April 2018 (not tendered in evidence), Dr Lynch stated that he had a combined teaching load for 2018 of 29 EFTSL (20 in undergraduates in Trimester 1, 3 in undergraduates in Trimester 2, and a further 6 in postgraduate students across the year). He was also entitled to a reduction of 6 EFTSL due to previous higher-than-load teaching. The attachment to Dr Lynch's second witness statement dated 28 May 2018 (not tendered in evidence) shows that on 21 May 2018 he was offered marking relief due to this overload situation, to casualise most if not all of his marking in Trimester 2, 2018, compensating for the EFTSL load carried forward from 2017.

50. There is no evidence to suggest that as a result of the Dean's Direction employees have been allocated a workload that requires excessive or unreasonable hours (EA Sub clauses 20.4.1and 20.4.2), including with regard to:

a) the total number of teaching and/or required hours worked on a particular day, teaching period, or year;

b) the number of teaching and/or required hours worked without a break;

c) the period of time, being no less than 4 weeks between sessions including examination periods, for teaching-related duties carried out between the cessation of lectures in one teaching session and the commencement of lectures in the next;

d) the number of consecutive days of the week during which teaching and/or required duties are scheduled;

e) health and safety requirements;f) the employee's general workload;

g) the number and size of units coordinated by an individual employee; and, h) the obligations under clauses 20.3.1 (Equity) and 15 (Flexible and Family Working Arrangements).

51. There is no evidence to suggest that as a result of the Dean's Direction any employee:

a) is required to engage in teaching that exceeds 220 hours over the year (EA Sub clause 20.4.3);

b) undertakes teaching duties over a span of greater than 8 hours in one day(EA Sub clause 20.4.4);

c) teaches outside the hours of 8 am to 6pm Monday to Friday, on weekends or public holidays (EA Sub clauses 20.4.5 and 20.4.6);

d) teaches overseas (EA Sub clause 20.4.7);

e) was given inadequate notice or not consulted with regarding assignment to introduce new units or extend modes of delivery (EA Sub clause 20.4.8);

f) teaches more than 2 out of 3 trimesters or 5 out of 6 trimesters (EA

Sub clauses 20.5.6 and 20.5.7);

g) has not received consideration in determining research activity (EA Sub clause 20.5.8);

h) is required to work more than 3 out of 5 overlapping sessions of work that would prevent the use of 12 weeks per annum free from teaching responsibilities (EA Sub clause 20.5.9);

i) is required to work in a pattern that would prevent taking a 4 week block of annual leave per annum (EA Sub clause 20.5.10);

j) is not engaging in a balance or combination of teaching, research and service over a year (EA Sub clauses 20.2.1and 20.7.8); or

k) was required to move to an Education Scholar Role (EA Sub clause 20.2.2(b)).

52. There is no evidence that the Dean's Direction was implemented at school level other than within the terms of the EA, including the following Sub clauses:

a) 20.7.2 - which requires timely teaching relief for employees who exceed maximum levels;b) 20.7.4 - which requires variation for the principles in Sub clause 20.3.1 and stipulates cluster ranges for TSI loads;

c) 20.7.6 which requires teaching relief for Course Co-ordinators (explicitly provided in the Dean's Direction);

d) 20.4.2 (f) regarding the employee's general workload;

e) 20.3.1 which states 5 principles should apply in the determination and allocation of workloads, including "Mix", "Equity", "Flexibility" "Responsiveness" and "Transparency"; and

f) 20.3.2 which requires development of School AWPs through consultation and voting (See UNE#2 paragraphs 7, 8 & 16 and Attachments 3, 4 and 7).

53. The SOE Trimester 1, 2018 academic teaching load spreadsheets tendered in evidence (dated 21 February 2018 -Attachment 4 to Ex #NTEUS, and dated 27 March 2018 - Attachment 6 to Ex #UNE2) show that the Dean's Direction was implemented having regard to the requirements of EA Clause 20 and the individual circumstances and workload of employees. Variations for individual circumstances were made in the 21 February 2018 document and the 27 March 2018 document shows additional changes as set out below. This is also consistent with the evidence of Professor Fitzsimmons (paragraph 13 of his witness statement Ex #UNE2) that staff were advised of individual EFTSL in draft form which was confirmed once feedback was received.

SOE Advised EFTSL dated 21 February 2018 - Attachment 4 to Ex #NTEUS Individual Variations

a) column titled "TOTAL T1 2018 (FROM 29 FOR YEAR)", which shows a maximum of 14.5 EFTSL for any employee, which is within the SOE range in EA Sub clause 20.7.4,

b) column titled "ADVISED EFTSL relative to apt fraction", which shows EFTSL is relative to employment fraction;

c) column titled "Course Coordinator", which shows 2.5 EFTSL reduction for Course Co-ordinators;

d) column titled "Supervision (half full allocation)", which shows numerous reductions for supervision, at the level prescribed in the EA;

e) column titled "SSP dates and Notes", which shows reductions for "Special Study Leave", including for Bob Boughton and Susan Feez, and for "other service roles", for Michelle Bannister-Tyrell, and for Rob Whannell.

SOE Advised EFTSL dated 27 March 2018 Attachment 6 to Ex #UNE2 - Further Variations shown from 21 February 2018 (correlated by line to the named staff members in Attachment 4 to Ex #NTEU5 and references in column titled "SSP dates and Notes")

a) HRD Co-ord 0.5 position split between Trimesters and reduction from 11.2 to 5.6 for Adele Nye;

b) "Acting Course Coordinator for Feez and Chair T & L" and reduction from 11.085 to 2.420 for Brenda Wolodko;

c) BEDSPDS/DlSSTUD to 31 June 2018 and reduction from 13.700 to 11.700 for Zuocheng Zhang; and

d) Acting CC to June 2018 and reduction from 11.800 to 10.550 for Kathy Jenkins.

54. Timely teaching relief where maximum levels are exceeded was provided to Dr Page and Dr Rogers. For example, the spreadsheet Ex #UNE3 shows Dr Page was provided with casual teaching and marking relief by 2 other staff members for EDUC540 reducing her EFTSL for that unit to 7.375. Her actual EFSTL after the relief was 14.25. The spreadsheet Ex #UNE4 shows Dr Rogers was responsible for teaching 1 unit (EDEC344) in T1 2018. Dr Rogers' teaching allocation following allocations to three other staff is less than 10 EFTSL at 8.750.

55. Other accommodations that have been made at school level include:

a) Dr Chan- casual teaching relief (#NTEU4 paragraph 5 and Attachment 1);

b) Dr Rogers - additional casual marking relief for 60 assignments due to her taking on teaching of students of an inexperienced staff member (PN 446);

c) Dr Lynch- casual marking relief for Trimester 2, 2018 (see paragraph 49 above).

56. Clause 20.3.1 "Responsiveness” requires allocation of workload to take into consideration the budget of the Faculty. Professor Fitzsimmons gave extensive evidence about the Faculty's budgetary constraints and consideration as related to workload allocation with these (#UNE2, paragraphs 23- 28 and Attachments 10,

11, #UNES paragraphs 28-33 and PN718, 719).

Appropriate Form of Relief

57. Any decision (and consequential Order) by the Commission in resolution of this dispute is constrained by section 739(5) of the Fair Work Act, which requires that the decision must not be inconsistent with the Act or the EA.

58. In the event that the Commission finds that an AWP was in existence as at 19 February 2018 and consistent with the University's Strategic Plan, the appropriate Order should be that the Respondent apply that AWP with prospective effect, and that the workloads for individual staff for the whole of 2018 (being the three 2018 trimesters and periods between those trimesters) be within the overall annual workload requirements set out in the AWP.

59. In the event that the Commission finds that a valid AWP was not in existence as at 19 February 2018, but the Commission should intervene in the Dean's exercise of managerial prerogative to issue the Direction with respect to a particular employee or class of employees, then the Commission should identify the employees by reference to which the Dean's Direction is found to have imposed an unjust or unreasonable burden and the parties should be directed to jointly prepare draft orders to give effect to the Commission's decision.

60. If the parties are unable to agree upon draft orders the matter should be relisted for the hearing of submissions in relation to the appropriate form of final orders.

61. In any event, the Interim Order issued by the Commission on 28 March 2018 should be vacated.”

Consideration

[29] It is useful to again set out the terms of Clause 20.3.2 of the Agreement,

“Each School, through collegial consultative processes with its academic staff, will develop, implement, review and revise and Academic Workload Policy on a School basis. The Academic Workflow Policy will be considered by the Deputy Vice-Chancellor who will provide input. A School meeting will be called to consider the policy and it will be ratified by consensus. Where consensus cannot be reached, a majority decision by vote of the applicable School staff, will determine the School Academic Workflow Policy. The School Academic Workload Policy must be consistent with the University’s Strategic Plan and academic mission of the School.”

[30] In the Interim Orders Decision I observed the following,

“[47] What is immediately apparent from the Agreement is that it does not expressly deal with the situation where, as in the present case, the University restructures its Schools. The Agreement does not expressly deal with what is to occur if a completely new School is created until such time as the staff votes to approve an Academic Workload Policy. The Agreement does not expressly deal with what is to apply in the interim.

[48] However, it is to be noted that in the present matter:

a) the School of Education previously existed and continues to exist;

b) the School of HASS is a new School (although not completely new as it would be if it did not comprise constituent units that previously existed – as it does).

[49] Because the School of Education continues to exist and the School of HASS comprises Schools previously in existence, it seemed to me, on a provisional basis, that it was almost fictional to suggest that there are no existing Academic Workload Policies in place in the Faculty of HASSE.

[50] The problem with the University’s argument is that it necessarily follows that, in order to defeat an Academic Workload Model that the University does not like all the University has to do is to restructure the Schools. Then the University can argue that no Academic Workload Policy applies until one is voted up by the staff in each of the new Schools. It seems unlikely that was the objective intention of the parties when the Agreement was negotiated.

[51] Having considered the terms of the Agreement and the evidence I was satisfied that if the evidence remains as it is, there is an arguable case with some reasonable prospect of success that the University has not complied with clause 20.3.2. This is because it seems likely that to allow the University’s construction to prevail would significantly undermine the operation of the Agreement and the objective intention of clause 20.3.2 which is based on a collegiate model and a majority vote.

[52] To the extent that the University submitted that the Academic Work Load Policies of each of the Schools were (now) inconsistent with the University’s Strategic Plan there may be some merit in the argument. However, at this preliminary stage of the proceedings, it was not sufficient to deprive the NTEU of being able to establish that it had an arguable case with some reasonable prospect of success.”

[31] Having considered all that has been put in relation to the matter, nothing that transpired at the substantive hearing dissuaded me from this preliminary view.

Question 1 - As at 19 February 2018 were there in existence at the University of New England extant Academic Workload Policies that had application to the School of Education and or School of Humanities, Arts and Social Sciences?

[32] It is common ground between the parties that the School of Education had an Academic Workload Policy effective from January 2017. It is stated to be “interim”, but nonetheless was in operation as at 19 February 2018. However, noting that under the terms of the Agreement an AWP is to be developed, reviewed and revised through a collegial consultative process, it is inconsistent with the terms of the Agreement for an AWP to have an effective expiry date. To the extent that the School of Education AWP has an expiry date it must operate like a nominal expiry date operates in relation to an enterprise agreement. That is to say, until an AWP is reviewed and revised and ratified by consensus or determined by a majority (as required by clause 20.3.2 of the Agreement) it continues to apply. There is no scope within the plain and ordinary construction of clause 20.3.2 for an AWP to expiry.

[33] In relation the School of Humanities, Arts and Social Sciences (HASS) it is to be remembered that it comprises the former Schools of:

a) Humanities,

b) Arts; and

c) Social Sciences (part of the former School of Behavioural, Cognitive and Social Sciences).

[34] The School of Humanities had an AWP. It is undated (but endorsed on 13 November 2015). However, it was common ground that it was applied up until the Dean’s Direction. It was, therefore, extant on 19 February 2018.

[35] The School of Arts had an AWP that is dated “2014”. It does not provide for expiry. It was common ground that it was applied up until the Dean’s Direction. It was, therefore, extant on 19 February 2018.

[36] The School of Behavioural, Cognitive and Social Sciences (which included the Social Sciences staff that became a part of the School of HASS and the Faculty of HASSE) had an AWP dated “(2016-2017)”. It was said to operate “to the end of Trimester 3 2017 (in early 2018).” However, for the reasons already explained above, the concept of an AWP having an effective expiry date (as opposed to a nominal expiry date) it foreign to the operation of the Agreement which expressly provides for a collegial process to “develop, review and revise” AWPs. It was, therefore, extant on 19 February 2018.

[37] When the merger of Schools occurred that resulted in the Faculty of Humanities, Arts, Social Sciences and Education (HASSE) comprising the two schools, the School of Education and the School of Humanities, Arts and Social Sciences the work of the academics in each of these Schools did not change (although some reporting lines did).

[38] The commencement of HASSE on 1 January 2018 did not come from nowhere. It was not a completely new creature without context or history. To suggest that the Faculty (and the two Schools that it comprises) began afresh and that all that occurred before was a nullity is as flawed as the doctrine of terra nullius (that for many years was thought to apply Australia following European settlement).

[39] While is to true that the Agreement does not expressly provide for the creation of a new Faculty or new Schools it would require a complete re-writing of the Agreement to allow for the Dean’s Direction. Such a re-writing is inconsistent with the Berri principles. The parties are stuck with the bargain they struck. The present circumstances must fit within the terms of the Agreement and clause 20.3.2 is the only clause that can be of use in this endeavour. In point of fact, the University knows this to be true. It applied clause 20.3.2 in an attempt to implement new AWPs. It was correct to employ this device. However, once it failed to replace the Attachment 2 Workloads, it was not entitled to act unilaterally by way of the Dean’s Direction.

[40] In order for an existing Academic Workload Policy to be replaced it must occur through the operation of clause 20.3.2. That is to say, it must be by a collegiate process and, absent consensus, determined by majority vote. There is nothing ambiguous about the language of the clause. The requirements to bring about a new Academic Workload Policy have not occurred at the University. Attempts were made (because the University knew the process that was required of it), but they failed. This did not give licence to the Dean to act unilaterally and impose any “interim” measure. Consequently, the Attachment 2 Workloads continue to apply.

[41] For these reasons the answer to Question 1` is “Yes”.

Question 2:  If the answer to Question 1 is “Yes”, then were those policies (or any one of them) invalid workload policies by reason of them being inconsistent with either the University’s Strategic Plan or academic mission of the School?

[42] During the interim hearing Professor Fitzsimmons gave evidence that the “expired” School of Education AWP was inconsistent with the University Strategic Plan 2016-2020 (University SP) and the School of Education Strategic Plan 2016-2020 (SoE Plan). He contended that the inconsistency arose because the University SP and SoE Plan focus on high field impact research and progress towards an improved ERA research ranking and the SoE AWP allows for discounts for non-ERA research outputs. He also pointed to the budget impact of the Attachment 2 Workloads.

[43] At the substantive hearing Professor Fitzsimmons repeated the above criticisms of the SoE AWP. While noting that this is now the criticism made of the Attachment 2 Workloads, it is to be noted that at no time since they were approved did the University raise the alleged inconsistency with the relevant Schools. The Attachment 2 Workloads operated alongside the University SP (which commenced in 2016) for all of 2017. The current complaint that the Attachment 2 Workloads are inconsistent with the University SP is a recent invention. As late as 6 March 2018 (when Professor Fitzsimmons wrote to all staff about the workload models) he did not raise inconsistency with the University SP. The University SP was not mentioned at all.

[44] I have carefully studied the University SP, its purpose, strategy and aspiration. I see nothing in it that is restrained by the operation of any of the Attachment 2 Workloads. While those workloads provided for discounts for non-ERA research outputs they are not mandated. To the extent that non-ERA research outputs are not valued by the University or considered to be inconsistent with the University SP staff can be lawfully directed not to undertake that work. To the extent that there is any inconsistency (and there is not), the University is empowered to resolve the issue. Professor Fitzsimmons conceded this point during his evidence at the substantive hearing. That is to say, to the extent that the Attachment 2 Workloads do not align with the University SP, the University can resolve the issue. Non-alignment does not equate to inconsistency.

[45] The academic mission of the School of Education provides that,

“The aim of the School of Education is to provide world class teacher education in both online and on-campus modes of learning and teaching through critical analysis, appropriate technologies and advanced pedagogies.”

[46] Having carefully considered the SoE AWP I see nothing in it that is inconsistent with the academic mission of the School of Education. Further, the evidence is that under the current SoE AWP the School’s ranking improved. This is evidence of the SoE AWP supporting the SoE’s academic mission and that of the University, not detracting from it, or in any way, being inconsistent with it.

[47] At the substantive hearing Professor Fitzsimmons complained that the:

a) School of Arts AWP contains “discounts for research” however does not specify categories of ERA-related research; and

b) School of Behavioural, Cognitive and Social Sciences AWP does not mention any ERA-related specific classifications.

[48] The absence of something does not mean that either AWP is inconsistent with the University SP. There is certainly no direct conflict (as that term is properly understood) having regard to the language of the AWPs and the University SP. There is nothing in the operation of the AWPs that prevents the University from achieving its Strategic Plan.

[49] To the extent that Professor Fitzsimmons made other complaints about the operation of the AWPS (paragraphs 18, 21, 23, 24, 26, 30, 31, 35, 36, 38, 39 and 42) those paragraphs were appropriately objected to on the basis that they contained opinion evidence and were not admissible to prove the existence of a fact about the existence of which Professor Fitzsimmons expressed the opinion.

[50] Further, it seems that part of Professor Fitzsimmons' complaint is based on an assumption that the workloads at the University should be based on 40% teaching, 40% research and 20% service. While that is a common allocation it is not expressly provided for in the Agreement.

[51] For these reasons the answer to Question 2` is “No”.

[52] Because:

a) Question 1 has been resolved in the affirmative; and

b) Question 2 in the negative,

it is unnecessary to consider Question 3.

Conclusion

[53] For the reasons set out above, the Commission, as presently constituted, has determined that the answers to the Applicant Questions are as follows:

Question 1: As at 19 February 2018 were there in existence at the University of New England extant Academic Workload Policies that had application to the School of Education and or School of Humanities, Arts and Social Sciences?

Answer: Yes.

Question 2:  If the answer to Question 1 is “Yes”, then were those policies (or any one of them) invalid workload policies by reason of them being inconsistent with either the University’s Strategic Plan or academic mission of the School?

Answer: No.

Question 3: If the answer to:

Question 1 is “No”, or

(B) both Questions 1 & 2 are “Yes”, then, 

In the absence of a valid Workload Policy being agreed in accordance with clause 20.3.2 of the University of New England Academic and ELC Teaching Staff Collective Agreement 2014-2017 was the Dean’s Direction on 20 February 2018 a lawful exercise of managerial prerogative (XPT Case: Australian Federated Union of Locomotive Enginemen and State Rail Authority of New South Wales (1984) 295 CAR 188).

Answer: N/A

[54] The Interim Orders 40 made on 28 March 2018 are now made final. Further, to the extent necessary, where the Dean’s Direction resulted in employees undertaking additional teaching beyond that provided for in the Attachment 2 Workloads, their workloads for the balance of the year must be adjusted.

COMMISSIONER

Appearances:

Ms J Wells, Industrial Officer, NTEU for the Applicant.

Mr S Andrews, Executive Director, AHEIA for the Respondent.

Hearing details:

10:00am Wednesday, 28 March 2018.

Sydney with video link to Armidale and Melbourne.

10:30am Wednesday, 30 May 2018.

Armidale.

Final submissions:

18 June 2018

Final tender of statement:

23 July 2018

Printed by authority of the Commonwealth Government Printer

<PR700113>

 1   PR601592.

 2   [2018] FWC 1913.

 3   Agreement, clause 58.1.

 4   Agreement, clause 58.3.4.

 5   [2014] FWCA 7206, para [5].

 6   Agreement, clause 3.1.

 7   [2014] FWCA 7206, para [4].

 8   Attachment 2 to the Witness Statement of Professor Fitzsimmons, Exhibit UNE-2.

 9   [2017] FWCFB 3005.

 10   [2014] FWCFB 7447 at [41].

 11   [2017] FWCFB 3005.

12 (2005) 222 CLR 241.

13 Ibid at 246.

 14   Ibid at 262.

 15   Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Jayne JJ.

 16   [2017] FWCFB 1621 at [21].

 17   Kucks v CSR Limited (1996) 66 IR 182 at 184.

 18   City of Wanneroo v Australian, Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440; See in general Golden Cockerel at [19]–[22].

 19   [2006] FCA 616.

 20   Ibid at [26].

 21   [2015] FCAFC 142.

 22   Ibid at [108].

 23   NTEU v La Trobe University [2015] FCAFC 142 at [109] per White J.

 24   (2009) 188 IR 297 at [19]-[22].

 25   (1982) 149 CLR 337.

 26   Ibid at 352.

 27   Ibid

 28   Ibid

 29   (1996) 66 IR 182 at 184.

 30   [2017] FCA 346 at [29].

 31   See Howard Smith and Co Ltd v Verawa (1907) 5 CLR 68 at 78; Farmer v Hanon (1919) 26 CLR 183 at 197 and White v Australian and New Zealand Theatres Ltd (1943) 67 CLR 266 at 275 and 281.

 32   Administration of Papua New Guinea v Daera (1973) 130 CLR 353 at 446; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 348.

 33   (2008) 251 ALR 322 at [35] per Gummow, Hayne and Kiefel JJ, and at [163] per Heydon J.

 34   [2009] NSWCA 407 at [319] per Allsop P.

 35   Metcash at [330].

 36   (1994) 36 NSWLR 290 at 304.

 37   Ibid at 312.

 38   Ibid

 39   (1978) 95 DLR (3d) 242 at 262.

 40   PR601592.