DECISION

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

National Tertiary Education Industry Union
v
Deakin University
(C2021/1023)

Dispute over the meaning of the Deakin University Enterprise Agreement 2017 – rate of ‘salary’ for redundancy purposes.

[1] Lizeth Rodriguez was employed by Deakin University as a Student Adviser, International at the University’s Geelong campus, commencing on 3 December 2018. She was employed to work on a time fraction of 0.5 (or the equivalent of 50% of full time hours). On 7 October 2020 Ms Rodriguez was notified that her position was to be made redundant.

[2] Ms Rodriguez accepted the notice of redundancy and elected to depart early from her employment. However, there is a dispute about Ms Rodriguez’s entitlement to redundancy pay under the Deakin University Enterprise Agreement 2017 (the Agreement). This is because at the time she was notified of redundancy, Ms Rodriguez was seconded to the University’s Burwood campus, also working as an International Student Adviser, but on a 0.8 time-fraction (or the equivalent of 80% of full-time hours).

[3] Ms Rodriguez says her redundancy entitlement should be calculated on the 0.8 time-fraction that applied to her employment at the time of her redundancy. The University says it should be calculated on the 0.5 time-fraction that applied to Ms Rodriguez’s substantive role, which is the position it made redundant. The value of the dispute – or the difference between the two – is approximately $13,300.

[4] I find that Ms Rodriguez’s redundancy pay entitlement is to be calculated on the 0.5 time-fraction applicable to her substantive role. These are my reasons.

The facts

[5] Ms Rodriguez’s contract of employment is dated 23 November 2018. It provides for her continuing appointment as Student Adviser, International, on a time-fraction of 0.5 (18.375 hours per week), from 3 December 2018. The location and area of the role is described as Geelong Waterfront Campus, Division of Student Life, Student Engagement and Experience.

[6] Ms Rodriguez was a member of the University’s professional staff and was classified as a Higher Education Worker (HEW) 6 under the Agreement. She commenced employment in Step 1 of the HEW 6 classification and later progressed to Step 2. From 1 March 2020, the annual salary applicable to an employee classified as HEW Step 2 was $82,843 (see Schedule A to the Agreement).

[7] On 2 December 2019, a letter of offer for a secondment opportunity was issued to Ms Rodriguez. The offer describes the position of International Student Adviser, Specialist Student Support, Student Life, Burwood Campus, on a 0.8 time-fraction. The purpose of the secondment was backfilling the role of another International Student Adviser on extended leave. The letter details the University’s expectation that the secondment commence on 2 January 2020 and finish on 1 January 2021, subject to termination at any time by the University on four weeks’ notice. At the end of the secondment, the letter confirms that Ms Rodriguez would return to her “continuing part time substantive position of International Student Adviser within Specialist Student Support”.

[8] The notification of impending redundancy given to Ms Rodriguez on 7 October 2020 says this:

“… in accordance with clause 69.1 of the Deakin University Enterprise Agreement 2017 (the EA) your position as International Student Adviser is no longer required to be performed by the University.”

[9] It provides detail about matters relevant to the redundancy for Ms Rodriguez to consider, having regard to the terms of the Agreement.

The Agreement

[10] There is no dispute that the Agreement covered and applied to Ms Rodriguez in relation to her employment with the University.

[11] Clause 69 of the Agreement deals with redundancy. Clause 69.1 deals with notice of redundancy:

“69.1 Where the University has genuinely decided that a staff member’s employment is likely to be terminated because the position of one or more staff members is no longer required to be performed for reasons of an economic, technological, structural or similar nature, including:

(a) a decrease in student demand or enrolments in any academic course or unit or combination or mix of courses or subjects;

(b) a decision to cease offering or to vary the academic content of any course or subject or combination or mix of courses or subjects;

(c) for a professional staff member, re-organisation;

(d) financial exigency; or

(e) changes in technology or work methods,

the University will, at the earliest reasonably practicable time, provide advice to the staff member or members concerned and the NTEU that the staff member’s position is redundant. The advice will contain notice of the date on which the employment will end, unless the staff member is redeployed. The University must either provide at least 26 weeks’ notice of the date of termination or make a payment in lieu of all or part of the notice, and advise the staff member of their options under clause 69.2.”

[12] Under clause 69.2, an employee who has been notified of redundancy can pursue mitigation strategies with the University (such as redeployment) or can elect to depart early. An employee who elects to depart early is entitled to redundancy pay in accordance with clause 69.4 of the Agreement.

[13] Clause 69.4 of the Agreement says this:

“69.4 A redundancy payment (inclusive of any notice required under the NES) under this clause shall be calculated on the staff member’s Salary at the date of cessation of employment as follows:

Entitlement	Maximum entitlement in number of weeks
Severance pay of 2 weeks’ Salary per completed year of Service	52 weeks
Payment in lieu of the unexpired part of the notice given in 69.1.	26 weeks

 weeks

[14] Salary is defined in clause 72 of the Agreement as “the rate of pay applicable to a staff member’s classification as specified in Schedules A, C or H of this Agreement. The salary for a staff member employed under a senior staff performance contract will be the salary referred to in the staff member’s contract. A reference to payment on “full pay” is a reference to the staff member’s salary and a reference to payment on “half pay” is a reference to payment at half of the staff member’s salary.”

The entitlement to redundancy pay

[15] An entitlement to redundancy pay depends on the position that is made redundant, the terms and conditions of employment attached to that position and the particular facts and circumstances of the case. In this case, the position being made redundant was the continuing position held by Ms Rodriguez at the Geelong campus. This is confirmed by the words “your position” in the notice of redundancy issued on 7 October 2020, which must refer to the position held by Ms Rodriguez on a continuing basis. This is because the position to which Ms Rodriguez was seconded for the purposes of backfilling another employee was not her position. It was the position of another person, who was on extended leave. Consistently, the estimate of Ms Rodriguez’s redundancy pay entitlement attached to the notice of redundancy referred to her “current fraction” of 50% - the fraction then applicable to Ms Rodriguez’s continuing, or substantive, position.

[16] The practice of employing University staff in “continuing” or “substantive” positions is both common in the University sector and a concept embedded in the Agreement. Clause 7 provides that in addition to being employed in their substantive position, an employee may also be employed as a casual. Clause 32 of the Agreement provides for higher duties allowance to be paid at the difference between a staff member’s substantive salary and the minimum salary for the higher classification.

[17] Clause 16 provides for fixed-term employment in limited circumstances, including as a replacement staff member undertaking the work of a part-time staff member absent on leave. Clause 16 describes different contingent-employment scenarios, including where staff members are temporarily performing duties other than those of their substantive position, or performing the duties of a position where the “substantive occupant” of that position is performing higher duties. It speaks of an employee covering a difference in hours in circumstances where a “substantive staff member” has returned from leave. Fixed-term positions are not to replace “continuing positions” and a range of measures have been agreed to promote employment on a “continuing basis” over fixed-term employment. In a similar way, clause 69.11 of the Agreement, dealing with redeployment following redundancy, provides for redeployment to a “continuing position” elsewhere.

[18] Clause 16.5 provides for termination of fixed-term employment contracts of 12 months’ or more for reasons of redundancy during the fixed-term. The entitlement to redundancy pay in this scenario is the balance of the contract, or redundancy pay calculated under clause 69, whichever is the lesser. While it might be said to fix the entitlement to redundancy pay for Ms Rodriguez, whose secondment to the Burwood campus was for a fixed 12-month period, in my view clause 16.5 did not apply to her employment. This is because even though her secondment to Burwood was for a fixed term, Ms Rodriguez already held a continuing, part-time appointment. She was not employed on a fixed-term basis, even if her secondment was time-limited.

[19] Ms Rodriguez’s entitlement to redundancy pay was instead fixed by clause 69 of the Agreement, and in particular, clause 69.4. That clause provides for redundancy pay to be calculated on the employee’s salary “at the date of cessation of employment”. “Salary” for this purpose is a defined term and means the rate of pay applicable to the employee’s classification at the time. The definition does not extend to an employee’s hours of work, and nor does clause 69.4 require that redundancy pay be calculated on the employee’s hours of work at the date of cessation of employment.

[20] The Agreement clearly distinguishes between salary and hours of work. Clause 8 provides for new staff members to be provided with a contract of employment upon commencement. The contract is to include information about the key applicable employment terms, including the type of employment, salary (as defined), classification, hours, period and category of fixed term employment (also defined). Salary and hours of work are separate and distinct key terms of employment.

[21] Clause 11 of the Agreement provides for entitlements under the Agreement to be calculated on a pro-rata basis for part-time employees - by reference to their ordinary hours of work (as defined). This is an ordinary, well understood approach to the conferral of part-time employment entitlements. It does not have the additional effect of imposing a point-in-time at which an employee’s redundancy pay entitlements are to be calculated, or in this case, identifying whether Ms Rodriguez’s entitlement should be calculated on one part-time basis or another.

Conclusion

[22] Clearly, the two roles performed by Ms Rodriguez were substantially the same. Each had the same position title and was located within the Division of Student Life. However, the roles were different in three material respects: the time fraction; the location; and the nature of the engagement (one continuing, the other temporary).

[23] The position from which Ms Rodriguez was made redundant was the continuing position to which she was appointed at the Geelong campus. Ms Rodriguez’s redundancy pay entitlement is to be calculated on the basis of terms and conditions of employment applicable to that position, including the 0.5 time-fraction.

[24] The dispute is determined accordingly.

COMMISSIONER

Final written submissions:

Applicant, 6 May 2021 and 27 May 2021 (in reply)
Respondent, 20 May 2021

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