DECISION

Fair Work Act 2009
s.739—Dispute resolution

Martin Forsey
v
The University of Western Australia
(C2021/4678)

Dispute resolution.

[1] This decision concerns an application made by Mr Martin Forsey (the Applicant) on 10 August 2021 under section 739 of the Fair Work Act 2009 (Cth) (the Act). The respondent is The University of Western Australia (UWA, the University or the Respondent).

[2] The application concerns The University of Western Australia Academic Employees Agreement 2017 [AE426153] (the Agreement).

[3] Clause 46 of the Agreement, titled ‘Disputes’, prescribes that disputes relating to matters arising under the Agreement must be dealt with in accordance with the terms of this clause.

[4] Subclause 46.12 of the Agreement provides that if a dispute is not resolved following a sequence of escalating discussions within the workplace, the Fair Work Commission (the Commission) is empowered to deal with that dispute through conciliation and/or arbitration to resolve the dispute. The outcome of which will be binding on the parties.

[5] The dispute raised by the Applicant was the subject of a conciliation conference on 30 August 2021. The matter was not resolved and subsequently the Applicant requested the Commission arbitrate the dispute.

Background

[6] On 6 July 2021, UWA’s School of Social Sciences advised staff of a proposal for change and provided them with copies of a document entitled “School of Social Sciences Proposal for Change Consultation Paper”.

[7] The proposed change involved moving from 1 Department and 6 Disciplines to 3 Departments. Courses in Anthropology and Sociology plus the Master of Urban and Regional Planning would be discontinued. A greater focus on teaching language, communication and media would result in creating teaching focused appointments in Asian, Chinese, Indonesian, Japanese and Korean studies as well as Communication and Media.

[8] If implemented, the proposed changes involved discontinuing 16 academic positions across the Department of Geography and Planning, the Disciplines of Asian Studies, Anthropology and Sociology, Archaeology (Including Forensic Anthropology) and Political Sciences and International Relations.

[9] There would also be a significant variation to 12 continuing academic positions across the disciplines of Asian studies and Communication and Media.

[10] The change would also create 7 new academic continuing positions concerning Geography, International Development, the School Honours Program, Archaeology, Linguistics, Communication and Media, and Chinese Studies.

[11] The Applicant is currently employed as an Associate Professor in the UWA School of Social Sciences within the Discipline Group of Anthropology and Sociology. If the proposed changes are implemented, it is expected that the Applicant’s position would be made redundant.

Legislative and Agreement context

[12] Is it useful before proceeding further to set out the context for determining this application in terms of the relevant provisions of the Act and of the Agreement.

[13] Section 738 of the Act prescribes that:

“This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[14] Section 739 of the Act prescribes that:

“Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[15] Clause 46 of the Agreement says:

“Disputes

46.1 For the purposes of this clause:

(a) Disputes must relate to matters arising under the Agreement or in relation to the NES; and

(b) Dispute Procedure means the procedure set out in clauses 46.5 to 46.11.

46.2 All parties to the Agreement are able to raise a Dispute and be represented in the Dispute Procedure.

46.3 Each step in the Dispute Procedure is mandatory and must be followed before proceeding to the next step.

46.4 While the Dispute Procedure is being conducted:

(a) working conditions as they existed prior to the Dispute will continue; and

(b) an Employee must continue to perform their work as they would normally unless:

(i) the Employee has a reasonable concern about an imminent risk to their health and safety; or

(ii) there are other reasonable grounds to refuse to comply with a direction.

46.5 Parties to the Dispute will attempt to resolve the issues at local level in the first instance.

46.6 Where the Dispute is not resolved, or is impracticable to settle locally, either party to the Dispute may refer the Dispute to the DHR in writing.

46.7 Where a Dispute is lodged it will set out in writing the provision of the Agreement or NES to which the Dispute relates, be particularised and state the outcome being sought.

46.8 Upon receipt of a written notice of a Dispute by the DHR, an appropriate representative of the parties will discuss the Dispute and attempt to reach agreement within 10 working days.

46.9 The parties may agree to adopt an interim resolution on a trial basis which may include adjustments to the timeframes within this clause where appropriate.

46.10 After meeting in accordance with clause 46.8 the University may declare that a Dispute is vexatious including because the Employee has notified multiple disputes on the same or similar subject matter. Where a Dispute is declared vexatious it will be deemed to be not resolved and clause 46.12 will apply.

46.11 If the Dispute is resolved, all parties will be notified in writing as soon as practicable of the details of resolution.

46.12 If the Dispute is not resolved as provided at clause 46.8:

(a) either party may refer the Dispute to the FWC or by agreement to another person or body for resolution within 10 working days;

(b) if the Dispute is referred to:

(i) the FWC, the FWC may deal with the Dispute through conciliation and/or arbitration in order to resolve the Dispute the outcome of which will be binding on the parties; or

another person or body, then that person or body may deal with the Dispute as agreed by the parties; and

(c) if the Dispute is not referred for resolution within the specified timeframes then the Dispute lapses.

46.13 The parties to a Dispute may extend timeframes under this clause by agreement in writing.”

[16] Clause 36 Consultation on Organisational Change of the Agreement says:

“Consultation on Organisational Change

36.1 The provisions of this clause apply to the introduction of significant workplace change affecting Employees.

36.2 Workplace change is deemed to be significant if it results in one or more of the following:

(a) ceasing employment due to Redundancy;

(b) major changes in the composition, operation or size of the University’s workplace or in the skills required;

(c) the elimination or diminution of job opportunities, promotion opportunities or job tenure;

(d) change to hours of operation;

(e) the need to transfer to another campus;

(f) the restructuring of jobs or technological change where this will have significant impact on the day to day work practices of Employees,

provided that where this Agreement makes provision for variation of any of these matters, the variation is deemed not to have significant effect.

Step 1 – Consultation on Significant Workplace Change

36.3 Where the University has developed a definitive proposal for significant change the University will engage in formal consultation with affected Employees and their relevant Union(s) or other nominated representative(s) regarding the significant workplace change.

36.4 Formal consultation will include provision of a written proposal which sets out:

(a) the nature of the proposed change and underlying rationale;

(b) information about the major change, other than information which is subject to legal privilege or is commercial-in-confidence;

(c) the significant impact the major change is likely to have on Employees;

(d) a reasonable timeframe for consultation of no less than 10 workings days, unless otherwise agreed;

(e) any measures that the University is considering in order to avert or mitigate any material adverse effect of the proposed major change on the affected Employees.

36.5 The University will provide the opportunity to meet and confer with affected Employees on the proposed major change and any potential alternative proposals.

36.6 The University will provide the opportunity for affected Employees to submit written responses within the consultation timeframe.

36.7 The University will give genuine consideration to matters raised during the stated formal consultation period by Employees and their union/nominated representative(s).

Step 2 – Implementation of Significant Workplace Change

36.8 The University will provide the affected Employees and the relevant unions or other nominated representative(s) with a copy of a change implantation plan.

36.9 The University will continue to consult with and support Employees who are affected during the implementation of significant workplace change.

Transfers

36.10 The University retains the right to transfer Employees that may be impacted by a significant effect to mitigate the adverse effects of the change. During the workplace change where the University is able to identify Suitable Alternative Employment, the University is entitled to transfer the Employee to that position. The transfer is subject to the University giving the Employee 10 working days written notice of the transfer.”

Characterising the dispute

[17] The application as filed says that the dispute relates to three aspects. Firstly, the proposal submitted by UWA is not a “definitive proposal” as required by clause 36 of the Agreement. Secondly, that the information provided to the affected employees is not sufficiently detailed or accurate to facilitate informed engagement and for the associated feedback envisaged by the Agreement. Thirdly, that the proposal for change was based on inaccurate and partial information.

[18] In summary the relief originally nominated by the Applicant is a decision or ruling by the Commission firstly, that the change proposal does not constitute a “definitive proposal for significant change” as required by clause 36.3 of the Agreement. Secondly, that UWA be required to provide detailed relevant information, including financial information, as requested by the employees for the purposes of formal consultation. Thirdly, that the affected employees have not been provided a reasonable opportunity to meet and confer with UWA in order to consider the implications and to formulate informed responses to mitigate the effects of the proposed changes. Fourthly, a decision from the Commission that the consultation timeframe imposed is not reasonable, practical or fair.

[19] Following the unsuccessful conference, a notice of listing for a hearing to be held on 27 October 2021 was sent to the parties with attached directions.

[20] The first direction required the Applicant to characterise the dispute as a question to be answered either yes or no and provide this to the Commission, and the Respondent, by 15 September 2021.

[21] The absolute necessity for an applicant to clearly characterise the dispute they seek the Commission to determine was considered by a Full Bench of the Commission in Metropolitan Fire and Emergency Services Board v United Firefighters’ Union of Australia; Garth Duggan (C2016/5027), United Firefighters’ Union of Australia; Garth Duggan v Metropolitan Fire and Emergency Services Board 1 as follows.

“The Characterisation of the Dispute

[34] In Maritime Union of Australia v Australian Plant Services Pty Ltd, Lacy SDP expressed the importance of characterising a dispute in this way:

“Parliament has authorised the Commission to exercise powers under the agreement to settle disputes over the application of the agreement and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with the matter arising under the disputes settling procedure in an agreement, to ascertain the character of the dispute before it in order to determine whether the matter is a dispute over the application of the agreement, and, importantly, the character of the dispute is distinguishable from the order that may be made in settlement of the dispute.” (references omitted)

[35] These observations have been approved by Full Bench decisions of the Commission including Goodman Fielder Consumer Foods Limited v CEPU, Seven Network (Operations) Limited v CPSU, and United Firefighters’ Union v Metropolitan Fire and Emergency Services Board.

[36] It is therefore necessary to have regard to the nature of a dispute said to arise under the terms of the agreement having regard to the original notification and the relevant factual circumstances as they evolve through the process of conciliation and arbitration of the dispute. Such a broad approach was endorsed by a Full Bench of the Australian Industrial Relations Commission in the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Holden Limited where the following is stated:

“[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

“...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked” (references omitted)

[37] In the United Firefighters’ Union case, referred to above, a Full Bench considered the scope of a dispute over a consultation provision. It said:

“Policies which are not dealt with in the Agreement are subject to the consultation processes in clause 9. Although the consultation processes end with a disputes resolution clause, we are of the view that on its proper construction, that clause concerns disputes over the consultation process under the clause, rather than disputes over matters which are subject to consultation.”

[38] There is no longer a legislative limitation on disputes that arise under the Agreement and the above statements should be modified accordingly. The Act now permits arbitration of disputes that the parties allow to be arbitrated under an enterprise agreement, limited only by the dispute settlement clause itself and the provisions of the enterprise agreement.

[39] As the exercise of the Commission’s powers of arbitration depend on the agreement of the parties and is essentially the exercise of a power of private arbitration conferred by the parties, it is critical to the exercise of such a power that there is a proper characterisation of the dispute and the arbitration is confined to the arbitration of the dispute that arises for determination.” (Underlining added and references omitted)

[22] The decision at first instance was overturned by this Full Bench on appeal in part because the Commissioner in the original decision had ventured beyond the dispute between the parties, made findings on matters that the parties were not given an opportunity to address, and exceeded the power of private arbitration conferred by the agreement. 2

[23] Consequently, in response to the Commission’s first direction, the Applicant’s legal representative filed with the Commission the following nine questions it says characterised the dispute.

1. Has the Respondent failed and or refused to engage in formal consultation consistent with clause 36.4 of the Agreement, given that the Respondent has not formulated a definitive proposal in accordance with clause 36 of the Agreement and in doing so the Applicant has been prevented from being able to genuinely consider the measures to avert or mitigate the significance and the adverse effects of the change?

2. Has the Respondent failed and or refused to provide relevant and accurate data and information such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

3. Would the provision of accurate, reliable and transparent data by the Respondent and the provision of data and information sought by the Applicant from the Respondent but not supplied by the Respondent have made a material difference to the proposal as a whole and the number of identified staff redundancies?

4. Was the information and data provided by the Respondent to the Applicant sufficient or provided in a sufficiently timely fashion to ensure consultation about the change proposal consistent with clause 36.4 of the Agreement and such that the Applicant was able make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

5. Was the underlying rationale as relied on by the Respondent to disestablish an entire discipline founded on inaccurate data and information such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

6. Did the underlying rationale of the proposed change prepared by and relied on by the Respondent omit important comparative and financial data and information such as to compromise the quality of the consultation undertaken by the Respondent and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

7. Did the Respondent provide the opportunity to meet and confer with the Applicant on the proposed major change and the alternative Proposals as posited by the Applicant (including those submitted by the Anthropology and Sociology Discipline Group and the School of Social Science Group of which the Applicant was a part) to the Respondent, consistent with clause 36.5 of the Agreement?

8. Did the Respondent provide the opportunity for the Applicant (be it in his individual capacity or as part of the Anthropology and Sociology Discipline Group and the School of Social Science Group) to submit written responses within the consultation timeframe, consistent with clause 36.6 of the Agreement?

9. Did the Respondent give genuine consideration to matters raised by the Applicant (including those submitted by the Anthropology and Sociology Discipline Group and the School of Social Science Group of which the Applicant was a part) during the stated formal consultation period, consistent with clause 36.7 of the Agreement?

[24] UWA’s legal representative responded to the Commission and the Applicant the same day, submitting that the questions were inappropriate for determination by the Commission because some (e.g. Q1) assume facts which are the subject of the dispute. Others (e.g. Q4) are effectively re-characterised submissions converted into a question, and some of the questions (e.g. Q3) are hypotheticals which are not grounded in the substance of the dispute.

[25] The Respondent submitted that the following question adequately captures the substance of the dispute and allows the Applicant to fully ventilate his claim:

Has the Respondent discharged its obligations pursuant to Step 1 – Consultation on Significant Workplace Change of clause 36 of the Agreement?

[26] On 21 September 2021 the Commission advised the parties of its concerns with the proposed questions to be answered, including whether some were within the jurisdiction of the Commission to determine. The Commission offered the Applicant a further three days to reconsider his questions for the Commission to determine.

[27] The Applicant however did not provide revised questions.

[28] Next, the Applicant filed his evidence in chief and submissions, albeit after the timeframe directed by the Commission. In due course the Respondent, in compliance with the Commission’s timeframe, filed their evidence in chief and submissions in reply.

[29] Following this the Applicant filed a witness statement and submissions in reply, which surprisingly amended the questions the Applicant was asking the Commission to determine.

[30] At the same time, a witness statement of Associate Professor Farida Fozdar (Associate Professor Fozdar) was filed on behalf of the Applicant, which is supposedly in reply to the Respondent’s evidence. Ultimately much of this witness statement was struck out by the Commission at hearing because in reality it was not evidence in reply, rather, it was evidence in chief that the Applicant should have filed at first instance in accordance with the Commission’s directions. To have allowed this new evidence to be accepted would have denied the Respondent an opportunity to call witnesses in response, which would be a breach of natural justice that the Commission’s directions are designed to avoid.

[31] The Applicant in his outline of submissions in reply, without leave of the Commission, filed a new set of questions to be determined by the Commission. Indeed, one less question was asked and other questions were reworded without any explanation as to why. These are set out below.

“(a) Has the Respondent failed and or refused to engage in formal consultation consistent with clause 36.4 of the Agreement and in failing or refusing to do so, has prevented the Applicant from being able to genuinely consider the measures to avert or mitigate the significance and adverse effects of the change?

(b) Has the Respondent failed and or refused to provide relevant and accurate data and information such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

(c) Would the provision of accurate, reliable and transparent data by the Respondent and the provision of data and information sought by the Applicant from the Respondent but not supplied by the Respondent have made a material difference to the change proposal as a whole and the number of identified staff redundancies?

(d) Was the information and data provided by the Respondent to the Applicant sufficient or provided in a sufficiently timely fashion to ensure consultation about the change proposal was consistent with clause 36.4 of the Agreement and such that the Applicant was able make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

(e) Was the underlying rationale as relied on by the Respondent to rescind the Anthropology and Sociology major and disestablish an entire discipline founded on inaccurate data and information such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

(f) Did the underlying rationale of the proposed change prepared by and relied on by the Respondent omit important comparative and financial data and information such as to compromise the quality of the consultation undertaken by the Respondent and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

(g) Did the Respondent fail and or refuse to provide the opportunity to meet and confer with the Applicant on the proposed major change and the alternative Proposals as posited by the Applicant (including those submitted by the Anthropology and Sociology Discipline Group and the School of Social Science Group of which the Applicant was a part) to the Respondent, consistent with clause 36.5 of the Agreement; and

(h) Did the Respondent fail and or refuse to give genuine consideration to matters raised by the Applicant (including those submitted by the Anthropology and Sociology Discipline Group and the School of Social Science Group of which the Applicant was a part) during the stated formal consultation period, consistent with clause 36.7 of the Agreement.”

[32] The Commission will determine this matter by answering the most recent set of questions filed by the Applicant (being those included in his outline of submissions in reply dated 25 September 2021), where it is within the Commission’s jurisdiction to do so. I note a number of issues raised in the application, such as the assertion the change proposal was not “a definitive proposal...” are no longer pursued by the Applicant.

Evidence and factual findings

[33] At the hearing evidence was given by the Applicant, Associate Professor Fozdar and Professor Amanda Davies (Professor Davies).

[34] With respect to the witness statement of Associate Professor Fozdar, the Commission accepted into evidence the marked up amended statement filed by the Applicant but with numerous paragraphs deleted as is recorded in the transcript of the hearing.

[35] The Applicant was first employed by UWA in 2002, lecturing in Anthropology. The Applicant’s evidence, relevantly, is that he is currently employed in the School of Social Sciences within the Discipline Group of Anthropology and Sociology. The Head of School is Professor Davies.

[36] Around 9 February 2021, he was directed to attend a School meeting for academic staff called by Professor Davies.

[37] He says Professor Davies informed the meeting that there was a problem with the School budget and that there was an immediate need for UWA, and the School, to implement significant budget cuts. No information was provided about possible strategies for this.

[38] On Monday, 28 June 2021 Professor Davies notified the School by email of a town hall meeting scheduled for Thursday, 1 July 2021. She encouraged everyone to attend as she would be sharing ‘the proposed future vision for the School’.

[39] This was postponed to Tuesday, 6 July 2021 due to a snap COVID-19 lockdown.

[40] On Monday, 5 July 2021 Professor Davies also invited the Applicant to a meeting with the Anthropology and Sociology Discipline Group to be convened the afternoon of Tuesday, 6 July 2021.

[41] On Tuesday, 6 July 2021 (12:24AM) the Applicant informed Professor Davies by email that he would not attend either of the above meetings due to parenting responsibilities. The Applicant’s leave arrangements were made prior to the scheduling of the meetings and he says it was not possible for him to change the arrangements.

[42] The Applicant requested for Professor Davies to reschedule the Discipline Group meeting until Wednesday, 7 July 2021. Professor Davies denied his request to change the scheduled group meeting.

[43] On Tuesday, 6 July 2021 (12:06PM) Professor Davies provided the Applicant, by email, a copy of the document “School of Social Science Proposal for Change Consultation Paper” (the Proposal), which included discontinuing the major in Anthropology and Sociology and to disestablish the associated Discipline Group. 3

[44] On Wednesday, 7 July 2021 (8:20AM), by email, Professor Davies offered to have a meeting with the Applicant to discuss the Proposal and any questions he may have.

[45] The Applicant’s evidence in chief was that he declined to meet Professor Davies due to the shock suffered from the Proposal announcement, which had been relayed to him by his colleagues who attended the whole of School meeting the day before.

[46] However, the Applicant’s reply email to Professor Davies on 7 July 2021 (8:39AM) states that he did not believe a meeting would be helpful. 4 In re-examination the Applicant’s evidence was that he did not agree to meet because he felt vulnerable and did not believe he would receive an empathetic or fair hearing.

[47] Telephone discussions ensued between the Applicant and Associate Professors Fozdar and Glaskin and it became apparent to the Applicant that his role, along with a number of his colleagues' roles, was likely to become redundant in accordance with the Proposal.

[48] The Applicant submits that the Proposal blind-sided him. The proposed rescission of the Anthropology and Sociology major overwhelmed him. At no point previously had the major and discipline been identified as underperforming or at risk of removal.

[49] The Applicant was expecting cuts to happen within the School, but the scale of the proposed cuts was surprising and shocking to him.

[50] Upon hearing about the Proposal and reviewing and considering the document he immediately questioned the basis upon which the Proposal was prepared. The Applicant and his colleagues, including Associate Professor Fozdar, began to question the veracity and lack of particularity in the data and information that the Proposal relied upon.

[51] For example, the Proposal alleges that Anthropology and Sociology had lost 77% of enrolments over a five year period. However, it appeared to the Applicant that much of the quantitative research Professor Davies relied on in order to justify the rescission of the Anthropology and Sociology major, and other significant changes to the Applicant’s employment conditions, was in error.

[52] The Applicant believes that Associate Professor Fozdar undertook extensive research aimed at corroborating the figures relied on by UWA and Professor Davies in the Proposal.

[53] The Applicant had believed that a major cannot be rescinded, and a Discipline Group disestablished without going through an approval process involving the Senate on advice and or recommendations from the Academic Board.

[54] This alleged failure to comply with the stipulated process formed the basis of a group submission made to Mr Nigel Waugh (Mr Waugh), Director of Human Resources, on 13 July 2021. The submission was made by the Applicant and nine other colleagues.

[55] The Applicant says that he was worried that what appeared to be inaccurate data and information was inhibiting the conferral process, and his ability to mitigate the effects of the proposed redundancies and offer alternatives to the Proposal during the feedback process.

[56] The Proposal paper provided for a consultation period of two weeks ending on 20 July 2021.

[57] On 9 July 2021 the Applicant requested UWA extend the consultation period.

[58] On 12 July the Applicant requested UWA to clarify the data and information relied upon in the Proposal. He also requested further data to assist him, and his colleagues, attempt to mitigate the effects of the Proposal and submit alternatives.

[59] On 14 July 2021 the Applicant repeated his request that UWA extend the consultation period.

[60] On 16 July 2021 Professor Davies sent a set of FAQs to the School staff, including the Applicant, and outlined that the consultation period was extended by another week to end on 27 July 2021.

[61] The FAQs included details of the data sources cited in the Proposal and links to the respective external websites or internal data repositories.

[62] The FAQs also included the following:

“Can you confirm the source of the data that has informed the statement in the Proposal for change ‘Between 2015 and 2020, enrolments in the Anthropology and Sociology major declined by 77%’?

To accurately determine trends in the number of students actually enrolled and moving through the major of anthropology and sociology, completions data was used to determine actual enrolment trends over time.

Data sourced from EIS Fy-Enrol as at 08/12/2020 revealed that there was a 77% decline in the number of students moving through the major of Anthropology and Sociology to completion over this period. This includes students completing anthropology and sociology as a first major, second major and also those completing honours.”

[63] On 20 July 2021 the Applicant, with a number of colleagues, attended a meeting with Mr Waugh and his Human Resources team.

[64] On 20 July 2021 Professor Davies emailed the Applicant acknowledging an error had been made in the Proposal paper. The email stated that the drop in enrolments of 77% over a five year period for Anthropology and Sociology was not correct, however that there had been a 40% drop in major completions.

[65] On 20 July 2021 the Vice Chancellor wrote to all staff addressing, amongst other things, this data error that the Applicant had challenged, as follows:

“Data correction

Feedback provided has queried some of the data used in the School of Social Sciences Proposal for Change. As a result, some further analysis of the enrolment data that was provided to the Head of School has identified an unintended error in data extraction and subsequent processing concerning the quoted enrolments in the Anthropology and Anthropology & Sociology Majors (including Honours) as measured by completion data. This does not alter the basis and need for strategic change.

For clarity, we can confirm that the aggregate drop in completions of these majors between 2016 and 2020, inclusive, was 40%, not 77% as previously reported. The error overestimated the number of students in the program in 2016. Unfortunately, there were fewer students in the program than estimated. I acknowledge and regret this error. While the reduction in the completions of these majors is less than originally reported, it remains significant.”

[66] On 20 July 2021 Mr Waugh responded to the Applicant’s request regarding data as follows:

“Dear Martin

In response to your email dated 12 July 2021, on behalf of Director Human Resources, please see below response to your specific data requests.

Kind regards

Social Sciences Proposal
M350, Perth WA 6009 Australia”  5

[67] The Applicant says that he discovered that he did not have the necessary training to navigate the UWA data systems to obtain the information he was seeking.

[68] The Applicant says that with the assistance of statistics specialists he, together with his colleagues, was able to navigate and attend to some of the analysis of the databases, which Mr Waugh had provided links to. The Applicant says that he became aware of significant inconsistencies between his analysis and the figures detailed in the Proposal paper. Further, he says the databases generated information that contradicted the information as presented in the Proposal paper and the Proposal’s underlying rationale. The Applicant also says that it became apparent that data had been misrepresented.

[69] The Applicant says that the issues and concerns he had about the data and information made it impossible for him to develop alternative proposals to mitigate the effect of the Proposal.

[70] On 21 July 2021 the Applicant wrote again to Mr Waugh detailing his concerns about the data that was made available.

[71] On 22 July 2020 the Applicant, again with a number of his colleagues, attended a second meeting with Mr Waugh. The Applicant asked Mr Waugh about the lack of consultation prior to the announcement of the Proposal. At the end of the meeting, the Applicant stated that it was clear they had not resolved the issues in dispute regarding the Proposal and indicated his intention to pursue this matter to the Commission.

[72] The Applicant says that he and his colleagues then proceeded to prepare an alternative proposal with the understanding that it needed to be submitted on or before Tuesday, 27 July 2021.

[73] The Applicant, in conjunction with four other colleagues, submitted an alternative proposal by 27 July 2021 to UWA (Alternative Proposal). The first six pages of the eight-page submission details problems with the current Proposal. The last two pages details the Alternative Proposal. 6

[74] The Applicant’s evidence is that the Alternative Proposal contained recommendations to mitigate the need for staff reductions, as well as reduce the overall number of redundancies required. The Alternative Proposal allowed for known staff attrition and expected staff movements to other places within UWA. It also included recommendations such as voluntary redundancies, allowing staff to negotiate part-time contracts, non-renewal of fixed term appointments and, if needed, non-voluntary redundancies.

[75] The Applicant’s evidence was that neither Mr Waugh, Professor Davies, nor any other UWA Executive attempted to confer with him regarding the Alternative Proposal. 7

[76] Under cross examination the Applicant agreed that he had never written to Mr Waugh, Professor Davies, or anyone else asking for a meeting to discuss this Alternative Proposal. He agrees no one had refused to meet with him.

[77] The Applicant’s evidence was that there was also a document entitled ‘Collective Social Science Disciplinary Response to the Proposal for Change’ (the Collective Proposal) that was submitted to UWA as feedback. This is set out below.

“Collective Social Science Disciplinary Response to the Proposal for Change

Disciplines of the School of Social Science do not support the Proposal for Change, as:

1. This is not our vision as the Proposal did not consult with or involve any staff or students;

2. The University-mandated School and Course Review has not been undertaken for 7 years;

3. The case for closing Anthropology and Sociology majors is unsubstantiated and damaging;

4. The move to "teaching focus" in disciplines will erode their research capability and outputs;

5. Prioritising only applied and local research cancels UWA's status as sole WA Go8 University;

6. The devaluing of research capability will impact HDR participation, completion and income;

7. Student satisfaction levels will be adversely Impacted, eroding reputation and income;

8. The International Impacts of our Research Entities are silent and appear to be unsupported;

9. The lack of consultation is antithetical to the ethics of justice and equity instilled in students.

We have developed a raft of individual proposals that would create pathways towards greater teaching and research agility, diversity across the Departments, and production of strong income streams. We ask for the opportunity to construct a vision for the future of our school that is in keeping with our values, that is built up through a process of transparent consultation, that meets management requirements and that enjoys the support of the majority of staff in our School. Our vision is for a reorganisation that results in improved outputs in teaching and research, greater student engagement and support, and the growth of both domestic and international Research Entities and networks. The staff of the Social Sciences have the skills to affect this transition.

List of Disciplines in support of this statement:

•  Anthropology and Sociology

•  Archaeology (including Forensic Anthropology) Asian Studies

•  Linguistics

•  Politics and International Relations

•  Media and Communication”

[78] A handwritten notation on this document reads “87% of staff in the discipline agreed to this.”

[79] On 20 August 2021 Professor Davies convened a further town hall meeting of all School staff. The Applicant says that he was unable to attend in person because he could not reconfigure childcare arrangements.

[80] Staff were able to attend the meeting remotely by Microsoft Teams. The Applicant’s evidence was that he joined the meeting remotely at 9:40AM. The Applicant has no direct knowledge of what transpired during the first 40 minutes of that meeting.

[81] The Applicant heard Professor Baldassar expressing her complaints and concerns about the consultation process.

[82] On 20 August 2021 the Applicant and all staff of the School also received from Professor Davies a copy of the provisional decision on the Proposal.

[83] The Applicant’s evidence is that he is concerned about the genuineness of UWA’s engagement with the feedback submitted, including the Alternative Proposal and the Collective Proposal. He says at no time was he or his colleagues provided any opportunity to confer over these alternative proposals.

[84] Relevantly, Associate Professor Fozdar’s evidence was that she attended both the town hall meeting on 6 July 2021 and the Discipline Group meeting later the same day remotely online.

[85] Associate Professor Fozdar’s evidence was that at the town hall meeting on 6 July 2021, Professor Davies was accompanied by Senior Deputy Vice Chancellor and Chair of the Change Management Board, Professor Simon Biggs (Professor Biggs).

[86] Associate Professor Fozdar’s evidence was that at the town hall meeting Professor Davies stated that there were complex challenges to be dealt with which could not be fixed by just looking at one factor, such as research performance or student numbers. Professor Davies noted the need to identify where the School really excels, and where there is overlap with other activities and internal competition and how the School can collaborate rather than compete.

[87] Associate Professor Fozdar says that Professor Davies asserted a range of ways in which she saw the School was failing, including declining enrolments in some units and programs, research underperformance in some areas, overall declining or stagnating low levels of industry engagement, low graduate employability and internal competition. She said that in comparison with the Schools of Law and Humanities, Social Sciences was underperforming. She said words to the effect that the School was lagging behind competitors in research and teaching across different rankings. She further stated words to the effect that the School’s staff student ratio was way below sector standards, and student employability compared to Business and Law at UWA was poor.

[88] Associate Professor Fozdar says that at the Anthropology and Sociology Discipline Group meeting later that day, Professor Davies repeated the implications of the Proposal and the opportunity to apply for redundancy or for one of the new positions where appropriate.

[89] When challenged as to why other Schools such as Geography (which the questioner had said has more staff and more expensive professional staff) were not to be disestablished Professor Davies replied that this was not about a single indicator but about what UWA offers as a university in terms of types of teaching and research programs.

[90] Associate Professor Fozdar analysed the data sources available to her to understand what she believed was an incorrect statement and the Proposal paper that there had been a drop in enrolments of 77% over five years.

[91] Associate Professor Fozdar queried these figures and explained to Professor Davies her view that these were wrong at a meeting on 16 July 2021.

[92] When the University subsequently provided links to other data sources Associate Professor Fozdar interrogated this data and formed a number of conclusions.

[93] She concluded that the 77% figure in the Proposal document relied on incomplete data and was not accurate. She concluded there were inaccuracies in the data upon which the Proposal was based. She believed comparative data should have been provided but was not. Her conclusion was that the underlying rationale for the proposed and therefore was unsound.

[94] Associate Professor Fozdar then interrogated the data she had been advised was the basis for the amended position of UWA that there had been a 40% reduction in major completions.

[95] Her evidence was that she could not understand why this justified the Anthropology and Sociology Discipline Group being disestablished. Her evidence was that this made constructing a response to mitigate the effects of the redundancy Proposal very difficult. 8

[96] Her evidence was that on 20 August 2021 she attended the second town hall meeting convened by Professor Davies. Professor Davies said that a thematic analysis had been undertaken of the 380 submissions received regarding the Proposal. Associate Professor Fozdar says that Professor Davies emphasised that what was needed was alternative proposals to address the fiscal challenges of the School. She said that fortunately they did not see any proposals that could do that.

[97] Associate Professor Fozdar’s evidence was that the Proposal paper itself did not contain fiscal data but that the Alternative Proposal submitted by the Applicant, herself and others did attempt to address budgetary issues.

[98] Her evidence was the Professor Davies provided no evidence that consideration had been given to the feedback or alternative proposals submitted.

[99] The evidence of associate Professor Fozdar was that the 77% figure she said was an error was amended by UWA. The amended figure used by UWA referred to there having been a 40% reduction in major completions. Her evidence was that in her view this is not the best measure, but it was technically correct. 9 However her evidence also was that this figure is incorrect “...if you use a different data source...”.10

[100] The evidence of Professor Davies was that she holds the role of Head of School, School of Social Sciences at UWA.

[101] Her role encompasses overseeing management of the School including its teaching and research programs, supervising and managing staff, managing the budget and liaising with UWA’s management and governance bodies in relation to the School’s activities.

[102] The School operates to deliver a teaching and research program in social sciences.

[103] It is a multidisciplinary academic unit within the University and is home to the Department of Geography and Planning, and the Discipline Groups of Anthropology and Sociology, Archaeology, Asian Studies, Linguistics, Media and Communications, and Political Science and International Relations.

[104] The School hosts the Centre for Rock Art Research and Management, Centre for Forensic Anthropology, Centre for Muslim States and Societies, Centre for Regional Development, the Planning and Transport Research Centre and the Cooperative Research Centre for the Transformations in Mining Economies.

[105] The University’s and the School’s funding is derived from four key sources. These are:

•  Grants received annually from the Federal Government for supported domestic placements. This is capped because there are only so many placements the University receives funding for.

•  Fee paying students, domestic and international, who pay their own tuition fees.

•  Research revenue consisting of grants and an annual government block grant which is based on past research performance and outcomes. This is not fixed and fluctuates from year to year.

•  Gifted funds, for example money received for scholarships. These are tied grants, received for a designated purpose and cannot be reallocated elsewhere within the University.

[106] The University’s Senior Executive determines and allocates a calendar year budget to each school which determines how much money a School has to deliver its teaching and research program and associated activities.

[107] Her evidence was that for some years the School’s costs have exceeded its budget resulting in a recurring deficit. The cost of delivering the teaching and research program undertaken was more than what could be afforded by the School.

[108] In November 2020, she attended a meeting with the University’s Senior Deputy Vice Chancellor, Professor Biggs and UWA’s Chief Financial Officer. At that meeting she received a budget forecast for the School for 2021 and 2022.

[109] As a result of the budget forecasts Professor Davies, like all Heads of School, was tasked with identifying possible strategies for ensuring the School’s costs did not exceed the allocated budget.

[110] In late 2020 each Head of School, had to submit a plan for how the School might address any structural deficit. By structural deficit, she means that the costs for the School could not be met by the income provided by the University.

[111] She was aware having spoken with other Heads of School, that some Schools could reduce staff contracts or give effect to retirements to meet their budget constraints.

[112] Her evidence was that however within the School of Social Sciences, they had no scope to undertake such movements to reduce the Schools labour costs without reducing the scope of the teaching and research program first.

[113] Therefore, Professor Davies proposed to the University Executive that the School needed to go through structural reform to reduce the scope of the research and teaching program, the consequence of which may result in the removal of a significant number of positions.

[114] As the change was likely to be significant, the University required it to be put as a formal proposal. This would necessarily require consultation with affected staff and engagement with the wider University community before making any such changes.

[115] On 9 February 2021 she delivered a presentation to the School in relation to the issues facing it. The purpose of the presentation was to provide staff with information about the financial issues facing the School, share information with staff, develop engagement in a change process and frame people’s thinking for the 2021 period.

[116] Noting the significant nature of the changes being considered and the concerns which would likely be raised, she made it clear to staff that an open dialogue between her as Head of School and each of them individually, in small groups or in Discipline Groups, should take place to discuss and consider options moving forward.

[117] She discussed with staff at the meeting that she preferred such an approach out of respect to all staff, noting the sensitivity of the subject matter being addressed. In this sense, she did not feel that an open School forum was an appropriate means to foster engagement with the process and ensure that employees felt comfortable and confident enough to participate.

[118] February 2021 was an appropriate time to make this initial announcement as most staff performance reviews had taken place between December 2020 and this time. At the end of each staff members performance review, she discussed the nature of the University’s structural deficit, and that she was expecting the School would be going through a major structural change in 2021 and that this would involve a formal Proposal for change and a formal consultation process.

[119] Professor Davies recalls that there was a degree of concern amongst staff arising from the 9 February 2021 announcement.

[120] However, there was limited information available to share because the School, and the University, were not in a position to announce a definite change proposal as they were still developing this.

[121] On 30 March 2021, the Vice Chancellor emailed all staff an update on the University’s budget position and structural deficit. The Vice Chancellor advised staff that a Change Management Board (Board) had been formed to oversee changes required to be made at the School level. Staff were advised that area leaders had developed preliminary plans and some of those plans had been approved to proceed to detailed planning and preparation for formal organisational change.

[122] On 15 April 2021, she provided an update to the School Board. This outlined that the School was in the first group being considered for organisational change. This information was noted in the minutes of the meeting and openly shared with School staff.

[123] On 28 May 2021, the Vice Chancellor emailed all staff to provide a further update on the structural reform program. He confirmed that in order to remove the structural deficit from the University a number of professional service and academic areas in the University would undergo significant workplace change and that some professional service and academic areas had now progressed their planning and were at the point of presenting draft proposals to the Board for consideration.

[124] Given the broad awareness within the School that the School was in the first group being considered for organisational change, on 1 June 2021 Professor Davies emailed an update to School staff explaining that a more detailed outline of the next steps for the School would be provided in July 2021.

[125] By the end of June 2021, the proposal for change had been finalised internally and it was decided that 1 July 2021 would be the launch date for the consultation process. This was effectively the confirmation of a definite decision to propose structural changes within the School.

[126] Her evidence was that commencing consultation on 1 July 2021 would mean that that consultation would not be within one of the major teaching periods at the University, so staff would be provided maximum opportunity to meaningfully engage in consultation.

[127] The consultation period would overlap with School holidays. However, the leave calendar at the time was relatively light. This meant that most staff would be available for the full consultation period.

[128] The all of School meeting took place on 6 July 2021 at the Alexander Lecture Theatre. Staff could also attend online for those who elected to work from home that day.

[129] Professor Davies says the Applicant was unable to make the 6 July 2021 meeting. She received an email from him to this effect on 2 July 2021.

[130] The Applicant sought to confirm whether the meeting was available online or was to be recorded. As the meeting was available to be attended online, she sent an invite to the Applicant to this effect. In reply, she received a tentative acceptance of the Microsoft Teams invite. The Applicant conveyed to her that, “[a]s indicated a little earlier I am on leave and may not get the chance to attend due to childcare responsibilities.” 11

[131] Professor Davies says the purpose of the 6 July 2021 School meeting was to present to staff a Proposal for change and commence formal consultation. A definite decision had been made to propose changes within the School, which triggered the consultation obligations pursuant to the Agreement. However, no final decisions had been made at that stage.

[132] The meeting was accompanied with a PowerPoint presentation which summarised the Proposal document which she worked through during the session guided by her talking points. 12

[133] At the conclusion of the meeting, there was a short question and answer component. This largely related to detailing the way in which staff could submit their feedback for consideration rather than a more detailed analysis of the Proposal itself.

[134] After the meeting she sent to all staff of the School of Social Sciences the Proposal paper referred to in the presentation and a FAQs document. 13

[135] She then arranged a series of smaller group meetings with staff to discuss the Proposal and potential impacts on their current role. The Applicant was invited to a meeting, along with other staff with continuing appointments in the discipline of Anthropology and Sociology, scheduled for the afternoon of the 6 July 2021.

[136] On the morning of 6 July 2021, at 12:24AM, she received an email from the Applicant asking whether this group meeting was able to be postponed until Wednesday due to his annual leave and carer responsibilities.

[137] In reply, she advised she was not able to postpone the meeting. She noted all other staff who had been invited had confirmed they were able to make the Tuesday meeting. Given the content of the Proposal, she wanted to engage with potentially impacted staff as soon as possible to ensure they understood the nature of the formal consultation process, they were aware of what support was available to them and to establish a collaborative dialogue.

[138] Professor Davies did, however, advise the Applicant that she was available to meet at a mutually agreeable time over Microsoft Teams on 7 July 2021.

[139] She did not receive a response to this email seeking to arrange a one-on-one meeting with the Applicant regarding the Proposal. 14

[140] She sent a further email to the Applicant on 7 July 2021 seeing whether he would like to take up that invitation. The Applicant emailed her in response:

“Thank you for your email Amanda. I have read the document and am considering my position in relation to it. At this stage I do not believe a meeting would be helpful.”

[141] Professor Davies explained that being mindful of the obligations set out in the Agreement the Proposal outlined the nature of the change, the underlying rationale, information about the change, the likely significant impacts and measures that the University was considering to mitigate or avert any adverse impacts of the proposed changes.

[142] The opportunity for written feedback from internal and external stakeholders and affected staff was provided. A dedicated email address for the submission of feedback was set up for this purpose.

[143] UWA also provided the opportunity to meet and confer with affected staff on the proposed changes and to discuss alternative proposals.

[144] The nature of the proposed change and its underlying rationale were outlined at pages 5-7 and pages 3-4 of the Proposal, respectively. 15

[145] Her evidence was that the rationale for the proposed changes, as set out in the Proposal, in summary, was to:

•  improve budget sustainability;

•  increase student load growth (i.e. increase enrolments); and

•  improve the student experience.

[146] It was reasoned in the Proposal that a refinement of teaching and research activities and greater focus on core learning outcomes could allow a reasonable reduction in School activities to achieve favourable budget outcomes.

[147] It was reasoned in the Proposal that, given the need to grow student load and improve student experience, as well as address sector wide challenges, the School’s teaching and research program could reasonably be narrowed through a focus on applied teaching and research.

[148] To implement this proposed refined focus for the teaching and research program, it was proposed that:

•  research be focused into two highly performing flagship research areas and some emerging research fields;

•  two courses be discontinued, these being the Major in Anthropology and Sociology and Master of Urban and Regional Planning; and

•  the School be organisationally restructured from 6 disciplines and 1 Department into 3 Departments.

[149] She explains that the Proposal was designed to commence a conversation around these proposed structural changes with a view to keeping as many people employed, upholding continuity in teaching for students and not disrupting research programs, where possible.

[150] She says the Proposal included commentary about the School’s enrolments, information about research performance and commonly used external benchmarking data. References were provided for external data sources in the Proposal. Data about enrolments and research are available to staff via internal websites. Further to this, School staff are provided, via email, weekly updates on enrolments in all the individual units offered by the School up until the census period for each semester.

[151] Professor Davies evidence is that the Applicant’s evidence appears to proceed from a basis that the rationale was to reduce the lowest enrolment course or the course with the largest enrolment decline. This is not what was proposed nor was it the underpinning rationale for the Proposal.

[152] She says Anthropology and Sociology is not the smallest major offered by the School by number of students enrolled, and it was not claimed to be in the Proposal. The Proposal also did not claim that the Anthropology and Sociology major had suffered the biggest decline in enrolments of any course delivered by the School. Also, the Proposal did note that in 2021 there had been an increase in enrolments.

[153] Her evidence was that given the underlying rationale to improve budget sustainability it was proposed that the School narrow its teaching and research program to adopt an applied learning framework and focus research into two flagship areas and emerging research areas. To implement this, with respect to Anthropology and Sociology, it was proposed that the Major in Sociology and Anthropology be discontinued.

[154] The impacts of the Proposal are in summary, the discontinuance of 16 academic positions within the School; the variation of 12 positions within the School; and the creation of 7 new academic positions within the School.

[155] The School had considered the following measures to mitigate or avert these impacts:

•  giving potentially impacted employees the opportunity to submit an expression of interest for voluntary redundancy;

•  inviting potentially impacted employees to present their achievements to a University panel to be considered for the vacant positions in the new proposed structure; and

•  exploring other redeployment opportunities within the University before implementing any compulsory redundancies.

[156] In addition, she had sought from the University additional funding for the School’s budget which she had suggested may be sourced from other Schools to mitigate any headcount reduction. This request was not approved at that time. Ultimately, adding to the School’s budget would increase costs to the University with limited return.

[157] The consultation period was initially open until 20 July 2021 and was extended to 27 July 2021 based on the volume of feedback received and the desire to ensure that individuals had an opportunity to participate in the feedback process.

[158] Professor Davies says UWA received a considerable amount of written feedback. The submissions were organised and collated by the University’s Human Resources Team into themes. She personally reviewed the feedback received, as did Professor Biggs and the University’s Human Resources Team.

[159] In summary, the feedback themes included:

•  student impact;

•  academic impact;

•  research impact;

•  rationale for change;

•  consultation process;

•  proposed changes to disciplines / courses;

•  proposed structure / workforce profile;

•  reputation; and

•  other (which included matters such as sentiment and community engagement).

[160] A number of the submissions concerned personal information from individuals consulted throughout the process. It was also expressed during consultation that feedback and information received would not be disclosed outside of the School and those managing the change process. This was designed to ensure frank feedback without any concerns that views and feedback would become public.

[161] Where a piece of feedback contained a further or alternative proposal for consideration, this was flagged as a priority for consideration during the review process.

[162] In addition to considering the feedback received through the dedicated email address, Professor Davies attended meetings with individuals and groups regarding the Proposal to receive their feedback and take on board any matter prior to any final decisions being made and communicated.

[163] During the consultation period UWA also identified key issues that were being submitted to the dedicated consultation/feedback email address. This led to the development of a follow up FAQs document which was issued along with confirmation of the extension of time for consultation to 27 July 2021.

[164] Professor Davies says that it was identified there was an error in the Proposal materials regarding enrolment data. She sent a corrective email to clarify this error on 20 July 2021 to all School staff. 16

[165] Her evidence was that this error did not change the underlying rationale for introducing the changes to the School, being budget sustainability, student load growth and improving the student experience.

[166] The error also did not change the rationale for the specific proposal to discontinue the Major of Anthropology and Sociology.

[167] Professor Davies’ evidence is that given the underlying rationale to seek budget sustainability, enrolments in the major are unsustainably low given the high cost base for the discipline. Furthermore, given the underlying rationale to grow student load, as set out in the Proposal consideration was given to the fact that UWA has expanded the majors its offers in Society and Culture and while these new majors have experienced growth, the Major in Anthropology and Sociology had experienced decline.

[168] She says consideration was also given to how the major aligns with the Proposal to adopt an applied learning framework and to focus research into two flagship areas and emerging research areas.

[169] Applied learning refers to an educational approach whereby students learn by engaging in the direct application of skills, theories and models. The applied learning activities can occur outside of the traditional lecture theatre experience and/or be embedded as part of a course.

[170] With regard to interactions with the Applicant on 12 July 2021 she was copied into a letter to Professor Biggs and Mr Waugh, signed by a number of academics within the School, particularly those engaged in the Anthropology and Sociology discipline. This took issue with the Proposal, how it was developed, the information available to assess it and requested further time and data to provide a response.

[171] On 14 July 2021, she was copied into an email from the Applicant to Mr Waugh which took issue with the delay in responding to the 12 July 2021 email and reiterated the data request.

[172] By 16 July 2021, the School had received a number of requests for further time and for links to the data used to inform the Proposal. The National Tertiary Education Union (the NTEU) had also written to Mr Waugh on 6 July 2021 and requested the period to submit feedback on the proposal be extended by 5 days.

[173] Professor Davies says that by this time she had already approached the Board to recommend the feedback stage of consultation be extended which was agreed.

[174] On 20 July 2021, when she sent the email referred to above regarding the error in the Proposal, the Vice Chancellor, Professor Amit Chakma, also sent an email to all staff acknowledging the error. The email also confirmed the view that this error did not alter the need for strategic change within the School.

[175] Also on 20 July 2021, a response to the Applicant’s data requests was sent. It should be noted that some of the data sources in the response to the Applicant were not relied on to prepare the Proposal. The data relied on to prepare the Proposal was available to staff throughout the consultation period, and links to this were provided in the further FAQs document. As additional data was requested, it was provided.

[176] However, there was data requested which was commercially sensitive to the University, including confidential financial data and information which contained personal information of third parties. For these reasons, such data was not provided.

[177] Of the data provided, the majority is sourced from the University’s Executive Information System (EIS). The EIS system is always accessible by all staff through the staff intranet and provides timely data as to recruitment, enrolments, research, staffing, planning, performance reports, targets and contains the UWA Dashboard.

[178] Her evidence was that the Applicant and his colleagues would need to engage with the information on this system on a regular basis. She denies that this data was withheld or not able to be interrogated. The Applicant and his colleagues confirmed they had access to the EIS system and had used it to extract and analyse enrolment data in their email to her sent on 12 July 2021. 17

[179] Professor Davies says the Applicant was previously Head of the Anthropology and Sociology Discipline Group and was the Chair of the Bachelor of Arts Review Committee. Each of these roles would require him to engage with the materials on the EIS system.

[180] Her evidence was the Applicant and his colleagues submitted modelling based on the data accessed via EIS in the Alternative Proposal they submitted. This document took issue with the Proposal based on their own data analysis and sought to impugn the rationale for the Proposal based on EIS data.

[181] Professor Davies evidence was that the Applicant and his colleagues’ requested data which was not used to develop the Proposal. Her evidence was that it therefore unsurprising that there were variances in their analysis.

[182] A further email was sent to Mr Waugh on 21 July 2021 which she was copied into. This email from the Applicant took issue with the withholding of certain data sources which were not provided as they were commercial in confidence. These related to work allocations across the School and the provision of financial margins.

[183] In reply, Mr Waugh sent an email on 26 July 2021 stating that releasing such information risked the provision of personal information or information which was otherwise confidential to the University.

[184] On 27 July 2021, the extended consultation feedback process concluded. In the afternoon of 27 July 2021, she sent a final email to staff within the School confirming that the consultation feedback period would close at 5:00PM and that the email address would not accept any further feedback after this time.

[185] She also stated the next steps would be to review all feedback received and give genuine consideration to each piece of feedback before a final decision was made in relation to the Proposal.

[186] During the course of 27 July 2021, she says she became aware that they had received the Alternative Proposal from a number of staff in the Anthropology and Sociology discipline, including the Applicant.

[187] Her evidence was she recalls reviewing the Alternative Proposal submitted by the Applicant and other academics. In summary, the Alternative Proposal took issue with the Proposal and suggested the Proposal may undermine the strategic priorities set by the University for the School.

[188] This was flagged for priority review and was considered as part of the deliberative processes along with all feedback received during consultation.

[189] She was a part of the feedback review process as was Professor Biggs and representatives from the University’s Human Resources Team.

[190] She says in summary, the Alternative Proposal submitted by the Applicant and his colleagues:

•  sought to introduce 4 new bachelor degrees; and

•  provided an alternative model of perceived retirements within the School and suggested that voluntary redundancies as well as non-renewal of fixed term contracts (unless contractually required) would reach the desired savings targets within the School.

[191] Her evidence was it was considered the introduction of new bachelor degrees would not address the structural reform required to reduce the budget deficit. Further, the introduction of new degrees would likely increase the School’s cost base, not assist in its reduction.

[192] It was also considered that voluntary redundancies are only effective if they are strategically used as a mitigation tool. There is no point accepting a voluntary redundancy if there is a need to subsequently backfill the role because the work associated with the role remains.

[193] UWA also considered there were no expiring fixed term contracts that could be lapsed or retirements which could achieve the desired savings.

[194] Professor Davies says that whilst the Alternative Proposal was appreciated and genuinely considered, it was not something that addressed the need for structural change in the School.

[195] The review of the feedback submissions made found that,

•  a considerable volume of the feedback took issue with the outcomes of the Proposal and not the Proposal itself;

•  a lot of feedback accepted the underlying vision for applied learning and employability of students;

•  there was commentary around a strategy of open voluntary redundancy processes or to reduce the employment of staff from full time to part time. However, these suggestions did not address the structural reform needed; and

•  parts of some alternative proposals actually added costs or repackaged the issue without actually providing any guidance or resolution as to the budgetary concerns.

[196] Professor Davies’ evidence was that in summary, no counter proposal or feedback was received which would avoid the need to implement the initial Proposal.

[197] The feedback process however did deliver a number of suggested amendments to the Proposal.

[198] The amendments to the Proposal that UWA have adopted in summary form involve:

•  Variations to the proposed refined School structure, which include establishing a Department of Anthropology, Geography and Archaeology.

•  Variations to the proposed refinement of teaching program, which include developing a new major in Anthropology.

•  Variations to the proposed staff resourcing for Department of Anthropology, Geography and Archaeology, including an additional position in Anthropology and a new fixed term role in Anthropology.

•  Variations to the proposed staff resourcing in Department of Politics, Society and Policy.

•  Variations to the proposed refinement of Research Program.

[199] Her evidence is that it became clear that it was unlikely that the underlying budget requirements would be fully met.

[200] Ultimately the Vice Chancellor has now endorsed an amended proposal. 18

[201] The Applicant made this application to the Commission on 10 August 2021.

[202] Professor Davies was conscious of the need to communicate to staff the nature of the feedback received and how this had been considered and used to inform UWA’s amended proposal. It was therefore resolved to treat the amended proposal as a provisional decision which would be subject to a final decision once the Commission proceedings are resolved. This step was taken because there was a lot of concern within the School as to what was happening and when it may happen. It was resolved that communicating an update rather than a final decision was a reasonable compromise to address staff expectations.

[203] Consequently, on 20 August 2021, Professor Davies held another town hall meeting of the school to communicate the outcomes of the consultation process and detailed the amended proposal.

[204] Following the meeting all staff were emailed a copy of UWA’s amended proposal and associated FAQs. 19

[205] Professor Davies evidence was that the School is essentially in a holding pattern in respect of any final change decision until this application is determined by the Commission. This is causing a lot of concern amongst staff as there is ongoing uncertainty as to the next steps and the timing of those.

[206] Under cross-examination the evidence of Professor Davies was that the originally stated 77% reduction in enrolments figure contained in the Proposal was corrected and staff were advised the issue was there had been a 40% reduction in major completions. Professor Davies accepts that there are other majors that have had a greater percentage decline in completions than Anthropology and Sociology. 20 Her evidence was that comparative data on completions for all the majors were not included in the Proposal because that data is already available to all staff in a format that allows staff to drill into that data. It is available on the EIS system and also accessible by the dashboard. Her evidence was no one has ever raised an issue with her that they are unable to analyse enrolment data.21

[207] Professor Davies confirmed that unit enrolment data was part of the information that informed the Respondent’s decision-making. Staff get sent weekly updates about unit enrolments and this is confirmed via email or spreadsheets. 22

[208] Professor Davies agreed that Anthropology and Sociology have the third highest number of unit enrolments within the School. She explained that income that comes off the different student loads is based on whether the student income is fixed to that School. If you have student enrolments in different units but they are not actually in the major UWA considers that to be a footloose income stream that can sit anywhere within a different School of the University and overall, they are looking at the University’s income stream. Consequently, it is not necessarily about the School’s income stream from enrolments, it’s about the University’s income stream. 23

[209] She explained that the Proposal to disestablish the Discipline Group of Anthropology and Sociology followed the agreement of the Executive that the risk of losing students who were studying the major of Anthropology and Sociology was acceptable, because those students not studying the major of Anthropology and Sociology who were studying these units would not be lost to the University because in reality there are a lot of students taking first year Anthropology and Sociology units who are likely to take other units if these units are not available. Consequently, these students will not be lost to the University and so the University will retain its income stream. 24

[210] Professor Davies explained that allegations that assessments regarding student employability and satisfaction in the proposal were not correct were based on the wrong data. She explained the proposal talks about indicators of quality and learning comparing UWA with other Western Australian universities. It does not refer to G8 universities which is a different point of comparison. She explained that what they should be looking at is that they are not succeeding in their local market. It is the point made in the Proposal and it is correct. 25 Her evidence was that this was discussed with staff that came and saw her where they were challenging the veracity of this data in the Proposal.

[211] Her evidence was there is only the single error in the Proposal. She accepted there are different ways of looking at data for example comparing with G8 universities rather than Western Australian universities but that is not an error. 26

[212] Similarly, her evidence with respect to the numbers of staff referred to in the organisational chart within the proposal stated there were 8 teaching and research staff in Anthropology and Sociology is not wrong. The assertion that the correct figure is 6.5 is wrong. She explained under cross examination that 6.5 is the number of full-time equivalents. What is referred to in the Proposal is the actual number of positions, not full-time equivalent numbers. 27

[213] With respect to the Alternative Proposal submitted on the final day of the consultation timeframe Professor Davies’ evidence was that there had been no meeting asked for by the Applicant, there had been no consultation sought by him, there was no restriction on access to her and there was no consultation denied to the Applicant. 28

[214] As for evidence there had been genuine consideration of the responses submitted to UWA, Professor Davies explained the clear evidence they had considered the submissions includes the fact that UWA are now proposing a major in Anthropology and a change in the departmental structure to have Anthropology as a full named Department in the structure. There were also other amendments made. 29

[215] It was put to Professor Davies that one of the underlying rationales was the School deficit which had not been identified in the change proposal. Professor Davies’ response was that in the first line of the Proposal it talks about budget sustainability, the proposal for change as part of the structural reform process for the entire University in the budget information provided to the School made that clear. The Proposal states that the proposed School structure teaching program and research program will be reduced and refined to ensure the School can operate in a sustainable manner. Her evidence was that alternative proposals needed to address the three underlying points of budget sustainability, student load growth and improving student experience. She rejected the proposition that the Applicant’s proposal’s failure to address fiscal deficit did not make it a viable alternative. 30

[216] With respect to the receipt of and the outcomes of the other proposals submitted, her evidence was that some were received in written form and some were received in meetings during discussion. There was both the opportunity to consult and confer on written proposals. Proposals raised verbally and in writing were mathematically assessed in the various themes drawn out. Then the University Executive discussed where parts of the alternative proposals were able to be incorporated into an amended proposal. This resulted in her needing to seek a budget extension and to get the Vice Chancellor’s endorsement which was given. Consequently, an amended proposal was endorsed. 31

[217] Professor Davies denies that Anthropology and Sociology were targeted. The entirety of the School was subject to the proposal for change. It started from a top-down basis and the University looked at the performances and income streams for the School. Following that they looked at how the School’s teaching and research can be refined so it will address the University’s strategic priorities and that is around developing an applied base. The proposal for change involves a refined teaching and research program, but not a completely different one, refined around the basis that they would be starting to focus on an applied approach and build student employability. 32

[218] Professor Davies believed approximately 50 employees would be affected by the change. This included the employees in the 16 academic positions being discontinued and the 12 in the positions being varied under the Proposal. The other 22 of the 50 employees would not be directly affected under the change proposal but the circumstances around them would change. For these 22 there would not be any redundancies nor elimination or diminution of job opportunities nor of promotion opportunities nor changes to hours of operation. 33

[219] Her evidence was that within the consultation timeframe 380 written responses were submitted to the dedicated email address UWA had provided. 34

[220] A fair number of these were “form letters” in response to a social media campaign requesting particular feedback. Some of these were members of the public, people in affiliated industries, current students, ex-staff members and some alumni. 35

[221] Professor Davies was able to identify the group of 50 employees who would be affected by the proposed changes because they were named in their written submissions. Some were submitted as part of a group and some were independent submissions. Of these some submissions contradicted others, some propose that there be other majors looked at to be discontinued, some submitted the proposal for change should be stopped, others proposed UWA should reduce Executive salaries or should seek other income sources. 36

Applicant’s submissions

[222] The Applicant submitted that the staged process of consultation required by clause 36 of the Agreement serves as a fetter on the Respondent’s prerogative to make decisions about the School of Social Sciences that have significant consequences for the Applicant until such time as the Respondent has interacted in a prescriptive manner with the Applicant, which includes the provision of accurate, reliable and transparent data and information.

[223] The Applicant submitted that there have been significant shortcomings in the provision of information by the Respondent such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the effects of the change.

[224] At no time during the process to date is it apparent there is a real prospect of the Applicant being able to modify the Respondent’s decision to disestablish an entire Discipline Group and rescind the Anthropology and Sociology major; acknowledging that the test is only that the opportunity to consult was provided and that it was possible to modify the decision.

[225] The Applicant was entitled to an opportunity to urge a different approach to the implementation of the proposed change. It may have been that there was little likelihood that the Respondent would have been persuaded to take a different position; however clause 36 is only concerned to ensure that consultation occurs, before a decision is made to implement a proposal.

[226] Other than an initial town hall meeting (during which the change proposal was announced) and a Discipline Group Meeting convened on Tuesday, 6 July 2021 with the addition of a further 2 meetings convened on 20 and 22 July 2021 respectively, at no time was there any conferral or opportunity for conferral with any representative of the Respondent following the receipt by the Respondent of approximately 380 pieces of feedback, submitted through the nominated portal including the Applicant’s Alternative Proposal within the stipulated period.

[227] Further, the requirement to consult includes making available accurate, reliable and transparent data and information. The purpose of clause 36 of the Agreement is to ensure that, before the Respondent seeks to negotiate to alter the terms of employment and engage in compulsory processes of dispute resolution, employees will have a real opportunity to make suggestions on the subject matter raised for their consideration so that the suggestions might be considered. In failing to provide accurate, reliable and transparent data and information the Applicant was severely prejudiced in being able to mitigate the adverse effects of the change and was unable to posit alternative proposals that addressed the fiscal concerns of the Respondent. The specific fiscal measures that were being considered and or relied upon by the Respondent were and remain germane to the rationale of the change proposal such that to deny the Applicant and his colleagues access to same inhibited and severely impinged the consultation process. The Applicant’s ability to engineer an alternative yet targeted proposal has also been severely diminished absent access to accurate, reliable and transparent data and information.

[228] In fact, Professor Davies expressly dismissed alternative proposals submitted by the Applicant and others on the basis that they failed to address the fiscal issues suffered by the School of Social Sciences and offer alternatives to redundancies in order to minimise the financial burden suffered by the School.

[229] Absent the availability of accurate, reliable and transparent data and information, the Applicant was denied the ability to turn his mind, with any great particularity as to how the Respondent, specifically the School of Social Sciences, could maintain its existing complement of employees and protect the employment of the Applicant by taking other courses of action.

[230] The provision of accurate, reliable and transparent data and the provision of information sought but not supplied would, in the Applicant’s view, make a material difference to the change proposal as a whole and the number of positions within the School of Social Sciences identified as redundant.

[231] An examination of the sequence of events and the communications exchanged between the parties, as detailed in the Applicant’s witness statement and the annexures as attached, against our consideration of what is required for it to be concluded that genuine consultation has occurred, highlights the significant deficiencies not only in the information made available to the Applicant, but the Respondent’s consultation process as a whole.

[232] Had the information as had been repeatedly requested by the Applicant and his colleagues been disclosed, it is further submitted that a better foundation for genuine consultation would have been established.

[233] It is submitted that the Respondent can only be said to have engaged in consultation in keeping with clause 36 of the Agreement in circumstances where the Applicant was involved at the planning stage of the proposed change before change was irrevocable and the Respondent, once the Applicant was afforded an opportunity to provide feedback on the proposed change, reciprocated by engaging constructively and with an appreciation of the Applicant’s interests.

[234] The Respondent appears to have invoked clause 36 only after it had formed a view that change was indeed necessary, in reliance on false, inaccurate and misleading information and data. The Respondent’s decision-making appears to have traversed the critical juncture between the prospect of significant change with significant consequences and the actuality of that change. Accordingly, the decision-making by the Respondent was not made in conformity with clause 36 the Agreement.

[235] At all times the Applicant’s requests for clarity and or further information and data and or an improved quality of information and data, be it in his individual capacity or as part of a collegial group, was denied or attended to in the most perfunctory and grossly insufficient manner. It is open for the Commission to conclude overall that consultation concerning the change management proposal, specifically the rescission of the Anthropology and Sociology major and the disestablishment of an entire Discipline Group within the School of Social Sciences was prevented by the conduct of the Respondent and, in particular, by the inadequacy of the information.

[236] At all times the Respondent’s resort to redundancy was not open to consultation with the number of redundancies itself fixed from the time that the Respondent issued written confirmation of the change proposal. It is open to the Commission to find that in fact the redundancies were a foregone conclusion, regardless of any consultation process that occurred (which is denied).

[237] Where the Commission is not minded to make a finding that there was a general failure to consult in keeping with clause 36 of the Agreement, it remains open to the Commission to find that the Respondent has not met the minimum standards required under clause 36 of the Agreement and that the repeated failure and refusal to provide data and information as requested prevented consultation with respect to at least one serious effect of the proposed change, the rescission of the Anthropology and Sociology major.

[238] Following an analysis of the data and information relied on by the Respondent and provided to the Applicant during the Respondent’s consultation process as a whole, the Applicant submits that the quality of the conferral was so sufficiently compromised such that the Respondent has failed or refused to discharge its obligations under clause 36 of the Agreement to consult and confer with the Applicant on the proposed major change and the alternative proposals as submitted to the Respondent by the Applicant.

[239] Whilst much of the sequence of historical events as referred to in the witness statements of Professor Davies and the Applicant is not in dispute, it is the positive requirement, as imposed on the Respondent by clause 36 of the Agreement to provide information that is consistent with and supportive of the underlying rationale, which the respondent failed and or refused to comply with.

[240] The Applicant submits that the information relied on by the Respondent and provided by the Respondent to the Applicant was inconsistent with the Respondent’s underlying rationale advanced by the Respondent and which included:

•  improving budget sustainability;

•  increasing student growth; and

•  improving student experience.

[241] The Applicant submits the data and information as relied on and provided by the Respondent to the Applicant was at all times throughout the consultation process so erroneous, deficient, false, unreliable and misleading that in all of the circumstances, the Respondent failed and or refused to discharge its obligations in accordance with clause 36 of the Agreement.

Respondent’s submissions

[242] The Respondent submits that Applicant filed 9 questions for determination however the Applicant’s submissions depart from the 9 questions submitted for determination and cast the 9 questions as propositions in support of the application.

[243] The Respondent objects to the matter proceeding via a determination of these 9 questions for the following reasons.

•  The questions assume facts which are the subject of the dispute. To answer such a question would be to accept the factual premise on which it is based, and which is in dispute in the matter.

•  The questions are effectively recharacterised submissions converted into a question which are incapable or inappropriate to answer in disposition of the proceedings.

•  Some of the questions are hypotheticals which are not grounded in the substance of the dispute and, even if answered, are incapable of effectively resolving the factual and legal controversies in this matter.

[244] It is submitted that the disposition of the application requires the following:

•  a proper construction of “Step 1” of clause 36 of the Agreement, in particular clauses 36.3 to 36.7;

•  an analysis of the factual matrix of what steps were undertaken by the Respondent to carry out the obligations contained in Step 1 of clause 36 of the Agreement; and

•  a determination as to whether, having regard to the proper construction of Step 1 of clause 36 of the Agreement, the Respondent discharged its obligations.

[245] In such circumstances, it is submitted that the matter rises and falls on the answer to the following question:

Has the Respondent discharged its obligations pursuant to Step 1 – Consultation on Significant Workplace Change of clause 36 of the Agreement?

[246] The Respondent submits that the answer to this question is “yes”. Accordingly, the application should be dismissed.

[247] In the context of these proceedings, the dispute is confined to matters which are the subject of the Agreement’s dispute resolution procedure set out at clause 46. In this sense, clause 46 of the Agreement is the source of the Commission’s power to arbitrate and determines the scope of such power.

[248] Relevantly, clause 46 of the Agreement narrows the scope of the Commission’s arbitral powers to deciding disputes relating to matters arising under the Agreement and the National Employment Standards.

[249] To the extent that the Applicant’s materials take issue with the Respondent’s compliance with any matter outside the scope of Step 1 of clause 36 of the Agreement (e.g. the Respondent’s compliance with the Respondent’s governing legislation or its own internal governance and approval process) such matters are not the subject of the parties consent to arbitrate pursuant to the Agreement and therefore do not arise for determination in these proceedings.

[250] In light of this, it is the Respondent’s submission that the scope of the proceedings is confined to compliance with Step 1, clause 36 of the Agreement.

[251] Step 2 of clause 36 the Agreement does not arise for consideration in these proceedings as the Respondent has not undertaken any implementation of any significant workplace change due to the filing of the application.

[252] Having regard to the above, the issue becomes what is the proper construction of Step 1 of clause 36 of the Agreement to understand the content of the Respondent’s consultation obligations.

[253] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 37 the Full Bench of the Commission took the opportunity to modify the summary of the principles of construction previously set by the decision in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited38. These principles are well settled.

[254] UWA submit that Step 1, clause 36 is clear and unambiguous. Accordingly, the task of construction turns on the text of the Agreement understood in light of its context. In any event, the parties to these proceedings do not seek to press a construction of the Agreement having regard to extrinsic material.

[255] It is submitted that Step 1, clause 36 provides for the satisfaction of a number of composite features, which are addressed below.

A definitive proposal and provision of a written proposal

[256] Clause 36.3 of the Agreement requires the Respondent to have developed a definitive proposal for significant change and then to engage in formal consultation.

[257] The concept of undertaking structural reform within the School which would remove the structural deficit from the School and, consequently, reorganise the School, discontinue a number of academic areas, vary others and introduce new areas within the School was the definitive proposal.

[258] Before progressing to Step 2 and implementing a significant workplace change the requirement is to engage in the formal consultation as provided by clause 36.4 of the Agreement.

[259] Formal consultation, within 36.4, required the Respondent to provide a written proposal which expands upon and unpacks the definitive proposal by providing the details prescribed in 36.4 (a) to (e).

[260] Satisfying this obligation after the 6 July 2021 town hall meeting all staff were sent the Proposal paper and a FAQs document.

[261] These documents set out as:

(a) The nature of the proposed change:

(i) that the School be organisationally restructured from 6 disciplines and 1 Department into 3 Departments;

(ii) two courses be discontinued, these being the Major in Anthropology and Sociology and associated units and the Master of Urban and Regional Planning, nested courses and associated units; and

(iii) research be focused into two highly performing flagship research areas and some emerging research fields.

(b) The underlying rationale for the proposed changes including:

(i) improving budget sustainability;

(ii) increasing student load growth (i.e. increase enrolments); and

(iii) improving the student experience.

(c) Information about the major change, which included details about the drivers for the proposed change, details about the School’s teaching program and resourcing, the activity and impact of the School’s research program, student experience and sector-wide challenges. Also, the Proposal included commentary about the School’s enrolments, information about research performance and commonly used external benchmarking data. References were also provided for external data sources in the Proposal. Obligations to provide information expressly exclude information which is the subject of legal privilege or is commercial-in-confidence. To the extent that the Applicant challenges the Respondent’s compliance with the Agreement based on the non-provision of budgetary, financial and information which would disclose individual personal circumstances, the Respondent was not obliged to provide such information. Such criticism cannot form a basis of concluding that the Respondent did not discharge its obligations under the Agreement.

(d) The significant impact the major change is likely to have on employees which included:

(i) discontinuance of 16 academic positions within the School;

(ii) significant variation of 12 positions within the School; and

(iii) creation of 7 new academic positions within the School.

(e) A reasonable timeframe for consultation of not less than 10 working days. Consultation in relation to the Proposal was initially open between the period of 6 July 2021 and 20 July 2021. This amounts to 11 working days inclusive. This period was then extended to 27 July 2021 based on requests received during the consultation period for extensions of time, including by the Applicant and the National Tertiary Education Union. In total, consultation from the date of the announcement of the Proposal was a total of 16 working days inclusive. The Respondent, in providing a total of six additional working days more than the reasonable minimum prescribed had provided a reasonable timeframe for consultation with affected staff.

(f) Any measures that the University is considering in order to avert or mitigate any material adverse effect of the proposed major change on the affected Employees which included:

(i) giving potentially impacted employees the opportunity to submit an expression of interest for voluntary redundancy;

(ii) inviting potentially impacted employees to present their achievements to a University panel to be considered for the vacant positions in the new proposed structure; and

(iii) exploring other redeployment opportunities within the University before implementing any compulsory redundancies.

Opportunity to meet and confer on the Proposal and any alternative proposals.

[262] The following conferrals took place. Professor Davies arranged a series of smaller group meetings with staff to discuss the Proposal and potential impacts on their current roles.

[263] The opportunity for written feedback from staff was provided. A dedicated email address for the submission of feedback was set up for this purpose. The Respondent provided the opportunity to meet and confer with affected staff on the proposed changes and discuss alternative proposals during the period from 6 July 2021 to 27 July 2021. Alternative proposals submitted to the email address were flagged as a priority for consideration.

[264] In respect to the Applicant and the Anthropology and Sociology Discipline Group, Professor Davies had scheduled a meeting in the afternoon of 6 July 2021. The Applicant was unable to attend. An invitation to meet the following day was extended to the Applicant which he declined to take up.

[265] To aid the development of alternative proposals, the Respondent, in the Proposal, provided detailed references to the sources used throughout that document.

[266] In response to requests from staff, a further FAQs document was issued which provided links to data and material relied on in preparing the Proposal. This accompanied the extension of time in respect of consultation to allow further proposals to be developed and discussed.

[267] The Applicant and other academics arranged and met with Mr Waugh, Director of Human Resources for the Respondent, regarding the Proposal.

[268] In response to a direct request from the Applicant and some other members of the Anthropology and Sociology Discipline Groups for specific data, Mr Waugh provided links which provided the data requested, save for information which was commercial in confidence.

[269] A member of staff identified an error in the Proposal (the 77% figure) which was corrected by the Respondent. It was confirmed to staff that, notwithstanding the error and the correction, the rationale for the Proposal did not change.

[270] In relation to the alternative proposal submitted by the Applicant and his colleagues on 27 July 2021, the Respondent did consider that document as part of its review.

[271] The Applicant made no attempt to reach out to the Respondent after his submission was lodged. The Respondent stood ready to meet if requested. There was no denial of an opportunity to meet and confer over this Proposal.

[272] In terms of understanding the content of the Respondent’s obligation under clause 36.5, the Respondent submits that what was required was genuine two way conversation about the Proposal and any alternative proposals. As Logan J stated in CEPU v QR National, there is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that?”. Only in the latter case is there “consultation”.

[273] The approach outlined above is consistent with the approach adopted by the Respondent in satisfaction of its obligations under the Agreement.

[274] It also important to note that Respondent’s obligation is cast in the plural. That is, it must be taken with respect to its “Employees” not just an “Employee”.

[275] Accordingly, the Respondent’s satisfaction of this obligation should not be impugned because of the individual experience of a single employee, such as the Applicant.

[276] In Ulan Coal Mines Ltd v Howarth 39 the agreement clause in question did not require individual consultations where the company had held discussions about the restructure and consequent redundancies with its entire workforce, and evidence indicated the presence and involvement of the Applicant’s and their union in those meetings.

[277] The relevant union in this matter, the NTEU, was aware that consultation was taking place and also submitted a request in support of the extension of time granted to provide feedback on the Proposal.

[278] The NTEU was aware that consultation was taking place and also submitted a request in support of the extension of time granted to provide feedback on the Proposal.

[279] The Respondent engaged in a School wide consultation process, with all affected employees which extended to opportunities for the Applicant to participate (which in some instances were declined by the Applicant) and his Discipline Group in Anthropology and Sociology.

[280] It is submitted that the Respondent’s obligation and its satisfaction of this obligation needs to be considered in light of the context in which the obligation arose, which, in this matter, is a School wide process.

[281] It is submitted that the employees of the School had the capacity and opportunity to meet and confer about the Proposal and discuss alternative proposals.

[282] Accordingly, the Respondent submits that its obligations under clause 36.5 have been satisfied.

Opportunity to submit written responses within the consultation timeframe

[283] The Respondent set up a dedicated email address for the receipt of written responses this was open from 6 July 2021 to 5:00PM 27 July 2021, being the consultation timeframe.

[284] On 27 July 2021, Ms Davies sent an email reminding staff of the impending closure of the consultation timeframe and that this was the last opportunity to submit feedback for consideration.

[285] On 27 July 2021 the Applicant and his colleagues submitted their alternative proposal. These steps by the Respondent were in satisfaction of clause 36.6. All employees had an opportunity to submit written responses within the consultation timeframe.

Genuine consideration to matters raised

[286] The Respondent, in addition to holding in person meetings and receiving written feedback during the consultation timeframe:

•  then organised and collated the feedback received by the University’s Human Resources Team into themes;

•  prioritised alternative proposals for review; and

•  reviewed each piece of feedback received. This was undertaken by Professor Davies, Professor Biggs and the University Human Resources Team.

[287] In respect of the alternative proposal submitted by the Applicant and his colleagues, this was considered by the Respondent. Their alternative proposal sought to introduce 4 new bachelor degrees and provide an alternative model of labour cost reduction. However:

•  it was considered that the introduction of new bachelor degrees would not address the structural reform required to reduce the budget deficit. Further, the introduction of new degrees would likely increase the School’s cost base, not assist in its reduction;

•  voluntary redundancies are only effective if they are strategically used as a mitigation tool. There is no point accepting a voluntary redundancy if there is a need to subsequently backfill the role because the work associated with the role remains; and

•  there were no expiring fixed term contracts that could be lapsed or retirements which could achieve the desired savings.

[288] Accordingly, after considering their alternative proposal the Respondent concluded it did not meet the need for structural change required by the School.

[289] Declining to adopt this particular alternative proposal is not a failure to consult under the terms of the Agreement. As noted by Flick J in Tomvald v Toll Transport Pty Ltd 40 at [211]:

“…having genuinely consulted with affected workers, the views expressed need not prevail…”

[290] Other feedback and proposals from affected employees however did form the basis of amendments to the Proposal. It is submitted that this could only be achieved through the genuine consideration of the outcomes of the consultation process (being written responses and in person meetings) which resulted in the Proposal being meaningfully amended.

[291] Amendments to the Proposal, included variations to:

•  the proposed refined School structure;

•  the proposed refinement of teaching program;

•  the proposed staff resourcing for Department of Anthropology, Geography and Archaeology;

•  the proposed staff resourcing in Department of Politics, Society and Policy; and

•  the proposed refinement of Research Program;

[292] To give effect to the Proposal amendment process, the Respondent had:

•  identified key issues arising from the feedback and formulated measures to address those issues;

•  made amendments to the Proposal based on the feedback received;

•  consulted and received approval from the Vice Chancellor to adjust the School’s budget in order to give effect to the amended Proposal;

•  compiled a response document which was sent to the Board for consideration;

•  following consideration by the Board, shared the document with the Vice Chancellor for consideration and endorsement; and

•  once the Vice Chancellor had endorsed the amended Proposal, communicated it to the School.

[293] The Respondent held a town hall meeting on 20 August 2021 to communicate to staff the nature of the feedback received and how this had been genuinely considered and used to inform the amended Proposal.

[294] In light of these proceedings before the Commission, the Respondent resolved to treat UWA’s amended proposal as a provisional decision which would be subject to a final decision once the proceedings are resolved. The amended proposal was sent to all staff as with a further FAQs document.

[295] It is submitted that the Respondent’s approach to consultation achieved that which the Court’s and Tribunal hold as being the core reason for undertaking genuine consultation. As noted by Sachs LJ in Sinfield v London Transport Executive 41 at 558:

“Consultations can be of very real value in enabling points of view to be put forward which can be met by modifications of a scheme and sometimes even by its withdrawal. Any right to be consulted is something that is indeed valuable and should be implemented by giving those who have the right an opportunity to be heard at the formative stage of proposals – before the mind of the executive becomes unduly fixed.”

[296] Through consultation, points of view were able to be put forward which resulted in modifications to the Proposal which were identified, incorporated and approved by the Respondent.

[297] It is submitted that the Respondent’s consultation:

•  did not only provide a mere opportunity for employees to be heard;

•  extended to having their views taken into account and, in some cases, implemented as part of the amended proposal;

•  was not taken as being a mere formality or treated perfunctorily.

[298] Accordingly, the Respondent submits that it discharged its obligations pursuant to Step 1, clause 36 of the Agreement.

[299] In all of the circumstances, for the reasons submitted, the Respondent’s consultation process was clear, thorough, transparent and in accordance with the terms of the Agreement.

Accordingly, the Respondent submits that the application should be dismissed.

Consideration

[300] Change within a workplace often results in different outcomes for different employees. In this case the proposed changes cause job losses for some employees but also creates opportunities for others, by the creation of new positions and the alteration of other positions.

[301] As previously explained the Commission’s role in determining a dispute under this Agreement is limited to that provided by the words in the parties’ Agreement.

[302] Clause 46 Disputes of the Agreement prescribes that for the purposes of that clause “Disputes must relate to matters arising under the Agreement…”.

[303] 46.12 of the Agreement prescribes that “If the Dispute is not resolved...” through internal discussions either party may refer the Dispute to the Commission and the Commission may deal with the Dispute through conciliation and/or arbitration in order to resolve the Dispute.

[304] Clearly it is only a dispute relating to matters arising under the Agreement that the Commission can deal with by arbitration.

[305] Consistent with this it was explained to the Applicant at the first conference that clause 36 of the Agreement read in conjunction with clause 46 does not empower the Commission to review the merit of a particular change proposed by the University nor to decide whether alternative proposals are better or worse than the University’s proposal.

[306] The questions the Applicant has asked to be determined have a heavy emphasis on concerns about data and information. Questions b), c), e) and f) refer to this respectively as follows,

“relevant and accurate data and information”

“accurate, reliable and transparent data”

“inaccurate data and information”

“comparative and financial data and information”

[307] The Macquarie dictionary defines data as “figures, statistics, etc., known or available; information collected for analysis or reference…”.

[308] The Respondent chose to include some data in the written proposal for change, assumedly because it believed this data was persuasive. One particular piece of data was challenged by the Applicant and others and was proven to be incorrect. The University, no doubt with some embarrassment, subsequently acknowledged their error and advised staff of this during the consultation timeframe.

[309] This data error is submitted by the Applicant to be a significant issue in this application. Perhaps unsurprisingly given the Applicant and others affected by the proposed change are academics with research backgrounds, the weapon of choice for those challenging the proposed change was data.

[310] Indeed, debates in academia about data and its analysis are to be expected. What raw data should be recorded? How should recorded data be analysed? How is the analysis to be interpreted? Questions as to whether particular data is relevant, accurate or reliable are often debated.

[311] These affected employees are of course fully entitled to adopt this approach and call upon available data themselves which they believe supports their arguments when conferring with the Respondent and/or putting forward potential alternative proposals.

[312] What is unsurprising is that data alone does not answer the questions the University posed for itself when developing its proposal for change.

[313] An analysis of the available data obviously is one input into the University’s considerations however managing a university as is the same for many complex organisations involves making decisions in circumstances of some uncertainty.

[314] With this context the Applicant’s decision to formulate the questions for determination heavily focusing on data as set out above is problematic because there are no references in clause 36.3 through to 36.9 inclusive of the Agreement to these phrases. Indeed, the word ‘data’ is not used in clause 36. Nor are the words ‘relevant’, ‘accurate’, ‘reliable’, ‘transparent’, ‘comparative’ or ‘financial’.

[315] No submissions have been made as to why these words and phrases below, that the parties did not include their Agreement, used in the way the Applicant has in the questions for determination are relevant to the Commission’s determination of this application:

“relevant and accurate data and information”

“accurate, reliable and transparent data”

“inaccurate data and information”

“comparative and financial data and information”

[316] The wording the parties did include in their Agreement that concern an obligation on the University to provide information, are those at 36.4. This subclause requires that the University’s written proposal must set out,

•  “the nature of the proposed change and underlying rationale,” and

•  “information about the major change, other than information which is subject to legal privilege or is commercial in confidence.” (Underlining added)

[317] The obligation to provide information is limited to information “about the major change”.

[318] There is no obligation on the Respondent to provide anything other than this. The clause simply does not oblige the University to provide data or statistical analysis or anything of that nature. The Respondent had no obligation to provide in its written proposal the data which informed its decision-making.

[319] Consequently, the premise of a number of the Applicant’s questions are false which renders those questions beyond the Commission’s jurisdiction to determine.

[320] Returning more generally to the obligations in clause 36 of the Agreement the evidence satisfies me that having developed a definitive proposal which involved significant change, the University did engage in formal consultation with affected employees including the Applicant and their relevant unions or other representatives.

[321] As required, that formal consultation included the provision of a written proposal which set out the nature of the proposed change and underlying rationale.

[322] As required, information about the major change was provided in the Proposal.

The Proposal set out the significant impact the change was likely to have on employees.

[323] The Proposal also set out measures the University was considering to avert or mitigate adverse effects on the affected employees.

[324] The evidence demonstrates the University provided the opportunity to meet and confer with affected employees, including the Applicant, on the proposed change and any potential alternative proposals. The University also provided the opportunity for affected employees, including the Applicant, to submit written responses.

[325] Relevantly the Applicant during the consultation timeframe was never prevented in any way from meeting and conferring with the University. Offers to meet with him were made a number of times which he declined. He attended other meetings during this timeframe with University representatives. Finally, the Alternative Proposal of which the Applicant was one signatory was submitted in writing to the University on the final day of the consultation timeframe. The Applicant at no time requested to meet with representatives of the University regarding this Alternative Proposal before or after it was submitted.

[326] The parties in their Agreement at clause 36.4 (d) decided that a reasonable timeframe for consultation was not less than 10 working days. The University set a timeframe for consultation originally of this length and then extended that by one more week. This timeframe was therefore more than reasonable.

[327] Having received written and oral submissions the evidence is the University gave genuine consideration to these and to other matters raised during the formal consultation by both employees and their representatives. I accept the evidence of Professor Davies that the Alternative Proposal of which the Applicant was one signatory was genuinely considered in this process. Some of the submitted responses and other proposals have resulted in amendments to the original Proposal, demonstrating they were genuinely considered.

[328] Finally, it is in any case clear from the evidence that although the University was not required by the Agreement to do so it responded positively to the Applicant’s request for access to particular data, albeit not everything he asked for was provided for the reasons explained in Professor Davies’ evidence which was communicated to him by Mr Waugh. I also accept the evidence that the Applicant as a staff member had access to a wide range of other data regarding the University’s operations and the fact is the Alternative Proposal submitted by the Applicant and his colleagues contains 6 tables each a product of their analysis of various data sources.

Conclusion

[329] The Applicant’s original Outline of Submission filed on 8 October 2021 said as follows,

“3. The Fair Work Commision is being asked by the applicant to make a finding that, inter alia, the respondent failed and or refused to comply with clause 36 of The University of Western Australia Academic Employees Agreement 2017 (Agreement)…” (sic)

[330] Having considered the evidence of the witnesses in this case and the submissions of both parties I am satisfied that contrary to the Applicant’s submission UWA has complied with the requirements of clause 36 of the Agreement.

[331] I will now turn to the individual questions the Applicant has posed for the Commission to determine which are set out below. The Commission’s decision is in bold.

(a) Has the Respondent failed and or refused to engage in formal consultation consistent with clause 36.4 of the Agreement and in failing or refusing to do so, has prevented the applicant from being able to genuinely consider the measures to avert or mitigate the significance and adverse effects of the change?

The Respondent has not failed or refused to engage in formal consultation consistent with clause 36.4 of the Agreement. The answer to this question is “No”.

(b) Has the Respondent failed and or refused to provide relevant and accurate data and information such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

The Respondent is not obliged to provide data. The Respondent has met its obligations under clause 36 of the Agreement to provide information about the major change. The answer to this question is “No”.

(c) Would the provision of accurate, reliable and transparent data by the Respondent and the provision of data and information sought by the Applicant from the Respondent but not supplied by the Respondent have made a material difference to the change proposal as a whole and the number of identified staff redundancies?

The Respondent is not obliged to provide the data and information, as characterised, sought by the Applicant. Separately the balance of the question is beyond the Commission’s jurisdiction. Consequently, the Commission cannot answer this question.

(d) Was the information and data provided by the Respondent to the Applicant sufficient or provided in a sufficiently timely fashion to ensure consultation about the change proposal was consistent with clause 36.4 of the Agreement and such that the Applicant was able make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

The question assumes obligations on the Respondent that are not contained in clause 36.4 of the Agreement, to provide sufficient data in a sufficiently timely manner. Consequently, the Commission cannot answer this question.

(e) Was the underlying rationale as relied on by the Respondent to rescind the Anthropology and Sociology major and disestablish an entire discipline founded on inaccurate data and information such as to compromise the quality of the consultation undertaken and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

Clause 36.4 of the Agreement does not empower the Commission to review the underlying rationale of a proposed change or the data and information on which it is founded. Consequently, the Commission cannot answer this question.

(f) Did the underlying rationale of the proposed change prepared by and relied on by the Respondent omit important comparative and financial data and information such as to compromise the quality of the consultation undertaken by the Respondent and to undermine the capacity of the Applicant to make suggestions and raise genuine alternatives to the Respondent, in order to mitigate the significance and the adverse effects of the change?

Clause 36.4 of the Agreement does not empower the Commission to review the underlying rationale of a proposed change or the data and information on which it is founded. There is no obligation to provide comparative or financial data and information. Consequently, the Commission cannot answer this question.

(g) Did the Respondent fail and or refuse to provide the opportunity to meet and confer with the Applicant on the proposed major change and the alternative proposals as posited by the Applicant (including those submitted by the Anthropology and Sociology Discipline Group and the School of Social Science Group of which the Applicant was a part) to the Respondent, consistent with clause 36.5 of the Agreement.

The answer to this question is “No”.

(h) Did the Respondent fail and or refuse to give genuine consideration to matters raised by the Applicant (including those submitted by the Anthropology and Sociology Discipline Group and the School of Social Science Group of which the Applicant was a part) during the stated formal consultation period, consistent with clause 36.7 of the Agreement.

The answer to this question is “No”.

Appearances:

K. Walawski of MDS Legal for the Applicant.
J. Parkinson of Kingston Reid for the Respondent.

Hearing details:

2021.
Perth:
October 27.

Printed by authority of the Commonwealth Government Printer

<PR735568>

 1   [2016] FWCFB 8120.

 2   Ibid at [49] and [50].

 3   Exhibit A1, Attachment MXF1.

 4   Exhibit R1, Annexure AD15.

 5   Exhibit A1, Attachment MXF7.

 6   Ibid., Attachment MXF11.

 7   Ibid., at [69].

 8   Exhibit A3 at [131], [132] and [137].

 9   Transcript at PN294 and PN296.

 10   Ibid., at PN296.

 11   Exhibit R1, Annexure AD9.

 12   Ibid., Annexure AD10.

 13   Ibid., Annexure AD11.

 14   Ibid., at [117].

 15   Ibid., Annexure AD11.

 16   Ibid., Annexure AD14.

 17   Ibid., Annexure AD16.

 18   Ibid., Annexure AD28.

 19   Ibid.

 20   Transcript at PN384 to PN391.

 21   Ibid., at PN392 to PN396.

 22   Ibid., at PN404.

 23   Ibid., at PN411.

 24   Ibid., at PN412.

 25   Ibid., at PN443.

 26   Ibid., at PN449.

 27   Ibid., at PN450 to PN456.

 28   Ibid., at PN458.

 29   Ibid., at PN460.

 30   Ibid., at PN468 to PN473.

 31   Ibid., at PN479.

 32   Ibid., at PN481.

 33   Ibid., at PN483 to PN488 and see clause 36.2 of the The University of Western Australia Academic Employees Agreement 2017 [AE426153].

 34   Ibid., at PN489.

 35   Ibid., at PN490 and PN491.

 36   Ibid., at PN492 to PN495.

 37   [2017] FWCFB 3005.

 38   [2014] FWCFB 7447.

 39   (2010) 196 IR 32; [2010] FWAFB 3488 at [29]-[32].

 40   [2017] FCA 1208.

 41   [1970] Ch 550.