AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.99 notification of industrial dispute
National Tertiary Education Industry Union
and
Australian Higher Education Industrial Association
The University of Melbourne and others
(C No. 31520 of 1998)
Academic employees |
Educational services |
SENIOR DEPUTY PRESIDENT DUNCAN |
SYDNEY, 7 NOVEMBER 2001 |
Section 89A(2)(a) - position classification standards.
[1] This decision is by way of supplement to a decision issued in National Tertiary Education Industry Union and Australian Higher Education Industrial Association and others on 15 February 2001 [Print PR901141]. That decision was concerned with a claim for the inclusion of Position Classification Standards (PCS) in a consolidated academic award regulating the employment relationship between universities and staff members or eligible to be members of the National Tertiary Education Industry Union (NTEU).
[2] In that decision the Commission as currently constituted refused to accept the PCS sought by the NTEU but found that some were both allowable and necessary. The parties were given the opportunity to develop their own PCS with regard to considerations set by the Commission. Those considerations were:
"The consideration of proposals will include reference to:
The position classification descriptions should remain based on full equality between the former two academic sectors of universities and colleges of advanced education.
There should be two sets of PCS - one for academic and teaching roles, the other for research-only positions. The latter should be influenced by the fact that NHMRC controls funding and has its own approach to PCS [see exhibit University 11 - the letter of 25 January 2001 from NHMRC on the subject]. It should also be noted that the NHMRC PCS appear to be an evolving item.
The degree of consistency with the relevant requirement of s.143 of the Act.
The question whether the PCS should be general descriptors only rather than go on to specify duties is a complex one. It is appreciated that restricting PCS in that way reduces or possibly removes the tension between the PCS and the merit promotion system. Such reduction or removal must be one of the aims of the redrafting of the PCS. However at this stage I do not direct the parties to confine themselves to considering only general descriptors. I give them the opportunity to reduce or remove the tension in a redraft.
The degree to which the PCS clearly delineate the differences between the levels.
The clarity of and nature of any award distinction between the PCS or classification requirements and the merit promotion system without incorporating that system into the award.
The clarity of and nature of any award distinction between the PCS in this award and similar or substitute provisions in general staff awards.
If the proposal addresses institutional flexibility how is does that bearing in mind that the subject is arguably better dealt with by enterprise bargaining,
How the proposal addresses individual flexibility - referring specifically to the issues raised in Miller but not confirming them to that."
[3] The parties have been developing their own PCS for some time. During that period I issued directions (on 19 September 2001) in which it was stated:
"The Commission confirms that the arbitration it will conduct on 1 and 2 November 2001 in Melbourne will be a last chance arbitration in which the Commission will choose, having heard the parties, one or other of the various phrasings put forward by the parties."
[4] In October the parties advised that the documents they were filing in accord with the directions were identical except for the third sentence of the third paragraph of the preamble in relation to the dispute resolution procedures. I set out the terms of the preamble including the disputed sentence (the parties had dropped the description Position Classification Standards for Minimum Standards for Academic Levels (MSAL):
"Minimum Standards for Academic Levels (MSALs)
Minimum standards for levels of academic staff, other than a casual employee, are set out in schedule B. The levels are differentiated by level of complexity, degree of autonomy, leadership requirements of the position and level of achievement of the academic. The responsibilities of academic staff may vary according to the specific requirements of the institution to meet its objectives, to different discipline requirements and/or to individual staff development.
An academic appointed to a particular level may be assigned, and may be expected to undertake, responsibilities and functions of any level up to and including the level to which the academic is appointed or promoted. In addition, an academic may undertake elements of the work of a higher level in order to gain experience and expertise consistent with the requirements of an institution's processes.
MSALs will not be used as a basis for claims for reclassification. Any dispute over the application of these standards will be resolved via the dispute resolution procedures in the Award. The resolution of such disputes either through the dispute resolution process or arising from legal proceedings will not result in an academic being reclassified, appointed or promoted to a higher level other than in accordance with the normal promotion process of the institution."
The disputed sentence is emphasised. The NTEU does not wish the sentence included the universities (both members of Australian Higher Education Industrial Association (AHEIA) and those separately represented) do.
[5] At the conclusion of the hearing on 1 November 2001 I sought and obtained a release from the parties of my commitment to last chance arbitration in respect of the second and third sentences in the third paragraph of the preamble set out above.
[6] The primary position of the NTEU was that the third sentence should not appear. Mr Solomon argued:
· insertion of the third sentence would introduce uncertainty;
· the restriction on remedy is peculiar - the powers of bodies dealing with a dispute would be constrained;
· the process envisaged by s.111AA of the Workplace Relations Act 1996 (the Act) would be restricted;
· section 3(d)(ii), one of the objects of the Act, would be frustrated;
· the restriction would prevent resolution of a dispute arising from a flawed promotion procedure;
· self-denying provisions are inimical with the requirements of the Act;
· Sections 111(1)(t), 114, 104 and 120 would be offended;
· the restriction was too wide;
· the award would be a minimum rates award and to stipulate outcomes would be inappropriate - adjustments were best left to enterprise bargaining.
[7] The AHEIA, through Ms Pugsley, sought the inclusion of the third sentence, it was submitted that:
· inclusion of the sentence addressed the issue referred to in the earlier decision:
". . .PCS would set up a second way of changing from one level to another in competition with merit promotion and this could eventually have an effect on the standing of Australian universities internationally" [see para. 64 of Print PR901141]
and the third sentence removed that competition;
· the objects of the Act [s.3(d)(ii) were not attacked, insertion of the sentence would not mean lack of enforceability;
· the sentence did not introduce uncertainty, it amplified the first sentence which was a consent position.
[8] Mr Ruskin, for eight universities outside AHEIA said:
· the NTEU had agreed to the first sentence - it was a statement of principle - the amplification is necessary - if the first sentence is not qualified there is uncertainty;
· the NTEU has not said what the first sentence means;
· on its own the first sentence can be interpreted that nothing can be done about classification disputes but with the third sentence the Commission can do whatever it likes about disputes - even ordering the payment of money at a higher level - except formally reclassifying relying on an interpretation of the conclusion quoted earlier;
· the third sentence did not undermine the powers of the Commission and specifically not the powers in the sections referred to by Mr Solomon;
· the absence of the third sentence would result in the first becoming rigid - the Commission may be prevented from dealing with a wide range of disputes;
· if the third sentence were absent there would be uncertainty and tension with merit promotion;
· as a secondary position, if the sentence were not adopted then the Commission should clarify the situation.
[9] In reply, Ms Floyd for NTEU submitted:
· the union agreed with the last submission of Mr Ruskin's noted above;
· the third sentence prevented action on disputed position appointment levels which went further than the dispute and "any other legal proceedings was also wider;
· where the promotion system was itself flawed, in individual cases, an application to the Commission should be possible;
· the union would not be lodging dispute notifications seeking reclassification on the basis of the MSAL.
[10] In considering what should be done I am influenced principally by the conclusion found in paragraph [64] of the earlier decision which is set out in paragraph [7] above. I intend nothing be done which encourages or even permits competition between merit promotion and the MSAL.
[11] This is particularly important because the parties are agreed on it. Further, in the MSAL generally, the parties have produced a set of minimum standards which are clearly expressed and, particularly in the preamble as noted by Mr Ruskin, address and resolve a number of problems. The Miller situation is referred to as an example. It is addressed by the first sentence in the second paragraph of the preamble. Similarly the last sentence of the first paragraph removes an existing source of dispute.
[12] With these matters in mind I have considered the value of the third sentence in the third paragraph. I am not convinced that it adds anything to the first sentence. If MSAL are not to be used as a basis for claims for reclassification then claims on the basis of MSAL can not result in reclassification. Mr Ruskin's explanation of the meaning or effect of the third sentence reduces the impact of the sentence to nothing more than the corollary of the first. As such it is not an explanation of it. I also have the view that it is unwise to restrict an outcome in a dispute as the sentence does when one has no idea of the content of the dispute. A dispute over a flawed merit promotion procedure may necessitate a reference to MSAL and create the opportunity that it would be argued that it was a reclassification dispute. The problem would be one of characterisation of the dispute and the remedy should not alone determine that characterisation.
[13] It was argued that the first sentence would be rigid without the third. For my part, if the first sentence means, as I think it does, that a claim for reclassification on the basis of MSAL is not, in a word, justiciable, then let the sentence be rigid. What will have to be determined in the future in particular circumstances is whether a claim for reclassification is based on MSAL. If it is not it can proceed. It is not necessary at this stage to try and identify such a claim.
[14] A lesser factor which enters consideration is the wisdom and more relevantly the efficacy of dictating to bodies outside the Commission what they can or can not do. I would have thought the statute under which such bodies operate would determine what they can or can not do subject only to the potential for a s.109 argument in relation to State legislation.
[15] For these reasons I reject the inclusion of the third sentence in the third paragraph.
[16] That is not the end of the matter. I have already noted that the parties released me from the confines of last chance arbitration and in view of that and because Mr Ruskin had an alternative position I have considered whether within the limitations of such release [see paragraph [5] above] there is anything I should do which assists implementation of the conclusion in the earlier decision and referred to in paragraphs [8] and [9] above.
[17] The first thing I consider I raised with the parties and that is the deletion of the second sentence. I hold that without the third sentence the second sentence is stating the obvious. It is doubtful even whether it should appear in a simplified award unless it has a specific purpose. I suspect that purpose goes with the deletion of the third sentence. For these reasons I will delete it.
[18] Consideration has been given to whether anything should be added to the paragraph, consisting now of the first sentence. During proceedings I indicated to the parties that much of the background to the document that emerged from the consultative approach adopted by the parties is contained in the latter pages of the earlier decision. I do not wish to add to that.
[19] However I think that the reason the first sentence of the paragraph is there is worth being adapted as a guide to its application. Having heard the parties I indicate that the first sentence in the third paragraph of the preamble arose out of the parties agreement that there should not be two methods of promotion and that tension between the MSAL and merit based promotion should be reduced. To that end the sentence is incorporated and it should be applied in every case from that point of view.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
Appearances:
E. Floyd and R. Solomon for the National Tertiary Education Industry Union.
C. Pugsley for the Australian Higher Education Industrial Association.
N. Ruskin, solicitor for University of Melbourne, University of Sydney, University of Queensland, University of New South Wales, University of Adelaide, University of Western Australia, Australian National University and Monash University.
Hearing details:
2001.
Melbourne:
November 1.
Printed by authority of the Commonwealth Government Printer
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