Dec 526/98 N Print Q0702

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.107 reference to a Full Bench

s.99 notification of industrial disputes

National Tertiary Education Industry Union

and

Australian Higher Education Industrial Association

(C Nos. 34925 and 34932 of 1995)

HIGHER EDUCATION GENERAL AND SALARIED STAFF

(INTERIM) AWARD 1989

(ODN C No. 21807 of 1989)

[Print J0369 [H0084]]

HIGHER EDUCATION WORKERS VICTORIA (INTERIM) AWARD 1993

(ODN C No. 21926 of 1992)

[Print K7016 [H0130]]

UNIVERSITIES AND POST COMPULSORY ACADEMIC CONDITIONS

AWARD 1995

(ODN C No. 22375 of 1995)

[Print M6477 [U0107]]

HIGHER EDUCATION (NON CONTINUING CONTRACT EMPLOYMENT) INTERIM AWARD 1996

(ODN C No. 34925 of 1995)

[Print N7135 [H0552]]

s.113 application for variation

CPSU, the Community and Public Sector Union

(C No. 22586 of 1996)

HIGHER EDUCATION GENERAL AND SALARIED STAFF

(INTERIM) AWARD 1989

(ODN C No. 21807 of 1989)

[Print J0369 [H0084]]

Various employees Educational services

JUSTICE MUNRO

SENIOR DEPUTY PRESIDENT WATSON

COMMISSIONER SMITH SYDNEY, 11 MAY 1998

Award about types of employment; jurisdiction; ambit from more than one dispute; implied limitation on Commonwealth power extends to agencies of the States: universities are not agencies of the States but are public foundations of distinctive rank; proposed award clauses are about subjects that pertain to relationship between employer and employee; allowable award matters; content of contract of employment; award rights and duties relating to four types of employment: full-time, part-time, fixed-term contract and casual; conditions incidental to types of employment; period of probation subject to duty to disclose grounds for ending probation; duty on employer to state terms of engagement; use of fixed-term contract employment limited to specified circumstances; incidents of fixed-term contract employment to include rights to incremental advancement in classification, minimum notice of renewal or non-renewal of contract and severance pay for a class of employees within that type of employment; arbitrated dispute settlement procedure in relation to disputes about classification within type of employment and entitlements; "sunset clause" on form of dispute settlement procedure awarded; transitional provision; "savings" provision.

DECISION

TABLE OF CONTENTS

1 The General Issues for Determination: 3

2 The Jurisdictional Points Raised and Pressed by the AHEIA: 6

3 The Merits, Form and Content of a Final Order: 31

4 The Content of the Award Determined: 36

5 Rulings on Particular Points Rasied on Settlement on Settlement of Order: 54

6 Conclusion and Determination: 59

1 THE GENERAL ISSUES FOR DETERMINATION:

The part of this matter now to be determined is in form the settlement of an order to give effect to a decision to make an award. The substance of the matter originated from applications made by the National Tertiary Education Industry Union (the NTEU) under section 113 of the Workplace Relations Act 1996 (the Act) for variation of three awards, and an application by the CPSU, the Community and Public Sector Union (the CPSU) for variation of one of those awards. The proceeding has a long history, much of which is narrated in our decisions of 21 November 19971 and 18 August 19972.

Our decision of 18 August 1997 dealt with the merits of the NTEU and the CPSU applications. This decision is supplementary to that decision and to our determinations associated with the making of the Higher Education (Non Continuing Contract Employment) Interim Award 1996 (the Interim Award). The content of a final award provision relating to the subjects dealt with in the applications by the NTEU and the CPSU and some associated jurisdictional questions were discussed at conferences convened by Smith C. The parties failed to achieve an agreed approach to the implementation of our decision of 18 August 1997. The focus of the matters to be determined by this decision is a draft order lodged by the NTEU amounting to a revised application for an award. That draft and associated written submissions supporting or opposing it are responses to a Statement we issued on 12 November 1997.

The award proposed by the NTEU would be a new award, binding upon the NTEU, the CPSU and the Australian Municipal, Administrative, Clerical and Services Union (the ASU) and members of the Australian Higher Education Industrial Association (the AHEIA) who are employers in the higher education industry. The proposed award is intended to be co-extensive in coverage with the currently operative awards and to prevail over them. The original application under section 113 covered three awards: the Higher Education General and Salaried Staff (Interim) Award 1989 (the HEGSS Award), the Australian Post Compulsory and Higher Education Academic Salary (Consolidated) Award 1989 (the Academic Award), and the Australian Universities Academic and Related Staff (Salaries) Award 1987 (the Universities Award). The draft order lodged by the NTEU includes the first of those awards but substitutes the Higher Education Workers (Victoria) Interim Award 1993, and the Universities and Post Compulsory Academic Conditions Award 1995 for the other two, and stipulates that the award to be made shall prevail over them and "the Contract of Employment Award 1987", (sic), presumably meaning the Interim Award. In addition, the final form of the draft proposed award is expressed to bind in respect of employment by the respondent employers under the Teachers (English Language Centres of Australian Universities) Conditions of Employment Award 19963 (the ELICOS Award).

The substance of the proposed award obligations may be summarised as follows:

(1) Employment must be in one or other of three closely defined types of employment:

(2) A fixed-term contract employment is defined by a list of the criteria for identifying that type of employment by reference to the purpose and likely duration of the employment or the source of funding for it;

(3) Some of the incidents of each type of employment are prescribed including in the case of fixed-term contract employees:

(4) In relation to casual employees:

(5) The employer must generally give recognition to prior service and to qualifications for purposes of selecting the appropriate salary point within a classification structure for a comparable position.

(6) Each employee on appointment must be supplied with a letter of appointment setting out among other matters: the terms of the contract of employment and specifying the type of employment; the term of employment, if relevant; the salary classification level on commencement; a statement of conditions of employment and relevant sources; and the reasons for the contract being fixed-term or casual (clause 10).

(7) A dispute resolution procedure will involve the convention of a Disputes Committee with a recommendatory function and a capacity to refer an unresolved dispute to the Commission for arbitration (clause 11).

(8) Transitional provisions will operate until 1 February 1999. In that period, the employer would be required to determine the type of employment of each existing contract employee. Allowances payable under the proposed award are to take effect only from 1 January 1999 (clause 12).

AHEIA joined issue generally on the merits of the application. In addition AHEIA raised several jurisdictional points against the whole or parts of the proposed award.

The hearing of this stage of the matter soon became complicated. We first required the parties to speak to their written submissions on 12 November 1997. As part of a written submissions lodged on 5 November 1997, AHEIA raised a fresh jurisdictional point. It relied on the implied limitation on Commonwealth legislative powers as the basis for a further jurisdictional challenge to the proposed award. That challenge turned upon a contention that the universities and higher education employer respondents are, with one or two possible exceptions, agencies of the States. We allowed the parties a further opportunity to put on evidence and written submissions about that aspect of the respondent employers' case. We later issued a further direction allowing the parties the opportunity to put further oral submissions on 11 December 1997. On that date, we heard the parties about the proper approach to be followed by the Commission after the AHEIA had raised but then withdrawn its "implied limitation" challenge to the Commission's jurisdiction. At the conclusion of that day's hearing, we allowed the late intervention of the three Western Australian universities and required them to lodge any submission they wished to put in writing by 23 December 1997.

For the hearing of this stage of the proceedings, Mr W. Friend, of counsel, appeared by leave with Mr K. McAlpine, Ms L. Gale, Ms C. Ryan and E. Floyd for the NTEU; Mr F.L. Wright QC with Mr J. Walton, of counsel, and later Mr D. Perkins appeared by leave for the CPSU; Mr R. Tracey QC with Mr P. Burchardt, of counsel, appeared by leave for the AHEIA. The Curtin University of Technology, Edith Cowan University and the University of Western Australia were each granted leave to intervene to put submissions to the effect that each is not an agency of the State.

2 THE JURISDICTIONAL POINTS RAISED AND PRESSED BY THE AHEIA:

2.1 Ambit for an award about some proposed provisions:

2.1.1 Background to ambit points and main contentions:

On 2 April 1996, the Full Bench, as then constituted to deal with these matters under section 107, directed the NTEU to among other things identify the disputes upon which it relied for the making of an award provision in the terms proposed. In written submissions in reply to AHEIA on 4 December 1996 both the NTEU and the CPSU appended extracts of the logs of claims associated with relevant disputes. In its written submissions in November 1997 (marked after receipt as Exhibit NTEU 39), the NTEU claimed that ambit for the proposed award was established through six industrial disputes found respectively in matters: C Nos 31071 of 1992, 31066 of 1992, 31578 of 1993, 90011 of 1993, 30495 of 1995 and 30052 of 19964. It relied also on the proceedings notifying disputes under section 99 of the Act in C Nos 34925 of 1995 and 34932 of 1995, and sought a finding or variation of a finding in dispute in those terms if necessary. The first of those disputes was instigated by the NTEU's predecessor organisations, the Federation of Australian University Staff Association (the FAUSA) and the Union of Australian College Academics (the UACA) respectively.

The submissions to us lodged by AHEIA and NTEU in November and December 1997 referred to the contents of those logs without identifying the source documents. The CPSU's final submissions referred to its 1996 submission and attachments as an evidential source for details of the subjects in dispute. In the circumstances, we have treated the extracts attached to the NTEU's Further Written Submissions in Reply lodged 4 December 1996, and the CPSU's Reply of the same date, as evidential material about the disputes found in C Nos 31071 of 1992, 31066 of 1992, 90011 of 1993 and 31578 of 1993 respectively. To assist in the identification of that material, we have marked the NTEU and CPSU submissions as Exhibits NTEU 41 and CPSU 12 respectively. We have also verified those and other findings relied upon against the original files. Attachment 1 sets out in table form the disputes relied upon, and identifies the relevant parties.

The AHEIA's submissions dealing with ambit were built around detailed comparisons of the proposed clause with the wording of particular claims in each of the logs. We have read those submissions and the replies made to them, and have examined the relevant logs closely. We do not consider it productive to set out in detail the content of all parts of the logs relied upon. It is sufficient for the purposes of this decision to note that the NTEU logs in C Nos 31071 of 1992 and 31066 of 1992 are substantially identical. Each contains a relatively detailed set of clauses about Appointment, Promotion and Contract of Employment. The first 5 subclauses of clause 2 of that log read:

The AHEIA developed a submission to the effect that there could be no generic ambit for the provisions of the proposed award. The AHEIA's predicate was that the industrial disputes relevant to the making of the proposed award are distinct and separate logs of claims disputes associated with the various proceedings joined for the purposes of this matter. Those disputes are materially different as between the union parties. AHEIA took similar issue on ambit grounds against the NTEU in relation to four specific clauses of the draft award:

(1) The requirements in clauses 5.1 and 10 as to provision of a letter of appointment.

(2) The definition in clause 5.7 of "comparable continuing employee" used in clause 7.1.2 to quantify severance pay for non-renewal of contracts of fixed-term contract employees with more than five years' experience.

(3) The definition in clause 5.8 of "continuous service".

(4) The requirement in clause 8.2 for a casual employee on first appointment to advise whether he or she is primarily employed by another employer.

The AHEIA made wider objections against the award as it applied to the CPSU being considered to be within ambit. Some of those objections were also advanced against the capacity to make award provisions in favour of the NTEU. Wider still were the objections made by AHEIA against the existence of ambit for the ASU to advance claims to be made party to the proposed award.

The AHEIA contended that the claims in the respective logs do not support clauses in the terms that have been advanced. The AHEIA detailed that submission through a clause by clause analysis of the draft award against the claims in the relevant NTEU and CPSU logs. Mr Tracey submitted that there is no authority to support a CPSU contention that the relevant NTEU disputes afford sufficient ambit to overcome whatever deficiencies the CPSU log may have if it were to be the sole source of jurisdiction to make the award.

2.1.2 Conclusions about ambit points:

The AHEIA's piecemeal examination of differences between the relevant NTEU disputes and the CPSU dispute turned upon a primary contention. It was to the effect that jurisdiction to make an award binding upon the CPSU could not be augmented or enlarged to cover subject matters raised only in a dispute to which the NTEU was party.

In May 1996, the Full Bench joined for hearing on common transcript the NTEU and CPSU applications for what amounts to a common award binding throughout the higher education industry. Because of our ruling to hear and determine the matters in that way, the CPSU, the NTEU, the AHEIA and those represented by them are parties to a common arbitration. In the absence of some further finding by the Commission, however, they are not common parties to a single dispute about the same subject matter. There is a considerable overlap between the subject matter of the disputes in C Nos 90011 of 1993 and 31578 of 1993. But the logs are not identical.

We are inclined to accept the substance of AHEIA's point that an award binding on the CPSU cannot derive jurisdiction from the NTEU dispute. Some qualification to that observation is necessary however. Section 120 of the Act and the similarly worded antecedents of section 120 have been treated as a foundation for including in an award any provision considered to be necessary or expedient for the purpose of settling the relevant industrial dispute or preventing further industrial disputes. That source of arbitral power is augmented by well established authority about another point. An award does not travel beyond the ambit of a dispute merely because it deals with matters that are not specifically in dispute if such matters are reasonably incidental to a matter in dispute.

In this case, broadly co-extensive subject matters are raised by the respective logs. However, there are marked differences in the detail of the claims made in the respective logs. We are satisfied generally that the award provisions sought are not beyond the ambit of the NTEU dispute. To the extent that many of the provisions we may award are not expressly within the direct scope of demands in the CPSU log, we consider that the making of an award in common terms covering all parties to the NTEU and CPSU disputes is necessary, and also expedient for the purpose of settling those disputes and preventing further disputes.

The ASU's position is not so readily covered. It is not a party to any of the disputes relied upon by the applicants in the proceedings that are being jointly heard. Nor is the ASU itself an applicant under section 111 or 113 for the making of an award or the variation of an existing award. The ASU applied for leave to intervene and its application was granted on 4 September 1996. The ASU relied upon the finding of dispute with AHEIA in matter C No. 39758 of 1995 as the basis for it being made a respondent to the proposed new award. The ASU is a respondent to the Interim Award, and is also a respondent to the HEGSS Award.

The ASU's claimed jurisdictional foundation for the proposed award in C No. 39758 of 1995 is more limited than is the case in either the NTEU or the CPSU disputes. However the log to which that dispute relates does raise claims as to contract of employment and a minimum term of employment; casual and part-time employment; as to there being no employment of temporary employees without union consent; contract employment; redundancy and reorganisation; and contractual arrangements.

The existence of that dispute operates in conjunction with the position adopted by the ASU in these proceedings as a party to an existing award intervening in support of a contested application for an industry wide award to be made in part settlement of several disputes. In the circumstances, we are satisfied that there is a sufficient jurisdictional foundation for the ASU to be made a respondent to the proposed award. Our satisfaction on that point is based upon a view that the making of an award in common terms to bind the three unions represented in proceedings is necessary and expedient for the purposes of settling the relevant named disputes and preventing further disputes. As an extension of that conclusion, we will apply any award that might be made to the employees covered by the awards that were either the subject of the original application, or are specified in the draft order. We do not understand that such an extension will be likely to disadvantage any party to the proceeding, or to deny an opportunity to have put a case. However, we reserve leave to apply to vary the award in that particular should an affected party or person bound seek to apply on either of those grounds.

We have not found it necessary to determine a further point raised by the applicant unions. It was to the effect that the section 99 notifications in matters C Nos 34925 of 1995 and 34932 of 1995, together with the development of claims in those hearings, justifies a new finding of dispute or a revision of existing findings. We accept that there is substance in, and some authority to support, the submissions put to that effect on behalf of the unions. However, we do not consider it necessary to deal with the point raised. We are satisfied that there is an adequate jurisdictional foundation for the proposed award for the reasons we have set out. We except from that conclusion only the proposal that the award should bind also the parties in respect of the ELICOS Award. No adequate foundation for the inclusion of that apparently distinctive class of employment was laid in the proceedings conducted up to the time of our decision of 18 August 1997, or since. To the extent that the ELICOS Award binds in respect of a class of employment discrete from the other three awards, it stands apart from the decision and order in this matter. We reserve leave for application to be made in due course to vary any award made in this matter to take account of the ELICOS Centres.

2.2 Does the proposed award pertain to the relations of employers and employees?

2.3 Are universities agencies of the States and therefore shielded by the implied limitation on Commonwealth legislative powers?

2.3.1 The submissions and cases about universities as agencies of the States:

(1) Universities generally are creatures of State statutes and are bodies established for a public purpose by the respective State Governments.

(2) The State usually retains control of aspects of the governance of a university.

(3) For those and other reasons, with the exception of Commonwealth institutions, all universities are agencies of the States within the meaning of the authorities10.

(4) The effect of the decisions of the High Court in Re AEU11 and in Victoria v The Commonwealth12, and of the Full Bench of the Commission in Re HSUA13 have the effect that the Commission has no jurisdiction to entertain any claim in relation to matters where redundancy or redeployment is concerned or where the claim concerns the identity of the persons to be employed by the State or the agency of the State. Therefore, those paragraphs of the NTEU proposed draft award which deal, in particular, with redundancy, redeployment and the identity of those to be employed cannot validly be part of an award.

On 4 December 1997 AHEIA withdrew that submission without having developed it in full. Despite that withdrawal, the initial submission put this Full Bench on notice of a question about the existence or nature of the jurisdiction available to make the proposed award. We shall assume for the moment that the implied limitation does restrict the award making power in application to universities because they are carrying out higher education as a governmental function not relevantly distinguishable from primary, secondary or technical and further education services long accepted to be provided as government services. If that assumption be correct, not only parts of the proposed award, but also parts of the Interim Award and other existing award provisions dealing with redundancy are probably invalid. Those parts therefore would be unenforceable. We do not accept that it would be proper for us to make an award in circumstances where the validity of our doing so may be open to a serious question. In the circumstances, it is appropriate that we consider the point and determine a view about it for the purposes of our exercising jurisdiction in this matter. In doing so, we would expect to provide through findings of fact and legal effect, a foundation for any later consideration of the point that may become necessary in this tribunal or in the relevant Court. The course we adopt applies to our proceedings the principle implicit in the observation made by Fullagar J in R v Blakeley:

The main points of the responses to the AHEIA submission about the implied limitation, collectively put by the NTEU and the CPSU, were:

(1) The second limb of the implied limitation applies to protect a State from the exercise of Commonwealth legislative power but it does not operate to protect agencies of the States. The formulation of the second element of the implied limitation in Re AEU does not necessarily contemplate the extension of the limitation to agencies of the States as defined by Mason J in Queensland Electricity Commission15.

(2) Citing Halsbury16, even though a university is usually incorporated as such by the sovereign power of a State, it is in character descended from medieval universities and is a distinct institution of a kind that predates any notion of the modern State. The Australian statutory incorporation of universities reflects the elements of the traditional concept of a university. Those elements include the integration of the staff, the Council, the student body and often the graduates, as components within the body corporate that is the university.

(3) The AHEIA submission is ahistoric, misconceiving both the reason for which universities are incorporated in the way they are, and the nature of governmental involvement in education. There is no basis for asserting that universities are part of any governmental function in the provision of education.

(4) The key test for an agency of the State is whether, through it, the Government carries out a government function. Universities are not so engaged. Universities are independent bodies established in a tradition of independent scholarship to give and receive instruction in the higher branches of learning. The universities do not act as "agents" of the State in any relevant sense. Nor are universities subject to "substantial governmental control" in the manner considered to be a determinative factor identifying "agencies of the States" for the purpose of the first limb of the implied limitation.

(5) There is long standing authority that universities do not employ persons on behalf of the State, and are bodies that do not carry out functions on behalf of the State17.

(6) An examination of the statutes establishing universities discloses a number of factors that are inconsistent with universities being considered to perform their public purpose on behalf of the State:

(7) Even if the second limb of the implied limitation applies to agencies of the States, there is no basis in logic or reason for it to be applied to universities. In both theory and practice, universities are institutions that are irrelevant to the capacity of the States to function as governments within the Constitution. In theory, that is because the universities are independent sui generis institutions with clearly established discrete educational and research functions. In practice, it is so because universities are not funded by the States to any significant extent and predominantly derive any governmental funding from the Commonwealth.

(8) Even if the implied limitation does operate to limit the power to make an award binding upon the universities, the only parts of the proposed award that would be beyond power are the provisions of clauses 7.1.2 and 7.4. Those provisions respectively deal with severance pay and the right to be considered for redeployment.

Those submissions were supplemented by a written submission put on behalf of Curtin University of Technology, Edith Cowan University and the University of Western Australia. On that submission, the question that arises is: "are the universities discharging governmental functions for the State?"; or, in alternative form: "is the State carrying on teaching, research and related functions through its statutory corporation, the university?18"

In the intervening universities' submissions, the Parliament of Western Australia created the university corporations to operate independently of the State, and otherwise than as a State instrumentality. Relevant indicia for an agency or instrumentality of a State were missing:

· Ministerial control is the most significant. Each of the intervening universities is governed by a Council or Senate19. Those Councils control appointment and termination of staff. The university is not subject to direction by the State or any State Minister.

· Control of membership of Council: The majority of members of the Council or Senate are independent of the Government which may appoint seven of 21 members on the Council of Curtin University of Technology and Edith Cowan University, and six of 25 on the Senate of the University of Western Australia.

· Control of property: Each university may take purchase, hold or sell real and personal property as it sees fit.

· Because of its constituent membership, each university has a real and physical existence separate from its legal personality and independent of the Government.

· Only a very small part of the operating revenue of the intervening universities is derived from State Government resources.

2.3.2 Conclusions about the application of the implied limitation to agencies of the States:

The unions' proposition that the implied limitation does not operate to limit Commonwealth legislative powers in application to agencies of the States attempts to reopen an old debate. It is sufficient for the purposes of this decision for us to indicate a view for which our reasons can be stated in short form. We will adopt and apply a view expressed in several decisions that the implied limitation applies to agencies of the States, because such agencies are included in the constitutional concept of a State.

In Re AEU20 the majority decision of the High Court did not refer to agencies of the States when it listed the critical rights of the States that were to be protected from impairment by the second limb of the implied limitation. However, the Court applied the second limb of the implied limitation to strike down part of the terms of an interim award binding upon certain agencies of the State of Victoria:

Moreover in the same decision, the majority analysed the precedents from which the implied limitation as currently formulated evolved. In that analysis, there is no indication that any member of the Court intended to question the well established identification of States and agencies of the States with the implied limitation or the "administrative services" exception to the valid use of the Commonwealth arbitration power in application to the States.

In Public Transport Corporation v Eames21, a Full Bench of the Industrial Relations Court of Australia considered a proposition that an award binding on an agency of the State may not be caught by the implied limitation:

A similar view was stated by the five member Full Bench of the Commission in Re VTS23. That decision detailed the principles of the approach to be adopted when the validity of an award provision is challenged by reference to the implied limitation, and added:

Having regard to those clear and authoritative statements on the point, we are confident that the second limb of the implied limitation operates to restrict the award making power in applications to agencies of the States. The application of the implied limitation to agencies of the States is a corollary of the constitutional concept of a "State". That extended notion of the State is consistently expounded in recent High Court decisions, and is implicit in the reasoning in the Queensland Electricity Commission24. In determining whether a body is an agency of a State, the High Court's view is that the question to be answered is one of whether the body is an agency or instrumentality through which the activities of government are carried on25. The question of whether a body is an agency of the State, or "an emanation by which the State discharges its governmental activities", is not to be determined by identifying the body with the Crown in the State, or with shield of the Crown immunity. In this instance, the question is whether a State is carrying on higher education as a governmental function through a university26.

In that constitutional sense, the expression "agency of the State" does not appear to be a term of art. Its meaning may most appropriately be derived from the context in which it has been used in decisions about the operation of the implied limitation on Commonwealth legislative power. For present purposes, the decision in Queensland Electricity Commission is a sufficient guide. The relevant passages from all judgments in that decision are referred to in the passage cited above from Re VTS. Those judgments each give emphasis to the identification with the State of the body that is said to be the agency of the State. That identification appears particularly from the performance of public functions under the authority of the legislation of the State, or by an authority brought into existence for that purpose27. A substantial control by the government over the body in the performance of its functions was included among the indicia listed by Gibbs CJ. However Mason J stated that an independent authority, not subject to government control, could still be an agency of the State. All judgments looked to the identification of the body as the agent or instrumentality of the State for the performance of a function that the State is undertaking. In determining whether there is such an identification, factors that are taken particularly into account include the relationship to the State declared through the establishment of the body, the nature of its constitutional statute, its powers and functions, the relevant auditing provisions, the method of appointment and removal of board members and the history of the functions performed as a component of public administration in the State28. The question of whether universities in Australia are properly to be categorised as agencies of the States for the purposes of the implied limitation on Commonwealth legislative power must therefore be answered by examining the characteristics of universities against those identifying factors or indicators.

2.3.3 The characteristics of Australian universities:

In considering that question, we have been assisted by the detailed presentation of the respondent unions and intervening universities. Those presentations have included extensive references to the statutes establishing the universities. Details of the principal statutes establishing each of the AHEIA's member universities were included in the material tendered by Mr Tracey on behalf of AHEIA before it withdrew its submissions on this question. We have supplemented that material by reference to other sources. In particular, Halsbury's Laws of Australia includes an "Education and Research" chapter contributed by Shorten29. That work provides a careful conspectus of the law relating to education in Australia. The section dealing with higher education includes particulars of the statutory basis of universities in each State and Territory and tertiary education in the case of South Australia and Victoria30.

The statutory foundation of Australian universities must constitute the foreground in an assessment of whether they ought be identified as agencies of the States. However, the NTEU's denunciation of the AHEIA's approach as ahistoric points the way to a significant body of law that is antecedent to the statutory history. That history is an essential element of the statutory perspective.

In the Hailsham edition of Halsbury's Laws of England published in 1934, the origin and characteristics of universities in general were introduced as follows:

Introducing the chapter on "Education" in which that passage appears, the authors state:

We note in that context that, for New South Wales, general educational legislation appears to date from about 1858. The first Australian university appears to have been established by the Royal Charter for University of Sydney dated 27 February 1858 although St Paul's College was incorporated in 185433. It seems that for New South Wales a general Universities and Colleges Act was not introduced until 1900.

The passages quoted from Halsbury identify the character of a university as an incorporated charitable foundation of a distinctive rank. The characteristics of the foundation include the status and personality of a corporate body, established by an instrument of foundation emanating in those times from the Crown34. The staff and students are the primary constituents of the corporate body together with the organs of management of it. In Australia, public sector universities are established and incorporated under State legislation in the States and under Commonwealth legislation in the Australian Capital Territory35. Universities established by non-government interests are also incorporated by legislation36. It may be noted that the State therefore performs a primary role in the foundation of all Australian universities.

The statutes to which we were referred reflected the multipartite constitution of the university. Thus, subsection 4(1) of the Griffith University Act 1971 is relatively typical. It provides in relation to the establishment and incorporation of the university that:

Similarly, the statutes generally establish each university as a body corporate with the powers incidental to that form of legal personality, and to the university's function as a body politic for the self governance of those who constitute the university from time to time. The functions of universities are accurately summarised in the following passage:

One incident of the singular character of the university as a charitable foundation was the role of the Visitor. Normally the Visitor was the nominal founder of the university. In the case of Australian universities, the Visitor was the Governor the State. The Visitor's jurisdiction is, or was, to deal with disputes arising from the interpretation and administration of the universities' internal statutes. The jurisdiction has been held to be exclusive, susceptible to intervention by a court only if an error of law is disclosed. The jurisdiction does not extend to dealing with the rights and liabilities of those outside the university. In Australia the use of the Visitor's function has declined. The Queensland university statutes do not provide for the office. It is convenient to note, and perhaps relevant also in this context, that generally those statutes provide that a Queensland university is a statutory body38 for the purposes of that State's Financial Arrangements Act 1971. In New South Wales the Visitor continues to be the Governor of that State. But the current versions of the founding legislation for New South Wales expressly state that the Visitor has ceremonial functions only. In most Victorian universities the office survives apparently in its traditional role. The Governor of the State has power to carry out the "duties and functions of the Visitor"39. A review of an exercise of the Visitor's jurisdiction is available under the Victorian Administrative Law Act 1978. The Tasmanian, South Australian and Western Australian universities appear to retain the office of Visitor in much the same way. Significantly, in Western Australia, the Governor's role as Visitor is accompanied by a definition of "Governor" to mean "the Governor of the State and not the Governor acting with the advice and consent of the Executive Council40". That distinction adds emphasis to the distinct character of the governmental or Crown role as a founder of the university which is a singular, if not unique, type of foundation.

Other characteristics of Australian universities were detailed and summarised in the material and submissions presented. Although there are some differences in details between universities, there is a substantial uniformity in the main characteristics of the universities. We accept generally the substance of the points made in the AHEIA's selection of features. Australian universities are established by statute, and incorporated for a public purpose. We also accept as substantially accurate the points selected and identified by the NTEU which we have summarised and listed at paragraphs 5 and 6 on pages 14 above. Australian universities are generally subject to some Ministerial or Executive control on borrowing and financial arrangements. For some financial accountability purposes, universities generally are open to the same or similar audit procedures as statutory authorities. Universities are a form of self-governing public authority. Universities exercising public duties have some part of the membership of their governing body appointed by the relevant Minister of State. Usually, some members of the State Parliament are included in the membership of that body41. University statutes are usually subject to some form of approval, assent, or disallowance by the State Executive. However, in a number of instances that process does not involve the Executive Council of the particular State.

2.3.4 Conclusions on whether an Australian university is an agency of the State:

The indicators relied upon by the Court in finding that the Queensland Electricity Commission was an agency of the State dismissed the proposition that to be an agency of the State, the body must be entitled to Crown immunities, or be under direct control of the Crown in respect of the State. However, well established criteria are used in common law authorities to define what institutions are agents of the Crown. Those criteria would appear still to be among the indicators to be evaluated in the determination of whether a body is an agency of the State carrying out a State activity for purposes of the operation of the limitation on Commonwealth constitution of powers. Clearly, it is a matter ultimately for a court to determine in each case whether a body is an agency of the State. We have indicated a number of the factors that will be taken into account in that determination. Among them is the relevant history of public administration affecting the body in question.

The following passage from Halsbury is based upon long standing common law precedents about the primary indication of what bodies are agents or servants of the Crown for the purposes of shield of the Crown immunities:

The principles stated in that passage are specific to the identification of bodies attracting shield of the Crown immunities in the United Kingdom constitutional and legal context. The High Court in Queensland Electricity Commission rejected the transposition of the Australian version of those principles into a test in the Australian legal institutional context for whether a body is an agency of the State for purposes of the operation of the implied limitation on Commonwealth legislative power. None the less, it is significant that the criteria used in the United Kingdom authorities to identify shield of the Crown, and other precedents, distinguish the status of universities as corporate bodies and charitable foundations. That history of the legal form and status of universities is properly to be weighed in the determination of whether a university, if established by statute in a way that maintains traditional forms, is an agency of the State.

Several decisions of the Supreme Court of New South Wales touch upon the character of a university as a statutory authority43. In Ex parte King, a Full Court of New South Wales Supreme Court appears to have been unanimously of the view that mandamus would lie in a proper case to enforce the University to observe a public duty correlative to an entitlement to matriculate pursuant to the Act under which the University of Sydney was then established44.

In Ex parte Foster: Re University of Sydney45, mandamus was refused in relation to a decision to fail or not advance a student within a faculty. The Full Court accepted that the functions of the University's Senate may be regarded as public functions, involving public duties but not necessarily conferring specific individual rights enforceable by mandamus46. In discussing Ex parte King, the Court appears to have adopted the position that only some duties of the University may be susceptible to enforcement by mandamus; otherwise breach of public duty may be a matter within the cognizance of the then existing jurisdiction of the State Governor as Visitor. The position of Visitor and the associated supervisory jurisdiction over university government, is a derivative from the prerogative of the Crown, or the right of any other relevant founder, of a charitable foundation. An issue had been raised as to whether mandamus could lie against the University of Sydney where the matter complained of was ostensibly subject to the exclusive jurisdiction of the Visitor. On the facts of the case, the Court held it did not need to determine that issue. Similar questions of whether mandamus lies generally against certain universities, or only to enforce a right held by a "stranger" to the University, and therefore not within the visitatorial jurisdiction, were touched upon in a number of the earlier cases. The relevant courts appear not to have resolved the question47. Points of that kind have since been overtaken by the decay of the Visitor's jurisdictions and the development of more robust judicial review of all classes of decision-making by public authorities.

However it is relevant to note that the earlier cases to which we have just referred, and the passage quoted at page 22 above from Halsbury, each placed some reliance on the 1868 House of Lords decision in Greig v Edinburgh University48. The substance of that matter, and the House of Lords reasoning is concisely stated in the following extract from Westbury LJ's opinion:

That ruling in Greig was cited with approval also by a Full Bench of Supreme Court of Victoria in the 1979 decision in Clark v University of Melbourne50. In that decision the Full Court upheld an appeal against the decision of Kaye J. He had held that the University of Melbourne is a public authority exercising legislative powers. Among other findings Kaye J concluded that the university had acted ultra vires its powers as a public authority or statutory authority by imposing a requirement for students to pay an annual general service fee. On appeal, the Full Court dealt with the main ground upon which Kaye J had held the relevant university regulations to be invalid:

It is now 130 years since the decision in Greig. Significant differences are readily discernible in such matters as university status, foundation, and degree of scrutiny by governmental agencies, in Australia at State and federal level. However, the principles stated in that decision, and in Clark, gave concrete legal effect to characteristics of universities that were always associated with the distinctive rank of a university as a public foundation. In our view those characteristics are still identifiably among the distinguishing characteristics of a university as a contemporary institution. The functions and activities of a university are not, and never have been in any real sense, carried out by or on behalf of the State. Having regard to each of the relevant factors outlined at the conclusion of Section 2.3.3 above, a university is not properly to be regarded as an agency of a State for purposes of the implied limitation on Commonwealth's legislative power and the award making power in relation to universities. It follows that the Commission's jurisdiction is not limited in the ways declared in Re AEU. Having regard to the circumstances and the arguments put to us, we may be forgiven perhaps if we forsake the obligation to preserve plain English and instead adopt Lord Westbury's never simple Scotch. The AHEIA's challenge to jurisdiction on the agency of the State ground is assoilzied from further consideration by the Commission in the determination of this matter.

2.4 Does the proposed award travel beyond jurisdiction as to "allowable award matters"?

2.4.1 The AHEIA's submissions:

In AHEIA's submission, the union claims should not be dealt with by making an award. The course most consistent with the objects of the Act and the Commission's principles should be to require that the issues be resolved by enterprise agreements. In support of that approach, AHEIA identified the principal objects of the Act with the achievement of a more direct co-operative relationship between employers and employees and greater labour market flexibility. In AHEIA's submission, the principles adopted in the Safety Net Review - Wages Decision of April 199752 also emphasise the achievement of enterprise level agreement at the expense of centralised regulation. The Commission is required to balance the legislative directions as to a safety net of minimum wages and conditions with the need to ensure that arbitral powers are exercised in a way that encourages the making of agreements.

The AHEIA's objections on this jurisdictional ground were expressed in general terms. Not always did the AHEIA indicate the specific provisions to which objection was made. Thus, AHEIA relied upon sections 88A, 88B and subsection 143(1B) to contend that only some less significant aspects of the proposed provisions could properly be regarded as allowable award matters. In addition, "most" of the proposed provisions were said to be outside the allowable award matters listed in subsection 89A(2). And some objections went to merit rather than to jurisdiction. We would summarise the particular arguments advanced as follows:

(1) No special case within the meaning of that concept in Principle 3.3 had been made out. The application should therefore be rejected on the ground that it is not within the wage fixing principles.

(2) The definition of fixed-term contract would result in a change to the status of a current non-continuing fixed-term employee. An order giving a right to continue employment or to convert to a different "status" is not an allowable award matter or incidental to one.

(3) In its August decision, the Commission envisaged that a fixed-term contract should be defined to limit the circumstances in which fixed-term contracts could be used. By defining fixed-term employment and the circumstances in which fixed-term employment may be used, the Commission will go beyond the power in the Act to make an award dealing with the "type of employment". Such provisions are not matters falling within section 89A. Paragraph 89A(2)(r) does not allow incidents to be attached to "type of employment" in the form of a right or duty that is not itself an allowable award matter.

(4) Fixed-term contract employment is not a "type of employment" within the meaning of paragraph 89A(2)(r). The industrial concept "type of employment" is based on regularity and hours of work, not on the term of employment. The comments of the Bench in its August 1997 decision need to be reconsidered. There is no industrial usage to equate an award provision about term of employment with a type of employment.

(5) The Commission has no power to provide for loadings for contract employees. The proposed conditional loading on fixed-term contract employment would be invalid. It seeks to indirectly prohibit or limit the use of contract employment that could not be done directly. A penalty loading of that kind is not an allowance. It is not otherwise an allowable award matter under paragraph 89A(2)(k). No loading, even for casuals, is within power if its purpose is not to compensate the employee for absent rights, but to deter employment in that type of employment.

(6) To constitute an allowable award, a requirement to re-employ would have to be within one of the items or paragraphs in subsection 89A(2). There is no such item. A requirement to re-employ is not within the expression "type of employment". Nor is it incidental to a provision about that subject.

(7) The right to preferential re-employment in proposed clause 5.3.2(d)(iv) is not an allowable award matter. The reiteration of provisions from the Interim Award as substantive provisions in a final award is beyond power, because such provisions are not allowable award matters.

(8) The notice of termination proposed in clauses 7.1 and 7.10 of the draft order is not a notice period in the sense used in the law of employment. Notice of the kind is not an allowable award matter. Nor is the obligation to state reasons for not renewing a fixed-term contract. Paragraph 89A(2)(n) does not extend to the determination of such award duties.

(9) A right to severance benefit of the kind proposed in clause 7.1.2 would be given where there is no true redundancy situation. Such a right is not an allowable award matter. Redundancy is only related to the foreshortening of an anticipated term of employment because the employer does not wish to have the job performed.

(10) Study leave and training leave are not expressly allowable award matters and are not "like forms" of leave within the meaning of paragraph 89A(2)(g).

(11) A redeployment right of the kind proposed in clause 7.4 is not an allowable award matter. It would impair the capacity of an employer to determine the number and identity of persons it wishes to make redundant53. It is also a masked attempt to compel the employment relationship to continue beyond its term. The effect of the subclause will be to covert the terms and conditions of a fixed-term employee to those engaged by a continuing employee.

(12) The proposed requirement in clause 10 specifying terms of employment which must be incorporated into an employee's contract of employment is not an allowable award matter.

(13) As an alternative to the AHEIA's application for the "60% rule" to be removed, the retention of that provision would be beyond power because it is not an allowable award matter.

(14) The proposed award includes a number of provisions that are "new claims" not canvassed in the union applications or in the proceedings antecedent to the August 1997 decision. An award to grant these provisions would be outside jurisdiction because AHEIA has had no opportunity to present a case against them. The new claims include:

2.4.2 Conclusions about best means of determining questions about capacity to award particular provisions:

Our analysis of the merits of the union's application may result in our not being persuaded that we should make an award containing each provision of the kind objected to by AHEIA on the various jurisdictional grounds we have outlined in Section 2.4.1 above. To that extent, the points raised in the AHEIA submissions would be academic in character. In the circumstances, we have noted the points raised but will not express a detailed view about each of them. We have taken them, and the union responses to them, into consideration in the determination of the content of any order that might be made on the merits in this matter. The next section of this decision is a consolidated determination of the award provisions we will make in settlement of our decision of 18 August 1997. That consolidation incorporates our views about the jurisdictional points raised in Section 2.4.1 and our view about the appropriate provision to make on the merits of the case overall having regard to the scope available to exercise the award making power under section 89A of the Act and related provisions.

3 THE MERITS, FORM AND CONTENT OF A FINAL ORDER:

3.1 General approach to determination:

We have approached our remaining task as one of finalising an order to give effect to our decision in Print P4083. We remain of the view that the parties' interests would have been best served by a co-operative effort to draw up a joint order arising out of that decision. In default, it falls to us to determine the form and content of any order to be made after taking into account the submissions put to us on both the merits and the jurisdictional limits within which any order would need to be framed.

We have framed the order to give proper effect to our decision of 18 August 1997 and to be consistent with the provisions of the Act and the April 1997 Safety Net Review Statement of Principles54. The Award Simplification Decision55 had not been delivered when we reserved our decision in this matter. In seeking to ensure that the order does not stray beyond the allowable award matters identified in section 89A, we have formed our own view of the operation of that section. We consider that our conclusions and determinations do not involve any inconsistency with the principles stated in the Award Simplification Case, or, so far as we are aware, the application of that decision in relation to the Metal Industry Award56 None the less, we reserve liberty to apply to vary the order should any party wish to put submissions that that decision should be taken directly into account in a way that would justify our reaching a different determination, or varying the determination made.

We have considered the draft order in Exhibit NTEU 37 prepared by the NTEU and supported by the other unions. We have considered also the submissions in response by the AHEIA which are contained primarily within Exhibit AHEIA 60. Except where we have found it necessary to do so, we have not revisited points or issues we determined within Print P4083.

In formulating an order to give effect to our decision in Print P4083, we have drawn upon the NTEU draft but have concluded that substantial modifications to it are required to properly give effect to our decision and to reflect Safety Net provision for minimum conditions of employment within the compass of allowable award matters. Our award is published in Print Q0703.

The scheme of the draft award proposed by the unions was developed around a requirement on the employment to use only three types of employment. One of the proposed types, "fixed-term employment", was defined restrictively to cover only specified uses of that form of employment. The proposed award then identifies and applies a number of "incidents" or employment benefits to employment types, and most particularly to fixed-term contract employees. The draft order seeks to extend to fixed-term employees a range of benefits of the type enjoyed by continuing employees. A combination of stand-alone clauses and "roping-in" provisions would provide, as an award entitlement, access to conditions enjoyed by continuing employees under relevant awards, agreements and over-award conditions. For casual employees, the proposed award would institute an allowance of 30% for a class of employees required to work on hourly paid basis for aggregate hours exceeding 300 in current calendar year. That allowance would correspond in some respects to the "60% rule" applicable to casual "part-time non-fractional" academic employees57. The proposed award would establish conditions about incremental advancement, letter of appointment, and dispute settlement procedures to apply generally to employees covered by the award.

The AHEIA's submissions have not persuaded us that we should not implement the main elements of our decision of 17 August 1997. We consider that it is consistent with our view of the merits, and with the scope of the allowable award matter "types of employment" to make provision that employment shall be within four types of employment. The first of those types will be full-time employment. We prefer that description to the term "continuing employment" proposed by the NTEU draft. We have in mind the specification of full-time employment as the standard form of employment under a minimum conditions award, the term of which is subject to termination based on a valid reason and other statutory award conditions. The other types of employment to be specified are part-time, fixed-term and casual. We have also associated a period of probationary employment with each of the main types of employment, adding a requirement for probationary employees to be appraised in a way that gives them an opportunity to respond to adverse material.

We have been cautious about the adoption of a "roping-in" approach. The approach suggested by the NTEU would, if accepted, have the effect of providing, as an award entitlement, access by fixed-term employees to a range of benefits provided to continuing employees. The benefits embraced by the NTEU draft are presently covered by agreements and over-award arrangements, as well as by award entitlements arising out of the HEGSS Award, the Higher Education Workers Victoria (Interim) Award 1993, (the Victorian Award), the Universities and Post Compulsory Academic Conditions Award 1995 and other relevant awards. For us to award such an outcome would not be appropriate. The scheme of the current Act is to provide through minimum rates awards a range of safety net conditions within the class of allowable award matters. Apart from the scheme of the Act, it would be inappropriate to provide an award right to over-award conditions, current and future. Such conditions have not been subject to scrutiny by the Commission by reference to award standards, to the requirements of the Act, or to prevailing wage fixation principles.

We see merit and equity in the higher education institutions extending the benefit of a number of non-award conditions available to continuing employees to fixed-term employees as defined in our order. We have particularly in mind conditions as to training, study leave, superannuation, redeployment in the event of potential redundancy, personal leave and promotion opportunities. However, we are not prepared to provide an award entitlement in the broad terms proposed by NTEU. We have had regard to the employment conditions applying to continuing employees under relevant awards in deciding what we perceive to be appropriate minimum conditions of employment for fixed-term contract employees.

It may be that there exist some additional appropriate and allowable matters applying to academic employment that are not currently subject to award regulation. If this is so, the opportunity would exist for the unions to apply to vary the award we will make and other relevant awards to incorporate them.

We have given thought to, and in a limited way applied, a restricted "roping-in" approach. Award entitlements enjoyed by continuing employees under the set of relevant awards could be applied generally to fixed-term employees. Such an approach would, however, require a presumption that the relevant award provisions are allowable matters. We are not prepared to make such a presumption. Any such presumption would sit uncomfortably with, for example, the redundancy provisions within the Universities and Post Compulsory Academic Conditions Award 1995 and the extensive processes set out in them. Nor are we prepared or in a position to apply the "award simplification" process to each of the base awards ourselves. There is a panel established within the Commission to address that requirement. We have therefore restricted the identification of the incidents of the employment types decided upon to several more important provisions appropriately specified within a stand alone award. In determining the terms of the stand alone provisions, we have considered the provisions of each of the relevant awards set out above, although we do not profess to have comprehended within that description the incorporations by reference made by the HEGSS Award.

On that approach, we have extended certain conditions to fixed-term employees after we have satisfied ourselves that the relevant provisions are allowable matters. We have used several devices to achieve that effect. Thus, we have in mind that severance benefits should be provided as an entitlement for a class of fixed-term employees. The award provision we make identifies the class of employees, and specifies the circumstance when the entitlement will arise. It will also introduce and apply a revised definition of "continuous" service to fixed-term employees in particular. The severance benefit, or redundancy benefit, however it may be called, shall be derived by the "roped-in" application to some part of the award provisions enjoyed by continuing employees, pursuant to relevant awards.

We have not approved, as award conditions, provisions claimed requiring written reasons for non-renewal of contracts and measures to redeploy redundant employees. We do not consider that provisions to that effect would be allowable award matters. Partly in deference to that conclusion, we have desisted also from implementing the view we expressed in our decision of 21 November 1997 that there should be a requirement for certain casual employees to be consulted about career path options, and deployment to available alternative employment in the institution. We do not resile from our view that such measures have merit and would represent good employment practice. Our decision on allowable matters grounds should not be taken as intended to absolve the employing institutions of their responsibility to adopt a proper approach to avoiding potential redundancies or ameliorating the effect of redundancy by redeployment and the consideration of suitable alternative employment, retraining, and like measures. Universities are large scale employing institutions. The evidence demonstrated a consistent absence of reasonable redeployment measures. The restraint on award prescription about redeployment procedures does not efface the existence of a serious cause for concern about the inequity and relative waste of resources in not placing competent staff in positions for which they are suited. Moreover, the institutions might note that termination of staff as redundant without proper consultative and selection procedures may expose the employer to an adverse finding pursuant to provisions within Division 3 of Part VIA of the Act58. Even where those provisions do not apply, an action based upon breach of contractual duty could conceivably lie to restrain particular departures from the standard of conduct that a reasonable employer might observe59. There is much to be said for the proposition that an employer is under a duty to act with good faith and fairness in relation to any termination of employment. Although, thus far, the precise content of particular employer duties is the subject of some judicial and academic conjecture60. There is much uncertainty associated with the resolution of such conjecture. That uncertainty alone affords good reason for the institutions and the employee organisations to attempt to establish, through enterprise agreements, processes of a kind which would obviate any need for debate about whether, in redundancy situations, the institutions have discharged a duty of the kind postulated.

4 THE CONTENT OF THE AWARD DETERMINED:

4.1 Title, coverage, and application:

The award shall be entitled the Higher Education Contract of Employment Award 1998, (the HECE Award). It shall be binding upon the three union parties and their members, and the AHEIA and its members. Should it be necessary to do so, the award may be extended to bind named employer respondents to the dispute in part settlement of which the award is made. We have referred to those disputes in Section 2.1 of this decision. The HECE Award shall apply to all employment covered by the five awards to which we have made reference in Section1 of this decision at page 3 above.

4.2 Contract of employment and types of employment:

Clause 2 of the HECE Award links the duty on the employer to use the specified types of employment with the notion of contract of employment. Perhaps that clause could provide to similar effect and be entitled "Types of Employment". In the past, awards have almost generally included a contract of employment clause61. Despite that, the list of allowable award matters makes no reference to contract of employment provisions as a distinct class of allowable matter. We are unable to conceive how the allowable matter "types of employment" could be effectively dealt with by an award that did not purport to impinge directly on the contract of employment to be entered into between an employer and an employee subject to the award. Indeed, a "type" or "category" of employment may be conceived to be an elliptical expression covering a type of contract of employment. For that, and other reasons, we conclude that some provision about contract of employment is incidental to the allowable award matters dealt with and sufficiently necessary to their effective operation for it to be appropriate for the award in this instance.

We have formulated the substantive award provisions as far as practicable in terms of duties on the employer, or rights of employees. In relation to type of employment, the award will require the employer to use one or other of the four types of employment defined. A duty in broadly corresponding terms was claimed by the NTEU. However, we apply it to different types of employment from those claimed by the NTEU. In effect, the NTEU's provisions would retain a number of the elements of continuing employment most identified with historical tenure. We have preferred a model of types of employment more closely identified with minimum award standard terminology for employment generally. The model we will apply also reinforces the view we expressed in our decision of 18 August 1997 that the notion of academic tenure should be left to the university institutions to be regulated more or less independently of the standard minimum conditions of employment.

However, we envisage that the duty imposed on the employer to engage an employee on terms corresponding with one or other of the types of employment shall operate to require one type of employment be used for an employee to the exclusion of other types. We intend the four types of employment to be mutually exclusive. It follows in our view that the HECE Award will preclude concurrent contracts of employment between the one employer and employee. Our intention may best be illustrated by reference to a not unusual occurrence under the present system62. An ostensibly fixed-term contract has on occasion been offered to a continuing employee to fill a position at a higher level for a term of years. Upon the expiry of the term, the employee apparently reverts to the "substantive" position occupied prior to acceptance of the term contract.

We accept that operational circumstances may justify the use or imposition of a fixed-term contract for a particular function, task or project. However, we do not accept that it is appropriate for the type of employment to be applied to an employee whose current engagement is as a full-time employee. We see no reason why, in such circumstances, an existing employee should not be placed in the higher position for a nominated term. A consensual or automatic modification of the terms of the existing contract would be the basis for such a placement. What is often described as a higher duties placement attracting a higher classification may be given effect by agreement, or perhaps by direction of the responsible authority if a power exists to require the employee to undertake duties as directed. It appears to us to be incongruous to represent the resultant position as one in which the employee holds concurrent contracts, the first continuing, and the second fixed-term. We intend that the HECE Award duty created will preclude that effect. We see no obstacle to making provision for that purpose. A consensual variation of the contract of a full-time or part-time employee would permit a performance of duties in a higher classification for a term, on the expiry of which the employee would resume work on the conditions appropriate to the duties then allocated.

The employment of a full-time or part-time employee engaged on performance of duties for a defined period in a higher classification will be subject to the termination for valid reason and other disciplinary processes associated with standard employment as a full-time employee. Our reasoning generally on this aspect of the exclusivity of the types of employment was introduced in our decision of 18 August 199763. That reasoning, and the view we now express, is reinforced by considerations to which we advert in Section 4.3.3 concerning the definition and incidents of fixed-term employment.

Out of more abundant caution, clause 2 of the HECE Award will include a saving provision intended to make it clear that the duty to use one or other of the types or categories of employment specified in the award does not impose a limit as to the proportion of employees that the employer may employ in any category. The operation of section 89A(4) in one sense removes the need for any such provision, because any award provision to the contrary would be beyond power. However, in an attempt to reinforce the nature of the award duties to apply prospectively, we have expressed the saving in a way intended to override any effect that pre-existing award duties may have in carrying over a quota approach to the types of employment that are now provided for.

4.3 Definitions of types of employment:

4.3.1 Full-time employment and probation:

Full-time employment will be defined in clause 2.1 of the HECE Award as all employment after the other three types of employment are excluded. We have incorporated provision for a period of probationary employment within full-time employment, and not treated probation as a separate fifth type of employment. However, we have linked with probation a requirement to specify the length and terms of the probation, (clause 3.5) and a requirement for the employee to be advised of and given an opportunity to respond to adverse material that may be taken into account in a decision to terminate the employment during probation. We consider that such a condition is reasonably associated with probation as a subtype of employment terminable at the discretion of the employer within the probationary period. The condition will not significantly inhibit the employer's freedom to act on that discretion but it may help to ensure that the purpose of allowing a reasonable period of probation is met in a way that is consistent with what we consider to be a minimum standard for fair and reasonable industrial practice toward employees on probation.

4.3.2 Part-time employment:

Part-time employment was not treated as a separate type of employment in our provisional decision64 in the NTEU's proposal. On that approach, part-time employment, or "fractional" employment as it has been designated in the academic salary awards, would be subsumed within the category of "continuing" employment sought by the application. We have preferred what we consider to be a simplified categorisation of work under award standard conditions as full-time or part-time. Both those types of employment are species of what is described as "continuing" employment although we do not retain that terminology or necessarily adopt some of the connotations of it. As we have noted earlier, such employment is terminable on notice for a valid reason. In that respect, and independently of any notion of tenure in the sense used in academic employment, it is employment for an indefinite term. We have defined part-time employment by reference to the fact that only a proportion of ordinary hours are worked and the presence of a condition that all award entitlements are observed or paid on a pro-rata basis calculated by reference to the time worked. That definition will not cover the circumstances where a fixed-term employee is engaged on a part-time basis. The term of an engagement of that kind will be a function of the contract, and access to award conditions generally will most likely be dependent predominantly upon the right determined by the HECE Award for fixed-term employees generally. However, part-time work under a fixed-term contract will not, and in our view does not, need to be differentiated from full-time work under such contracts for the purposes of linking it with award entitlements paid to full-time employees as defined in the HECE Award.

4.3.3 Fixed-term employment:

In defining fixed-term employment, we have drawn upon the generally understood concept of an employment the term of which expires on a specified date or on the occurrence of an ascertainable event. We have adopted in principle the elements of the NTEU's proposed definition that were intended to identify the circumstances which justify departure from standard full-time or "fractional" employment to a degree where a fixed-term contract would be the appropriate type of employment. We have therefore specified the circumstances in which the fixed-term type of employment will be available as a departure from the standard indefinite term employment.

We have defined those circumstances after taking account of the NTEU proposals and the evidence overall. However, the circumstances we determine in clauses 2.3.1 to 2.3.6 are less restrictive of a proper use of fixed-term employment than would be the case if the model proposed by the NTEU was adopted. Our decision of 18 August 1997 outlines the main points of our reasons. Fixed-term employment is a distinct type of employment for purposes of relief against unfair termination of employment. We are satisfied there are compelling grounds why a reasonable employer should restrict the use of fixed-term employment to circumstances which warrant the departure from the minimum conditions associated with standard full-time or part-time employment. We accept it will be appropriate for an institution to resort to fixed-term employment to ensure it has flexible staffing arrangements to meet the exigencies covered by the circumstances we have comprehensively defined in clauses 2.3.1 to 2.3.6. Conversely, once the employer elects to use a fixed-term employment, it is reasonable that the employer gives full effect to the consequences of that election. In other words, it is not reasonable to purport to convert fixed-term employment to a less secure, less protected form of indefinite term employment by including provision for ordinary notice of termination prior to the expiration of the contract, or by the systemic rolling over of contracts from term to term. Such practices belie the important differences between the two types of employment and are characteristic of the inappropriate use of fixed-term contracts in the past. The incidents of fixed-term employment, and the duties we have determined to cover serial fixed-term employments, reflect our view of what should be the minimum standards observed by a reasonable employer using that type of employment in this industry. In particular in this context, the relative exemption of fixed-term employment from relief against unfair termination of employment is predicated upon such employment expiring upon the completion of the term. It may reasonably be expected that an institutional employer offering a term contract will perform the contract and not dishonour the contract by premature unilateral termination unless the employee's conduct amounts to a repudiation of the contract.

Fixed-term employment is defined by reference to the existence of circumstances corresponding to the principal needs or work activity identified in the evidence about the current use of fixed-term employment. Some of the circumstances set out in clauses 2.3.1 to 2.3.6 correspond to uses of fixed-term employment identified in the NTEU's proposed subclause 5.3 of Exhibit NTEU 37. We have derived others from the evidence about the need to use fixed-term employment because of the nature of work activity, the source of funding, or a requirement related to a class of employee. It is not necessary to comment in detail on the six circumstances defined. However, we note that fixed-term contracts for work activity on specific tasks or projects, or for research are distinguishable in nature from the other four circumstances defined. Fixed-term employment for research or special project purposes will tend to be used serially for certain employees. For that reason the award attracts particular conditions or benefits to fixed-term employment on work activity of that description. We do not accept, in this context or generally, the AHEIA's contention that the settlement of the order in the terms set out in the HECE Award amounts to a determination on "new clauses".

4.3.4 Casual employment:

We understand that casual employment in higher education institutions ubiquitously is employment on an hourly rate. The hourly rate is specified in one of the relevant awards and is loaded by a factor that takes into account the employees' lack of entitlement to some award benefits available to non-casual employees. The definition of casual employment in our award reflects that practice and substantially adopts the NTEU's proposal.

4.4 Requirement to state terms of engagement:

In our decision of 18 August 1997, we indicated that we supported the inclusion in the award of a provision requiring a letter of offer of appointment65. The NTEU submitted, as clause 10 of the draft in Exhibit NTEU 37, a means of implementing that provisional decision.

We have determined that the award should include a requirement to state the terms of engagement. The content of that requirement will be set out in clause 3 of the HECE Award. We have drawn upon the NTEU proposal but trimmed it to conform with the types of employment and the scheme of the award we have determined. That determination reflects our view of the application of subsections 143(1B) and 89A(6) to the content of the award. The clause creates an overall obligation to inform each employee of the principal terms of the employment. In addition, some specific information essential to the operation of the scheme of the award must be provided.

We note that our decision of 18 August 1997 was delivered prior to the Award Simplification Decision66 which was handed down on 23 December 1997 after submissions had closed in this matter. The discussion of types of employment in that decision is parallel in some respects to the approach we have adopted in respect to a requirement to inform employees about the terms of their engagement67. We have arrived at our determination in this matter by a reasoning process that anticipated but is independent of that decision. However, we have adopted some of the terminology of that decision in the interests of avoiding unnecessary distinctions in wording between minimum standard awards.

4.5 Incidents of continuing employment:

We have decided against providing for the three incidents of continuing employment proposed by NTEU in clause 6 of Exhibit NTEU 37. The points raised concern the ongoing nature of the employment, probation, and savings provisions. We consider that each of those points is adequately covered, directly or by implication in other provisions of the award we have determined.

4.6 Incidents of fixed-term contract of employment:

4.6.1 Incremental advancement:

The NTEU proposed clause 9 - incremental advancement - sought that employees engaged in a classification with an incremental structure should generally be paid on the salary step which reflects qualifications and satisfactory prior service in the same or higher classification. We are satisfied that such a provision is allowable under paragraph 89A(2)(a). However we have modified the terms of the general right proposed by NTEU. That right was apparently intended to apply to all types of employment and perhaps to all prior employment including employment outside the institution in which the employee is currently engaged.

In our decision of 18 August 1997, we indicated provisional support for an award duty on the employer to classify academic employees in a manner that takes due account of prior service at a comparable academic level68. In expressing that provisional view, we were developing a comment made earlier in our decision to the effect that for fixed-term employees the segmentation of service with the same or cognate employers involves a detriment to employees that lacks adequate justification69. Having reviewed our reasons for stating the positions to which we have referred, we consider that it is appropriate to establish as an incident of fixed-term employment a duty on the employer to have regard to continuous service as defined in progressing an employee through a classification with an incremental structure. The concept of continuous service has a dynamic function in the scheme of the HECE Award in bridging the entitlements of fixed-term employees to the award-based entitlements of full-time employees. We discuss that aspect of the award in section 4.6.4 below.

4.6.2 Notice of renewal or non-renewal prior to expiry of contract:

The NTEU sought as an incident of fixed-term employment a form of notice of termination upon expiry of contract, and an obligation to state reasons for the non-renewal. Clause 2.2 of the Interim Award included a provision in analogous terms to that proposed by the NTEU.

The AHEIA objected to any award requirement for written notice of non-renewal of contract on the ground that it was not an allowable award matter. We accept that such notice is not a notice of termination in the sense used in paragraph 89A(2)(n) of the Act. However, contrary to the AHEIA's submissions, we have accepted that fixed-term employment is a type of employment, and that it is proper to identify with the employment particular terms or incidents of the employment. In the normal course, a fixed-term contract and the related employment comes to an end by agreement or by operation of law upon the expiry of the term of the contract70. Hence the legal notion of a notice of termination of the contract is not germane to such contracts. The legal form of a fixed-term contract implies both the precision and self-execution ending an employment under it. In the real industrial world there is no such practical clarity about the ending or continuation of the employment of many higher education employees subject to such contracts. Many fixed-term employees are subjected to considerable uncertainty about whether their employment will be renewed upon the expiry of the term of their contract. That uncertainty, and the systemic reasons that generated it, were the primary factors that lead us to determine the Interim Award requirement for notice to which we have referred. Much of that uncertainty is the product of an unreasonable failure by the relevant university employers to temper their need for flexibility by the use of administrative arrangements that give fixed-term employees a clear and definite statement about the ending or continuation of their employment. We consider that a requirement for such notice may properly be conceived to be incidental to the specification of the type of the employment, and necessary for the effective operation of the award. It is a practical equivalent of notice of termination in most of the circumstances to which it will apply.

The lack of any requirement for notice of renewal or non-renewal has a particular impact in the case of fixed-term employees habituated to serial renewals of their contracts. It exposes the employee to a significantly higher degree of uncertainty about his or her employment and economic livelihood. For those reasons, and the reasons we stated when making the Interim Award, we are satisfied that there is merit in imposing an obligation on the employer to provide notice of intention to renew or not renew an expiring contract.

Giving notice of renewal or non-renewal of a fixed-term contract should not involve difficulty in most of the circumstances for which the use of that type of employment is necessary. The Interim Award provision for a similar notice period was the equivalent of the minimum standard set by section 170CN for terminations of employment. The draft proposed by the NTEU adopted that precedent. However, the provision of notice of termination may now be taken to be associated generally with a requirement that it will not be given unless the employer has a valid reason for terminating the employment. Of course that requirement is subject to the exemptions under the Workplace Relations Act 1996, and to the exceptions that may apply in cases where there are grounds for summary termination of the employment. We incline to the view that a longer period of notice of non-renewal may be appropriate. This is particularly so for employees with longer periods of continuous service. However, on the cases presented, we have decided to not exceed the minimum standard of notice of termination, and the terms of the NTEU claim except on one respect. The HECE Award will require that notice be at least the equivalent of a full pay period, where that period would be greater than the minimum periods stipulated in section 170CN. We consider that the operation of the provision should be reviewed taking into account experience of the operation of the corresponding provision in the Interim Award with a view to adjusting the period of notice if necessary. We reserve leave for that purpose.

We have removed from the NTEU proposal the requirement to provide a written statement of the reasons for not renewing a contract. Such a requirement is not an allowable matter. We note, however, that good employment practice would support the provision of such reasons.

4.6.3 Severance:

A provision for severance pay is an allowable matter under paragraph 89A(2)(m). There are differing award prescriptions for retrenchment benefits and other forms of severance pay for continuing employees across higher education employment. The principal provisions appear to be clause 6 of the HEGSS Award and clause 21(q) of the Universities and Post Compulsory Academic Conditions Award 1995. We have included in our award in clause 4.1.3 access to those or the relevant prescriptions. The entitlement to severance payments is generally worded out of deference to the range of award prescriptions at State level that apply. The wording is intended to cover the payment to fixed-term employees of the severance or retrenchment benefit howsoever called equivalent to that payable to a continuing employee. We have restricted the entitlement to employees engaged on research, or specific task or project activity. To be eligible, such an employee must be disappointed by failure to gain renewal of his or her contract of employment in circumstances where the work that has been required under serial contracts is no longer required, or where the work continues to be required but another person is to be appointed to perform substantially similar duties. We consider those circumstances to be sufficiently akin to redundancy to warrant a severance payment.

4.6.4 Access to award entitlements and calculation of continuous service:

The NTEU draft award sought to include in the general definition section a sweeping definition of "continuous service". We accept that continuity of service is an important ingredient in bringing about equitable pro-rata access by fixed-term employees to employment benefits and conditions available to indefinite term staff. We have therefore included as clause 4.2 of the HECE Award a generally worded right to award terms and conditions and a definition of continuous service. The wording of that definition is based substantially upon the prescription about continuous service in clause 4 of the Interim Award. We are not satisfied that we should make in this matter an award provision based upon a general revision or consideration of existing practices about continuity of service. The NTEU's proposal goes beyond what we consider to be necessary for the immediate purpose of the HECE Award.

4.7 Dispute settlement procedure:

The claim for a dispute settlement procedure was first expressed in the draft order submitted by the NTEU on 27 October 1997. In one of a series of objections to what it described as "new claims" in the draft orders, the AHEIA pointed out, accurately, that a claim for dispute settlement procedures is not a part of any union application in the matter. However, the inclusion of the proposal about dispute settlement in Exhibit NTEU 37, and the nature of it, prevent us from accepting without qualification the AHEIA's bare contention. The AHEIA's written submission made several points against the merits of the dispute settlement procedure proposed in Exhibit NTEU 37. In particular, the AHEIA objected to the demand upon resources that would result from the establishment of a three member Disputes Committee of the kind proposed. In the AHEIA's submission, the proposed function of the disputes procedure would require "subtle educational decisions", of a kind remote from those normally dealt with through dispute settling procedures and Boards of Reference. In the circumstances, we have considered carefully the merits and jurisdictional basis for the form of dispute settling procedure proposed as clause 11 in Exhibit NTEU 37.

The substance of the claim is for a duty binding the parties to the award to a process:

(1) to deal with any dispute between the parties as to the proper implementation of (the) award;

(2) as a first step, by a conference between the union and the employer within seven days;

(3) in relation to a dispute as to the classification of the type of employment of an employee or as to entitlement to any allowance under the award, by a second step involving:

(4) as a third step, if the dispute is not resolved by that process within 21 days of notification of the dispute, the dispute may be referred to the Commission "for arbitration".

We treat the AHEIA submission as having put in issue generally the jurisdictional basis for inserting a provision of the kind claimed. It must be accepted that, generally, a dispute settlement provision is an allowable award matter under paragraph 89A(2)(p). We have acknowledged that the NTEU's claim for the award to include the clause was not advanced until late in the proceedings. In part, the claim is a response to earlier developments within the proceedings. The Commission has been hearing and determining in a piecemeal way the mixture of claims advanced by the NTEU and the supporting unions. In the circumstances, we accept that the claim for the proposed clause 11 was notified and pressed as a matter incidental to the matters in dispute that were originally submitted for determination. The AHEIA was given adequate notice of the claim for an award provision in that form, and of the grounds upon which it was sought. We are satisfied that AHEIA has had an adequate opportunity to present a case in opposition to the proposal.

We will assume that it is necessary that there be ambit within a relevant dispute or disputes for the award of a dispute settlement provision. That assumption may be open to question in this instance. The way in which the original disputes have developed in the course of proceedings, and the incidental character of such a provision are possible additional bases for jurisdiction to include the provision in this particular case71. None the less, the relevant industrial disputes, in our view, contain sufficient ambit for a dispute settling provision to be awarded. Thus, in the NTEU disputes found in matters C Nos 31066 of 1992 and 31071 of 1992, the relevant logs of claims included demands for a review mechanism in the following terms:

In the relevant CPSU log in dispute, C No. 31578 of 1993, demands are made for an "Industrial Relations Committee" to settle disputes or differences relating to application of any clause under an award flowing from the log of claims and to refer major matters to a Board of Reference for determination. Separate claims are made for a "Classification Committee" to hear and determine applications for reclassification, and for a Board of Reference72.

Consequently, in our view, the subject matter of the relevant disputes includes a series of demands for a mechanism to review and determine particular issues about classification and other entitlements established in response to the unions' demands on the employers. Even without the aid of any amplification and clarification that occurred in the course of proceedings, those demands establish ambit of the kind identified by Mason J in R v Hegarty; Ex parte City of Salisbury, where he stated:

That passage was preceded by a passage which considered the function of the Board of Reference instituted by the award under considerations in Hegarty's Case. They are the source of now well established authority upon the jurisdictional limits within which arbitrated dispute resolution procedures may be established74.

The current provisions of the Act relating to consent award or certified agreement dispute settlement procedures are built upon an understanding of constitutional jurisdictional limits derived from Hegarty's Case. Thus, section 170LW allows the party to an agreement, if the Commission approves, to empower the Commission to settle disputes over the application of the agreement, or to appoint a Board of Reference for settling such disputes. Presumably that section was intended to remove any doubt that would otherwise have existed about whether the parties to an agreement could themselves effectively allocate an arbitral or conciliation function to the Commission. Before Hegarty, several decisions had indicated that an award or agreement could not validly confer a function that was not also within a power conferred on the Commission by the statute itself. The focus of section 170LW is on disputes over the application of the agreement. That limitation is crucial to the valid allocation of a "local" dispute settling function to the Commission by an agreement pursuant to section 170LW.

It is within the purview of the principle set out in Hegarty's Case for the Commission to do through a dispute settlement procedure those things which the Commission might do, or might have done directly by arbitration of the subject matters in the originating industrial dispute. Section 131 of the Act, the Board of Reference power, gives statutory expression to, and allows alternate machinery for the exercise of, that power to deal with an industrial dispute: by "allowing, approving, fixing, determining or dealing with a matter or thing that, under the award, may from time to time be required to be allowed, approved, fixed, determined or dealt with". The limitation in section 170LW to disputes over the application of the agreement appears to be designed to restrict in much the same way the scope of the dispute settling function able to be conferred on the Commission by an agreement. Although the words are sufficiently general to perhaps allow wider operation if a particular agreement is worded to apply to disputes of the particular character.

There is a related requirement in section 91 for the Commission to encourage parties to agree on procedures for preventing and settling disputes, and to include them in an award. Subsection 170LT(8) requires all certified agreements to include "procedures for preventing and settling disputes between the employers and employees covered by the agreement about matters arising under the agreement". It may therefore be grouped with sections 91 and 170LW as derivatives from that aspect of the constitutional head of power associated with the prevention of industrial disputes and conciliation. The recourse to that head of power, or to the corporations power has a principal effect in the case of some certified agreements. It gives the parties scope to agree about matters that may reach beyond what would otherwise have been the range of an arbitrated award in settlement of an industrial dispute. A dispute settlement procedure, established by a consent award or an agreement, may purport to confer on the Commission the task of settling by arbitration or determination, a dispute about matters arising under the agreement, or about the application of the agreement. However, in our view, for that task to be validly conferred, or undertaken, it must be in relation to a matter or thing which the relevant award or agreement may validly require to be dealt with. Thus, in the case of section 170LW, the requirement about the jurisdictional limit of a conferred dispute settlement power is crucial: it must be a dispute "over the application of the agreement". As we have already noted, the ambit of disputes potentially within the compass of that expression is dependent upon the content and wording of the agreement. The scope for valid operation may be subject to conjecture. Under the Act, the Commission now has jurisdiction over local disputes in the State of Victoria. It has long had jurisdiction over such disputes in the Australian Capital Territory and the Northern Territory. That jurisdictional coverage of some local "industrial disputes" may have a bearing on the range of matters or things that could be within the scope of an agreed dispute settlement procedure effectively conferring on the Commission under section 170LW a function to settle referred disputes.

However, in the circumstances with which we are concerned in this instance, any power to make the provision sought by the NTEU is confined to the compass of whatever power we may have to arbitrate an award provision to that effect. We were not invited to take into account the potential expansion of powers over local disputes in Victoria and the Territories. We deal with the question of jurisdiction by reference to the interstate industrial disputes relied upon by the applicant unions. In that perspective, an arbitrated award dispute settlement provision binding on the AHEIA and its members can do no more than reserve to the Commission a function co-extensive with a function that might be able to be performed by a Board of Reference. The Commission would thereby effectively be the Board of Reference. Such an award provision cannot confer on the Commission a determinative function of any kind that would exceed the functions that might be validly required of a Board of Reference. That limitation also provides guidance about the character of the disputes that may be referred to the Commission for settlement.

The decision of the High Court in R v Hegarty constitutes a relatively comprehensive guide to the character and limits of the powers of a Board of Reference assigned such functions. It is convenient for our purpose to adopt and paraphrase the statements made in that, or related cases, about those limits. They are no less applicable to any dispute settlement function that might be conferred by award on the Commission in this matter.

In discharging its function to determine and deal with a grievance, the Board acts in the capacity of an arbitrator. It would be able in the final resort to determine those matters or things that the Commission itself could determine to impose as a duty on the employer or employees in the settlement of the dispute giving rise to the award. In arriving at a decision about a particular grievance, it is open to a Board to form and express a view about the meaning of criteria or conditions set down in the award. The Board may not consider it necessary to do so. It is not a Board's function to interpret or enforce a provision of the award. Even where a Board does express such a view in arriving at a decision, only the decision is binding on the parties. The Board' "interpretation" of the award is not. The formation of a view about the meaning of the award and how it should be applied for such purposes does not cause the process to be a usurpation of judicial function. It may be undertaken as a step in arriving at a decision in the particular case.

It is common for award Board of Reference provisions to allow for a review of a Board determination by a member of the Commission. On review of a Board of Reference decision, the powers of the Commission may be exercised to review the decision arrived at by the Board for the purpose of confirming the decision or substituting the Commission's decision about a matter that was open to the Board to determine. In effect, the Commission's function on an application for review puts it in the position of a Board of Reference. The Commission's power, more so than in case of the Board of Reference, is derived from the award. That power depends perhaps ultimately on the reservation by the arbitrator at the time of making the award of a portion of the arbitral power to a member of the Commission through the award. A failure of a party bound by a determination of the Commission, or by a Board of Reference to comply with a determination, is at the highest actionable only as a breach of the award. It is not actionable as a breach of the determination as such75.

When we apply the general principles we have outlined to the provisions claimed by the NTEU in this matter, one obstacle to making an award provision in the terms sought is immediately apparent. A dispute between the parties as to the proper implementation of the award is too general and non specific a subject matter to be capable of giving rise to "a determination on which the provisions of the award then operate76".

However, the chief work of the dispute settlement procedure proposed by the NTEU appears to be in the second step, and with a narrower field of disputes. Disputes about the classification of the type of employment of an employee are within the compass of matters directly in issue in, or at least are incidental to, the industrial disputes in settlement of which the award made will be directed. The NTEU's proposed second step procedure also covered disputes about "entitlement to any allowance under the award". We have decided against the award of an allowance related to a type or subtype of employment. But we have applied generally some allowable award benefits to fixed-term employees. Disputes about the application of award criteria for that benefit may therefore arise. In particular, a dispute about an entitlement to a severance benefit could be the subject of a provision.

It follows in our view that it would be within jurisdiction to include in the award a dispute settlement procedure confined to disputes about the classification of the type of employment of an employee covered by the award, about whether a severance benefit, or a benefit covered by the general right to allowable award benefits provided for in the relevant award, should be paid to a fixed-term employee.

Concerns about the merits of including such a provision were debated in the written submissions. The main points raised attacked the level of resources that may be required to service the procedure and the intrusion of it into managerial decisions about what are non-industrial subject matters. We have considered those, and other possible points, in perspective with the provisions of the award provisions that we have determined. We consider that in the context of the award, the attempted resolution of the likely number of disputes properly subject to dispute settlement procedures should not overtax the resources of the parties. Our experience of similar provisions points to the likelihood of any over-resort to such provisions being discouraged once the parties establish a basis for administrative practice around an entitlement. Nor do we consider that decisions about classification into types of employment mandated by the award are beyond the ambit of industrial considerations. We are satisfied that the balance on the merits weighs in favour of there being a dispute settlement procedure.

To guard against the possibility of an excessive drag on resources, we will impose a "sunset provision" limiting the term of the operation of the clause. We will confine the procedure to two formal steps. The first is much the same as the second step proposed by the NTEU. That step in the procedure is analogous to, but less formal than, a Board of Reference. We would expect that most disputes would be resolved informally, prior to that stage.

We have retained as the second step the reference of particular disputes to the Commission for conciliation, and if necessary for determination by arbitration. However, we have associated with that step an additional procedural provision linked to the Commission's Rule 66 and the first step of the award procedure. In addition, we have sought to ensure that the character and effect of a determination of a dispute under the procedure is better understood, and expressed on the face of the award provision. The reasons for those additions and changes to the NTEU proposal stem from the propositions about the character of an award dispute settlement provision that we have summarised.

4.8 Transitional provision:

Transitional provisions are properly considered to be necessary and incidental to the operation of the allowable clauses which will constitute the award. Such a provision will often provide a mechanism to allow orderly transition to the award.

We have dealt with the orderly introduction of the HECE Award in two ways. First, we have included as clause 6 a transitional provision which excludes certain employees from the operation of the definitions of employment type within the award. Fixed-term employees under contracts executed not later than 30 June 1998 are not subject to the award. This provision has been adopted to avoid a possible obligation to convert existing contracts that might otherwise need to be reconstructed to comply with the HECE Award. We do not otherwise intend to limit the effect of the HECE Award. The prospective date of operation for the obligations of the award attach to new fixed-term contracts is intended to reduce complications in respect of imminent agreements which have been the subject of discussion. In the event that there is evidence of any unintended use of this transitional provision to avoid the effect of our order, we would consider a further variation to avoid such effect. We will set aside the Interim Award with effect from 30 June 1998. The effect of the Interim Award for existing fixed-term contract employees entitled under it will be adequately preserved by the operation of clause 4 of the HECE Award.

Second, the order generally will not have effect for a period of almost two months from the date of decision. We expect that will be sufficient time to allow all new award obligations to be met without undue pressures on the institutions. We have set a term for the award of two years. We have selected that period of operation with the intention of allowing a sufficient length of time for the operation of the revised arrangements to be tested and observed before adjustments are sought to be made on a unilateral basis. However, we reserve liberty to apply in association with the review and report procedure on the implementation of the award to which we refer in Section 6 of this decision. The consultative requirement provided for in clause 6.2 is intended to establish a formal basis for conferring about transitional and review matters at institutional level.

4.9 Savings provision:

We have included as clause 7 of the HECE Award a general savings provision directed to avoiding an unintended diminution of employment conditions. We have preferred that form to the specific provisions for particular employment types proposed by NTEU.

5 RULINGS ON PARTICULAR POINTS RAISED ON SETTLEMENT OF ORDER:

It is convenient to set out at this point our view, and in some instances our ruling upon particular points raised in relation to points of detail that we have not covered specifically in the preceding section which is concerned with the final content of the HECE Award. In particular it is appropriate to address a number of particular claims made by the unions in reliance on our decision of 18 August 1997.

5.1 Parental leave:

Parental leave is an allowable award matter under section 89A(2)(g). We have decided not to adopt the specific provision for parental and maternity leave for fixed-term employees proposed by NTEU in clause 7.6 of Exhibit NTEU 37. The relevant awards do not yet directly provide for continuing employees an entitlement to parental leave. The instruments incorporated into the HEGGS award by reference perhaps may do so. To the extent that there exists such an entitlement, clause 4.2 in our award (calculation of continuous service) is intended to extend such an entitlement to fixed-term employees. We think it inappropriate to provide such an entitlement for fixed-term employees in circumstances where there exists no present award provision for parental leave for continuing employees. In such circumstances the provision of parental leave, consistent with test case provisions, should be addressed in respect to both continuing and fixed-term employees. This could be conveniently done in the context of pending award simplification proceedings.

5.2 Study leave and training:

We have decided against providing an award entitlement for fixed-term employees in relation to study leave and training. Our decision is dictated by the over-award nature of such arrangements for continuing employees. Whilst there may be some prescription of study leave and training entitlements by reference in the HEGSS Award, the only direct award provision we have identified is the training clause 11 in the Victorian Award. It makes a generalised "commitment to training". We have an open mind about whether a provision of that kind has a foundation in an allowable award matter. However, we are not prepared to extend over-award benefits to fixed-term employees as an award entitlement.

5.3 Redeployment:

We are not satisfied that the redeployment provision proposed by NTEU on the basis of our decision of 18 August 1997 is an allowable award matter. As we have already observed, such a provision has merit, and would reflect good employment practice. Circumstances of the kind encountered by Mr B. Layton illustrate the reasons for our holding that view77. Nonetheless, we are constrained by section 89A from including a redeployment provision in our order. We have framed clause 4.2 in a way intended to make clear that a fixed-term employee's entitlement under` the HECE Award to award benefits prescribed elsewhere does not extend to benefits of a kind that are not now allowable award matters.

5.4 Superannuation:

There is no award benefit available to continuing employees other than the 3% superannuation entitlement in the Tertiary Education Superannuation Scheme - Superannuation Award 198878 That benefit is also presently available to fixed-term employees. Accordingly, there is no award provision that we need to extend. Academic and general staff superannuation benefits are over-award in character. The denial of equivalent superannuation benefits to fixed-term employees on serial appointments has had a serious and lasting discriminatory impact on the remuneration of many employees of that class. Section 89A does not yet preclude an award provision about superannuation. However we note that the Award Simplification Bench deferred consideration of superannuation provisions pending legislative change. In the circumstances, we consider it would be inconsistent with the minimum rate character of the award to include a provision compelling contributions to superannuation arrangements in excess of those already provided for fixed-term employees. We note, however, that the adverse effects of past failures to extend superannuation benefits to certain fixed-term employees will be mitigated by the reduced use of that type of employment which we expect to be a result of the award made.

5.5 Promotion and reclassification:

We have decided against inclusion in our order of promotion provisions of the type sought by the NTEU in respect of fixed-term employees. The work requirements of the job contracted to be done and the level at which it is to be undertaken should both be covered by the terms of a fixed-term contract. It is not appropriate for the award provision to intrude upon the agreed contractual pay rate by dealing with contingencies about promotion. The "tenure track" function of a fixed term employment is not within the purview of a minimum rates award. Rather, on the approach we have adopted, the notion of tenure is matter for each institution, subject of course to any legislative or industrial agreement that be relevant. Fixed-term employees should be entitled under existing awards to be properly classified and to seek reclassification for work performed. We see no requirement for a further award prescription about this class of entitlement.

5.6 Incidents of casual employment:

We have not provided for any additional incidents of casual employment. The NTEU proposed several in clause 8 in Exhibit NTEU 37. The primary claim was for the payment of a 30% allowance additional to the existing casual loading. The proposed condition precedent to payment of the allowance is the performance of casual work in excess of threshold levels for casual work that the NTEU seeks to have prescribed by the award. The rationale for the proposed allowance is in part to deter the use of a casual employee beyond the degree at which the employee should be allowed a continuing or contract employment position.

The proposal derives in part from the existing award provision in clause 6 of the Academic Award and clause 7 of the Universities Award which each limit the use of part-time non-fractional hourly rates of pay. Under that provision, casual academics with lecturing loads equivalent to 60% of the work of an equivalent full-time academic may be entitled to payment at the appropriate equivalent full-time rate. The provision proposed by the NTEU is not confined to casuals employed in academic rates. We have discussed the retention of the 60% rule or an equivalent provision in earlier decisions79. The prescription of a 30% allowance contingent upon aggregate hours in excess of threshold levels related to full-time teaching formulae may satisfy the literal test for allowances under paragraph 89A(2)(j). But the substance of the provision is similar in character to the 60% rule albeit amplified in a way that would include also casual staff not engaged as academic employees. In our decision of 21 November 1997, we observed:

We have considered carefully again the view we then expressed. We also have taken into account several changes in the considerations or circumstances relevant to it.

For the reasons we have already explained, the Commission lacks power to make an award provision establishing a duty on the employer institutions to take reasonable measures to ensure that employees are given whatever options may be available for redeployment to suitable alternative employment within the particular institution. It may perhaps be within the scope of the allowable matter related to skill based career paths to impose a duty on the employer to consult and assist casual staff with advice about future employment opportunities. However, we have concluded that such duty would be of little more than exhortatory value unless it were to be linked with an obligation to redeploy to available work. Nor would a duty of that kind do much to restrain the tendency to respond to pressures to substitute casual employment on loaded hourly rates for fixed-term, full-time or part-time employment.

The cognate Full Bench that dealt with casual rates for academic staff refused to adjust the loading component of those rates81. However, we did not understand that decision to have denied that the existing 20% loading included in the casual hourly rate does not purport to compensate for the full range of benefits available to continuing staff82. The decision in that matter resulted in one significant change to the scheme of casual rates to which the 60% rule had been related from inception. The relevant award requires payment for all work required to be undertaken by casual academic staff. However, we do not conceive that that change would itself be sufficient to bring the longer term use of casual academic staff into a satisfactory equilibrium with a competitive use of contract or continuing employment. We do not doubt the overall merit of discouraging excessive use of casual staff. The use of casual staff to substitute for indefinite term employment of academic and general staff affects not only employees who are casuals. The corresponding component of the workforce resource is also affected in an aggregate way. All are denied the benefit of access to the career enhancement and human resource development measures associated with that type of employment.

The existing casual loading to the hourly rate is intended to include a balancing factor against such substitution. The NTEU proposal is that that effect should be augmented whenever a particular casual employee's workload exceeds the threshold level of work stipulated in the proposed clause. We do not consider that we are precluded by paragraph 89A(2)(b) from making a provision for an allowance of the kind sought by the NTEU. However, on a balance of considerations, we are not persuaded that we should at this time apply the award making power to discourage excess use of casual employment in the manner proposed by the NTEU. The proposed 30% loading, building on an hourly rate already loaded by 20%, would be excessive. Moreover, we are not persuaded we should accept the thresholds proposed by the NTEU for the allowance. The levels of casual work nominated are not sufficiently clearly related to the circumstances in which an extra allowance might be provided to compensate particular casual employees for a discrimination in remuneration and conditions for work of equal value. In the circumstances, we refuse to insert a provision in the terms proposed by the NTEU, or a modified provision at this time. None the less, we will not close off the question of whether some additional loading should be prescribed by the award on a minimum rate basis to be applied to a select class of casual employees.

We would expect that the effect of the award we make and the overall pattern of the use of casual academic and general staff will be closely observed by the parties. Evidence may emerge of an acceleration of the use of casual employees on work that is properly to be considered work of a continuing nature, with no effective provision for the movement of casuals to a continuing status. If upon the expiry of the term of the award there is such evidence available, it will be open to the union parties to make application for a variation of the award based on a review of our decision on this point, and of the cognate decision about the appropriate level of loading for casual academic rates. In the meantime, and with effect from 30 June 1998, we shall give effect to the provisional reasoning of our decision of 18 August 1998 in relation to the 60% rule, and will vary the relevant awards to delete those provisions. The AHEIA shall submit a draft order to Smith C for that purpose within seven days.

Clause 8.2 proposed by NTEU in relation to employment of a casual primarily by another employer and proposed clauses 8.3 and 8.4 are associated with its proposal for an additional allowance. Given our decision above, these clauses serve no purpose. Accordingly, the award will not include any provision detailing specific incidents of casual employment. However other general provisions of the award will apply except where a contrary intention appears.

6 CONCLUSION AND DETERMINATION:

We consider that it may be of assistance to the parties in achieving an orderly implementation of the award to have access to the Commission and, if necessary to this Full Bench, to address any difficulties with implementation that may not have been foreseen. For that purpose, we will reserve a general liberty to apply. We require that in the first instance it should be exercised by application to Smith C for a conference at which the parties may report on the implementation of the award. We envisage that any such conference should not be held before end July 1998.

We are satisfied that an award in the terms we have discussed pertains in all relevant respects to the relations of employers and employees and is in relation to allowable award matters.

The determination of the Commission is that an award be made in the terms set out in Print Q0703. That award shall come into operation on 30 June 1998 and shall remain in force for 24 months from that date. The Interim Award will be set aside, and the relevant clauses implementing the 60% rule will be deleted with effect from 30 June 1998. Draft orders to that effect will be submitted by AHEIA to Smith C within seven days.

BY THE COMMISSION:

JUSTICE P. R. MUNRO

Appearances:

W. Friend, of counsel, and K. McAlpine, L. Gale, C. Ryan and E. Floyd and for the National Tertiary Education Industry Union.

R. Tracey QC with P Burchardt, of counsel, and R. Blackford, I. Argall, S. Long and P. Tilbrook for the Australian Higher Education Industrial Association.

F.L. Wright QC with J. Walton, of counsel, and D Bunn, J. Nicolson, S. Owen and D. Perkins for the CPSU, the Community and Public Sector Union.

S.P. Gibbs, B. Sullivan and J. Nucifora for the Australian Municipal, Administrative, Clerical and Services Union, intervening.

L. Gale and K. McAlpine for the Australian Council of Trade Unions, intervening.

Hearing details:

1996.

Melbourne:

March 28;

Sydney/Melbourne (by video conference):

May 31;

Sydney:

August 9;

Melbourne:

September 12;

October 15-18;

October 19 - November 1;

November 13;

Sydney:

November 14-15;

Melbourne:

November 27-29;

1997.

Melbourne:

February 17, 20;

August 18, 29;

November 21;

December 11.

Printed by authority of the Commonwealth Government Printer.

<Price code K>

ATTACHMENT 1

NTEU DISPUTES

Case number

Date/Finding

Main parties

Subject matter

C No. 31071/92

29 July 1992

Federated Australian University Staff Association and Australian Higher Education Industrial Association

Log of claims dated 3 June 1992 including in clause 2 similar demands about contract and type of employment to those made in the 1992 log

C No. 31066/92

29 July 1992

Union of Australian College Academics and Australian Higher Education Industrial Association

Log of claims dated 28 May 1992 or 29 May 1992 including in clause 2 similar demands about contract and type of employment to those made in the 1992 log

C No 90011/93

      

C No. 30495/95

20 March 1995

NTEU, Macfarlane Burnet Centre and Southern Cross University

Log of claims dated February 1995 including in clause 2 similar 20 point demands about contract and type of employment to those made in the 1992 log

C No. 30052/96

25 January 1996

NTEU, ANU and University of Canberra

Log of claims dated July 1995 including in clause 2 similar demands about contract and type of employment to those made in the 1992 log

CPSU DISPUTES

Case number

Date/Finding

Main parties

Subject matter

C No. 31578/93

14 November 1995

AHEIA and The University of Sydney and 27 other university employers

Log of claims dated 20 July 1993

ASU DISPUTES

Case number

Date/Finding

Main parties

Subject matter

C No. 39758/95

14 November 1995

ASU and Australian Catholic University and 10 other university employers

Log of claims dated 14 September 1995

Decision Summary

   

Award type - new award - various employees, educational services - application by National Tertiary Education Industry Union (NTEU) to vary Higher Education General and Salaried Staff (Interim) Award 1989, Higher Education Workers Victoria (Interim) Award 1993, Universities and Post Compulsory Academic Conditions Award 1995 and Higher Education (Non Continuing Contract Employment) Interim Award 1996 and CPSU to vary Higher Education General and Salaried Staff (Interim) Award 1989 - supplementary decision to Prints P6856 and P4083 (18 August 1997) and determination making Higher Education (Non Continuing Contract Employment Interim Award 1996 - parties unable to agree upon approach implementing decision in Print P4083 - this decision addresses draft order lodged by NTEU amounting to revised application for an award binding on NTEU, CPSU, ASU and Australian Higher Education Industrial Association (AHEIA) - award to operate with other awards and prevail over them - jurisdictional points - ambit - NTEU claimed ambit through six industrial disputes - AHEIA submitted no generic ambit - each industrial dispute is materially different between union parties - claims in logs do not support clauses in award - Commission satisfied award provisions sought not beyond ambit of NTEU dispute - provisions not expressly within direct scope of CPSU log but making award covering all parties including ASU necessary for purposes of settling all disputes and preventing further disputes - whether universities agencies of the States - AHEIA submitted implied limitation preventing the making of part of the award because universities creatures of State statutes, the State retains control over aspects of university governance, relying on Re AEU (1995) 184 CLR 188 Commission has no jurisdiction to entertain claim in relation to matters of redundancy of persons employed by State or agent of State - submission withdrawn by AHEIA but appropriate for Commission to determine jurisdictional point - held second limb of implied limitation does restrict award making power covering agencies of the States - Qld Electricity Commission v Cth (1995) 159 CLR 192 applied - in this instance question is whether a State is carrying on higher education as a governmental function through a university - Commission's jurisdiction not limited - a university is a public foundation and its functions are not in any real sense carried out by or on behalf of the State - statutes establish universities as body corporates - not subject to substantial government control - Greig v Edinburgh University and Clark v University of Melbourne (1979) VR 67 at 73 cited - whether award beyond jurisdiction as to allowable award matters - AHEIA submitted unions' claims should not be dealt with by awards but by enterprise agreements - consistent with objects of WR Act and most proposed provisions outside allowable matters in s89A(2) WR Act - held these issues including Award Simplification Decision [Print P7500] and April 1997 Safety Net Review [Print P1997] are taken into account in determination of content of final order - merits, form and content of final order - consistent with view of allowable award matter `types of employment' to make provision that employment shall be within 4 types - full-time, part-time, fixed-term and casual - each with associated probationary period - category `continuing employment' in NTEU's proposal not applied - Commission dealing only with important provisions and not prepared to apply award simplification process to each base award - content of Award - Award entitled Higher Education Contract of Employment Award 1998 (HECE Award) binding on 3 union parties and their members and AHEIA and its members - cl 2 duty on employer to use one of four specified types of employment - savings provision that no limit imposed as to proportion of employees employed in any one category - cl 2.1 full-time employment defined - part-time employment defined as a proportion of ordinary hours worked with all award entitlements on pro-rata basis - cl 2.31-2.36 fixed-term employment defined - expires on specified date or on occurrence of ascertainable event - contracts can be utilised for particular function, task or project or to fill a position at a higher level for a term - compelling grounds why reasonable employer should restrict use of fixed term employment - not reasonable to convert fixed-term employment to less secure form of indefinite term employment by systematic rolling over of contracts from term to term - casual employment defined as employment on hourly rate - cl 3 requirement to state terms of engagement - overall obligation to inform each employee of principal terms of employment - cl 9 incremental advancement - employees should be paid on the salary step which reflects qualifications and satisfactory prior service - allowable under s89A(2)(a) - merit in imposing an obligation on employer to provide notice of intention to renew or not renew an expiring contract - notice to be at least equal to full pay period - cl 4.1.3 severance payments - allowable under s89A(2)(m) - cl 4.2 definition of continuous service - brings about equitable pro-rata access by fixed-term employees to employment benefits and conditions available to indefinite term staff - inclusion of dispute settlement procedure opposed by AHEIA - allowable under s89A(2)(p) - ss91 and 170LW WR Act provide for Commission to encourage parties to agree on procedures for preventing and settling disputes and to include them in an award - R v Hearty (1981) 147 CLR 617 at 629 applied - within jurisdiction to include in the award a dispute settlement procedure confined to disputes about the classification of employment of an employee covered by the award - cl 6 transitional provision - fixed-term employees under contracts executed not later than 30/6/98 not subject to award - provides institutions sufficient time to allow new award obligations to be met - parental leave, superannuation and study leave and training - allowable matters but not included in award as base awards do not directly provide these entitlements - redeployment not provided for as not satisfied allowable matter - promotion and reclassification for fixed term employees not provided - inappropriate for award to intrude upon agreed contractual pay rates - NTEU proposal for additional 30% allowance on top of existing 20% casual loading not accepted - proposed loading would be excessive - if as a result of this decision acceleration in use of casual employees leave to parties to apply to vary award - 60% rule to be deleted from relevant awards - general liberty to apply to address any unforeseen difficulties with implementation of award - award set out in Print Q0703 - to operate from 30 June 1998 and remain in force 24 months.

National Tertiary Education Industry Union and Australian Higher Education Industrial Association and application by the CPSU, the Community and Public Sector Union to vary the Higher Education General and Salaried Staff (Interim) Award 1989

C Nos 34925 and 34932 of 1995, 22586 of 1996

Print Q0702

Munro J

Watson SDP

Smith C

Sydney

11 May 1998

** end of text **

1 Print P6856.

2 Print P4083.

3 Print N7878 [T1031].

4 NTEU Final Submission in Reply 10 November 1997 at pp. 8-10; 54.

5 Clause 20 of log attached to Exhibit CPSU 12.

6 Clause 22 ibid.

7 Clause 24 ibid.

8 Clause 24 ibid.

9 Clause 57A ibid.

10 Queensland Electricity Commission v The Commonwealth (1995) 159 CLR 192.

11 Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 at 232 and 234.

12 Victoria v The Commonwealth (1996) 70 ALRJ 680.

13 Re HSUA Print 6473.

14 R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90-91.

15 Queensland Electricity Commission v The Commonwealth (1995) 159 CLR 192 at 212.

16 Halsbury's Laws of England 4th edition Vol 15 at 256.

17 (1955) AR(NSW) 1088 at 1096.

18 Deputy Commissioner of Taxation v State Bank (New South Wales) (1991) 174 CLR 219 at 233.

19 Edith Cowan University Act 1984 sections 16-25; University of Western Australia Act sections 4, 8, 13-16F; Curtin University of Technology Act 1966 Division 2.

20 (1995) 184 CLR 188 at 235.

21 (1996) 69 IR 221 per Spender, Moore and North JJ.

22 Ibid at 229-230.

23 Australian Education Union v Minister for Education for Victoria (1995) 61 IR 174 at 192; Print M5214.

24 Queensland Electricity Commission v The Commonwealth (1995) 159 CLR 192.

25 Deputy Commissioner of Tax v State Bank (NSW) (1992) 174 CLR 219 at 229-231; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 140 ALR 129 at 145-146.

26 Deputy Commissioner of Tax v State Bank (NSW) (1992) 174 CLR 219 at 233.

27 Ibid 159 CLR per Gibbs CJ at 207; per Mason J at 218; per Wilson J at 225; per Brennan J at 238; per Deane J at 252.

28 State Authorities Superannuation Board v Commissioner for State Taxation (WA) (1996) 140 ARL 129 at 146 per McHugh and Grummow JJ.

29 Halsbury's Laws of Australia Vol 10 Chapter 160 at pp. 302, 409-422.

30 Ibid at pp. 302-409.

31 Halsbury's Laws of England 2nd Edition Vol 12 at p. 100.

32 Ibid at pp. 4-6.

33 Ibid Australian Pilot at p. 23.

34 Halsbury's Laws of England 4th Edition Vol 15 at p. 224.

35 Ibid Vol 10 at pp. 160-905.

36 Ibid at pp. 160-910.

37 Ibid at pp. 302-411.

38 E.g. subsection 35(5) of the Griffith University Act 1971.

39 E.g. section 45 of the Melbourne University Act 1958.

40 Section 27 of the Curtin University of Technology Act 1966.

41 Halsbury's Laws of Australia: Ibid at paras 160-915, 160-920; 160-930.

42 Ibid Vol 9 Corporations at para. 1210.

43 Ex parte King: Re Sydney University SR NSW (1944) Vol 44 19 at 33.

44 Ibid per Jordan CJ at 29; per Davidson J dissenting on another point at 31; per Halse- Rogers J at 42-43.

45 (1963) SR(NSW) 723 at 730.

46 Ibid at 927.

47 R v University of Sydney; Ex parte Drummond (1943) 67 CLR 111; and King; Foster ibid at 730.

48 (1968) LRI Sc & Div 344.

49 Greig v University of Edinburg: Law Reports: Scotch and Divorce Appeals: (1866-1875) 348 at 354; per Cairns LC at 350.

50 (1979) VR 67 at 73.

51 Ibid at pp. 72-73.

52 Print P1997.

53 Telstra Corporation v CPSU Print P3756 at p. 8.

54 Print P1997.

55 Print P7500.

56 Print F8925.

57 Clause 6 of Australian Post Compulsory and Higher Education Academic Salaries (Consolidated) Award 1989.

58 See paragraph 170CG(3)(b) and the decision of Smith C in Young and Kangan Institute of TAFE Print P8615.

59 Print P9636.

60 See for instance G. McCarry "Damages for Breach of the Employer's Implied Duty of Trust and Confident" Australian Business Case Review April 1998 141.

61 Clause 6 of the Metal Industry Award 1984, Print F8925 at p7, providing for weekly hiring, part-time and casual employment is an example. The proposed clause 4.2, Employment Categories, for the Metal Engineers and Associated Industries Award, Print P9311 at Attachment A p. 22 retains some of the content of the existing provision but omits the general "weekly hiring" presumption.

62 Print P9182.

63 Print P4083 at pp. 42-43.

64 Ibid at p. 39.

65 Ibid at p. 41.

66 Print P7500.

67 Ibid at p. 68 Attachment D.

68 Print P4083 at p. 45.

69 Ibid at p. 43.

70 The relevant principle is stated and applied in Victoria v The Commonwealth (1996) 187 CLR 416 at 520.

71 See Re Australian Postal Commission (Postal Workers) Award 1985 Print H5888 per Munro, Peterson JJ and Merriman C at pp. 5-6.

72 Attachment to CPSU Submission of 4 December 1996 clauses 26, 27 and 28 of log of claims.

73 (1981) 147 CLR 617 at 629.

74 See generally Re Co-Operative Bulk Holdings Print K5576 at pp. 30-32..

75 See cases and sources gathered in Re Co-Operative Bulk Holdings ibid at pp. 28-33.

76 Hegarty ibid at p. 629.

77 See p. 30, Print P4083.

78 Print H3593 [T0218].

79 Print P4083 at p. 16 and p. 45.

80 Ibid at p. 45.

81 Print P0289 at pp. 12, 14, 15 and 23.

82 Ibid at pp. 12-13.