Case: National Tertiary Education Industry Union v Central Queensland University [2007] AIRC 539 , PR977528
Outcome: cited
On 20 June 2007, the Union filed an application in the Australian Industrial Relations Commission ("the Commission") pursuant to s 709 of the Workplace Relations Act . The University was the respondent to that application. The purpose of the proceeding in the Commission was to restrain the implementation by the University of the decision that came to be reached not to renew 34 fixed term appointments when they expired on 30 June 2007. An arbitration hearing was conducted before Senior Deputy President Richards in the Commission on 29 June 2007. His Honour handed down his decision in respect of the application that same day, in National Tertiary Education Industry Union v Central Queensland University [2007] AIRC 537 , PR977528. In so doing he adopted the following interpretation of cl 22 of the Collective Agreement: [35] However subclause 22.3 cannot be read separately from sub clause 22.2 of the Agreement. Rather, it is logically interconnected with the structure of the preceding sub clause. It is interconnected in that the consultation described in sub clause 22.3 can only occur in the context of the University's decision making having only reached a stage whereby it has decided only that change may be necessary and that it may have significant effects if implemented. [36] It is because the consultation is to take place in this particular context that the meaningful consultation is given effect as referred to in sub clause 22.3. And it is only in that decision-making stage that the employees and/or their representatives can consider and propose alternatives to managing change. [37] It is sufficiently apparent that at this decisional stage the University might propose the strategies it has developed for consultation and discussion. This is made clear by the inclusion of the verb form 'to consider' in sub clause 22.3 of the Agreement. But these must be strategies that are proposed only at the particular embryonic stage in the evolution of the University's decision making described above. The University cannot have come to a final or even a provisional conclusion on the implementation of these strategies before the consultation in clause 22 can take place. [38] Sub clause 22.5 prescribes further the steps the University must take at the completion of the consultation process described above. If at this point the University proceeds to implement a significant change proposal it must embark upon a further tier of consultation, this time to: &#8226; Consult with affected employees (themselves or through their representative(s)) about the impact of the implementation of the change proposal on work; &#8226; Consult with affected staff about alternative options to implementing the changes on work; and &#8226; Consult with staff about options for avoiding detrimental impacts (such as retraining, part time work etc). [Emphasis added] 20 In the result, His Honour made the following determination: [57] The staged process of consultation required by clause 22 is outlined above. The clause effectively serves as a fetter on the University's prerogative to make decision about aspects of its organisation that have significant consequences for its workforce until such time as it has interacted in a prescriptive manner with its employees and/or their representatives. Without doubt, the procedure to which the University agreed will slow its capacity to respond to changing circumstances and will require the allocation of more time (for consultation) in advance of decision making. But this is the implication of the Agreement, the Agreement the University made with its employees and various of their representative organisations. [58] Further, the consultation process envisaged by the Agreement is required to commence at an embryonic point in the decision making process, that is when the very prospect of major change with major consequences appears as a possible outcome of a set of particular circumstances. [59] Put another way, clause 22 invokes consultation when a view is formed by the University that significant change with significant consequence may be necessary. The University appears to have invoked the clause only after it had formed a view that such change was indeed necessary. That is, the University's decision making appears to me to have traversed the critical juncture between the prospect of significant change with significant consequences and the actuality of that change. [60] The decision making by the University therefore was not made in conformity with its Agreement. [Emphasis added] 21 His Honour declined to grant any relief which would restrain the ability of the University to allow the fixed term appointments to expire by effluxion of time. There was no appeal by the University or by the Union against the decision of Senior Deputy President Richards. 22 I respectfully agree with the remarks made by His Honour in respect of the interpretation and operation of the cl 22 of the Collective Agreement. I would only add that, while the clause does introduce a lag into the University's decision making processes in relation to those bound by the agreement, that temporal element is not fixed but flexible according to prevailing circumstances. 23 Sections 328 of the Workplace Relations Act makes provision for what is known as a "Union Collective Agreement". The agreement in question in this case is of this kind. It resulted from negotiations with the University conducted by a number of unions acting as a single bargaining unit. Following the reaching of agreement between the University and those unions, the Collective Agreement was approved by a majority vote of the relevant University workforce as contemplated by s 340(2) of the Workplace Relations Act . The agreement was then lodged with the Office of the Employment Advocate (now termed the Workplace Authority Director) pursuant to Div 5 Pt VIII of the Workplace Relations Act . The Agreement came into operation on the date that it was lodged s 347 , Workplace Relations Act . 24 When it came into operation the effect of s 351 of the Workplace Relations Act was that the Collective Agreement bound the University, each person whose employment was then or was at anytime when the agreement was in operation subject to that agreement and, given that the agreement was a Union Collective Agreement, each of the industrial organisations, including the Union, which was a party to the agreement.