Are the days of lawyers clever workplace relations strategies to increase productivity and reduce costs by structural reform a thing of the past? Just maybe.
An Australian university has been ordered to pay a penalty (which means a fine although the Fair Work Act does not use that language) after admitted to the Federal Court of Australia to have contravened sec 340 of the Act by taking adverse action against its academic staff who were employed under an enterprise agreement by covertly setting up another entity to employ them, namely a privatised, profit-driven, education business that could design and deliver programs free of the “inflexibilities which flow from being University accredited programs delivered under inappropriate industrial arrangements.”
The University admitted its contravention thus
“By the conduct alleged in paragraphs 25 and 26 of the 2FASOC, and through the communications dated 5, 14 and 26 March 2013, Swinburne threatened to engage in adverse action against the SC Teaching Staff and the Senior Educators.
The threat was to the effect that, if the Swinburne College Pty Ltd Enterprise Agreement 2013 was approved by the Fair Work Commission, the security of employment of the SC Teaching Staff and Senior Educators would be diminished in that:
(a) there was a prospect that the courses which they were engaged to teach could have been discontinued ifSCPL started to conduct those courses; and
(b) if the courses that they were engaged to teach were in fact discontinued by Swinburne, their position may become redundant resulting in termination of employment or non-renewal of their contract.
The reasons for the threatened action included a substantial and operative reason that the SC Teaching Staff and the Senior Educators were entitled to the benefit of a workplace instrument, being the TAFE MBA.”
Mortimor J summed up her judgment as follows;
“In making, and then taking steps to implement, a decision to transfer from the first respondent to the second respondent the teaching and delivery of Foundation Studies and Unilink Diploma courses (collectively known as Pathways courses), as well as English Language Intensive Courses for Overseas Students, and for the first respondent thereafter to cease teaching and delivery of those courses, the first respondent contravened s 340(1)(a)(i) of the Fair Work Act 2009 (Cth) by threatening to alter the position of Swinburne College teaching staff and senior educators to their prejudice, for reasons including a substantive and operative reason that they had an entitlement to the benefit of an industrial instrument, being the Victorian TAFE Teaching Staff Multi-Business Agreement 2009.”
National Tertiary Education Industry Union v Swinburne University of Technology (No 2) (2015) FCA 1080 delivered 8 October 2015