National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd [2016] FWC 3209 (3 June 2016) [2016] FWC 3209 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.739 —Dispute resolution National Tertiary Education Industry Union v Navitas Bundoora Pty Ltd T/A La Trobe Melbourne (C2015/6556) COMMISSIONER BISSETT MELBOURNE, 3 JUNE 2016 Application for Commission to deal with a dispute – Obligation to assess capacity to appoint on-going and fixed-term staff – Assessment not properly undertaken – Assessment to be undertaken in accordance with Agreement – Casual employment restricted to grounds in Agreement. [1] The National Tertiary Education Industry Union (NTEU) notified the Commission of a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) on 9 November 2015 in relation to the La Trobe Melbourne Enterprise Agreement 2015 The dispute, in particular, relates to the assessment the NTEU says is required under the Agreement for the determination of fixed-term and on-going staff. [2] Navitas Bundoora Pty Ltd T/A La Trobe Melbourne (Navitas) conducts English Language Intensive Courses for Overseas Students (ELICOS) and Foundation Studies and Diploma Programs (FSDP). ELICOS courses are run over nine terms per annum, each of five weeks duration whilst FSDP operates on trimesters of 12 weeks each. Navitas engages staff on an on-going, fixed-term or a casual basis. The Agreement [3] On 15 May 2015 the Commission approved the La Trobe Melbourne Enterprise Agreement 2015 (the Agreement) . The Agreement provides a number of provisions that deal with casual, fixed-term and on-going employment: 2. DEFINITIONS For the purpose of this Agreement… “Casual Employment” means employment of an Employee that is conditional upon availability of work and is short-term and/or ad hoc in nature where the Employee is engaged and paid by the hour, and where the hourly rate includes a loading related to benefits, as specified in this Agreement, which are not applicable to Casual Employment. 14. JOB SECURITY Staffing establishment 14.1 One month after the approval of this Agreement and then on each subsequent April and October during the term of this Agreement, La Trobe Melbourne will: (a) Assess the capacity of La Trobe Melbourne to appoint fixed term and on-going staff. (b) When assessing this capacity, La Trobe Melbourne will take into account: (i) The average number of students for a particular course over the past three years; (ii) The anticipated number of students in the foreseeable future, including reasonable projections for 12 months; and (iii) Other operational factors that impact the staffing requirements (e.g. changes to technology, University partner requirements or class sizes). 14.2 Where La Trobe Melbourne can increase the number of fixed-term or on-going roles, after taking into account the above considerations, positions will be internally advertised as per Clause 13 (Internal Advertisements of Positions). Fixed-term positions offered will preferably be for at least 12 months but may be for a minimum of 22 weeks in circumstances where the assessment dictates a limited capacity… 15. CASUAL EMPLOYMENT 15.1 Where La Trobe Melbourne has an identified need for a person to perform work that is conditional upon availability of work and that is of a short-term and/or ad-hoc nature, a person may be engaged as a casual employee… Navitas Programs [4] As set out above, Navitas conducts two distinct program streams, FSDP and ELICOS. [5] FSDP consists of foundation and diploma courses. The foundation course is a pathway to the first year of a university degree while the diploma course offers a pathway to second year of a university degree. Students in both streams take 4 subjects per semester with between 16 and 26 contact hours per week. [6] FSDP employs teachers from different practice areas including science, engineering, English, information technology and media. [7] The student population in FSDP is made up of both Australian and international students. [8] ELICOS classes are made up of students at the same level of English proficiency. An ELICOS course is often the first step on a pathway to foundation or diploma studies or degree or higher degrees at university. The majority of students enrol for 10-20 weeks. Students have 20 contact hours per week. [9] ELICOS employs teachers to teach English at varying levels. [10] The ELICOS students are only international students. 1 The issue in dispute [11] The NTEU believes that Navitas has failed to meet its obligations under the Agreement. It says it has not conducted the assessment as required by clause 14 in a robust or proper manner and that, for this reason, many staff remain employed on a casual basis when they should, in fact, be employed on a fixed-term or on-going basis. It seeks, by way of resolution, the creation of on-going and fixed-term positions ‘in all areas where there exists a capacity to increase the number’ of such roles and that those roles be filled in accordance with the Agreement. [12] The application was subject to conciliation but no resolution could be found. Jurisdiction – the matter in dispute [13] The dispute settlement procedure of the Agreement states: 10. DISPUTE SETTLEMENT PROCEDURES 10.1 It is agreed that all employees and La Trobe Melbourne have an interest in the proper application of the Agreement. Where any dispute arises under or as to the operation or application of this Agreement or the National Employment Standards (NES), or any other industrial dispute that arises to which La Trobe Melbourne is one of the parties the procedures set out in this Agreement will apply. 10.2 In the first instance an employee and/or their Representative and a representative of the employer will discuss the dispute and attempt to reach agreement. 10.3 Where a dispute is not resolved under sub-clause 10.2 (including where there is disagreement as to whether the dispute is capable of being dealt with under this procedure), the employee or their Representative and a relevant senior manager of the employer with authority to resolve the dispute will meet within 5 working days, unless agreed otherwise, and will attempt to resolve the matter within 5 working days of their first meeting. Any resolution will be in the form of a written agreement subject, if necessary, to ratification by either party. 10.4 Until the procedures described in this Clause have been exhausted, including those procedures below involving the FWC, the status quo that existed prior to the actions which gave rise to the dispute will be maintained and the parties will not change work, staffing or the organisation of work if such is the subject of a dispute, nor take any other action likely to exacerbate the dispute. Further, the employer will not terminate a staff member, or allow the termination of a staff member such as through the effluxion of time, where one of the issues in dispute relates to that termination. 10.5 Should the dispute not be resolved by the processes referred to above or if either party fails to engage in the processes referred to above, the matter may, at the election of either the NTEU or the employer be referred to the FWC for resolution. 10.6 The FWC may resolve the dispute by the process of conciliation and/or arbitration. The parties agree to be bound by and implement any order, decision or recommendation of the FWC. Where the FWC forms the view that the matter in dispute requires a mediator, conciliator or arbitrator with special expertise (e.g. Intellectual Property Dispute), it may appoint such a person with such specialist expertise to prepare a report and recommendation to the FWC, or to determine the dispute. 10.7 Nothing in this Clause prevents the parties from agreeing to refer an unresolved dispute to a person or body other than the FWC for resolution, in which case the parties agree to be bound by any recommendation to resolve the dispute made by the agreed person or body. 10.8 Where, as part of settling a dispute, the FWC (or other agreed arbitrator) forms the view that the Agreement has not been properly applied, and that a person bound by this Agreement has been consequently disadvantaged, it will advise the parties what actions it believes are necessary to ensure the disadvantage is remedied. The parties will implement those actions, or other actions agreed in writing in substitution for them. Similarly, the parties will implement any actions required as part of the resolution of a dispute achieved under this Clause. 10.9 A dispute formally commenced under Clause 42 of the La Trobe University International College Union Collective Agreement 2010 (LTUIC Agreement) but not concluded at the time at which this Agreement commences will continue to be dealt with in accordance with the relevant provisions that applied under the LTUIC Agreement. [14] In its dispute notification, the NTEU indicated that the dispute relates to clauses 2, 13, 14 and 15 of the Agreement. Specifically it said the dispute related to: ● Clause 14 of the Agreement in that it obliged Navitas to undertake an assessment in June 2015. The employer was required to assess the capacity to appoint fixed-term and on-going staff’ and further that Navitas ‘has the capacity to appoint fixed-term and on-going staff’. ● The assessment required to be conducted was not conducted in a robust and proper manner or not conducted at all or Navitas is failing to implement the outcome of the assessment. ● Navitas ‘is employing casual staff other than in accordance with the Agreement. Clauses 2 and 15.1 regulate the circumstances under which [Navitas] may engage casual staff…’ [15] The dispute is properly characterised as one that goes to the proper application of clause 14 of the Agreement and the use of casual employment given the provisions of clause 2 and 15 of the Agreement. [16] Taking into account the dispute as notified and the material lodged by the NTEU, I am satisfied that the dispute relates to whether Navitas has undertaken the task required by clause 14.1 of the Agreement and the related issue of the appointment of staff on a non-casual basis [17] These are matters that clearly arise under the Agreement. [18] I am therefore satisfied that I have jurisdiction pursuant to clause 10 of the Agreement and s.739 of the Act to deal with the dispute. [19] To avoid doubt I am satisfied that the dispute relates to both the FSDP and ELICOS programs delivered by Navitas. Whilst minimal material may have been put during the hearing in relation to FSDP, it has been part of the matrix of issues subject to the notification and conciliation. Further, it was a matter subject to evidence. Jurisdiction – relief sought [20] Navitas submits that the Commission has limited powers and, in settling the dispute, cannot exercise judicial power. It says that if what the NTEU seeks is for the Commission to ‘ascertain, declare or enforce existing rights’ then the Commission is being asked to exercise judicial power. 2 [21] Navitas says that the relief sought by NTEU 3 ‘amounts to a request for a declaration that the Respondent comply with a series of obligations which the NTEU believes will result in compliance with clause 14.1 and 14.2 of the Agreement…it is, de facto, a request for an order directing compliance with the Agreement.’ 4 [22] Further, Navitas submits that the draft determination proposed by the NTEU is ‘inconsistent with the proper construction of clause 14.1 as it seeks to re-write the clause and impose on the Respondent procedures and obligations that do not otherwise exist.’ 5 [23] The NTEU submits that it is not asking the Commission to exercise judicial powers but relies on the principles arising from the CFMEU v AIRC 6 (Private Arbitration Case) as providing the foundation for the Commission to determine the matter in dispute. The NTEU also relies on the decision in Waterside Workers Federation of Australia v JW Alexander Ltd 7 and says that the decision also found that: …the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other. [24] I have carefully considered the submissions of the NTEU and Navitas on this question. I am satisfied that, in settling this dispute, I am exercising a power of private arbitration pursuant to clause 10 of the Agreement. [25] In the Private Arbitration Case the High Court said 30. There is, however, a significant difference between agreed and arbitrated dispute settlement procedures. As already indicated, the Commission cannot, by arbitrated award, require the parties to submit to binding procedures for the determination of legal rights and liabilities under an award because Ch III of the Constitution commits power to make determinations of that kind exclusively to the courts. However, different considerations apply if the parties have agreed to submit disputes as to their legal rights and liabilities for resolution by a particular person or body and to accept the decision of that person as binding on them. 31. Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it. 32. To the extent that s 170MH of the IR Act operates in conjunction with an agreed dispute resolution procedure to authorise the Commission to make decisions as to the legal rights and liabilities of the parties to the Agreement, it merely authorises the Commission to exercise a power of private arbitration. And procedures for the resolution of disputes over the application of an agreement made by parties to an industrial situation to prevent that situation from developing into an industrial dispute are clearly procedures for maintaining that agreement. Parliament may legislate to authorise the Commission to participate in procedures of that kind. Accordingly, s 170MH of the IR Act is valid. [26] The exercise of my powers is, of course, limited to that given by the Agreement itself and by the Act. That power is granted by the dispute settlement procedure of the Agreement which is freely entered into by the parties to the Agreement. By its nature it is not the exercise of judicial power. [27] In ING Administration Pty Ltd v Jajoo, 8 in the minority decision, Acton SDP said: [72] Of course, the jurisdiction of the Commission as a private arbitrator under a dispute settlement procedure in a certified agreement is also subject to any limitations in the agreement conferring the power on the Commission. This was made clear by a Full Bench of the Commission in Charles Sturt University v National Tertiary Education Union 9 the Full Bench of the Commission said: [10] The jurisdiction of the Commission, as a creature of statute, is limited to the jurisdiction conferred on it by the Parliament. The Parliament has authorised the Commission to accept appointment as a private arbitrator for the resolution of disputes over the application of certified agreements (s.170LW). When the Commission acts as private arbitrator under the dispute settlement procedure in a certified agreement it does so pursuant s.89(a) and an approval given pursuant to s.170LW of the Act [ CFMEU v AIRC [2001] HCA 16 ; (2001) 203 CLR 645 , para [39]]. In its capacity as private arbitrator, the jurisdiction of the Commission is limited to disputes over the application of the agreement – a limitation arising from the terms of s.170LW. However, the jurisdiction and power of the Commission as private arbitrator under a dispute settlement procedure is also subject to any limitations in the agreement conferring power on the Commission [ CEPU v Telstra Corporation (2003) 128 IR 385 (Giudice J, Harrison SDP and Simmonds C)]. [28] There is nothing in the dispute settling procedure or elsewhere in the Agreement that suggests I cannot deal with the matter before me. The relief granted (if any) will be cognisant of the limitations placed on any determination arising out of my consideration by the Agreement itself and the Act. Submissions National Tertiary Education Industry Union [29] The NTEU says that the dispute relates to both the limitations the Agreement places on the use of casual employees and the requirement of clause 14 with respect to fixed-term and on-going staff (collectively non-casual staff). Casual employment under the Agreement [30] The NTEU submits that the words of clause 15 must be given their ordinary meaning. When this is done it submits that it is clear that casual employment can only be used where there is: ● An identified need; ● To perform work conditional on the availability of work; and ● The work is of a short-term or ad-hoc nature. [31] It submits that where the work is not conditional on availability or not short-term the employer cannot, despite this, identify a need to employ staff on a casual basis. [32] The NTEU submits that, for the work to be casual, the inherent character of the work must be short term or ad-hoc. It says that guidance as to what period of time might be considered ‘short-term’ in the context of the Agreement can be taken from clause 14.2 of the Agreement which specifies that the minimum length of fixed-term contracts is 22 weeks. On this basis the NTEU submits that ‘short-term’ can be considered any period less than 22 weeks. [33] The NTEU submits that ad-hoc work contemplated under clause 15 should be seen as equating to emergency teaching. [34] It further submits that ‘conditional upon the availability of work’ should be accepted as meaning that a person employed under such arrangements is not required to turn up to work each day without being told that work was available and that such a contract could not guarantee a particular level of work. 10 [35] Taking these considerations into account the NTEU says that the teaching of classes for a ‘set teaching period at rostered times, each day or days for between 5 and 12 weeks, often on rolling cycles is employment not conditional on the availability of work.’ 11 Job Security [36] The NTEU submits that clause 14 establishes a framework where Navitas is can appoint non-casual staff and how it is to appoint non-casual staff. [37] The NTEU says that clause 14 should be given its ordinary meaning. After considering dictionary definitions of the meaning of ‘assess’ and ‘capacity’ it submits that cause 14.1 requires an ‘ official estimate of the power, ability or possibility of La Trobe Melbourne to appoint non-casual staff.’ 12 [38] The NTEU submits that clause 14 anticipates the conduct of an appropriate assessment but Navitas has failed in this task. It says that the assessment requires: (i) A summary of classes and the student cohort over the last three years; (ii) A reasoned set of projections with respect to student/class numbers for the coming 12 months; and (iii) A consideration of operational factors which ‘may impact on the requirement for staff to teach or perform other duties’. 13 [39] It submits that if there are no operational factors then the process of (i) and (ii) is a simple arithmetical process. Where there are factors under (iii) it says that the step ‘may be ameliorated in direct proportion to those factors.’ 14 [40] Having resolved the number of non-casual staff to be appointed, the NTEU submits that clause 14.2 of the Agreement requires that the positions be advertised internally. [41] The NTEU submits that Navitas has provided no basis for any of its predictions in the fall in student enrolments of the level estimated other than the level of decline in some semesters of 2015. It submits that there is no document evidencing the basis of the calculation of the anticipated decline in enrolments. [42] The NTEU submits that, while there is documentary evidence of the anticipated decline in enrolments in 2016, there is no material that substantiates the basis for the level of decline in either FSDP or ELICOS. [43] Evidence for the NTEU was given by Mr Ramesh Presser. Mr Presser is the NTEU Branch President of the NAVITAS Branch of the union and the ELICOS delegate. [44] Mr Josh Cullinan also gave evidence of the NTEU. He is the Senior Industrial Officer in the Victorian Division of the NTEU. La Trobe Melbourne [45] Navitas disputes the interpretation of clause 14 put forward by the NTEU. It says that clause 14 should be construed in accordance with its ordinary language. It says that clause 14.1 and 14.2 are unambiguous and that Navitas has complied with its obligations pursuant to the clause. [46] Further, Navitas submits that the NTEU’s contention that ‘clause 14 is intended to meld with the definition of casual employment at Clause 2 and Clause 15 of the Agreement’ is unclear. Whether it means that clause 2, 14 and 15 should be read together in some way or that clause 2 and 15 inform the construction of clause 14 or that clause 2, 14 and 15 establish the framework within which non-casual staff may be appointed is not evident. [47] It submits that the grammatical interpretation sought to be given to the clause by the NTEU is misleading and incomplete. It says that, in giving a grammatical construction to the clause, the Commission should strive for a meaning which most closely accords with industrial common sense. Giving the words their ordinary and usual meaning leads to a sensible construction. It says that the clause places an obligation on Navitas to measure or evaluate its ability or capability to appoint fixed-term or on-going staff. Having undertaken that exercise it must then determine if it has the ability or means to appoint such staff. Then, and only then, is the obligation to advertise positions internally enlivened. [48] Navitas says that its assessment of its capacity to appoint staff is more complex than an arithmetic exercise. It submits that there are an ‘enormous range of complex factors which must be taken into account, and assessed and balanced when determining the Respondent’s staffing needs.’ [49] It submits that, while the elements in clause 14.1(b) are mandatory considerations, they are not exhaustive. It would be non-sensical to suggest that Navitas should not have regard to its legal and regulatory framework, its obligations to run a profitable business, the quality of teachers, physical resources, student needs and so on. Further, it says that the weight to be given to the mandatory considerations in clause 14.1(b) is a matter for Navitas. It says none is a primary consideration and none are subordinate. It says that no factor has primacy and the obligation is to take them all into account. [50] Navitas says that clause 14.1(b)(iii) requires Navitas to have regard to operational factors. The decision in Lamb v Bunnings 15 provides a framework to ‘operation factors’. In that decision the Full Bench observed: Operational requirements involve more than mere preferences of a perceived advantage. In our view an operational requirement is something that is considered to be of benefit to the business. 16 [51] Navitas submits that, having reached its conclusion after taking into account the required considerations, such a decision should be allowed to stand. It is not necessary that the NTEU agree with its decision. [52] Navitas submits that its capacity to appoint employees of a particular character involves significant judgement and ‘elements of discretion in the nature of managerial prerogative.’ If the exercise of managerial prerogative is not prevented by statute or an industrial instrument the Commission should be slow to intervene. 17 While the exercise of managerial prerogative may be subject to constraints but these do no more than frame the limits within which managerial prerogative can be lawfully exercised. [53] Navitas submits that clause 15 does not define casual employment but rather prescribes when Navitas may engage a casual employee. Casual employment is defined in clause 2 of the Agreement as ‘employment of an Employee that is conditional on the availability of work and is short-term and/or ad-hoc in nature…’ It submits that clause 15 allows Navitas to engage a casual employee where it has an identified need for a person to perform the kind of work described as casual employment. [54] Navitas relies on the evidence of Mr Tony Cranshaw who is the Director and Principal Navitas. The evidence [55] Mr Ramesh Presser gave evidence for the NTEU. His evidence is that many casual staff at Navitas approach him in his role as NTEU Branch President and ELICOS delegate and that one of the frustrations expressed by those staff is that they do not know if they will be on the roster for the next teaching period. [56] His evidence is that in his experience, over the last three years, there has always been some casual staff rostered to teach a full teaching period of classes. [57] Mr Presser does not teach FSDP and agreed that FSDP is quite different to ELICOS 18 and that FSDP teachers are employed to teach particular subjects. [58] Mr Presser’s evidence is that there are a total of 24.4 equivalent full-time staff (30 actual staff) teaching in ELICOS who are engaged on a casual basis. He says he asked Mr Cullinan from the NTEU to look at the ELICOS timetable for the 2013-2015 and highlight the non-casual staff on the timetable (such that, the casual staff are not highlighted). He asked for the same exercise to be undertaken with respect to FSDP timetable. His evidence is that each of these shows that ‘there were always casual staff rostered to teach a timetable of classes in each ELICOS teaching period between 2013 and 2015.’ 19 [59] Mr Presser gave evidence as to general background and factors he understands effect ELICOS students and their progression. He agreed that, knowing the number of students who commence an ELICOS program tells you nothing of how long it will take them to complete the course. 20 [60] Mr Presser also gave evidence as to teaching staff, that some are on-going and others casual; that some work part-time and others full-time; that some have other jobs or responsibilities outside the workplace which places constraints on when they can work and others have personal preferences as to when they work. [61] With respect to ELICOS, Mr Presser’s evidence is that the gap in workload created by part-time on-going staff is why casual employees have, by and large, been employed. 21 He also agreed that not all ELICOS teachers teach at all levels 22 and that some are casual employees by choice. 23 [62] Mr Presser agreed that timetables for ELICOS classes come out on the Thursday prior to the commencement of the coming five-week term 24 and said that the timetable may change but not substantially during the first week of term. 25 [63] Mr Presser agreed in his evidence that there are fewer full-time employees in FSDP than in ELICOS 26 but does not agree that this is because of the specialist nature of the courses taught. 27 [64] Mr Presser agreed that some factors affecting the number of classes conducted in a term includes the number of classrooms, the availability of technology, the availability of staff, student demand 28 , circumstances in source countries 29 and decisions of the Australian Government. 30 [65] Mr Cullinan gave evidence that the sometimes there would be more casual staff then others but that the analysis he undertook at Mr Presser’s request does not indicate why casual staff might be required at any time. 31 The table he developed 32 does no more than indicate the growth in [the number] of classes over the year. 33 [66] Mr Cullinan further gave evidence that, whilst he was aware that Navitas was anticipating a 19% decline in enrolments the NTEU considered this figure ‘preposterous’. 34 He said that the NTEU ‘believed that the projections for the foreseeable future had to be founded in something and… [it was] not described in any meaningful way…[what] was responsible for a 19 per cent decline.’ For this reason he says, the NTEU undertook an analysis based on a 5 per cent decline that he says had been repeatedly communicated to it. 35 [67] Mr Cullinan agreed that the Navitas forecasts for ELICOS terms 1 and 2 in 2016 were accurate. 36 [68] Mr Cranshaw gave evidence of material generated for the October review that he says Navitas is obliged to do under the October review timeframe in the Agreement. His evidence is that the documents were put together under his leadership but done by the relevant Directors of ELICOS and FSDP. [69] Mr Cranshaw said that the forecasts for ELICOS student numbers come from ‘packaged offers’, discussions with admissions staff, and consultation with La Trobe International who do some recruitment of students. 37 [70] FSDP forecasts are based on forward enrolment reports. 38 [71] Mr Cranshaw said that to look at average numbers of students over the previous three years he considers ‘student enrolments in both FSDP and ELICOS’ which assists him in understanding the pattern of enrolment. The data he relied on is attached to his statement. 39 Mr Cranshaw’s evidence is that the data shows him repeating patterns of dips in enrolments in both FSDP and ELICOS across any year at particular points in the year. [72] With respect to forecasting future student numbers, Mr Cranshaw said that he considers ‘historical trends, external market forces, internal market forces, recruitment processes, competitor analysis, marketing programs by the university and Navitas, previous performance of students from various source countries, etc’. 40 [73] Of this he said that previous enrolments can be a useful starting point but are no guarantee of future enrolments. There are many factors that affect recruitment of students; marketing and brand image of La Trobe University’s impact on Navitas; external market forces are outside the control of Navitas; many internal market forces are not within the control of Navitas and the reputation of La Trobe University is highly important. [74] Mr Cranshaw’s evidence is that a number of the factors at play in predicting future student numbers are also operational matters that it must take into account. In addition his evidence is that other operational factors include physical resourcing (classrooms and room sizes); industrial regulation (eg class sizes, hours of operation, teaching hours); best practice (eg limiting the number of teachers an ELICOS student may have) and teacher availability and budget allocations. [75] Mr Cranshaw’s evidence is that, as a result of the assessment being undertaken in October 2015, it was determined that a further five full-time equivalent fixed-term roles could be filled in FSDP. He says that this would not be five full-time positions but would be spread across a number of part-time positions. [76] In ELICOS he said that it was assessed that there would be a 19% drop in enrolments on 2015 figures in the first half of 2016 and a 14% drop in the second half of 2016. In noting these figures, his evidence is that enrolments in terms 5 and 6 would not support the current fixed-term and on-going teachers. For this reason he says that Navitas was not able to appoint any further ELICOS staff into fixed-term positions for 2016. [77] In cross-examination Mr Cranshaw gave evidence that the latest estimate (LE) figures referenced in his enrolment data is developed by Professor John Wood who is the CEO of the University pathways Division of Navitas. 41 Professor Wood and his team are the experts on the latest estimate. 42 Mr Cranshaw gave evidence that Professor Wood had not been approached to give evidence in the hearing of the matter. [78] Mr Cranshaw also gave evidence that once all of the factors identified in his evidence are taken into account he has a reasonable projection of student numbers for the next trimester (FSDP teaching period) 43 but only for international students. He does not get a projection beyond a trimester which is why the estimates are done every trimester. 44 [79] Mr Cranshaw’s evidence is that if he had exhausted his physical capacity (classrooms) he would look externally to get access to additional rooms although the capacity to do so may change. 45 He also said that in June 2015 he did not consider the need to alter any class times or offer classes outside ordinary hours, 46 he did not have a document to show how he had taken into account the limitations on teaching hours in the Agreement, 47 but he did take this and the limitation on teaching hours per day into account because they are both matters taken into account in staffing. 48 [80] Mr Cranshaw said that, in timetabling and allocating staff to classes he takes into account the requirements of the Agreement including the limitation on the use of casual employees. [81] In his witness statement Mr Cranshaw said that if he had certainty that there would be additional classes and the capacity would extend beyond 22 weeks Navitas would advertise internally to fill positions on an on-going or fixed-term basis 49 Mr Cranshaw agreed that the provisions of clause 14 are not based on there being absolute certainty in student numbers. Consideration [82] The principals relevant to the interpretation of agreements were most recently considered in the decision of the Full Bench of the Commission in The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited. 50 [83] I am satisfied that, in including a job security clause in the agreement the intention of the parties was to minimise what is generally known as ‘insecure’ or casual employment. The words of clause 14.1(a) support such a conclusion – the clause is directed to the appointment of fixed-term and on-going staff. Clause 14 of the Agreement [84] There is no ambiguity in the words of clause 14.1. It requires Navitas to assess its capacity to appoint fixed-term or on-going staff. There is nothing unduly complex in the phrase ‘assess the capacity’. It is, in this respect, not necessary to search for ambiguity when none exists. [85] Clause 14 provides guidance, through the matters to be considered, as to what is intended by the phrase ‘assess the capacity’. It is not always necessary to reach for a dictionary and care should be taken not to make a simple phrase into something more complex and difficult to understand in the process. [86] Having said this, I do not accept the meaning given to the words ‘assess the capacity’ by the NTEU. It is cumbersome and provides no clarity. [87] The Macquarie Dictionary 51 provides the following definitions: Assess verb ( t ) to estimate officially the value of (property, income, etc.) as a basis for taxation: the property was assessed at two million dollars. to fix or determine the amount of (damages, a tax, a fine, etc.). to impose a tax or other charge on. to measure or evaluate. Capacity: noun ( plural capacities) the power of receiving or containing. cubic contents; volume. power of receiving impressions, knowledge, etc.; mental ability… power, ability, or possibility of doing something: capacity for self-protection … quality of being susceptible to certain treatment. position; function; relation: in the capacity of legal adviser… [88] Whilst I take no issue with the definition of capacity preferred by the NTEU (power, ability, or possibility) I do not think that its preferred definition of ‘assess’ is the correct one in the context of the Agreement. I consider that the meaning that should be given to assess in this context is ‘to measure or evaluate.’ What is required of the clause is not some official measure but to use the criteria to come to some view of future actions. [89] Using these definitions ‘assess the capacity’ must be accepted as nothing more complex than an ‘evaluation of the ability’ to appoint staff on a fixed-term or on-going basis. [90] This, of course, does not occur in a vacuum but must be done taking into account three matters: (i) Average number of students for a particular course over the last three years; (ii) The anticipated number of students including projections over the coming 12 months; and (iii) Operational factors that impact on staffing. [91] I would add that the requirement is not to consider ‘operational factors which may impact on the requirement for staff to teach or perform other duties’ but operational factors that impact on staffing. There is no basis to place some narrower limit on the operation of clause 14.1(b)(iii) than the words themselves. [92] I agree with the submissions of the NTEU that, having made such an assessment, if the result is that further non-casual staff should be appointed the Agreement requires that these positions be advertised internally. [93] Given this finding, the question to be answered of whether Navitas has met its obligations under clause 14 requires an evaluation of the evidence given before the Commission as to those matters considered by Navitas. A finding as to this will inform any relief granted. The interaction of clause 14 with casual employment clauses [94] Clause 2 of the Agreement provides a definition of ‘casual employment’. The effective words of that definition seem to be that the employment: (i) is conditional upon availability of work and (ii) is short-term and/or ad hoc in nature. [95] Apart from providing some general guidance within the Agreement it is singularly uncontroversial. [96] Clause 15 does no more than set out the terms and conditions of employment where a casual employee is engaged by Navitas. The employment arrangements under the Agreement are that employment is casual, fixed-term or on-going. If the work does not meet the definition of casual employment then the engagement of such an employee pursuant to clause 15 is problematic as clause 15 clearly builds on the definition of a casual employee in clause 2. For an employee to be afforded the terms and conditions in clause 15 they must meet the definition of casual employment contained in the Agreement. [97] The Agreement must be read as a whole and in this respect the submission of the NTEU that ‘short-term’ should be read in the context of the minimum engagement for a fixed-term employee (of 22 weeks) has attraction. Otherwise it seems to me there is no other connection between clauses 2 and 15 and clause 14 of the Agreement. This is not to suggest that the definition of casual employment is not a relevant matter in the resolution of the dispute before me. The merits of the claim [98] The matter for consideration is whether Navitas has undertaken the analysis required under clause 14 of the Agreement, in particular whether the obligation imposed by clause 14.1 has been complied with. [99] On the basis of the evidence before me I am not satisfied that the obligation has been met. My reasons are set out below. [100] Mr Cranshaw’s evidence as to the steps taken by Navitas with respect to clause 14 does not convince me that the type of analysis necessary to make a proper determination under that clause has been undertaken. If it has this information it was not clearly put before the Commission and apparently not been conveyed to the NTEU. The material relied on by Mr Cranshaw was short on detail or did not contain the information which would appear to have been necessary for the exercise he says was undertaken to withstand scrutiny. [101] I do not, in finding this, suggest that Mr Cranshaw deliberately misled the Commission but the evidence presented does not take me to a point where I could be satisfied that on that basis he could have reached a sound decision. [102] The exercise under clause 14 is not a ‘back of an envelope’ exercise. It requires proper consideration and explanation as to what matters were taken into account and how and, if they haven’t been considered, why they were not thought to require consideration. It is not enough to say that a matter was taken into account – an explanation must be given as to how this occurred. [103] I accept that the exercise is not a simple arithmetical one. It is not as simple as ‘x students = y teachers’. Skill level and subject area expertise are relevant considerations. Navitas runs a business and there are management judgements that it is required to make. It must however, be able to explain what it has considered, why it considers those matters critical (and perhaps not others) and how they affect the final outcome. In doing so it must comply with the obligations placed on it through the Agreement and elsewhere. [104] The exercise contemplated by clause 14 is also not one where Navitas is required to reach agreement with the NTEU on the outcome – but it must be able to demonstrate to the NTEU and its own employees that it has met the requirements clearly spelt out in the Agreement. [105] I am also satisfied that the exercise anticipated by clause 14 needs to be carried out separately for each of the FSDP and ELICOS programs. These are two distinct programs, there is no crossover of teachers from one to the other and the factors to be considered in forecasting will vary. The average number of students over the last three years [106] To undertake the exercise required of clause 14, Navitas should be able to clearly show the number of students it had enrolled in each program over the preceding three years. I would be astounded if it did not have this data and could not provide it in a clear, unambiguous manner. Anticipated students in the foreseeable future [107] Mr Cranshaw’s evidence is that, at least in FSDP, it can only forecast, with confidence, one trimester ahead. [108] It seems that estimating enrolments in ELICOS is perhaps more difficult although I note that Navitas relies on a forecast reduction in student numbers of 19% in the first half of 2016 compared to 2015 and 14% for the second half of the year. The basis of these figures is not clear to me although I do accept that they may be based on patterns of enrolment in previous years. [109] There is no reason Navitas cannot and should not share this information with the NTEU. To the extent that it may be confidential it would be reasonable, in my view, for Navitas to seek a confidentiality undertaking from the NTEU. Should the NTEU not be willing or able to provide such an undertaking it will need to accept that there are aspects of the analysis it will not be privy to and must accept what it is given on the matter. [110] Whilst I appreciate the difficulties inherent in attempting to estimate student numbers for a full future 12 month period the clause requires that ‘reasonable projections’ be provided. It would not be unreasonable for Navitas to take a cautious approach to such assessments but, again, it must have some basis for the level of caution it seeks to impose. Other operational matters that impact on staffing requirements [111] This criterion does not provide management discretion at large. There must be some relationship between the matter considered and staffing levels. [112] Further, and more importantly, there must be an ability to justify why or how the matters considered impact on the ability to appoint staff on a fixed-term of on-going basis. It is not my intention to try and set out some list of what is or is not a reasonable consideration under this heading. There are a substantial range of matters that may be relevant and these may well change from time to time. [113] The matter that I will mention however is the need to ensure the appropriate balance of staff given the subjects to be delivered in FSDP. There is no point appointing 10 staff to deliver in engineering if there are not that many students or the subject is only delivered in one trimester. At the same time Navitas needs to take into account the current time fractions for its existing staff. The obligations in respect of working time, teaching hours and so on specified in the Agreement must also be taken into account. Outcome [114] Having decided the required staffing levels, these must again be assessed against the requirements of the Agreement to ensure the broader requirements therein have been met, including the use of casual employment (given its definition and the provisions of clause 15.1). [115] Any resulting non-casual positions must then be dealt with in accordance with clause 14.2 and clause 13. Remedy [116] The NTEU has sought a determination in the following form: 1. The Commission determines as a step along the way of resolving the dispute that the Agreement properly construed requires Navitas Bundoora to: Develop a comprehensive summary of the students enrolled and classes taught in each teaching period of all programs over the preceding three years; Develop an instrument to identify reasonable projections for the anticipated number of students for the next 12 months; Apply the instrument to identify a reasonable projection for the anticipated number of students for the next 12 months; Identify any operational factors which might impact on staffing requirements; Determine the number of roles required to staff Navitas Bundoora, including its programs, over the foreseeable future including at least the next 12 months; Determine the number of roles, and the period of the roles during at least the next 12 months, that are not currently filled by non-casual staff and that are required to staff Navitas Bundoora, including its programs, identified at (e) above; For all roles identified at (f) of 22 weeks duration or greater, advertise the roles internally in the first instance in accordance with clauses 14.2 and 13 of the Agreement. 2. The Commission Orders that Navitas Bundoora undertake steps (a) to (d) within 14 days of this Order and provide that information to NTEU within 15 days of this Order. 3. The Commission Orders that Navitas Bundoora consult with NTEU about steps (e) to (f) for a period of 14 days after it has complied with the Order at (2). 4. The Commission Orders that Navitas Bundoora undertake steps (e) to (g) within 42 days of this Order. [117] I am not convinced the determination sought by the NTEU is appropriate. [118] In effect, the NTEU put forward its proposal not as a ‘step along the way’ in the sense expressed in Re Cram 52 or the Geelong Grammar School Case but as the final determination of the number of staff that Navitas should appoint pursuant to the exercise at clause 14 of the Agreement. This much is clear from 1(g) and (f) in its draft determination. The ‘step along the way’ referred to in these authorities referred to by the NTEU is a process of the Commission reaching some view as a step to arriving at an ultimate conclusion with respect to the determination of future rights and obligations. The NTEU does not explain how its draft determination would assist the Commission in undertaking its role rather than resulting in a declaration of the number of positions Navitas is required to create and fill on a non-casual basis. [119] The purpose of the exercise of the Commissions powers under a dispute settling procedure is to put the parties into the position they would have occupied had the Agreement been properly applied. I am not satisfied for the reasons given that Navitas has met its obligations under the Agreement. No evidence was put to me that the relevant considerations have been undertaken. Whilst Mr Cranshaw gave evidence of the matters he would or could consider, he has failed to demonstrate how he arrived at the student enrolment projections or how he took operational considerations into account and what the effect of this was. [120] For Navitas to fulfil its obligations under the Agreement I consider that it reasonable that it undertake the tasks prescribed by clause 14.1(b) of the Agreement in a structured, clear and systematic manner, taking into account the matters set out in this decision. As part of this exercise it must explain how each of clauses 14.1(b)(i), (ii) and (iii) has been assessed and the overall impact each has had and that it must provide this information to the NTEU. [121] It is appropriate that I determine that, where any non-casual staff position is created as a result of the consideration above it be filled in accordance with requirements of clause 14.2 of the Agreement. [122] Of course, what is not resolved is what Navitas should do if it requires staff that it believes it cannot employ on a non-casual basis but the requirement does not fit within the Agreement definition of casual staff. [123] Whether staff are properly engaged as casual employees is a matter that must be determined taking into account the particular circumstances that led to the engagement and the engagement itself. It is an assessment that must be regularly undertaken. If a person is not properly engaged as a casual employee because the work does not meet the definition of a casual employee then the obligation is on Navitas to rectify the situation and ensure the employee is engaged in accordance with the Agreement. There is no half way house in this respect. If the employee is not a casual employee as defined in the Agreement then the employment must be under other provisions of the Agreement. [124] I do not consider it appropriate to place a time limit on when the task pursuant to clause 14 should be done but indicate, at least for FSDP that it would be appropriate for it to be settled prior to the commencement of the next trimester. Generally however I consider that Navitas needs to undertake the required work and meet with the NTEU with respect to that work expeditiously. [125] No determination separate to that contained herein will be issued. COMMISSIONER Appearances : J Cullinan for the applicant. J Forbes for the respondent. Hearing details: 2016. Melbourne: 19 April Final written submissions: Applicant, 29 April 2016 and 6 May 2016 Respondent, 4 May 2016 1 A fuller description of FSDP and ELICOS courses can be found in exhibit Navitas1, paragraphs 10, 15-16 and 18-25. 2 Waterside Workers Federation of Australia v JW Alexander Ltd [1918] HCA 56 ; (1918) 25 CLR 434 at 463. 3 NTEU outline of submissions, Appendix A – draft determination. 4 Navitas submissions, paragraph 48. 5 Navitas submissions, paragraph 50. 6 Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16 , [26]. 7 [1918] HCA 56 ; (1918) 25 CLR 434 at 463 8 PR974301 (per Watson VP, Acton SDP and Cargill C). 9 PR96394, 5 October 2005 (per Lawler VP, O’Callaghan SDP and Harrison C) cited in ING [72]. 10 JE Ross v Court Recording Services (NSW) Pty Ltd, 27 August 1999 Print R8524, [46] – [47]. 11 NTEU submission, paragraph 97. 12 NTEU submission, paragraph 109. 13 NTEU submission, paragraph 135. 14 NTEU submission, paragraph 136. 15 [2013] FWCFB 2698 . 16 [2013] FWCFB 2698 , [22]. 17 Australian Federated Union of Locomotive Employees v State Rail Authority of New South Wales (XPT Case) (1984) 295 CAR 188 at 191. 18 Transcript PN255. 19 Exhibit NTEU1, paragraphs 30-32 and annexure RP-05 and RP-06. 20 Transcript PN195. 21 Transcript PN190. 22 Transcript PN218. 23 Transcript PN223. 24 Transcript PN202. 25 Transcript PN210 and 215. 26 Transcript PN265. 27 Transcript PN266. 28 Transcript PN284-7. 29 Transcript PN296. 30 Transcript PN307. 31 Transcript PN399. 32 See exhibit A1, annexure RP-6. 33 Transcript PN402. 34 Transcript PN434. 35 Transcript PN435. 36 Transcript PN436. 37 Transcript PN484. 38 Transcript PN485. 39 Exhibit Navitas1, paragraph 29 and annexure TC8. Annexure TC8 is a confidential document and the contents of the document have not been disclosed in this decision. 40 Exhibit Navitas1, paragraph 33. 41 Transcript PN593. 42 Transcript PN609. 43 Transcript PN629. 44 Transcript PN634. 45 Transcript PN639. 46 Transcript PN645-6. 47 Transcript PN655. 48 Transcript PN657. 49 Exhibit Navitas1, paragraph 48(e) and 54(d). 50 [2014] FWCFB 747 . 51 Macquarie Dictionary on-line edition. 52 Re Cram; Ex parte N.S.W. Colliery Proprietors’ Association Ltd [1987] HCA 28 ; (1987) 163 CLR 117 16 July 1987. Printed by authority of the Commonwealth Government Printer <Price code C, PR580589>