University academic not entitled to ongoing position

Cases

University academic not entitled to ongoing position

An academic was not entitled to 'continuing appointment status' as he didn't fulfil the criteria in a university enterprise agreement, a court has ruled.

WantToReadMore

Get unlimited access to all of our content.

An academic was not entitled to 'continuing appointment status' as he didn't meet the criteria in a university enterprise agreement, a court has ruled.

The Federal Circuit Court found Ross Gulliver had not met the minimum three-year employment period required to make him eligible for conversion.

Background


The dispute related to Curtin University of Technology's failure to convert Mr Gulliver to an ongoing position.

The key issue was whether Mr Gulliver was entitled to the benefit of clause 15.5.2 of the Curtin University Academic, Professional and General Staff Enterprise Agreement 2012-2016, as required by s341(1)(a) of the FW Act, and that he therefore had a workplace right for the purposes of s341(1)(a) of the FW Act.

The relevant clause stated that:

Where a staff member has been engaged on two or more consecutive fixed term appointments in the same faculty or area over a period of three or more years, they will be eligible to apply for, and will be granted, continuing appointment status, provided that the staff member:
a) is undertaking work of a continuing nature
b) was appointed through a merit selection process for at least one of the Fixed Term Appointments; and
c) is not the subject of an unsatisfactory work performance process.

Arguments


The university submitted that Mr Gulliver had been informed in writing that his application for conversion could not be approved as he did not meet the requirements for conversion under clause 15.5.2 of the agreement.

As such, it denied that Mr Gulliver could be, or was, exercising a 'workplace right' under s341(1)(a) of the FW Act.

In the absence of a 'workplace right', it said the court had no jurisdiction to hear Mr Gulliver's claim.

Mr Gulliver alleged contravention of a general protection under the FW Act.

Case law


The court referred to previous decisions to assist in making its decision.

In Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768; (2000) 104 FCR 440; (2000) 103 IR 153; (2000) 49 AILR 4-366 (“Burnie”) the Full Court of the Federal Court of Australia was required to determine whether s298L(1)(h) of the Workplace Relations Act 1996 (Cth) (“WR Act”) was concerned only with a present, rather than prospective, entitlement to the benefit of an industrial instrument or order. Burnie dealt with precisely the same phrase at issue in this case, namely the words “is entitled to the benefit of”.

The Full Court ruled that the  “ordinary and natural meaning” of the phrase “is entitled to the benefit of” in s298L(1)(h) of the WR Act was that “when the proscribed conduct occurs, the person concerned has, or enjoys, a present or existing legal entitlement to the benefit of an industrial instrument or order”, and added that the “benefit might relate to the proposed employment or might have resulted from prior employment, but at the time of the proscribed conduct it must be a benefit to which the person concerned is entitled”:

Ruling


In this case, Judge Antoni Lucev ruled that: "The words 'is entitled to the benefit of' under s341(1)(a) of the FW Act are crucial to the outcome of these proceedings. It was those words which were interpreted in Burnie. Burnie remains good law, binding on this court, unless it is distinguishable or considered to be plainly wrong."

Judge Lucev found "there is currently no binding authority to Burnie, or which indicates that the interpretation of the revelant words in Burnie is wrong".

The court concluded that Mr Gulliver was not entitled to the benefit of cl.15.5.2 of the agreement and therefore did not have a workplace right for the purposes of s341(1)(a) of the FW Act at any material time.

Gulliver v Curtin University Of Technology [2017] FCCA 2822 (20 November 2017)
Post details