University Fails in Attempt to Dodge Legal Obligations
9 April 2003
In a decision handed down today, the Industrial Relations Commission vindicated the ongoing attempts of the NTEU to ensure employers abide by their legal obligations.
The appeal decision, by a Commission Full Bench, determined that the wrongful appointment of Dr Rodwell, a lecturer at the University of Wollongong, on a fixed term rather than a permanent basis, was a matter the Commission could remedy under the dispute settling procedures of the certified agreement, even after the lecturer’s employment had ceased – that is, the University could not simply breach the agreement and then refuse to do anything about it.
The Commission’s decision was made after the Federal Court had already ruled that the lecturer’s appointment as fixed term rather than continuing was unlawful.
Ted Murphy, NTEU Assistant Secretary, commented:
“This is an important decision for the NTEU and for the union movement. It shows that employers cannot get away with simply breaching the terms of their agreements and then refusing to remedy those breaches.”
“The employers’ practice of violating the provisions of their enterprise agreements with impunity because they believe the Commission has no power to do anything about it is now severely constrained.”
“The unfortunate part is that employers in higher education tried to do this in the first place. Most people would feel an obligation to undo an action that the Federal Court had found to be illegal.”
“Sadly, the same cannot be said for our universities. It seems that it takes a Federal Court and then a Commission Full Bench decision to get our university employers to recognise their obligations – not to mention their moral responsibilities.”
“We expect a just outcome and for Dr Rodwell to be reinstated when the matter is finally determined.”
Background
Dr Rodwell was employed as a lecturer by the University of Wollongong in 2001 on a one year contract.
During 2001, NTEU successfully prosecuted the University for employing him on a fixed term contract contrary to its Agreement with the NTEU. The Federal Court found that Dr Rodwell should have been employed on an ongoing basis and fined the University $4000. Nevertheless, the University refused NTEU requests that it should make good the breach by offering Dr Rodwell ongoing employment.
The Union notified a dispute about this to the Australian Industrial Relations Commission, but Commission Lawson at first instance found he had no jurisdiction to deal with the issues in dispute. A Full Bench of the Commission has now quashed that decision and referred the merits of the dispute for determination by Senior Deputy President Harrison.