National Tertiary Education Industry Union v Swinburne University of Technology (No 2) [2015] FCA 1080

National Tertiary Education Industry Union v Swinburne University of Technology (No 2) [2015] FCA 1080

Swinburne contravened s 340(1)(a)(i) because, through the March 2013 communications and the Fair Work Commission application, it threatened to diminish the security and continuation of employment of Swinburne College teaching staff and senior educators by transferring courses to SCPL, with possible redundancy, termination or non-renewal, for reasons including a substantive and operative reason that those employees were entitled to the benefit of the TAFE MBA. The internal proposals and planning documents evidenced the prohibited reason but were not themselves threats because they were not communicated to the affected staff. Considering the seriousness of the planned conduct, the seniority...

Jurisdiction
Australia
Judgment Date
08 October 2015
Procedural Posture
Fair Work Act Civil Penalty Proceeding / Penalty Following Settlement and Admitted Single Contravention of S 340(1)(a)(i) of the Fair Work Act 2009 (cth)
Outcome
Contravention declared; first respondent ordered to pay $14,000 penalty into consolidated revenue; proceeding otherwise dismissed against first respondent and dismissed against second respondent.
Legal Topics
['general Protections' 'adverse Action' 'workplace Rights' 'threatened Prejudicial Alteration of Employment Position' 'pecuniary Penalties' 'industrial Instruments' 'transfer of Business']
['industrial Law' 'employment Law'] ['general Protections' 'adverse Action' 'workplace Rights' 'threatened Prejudicial Alteration of Employment Position' 'pecuniary Penalties' 'industrial Instruments' 'transfer of Business']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Fair Work Act Civil Penalty Proceeding / Penalty Following Settlement and Admitted Single Contravention of S 340(1)(a)(i) of the Fair Work Act 2009 (cth)

Legal Issues

  1. 1 ['Whether Swinburne contravened s 340(1)(a)(i) of the Fair Work Act 2009 (Cth) by threatening to take adverse action against Swinburne College teaching staff and senior educators for reasons including their entitlement to the benefit of the TAFE MBA.' 'What conduct constituted communication of the threat to take adverse action.' 'What pecuniary penalty was appropriate for the admitted contravention.' 'Whether the penalty should be paid to the NTEU or into consolidated revenue.']

Ratio Decidendi

Swinburne contravened s 340(1)(a)(i) because, through the March 2013 communications and the Fair Work Commission application, it threatened to diminish the security and continuation of employment of Swinburne College teaching staff and senior educators by transferring courses to SCPL, with possible redundancy, termination or non-renewal, for reasons including a substantive and operative reason that those employees were entitled to the benefit of the TAFE MBA. The internal proposals and planning documents evidenced the prohibited reason but were not themselves threats because they were not communicated to the affected staff. Considering the seriousness of the planned conduct, the seniority...

Court Disposition

Contravention declared; first respondent ordered to pay $14,000 penalty into consolidated revenue; proceeding otherwise dismissed against first respondent and dismissed against second respondent.

Orders

  • ['The Court declares that 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, as well as English Language Intensive Courses for Overseas Students, and for the first...