National Tertiary Education Union v La Trobe University [2014] FCA 1330

National Tertiary Education Union v La Trobe University [2014] FCA 1330

Clause 74, read in context with Clause 76 and the agreement as a whole, did not impose binding obligations on the University. The second sentence lacked express reference to the University and lacked obligation language such as 'will' or 'shall', and did no more than provide aspirational particulars of the aspirational commitment in the first sentence. Reading the second and third sentences together did not create an enforceable obligation because the reservation in the third sentence was ambiguous, imprecise and lacked practical effect. The NTEU bore the onus of establishing its construction of Clause 74 and failed to do so.

Jurisdiction
Australia
Judgment Date
08 December 2014
Procedural Posture
Industrial Law Proceeding Alleging Contravention of an Enterprise Agreement Under S 50 of the Fair Work Act 2009 (cth) / Preliminary Question on the Construction of Clause 74 of the La Trobe University Collective Agreement 2014
Outcome
The preliminary construction issue was determined against the NTEU; the Court indicated that the appropriate order would seem to be dismissal or possibly a declaration, but adjourned the further hearing so the parties could be heard on orders.
Legal Topics
['enterprise Agreement Construction' 'redundancy Procedures' 'compulsory Retrenchment' 'fair Work Act Contravention' 'preliminary Question']
['industrial Law' 'employment Law'] ['enterprise Agreement Construction' 'redundancy Procedures' 'compulsory Retrenchment' 'fair Work Act Contravention' 'preliminary Question']

Case Brief

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Procedural Posture

Industrial Law Proceeding Alleging Contravention of an Enterprise Agreement Under S 50 of the Fair Work Act 2009 (cth) / Preliminary Question on the Construction of Clause 74 of the La Trobe University Collective Agreement 2014

Legal Issues

  1. 1 ['Whether Clause 74 of the La Trobe University Collective Agreement 2014 imposed binding obligations on the University.' 'Whether the University contravened s 50 of the Fair Work Act 2009 (Cth) by terminating, or proposing to terminate, employees by way of compulsory redundancy other than as a last resort.' 'Whether Clause 74 required the University to implement a voluntary redundancy scheme, offer voluntary redundancies to particular employees, or dictate the basis on which staff might be selected for termination on redundancy grounds.']

Ratio Decidendi

Clause 74, read in context with Clause 76 and the agreement as a whole, did not impose binding obligations on the University. The second sentence lacked express reference to the University and lacked obligation language such as 'will' or 'shall', and did no more than provide aspirational particulars of the aspirational commitment in the first sentence. Reading the second and third sentences together did not create an enforceable obligation because the reservation in the third sentence was ambiguous, imprecise and lacked practical effect. The NTEU bore the onus of establishing its construction of Clause 74 and failed to do so.

Court Disposition

The preliminary construction issue was determined against the NTEU; the Court indicated that the appropriate order would seem to be dismissal or possibly a declaration, but adjourned the further hearing so the parties could be heard on orders.

Orders

  • ['The further hearing of the proceeding be adjourned to 9:30 am on 11 December 2014.']