THE FAIR Work Commission has said the University of Newcastle should "recredit" staff the five days annual leave it directed them to take over Easter.
Fair Work Commission (FWC) deputy president Anna Booth issued on Tuesday her decision about the dispute between the University of Newcastle (UON) and the National Tertiary Education Union (NTEU). UON had directed 3356 staff - academic staff and teachers, and professional staff - on March 31 to take five days leave from April 20 to 24, in addition to three concession days from April 15 to 17.
The NTEU made an application on April 9 for the FWC to deal with the dispute, saying UON acted contrary to the provisions of the academic staff and teachers enterprise agreement and the professional staff enterprise agreement.
The NTEU said staff experienced hardship and some incurred a negative leave balance.
Five staff members provided witness statements, including one who had purchased leave to stay with her father during palliative care, plan for his funeral and be with her family.
She said her leave plans were disrupted and she was unable to use leave for respite, as intended.
NTEU Newcastle branch president Dan Conway said the FWC decision was a "major victory" for members.
He said the union was calling on UON management to apologise to staff for the breach and recredit all staff their annual leave immediately.
He said the union was also calling for UON to withdraw a similar direction for staff to take nine days annual leave over Christmas.
That matter is subject to an ongoing separate dispute.
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"Access to annual leave at a time of your choosing is a core condition of employment and one that must be protected," Mr Conway said.
"We hope that management will seek to consult in a meaningful way on a range of matters in future as a result of this decision.
"The Commission found that a clause that does not require management to consider the individual circumstances of staff is not one permitted by the Fair Work Act.
"It is not okay to direct annual leave when management should know some staff will perform some or all of their normal duties.
"And, it is not okay to direct annual leave and not take into account the personal lives, circumstances and wishes of staff."
UON Vice Chancellor Alex Zelinsky told staff on Wednesday the direction was issued "at a time when the pandemic seemed at its most uncertain in terms of impact and severity".
"We took this decision to support staff, not penalise them, in these unprecedented circumstances," he said.
"The university acknowledges the commission's decision and we are considering our options, as well as its implications."
UON had asked the FWC to consider ordering it to "refrain from giving such leave direction in the future".
The FWC decision said the NTEU and UON held discussions during the FWC hearing and the scope of the dispute was narrowed.
Both parties agreed the direction to academic staff was not available to UON under the academic staff and teachers enterprise agreement, the Fair Work Act, or common law.
UON gave an undertaking it would recredit five days leave to current academic staff and pay five days' pay to any affected academic staff that had left.
The parties also agreed the direction to professional staff and teachers was not available to UON under both enterprise agreements to the extent that employees incurred a negative leave balance.
UON gave an undertaking it would recredit or repay employees or former employees to the extent of the negative leave balance incurred.
"This means that the scope of the dispute was lessened to professional staff and teachers who were eligible to take annual leave to the extent of their available accrued annual leave," the decision said.
"The NTEU contend that it was not available to the university to issue the direction to professional staff and teachers and the university contends that it was."
The parties agreed the FWC had the power to resolve the dispute by arbitration, which results in a binding decision.
The FWC decision said the NTEU's remaining questions were whether the clause in the two enterprise agreements permitted UON to direct staff to take the five days annual leave and if so, was this clause reasonable within the Fair Work Act.
Deputy president Booth found while the clause permitted UON to make the direction, the clause was not reasonable.
"As a consequence of my decision it is my opinion that the university should recredit five days annual leave to current professional staff and teachers, and pay five days' pay to any former professional staff or teacher who was affected, but whose employment has since ended," she wrote in the decision.
The decision said that UON COVID 19 Response Leader Professor Liz Burd recommended at the March 30 UON executive committee meeting that UON extend its mid-semester break and shut down for a total of three weeks "to provide staff a rest, students a chance to catch up and as financial saving to reduce annual leave accruals into 2021".
It said Professor Zelinsky met with Mr Conway and Community and Public Sector Union representatives at 8.30am on March 31 about the decision.
Professor Zelinsky circulated a statement with the direction at 9.34am, saying staff who "need to use this period to prepare materials for continuation of online teaching after the April break" would be excepted. 600 exemptions were granted.
The NTEU said UON did not take into consideration employees needs and that the direction overruled any previous leave arrangement, was contrary to custom and practice and did not consider the convenience of the timing of the leave.
UON said consulting with each staff member "would have been impractical in the circumstances".
It said there were stress and exhaustion complaints, that staff who considered they had essential work to do were invited to apply for exemption, that staff deemed essential were exempt, that there was a "favourable staff response" and that it didn't receive negative emails about the direction.
The FWC decision labelled the exemption process "insufficient" and the clauses as "contrary" to part of the Fair Work Act and "unreasonable".
"The university's siloed decision making was exacerbated by a lack of considered dialogue with the representatives of those affected... unfortunately, the old saying "act in haste, repent at leisure" appears apt."
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