For any other university that might consider this path, an argument that the provisions of its corporate agreement impede its strategic objectives of remaining competitive and sustainable would invoke both the “public interest” in the relevant sense of the term. Commissioner Williams felt that academic freedom did not mean that employees could operate in the form of misconduct or gross negligence. It also noted that the introduction of disciplinary provisions in the company agreement (which NTEU argued supported academic freedom) had nothing to do with academic freedom; In any event, their introduction was prior to the unfair dismissal regime introduced into federal legislation around 1993. In particular, the Commissioner rejected the evidence presented by Grahame McCulloch, Secretary General of the NTEU, on these issues. The university has also committed to maintaining specific provisions on academic freedom. The termination of Murdoch University`s corporate agreement is a game change in negotiations in the higher education sector and its impact goes beyond situations in which a university is experiencing financial difficulties. Is the “nuclear” option the right one for your institution? The Fair Work Act states that once a company agreement has passed its nominal expiry date, the relevant employer, worker or trade union may apply to the Fair Work Commission for termination. The Commission must terminate the agreement if it is satisfied that it is not contrary to the public interest and the Commission considers it appropriate (taking into account the views and circumstances of all parties). Murdoch University successfully argued that the Murdoch University Enterprise Agreement should be denounced in 2014 by the Fair Work Commission because of its restrictions, financial implications and weak progress in lengthy negotiations for a new agreement. The termination was found not to be contrary to the public interest and appropriate. This decision will have a considerable impact on future negotiations on company agreements in the higher education sector. In his decision, Commissioner Williams took into account the fact that the negotiations were long (there were 27 negotiation meetings over 12 months) and that the parties were essentially blocked, with the university having presented its best/final offer many months before. He concluded that the current context of the negotiations was not neutral and that the NTEU was favourable, where it would not agree to modify the corresponding clauses of the Murdoch Agreement.
A denunciation of the agreement would tip the balance in Murdoch`s favour, but it would not be contrary to the public interest to do so, as the NTEU is unwilling to amend existing clauses. . . .