Relevance of Victoria University Enterprise Agreement 2013 and University Policies in Toby's Employment Contract

This article discusses the relevance of Victoria University Enterprise Agreement 2013 and University policies in Toby's employment contract. It explores the interaction between the agreement and Toby's obligations as an employee.

Running head: EMPLOYMENT LAWS
EMPLOYMENT LAWS
Name of the Student
Name of the University
Author Note

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Question 1
In this given scenario, the question raised is that, what duties have been potentially
beached by Toby and the source and nature of those duties.
According to clause 61.5.2 of the Victoria University Enterprise Agreement 20131, the
University has the right to terminate a staff member without any notice, in case of finding the
staff member being engaged in any such serious misconduct which would be difficult for the
University in continuing employment of that staff member concerned during a notice period.
According to clause 62.1.22 of the Victoria University Enterprise Agreement 2013, investigation
should be conducted expeditiously, thoroughly and according to the natural justice principles, in
all matters related to unsatisfactory performance, misconduct and serious misconduct. It is
further stated in clause 62.1.43 of the Victoria University Enterprise Agreement 2013, that only
the Vice-chancellor can take the disciplinary actions as against an academic member staff.
According to clause 6.7 of the Victoria University Media Policy, a staff member should restrain
himself from engaging into a comment or activity in the media which will lead to the disrepute
of the public image, reputation and goodwill of the University4.
In this case, Toby was terminated for the commission of serious misconduct by the
University. Toby was an associated professor of civil engineering in the Victoria University from
15th May, 2016. He signed an electronic acknowledgement which confirms his understanding of
all his obligations provided therein. Toby criticised the environmental policies of the
Government in the preface of the Federal Election. The University being a heavily reliant
Federal Government funded institution and also being directly accountable to the State
1 Victoria University Enterprise Agreement 2013, clause 61.5.2.
2 Victoria University Enterprise Agreement 2013, clause 62.1.2.
3 Victoria University Enterprise Agreement 2013, clause 62.1.4.
4 Victoria University Media Policy 2006, clause 6.7.

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parliament became very worried about this and issued a formal warning to him stating the media
policies and the employment contract obligations of the University has been violated by Toby. In
response to the warning issued by the University Toby started tweeting where he accused the
University of infringing academic integrity and freedom of speech which is a violation of the
University’s media policy5. Later on, Toby was terminated by the University for committing
serious misconduct. Toby has violated clause 62.1.136 of the Victoria University Enterprise
Agreement 2013, which deals with serious misconduct. Toby has breached the duties provided
under clause 62.1.13 (a)7 and clause 62.1.13 (b)8 of the Victoria University Enterprise Agreement
2013, which deals with the serious misbehaviour constituting serious impediment in carrying out
duties of staff members and serious negligence while discharging duties, respectively. He has
also breached his employment contract; policies and regulations of the University in the process.
In this instance, R v Darling Island Stevedoring and Lighterage Company Limited9 case
can be referred. It was held by the court that an employee is obliged to comply with the
reasonable and lawful directions of the employer. The employee needs to obey all lawful
commands of the employer which falls within reasonable scope of his service contract.
Question 2
In this given scenario, the question raised is that, whether the dismissal of Toby by the
University was justified.
5 Thornthwaite, Louise. "Social media, unfair dismissal and the regulation of employees’ conduct outside
work." (2013) Australian Journal of Labour Law 26.2 : 164-184.
6 Victoria University Enterprise Agreement 2013, clause 62.1.13
7 Victoria University Enterprise Agreement 2013, clause 62.1.13 (a)
8 Victoria University Enterprise Agreement 2013, clause 62.1.13 (b)
9 [1938] HCA 44; 60 CLR 601

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According to clause 61.110 of the Victoria University Enterprise Agreement 2013, all the
decisions of terminating a staff member or discipline, covered under this agreement would be
done according to the agreement. According to clause 61.211 of the Victoria University
Enterprise Agreement 2013, employment termination means terminating employment of a staff
member by the University. Clause 61.512 Victoria University Enterprise Agreement 2013 says
about the conditions of notice or compensation. According to clause 61.5.213 of the Victoria
University Enterprise Agreement 2013, the University has the right to terminate a staff member
without giving any notice if the staff member is found to be engaged in any serious misconduct.
Clause 62.3.914 of the Victoria University Enterprise Agreement 2013 says about the serious
misconduct review which lays down that a staff member is to be advised by the supervisor in
writing if he is been alleged of committing serious misconduct. According to clause 62.3.1015 of
the Victoria University Enterprise Agreement 2013, the staff member needs to respond in writing
to supervisor within a working day of ten.
In this case, Toby criticized the environmental policies of the Government in twitter, The
Age and on radio and which is a violation of his employment contract obligation and media
policies of the University. As a consequence, the University issued to Toby a formal warning, for
which Toby has not given any response within the prescribed period. Toby even further
criticized the University on twitter which is a commission of serious misconduct and violation of
the University’s Media policies.
10 Victoria University Enterprise Agreement 2013, clause 61.1
11 Victoria University Enterprise Agreement 2013, clause 61.2
12 Victoria University Enterprise Agreement 2013, clause 61.5
13 Victoria University Enterprise Agreement 2013, clause 61.5.2
14 Victoria University Enterprise Agreement 2013, clause 62.3.9
15 Victoria University Enterprise Agreement 2013, clause 62.3.10

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In Graham v Bankstown District Sports Club Ltd16 case, the applicant was an employee at
Bankstown District Sports Club Ltd who was dismissed from the work for the commission of
serious misconduct. It was held by the tribunal that the dismissal procedure by the club was not
unjust, harsh or unreasonable and thus was not unfair.
The case of Plant v API Microelectronics Limited17 perfectly suits here in this situation.
In this case the employer dismissed the defendant on the basis of her derogatory Facebook
comments. The Employment tribunal after interrogating the matter found that the employer has
taken a fair decision although she served for a long time in the organization.
Thus, the dismissal of Toby by the University was justified and according to the
employment contract.
Question 3
In this given scenario, the question raised is that, how relevant is the Victoria University
Enterprise Agreement 2013 and University policies along with how far it interacts with Toby’s
employment contract.
The Victoria University Enterprise Agreement 2013 was made in pursuance of s.18518 of
the Fair Work Act 2009 which lays down the provision relating to approval of FWC for the
enterprise agreement. The section says that in case of making of enterprise agreement,
application to the FWC must be made by bargaining representative for the agreement’s approval.
In this case the National Tertiary Education Industry Union was the bargaining representative of
the University who gave notice under s.18319 of the Fair work Act 2009, which says that the
16 [2012] FWA 7977
17 (ET/3401454/2016)
18 Fair Work Act 2009 s.185
19 Fair Work Act 2009 s.183.

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agreement needs to cover it. This agreement is covering the organisation as according to
s.201(2)20 of the Fair Work Act 2009.
According to s.19021 of the Fair Work Act 2009 the enterprise agreement may be
approved by the FWC with undertakings. S.191(1)22 of the Fair Work Act 2009 says that the
undertakings need to be considered as a term of an agreement.
S.186, 187 and 188 of the Fair Work Act 200923 lays down the following provisions
regarding general requirements of FWC approval, additional requirements of FWC approval and
genuine acceptance of the employees to the enterprise agreement respectively. All of the above
sections have been successfully met by the application and are relevant.
S.54 of the Fair Work Act 200924 lays down the provisions relating to operation of the
enterprise agreement. S.54(1)25 says that the enterprise agreement which the FWC approves will
operate from either after seven days of the agreement’s approval or on a specified later day in
that agreement. The agreement was approved as according to s.54(1) and started operating form
January 21st, 2014.
Thus, the policies of the University are relevant with the Fair Work Act 2009, as the
policies of the University were laid down in the Victoria University Enterprise Agreement 2013.
At the time of appointment Toby entered into the employment contract with the University on
15.05.2016 and signed electronic acknowledgement where he confirmed that he has all the
understanding of the obligations. The employment contract of Toby was based on the Victoria
20 Fair Work Act 2009 s.201(2).
21 Fair Work Act 2009 s.190.
22 Fair Work Act 2009 s.191(1).
23 Fair Work Act 2009 s. 186, s.187, s.188.
24 Fair Work Act 2009 s.54.
25 Fair Work Act 2009 s.54(1).

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University Enterprise Agreement 2013. Therefore, the relevancy of EA interacts well with the
employment contract of Toby.

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Bibliography
Books/Journals
Thornthwaite, Louise. "Social media, unfair dismissal and the regulation of employees’ conduct
outside work." (2013) Australian Journal of Labour Law 26.2 : 164-184.
Cases
Graham v Bankstown District Sports Club Ltd [2012] FWA 7977
Plant v API Microelectronics Ltd (ET/3401454/2016)
Legistations
Fair Work Act 2009
Victoria University Enterprise Agreement 2013
Victoria University Media Policy 2006