ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s. 739 Fair Work Act 2009 – dispute result of respondent decision to counsel academic staff for unsatisfactory performance in accordance with agreement – applicant argued were two questions to be answered – whether action related to performance (clause 53) could take place despite other processes in agreement not being followed (clause 64) – whether action relating to performance was undertaken correctly – applicant sought orders that respondent cease action against employees and clause 53 process be adhered to before clause 64 process commenced – respondent argued there were three questions to be answered – question one similar to applicant’s – two concerned who a supervisor was for purposes of agreement clauses in dispute – three was whether action being taken by respondent should cease – applicant argued provisions relating to disciplinary action cannot be enlivened until performance development process taken place – respondent submitted former relates to counselling for unsatisfactory performance and latter relates to on-going development processes – Commission found process in clause 64 do not have to be exhausted before process in clause 53 can take place – Commission of view clauses have distinct functions and operate separately although one might guide other – applicant argued in order to form a view that performance unsatisfactory supervisor needs full knowledge of performance against performance plan and supervisor is the same person under both clauses – respondent submitted supervisor should be narrowly construed and can constitute more than one person – Commission found Head of Department the supervisor referred to in both clauses – if supervisors had different meanings in both clauses, processes in clause 64 could not be relied on in clause 53 process – Commission found reports executed in accordance with clause 64 not a prerequisite to commencing process under clause 53 – respondent therefore need not cease action being taken – orders not granted – application dismissed. National Tertiary Education Industry Union v Monash University
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