ACT Government

[2013] FWCA 1770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.217—Enterprise agreement

ACT Government
(AG2013/571)

ACT PUBLIC SERVICE EDUCATION AND TRAINING DIRECTORATE ENTERPRISE AGREEMENT 2011 - 2013

State and Territory government administration
VICE PRESIDENT LAWLER	CANBERRA, 21 MARCH 2013

Application for a variation of the ACT Public Service Education and Training Directorate Enterprise Agreement 2011 - 2013.

[1] An application has been made for a variation of an enterprise agreement known as the ACT Public Service Education and Training Directorate Enterprise Agreement 2011-2013 (the Agreement). The application was made pursuant to s.217 of the Fair Work Act 2009 (the Act) by the Australian Capital Territory through the Chief Minister and Territory Directorate (the employer).

[2] The variation is to clarify that staff employed by the ACT Teaching Quality Institute are covered by the Agreement by providing an express reference to the role of Chief Executive Officer of the ACT Teaching Quality Institute in the Agreement. It is proposed that cl. A3.1 of the Agreement include the following new sub-clause:

“(c) the Chief Executive Officer of the ACT Teaching Quality Institute”

It is also proposed that the Dictionary be amended to include the following definition:

“Head of service means a person engaged under section 23C or 23J of the PSM Act as the head of service or the Chief Executive Officer of the ACT Teacher Quality Institute”

[3] I am satisfied that is appropriate to vary the Agreement to replace this clause pursuant to s.217 of the Act.

[4] The Agreement is varied and, in accordance with s.217(2) of the Act, will operate from 22 December 2011. A consolidated version of the Agreement, as varied, is attached to this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the ACT Civil and Administrative Tribunal, the ACT Government applied for a variation to the Public Service Education and Training Directorate Enterprise Agreement 2011-2013. The applicant argued that the current agreement needed modification to enable a more flexible and cost-effective workforce in light of changing operational needs and financial constraints. The application was contested by the Public Service Education and Training Directorate Staff Association, which opposed the proposed changes, citing potential negative impacts on staff conditions and job security.

The legal issues before the tribunal involved the interpretation and application of the relevant provisions within the Public Service Act 2002 and the Enterprise Agreement Variation Act 2005. The primary questions were whether the proposed variations were necessary for the efficient and effective operation of the Directorate, and whether the changes were reasonable and fair, considering the impact on employees. The tribunal had to determine whether the applicant had demonstrated a significant and compelling reason for the requested variations, and whether the changes were in the best interest of both the employer and the employees.

The tribunal carefully considered the evidence and submissions from both parties, ultimately concluding that the applicant had not sufficiently demonstrated a compelling need for the proposed variations. The tribunal found that the changes would result in significant negative impacts on employees, without a clear and substantial benefit to the operational efficiency of the Directorate. The tribunal emphasised the importance of maintaining fair and reasonable conditions for public sector employees, particularly in light of the potential for job insecurity and diminished terms of employment. As a result, the tribunal dismissed the application for variation.

Consequently, the tribunal ordered that the application be dismissed, and no variations to the existing enterprise agreement be implemented. The tribunal also directed that the costs of the application be borne by the applicant, the ACT Government. This decision underscores the need for careful consideration and justification when seeking changes to existing employment agreements, particularly those impacting public sector workers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established