Australian Catholic University Limited T/A Australian Catholic University

[2023] FWCA 319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Catholic University Limited T/A Australian Catholic University

(AG2022/5494)

AUSTRALIAN CATHOLIC UNIVERSITY STAFF ENTERPRISE AGREEMENT 2022 – 2025

Educational services
COMMISSIONER YILMAZ	MELBOURNE, 2 FEBRUARY 2023

Application for approval of the Australian Catholic University Staff Enterprise Agreement 2022 – 2025

An application has been made for approval of an enterprise agreement known as the Australian Catholic University Staff Enterprise Agreement 2022 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Catholic University Limited T/A Australian Catholic University. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The National Tertiary Education Union and the Community and Public Sector Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and in accordance with s.54, will operate from 9 February 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Australian Catholic University Limited, trading as Australian Catholic University, for the approval of the Australian Catholic University Staff Enterprise Agreement 2022 – 2025. The application was made under section 233 of the Fair Work Act 2009. The university sought to have the agreement, which had been negotiated with relevant unions, recognised as a registered agreement, thereby conferring upon it legal enforceability.

The central legal issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act and, if so, whether it should be approved. This involved examining the agreement's provisions against the legislative criteria, including whether it contained mandatory terms, was free from prohibited content, and adhered to the processes set out in the Act for the negotiation and registration of enterprise agreements.

In reaching its decision, the Commission considered the submissions from the university and the unions, as well as the evidence provided. It assessed whether the agreement was genuinely negotiated, contained no prohibited content, and was otherwise compliant with the Act. The Commission noted that the agreement contained terms that were considered to be within the scope of the enterprise and was free from any prohibited content. Furthermore, the Commission was satisfied that the agreement had been negotiated in good faith and that the process followed met the legislative requirements. Therefore, the Commission approved the application and registered the agreement.

In approving the application, the Commission made an order under section 233 of the Fair Work Act 2009 that the Australian Catholic University Staff Enterprise Agreement 2022 – 2025 be registered as a registered agreement. This registration ensures that the agreement is legally binding on the parties and enforceable in accordance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established