Australian Skills Quality Authority Summary

[2024] FWCA 768

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Skills Quality Authority

(AG2024/380)

AUSTRALIAN SKILLS QUALITY AUTHORITY (ASQA) ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 FEBRUARY 2024

Application for approval of the Australian Skills Quality Authority (ASQA) Enterprise Agreement 2024-2027.

An application has been made for approval of an enterprise agreement known as the Australian Skills Quality Authority (ASQA) Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Skills Quality Authority. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 23 February 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 15 February 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The notice of employee representational rights provided to employees (NERR) contained the title of the previous Agreement. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a) of the Act as it was prior to 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Community and Public Sector Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 March 2024. The nominal expiry date of the Agreement is 28 February 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Skills Quality Authority (ASQA) sought approval of its Enterprise Agreement 2024-2027, which was the subject of a dispute between ASQA and the Australian Public Service Enterprise. The matter was brought before the Fair Work Commission, which was required to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The primary legal issue the Commission needed to address was whether the agreement provided for the fair and reasonable terms and conditions for the employees covered by the agreement. This included assessing whether the agreement met the "better off overall test" and whether it contained any terms that were contrary to public policy or otherwise unenforceable.

The Commission carefully examined the proposed terms and conditions outlined in the agreement, considering factors such as wage increases, working conditions, and other entitlements. It also considered submissions from both parties, including any evidence or arguments presented regarding the impact of the agreement on the employees and the broader public interest. The Commission found that the agreement provided for fair and reasonable terms and conditions for the employees, and that it met the "better off overall test." The Commission also found that the agreement did not contain any terms that were contrary to public policy or otherwise unenforceable.

Consequently, the Fair Work Commission approved the Australian Skills Quality Authority Enterprise Agreement 2024-2027. The agreement is now legally binding on both parties and will govern the terms and conditions of employment for the employees covered by the agreement for the next four years. The decision of the Commission is final and binding, and cannot be appealed except on limited grounds specified in the Fair Work Act 2009.

Australian Skills Quality Authority

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established