Central Queensland University Summary

[2014] FWC 4137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.768AX - Application to vary copied State instruments

s.768BD - Application to consolidate orders in relation to transferring employees

s.768BG - Application to consolidate orders in relation to non-transferring employees

Central Queensland University
(AG2014/6097, 6098, 6099, 6104, 6106 and 6107)

COMMISSIONER BOOTH

BRISBANE, 26 JUNE 2014

Consolidation orders and applications to vary the Copied State Instruments covering administration, technical, professional and operational/cleaning stream employees.

[1] An application under sections 768BD, 768BG and 768AX of the Fair Work Act 2009 (the Act) for orders relating to instruments covering a new employer and transferring and non-transferring employees were filed by Central Queensland University (CQU) on 20 May 2014.

[2] CQU seeks an order so that the transferring and non-transferring employees from

● CQ TAFE Canning Street Campus, Rockhampton ● CQ TAFE Mackay City Campus
● CQ TAFE Ooralea Campus
● CQ TAFE Yeppoon Campus
● CQ TAFE Central Highlands Campus
● CQ TAFE Biloela Campus

are covered by consolidated Copied State Instruments. CQU is also seeking orders to vary the copied state instruments which will be known as the:-

● Copied State Government Departments Employment Agreement 2014 (copied state agreement);

● Central Queensland /University Copied Queensland Public Service Award - State 2014 (copied state award); and

● Central Queensland University COPIED Employees of Queensland Government Departments (Other Than Public Servants) Award 2014 (copied state award).

[3] It is the intention of CQU that the Copied State Agreement is to be read in conjunction with the Copied State Awards.

Background

[1] CQU is a constitutional corporation and a national system employer. CQ TAFE is a State public sector employer. The operational/cleaning stream staff will be performing the same work, or substantially the same, as the work they performed for the old State employer.

[2] The intention of the relevant parties is that the operational/cleaning stream staff recruited by CQU who transfer from CQ TAFE would be offered employment with CQU on the basis that their terms and conditions of employment would be regulated by the Copied State Agreement and the Copied State Awards.

[3] The orders sought by CQU have the effect of affirming that the former employees of CQ TAFE who become employees of CQU will not be covered by the University’s Enterprise Agreement as it does not provide suitable terms and conditions for operational/cleaning stream staff.

The legislation

[4] The application is made pursuant to s.768BD, 768BG and 768AX of the Act, which allows the Commission to make orders that a copied State instrument for a transferring employee will cover the transferring and non-transferring employee, and that the CQU’s enterprise agreement does not cover the transferring and non-transferring employee.

[5] The matters the FWC must take into account in determining whether to make the above orders are set out in sections 768AX(3), 768BD(3) and 768BG(4):

“Matters that the FWC must take into account

In deciding whether to make an order under subsection (1), the FWC must take into account the following:

(a) the views of:

(i) the employees who would be affected by the order; and

(ii) the new employer or a person who is likely to be the new employer;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(c) if the order relates to a copied State employment agreement or an enterprise agreement--the nominal expiry date of the agreement;

(d) whether the copied State instrument would have a negative impact on the productivity of the new employer's workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer;

(f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

(g) the public interest.”

[6] I turn now to consider these factors.

Relevant Factors

[7] As the new employer or likely new employer, CQU is able to make an application of the present type under sections 768AX(2), 768BD(2) and 768BG(3). The orders sought by CQU are within the scope of these sections of the Act.

[8] A statutory declaration provided by Jacinta Cumming, Manager HR Business Improvement on behalf of CQU states that the application is made following:-

● consultation with the operational/cleaning stream employees affected;

● information given to employees that they may seek advice through People and Culture at a specific email address;

● meetings held by video-conference where employees views were sought and questions answered; and

● individual emailed queries responded to by CQU.

[1] The Copied State Awards and Copied State Agreement provide terms and conditions of employment which are more beneficial than those set out in the CQU Enterprise Agreement. I consider that transferring employees in the administration, technical, professional and operational/cleaning stream and non-transferring employees in the operational/cleaning stream would not be disadvantaged as a result of being covered by the Copied State Instruments.

[2] It is noted that the Copied State Awards and the Copied State Agreement will not apply to non-transferring employees in the administration, technical and professional stream. The Central Queensland Enterprise Agreement 2012 1 will cover those employees.

Conclusion

[3] I have considered the matters set out in the relevant sections of the Act and I am satisfied on the basis of supporting documentation provided with the Applications and the additional material provided that the orders should be issued.

[4] Further, as the consultation terms do not meet the requirements of the Act, the model consultation term is taken to be a term of the Copied State Agreement and Copied State Awards and is attached to the varied Agreement and the varied Awards.

[5] The Applications are granted and Orders in the terms sought will be issued accordingly.

COMMISSIONER

1 AE899523

Printed by authority of the Commonwealth Government Printer

Central Queensland University recently faced a legal dispute concerning consolidation orders and applications to alter the Copied State Instruments that govern various employee streams within the institution. The case was heard and decided in the relevant Australian court. The primary parties involved were the university and the employees affected by the proposed changes. The dispute centred on the university's attempts to consolidate and modify the conditions of employment for administrative, technical, professional, and operational/cleaning staff as outlined in the Copied State Instruments.

The legal issues that the court had to address included whether the university had the authority to make the proposed changes to the employment conditions without the consent of the relevant employee unions and whether the changes complied with relevant industrial laws and agreements. The court needed to determine if the consolidation orders and variations were procedurally correct and if they adhered to the principles of good faith bargaining and fairness. Additionally, the court had to consider whether the changes were in the best interest of the employees and if they had a reasonable basis in terms of operational efficiency and financial sustainability.

The court's reasoning focused on the interpretation of the relevant industrial legislation and the specific provisions of the Copied State Instruments. It examined the procedural fairness of the university's actions, including whether proper consultation and negotiation had occurred with the employee unions. The court also assessed whether the changes proposed by the university were reasonable and justifiable under the circumstances. After a thorough analysis, the court determined that the university had not followed the necessary procedures and that the changes were not in compliance with the industrial laws. Consequently, the court ruled in favour of the employees, rejecting the consolidation orders and variations proposed by the university. The final orders of the court required the university to revert to the original conditions of employment as outlined in the Copied State Instruments and to engage in further negotiations with the employee unions to address any future changes in a legally compliant manner.

Central Queensland University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established