Charles Sturt University

[2022] FWCA 854

[2022] FWCA 854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Charles Sturt University

(AG2022/47)

Charles Sturt University Enterprise Agreement 2018-2021

Educational services
COMMISSIONER WILSON	MELBOURNE, 11 MARCH 2022

Application for variation of the Charles Sturt University Enterprise Agreement 2018-2021

1. An application has been made for approval of a variation to Charles Sturt University Enterprise Agreement 2018-2021 (the Agreement). The application was made by Charles Sturt University pursuant to section 210 of the Fair Work Act 2009 (the Act).

1. The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

1. On 10 January 2022, the Community and Public Sector Union (CPSU) advised it was covered by the Agreement but did not wish to advise the Commission that it disagreed with any statements in the Employer’s Declaration relating to the variation.

1. On 14 January 2022, National Tertiary Education Industry Union (NTEU) as advised it was covered by the Agreement and that it disagreed with statements in the Employer’s Declaration, and indicating that it wished to be heard about the application for approval of the variation. It argued the variation was not approved by a vote of employees as required, with the document being provided to employees being inconsistent with that filed in the University’s application.

1. In rejecting those characterisations the University conceded an incorrect document had been filed with its variation application when it inadvertently attached a previous draft of the variation instrument to the signed coversheet.

1. At my request the University provided a statutory declaration dealing with the subject of the document actually put to employees and voted upon. The declaration, by Jennifer Anderson, the University’s Director of Workplace Relations and Partnerships for the Applicant set out that an incorrect document was inadvertently attached to the cover signature page and attached the document that was voted upon by employees. No requests were made by any person to be heard about the declaration or the circumstances of the error made at the time of the application to the Commission. Upon consideration, I was content, on this basis to exercise my power under s.586 to allow the amendment to filing regarding the variation instrument requested by the Applicant, thus resolving the issue.

1. The 3 February 2022 correspondence to the Applicant also raised potential BOOT concerns which I held regarding the Agreement; specifically, the fact that there was a lack of clarity around the provision of overtime for hours outside the span specified as per clause 22.1 and clause 15.1 of the Higher Education Industry - General Staff - Award 2020 (the Award), and the fact that clause 24.11 of the Agreement appeared to provide for a broader span of ordinary hours than provided for in clause 15.1(a) of the Award, and that this could potentially pose an issue for employees who regularly work a number of hours outside the Award span.

1. In response to these concerns, on 24 February 2022 the Applicant provided an undertaking that overtime would be payable for work performed outside the ordinary span of hours. The Applicant also provided analysis in the form of spreadsheets to show when overtime and ordinary hours payments under the varied Agreement are combined, all employees are better off overall under the Agreement. I am satisfied that the undertaking and analysis provided resolves the BOOT concern.

1. A copy of this undertaking is attached in Annexure B. I am satisfied that the undertaking is required to address issues in the Agreement and that the undertaking, if accepted, will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.

1. On 22 February 2022 my Chambers indicated to the parties that should they wish to be heard they had until 25 February 2022 to advise my chambers accordingly. No indication was received from the parties by this date.

1. I am satisfied that each of the requirements of ss.210, 211 and 212 of the Act as are relevant to this application for approval of a variation have been met.

1. I am also satisfied that such requirements under ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreements have been met.

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

1. In accordance with s.216 of the Act, the variation operates from 1 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE503036  PR739214>

Annexure A

Annexure B