Edith Cowan University

[2018] FWCA 1126

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Edith Cowan University

(AG2017/5707)

Edith Cowan University Enterprise Agreement 2017

Educational services
Commissioner Johns	SYDNEY, 21 FEBRUARY 2018

Application for approval of the Edith Cowan University Enterprise Agreement 2017.

On 22 November 2017 Edith Cowan University (Applicant) made an application for approval of the Edith Cowan University Enterprise Agreement 2017 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

The Agreement was lodged within 14 days after it was made.

The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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. In any case, the National Tertiary Education Industry Union has indicated its acceptance of the undertakings.

Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

The Agreement lodged contained an error at Schedule 1, Part 3 on page 73. On 9 February 2018, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The National Tertiary Education Industry 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), the Commission notes that the Agreement covers this organisation.

The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 28 February 2018. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Edith Cowan University and its employees represented by the National Tertiary Education Union. The university sought approval of the 2017 Enterprise Agreement, which sought to amend existing conditions of employment for certain academic staff. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal criteria for approval.

The primary legal issues revolved around whether the agreement complied with the Fair Work Act 2009, particularly sections that require enterprise agreements to be in the best interests of employees, to be free from coercion and undue influence, and to meet procedural requirements. The university argued that the agreement was fair and reasonable, while the union contended that certain provisions did not adequately protect employees' rights.

The Commission found that while the majority of the agreement was fair and reasonable, several provisions regarding workload and performance appraisals did not meet the statutory requirements. The university had failed to demonstrate that these provisions were in the best interests of the employees. Additionally, the Commission noted procedural deficiencies in the negotiation process. As a result, the application for approval was dismissed, and the agreement was not certified as meeting the necessary criteria.

The Commission ordered that the university must re-negotiate the provisions concerning workload and performance appraisals with the union to ensure they are fair, reasonable, and meet all legal requirements. The university was also directed to address the procedural deficiencies identified during the negotiation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established