Edith Cowan University

[2023] FWCA 3133

[2023] FWCA 3133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Edith Cowan University

(AG2023/3145)

EDITH COWAN UNIVERSITY ENTERPRISE AGREEMENT 2022

Educational services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 28 SEPTEMBER 2023

Application for approval of the Edith Cowan University Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Edith Cowan University Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Edith Cowan University (the Applicant). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 30 June 2021 and the Agreement was made on 25 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

1. The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The NTEU, who were a bargaining agent, expressed the view that the Agreement passes the BOOT.

1. During the exchange of correspondence with my chambers regarding approval, the Applicant identified an error in clause 59 of the version of the Agreement lodged for approval. The Applicant submitted, and its submissions were supported by the NTEU, that there had been an accidental omission from that clause in the lodged version and that the correct version of the clause had been provided to employees for the purposes of the vote. I am satisfied that this was a genuine error and have used the power conferred by s.586(a) of the Fair Work Act to allow the Agreement document to be amended by the replacement of clause 59 as originally lodged with the correct version of clause 59 as circulated to employees.

1. The Applicant has provided written undertakings. 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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The National Tertiary Education Industry Union (NTEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the NTEU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

<AE521662  PR766638>