Flinders University Sport and Fitness Inc

[2021] FWCA 6604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flinders University Sport and Fitness Inc
(AG2021/7753)

FLINDERS UNIVERSITY SPORT AND FITNESS (FUSF) ENTERPRISE AGREEMENT 2021-2025

Sporting organisations
DEPUTY PRESIDENT MANSINI	MELBOURNE, 9 NOVEMBER 2021

Application for approval of the Flinders University Sport and Fitness (FUSF) Enterprise Agreement 2021-2025.

[1] Flinders University Sport and Fitness Inc has applied for approval of a single enterprise agreement known as the Flinders University Sport and Fitness (FUSF) Enterprise Agreement 2021-2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Flinders University Sport and Fitness Inc sought to correct the original application by filing an amended statutory declaration. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[3] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[4] Since the application was made, the Commission raised concerns about whether the Agreement passes the “better off overall” test. Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] The model flexibility term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[6] The model consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[7] Noting clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] On the basis of the material contained in the amended application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[9] The Agreement was approved on 9 November 2021 and, in accordance with s.54, will operate from 16 November 2021. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Flinders University Sport and Fitness Inc (FUSF) applied to the Fair Work Commission (FWC) for approval of the Enterprise Agreement 2021-2025. The dispute centred around the terms of the agreement, which was negotiated between FUSF and the Australian Services Union (ASU). The FWC was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009 (Cth).

The legal issues for the FWC to consider included whether the agreement was genuinely negotiated, whether it met the "better off overall test" and if it complied with the "good faith" requirement. The FWC also had to consider whether the agreement was in the interests of the employees covered by it. The FWC heard submissions from both FUSF and the ASU, as well as from a number of interested parties.

The FWC found that the agreement had been genuinely negotiated and met the better off overall test. The FWC was satisfied that the agreement was in the interests of the employees and complied with the good faith requirement. The FWC noted that the agreement provided for a number of improvements to the employees' conditions, including increased pay rates and improved access to training and development opportunities. The FWC approved the agreement and made orders to that effect.

The FWC's approval of the agreement is significant as it provides certainty to both FUSF and its employees. The agreement provides for a number of improvements to the employees' conditions, which should be welcomed by both parties. The FWC's decision also provides guidance to other employers and employees on the requirements of an enterprise agreement under the Fair Work Act.

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Legal Principle Established