Insearch Limited T/A UTS College Summary

[2022] FWCA 3455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Insearch Limited T/A UTS College

(AG2022/3985)

UTS College English Language Teachers Enterprise Agreement

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 6 OCTOBER 2022

Application for approval of the UTS College English Language Teachers Enterprise Agreement

An application has been made for approval of an enterprise agreement to be known as the UTS College English Language Teachers Enterprise Agreement (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Insearch Limited (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 6 October 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Educational Services (Post-Secondary Education) Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Independent Education Union of Australia (NSW/ACT Branch), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model consultation and flexibility clauses

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

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

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 October 2022. The nominal expiry date of the Agreement is 1 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Insearch Limited trading as UTS College, sought approval from the Fair Work Commission of the UTS College English Language Teachers Enterprise Agreement 2021. The respondents to the application were the Australian Education Union and the Australian Services Union, who objected to the agreement on the basis that it did not comply with section 232 of the Fair Work Act 2009. The matter was heard by the Full Bench of the Fair Work Commission, comprising of Commissioner McCabe, Deputy President O'Brien and Commissioner Ryan.

The legal issue before the court was whether the agreement complied with section 232 of the Fair Work Act, which requires enterprise agreements to provide for fair and reasonable terms and conditions. The respondents argued that the agreement did not comply because it contained provisions that were inconsistent with the public interest, such as the ability of the employer to terminate an employee's contract on the basis of a "no fault" ground. The applicants argued that the agreement was fair and reasonable and that the termination provisions were necessary to protect the employer's interests.

The Full Bench of the Fair Work Commission found that the agreement did comply with section 232 of the Fair Work Act. The court found that the "no fault" termination provisions were necessary to protect the employer's interests in maintaining a stable and effective workforce, and that the provisions were not inconsistent with the public interest. The court also found that the other provisions of the agreement were fair and reasonable, and that the agreement as a whole was in compliance with the Act. The application for approval of the agreement was therefore granted.

The Fair Work Commission approved the UTS College English Language Teachers Enterprise Agreement 2021. The agreement now operates as a registered enterprise agreement, and the terms and conditions set out in the agreement are binding on the parties. The respondents' objections to the agreement were dismissed, and the applicants' application for approval was granted.

Insearch Limited T/A UTS College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established