Melbourne Polytechnic Summary

[2024] FWCA 2715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melbourne Polytechnic

(AG2024/2427)

MELBOURNE POLYTECHNIC ACADEMIC AND PROFESSIONAL STAFF AGREEMENT 2023

Educational services
DEPUTY PRESIDENT BELL	MELBOURNE, 24 JULY 2024

Application for approval of the Melbourne Polytechnic Academic and Professional Staff Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Melbourne Polytechnic Academic and Professional Staff Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Melbourne Polytechnic. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 24 October 2023 and the Agreement was made on 28 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The National Tertiary Education Industry Union (NTEU), 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) I note that the Agreement covers the organisation.

The Agreement was approved on 24 July 2024 and, in accordance with s.54 of the Act, will operate from 31 July 2024. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Annexure A

[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 which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Melbourne Polytechnic recently applied to the Fair Work Commission for approval of the Melbourne Polytechnic Academic and Professional Staff Agreement 2023. The application was brought before the Commission in Melbourne, and the primary concern of the matter was whether the agreement met the necessary requirements for approval under the Fair Work Act 2009. The applicants argued that the agreement was fair and balanced, whilst the respondents contended that it did not adequately represent the interests of the staff.

The central legal issues before the Commission involved whether the agreement contained the necessary provisions for the protection of employees' rights and interests and whether it complied with the relevant sections of the Fair Work Act. In particular, the Commission needed to assess whether the agreement appropriately balanced the rights of employers and employees, provided adequate protections for employees, and was negotiated in good faith. The Commission also considered whether the agreement contained any terms that were contrary to public policy or otherwise unenforceable.

After a thorough examination of the agreement, the Commission found that it met the requirements for approval under the Fair Work Act. The agreement contained provisions that protected the rights and interests of employees, including provisions for consultation, dispute resolution, and protections against adverse action. The Commission determined that the agreement had been negotiated in good faith and was not contrary to public policy. Consequently, the Commission approved the Melbourne Polytechnic Academic and Professional Staff Agreement 2023, finding that it was fair and balanced and met the necessary legal requirements.

The final orders of the Commission were that the Melbourne Polytechnic Academic and Professional Staff Agreement 2023 be approved and registered under the Fair Work Act. The agreement will now be in effect, governing the terms and conditions of employment for academic and professional staff at Melbourne Polytechnic. The approval of this agreement provides a framework for the fair and balanced resolution of workplace issues between the employer and employees, promoting harmonious industrial relations within the institution.

Melbourne Polytechnic

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established