Monash Graduate Association (Mga) Inc Summary

[2023] FWCA 228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Monash Graduate Association (Mga) Inc

(AG2022/5221)

MONASH GRADUATE ASSOCIATION (MGA) INC ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER LEE	MELBOURNE, 23 JANUARY 2023

Application for approval of the Monash Graduate Association (MGA) Inc Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Monash Graduate Association (MGA) Inc 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 Monash Graduate Association (Mga) Inc. The Agreement is a single enterprise agreement.

Voting notification was provided less than seven clear days before the vote contrary to s 180(3) of the Act. The Employer provided submissions as to this error on 20 January 2023. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

Accordingly, notwithstanding the matters identified in paragraph [2] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

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. 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 and 190 as are relevant to this application for approval have been met.

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) I note that the Agreement covers the organisation.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

·16.14 - Casual Conversion.

However, noting undertaking 1of the Agreement, 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 30 January 2023. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Monash Graduate Association (MGA) Inc sought approval of its Enterprise Agreement 2022. The Applicant was a registered organisation representing employees of Monash University, and the Agreement was intended to govern the terms and conditions of employment for these workers. The Commission was required to determine whether the Agreement met the requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the Agreement provided for the fair and reasonable terms and conditions of employment for the employees it covered. This included assessing whether the Agreement was free from any terms that were contrary to public policy or that failed to provide for the minimum entitlements required under the National Employment Standards. The Commission also needed to consider whether the Agreement was made in accordance with the relevant provisions of the Fair Work Act and any relevant regulations.

After considering the submissions from both parties and the relevant legislative provisions, the Commission found that the Agreement was fair and reasonable. The Agreement provided for the minimum entitlements required under the National Employment Standards, and did not contain any terms that were contrary to public policy. The Agreement had been made in accordance with the relevant provisions of the Fair Work Act and any relevant regulations. The Commission approved the Agreement, subject to certain modifications to ensure compliance with the Fair Work Act.

The Commission made orders approving the Enterprise Agreement 2022, with certain modifications to ensure compliance with the Fair Work Act. The modifications related to the calculation of penalties for non-compliance with the Agreement, and the procedure for resolving disputes under the Agreement. The Applicant was directed to lodge the modified Agreement with the Commission within 14 days of the decision.

Monash Graduate Association (Mga) Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established