National Tertiary Education Industry Union v Swinburne University of Technology

The National Tertiary Education Industry Union (NTEU) brought proceedings against Swinburne University of Technology (Swinburne) and the Fair Work Commission (FWC) regarding the approval of an enterprise agreement. The NTEU argued that the agreement was not validly approved because the majority of votes cast were not from employees employed at the time of voting, as required by the Fair Work Act 2009 (Cth). The dispute was heard in the Full Court of the Federal Court of Australia.

The legal issues before the court centred on whether the FWC applied the correct test in approving the enterprise agreement. The NTEU contended that the FWC had misapplied the statutory test by not ensuring that a majority of the votes cast were from employees who were employed at the relevant time. The court needed to determine whether the FWC's approval of the agreement was legally sound, and if not, whether the court should issue a writ of certiorari to quash the approval and a writ of mandamus to compel the FWC to reassess the application according to law.

The Full Court found that the FWC had indeed applied the wrong test in approving the enterprise agreement. The court emphasised that the Act requires a majority of the votes cast to be from employees employed at the time of voting, and the FWC had failed to properly apply this requirement. Consequently, the Full Court quashed the FWC's approval of the agreement and issued a writ of mandamus directing the FWC to reassess the NTEU's application for approval of the agreement in accordance with the correct legal test.

The court ordered that a writ of certiorari be issued to the FWC to quash its approval of the Swinburne University of Technology Academic and General Staff Enterprise Agreement 2014. Additionally, the court ordered that a writ of mandamus be issued to the FWC, requiring it to reassess the NTEU's application for approval of the agreement according to the correct legal principles. These orders were intended to ensure that the FWC properly applied the statutory requirements in future assessments of enterprise agreements.