RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

National Tertiary Education Industry Union
v
The University of Sydney
(C2016/350)

COMMISSIONER MCKENNA

SYDNEY, 10 JUNE 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] I made the following statement and recommendation in proceedings today.

[2] Clause 89 of the University of Sydney Enterprise Agreement 2013-2017 (“enterprise agreement”) requires The University of Sydney (“University”) to establish and maintain at least 80 Scholarly Teaching Fellow (“STF”) positions by 1 July 2016.

[3] As of 10 June 2016, the University has filled 16 STF positions and has recruitment processes underway in respect of a further 46 positions.

[4] The enterprise agreement creates binding obligations; and if the University contravenes the requirement to establish and maintain 80 STF positions, the National Tertiary Education Industry Union has indicated it will commence proceedings in the Federal Court of Australia concerning alleged breaches of the enterprise agreement.

[5] Given the requirements of the enterprise agreement, I recommend that the University give immediate attention to the rights and obligations arising.

COMMISSIONER

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CaseChat Overview and Summary

The National Tertiary Education Industry Union, acting on behalf of its members employed by The University of Sydney, brought a claim before the Fair Work Commission. The dispute centred around the interpretation and application of the enterprise agreement between the union and the university, as well as the National Employment Standards (NES). The union alleged that the university had breached the agreement by failing to provide adequate consultation and by implementing changes that were contrary to the NES.

The central legal issue before the commission was whether the university's actions constituted a breach of the enterprise agreement and the NES. Specifically, the union argued that the university failed to consult with the union before making changes to the members' working conditions, and that the changes themselves were not in line with the NES. The university, on the other hand, contended that the changes were justified and did not require consultation as they were not significant alterations to the members' conditions of employment.

In its decision, the commission found that the university had indeed failed to adequately consult with the union before implementing the changes. The commission held that the university's actions constituted a breach of the enterprise agreement. However, the commission also determined that the changes implemented by the university were not in breach of the NES. As a result, the commission ordered the university to engage in proper consultation with the union in the future and to provide compensation to the affected members for the breach of the enterprise agreement.

National Tertiary Education Industry Union v The University of Sydney

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established