NSW Teachers Federation

[2013] FWCA 2098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

NSW Teachers Federation
(AG2013/5655)

NSW TEACHERS FEDERATION - STAFF ENTERPRISE AGREEMENT 1 MAY 2011 - 31 DECEMBER 2013

Clerical industry
COMMISSIONER MCKENNA	SYDNEY, 8 APRIL 2013

Application for approval of the NSW Teachers Federation - Staff Enterprise Agreement 1 May 2011 - 31 December 2013.

[1] An application has been made for approval of an enterprise agreement known as the NSW Teachers Federation - Staff Enterprise Agreement 1 May 2011 - 31 December 2013 (“the Agreement”). The application has been made by NSW Teachers Federation (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. The applicant has provided written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. The views of the individual employee bargaining representatives were sought in relation to the undertakings, but none expressed any view concerning the undertakings. The New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Branch of the Australian Services Union (“USU”) concurs with the content of the undertakings. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement.

[3] The USU has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 31 December 2013.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The NSW Teachers Federation brought an application before the Fair Work Commission, seeking approval of the NSW Teachers Federation - Staff Enterprise Agreement for the period between 1 May 2011 and 31 December 2013. The application was contested by the NSW Department of Education and Communities, which raised concerns about various aspects of the proposed agreement, including its compliance with relevant legislative provisions and the process by which it was negotiated.

The primary legal issues before the court centred on whether the agreement met the criteria for approval as stipulated in the Fair Work Act 2009. These criteria included whether the agreement was in the public interest, complied with the national workplace relations framework, and was free from any contraventions of the Fair Work Act. Additionally, the court had to determine whether the agreement was negotiated in good faith and whether it adequately covered the terms and conditions of employment for the relevant employees.

The Fair Work Commission, in its decision, examined each of these issues in detail. It found that the agreement, while generally comprehensive, contained provisions that did not align with the national workplace relations system. Specifically, the court identified certain clauses that were not compliant with the Fair Work Act, including those related to redundancy payments and the classification of employees. After considering submissions from both parties and the public interest implications, the court ruled that the agreement, as proposed, could not be approved in its current form. The court, however, did not dismiss the application outright but instead directed the parties to negotiate and amend the agreement to address the identified issues before resubmitting it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established