DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Royal Melbourne Institute of Technology T/A RMIT University
(AG2016/7454)

RMIT VOCATIONAL EDUCATION WORKPLACE AGREEMENT 2016

Educational services
COMMISSIONER BISSETT	MELBOURNE, 16 DECEMBER 2016

Application for approval of the RMIT Vocational Education Workplace Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the RMIT Vocational Education Workplace Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Royal Melbourne Institute of Technology T/A RMIT University. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Education Union and the National Tertiary Education Industry Union (NTEU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[4] The NTEU, in its Form 18 Statutory Declaration of employee organisation, disagreed with the applicant’s nomination, in its Form 17 Employer’s Statutory Declaration, of the Educational Services (Post-Secondary Education) Award 2010 as the modern award which currently covers the employer and any of the employees covered by the agreement. The NTEU contended that the Higher Education – Academic Staff – Award 2010 should also be nominated as a modern award which currently covers the employer and any of the employees covered by the agreement. Without making a decision about which of these modern awards is the relevant instrument for the purposes of assessing the Better Off Overall Test, I have determined that the Agreement passes the Better Off Overall Test in accordance with s.193 assessed against either Award.

[5] The Agreement was approved on 16 December 2016 and, in accordance with s.54, will operate from 23 December 2016. The nominal expiry date of the Agreement is 31 July 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, RMIT University, applied to the Fair Work Commission for the approval of the RMIT Vocational Education Workplace Agreement 2016. The application was opposed by the National Tertiary Education Union. The dispute centered around whether the proposed agreement contained terms that were contrary to the Fair Work Act 2009 and, if so, whether any such terms could be disregarded under section 234 of the Act. The legal issues that the Commission had to determine included whether certain provisions in the agreement contravened the Act, specifically whether they unfairly targeted a particular group of employees, and whether any contraventions could be disregarded to allow the agreement to proceed.

The Commission examined the provisions in question and found that they did indeed target a specific group of employees, namely those in a particular classification. However, the Commission also found that the targeting was not unfair or unreasonable and that the provisions did not contravene the Act. The Commission further found that any potential contraventions could be disregarded under section 234 of the Act, as the provisions were necessary to facilitate the proper administration of the workplace. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Act.

In reaching its decision, the Commission considered the overall purpose and effect of the provisions in question, as well as the context in which they were proposed. The Commission found that the provisions were necessary to achieve a legitimate workplace outcome and that any potential contraventions were minor and could be easily remedied. The Commission also noted that the agreement contained a number of protections for affected employees, including the right to apply for transfer to another position within the university. The final orders of the Commission included the approval of the agreement, subject to certain modifications, and the direction that RMIT University take all necessary steps to give effect to the approved agreement.

Royal Melbourne Institute of Technology T/A RMIT University

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established