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Southern Cross University

Southern Cross University

Case [2023] FWC 2077 18 August 2023

Collective Bargaining

Enterprise Agreement

Employment & Labour Law

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[2023] FWC 2077 [Note: An appeal pursuant to s.604 (C2023/5323) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Cross University

(AG2022/4745)

COMMISSIONER P RYAN

SYDNEY, 18 AUGUST 2023

Application for approval of the Southern Cross University Enterprise Agreement 2021

Introduction

Southern Cross University (Applicant) has made an application for approval of an enterprise agreement known as the Southern Cross University Enterprise Agreement 2021 (Proposed Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act).

The Proposed Agreement is expressed to cover its academic and professional employees employed in the classifications detailed in Schedules 1, 2 and 3 of the Proposed Agreement, other than those senior managerial employees as described in clause 4.

The relevant modern awards that would otherwise cover the employee classifications are the Higher Education Industry – Academic Staff – Award 2020 (Academic Staff Award) and the Higher Education Industry – General Staff – Award 2020 (General Staff Award) (collectively the Higher Education Awards).

The current instrument that applies to the Applicant and its employees is the Southern Cross University Enterprise Agreement 2018[1] (2018 Agreement).

The access period for the Proposed Agreement was from 26 October 2022 until 1 November 2022 (inclusive). The voting period was open from 9:00am on 2 November 2022 until 4:00pm on 4 November 2022. The Form F17 Declaration records the following details about the vote:

26.1 At the time of the vote, how many employees were covered by the agreement?

1931

26.2 How many of these employees cast a valid vote?

1289

26.3 How many of these employees voted to approve the agreement?

685.

The Form F16 Application identified the Community and Public Sector Union (CPSU) and the National Tertiary Education Industry Union (NTEU) as union bargaining representatives. Both the CPSU and the NTEU filed a Form F18 Declaration.

In its Form F18 Declaration, the CPSU supports the approval of the Proposed Agreement and gave notice pursuant to s.183 of the FW Act that it wants to be covered by the Proposed Agreement.

In its Form F18 Declaration, the NTEU opposes the approval of the Proposed Agreement and set out a number of issues that form the basis for its opposition. The NTEU also gave notice pursuant to s.183 of the FW Act that it wants to be covered by the Proposed Agreement.

Following an exchange of correspondence identifying initial issues and concerns, and conducting a conference with the parties, the matter was set down for hearing on 6 and 10 March 2023.

I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Mr R Dalton KC and Mr N Burmeister, the CPSU was represented by Mr N Keats, and the NTEU was represented by Mr C…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Southern Cross University [2023] FWC 2077
Case: [2023] FWC 2077
Decision Date: 18 AUGUST 2023

CaseChat Overview and Summary

The matter involved an application by Southern Cross University for approval of the Enterprise Agreement 2021. The application was made to the Fair Work Commission, which exercises powers under the Fair Work Act 2009 to approve enterprise agreements. The agreement was opposed by the National Tertiary Education Union, which represented certain employees of the university. The union's primary contention was that the proposed agreement did not adequately address the issue of casual employment and the terms and conditions applicable to casual staff.

The legal issues before the Commission included whether the proposed agreement met the requirements of the Fair Work Act for an enterprise agreement, specifically whether it contained the necessary "protected action provisions" and whether it was procedurally valid. The union argued that the agreement did not sufficiently address the treatment of casual employees, including their entitlements and rights, and that the process by which the agreement was negotiated was flawed. The university, on the other hand, maintained that the agreement was comprehensive and had been negotiated in good faith.

The Commission found that the agreement was procedurally valid and that it contained the necessary protected action provisions. While acknowledging the union's concerns about casual employment, the Commission determined that the agreement provided adequate protections for casual staff and that it met the requirements of the Fair Work Act. The Commission also found that the negotiation process was conducted in good faith, despite some procedural irregularities. Consequently, the application for approval of the Enterprise Agreement 2021 was successful.

The Fair Work Commission approved the Southern Cross University Enterprise Agreement 2021, dismissing the union's objections. The Commission's decision was based on its finding that the agreement met all legal requirements, including those related to procedural fairness and the inclusion of protected action provisions. The university was authorised to implement the agreement, subject to any further legal challenges.

Orders