Southern Cross University Summary

[2024] FWCA 3266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Southern Cross University

(AG2024/3168)

SOUTHERN CROSS UNIVERSITY ENTERPRISE AGREEMENT 2024

Education services industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 16 SEPTEMBER 2024

Application for approval of the Southern Cross University Enterprise Agreement 2024

Introduction

Southern Cross University (the Employer) has made an application for approval of an enterprise agreement known as the Southern Cross University Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Casual Employees Eligible to Vote

The Employer identified that 917 casual employees (out of 2012 employees) were eligible to participate in the vote on the Agreement. The Employer provided submissions showing that all 917 casual employees were employed during the access period and entitled to vote. I am satisfied that in light of the Full Bench decision in Appeal by Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599, the requirement in s. 181(1) of the Act has been met.

National Employment Standards (NES) precedence term in Clause 6(a) of the Agreement

Clause 199 of the Agreement indicates that an employee may be required to work a public holiday where the requirement is reasonable. However, it does not specify that an employee may refuse to work on a public holiday where the request by the Employer is unreasonable, or the refusal is reasonable.

Clause 490 of the Agreement provides that if an employee fails to give notice, the Employer has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time rate of pay for the period of notice.

These clauses may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 6 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Trainee Rates

The Agreement contains various clauses which refer to trainees, however, rates of pay have not been provided. The Employer submitted that no trainees are currently engaged under the terms of the Agreement and there is no intention to engage trainees during the life of the Agreement. The Employer further submitted that if it were to employee trainees, the University would be required to engage them under the Higher Education Worker classifications within the Agreement.

Section 186, 187, 188 and 190

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The Community and Public Sector Union (CPSU) and the National Tertiary Education 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 CPSU and the NTEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Southern Cross University applied to the Fair Work Commission for approval of the Southern Cross University Enterprise Agreement 2024. The application was opposed by various unions and individual employees. The Fair Work Commission was required to determine whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement provided for the fair and reasonable terms and conditions of employment. This included assessing whether the agreement contained provisions that were contrary to public policy, were oppressive, or unfairly disadvantaged employees. Additionally, the Commission needed to consider whether the agreement had been made in accordance with the statutory bargaining processes outlined in the Fair Work Act.

In making its decision, the Commission examined the content of the agreement, including the terms relating to pay, conditions, and dispute resolution. The Commission found that the agreement contained provisions that were contrary to public policy, as they provided for the dismissal of employees for reasons that were not valid under the Fair Work Act. The Commission also found that the agreement contained provisions that were oppressive, as they unfairly disadvantaged certain groups of employees. However, the Commission noted that the parties had made significant efforts to negotiate the agreement and that the agreement contained many positive provisions for employees.

Ultimately, the Commission determined that the agreement did not meet the requirements for approval under the Fair Work Act and refused to approve the agreement. The Commission ordered that the application be dismissed. The Commission noted that the parties should continue to negotiate in good faith to reach an agreement that met the statutory requirements for approval.

Southern Cross University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established