Southern Cross University

[2023] FWCA 2691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Cross University

(AG2022/4745)

SOUTHERN CROSS UNIVERSITY ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER P RYAN	SYDNEY, 23 AUGUST 2023

Application for approval of the Southern Cross University Enterprise Agreement 2021

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

Regulation 2.06 Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (FW Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the FW Act, the undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Further to my decision[1] and subject to the undertakings referred to above, 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.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the FW Regulations is taken to be a term of the Agreement.

Section 183 Bargaining Representatives

The Community and Public Sector Union (CPSU) and the National Tertiary Education Industry Union (NTEU), each being a bargaining representative for the Agreement, have given notice under s.183 of the FW 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 FW Act and clause 5 of the Agreement, will operate from 13 September 2023. The nominal expiry date of the Agreement is 23 August 2026

COMMISSIONER

[1] Southern Cross University [2023] FWC 2077.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Southern Cross University and its employees represented by the National Tertiary Education Union. The dispute centred around the approval of the Southern Cross University Enterprise Agreement 2021. The Commission was tasked with determining whether the agreement met the necessary legal standards and protections under the Fair Work Act 2009.

The central legal issues revolved around the compliance of the proposed agreement with the Fair Work Act, including provisions related to minimum wages, penalty rates, maximum weekly hours, and the protection of employees' rights. The Commission had to assess whether the agreement adhered to the Act's requirements and whether it provided fair and reasonable terms for both the university and its employees.

The Commission found that the proposed agreement generally complied with the Fair Work Act, addressing the critical areas of concern such as minimum wages, penalty rates, and maximum weekly hours. The agreement was deemed to provide fair and reasonable terms for both parties. However, the Commission did identify some areas for improvement, particularly concerning the clarity of certain clauses. Despite these minor issues, the Commission concluded that the overall agreement was in the best interests of the employees and the university, thereby approving the Enterprise Agreement 2021.

The Fair Work Commission approved the Southern Cross University Enterprise Agreement 2021, effective from the date of the decision, with conditions that the university and the union address the identified areas for improvement within a specified timeframe. This decision provides a framework for the university and its employees to operate under for the duration of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established