Swinburne University of Technology

[2022] FWCA 4178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swinburne University of Technology

(AG2022/4821)

Swinburne University of Technology – Vocational Education and Training Enterprise Agreement 2022

Educational services
COMMISSIONER JOHNS	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the Swinburne University of Technology – Vocational Education and Training Enterprise Agreement2022

An application has been made for approval of an enterprise agreement known as the Swinburne University of Technology – Vocational Education and Training Enterprise Agreement2022 (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.

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.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by Swinburne University of Technology for the approval of the 2022 Vocational Education and Training Enterprise Agreement. The agreement was intended to govern the employment conditions of staff within the vocational education and training sector of the university. The dispute arose as the university sought to implement changes to the existing employment terms, which the staff representatives contested on the grounds that the proposed changes were not adequately justified and failed to protect the rights and interests of the employees. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The legal issues central to the decision involved whether the agreement provided for fair and reasonable terms and conditions of employment, including provisions for minimum rates of pay, overtime, leave entitlements, and other employment benefits. The Commission also had to assess whether the agreement included appropriate mechanisms for resolving disputes and whether it adequately protected the rights of employees. Furthermore, the university was required to demonstrate that it had engaged in genuine bargaining with the staff representatives and that the agreement reflected the outcomes of this process.

In its decision, the Commission found that the proposed agreement largely met the statutory requirements for approval. The Commission recognised that the agreement provided for fair and reasonable terms and conditions of employment, ensuring that employees received adequate remuneration and benefits. The inclusion of provisions for resolving disputes and the evidence of genuine bargaining efforts were also noted as positive factors. However, the Commission identified some areas for improvement, particularly regarding the clarity and accessibility of certain provisions. Despite these minor shortcomings, the overall balance of the agreement was deemed to be in the interests of both the university and its employees. Consequently, the Commission approved the agreement, subject to the university addressing the identified areas for improvement in future negotiations.

The final orders of the Commission included the approval of the Swinburne University of Technology Vocational Education and Training Enterprise Agreement 2022, effective from the date of the decision. The university was directed to implement the approved agreement and to make necessary amendments to address the identified issues within a specified timeframe. Additionally, the Commission mandated ongoing consultation and negotiation between the university and staff representatives to ensure continuous improvement of the agreement and the working conditions of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established