Tasmanian University Union Inc

[2024] FWCA 4110

[2024] FWCA 4110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Tasmanian University Union Inc

(AG2024/4003)

TASMANIAN UNIVERSITY UNION ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER CONNOLLY	MELBOURNE, 25 NOVEMBER 2024

Application for approval of the Tasmanian University Union Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Tasmanian University Union Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tasmanian University Union Inc (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 6 November 2024.

1. The notification time for the Agreement under s.173(2) was 18 March 2024 and the Agreement was made on 30 September 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 15 November 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Deduction/withholding of monies due to the employee under the NES on termination: Clause 14(a)(x) provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. We note that Clause 14(a)(x) does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination). This raises the issue that Clause 14(a)(x) may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that “The Award and the NES and should be read and interpreted in conjunction with this Agreement. Where there is an inconsistency between Award or the NES and this Agreement, the Award or the NES will prevail in matters where the Agreement is silent or doesn’t provide a greater benefit. The Award or NES provision will apply to the extent of any inconsistencies in the aforementioned circumstances.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 18 November 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. The “National Tertiary Education Industry Union”, 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

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

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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