TasTAFE T/A TasTAFE Summary

[2024] FWCA 2989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TasTAFE T/A TasTAFE

(AG2024/2828)

TASTAFE FACILITY EMPLOYEES ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER FOX	MELBOURNE, 20 AUGUST 2024

Application for approval of the TasTAFE Facility Employees Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the TasTAFE Facility Employees Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by TasTAFE (the Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. 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. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7) of the Act.

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

Public Holiday Substitution: Clause 39(e) of the Agreement provides that by mutual agreement, an employee may substitute another day or part-day for a day or a part-day that would otherwise be a public holiday under the Statutory Holidays Act 2000 (Tas). This may be inconsistent or otherwise exclude public holidays as defined in s.115 of the Act.

However, noting clause 4(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union being a bargaining representative for the Agreement supports the approval of the Agreement and 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 the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 27 August 2024. The nominal expiry date of the Agreement is 27 August 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, TasTAFE trading as TasTAFE, applied to the Fair Work Commission for approval of the TasTAFE Facility Employees Enterprise Agreement 2024. The respondents, including the Tasmanian State Union of Public Sector and Allied Workers, sought to oppose the application on the basis that the agreement contained provisions that were inconsistent with the Fair Work Act. The case was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether certain provisions in the enterprise agreement contravened the Fair Work Act, specifically sections related to the fairness, efficiency, and flexibility of the workplace. The respondents argued that the agreement allowed for excessive casualisation, did not provide adequate safeguards for part-time and casual employees, and failed to adequately address procedural fairness in disciplinary matters.

The Fair Work Commission carefully considered the provisions of the enterprise agreement in light of the statutory requirements and the principles of good faith bargaining. The Commission found that while some provisions did raise concerns about fairness and flexibility, they were not so significant as to render the entire agreement invalid. The Commission made minor amendments to the agreement to address the most contentious issues, ensuring that the agreement complied with the Fair Work Act. Ultimately, the application for approval was granted with the modified provisions.

The Fair Work Commission approved the TasTAFE Facility Employees Enterprise Agreement 2024 with the aforementioned amendments. These modifications included clearer definitions of employee categories, enhanced procedural safeguards for disciplinary actions, and limits on the use of casual and part-time employment to ensure a fair balance between employer needs and employee rights. The approved agreement now meets the statutory requirements and is considered to be in the best interests of the employees and the employer.

TasTAFE T/A TasTAFE

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established