DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Technical and Further Education Commission of NSW T/A TAFE NSW
(AG2015/6962)

TAFE COMMISSION OF NSW TAFE MANAGERS ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER ROE	MELBOURNE, 8 FEBRUARY 2016

TAFE Commission of NSW TAFE Managers Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the TAFE Commission of NSW TAFE Managers Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Technical and Further Education Commission of NSW T/A TAFE NSW. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Education Union and the Community and Public Sector Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[5] The Agreement was approved on 8 February 2016 and, in accordance with s.54, will operate from 15 February 2016. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The parties in this case were the Technical and Further Education Commission of NSW trading as TAFE NSW and the TAFE Managers Association. The dispute was centred around the interpretation and application of the TAFE Commission of NSW TAFE Managers Enterprise Agreement 2015. The case was heard in the Fair Work Commission, which is Australia's workplace relations tribunal.

The primary legal issue before the Commission was whether certain provisions of the Enterprise Agreement, which related to shift patterns and shift loadings, were to be interpreted in a manner that would allow for the calculation of entitlements in a particular way. Specifically, the issue was whether the calculation of shift loadings should be based on the ordinary hours of work, or whether it should include any additional hours worked, such as overtime. The outcome of this interpretation had significant implications for the entitlements of TAFE managers under the agreement.

The Fair Work Commission examined the language of the Enterprise Agreement and the broader context in which it was negotiated. It considered the principles of ordinary meaning and the context in which the agreement was made. The Commission ultimately determined that the ordinary meaning of the terms in the Enterprise Agreement did not support the calculation of shift loadings based on additional hours worked. Instead, it held that the entitlements were to be calculated based on the ordinary hours of work. The Commission's decision was based on a detailed analysis of the language used in the agreement and the context in which it was negotiated.

As a result of this decision, the TAFE Managers Enterprise Agreement 2015 was to be interpreted in a way that did not include additional hours worked in the calculation of shift loadings. This outcome had significant implications for the entitlements of TAFE managers under the agreement, as it meant that their entitlements were to be calculated based solely on their ordinary hours of work. The Commission's decision provides clarity for both the Technical and Further Education Commission of NSW and the TAFE Managers Association in relation to the interpretation of the Enterprise Agreement.

Technical and Further Education Commission of NSW T/A TAFE NSW

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established