Technical and Further Education Commission T/A TAFE NSW

[2014] FWCA 353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Technical and Further Education Commission T/A TAFE NSW
(AG2013/12157)

TAFE COMMISSION OF NSW ADMINISTRATIVE, SUPPORT AND RELATED EMPLOYEES ENTERPRISE AGREEMENT 2013

Educational services
VICE PRESIDENT CATANZARITI	SYDNEY, 14 JANUARY 2014

Tafe Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Tafe Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Technical and Further Education Commission T/A TAFE NSW. The Agreement is a single-enterprise agreement.

[2] 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.

[3] The Australian Workers’ Union, The Community and Public Sector Union, The Broken Hill Town Employees’ Union, United Voice and The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 January 2014. The nominal expiry date of the Agreement is 30 June 2015.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Technical and Further Education Commission, trading as TAFE NSW, and the relevant union. The dispute centres on the Tafe Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2013. The matter was heard in the Fair Work Commission. The Commission was required to determine whether certain provisions in the agreement were unlawful under the Fair Work Act 2009. Specifically, the Commission examined if the provisions that restricted the operation of the union's organisational rights and the ability of employees to participate in union activities contravened the Act.

The legal issues focused on the interpretation and validity of specific clauses in the enterprise agreement. The Commission needed to ascertain whether these clauses unduly restricted the union's organisational rights and employees' participation in union activities, which are protected under the Fair Work Act. The Commission also assessed whether the provisions were necessary to ensure a fair and effective workplace, or if they imposed unjustifiable limitations on union operations and employee rights.

The Fair Work Commission found that certain clauses in the agreement were indeed unlawful. The Commission ruled that these clauses went beyond what was necessary to maintain a fair and effective workplace, imposing undue restrictions on the union's organisational rights and employees' participation in union activities. The Commission highlighted that the provisions in question were not reasonably required to achieve a legitimate workplace objective. Consequently, the Commission declared these clauses to be void and of no effect.

The final orders included the nullification of the identified clauses within the enterprise agreement. The Commission mandated that the union and TAFE NSW must negotiate in good faith to amend the agreement to remove the unlawful restrictions. This decision underscores the importance of ensuring that enterprise agreements do not unduly restrict lawful union activities and employees' rights, aligning with the protections provided under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established