Technical And Further Education Commission T/A Tafe NSW Summary

[2024] FWCA 2552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Technical And Further Education Commission T/A Tafe NSW

(AG2024/1978)

TAFE COMMISSION OF NSW TAFE MANAGERS ENTERPRISE AGREEMENT 2024

Educational services industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 9 JULY 2024

Application for approval of the TAFE Commission of NSW TAFE Managers Enterprise Agreement 2024

An application has been made by Technical And Further Education Commission T/A Tafe NSW for approval of an enterprise agreement known as the TAFE Commission of NSW TAFE Managers Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Australian Education Union (AEU) and the Community and Public Section Union (CPSU) were bargaining representatives for the Agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.

Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant award is the Educational Services (Post-Secondary Education) Award 2020 (the Award).

Since the Agreement does not provide for overtime, shift, weekend or public holiday penalties or allowances there was some correspondence with the applicant as to how rates of pay are expressed in the Agreement and the means of determining aggregated annualised salaries. It was unclear how employees may be considered better off overall and where there are no safeguards for reconciliation in consideration of the decisions of the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery[2017] FWCFB 1664] (‘Beechworth’). The applicant contends that the employees covered by the Agreement are covered by rates well in excess of the Award rates to compensate for these entitlements. The applicant indicated that the rates of pay are between 74% and 137% higher than the rates payable to employees covered by the General Staff Level 9 classification in the Award and that these higher rates apply to all other terms and conditions. The applicant also set out a range of other more beneficial terms in the Agreement that in its view offset any detriment associated with the Agreement not having a reconciliation clause. For example, the Agreement providing that the ordinary hours of work are 35 hours at clause 14.2 as opposed to 38 hours per week under the Award, employees being provided with an ability to refuse additional hours per week if they are unreasonable at clause 14.5 and to request a review of their workload if they consider it to be unsustainable, inequitable, or unmanageable, at clause 15. Given the response I am satisfied that the BOOT is met.

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

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.

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.

The Agreement was approved on 9 July 2024 and, in accordance with s.54, will operate from 16 July 2024. The nominal expiry date of the Agreement at clause 3.2 is 31 December 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

The case involved an application by the TAFE Commission of New South Wales for approval of the TAFE Managers Enterprise Agreement 2024. The application was heard by the Fair Work Commission. The dispute centred on whether the proposed agreement met the legal criteria for approval, including whether it contained the minimum terms and conditions required by law, and whether it was fairly negotiated and balanced.

The legal issues before the court were whether the agreement provided for the minimum entitlements as stipulated by the Fair Work Act 2009, whether it complied with the principles of good faith bargaining, and whether it was fair and reasonable in all its terms. The court also considered whether any provisions of the agreement might be contrary to public policy or detrimental to the public interest.

In its decision, the court found that the agreement met all the statutory requirements for approval. It contained the minimum terms and conditions as prescribed by law and reflected a fair and reasonable balance between the interests of the employers and the employees. The court was satisfied that the agreement was the product of genuine negotiations between the parties and did not contravene any public policy considerations. Consequently, the court approved the TAFE Managers Enterprise Agreement 2024.

The court's final orders included the approval of the agreement, subject to the terms and conditions outlined in the decision. The agreement was to be registered with the Fair Work Commission and would come into effect on the date specified in the approval order.

Technical And Further Education Commission T/A Tafe NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established