Technical and Further Education Commission T/A TAFE NSW

[2023] FWCA 2129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Technical and Further Education Commission T/A TAFE NSW

(AG2023/1984)

TAFE COMMISSION OF NSW TEACHERS IN TAFE CHILDREN'S CENTRES ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 11 JULY 2023

Application for approval of the TAFE Commission of NSW Teachers in TAFE Children's Centres Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the TAFE Commission of NSW Teachers in TAFE Children's Centres Enterprise Agreement 2023 (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 (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that clause 2.3 of the Agreement provides that no term of the Agreement will operate to exclude the National Employment Standards (NES) or any provision of the NES.

The Australian Education Union New South Wales Teachers Federation Branch (AEU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the AEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the Technical and Further Education Commission trading as TAFE NSW, which sought approval for the TAFE Commission of NSW Teachers in TAFE Children's Centres Enterprise Agreement 2023. The application was brought before the Fair Work Commission, the body responsible for resolving workplace disputes and overseeing the approval of enterprise agreements in Australia. The primary dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009, including whether it provided for fair and reasonable terms and conditions of employment for the affected teachers.

The legal issues before the Commission included whether the proposed agreement provided for the employees' terms and conditions in a manner that was fair and reasonable, and whether it complied with the provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement appropriately balanced the interests of both employers and employees, and whether it contained all the mandatory terms required by law. The Commission also had to examine if the agreement provided for procedural fairness in its creation, including whether appropriate consultation had occurred between the parties.

In delivering its decision, the Commission noted that the proposed agreement contained terms that were fair and reasonable, taking into account the specific context of the TAFE sector and the unique nature of the work performed by teachers in children's centres. The Commission found that the agreement provided for appropriate minimum wages, leave entitlements, and other conditions of employment. Additionally, the Commission determined that the agreement had been developed through a process of genuine consultation between the employer and the employee representatives. Consequently, the Commission approved the application for the TAFE Commission of NSW Teachers in TAFE Children's Centres Enterprise Agreement 2023.

The Fair Work Commission approved the TAFE Commission of NSW Teachers in TAFE Children's Centres Enterprise Agreement 2023, finding that it met the legal requirements for approval under the Fair Work Act 2009. The decision highlights the importance of balancing the interests of both employers and employees in the creation of enterprise agreements, while ensuring that the process of consultation is genuine and transparent. The approval of this agreement sets a precedent for future agreements in the TAFE sector, providing a framework for fair and reasonable terms and conditions of employment for teachers in children's centres.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established