The Florey Institute of Neuroscience and Mental Health

[2024] FWCA 2345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Florey Institute of Neuroscience and Mental Health

(AG2024/1714)

The Florey Union Enterprise Agreement 2024

Scientific services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 24 JUNE 2024

Application for approval of The Florey Union Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Florey Union Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Florey Institute of Neuroscience and Mental Health. The Agreement is a single enterprise agreement.

The Employer 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. The undertakings are taken to be a term of the agreement.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The National Tertiary Education Industry Union (NTEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation. The NTEU supports approval of the Agreement.

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

·Clause 51.13 – Redeployment.

However, noting clause 4.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 July 2024. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission received an application to approve the Florey Union Enterprise Agreement 2024, made by The Florey Institute of Neuroscience and Mental Health under section 185 of the Fair Work Act 2009. This agreement governs the terms and conditions of employment for scientific services at the Florey Institute. The National Tertiary Education Industry Union (NTEU) is the bargaining representative for the agreement and supports its approval. The Deputy President of the Fair Work Commission, O’Neill, presided over the case in Melbourne on 24 June 2024.

The court had to determine if the agreement met the statutory requirements for approval under the Fair Work Act 2009, including whether it complied with sections 186, 187, 188, and 190. Additionally, the court had to assess whether the agreement would cause financial detriment to any employees or result in substantial changes. The court also had to consider the model flexibility term prescribed by the Fair Work Regulations 2009 and whether the agreement covered the relevant organisation as stipulated under section 201(2) of the Act. Finally, the court had to review any potential inconsistencies with the National Employment Standards (NES).

After reviewing the application and the terms of the agreement, the Deputy President concluded that the agreement met all the statutory requirements for approval. The employer had provided written undertakings that ensured no financial detriment would be caused to any employee and that there would be no substantial changes to the agreement. These undertakings were deemed a term of the agreement. The court also found that the model flexibility term prescribed by the Fair Work Regulations 2009 was incorporated into the agreement. The NTEU's notice under section 183 of the Act that it wanted the agreement to cover it was noted, and the agreement was found to cover the organisation. The Deputy President identified a potential inconsistency with the NES regarding the redeployment clause but was satisfied that the more beneficial entitlements of the NES would prevail where there was an inconsistency.

The Florey Union Enterprise Agreement 2024 was approved and will operate from 1 July 2024, with a nominal expiry date of 31 December 2025. The court's decision ensures that the agreement complies with the relevant legislative framework and protects the rights of employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established