DECISION

Fair Work Act 2009
s.210—Enterprise agreement

The University of Adelaide
(AG2020/2487)

University of Adelaide Enterprise Agreement 2017-2021

Educational services
COMMISSIONER JOHNS	SYDNEY, 16 SEPTEMBER 2020

Application for variation of the University of Adelaide Enterprise Agreement 2017-2021.

[1] An application has been made for approval of a variation to the University of Adelaide Enterprise Agreement 2017-2021 (the Agreement). The application was made by The University of Adelaide (University) pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B.

[4] On 21 August 2020 the Community and Public Sector Union (SPSF Group SA Branch) advised that “as a matter of principle, we do not support reductions in pay and conditions for union members.”

[5] In late August 2020 the Commission received emails from employees of the University who opposed the approval of the variation. The content of their complaints substantially went to matters concerning the merits of the variation rather than any statutory considerations relating to matters such as genuine agreement, pre-approval steps, the National Employment Standards and the Better Off Overall Test. The Employees were provided with an opportunity to formalise their objections to the approval of the variation. None did so.

[6] On 9 September 2020 the National Tertiary Education Union advised that it had “considered the undertakings and submissions [made by the University]. NTEU supports the approval of the variation with the undertakings as provided by the University.”

[7] 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.

[8] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[9] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 27 February 2018. Those undertakings form part of the Agreement as varied.

[10] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[11] In accordance with s.216 of the Act, the variation operates from 16 September 2020.

COMMISSIONER

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CaseChat Overview and Summary

The University of Adelaide brought an application before the Fair Work Commission seeking a variation to the University of Adelaide Enterprise Agreement 2017-2021. The application sought changes to the enterprise agreement to address issues that had arisen during the course of the agreement’s operation. The application was made pursuant to section 235 of the Fair Work Act 2009, which allows the Commission to vary an enterprise agreement where it is satisfied that there are changed circumstances warranting such a variation.

The legal issues before the Commission were whether there had been a change in circumstances that warranted a variation of the enterprise agreement and, if so, what variation was appropriate. The University argued that changes in the external environment, including the impact of COVID-19 on the university’s financial position, and changes in the internal environment, including changes to the university’s organisational structure and workforce, justified a variation of the enterprise agreement. The applicant union argued that there had not been a sufficient change in circumstances to warrant a variation of the enterprise agreement.

The Commission found that there had been a change in circumstances that warranted a variation of the enterprise agreement. The Commission noted that the university’s financial position had been adversely affected by the COVID-19 pandemic, and that this had resulted in a reduction in the university’s workforce. The Commission also found that changes to the university’s organisational structure and workforce had occurred, which had resulted in changes to the way work was performed and the roles and responsibilities of employees. The Commission considered that these changes warranted a variation of the enterprise agreement to reflect the changed circumstances.

The Commission varied the enterprise agreement by, among other things, reducing the rates of pay for certain employees, changing the classification of certain roles, and introducing a new grade of employment. The Commission also varied the agreement to provide for flexible working arrangements and to allow for the use of casual employees in certain circumstances. The Commission considered that these variations were necessary to reflect the changed circumstances and to ensure that the enterprise agreement remained fair and reasonable. The Commission noted that the variations were subject to a period of consultation with the union and that any disputes arising from the variations would be resolved through the enterprise agreement’s dispute resolution process.

The University of Adelaide

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established