The University of Newcastle

[2023] FWCA 2941

[2023] FWCA 2941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The University of Newcastle

(AG2023/2808)

THE UNIVERSITY OF NEWCASTLE PROFESSIONAL STAFF ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 13 SEPTEMBER 2023

Application for approval of the University of Newcastle Professional Staff Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the University of Newcastle Professional Staff Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 3 August 2023.

1. The NTEU has raised an issue concerning the entitlement of part-time and casual employees to overtime under the Agreement. The NTEU contends that the provisions in the Agreement concerning overtime for part-time employees and casuals are detrimental for employees compared to the equivalent provisions in the Higher Education Industry – General Staff – Award 2020 (Award). I do not agree. In my view, the overtime provisions in the Agreement that apply to all employees, including part-time and casual employees, are substantively the same as the Award. The reason I have reached this conclusion is explained by the Full Bench in 4 yearly review of modern awards – Overtime for casuals [2020] FWCFB 5636 at [75]-[93], including the fact that under clause 22.1 of the Award the trigger for overtime payments is “authorised work performed outside of, or in excess of, the employee’s ordinary or rostered hours under clause 15” [emphasis added]. Clause 15.1 of the Award deals with ordinary hours for employees other than shiftworkers. Clause 15.2 governs ordinary hours and rostering for shiftworkers. Clause 15 does not address rostering for non-shiftworkers, other than to say in clause 15.1(a) that “Ordinary hours may be worked in a manner agreed over a 4 week cycle as follows”. The overtime provisions in the Agreement do not operate in a materially different manner to those in the Award. Accordingly, I am satisfied that this issue does not give rise to a detriment for part-time or casual employees. In any event, I am satisfied that all employees covered by the Agreement will be better off overall under the Agreement compared to the Award, having regard to the higher pay rates under the Agreement (between 10% and 50% above the Award) and the other benefits provided for in the Agreement compared to the detriments identified in the material filed by the parties.

1. I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The CPSU, the Community and Public Sector Union, and the National Tertiary Education Industry Union, each being a bargaining representative for the Agreement, have given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers each organisation.

1. The Agreement is approved and, in accordance with section 54 of the Act, will operate from 20 September 2023. The nominal expiry date of the Agreement is 30 April 2025.

DEPUTY PRESIDENT

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