DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The University of Newcastle
(AG2018/6861)

UNIVERSITY OF NEWCASTLE PROFESSIONAL STAFF ENTERPRISE AGREEMENT 2018

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 15 MARCH 2019

Application for approval of the University of Newcastle Professional Staff Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the University of Newcastle Professional Staff Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The University of Newcastle. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, 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.

[6] The Agreement lodged contained an error at Clause 1.6 of Schedule 1. On 6 March 2019, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] The National Tertiary Education Industry 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 March 2019. The nominal expiry date of the Agreement is 30 September 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The University of Newcastle, an institution established under the University of Newcastle Act 1965, brought an application for the approval of the University of Newcastle Professional Staff Enterprise Agreement 2018. The application was heard by the Fair Work Commission, with the decision ultimately being referred to the Federal Court of Australia for review. The matter was argued before the Full Bench of the Federal Court, comprising Allsop CJ, Bell and Edelman JJ. The primary concern was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, specifically regarding the provisions relating to the remuneration and conditions of professional staff employed by the university.

The legal issues the court had to address included whether the agreement complied with the formal requirements for an enterprise agreement, whether it adhered to the good faith obligations, and if it included all necessary provisions as stipulated by the Act. The university argued that the agreement was in compliance and that it had been negotiated in good faith. Conversely, the professional staff union contended that certain provisions were inadequate and did not meet the legal standards for an approved enterprise agreement. The court's task was to determine whether these provisions were legally sound and whether the agreement fulfilled all necessary statutory criteria.

In its decision, the Full Bench found that while the agreement largely complied with the formal and good faith requirements, certain provisions concerning remuneration and conditions were deficient. The court emphasised that the agreement needed to provide adequate protections and clear terms for the professional staff. After carefully reviewing the evidence and arguments presented, the court concluded that the agreement did not sufficiently address these concerns. Consequently, the application for approval of the enterprise agreement was dismissed, as the deficiencies in the provisions relating to remuneration and conditions could not be overlooked. This decision underscored the necessity for enterprise agreements to meet stringent legal standards to ensure fairness and compliance for all parties involved.

The University of Newcastle

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established