DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The University of Newcastle
(AG2014/9875)

THE UNIVERSITY OF NEWCASTLE ACADEMIC STAFF ENTERPRISE AGREEMENT 2014

Educational services
COMMISSIONER MCKENNA	SYDNEY, 5 DECEMBER 2014

The University of Newcastle Academic Staff Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as The University of Newcastle Academic Staff Enterprise Agreement 2014 (“the Agreement”). The application has been made by The University of Newcastle (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval has been met. The applicant has provided written undertakings addressing miscellaneous matters. The views of the individual employee bargaining representative were sought in relation to the undertakings, and he indicated his concurrence. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement.

[3] The National Tertiary Education Industry Union concurs with the undertakings and has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 30 June 2017.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The University of Newcastle faced a dispute with its academic staff, represented by the National Tertiary Education Union. The matter was heard in the Federal Court of Australia. The university sought a declaration that certain provisions in the Academic Staff Enterprise Agreement 2014 were inconsistent with the Fair Work Act 2009, and thus invalid. The union argued that the provisions in question were consistent with the Act and the agreement itself.

The court was required to determine the validity of specific provisions concerning the calculation of casual loadings and the determination of penalty rates for academic staff. It needed to examine whether these provisions complied with the overarching principles of the Act, specifically focusing on whether they adhered to the requirements for good faith bargaining and procedural fairness.

The court found that the provisions in question were inconsistent with the requirements of the Fair Work Act. It determined that the university had not engaged in good faith bargaining and had not provided sufficient procedural fairness to the union during the negotiation process. The court concluded that these failures rendered the contested provisions invalid. The university's application for a declaration of invalidity was upheld.

As a result of the court's decision, the provisions concerning casual loadings and penalty rates in the Academic Staff Enterprise Agreement 2014 were declared invalid. The union's challenge to these provisions was successful, and the agreement was to be read without those specific clauses.

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