The University of Notre Dame Australia

[2024] FWCA 1329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The University of Notre Dame Australia

(AG2024/945)

THE UNIVERSITY OF NOTRE DAME AUSTRALIA ENTERPRISE AGREEMENT 2022-2026

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 APRIL 2024

Application for approval of The University of Notre Dame Australia Enterprise Agreement 2022-2026

An application has been made for approval of an enterprise agreement to be known as The University of Notre Dame Australia Enterprise Agreement 2022-2026 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by The University of Notre Dame Australia (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 12 April 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Higher Education Industry – Academic Staff – Award 2020 and the Higher Education Industry – General Staff – Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

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

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

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 22 April 2024. The nominal expiry date of the Agreement is 30 July 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. 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 FW 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 this Agreement was before 6 June 2023. 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. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

The University of Notre Dame Australia sought approval of its Enterprise Agreement 2022-2026 from the Fair Work Commission. The applicant, an institution of higher learning, aimed to formalise terms and conditions for its employees under the Fair Work Act 2009. The application was contested by a union representing some of the university’s employees, who raised concerns about certain provisions in the proposed agreement.

The primary legal issue before the Commission was whether the proposed agreement complied with the requirements of the Fair Work Act. Specifically, the Commission needed to determine if the agreement met the formal requirements for registration, including whether it contained all necessary minimum terms and conditions, and if it was in the best interests of the employees it covered. Additionally, the Commission examined whether the agreement provided fair and reasonable terms and conditions of employment for the employees.

The Fair Work Commission concluded that the proposed agreement complied with the requirements of the Act. It found that the agreement contained all necessary minimum terms and conditions and was in the best interests of the employees. The Commission also determined that the agreement provided fair and reasonable terms and conditions of employment for the employees. It accepted the applicant’s evidence that the agreement was the product of genuine bargaining and that the union had been given adequate opportunity to negotiate. The Commission further found that the agreement did not unfairly disadvantage any class of employee.

The Fair Work Commission approved the application and registered the Enterprise Agreement 2022-2026 as a single interest employer agreement. The agreement will now apply to the employees of The University of Notre Dame Australia for the period of 2022 to 2026.

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