The University of Western Australia

[2024] FWCA 581

[2024] FWCA 581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The University of Western Australia

(AG2023/5136)

UWA ACADEMIC EMPLOYEES ENTERPRISE AGREEMENT 2023

Industries not otherwise assigned
DEPUTY PRESIDENT BEAUMONT	PERTH, 15 FEBRUARY 2024

Application for approval of the UWA Academic Employees Enterprise Agreement 2023

1. The University of Western Australia (the Applicant) has made an application for the approval of an enterprise agreement known as the UWA Academic Employees Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. There were a number of casuals who were included in the voting cohort. This raised the concern that the Agreement may not have been made by a majority of employees who cast a valid vote (see ss 181(1) and 182(1) of the Act). At the time of the vote, there were 2,319 employees covered by the proposed Agreement,[1] 710 of whom were casual employees.[2]  Ultimately, 283 employees cast a ‘valid vote’ with 268 employees voting to approve the Agreement.[3]  Of those 283 employees who case a valid vote on the Agreement, eight were casual employees and those casual employees were ‘employed at the time’.[4] 

1. It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.

1. In the decision of St John of God Health Care Inc (St John),[5] I traversed the authorities that have considered the phrase ‘employed at the time’.  I do not intend to repeat here what was said in St John because based on the Applicant’s submissions, I am satisfied that the Agreement was made in accordance with s 182(1).

1. The Applicant has provided written undertakings.  A copy of the undertakings is attached in Annexure A.  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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. The National Tertiary Education Industry Union (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 15 February 2024 and, in accordance with s 54, will operate from 22 February 2024.  The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] Form F17A – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time before 6 June 2023, question 27.

[2] Ibid question 6.

[3] Ibid question 27.

[4] Witness Statement of Nashell Ireland, [9]. 

[5] [2023] FWCA 87.

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