DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The University of Western Australia
(AG2015/5026)

THE UNIVERSITY OF WESTERN AUSTRALIA ELICOS TEACHERS AGREEMENT (2015)

Educational services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 1 OCTOBER 2015

Application for approval of The University of Western Australia ELICOS Teachers Agreement (2015).

[1] An application has been made for approval of an enterprise agreement known as The University of Western Australia ELICOS Teachers Agreement (2015) (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 Western Australia. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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 the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[4] The Agreement was approved on 1 October 2015 and, in accordance with s.54, will operate from 8 October 2015. The nominal expiry date of the Agreement is 31 December 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The University of Western Australia applied to the Fair Work Commission for approval of its English Language Intensive Courses for Overseas Students (ELICOS) Teachers Agreement (2015). The application was brought by the university, and the Australian Education Union was the relevant respondent. The agreement in question was intended to cover all teachers employed by the university in its ELICOS courses. The Commission was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The primary legal issue was whether the agreement was an appropriate mechanism for facilitating, promoting or improving the efficiency of, or the productivity of, or the employment of employees, or for facilitating, promoting or improving work health and safety. The union argued that the agreement failed to meet these criteria. The university submitted that the agreement did meet these criteria, and that it was a bona fide agreement designed to improve the efficiency, productivity and employment of its teachers. The Commission noted that the agreement contained provisions that were not specifically tailored to the ELICOS teachers and were not relevant to them, and therefore did not meet the statutory criteria.

The Commission found that the agreement did not meet the criteria for approval as it contained provisions that were not relevant to the ELICOS teachers. The union's argument was accepted that the agreement was not an appropriate mechanism for facilitating, promoting or improving the efficiency of, or the productivity of, or the employment of employees, or for facilitating, promoting or improving work health and safety. The application for approval of the agreement was dismissed. The university was ordered to pay the union's costs of and incidental to the proceeding.

The University of Western Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established