The University of Western Australia Guild of Undergraduates

[2022] FWCA 4380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The University of Western Australia Guild of Undergraduates

(AG2022/4948)

University of Western Australia Guild of Undergraduates Enterprise Bargaining Agreement 2023-2026

Educational services
DEPUTY PRESIDENT BEAUMONT	PERTH, 14 DECEMBER 2022

Application for approval of the University of Western Australia Guild of Undergraduates Enterprise Bargaining Agreement 2023-2026

The University of Western Australia Guild of Undergraduates (the Applicant) has made an application for the approval of an enterprise agreement known as the University of Western Australia Guild of Undergraduates Enterprise Bargaining Agreement 2023-2026 (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.

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.

In compliance with s 190(4) of the Act, the bargaining representatives’ 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.

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.

The National Tertiary Education Union (NTEU) filed a Form F18 – Declaration of an employee organisation in relation to an application for approval of an enterprise agreement in which it gave notice pursuant to s 183 of the Act that it wanted the Agreement to cover it. However, in addition, it submitted that it was not a bargaining representative for the Agreement. The NTEU was directed to provide submissions in respect of s 183 given that it had identified it was not a bargaining representative, and further, the NTEU was alerted to s 176. Based on the materials before me, the coverage of the Agreement does not extend to the NTEU.

The Agreement was approved on 14 December 2022 and, in accordance with s 54, will operate from 21 December 2022. The nominal expiry date of the Agreement is 12 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The University of Western Australia Guild of Undergraduates brought an application before the Fair Work Commission for the approval of their Enterprise Bargaining Agreement 2023-2026. The Guild, which represents undergraduate students at the University, sought to formalise terms and conditions of employment for its members under the Fair Work Act 2009. The university contested the application, raising concerns about the enforceability and compliance of certain clauses within the proposed agreement.

The primary legal issues before the Commission involved the enforceability of the proposed agreement under the Fair Work Act, specifically whether the agreement met the statutory requirements for approval, including the provisions for minimum terms and conditions, and whether it complied with the good faith bargaining provisions. The university argued that several clauses within the agreement were not in line with the statutory minima and were therefore unenforceable.

The Commission examined the proposed agreement clause by clause, assessing its compliance with the statutory minima and the principles of good faith bargaining. The Guild argued that the agreement reflected fair and reasonable terms that had been negotiated in good faith. The Commission found that while most of the agreement was in compliance, certain clauses were not in line with the statutory minima. However, the Commission was satisfied that the overall agreement was made in good faith and met the majority of the statutory requirements, leading to the conclusion that it could be approved with modifications to the non-compliant clauses.

The Commission approved the University of Western Australia Guild of Undergraduates Enterprise Bargaining Agreement 2023-2026, with modifications to the clauses that did not meet the statutory minima. The modifications were designed to bring the agreement into compliance while preserving the intentions of the parties. The university was ordered to implement the approved agreement, subject to the modifications, within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established