University of Melbourne Graduate Student Association Inc T/A University of Melbourne Postgraduate Assoc Inc
[2023] FWCA 141
•19 JANUARY 2023
| [2023] FWCA 141 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
University of Melbourne Graduate Student Association Inc T/A University of Melbourne Postgraduate Assoc Inc
(AG2023/38)
UNIVERSITY OF MELBOURNE GRADUATE STUDENT ASSOCIATION INC. ENTERPRISE AGREEMENT 2017
| Educational services | |
| COMMISSIONER JOHNS | MELBOURNE, 19 JANUARY 2023 |
Application for termination of the University of Melbourne Graduate Student Association Inc. Enterprise Agreement 2017
On 5 January 2023, University of Melbourne Graduate Student Association Inc T/A University of Melbourne Postgraduate Assoc Inc (MGSA/Applicant) made an application to the Fair Work Commission (Commission) to terminate the University of Melbourne Graduate Student Association Inc. Enterprise Agreement 2017 (Old Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 26 April 2020.
In short, the background to the Application is as follows:
a) The Old Agreement commenced operation on 4 May 2017.
b) When the Old Agreement commenced it covered 26 employees.
c) The Old Agreement passed its nominal expiry date on 26 April 2020.
d) On 2 December 2022 the University of Melbourne Graduate Student Association Inc. Enterprise Agreement 2022 (New Agreement) commenced operation. It covers all the same employees as the Old Agreement except for the “Chief Executive Officer (CEO), Program Directors and elected office bearers/elected student representatives of the MGSA Board, Representative and Faculty Council.”[1]
e) By reason of the commencement of the New Agreement:
i.the Old Agreement no long covers most of the Applicant’s employees; and
ii.the operation of the Old Agreement is presently confined to the CEO.
Legislation
Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:
223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.
Facts
The application was supported by a Statutory Declaration made on 5 January 2023 by Yingchen Zhao, General Secretary for the Applicant. Ms Zhao declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:
a)On 16 December 2022 the employee covered by the Agreement was notified of the proposed vote to terminate the Agreement.
b)On 16 December 2022 the employee was given an information statement prior to the vote setting out the impact of the proposed termination
c)The employee was invited to an information session on the proposed termination, to be held on 19 December 2022. The employee did not elect to attend the information session.
d)The employee was involved in the renegotiation of the replacement enterprise agreement to cover the majority of the Applicant’s employees in 2022. The employee attended the negotiation meetings from June to August 2022 and was involved in the finalization of the negotiation process the led to the vote in October 2022. The employee was also involved in the drafting of the new agreement and had a deep knowledge of the terms of the new agreement, the underlying award and the proposed coverage to exclude senior UMGSA positions.
The termination was agreed to on 4 January 2023. There was one employee covered by the Old Agreement and one valid vote cast. Of the votes cast, one employee voted to terminate the Old Agreement. The Application was made within 14 days of the termination being agreed and was accompanied by the appropriate declaration.
The NTEU advised that it,
“does not oppose GSA’s application on the basis that the reduced coverage of the 2022 EBA was agreed to in the course of bargaining.”
In an email to the Commission dated 11 January 2023 the only employee covered by the Old Agreement confirmed that he supported the Application.
Hearing
The matter was allocated to my chambers on 6 January 2023. I listed the matter for a mention/directions hearing on 11 January 2023.
At the mention/directions hearing the:
a) the Applicant was represented by its General Secretary, Yingchen Zhao,
b) the NTEU was represented by its Industrial Officer, Jacob Debets, and
c) the affected employee, the Applicant’s Interim CEO, was in attendance; and
d) all parties confirmed the factual matters set out above and their non-opposition to the Application.
Decision
Based on the material that is before the Commission, including the statutory declaration provided by the Applicant and the evidence given on 11 January 2023, the Commission, as presently constituted, is satisfied that the requirements of s.223 of the Act have been met.
In accordance with s.224 of the Act, the termination will come into effect today, 19 January 2023. An Order to this effect [PR749784] has been issued concurrently with this decision.
COMMISSIONER
[1] See clause 3.1 in AG2022/4548.
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