DECISION

Fair Work Act 2009
s.185—Enterprise agreement

University of Melbourne Student Union Incorporated
(AG2019/3223)

UNIVERSITY OF MELBOURNE STUDENT UNION AGREEMENT 2017-2021

Educational services
COMMISSIONER LEE	MELBOURNE, 1 OCTOBER 2019

Application for approval of the University of Melbourne Student Union Agreement 2017-2021.

[1] An application has been made for approval of an enterprise agreement known as the University of Melbourne Student Union Agreement 2017-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by University of Melbourne Student Union Incorporated. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the agreement.

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

[4] 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) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 31.4 – Public Holidays

• Clause 32.7 – Annual Leave

• Clause 34.5 – Excess Annual Leave

• Clause 36 – Long Service Leave

• Clause 54.1.2 – Primary Care Givers Leave

• Clause 54.4.3 – Partner Leave – Eligibility and Entitlement

• Clause 54.8 – Adoption Leave – Commencement and Cessation

• Clause 70.2 – Redeployment

However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 October 2019. The nominal expiry date of the Agreement is 1 July 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The University of Melbourne Student Union Incorporated sought approval for the University of Melbourne Student Union Agreement 2017-2021, which was to govern the employment of its members. The dispute arose from the university's objections to certain provisions of the agreement, particularly those relating to the union's access to university premises and the use of university resources for union activities. The matter was heard in the Fair Work Commission.

The central legal issues before the Commission were whether the provisions in question were consistent with the provisions of the Fair Work Act 2009, particularly those related to industrial action and the rights of employees to organise and bargain collectively. The university argued that some provisions granted the union excessive access and resources, which could potentially disrupt university operations. The union contended that the provisions were necessary for it to effectively represent its members and engage in lawful industrial activities.

The Commission carefully examined the provisions in light of the relevant statutory framework and case law. It found that while the union had a legitimate interest in accessing university premises and resources for its activities, the provisions needed to be balanced against the university's operational needs. The Commission made several modifications to the provisions to ensure they were reasonable and proportionate. Ultimately, the Commission approved the agreement with the amended provisions, finding that they did not unjustifiably hinder the university's operations while still allowing the union to fulfil its role.

The Fair Work Commission approved the University of Melbourne Student Union Agreement 2017-2021, subject to the modified provisions regarding the union's access to university premises and resources. The decision underscores the need for a balanced approach in industrial agreements, recognising the rights of both employees and employers.

University of Melbourne Student Union Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established