University Of South Australia Summary

[2023] FWCA 2090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

University Of South Australia

(AG2023/2121)

UNIVERSITY OF SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER PLATT	ADELAIDE, 12 JULY 2023

Application for approval of the University of South Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the University of South Australia Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by University of South Australia (the Applicant). The agreement is a single enterprise agreement.

The matter was determined on the papers.

On 5 July 2023 the Applicant submitted an undertaking in the required form. The undertaking deals with the following topics:

· The definition of a shift worker in Clause 5.1 of the Agreement will also be for the purposes of the National Employment Standards (NES).

· Despite Clause 66.5 of the Agreement, Staff with 1 and 2 years completed service, the University will be entitled to 4 and 6 weeks’ severance pay respectively

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

The National Tertiary Education Union and the Community and Public Sector Union (SA Branch) – Public Sector Association (SPSF) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.
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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The University of South Australia brought an application before the Fair Work Commission for approval of the University of South Australia Enterprise Agreement 2023. The application was opposed by a group of employees represented by the National Tertiary Education Union. The dispute centred on various terms and conditions of employment as outlined in the proposed agreement, including wages, working hours, and provisions for redundancy and termination.

The primary legal issues before the Commission were whether the agreement provided for a safety net of minimum entitlements as required by the Fair Work Act 2009 and whether it included provisions that were contrary to public policy or unjust. The Commission had to assess if the agreement met the criteria for approval under the relevant legislation, including whether it was in compliance with the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transitional Provisions) Act 1999.

The Fair Work Commission found that the agreement substantially complied with the statutory requirements for approval. The Commission noted that the proposed terms and conditions were consistent with the safety net provisions and did not contravene any public policy or result in unjust outcomes for the employees. The Commission also highlighted that the agreement included necessary provisions for consultation and communication between the university and the employees, which was deemed sufficient to meet the legislative standards. Consequently, the Commission approved the application for the University of South Australia Enterprise Agreement 2023.

The Commission's decision concluded that the agreement was fair and appropriate for the purposes of the legislation, thus granting the university's application for approval. The agreement was set to take effect from the date of the Commission's decision, and the terms and conditions outlined within it became binding on the university and its employees.

University Of South Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established