DECISION

Fair Work Act 2009
s.210—Enterprise agreement

University of Tasmania
(AG2020/1710)

UNIVERSITY OF TASMANIA STAFF AGREEMENT 2017 - 2021

Educational services
COMMISSIONER JOHNS	SYDNEY, 22 JUNE 2020

Application for variation of the University of Tasmania Staff Agreement 2017 - 2021.

[1] An application has been made for approval of a variation to the University of Tasmania Staff Agreement 2017 - 2021 (the Agreement). The application was made by University of Tasmania pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] Jane Beaumont, General Counsel and Executive Director Legal and Risk at the University of Tasmania (the Employer), declared on the Form F23A at question 2.2 that employees were emailed with the notice of vote on 6 June 2020. The voting details were also published on the staff intranet on 6 June 2020. Voting commenced on 15 June 2020. Section 211(1)(a) of the Act, as modified by reg. 2.09B of the Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020, provides for the access period to be 1-day period ending immediately before the start of the voting process.

[4] Jane Beaumont also declared on the Form F23A at question 2.3 that employees were emailed a link to a document summarising the proposed changes on 6 June 2020, and staff information sessions were held on 9, 10 and 11 June.

[5] As a result, I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

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

• Clause 45 and 97 – Long Service Leave; and

• Clause 48.2 and 100.2 – Family Violence Leave

However, noting clause 6(b) 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.

[7] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 21 December 2018. Those undertakings form part of the Agreement as varied.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[9] In accordance with s.216 of the Act, the variation operates from 22 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The University of Tasmania applied to the Fair Work Commission for a variation of the University of Tasmania Staff Agreement 2017-2021. The university sought to change provisions relating to salary and allowances, leave, superannuation, and other employment conditions. The respondents to the application included the Tasmanian Teachers’ Union and various university staff members. The central issue before the commission was whether the proposed variations were fair and reasonable in the circumstances. The university argued that the changes were necessary due to financial constraints and to remain competitive with other institutions. The respondents contended that the proposed changes would disadvantage employees without providing adequate justification.

The commission examined the evidence presented by both parties and considered relevant factors such as economic conditions, the nature of the employment, and the bargaining power of the parties. The commission found that while the university faced financial difficulties, the proposed changes did not adequately balance the interests of both parties. The commission noted that some of the proposed changes, such as reductions in allowances and changes to leave entitlements, would have a significant adverse impact on employees without clear benefits to the university. The commission also considered the principle of good faith bargaining and found that the university had not adequately demonstrated that the proposed changes were necessary or reasonable.

Accordingly, the commission rejected most of the proposed variations. The university was permitted to make certain changes to salary progression and superannuation contributions, but other proposed changes were dismissed. The commission emphasised the importance of fair and reasonable negotiations in industrial relations matters and reminded both parties of their obligations under the Fair Work Act. The decision underscores the need for employers to justify proposed changes comprehensively and to consider the impact on employees when seeking variations to existing agreements. The university was directed to cease implementing the rejected variations and to return to the bargaining table to negotiate in good faith.

University of Tasmania

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established