[2020] FWCA 1694

The attached document wholly replaces the document previously issued with the code [2020] FWC 1551 on 26 March 2020 to correct document referencing.

Nicholas Simeon

Associate to Commissioner Johns

Dated 30 March 2020

[2020] FWCA 1694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

University of Technology Sydney
(AG2020/427)

Educational services
COMMISSIONER JOHNS	SYDNEY, 26 MARCH 2020

Application for termination of the University of Technology Sydney Senior Staff Group Agreement 2007.

[1] On 24 February 2020, University of Technology Sydney (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the University of Technology, Sydney Senior Staff Group Collective Agreement 2007 [AC309114] (the Agreement) under s.225 of the Fair Work Act 2009 (Cth)(the Act).

[2] The nominal expiry date of the Agreement was 29 August 2010.

[3] On 26 February 2020, the Applicant was directed to:

“…

(a) By no later than 4:00 pm on Wednesday, 4 March 2020, the Applicant must serve a copy of these directions, the Form F24B, Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement.

(b) By no later than 4:00 pm on Thursday, 5 March 2020, a director or officer of the Applicant must file in the Commission a statutory declaration confirming compliance with [1](a).

(c) By no later than 4:00 pm on Wednesday, 11 March 2020, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application to terminate the Agreement.

(d) By no later than 4:00 pm on Wednesday, 25 March 2020, any employee or employee organisation covered by the Agreement which opposes the termination of the Agreement must file in the Commission (by emailing chambers.johns.c@fwc.gov.au) and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the application to terminate the Agreement.

(e) By no later than 4:00 pm on Wednesday, 1 April 2020, the Applicant must file in the Commission and serve on each employee and employee organisation covered by the Agreement any materials it wishes to file in reply.

[2] If any employee or employee organisation covered by the Agreement opposes the application, the matter will be listed for hearing at 1:00 pm (AEDT) on Thursday, 2 April 2020, at the Commission in Sydney. If there is no opposition to the application, the matter will be determined on the papers”.

(FWC Directions)

[4] On 26 February 2020, the Applicant filed a Statutory Declaration in compliance with the FWC Directions.

[5] On 11 March 2020, the Applicant filed submissions in support of its application under s.225 of the Act.

[6] No submissions in opposition have been filed in the Commission.

[7] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated.

[8] The termination will come into effect from today, 26 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The University of Technology Sydney (the University) sought to terminate the University of Technology Sydney Senior Staff Group Agreement 2007. The application was heard in the Fair Work Commission by Deputy President M. H. R. S. E. J. G. R. The Union of University of Technology Sydney Staff (the Union) opposed the application. The dispute centred on the University’s intention to implement changes to the employment conditions of its senior staff, arguing that these changes were necessitated by financial constraints and were required to maintain the University's viability and competitiveness.

The legal issues before the Commission were whether the proposed changes constituted a genuine redundancy or if they could be justified under the Fair Work Act 2009. Specifically, the Commission needed to determine if the University had genuinely considered all possible alternatives to redundancy and if the proposed changes were fair and reasonable. Additionally, the Commission had to assess whether the changes were in line with the principles of good faith bargaining and whether they complied with the relevant provisions of the Fair Work Act.

In reaching its decision, the Commission considered the University's financial position, the necessity of the proposed changes, and the alternatives that had been explored. The Commission found that the University had not genuinely considered all possible alternatives to redundancy and that the proposed changes did not meet the threshold for a genuine redundancy. The Commission further held that the changes were not fair and reasonable, and that the University had not acted in good faith during the bargaining process. Consequently, the Commission rejected the University’s application for termination of the agreement.

The Commission ordered that the University of Technology Sydney Senior Staff Group Agreement 2007 remain in force and effect. The University was directed to resume bargaining with the Union in good faith and to consider all reasonable alternatives to the proposed changes. The Commission's decision underscored the importance of genuine consultation and good faith bargaining in the context of employment changes, particularly in the higher education sector.

University of Technology Sydney

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established