University of Western Australia

[2024] FWCA 4512

[2024] FWCA 4512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

University of Western Australia

(AG2024/4582)

UWA ELICOS TEACHERS ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER LIM	PERTH, 16 DECEMBER 2024

Application for approval of the UWA ELICOS Teachers Enterprise Agreement 2024.

1. The University of Western Australia (the Applicant) has made an application for the approval of an enterprise agreement known as the UWA ELICOS Teachers Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 33.13 states that unpaid parental leave commences on the date of birth or day of placement of the child which appears to be inconsistent with s 71 of the Act.

(b)Clause 33.13 provides that employees taking unpaid parental leave, if they are an employee couple, must commence their leave immediately following their partner’s parental leave. Clause 33.15 states that parental leave may be shared between employee couples and that parental leave may be taken concurrently by employee couples for a maximum of eight weeks. It is unclear if these restrictions apply to paid or unpaid parental leave. There does not appear to be similar restrictions on unpaid parental leave in Division 5 of Part 2-2 of Chapter 2 of the Act.

(c)Clause 20.7 requires annual leave to be used, where possible, by the end of February in the year following commencement and within the calendar year it accrues thereafter. This appears to be more restrictive than the Act.

(d)Clauses 20.15 to 20.19 provides for the cashing out of annual leave but does not require each cashing out of annual leave to be a separate agreement in writing which may be inconsistent with s 94(3) of the Act.

(e)Clause 12.6 appears to allow the employer to deduct any money overpaid to the employee in full, from their final payment on termination. Further, Clause 20.9 allows the employer to deduct an amount equal to any negative annual leave entitlement from the employee’s final payment. Clause 46.4 also provides that if an employee fails to give the required notice, the employer may withhold from any monies due to the employee on termination under this Agreement, an amount not exceeding the amount equivalent to the notice not provided. This provision does not appear to limit the source of monies which may be deducted. The effect of this is that these clauses appear to permit the employer to deduct employee’s entitlements under the NES, such as notice of termination, accrued but unused annual leave or long service leave on termination. This raises the issue that this provision may be inconsistent with the Act.

(f)Clause 44.1(c) provides that an employee aged over 45 who has completed more than 5 years’ service be given five weeks’ notice, which appears to be inconsistent with the requirement in s 117(3)(b) of the Act that an employee be given an additional weeks’ notice if they have completed at least 2 years of continuous service.

(g)Clause 47 provides situations where redundancy may not be payable or could be changed but does not appear to require the employer make an application pursuant to s 120 of the Act to vary the redundancy.

1. However, I am satisfied that under clause 2.4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. The National Tertiary Education Industry Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 16 December 2024 and, in accordance with s 54, will operate from 23 December 2024. The nominal expiry date of the Agreement is 30 June 2025.

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Annexure A