University of Western Sydney v National Tertiary Education Industry Union
[2015] FWCFB 6846
•7 OCTOBER 2015
| [2015] FWCFB 6846 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
National Tertiary Education Industry Union
(C2015/5039)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 7 OCTOBER 2015 |
Appeal against decision [2015] FWC 4793 of Commissioner McKenna at Sydney on 15 July 2015 in matter number ADM2015/3.
[1] This is an appeal by the University of Western Sydney (UWS) against a Decision 1 of Commissioner McKenna to refuse an application to correct her decision to approve the University of Western Sydney Academic Staff Agreement 2014 (2014 Agreement) lodged pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] Prior to the hearing of the appeal Mr Sharriff of Counsel sought permission to appear for the appellant and, given the complexity of the matter, and having regard to the application of s.596 of the Act, permission was granted for the appellant to be represented. Ms Talmacs appeared for the National Tertiary Education Union (NTEU) and supported the application for permission to appeal and the appeal.
[3] Before Commissioner McKenna the appellant and the NTEU had sought to correct the Commissioner’s decision to approve the 2014 Agreement. In essence the UWS and the NTEU agreed that a footnote to the 2014 Agreement had been inadvertently deleted with unintended adverse financial results for the UWS.
[4] Commissioner McKenna refused the application to correct. The Commissioner determined that there was no jurisdiction to make an order of the type sought by the UWS and the NTEU in circumstances where there was no relevant obvious error, defect or irregularity and that, in any event, had she had the jurisdiction to correct, she would not exercise her discretion to do so for the reasons as set out below.
“[18] On the basis of what was before me, if the proposed order were made it would result in a substantial change to the Agreement – not, for example, a slip rule-type of change described in item 2316 of the Explanatory Memorandum. While I am not unsympathetic to the matters raised by the University in seeking the order, given the estimated financial impost to the University and considering also what was put as a joint position of the University and the NTEU in concurring that in their view there was drafting error or omission in the Agreement, I cannot with any confidence otherwise speculate on what matters in the Agreement may have led the employees who voted in favour of it to cast their votes in the way they did or what may have been those employees’ understanding or (plain) reading of the Agreement – separately, that is, from the understanding or intent of the University, the external bargaining representatives the University appointed, and/or the NTEU. In that regard, I respectfully agree with the approach described in Pulteney Grammar School Inc Enterprise Agreement (2015-2018) [2015] FWCA 3863 where O’Callaghan SDP said he was ‘not persuaded’ that a revised schedule to an enterprise agreement can be described as an error that could be corrected pursuant to s.602 of the Act or that the Commission ‘has the capacity to unilaterally alter the Agreement that was approved by the employees.’”
[5] At the hearing of the appeal we allowed the parties to present new evidence which was not in the material before Commissioner McKenna. Ms Maiolo from UWS and Ms Talmacs from the NTEU gave evidence.
[6] At the conclusion of that evidence we were satisfied that:
● the proposal for approval put to the employees who voted for the 2014 Agreement was that all of the terms and conditions of the 2009 Agreement applied unaltered, unless there was a particular alteration or condition identified in the bargaining materials;
● the subject matter of the deleted footnote was not subject to negotiation by the parties;
● there was no communication issued by the NTEU to its members, or to any other employees, indicating that there would be any change to the subject matter of the deleted material;
● the UWS issued documents explaining the changes to the 2014 Agreement compared to the 2009 Agreement;
● during the access period for the 2014 Agreement a table was issued by UWS summarising the changes which were to occur and differentiating the 2009 Agreement from the 2014 Agreement. There was no indication that the subject matter of the deletion was to be altered;
● members of the NTEU have been circularised concerning the application before Commissioner McKenna and this appeal. Copies of the decision under appeal were also circulated and,
● if all those employees whose terms and conditions were potentially affected by the deletion, were to have voted against the 2014 Agreement, it would still have been approved by a majority.
[7] This is an appeal pursuant to s.604 of the Act. This Full Bench must determine whether or not to grant permission to appeal. Permission to appeal must not be granted unless it is in the public interest to do so.
[8] Having considered the adverse outcome for UWS if the proposed correction does not occur, this Full Bench has determined that it is in the public interest that permission to appeal be granted. We grant permission to appeal.
[9] On the basis of the new evidence before this Full Bench we allow the appeal. We set aside the decision of Commissioner McKenna. We will correct the error in the 2014 Agreement.
SENIOR DEPUTY PRESIDENT
1 [2015] FWC 4793
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