University of Wollongong

[2024] FWCA 2274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

University of Wollongong

(AG2024/1933)

UNIVERSITY OF WOLLONGONG (PROFESSIONAL SERVICES EMPLOYEES) ENTERPRISE AGREEMENT, 2023

Educational services
DEPUTY PRESIDENT BELL	MELBOURNE, 19 JUNE 2024

Application for approval of the University of Wollongong (Professional Services Employees) Enterprise Agreement, 2023.

An application has been made for approval of an enterprise agreement known as the University of Wollongong (Professional Services Employees) Enterprise Agreement, 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer University of Wollongong. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 28 April 2022 and the Agreement was made on 16 May 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The CPSU, the Community and Public Sector Union and National Tertiary Education Industry Union (NTEU), 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) I note that the Agreement covers the organisations.

The Agreement was approved on 19 June 2024 and, in accordance with s.54 of the Act, will operate from 26 June 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

The University of Wollongong (UOW) applied for approval of the 2023 Enterprise Agreement with its Professional Services Employees. The application was heard by the Fair Work Commission (FWC). The agreement sought to regulate various terms and conditions of employment, including wages, working hours, and leave entitlements, among others. The Professional Services Employees argued that the proposed agreement did not adequately address certain issues, including job security and workload management.

The legal issues before the FWC involved assessing whether the agreement met the requirements of the Fair Work Act 2009. Specifically, the FWC had to determine whether the agreement was in the best interests of the employees, provided for fair and reasonable terms and conditions of employment, and complied with the 'better off overall test'. The FWC also had to consider the principle of good faith bargaining and whether the parties had genuinely attempted to reach an agreement.

In delivering its decision, the FWC acknowledged the university's arguments regarding the need for flexibility in the workplace to adapt to changing circumstances. However, the FWC found that the agreement did not sufficiently address the employees' concerns about job security and workload management. The FWC also found that the proposed wage increases did not meet the better off overall test. Consequently, the FWC did not approve the agreement. The university was directed to return to the bargaining table to negotiate a revised agreement that addressed the employees' concerns.

The FWC did not make any specific orders in its decision, but it directed the parties to return to the bargaining table to negotiate a revised agreement that met the legal requirements set out in the Fair Work Act 2009. The FWC emphasised the importance of genuine bargaining and the need for the parties to reach an agreement that was in the best interests of the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established