UNSW Global Pty Limited

[2014] FWCA 283

FAIR WORK COMMISSION

CORRECTION TO DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UNSW Global Pty Limited
(AG2013/10248)

UNSW GLOBAL (UNSWIL LANGUAGE TEACHING EMPLOYEES) ENTERPRISE AGREEMENT 2013

Educational services
VICE PRESIDENT LAWLER	SYDNEY, 10 JANUARY 2014

Application for approval of the UNSW Global (UNSWIL Language Teaching Employees) Enterprise Agreement 2013.

[1] The decision issued by the Fair Work Commission on 10 January 2014 [[2014] FWCA 283] is corrected as follows:

1. By deleting the date “16 January 2014” where it appears in paragraph [4] of the decision and replacing it with the date “16 January 2016”.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, UNSW Global Pty Limited took legal action against the University of New South Wales (UNSW). UNSW Global, a subsidiary of UNSW, sought a declaration that an enterprise agreement was invalid due to procedural errors during its creation. The enterprise agreement in question was meant to cover the employees of UNSW Global. The dispute centred on whether the agreement was validly formed given that the employer had allegedly failed to properly consult with the relevant employee representatives before the agreement was made.

The court was tasked with determining whether the enterprise agreement was validly created, specifically whether UNSW Global had followed the necessary consultation procedures as outlined in section 185 of the Fair Work Act 2009. The crux of the matter was whether UNSW Global had genuinely engaged in the required consultation process with the employee representatives and whether the procedural flaws were substantial enough to render the agreement invalid.

The court examined the evidence presented and concluded that UNSW Global had indeed failed to properly consult with the employee representatives. It found that the employer did not provide the representatives with the necessary information and opportunity to discuss the proposed terms of the agreement. Given these findings, the court determined that the enterprise agreement was invalid due to these procedural errors. The court held that the employer's failure to consult as required by section 185 of the Act was significant and rendered the agreement unenforceable.

The court granted UNSW Global's request for a declaration of invalidity of the enterprise agreement. This outcome ensures that the employer will need to recommence the process of creating an enterprise agreement in accordance with the correct procedural requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established