Unsw Global Pty Ltd T/A Unsw College

[2024] FWCA 852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Unsw Global Pty Ltd T/A Unsw College

(AG2024/417)

UNSW COLLEGE EDUCATION (TEACHING EMPLOYEES) ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 MARCH 2024

Application for approval of the UNSW College Education (Teaching Employees) Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the UNSW College Education (Teaching Employees) Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Unsw Global Pty Ltd T/A Unsw College (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 6 March 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Educational Services (Post Secondary Education) Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisations

The Independent Education Union of Australia, and the National Tertiary Education Industry Union, both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2024. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were Unsw Global Pty Ltd, trading as Unsw College, and its teaching employees, represented by a union. The dispute centred on the proposed UNSW College Education (Teaching Employees) Enterprise Agreement 2023, which the applicant sought to have approved by the Fair Work Commission. The applicants argued that the agreement was fair and reasonable, while the union contested certain provisions, arguing they were not equitable.

The legal issues the court was required to decide included whether the provisions of the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was procedurally sound and if it contained provisions that were fair and reasonable. The court also had to consider whether the agreement appropriately balanced the interests of both the employer and the employees.

The Fair Work Commission, in reviewing the application, considered the arguments from both parties and examined the provisions of the proposed agreement in detail. The Commission found that, while there were some concerns raised by the union, the overall agreement met the necessary criteria for approval. The Commission highlighted that the agreement provided for fair terms and conditions that were reasonable in the circumstances. Consequently, the Commission approved the application and the proposed enterprise agreement was registered.

In summary, the Fair Work Commission approved the UNSW College Education (Teaching Employees) Enterprise Agreement 2023, finding it to be fair and reasonable. The agreement was registered, and the parties are now bound by its terms.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established