VICTORIAN TAFE TEACHING STAFF MULTI-ENTERPRISE AGREEMENT 2015

[2015] FWCA 8129

[2015] FWCA 8129

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Victorian TAFE Association (VTA)
(AG2015/6648)

VICTORIAN TAFE TEACHING STAFF MULTI-ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER BISSETT	MELBOURNE, 25 NOVEMBER 2015

Application for approval of the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Victorian TAFE Association (VTA). The agreement is a multi-enterprise agreement.

[2] In making its application the VTA also provided the Commission with an undertaking dealing with some specific salary concerns. The Commission had identified the issues with the Agreement in some preliminary discussion held between the VTA, the Australian Education Union (AEU) and the Commission prior to the application for approval being made.

[3] In accordance with s.190 of the Act I have accepted the undertaking provided.

[4] In accordance with s.191(1) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached as an annexure to this decision.

[5] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[6] In making its application VTA indicated that the AEU and the National Tertiary Education Industry Union (NTEU) were union bargaining representatives for the agreement.

[7] The AEU and the NTEU both filed a Form F18 with the Commission in which each indicated, by way of a statutory declaration, that it was a bargaining representative for the Agreement because one or more members of the Union are employees who are covered by the Agreement and the Union is entitled to represent the industrial interests of those employees in accordance with s.176(1)(b) of the Act. Each union also indicated that, if the Agreement, was approved it wished to be covered by the Agreement.

[8] On 19 November 2014 the Agreement was listed for approval ‘on the papers’ with a notice of listing being issued that indicated that if anyone wished to be heard on the application they should contact my chambers.

[9] Prior to the time of approval the AEU, through its legal representative, advised the Commission that it did not consider that the NTEU was, in fact, a bargaining representative in that it did not believe the NTEU had as members any employees covered by the Agreement and, in any event, it was not entitled to represent the industrial interest of any employees in relation to work that will be performed under the Agreement. The AEU argued that only it could represent the employees covered by the Agreement.

[10] In its correspondence to the Commission the AEU argued that the Commission should issue an interim decision approving the Agreement with the final decision made following a decision as to whether the NTEU was a bargaining representative for the Agreement as defined in the Act.

[11] I declined to issue the decision sought by the AEU in its correspondence of 19 November 2015 without giving the NTEU an opportunity to be heard. The notice of listing for 19 November 2015 was therefore cancelled and the application listed for hearing on 24 November 2015.

[12] At that hearing the AEU sought permission to be represented by Mr Fetter of Counsel and the VTA sought permission to be represented by Mr Spargo. I determined that, given the complexity of the matter (that is, that it would involve some consideration of union rules which have a level of complexity about them) the matter could be dealt with more efficiently if permission was granted. I therefore decided to grant permission under s.596 of the Act.

[13] The NTEU was represented by Ms Gale and Mr McAlpine.

[14] The VTA submitted that it had bargained with the NTEU with respect to the Agreement as it understood the NTEU was a bargaining representative although it did say that most of the bargaining had been undertaken with the AEU.

[15] The VTA sought that the Agreement be approved as soon as possible as there were benefits payable to employees on approval of the Agreement and it had been some considerable time since the employees had received a pay increase. It put no position as to whether the NTEU is a bargaining representative.

[16] The AEU submitted that the Commission should issue an interim decision approving the Agreement. In so doing it submitted that the Commission should, in that decision, indicate that the AEU was covered by the Agreement but not decide if the NTEU was covered pending determination of the question as to whether it was a bargaining representative.

[17] The NTEU sought to have the matter determined to finality at the hearing. It said it was ready with its submissions and a witness statement of the Victorian Division Secretary of the NTEU. The NTEU alternatively put that, if the Commission was minded to make an interim decision it should nominate both the AEU and NTEU as covered by the Agreement with any ultimate decision resolving the matter.

Interim decision

[18] At the conclusion of the hearing I indicated that it was my intention to approve the Agreement but issue an interim decision in relation to coverage of the Agreement. I did this as I did not think it could be procedurally just to attempt to resolve the matter immediately. Whilst the NTEU indicated it was ready to proceed the AEU had, reasonably, attended the hearing on the basis of the application it had effectively made on 19 November 2015 for the Agreement to be approved but that the approval not indicate that the NTEU was covered by the Agreement pending resolution of the question as to the NTEU’s status as a bargaining representative.

[19] The NTEU submitted that I could not make an interim decision that did not note that it was covered by the Agreement by virtue of the operation of s.201(2) of the Act which states:

201 Approval decision to note certain matters

…

(2) If:

(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

(b) the FWC approves the agreement;

the FWC must note in its decision to approve the agreement that the agreement covers the organisation.

[20] The NTEU submits that this clause mandates that if an employee organisation has given notice under s.183(1) of the Act – which the NTEU has done – and the agreement is approved then the decision must note that the agreement covers the organisation. The NTEU therefore says that if I proceed to approve the Agreement I must comply with the requirements of s.201(2).

[21] I do not agree with this submission. Section 589 of the Act allows the Commission to make an interim decision in relation to a matter before it.

[22] It would, in my opinion, be close to impossible for the Commission to be able to make an interim decision on this matter, which is contemplated by the Act by virtue of s.589, and, in effect by the NTEU logic, be constrained as to the scope of that decision. If the NTEU is correct it will be able to exercise all of the rights associated with being covered by the Agreement prior to a determination of the issue at hand. Such a reading would lead to an outcome that cannot have been contemplated in giving the Commission power to make an interim decision.

[23] I am satisfied that the requirements of s.201(2) relate to the final decision on the application. This is not the matter that is before me.

Should the interim decision indicate that the NTEU is covered by the Agreement?

[24] The jurisprudence on the issue of making an interim decision is clear – the questions to be answered are whether there is jurisdiction to deal with the matter, whether there is a serious issue to be tried and where the balance of convenience lies.

[25] In Health Services Union v Victorian Hospitals’ Industrial Association 1the Full Bench said:

[9] The approach to a serious issue to be tried for the purpose of interim relief does not require the HSU to show that it is more probable than not that its substantive application would succeed; it is to show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the determination of its substantive application. 2 

Jurisdiction

[26] There is no argument that the Commission has jurisdiction to deal with this matter. The question to be answered is if the NTEU is a bargaining representative for the Agreement. This will require a consideration of the rules of the NTEU.

[27] The Commission does not have power to indicate an employee organisation is covered by an Agreement if the organisation is not a bargaining representative.

[28] In order to issue a decision approving the agreement the determination of whether a union is a bargaining representative is a critical matter to be determined.

Serious issue to be tried

[29] The AEU raise objection to the NTEU’s claim that it is a bargaining representative.

[30] This is not a trivial concern. The inclusion of the NTEU as an organisation covered by the Agreement gives the NTEU a range of rights – including in relation to the bargaining for the next agreement which is due to commence next week.

[31] I am satisfied that there is a serious issue to be tried.

Balance of convenience

[32] The third matter I need to consider is where the balance of convenience lies.

[33] The Agreement before me for approval is a ‘rollover’ agreement. It replaces the Victorian TAFE Teaching Staff Multi-business Agreement 2009 (the 2009 Agreement). The Agreement before me provides for a one off payment to employees and updates the 2009 Agreement which it attaches in totality.

[34] The Agreement has a nominal expiry date of 2 July 2016 and requires that negotiation for a replacement agreement commence on 1 December 2015. It, in effect, provides for a payment to employees and sets the basis for negotiation of a new agreement.

[35] The scope clause in the Agreement before me replicates that of the 2009 Agreement. It states that the agreement ‘shall apply according to its terms to the employment of Employees of the Employers listed in Schedule 2 who are eligible to be members of the AEU other than Industrial Skills Instructors and who were covered by the 2009 Agreement…’ 3

[36] The NTEU was involved in bargaining for this Agreement. They attended (at least) one meeting in person with the VTA and others by phone. The substantial negotiations appear to have been held with the AEU. I do not understand that there were negotiations at which both the AEU and NTEU were both present.

[37] To note in this interim decision that the NTEU is covered by the Agreement will give the NTEU a range of rights, including participating as a bargaining representative in negotiations for the replacement agreement. This is an advantageous position from the position they are in now. It may, pending the final decision as to its status as a bargaining representative, mislead employees who are members (within the rules or otherwise) of its status in the bargaining.

[38] During the hearing on the application the AEU gave an undertaking that they would not oppose the NTEU participating in discussions for a replacement agreement and will not interfere to prevent the NTEU from participating in a process under clause 10 of schedule 3 of the Agreement (in relation to dispute resolution). The VTA indicated it would honour the undertaking, therefore not prejudicing the NTEU in respect of any final outcome.

[39] The NTEU took the Commission briefly through its rules. It also provided correspondence between the VTA and NTEU which suggested the VTA accepted that it was a legitimate bargaining representative for the Agreement. Further, the NTEU say that no undertaking by the AEU can give it rights that it does not otherwise have.

[40] Whilst I appreciate this submission I am mindful through my own experience that many disputes are dealt with and resolved in the Commission by conciliation with parties reserving their rights on questions of jurisdiction.

[41] The NTEU also question whether, if they are not a bargaining representative for the Agreement, this indicates that the employees covered by the Agreement have not been fairly chosen and hence the Agreement cannot be approved (see s.186(3) of the Act). This argument was not developed to any extent and it was not put that, whilst some employees may be eligible to be members of the NTEU they are not eligible to be members of the AEU.

[42] The AEU argued that the balance of convenience favours the maintenance of the status quo ante. It says that historically the NTEU was not involved in bargaining in this sector and that should be maintained.

[43] I have carefully considered the arguments put before me. I have, in reaching my decision on the terms of this interim decision taken into account that directions have been set to hear the matter in less than four weeks and that there is, as is not uncommon, a complexity around the rules of the NTEU that must be resolved. I am also mindful of the undertaking given by the AEU.

[44] I am satisfied that the balance of convenience lies with the AEU. The NTEU will therefore not be covered by the Agreement in this interim decision. The determination of the NTEU’s coverage will be made at a later date. It will not be disadvantaged by this decision.

[45] The AEU, 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), I note that the Agreement covers the organisation.

[46] The NTEU has also given notice under s.183 of the Act that it wants the Agreement to cover it. The question as to whether the Agreement covers the NTEU is reserved for further hearing and decision.

[47] The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 2 December 2015. The nominal expiry date of the Agreement is 2 July 2016.

COMMISSIONER

Appearances:

W. Spargo of Lander & Rodgers for the VTA.

J. Fetter of Counsel with J. Wieladek of Holding Redlich for the AEU.

L. Gale and K. McAlpine of the NTEU.

Hearing details:

2015.

Melbourne:

25 November.

Annexure

 1   [2012] FWAFB 2901.

 2   Australian Broadcasting Corporation v O'Neill, (2006) 227 CLR 57 at 65, per Gumnow and Hayne JJ. (footnote in original)

 3   2012 Agreement, clause 3.

Printed by authority of the Commonwealth Government Printer

<Price code O, AE416804  PR574364>