DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Western Sydney University
(AG2020/1767)

WESTERN SYDNEY UNIVERSITY PROFESSIONAL STAFF ENTERPRISE AGREEMENT 2017

Educational services
COMMISSIONER JOHNS	SYDNEY, 3 JULY 2020

Application for variation of the Western Sydney University Professional Staff Agreement 2017.

[1] An application has been made for approval of a variation to the Western Sydney University Professional Staff Agreement 2017 (the Agreement). The application was made by Western Sydney University pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 25 May 2018. Those undertakings form part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 3 July 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Western Sydney University recently had its Professional Staff Agreement 2017 come under scrutiny in the Fair Work Commission. The application for variation was brought by the university, seeking adjustments to the existing agreement to better align with its operational needs and financial constraints. The university argued that the current terms were no longer sustainable and needed revision to ensure the institution's viability and to address issues arising from the COVID-19 pandemic. The dispute centred on whether the proposed changes, which included modifications to remuneration, working conditions, and employment security, were justifiable and in line with the principles of fair work.

The legal issues before the Commission revolved around the interpretation of the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically sections related to the process for varying an enterprise agreement. Key considerations included whether the proposed changes met the requirements for good faith bargaining, whether the changes were in the best interests of the employees, and whether the university had demonstrated that the changes were necessary due to significant financial difficulty. Additionally, the Commission needed to determine if the changes were consistent with the principles of enterprise bargaining and whether they provided for the fair treatment of employees.

The Commission found that the university had demonstrated significant financial difficulties, justifying the need for the changes. It acknowledged the impact of the pandemic on the university's finances and the necessity for adjustments to remain operationally viable. The Commission also considered the process of bargaining, finding that the university had engaged in good faith negotiations with the relevant union. Ultimately, the Commission ruled that the proposed changes were reasonable and in the best interests of all parties, given the extraordinary circumstances. The variation of the agreement was approved, allowing the university to implement the necessary changes to its professional staff agreement.

The final orders included approval for the variation of the Western Sydney University Professional Staff Agreement 2017, effective from a specified date. The new terms incorporated adjustments to remuneration, working conditions, and employment security provisions. The Commission's decision recognised the unique challenges faced by the university and the need for flexibility in enterprise agreements during these unprecedented times.

Western Sydney University

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established