Full Bench discussing procedural considerations in rolling out an Agreement

A Full Bench of FWA dismissed an appeal by the NTEU against an earlier decision of Fair Work Australia to approve the UNSW (Professional Staff) Enterprise Agreement 2010.

The union appealed the agreement approval decision on what the commission described as ‘every conceivable point’. The union argued the employer failed to take all reasonable steps to give the notice of representational rights to each relevant employee, because there were other steps it could have taken that it did not (sending out a broadcast email to employees). The commission disagreed, confirming the original decision that “all reasonable steps” is not to be interpreted literally, but requires, in particular circumstances, that an employer take multiple steps rather than a single step because a given step may be reasonable in respect of one group of employees, but not in respect of another group of employees.

The union also said the employer failed to provide access to documents incorporated in the agreement by reference. Referring to Re McDonald’s Australia Enterprise Agreement 2009, the commission found that to the extent legislation was incorporated into the agreement, the legislation is freely available in the public domain, and no further steps were required. However, noting that all employees had electronic access to the material which was located on the UNSW website and all employees had a computer from which the website could be accessed, the commission indicated that there may be cases where the workforce requires a different approach.

The union argued that the employer failed to take all reasonable steps to explain the terms of the agreement to relevant employees. The commission found that there was sufficient evidence to indicate that the employer had met this requirement, noting that the Act does not require an explanation of every clause in the Agreement.

In relation to an argument that the group of employees was not fairly chosen, going to the exclusion of cadets and trainees from the agreement, the commission was unable to be satisfied of an error on the basis of the information before him.

The union then claimed the agreement failed the better off overall test. The full bench found the approval decision correctly identified some parts of the agreement as inferior to the relevant awards and some which were superior, and that in weighing the provisions as a whole, the commission was entitled to reach the view that the better off overall test was met.

Finally, it was said that the views of the union were not sought in relation to undertakings given in connection with the agreement. The full bench found  a technical error in not seeking the union’s view on the final form of undertaking sought from UNSW. However, the commission found that this would not have affected the outcome because the union, given its opposition to the agreement, would not have agreed to the undertaking, and in any event, the union had been given the opportunity to provide input in relation to the subject matter of the undertakings sought, which it had not taken up. The commission held that the error was not of such significance that it should grant permission to appeal.