NTEU v Uni of NSW


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 FWA to approve the UNSW (Professional Staff) Enterprise Agreement 2010.

The NTEU appealed the agreement approval decision on what FWA described as ‘every conceivable point’. The NTEU 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). FWA 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 NTEU 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, FWA 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, FWA indicated that there may be cases where the workforce requires a different approach.

The NTEU argued that the employer failed to take all reasonable steps to explain the terms of the agreement to relevant employees. FWA 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, FWA was unable to be satisfied of an error on the basis of the information before him.

The NTEU 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, FWA was entitled to reach the view that the better off overall test was met.

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