[2011] FWAFB 5163

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Fair Work Act 2009
s.604 - Appeal of decisions

National Tertiary Education Industry Union
University of New South Wales



Appeal against decision [2010] FWAA 9588 of Vice President Lawler at Sydney on 16 December in matter number AG2010/14910, approval of enterprise agreement.

[1] This decision concerns an appeal under s.604 of the Fair Work Act 2009 (the Act) by the National Tertiary Education Industry Union (NTEU or Appellant) against the approval by Vice President Lawler of the University of New South Wales (Professional Staff) Enterprise Agreement 2010 (Agreement) 1 The NTEU opposed the approval of the Agreement. The University of New South Wales (UNSW), CPSU, the Community and Public Sector Union (CPSU) and Australian Higher Education Industrial Association (AHEIA) all supported its approval before His Honour and, before us, all opposed the granting of permission to appeal.

[2] The Agreement covers the UNSW and employees who are members of its professional staff. Clause 5.2 excludes some employees from coverage and we say more about some persons in this group later in this decision. Each of the NTEU, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the CPSU gave notice under s.183 of the Act that they wanted the Agreement to cover them. Accordingly, the Vice President’s decision notes that the Agreement covers these organisations. 2


[3] The background to the application for approval of the Agreement provides an important context in which the Vice President considered each of the relevant provisions of Part 2-4 of the Act. It is appropriate we reproduce that part of his decision which addresses that background:

[4] After the above background His Honour then referred to a number of provisions of the Act which he was required to consider in deciding whether to approve the Agreement. In this context he noted that s.186 of the Act provides that if the requirements of that section and s.187 are met then he must approve the Agreement. One of the requirements in s.186(2)(a) is that an agreement had been genuinely agreed to by the employees covered by it. Section 188 deals with the matters FWA must be satisfied about when considering if an agreement has been genuinely agreed. This section is referred to several times in His Honour’s decision and it is convenient for it to be set it out here:

[5] We return to His Honour’s decision. He summarised the NTEU’s objection to the approval of the Agreement in the following terms:

The Grounds of Appeal

[6] The errors the Appellant submits were made by His Honour in approving the Agreement are in the same terms as the objections listed above. Additionally, a challenge is made to His Honour’s acceptance of an undertaking from the UNSW. We now turn to the grounds of appeal.

[7] The first grounds of appeal relate principally to s.173 of the Act. The Appellant submits that the Vice President failed to properly apply that section. It submits that he should have found that the UNSW failed to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each relevant employee. It asserts that as a result there was no jurisdiction to approve the Agreement. The term “all reasonable steps” is in s.173(1). Section 173(5) provides that the regulations may prescribe how notices under subsection (1) may be given. Regulation 2.04 is the relevant regulation. The Appellant submits that His Honour did not afford appropriate weight and meaning to the word ‘all’ and, in effect, concluded that an employer was simply to take ‘reasonable steps’ as opposed to ‘all reasonable steps’. In developing this argument reference was made to provisions in the Workplace Relations Act 1996 which dealt with obligations on employers who wished to negotiate a collective agreement under that act.

[8] The Appellant’s argument relies on the evidence of Mr Ward, the UNSW Director, Human Resources who acknowledged that the notice of representational rights not been given by way of a broadcast email to all relevant employees and that such a step was reasonably open for the university to have undertaken. On this basis, the NTEU submits that His Honour should have found that the UNSW did not take a reasonable step to distribute the notice of employee representational rights. Accordingly, it submits that as a matter of statutory construction the Vice President fell into jurisdictional error in finding that UNSW complied with the mandatory requirements of s.173 to take all reasonable steps. He had no jurisdiction to approve the Agreement and we should quash its approval.

[9] It is appropriate that we refer to and reproduce His Honour’s reasons in which he describes how he interpreted s.173 and its application to the steps which the UNSW had taken to comply with it. He did so having first observed that when FWA is considering the approval of an Agreement the Act does not expressly require it to consider if s.173 or s.174 were complied with. Consideration of those sections arises in an indirect way through the application of the requirements of ss186, 187 and 188. His Honour said:

[10] We agree with the Vice President’s interpretation of s.173 of the Act and its application to the established facts as to the steps taken by the UNSW. We do not agree with the NTEU submission that His Honour’s summary of the submission which the NTEU had made below was inaccurate. His Honour correctly identified that the NTEU contended that the requirement in s.173(1) of the Act should be approached by first identifying all of the steps to give notice that could be taken and that are “reasonable” and then, if one of those steps was not taken the mandatory requirement in s173(1) had not been satisfied. A not dissimilar construction of s.173 was also contended for by NTEU on appeal. 4

[11] There was no evidence before His Honour that any employee who would be covered by the Agreement did not receive notice of their representational rights and the NTEU did not submit that the steps actually taken by the UNSW to notify employees of their representational rights were not reasonable steps. Accordingly, there was no error in His Honour finding that the giving of notice on the “myUNSW” website in the manner that occurred was a reasonable step. What the NTEU submitted below, and before us, is that there was another reasonable step which the UNSW did not take. That step was to send the representational notices to employees by broadcast email. By not taking that step it could not be found that it took all reasonable steps (as distinct from only some reasonable steps) as required by s.173 of the Act.

[12] The NTEU did not accept that the practical application of its construction of s.173 meant that all reasonable steps had to be ascertained and then an employer needed to take all of them regardless of whether that employer might have had a high degree of confidence that, say, the first step had achieved its purpose. The NTEU submits that the practical application of its construction is that all reasonable steps would be ascertained in advance and then, whilst in the course of taking them, an employer may form the view that one of the steps had constituted all reasonable steps so the next were not necessary to take. We have some difficulty with it being said that the practical effect of this construction is not just the same as that His Honour adopted. It seems to us that if, whilst taking steps identified as reasonable, an employer can along the way decide that it had taken all reasonable steps there is no reason in our opinion why His Honour should have found what the UNSW did here had not complied with s.173.

[13] We do not agree that s.173 should be given the construction that an employer, having ascertained the various steps that are reasonable, is then required to take each one of them. We agree with the UNSW submission that construction reflects an insistence upon a ‘literal’ interpretation, the results of which lead to a conclusion that the legislature could not have intended. It would mean for example if an employer took a reasonable step of handing a notice to an employee or group of employees, the employer would none the less be required to take a range of further steps which are also reasonable to give the same notification to the same employee or employees.

[14] It seems to us that the NTEU argument in this case relies heavily on the frank concession that was made by Mr Ward that, in retrospect, sending a broadcast email directly to the address of each employee might have been wise. Of course, as His Honour quite rightly observed, it is appropriate when considering whether all reasonable steps were taken to place in context the stage at which bargaining had reached. It had been going for some time. However, because the legislation came into operation whilst it was under way the view was taken that it was necessary for the UNSW to comply with ss173 and 174. Although somewhat unrealistic in a practical sense where the only bargaining representatives were (and had always been) the unions, nonetheless the view was taken that there was a necessity to give notice as required by s.173. It is in this context, and against the factual findings His Honour made in paragraphs 17 - 22 of his decision, that he needed to consider whether the UNSW had taken all reasonable steps to give relevant employees notice of their representational rights.

[15] The NTEU construction of s.173 is not one to be preferred to that adopted by His Honour. His Honour’s construction that “all reasonable steps” 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 is the better construction. In applying that construction to the facts there was acceptable evidence for His Honour’s conclusion that the requirements of s.173 had been met.

[16] We should indicate that in reaching our conclusion on this ground of appeal we have not overlooked the UNSW submission that the Appellant’s categorisation of this ground as a jurisdictional error is misconceived and wrong. It is not strictly necessary for us to say much more about this but we consider it useful to summarise the submission that was made.

[17] As we have earlier observed FWA must approve an enterprise agreement if the requirements of ss186 and 187 of the Act are met. One requirement is that FWA must be satisfied that the Agreement was genuinely agreed to by the employees to be covered by it. 5 Section 188 is relevant to this consideration. We have reproduced that section earlier. Nowhere in that section does FWA need to be satisfied the employer had taken all reasonable steps to give notice of representational rights under s.173 of the Act. The requirement arises in an indirect way through the reference in s.188(a)(ii) to s.181(2) having been complied with. This provides that employees are not to be requested to approve an agreement until at least 21 days after the day on which the last notice under s.173(1) is given. FWA is not required to consider whether all reasonable steps were taken to give that notice. On this basis the UNSW submits no jurisdictional error is apparent.

[18] Although we have decided this ground of appeal on the basis of the correct construction of s.173 and its application to the facts, we think it appropriate to observe that the UNSW submission that it was not strictly necessary for His Honour to consider whether s.173 had been complied with is arguable. One important consideration weighing against this submission however is the key role of bargaining representatives in the enterprise bargaining regime in the Act and the rights and obligations employee organisations have in that regime. In this context, informing an employee at the start of bargaining about how they may be represented is an essential component. So, a construction of the Act which may deprive a party from informing FWA, when called upon to approve an agreement, that in fact all reasonable steps had not been taken as required by s.173 would not be one readily adopted. It is not necessary however for us to say more about this argument in this decision.

[19] The next grounds of appeal concern the manner in which His Honour applied s.180(2) of the Act. That section is in the following terms:

[20] The need for His Honour to consider this section arises by virtue of s.188(a)(i) which made compliance with s.180(2) a precondition for him to be satisfied that the Agreement was genuinely agreed to by employees. The clauses of the Agreement which are the subject of this challenge are clauses 38.3 and 38.4(a). They are in the following terms:

[21] The Appellant submits the Long Service Leave Act 1955 (LSL Act) and the material referred to in clause 38.4(a) is incorporated by reference into the Agreement by virtue of those provisions. As copies of the LSL Act and material in clause 38.4(a) were not provided to employees s.180(2)(a)(ii) was not complied with. Therefore, it submits His Honour should not have been satisfied the Agreement had been genuinely agreed.

[22] His Honour dealt with this challenge when made below in this way:

[23] The decision in Re McDonald’s Australia Enterprise Agreement 2009 referred to by His Honour contains the following comments which we understand to be what His Honour is referring to above in paragraph 43 of his decision. This extract also happens to be paragraph 43 of the Full Bench decision:

[24] Although it is not entirely clear that the effect of clause 38.3 is to incorporate the LSL Act we proceed on the basis that it appears His Honour found it to be. We say “it appears” as we note His Honour’s comments in paragraph 43 of his decision that “....to the extent that clause 38.3 incorporates” the LSL Act. We assume that as the Agreement extends to employees in the ACT it is in that respect His Honour accepted the LSL Act was incorporated. His Honour was correct to find he was bound to follow the decision of the Full Bench in McDonalds and no sufficiently persuasive submission was put to establish a basis that may have allowed him not to do so. We are not persuaded a sufficient argument has been made out to revisit the approach taken in McDonalds. 7 We do acknowledge however that there may be cases where the characteristics of the workplace and the composition of the workforce may require more than what that Full Bench indicated was adequate. This is not such a case.

[25] We accept the UNSW submission that there was sufficient evidence before His Honour to be satisfied the requirements of s.180(2) were met. In this respect we note the unchallenged evidence of Mr Ward that every employee has access to a computer and there was no evidence to suggest that any employee did not have access to their computer during the access period.

[26] We have not been persuaded that His Honour’s conclusion that the material referred to in clause 38.4(a) was not incorporated into the Agreement is erroneous. To adopt the NTEU submission is to place no weight on the express terms of clause 9(c) of the Agreement that provides as follows:

[27] In respect to this ground we adopt the submissions of the UNSW at paragraphs 36 to 47 of its written submission. A summary of those submissions is sufficient. The relevant ‘provisions’ are an Information Paper titled, “Long Service Leave - recognition of prior service” and an excerpt from clause 32 of the University of New South Wales General Staff Agreement 2003 (the 2003 Agreement). The Information Paper is a source of information that is expressed to “clarify whether prior service” is recognised by UNSW. The Information Paper contains the major heading “POLICY” under which the position of ‘Academic Staff’ is set out. It is implausible to contend that the parties intended to incorporate as terms of the Agreement, details of academic staff entitlements whose employment is not covered by the Agreement. It is also implausible to contend that the parties intended to incorporate clause 32 of the 2003 Agreement. To do so would introduce duplication of many of the provisions dealing with long service leave that are expressly dealt with in clause 38 of the Agreement.

[28] Finally we should observe that had we found error in His Honour’s finding that the material in clause 38.4(a) was incorporated then we would have also found that requisite access as required by s.180(2)(a) had been given. As has earlier been noted 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.

[29] The next grounds relate to the NTEU assertion that the Vice President was in error in finding that the requirements of s.180(5)(a) were met. This challenge relates to the obligation upon an employer to take all reasonable steps to ensure that the terms of an agreement and the effect of those terms are explained to the relevant employees.

[30] The NTEU again refers to clauses 38.3 and 38.4(a) and submits that the UNSW did not take any steps to explain the effect of those clauses. It follows, it submits, that UNSW cannot be taken as having satisfied s.180(5)(a). In addressing this ground of appeal reference was also made to a sign on bonus offered to certain employees. About this the NTEU submitted that the UNSW took no steps to explain how that bonus would be paid and to whom it would be paid. It contends that so far as this was a relevant consideration, the Vice President failed to have regard to it and as such fell into error.

[31] We should first indicate that it appears the NTEU did not submit to His Honour that the UNSW had failed to explain the effect of clauses 38.3 and 38.4(a). It raises this particular challenge for the first time on appeal. Its submission to His Honour was in different terms. To the extent on appeal it refers specifically to those two clauses in the context of this ground of appeal we are not inclined to accommodate that challenge. No basis was made out to persuade us this was a proper case in which to do so. 8 In passing, we note that comparable provisions were in the predecessor 2006 Agreement and there was no suggestion any issue about the way those terms operated had ever arisen.

[32] His Honour dealt with the challenge that was made by reference to the requirements of s.180(5)(a) in this way:

[33] We can identify no error in His Honour’s approach. We agree with the UNSW submission that the obligation on an employer in s.180(5)(a) of the Act to explain the terms of the Agreement and the effect of those terms to employees does not require an explanation of every clause in the Agreement. These are not employees new to bargaining and it can be assumed they were well informed about the pre-approval steps needed to be taken to obtain FWA approval of the Agreement. The evidence certainly establishes the UNSW went into great detail to explain these matters and the content of the Agreement. Comparative schedules identifying all significant provisions were distributed and some 14 information sessions were conducted. Although we accept it is the actions taken by the UNSW to explain the Agreement to which s.180(5)(a) is directed, it would be unrealistic to ignore the active campaigns undertaken by the Appellant and the CPSU accompanied as they were by leaflets, emails and posters. These facts, and taking account of the composition of the workforce to be covered by the Agreement, could properly inform His Honour in his consideration of the requirements of s.180(5)(a). As for the sign on bonus His Honour was taken to the various documents and occasions where it was explained to employees. The evidence was adequate for His Honour to form the view that the requirements of s.180(5)(a) were met. No error has been established.

[34] The next grounds of appeal relate to s.186(3) of the Act which required His Honour to be satisfied the group of employees covered by the Agreement was fairly chosen. There are three aspects to these grounds of appeal. One relates to whether the clause is discrimatory, the next is to His Honour’s comments about whether the persons in question were employees and the third relates to the exclusion of these persons by virtue of the operation of clause 5.2 of the Agreement. That clause is in these terms:

[35] It is the exclusion which relates to Nura Gili trainees and cadets which is the focus of this challenge to His Honour’s approval decision. It is submitted by the NTEU that His Honour erred in finding that indigenous cadets performing work through the Nura Gili program were not employees. It also submits that there is no evidence that in performing the work over the long second semester break they were operationally or organisationally different to other employees performing the same work.

[36] The NTEU also submits that if the Nura Gili cadets are employees, performing the same work as non-Nura Gili cadets but are denied the benefit of all the terms and conditions in the Agreement, and the only reason for them not having the benefit of the agreement is the fact that they are placed within the Nura Gili cadetship program, such reason is unfair and discrimatory.

[37] His Honour dealt with this issue below in the following way:

[38] First we do not accept that part of the NTEU submission which asserts the operation of the clause is discriminatory. That was not submitted below indeed the NTEU expressly denied the clause was discriminatory 9. It was never suggested throughout the bargaining process that the clause was discriminatory and the first the UNSW knew of this challenge was on appeal. We are not persuaded it is meritorious. In the event an argument was made out that this challenge had some merit we would have done no more on this appeal than rely on the provisions of s.253 of the Act. This section provides that a term of an enterprise agreement has no effect to the extent that it is an unlawful term. An unlawful term includes a discrimatory term.10

[39] The next finding made by His Honour was that it is not uncommon for an agreement to exclude trainess and cadets and such an exclusion in itself does not lead to a conclusion that the group of employees covered by the agreement was not fairly chosen. We do not understand the NTEU challenges that proposition.

[40] We accept that part of the NTEU submission which relates to His Honour’s comment about the persons referred to in clause 5.2(a)(iv) not being employees. Neither the NTEU or UNSW had contended for that finding before His Honour. However, accepting that his Honour should have concluded that cadets performing work through the Nura Gili program were employees does not mean their exclusion from the Agreement results in the group covered by it not being fairly chosen. We read clause 5.2(a)(iv) as excluding from coverage all employed trainees or cadets. It appears that His Honour also was of the opinion that if these persons were covered by the Agreement (and obviously they could only be so if they were employees) then the exclusion was an acceptable one. As this was never an issue during bargaining we accept the UNSW submission that the intention of the parties was that all such employees would be excluded from coverage under the Agreement. There was no evidence to suggest otherwise. This too seems to be the way in which His Honour, during the hearing, said he read the clause. He indicated that the clause reflected an intention to carve out cadets and traineeships “in toto, full stop”. 11 The UNSW agreed with that comment and the NTEU did not challenge it.

[41] To the extent the NTEU submission proceeds on the basis that there are non-Nura Gili cadets who are entitled to the benefits of the Agreement it appears there was no evidence there are any non-Nura Gili cadets (that is there were no other cadetship programs operated by the UNSW). To the extent there are other cadets the first part of the clause excludes them. Despite the error in His Honour’s finding about the status of the relevant persons we are not persuaded that in finding, as he did, the group covered was fairly chosen that His Honour was in error and it was this conclusion which s.186(3) required of him.

[42] Next it is argued His Honour was in error in concluding the Agreement passed the better off overall test. That test is contained in s.193 of the Act and the key parts of that section were reproduced by His Honour in an extract from his decision we set out below. The test is applied as at the time the application for approval was made. 12 For the purposes of applying the test the provisions of two enterprise awards were considered. The awards were the University of New South Wales General Staff Award 200313 and the University of New South Wales, Australian Defence Force Academy General Staff Award 200314 (the Awards).

[43] The NTEU submitted that the Agreement disadvantages employees in a number of ways. It submitted that the Vice President failed to take into account or give proper weight to the several provisions of the Agreement which were inferior to the counterpart provisions in the Awards.

[44] We reproduce here the comments made by His Honour about his approach to the better off overall test and related considerations.

[45] We first refer to the Vice President’s reference to the “existing agreement” which we take to be the 2006 Agreement. The UNSW accepts that s.193 does not require consideration of the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement. However, as it correctly points out, no arguable basis has been established by the NTEU for concluding that his Honour approached the assessment of the better off overall test by reference to a comparison with the 2006 Agreement.

[46] The test, as the name implies, requires an assessment of the overall benefit to an employee employed under an enterprise agreement as compared to the relevant award. 15 This consideration does not require an assessment of the circumstances of each individual employee but, as s.193(7) allows, “... if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant award applied to that class , FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee”.

[47] As His Honour was well aware the Agreement contained some provisions which may be considered inferior to the counterparts provision in the Awards and provisions which were superior. There is nothing unusual about that. What he needed to satisfy himself of was whether, weighing the Agreement provisions as a whole with those in the Awards, an employee is better off overall. This, in our opinion, is clearly what His Honour did.

[48] Contrary to the NTEU submission His Honour did not fail to take account of the provisions concerning fixed term appointments and the manner in which casual conversion was dealt with in the Agreement. It is fair to say that the provisions concerning fixed term employment feature large in the NTEU evidence and submissions. His Honour was well aware of the importance of this category of employment. As head of the panel of which the higher education industry was a part, his understanding of the importance, historically and currently, of this category of employee can rightly be assumed by us. What the real complaint is of the NTEU is that he did not place the same weight on what were said to be the disadvantages as it would have preferred. As for the NTEU submission about the manner in which His Honour dealt with minimum engagements of casuals and safe guarding the wages of employees as a consequence of working the span of hours in the Agreement no error is made out. His Honour was well aware of these provisions. In fact he raised them himself in the proceedings as matters about which he was considering that undertakings should be sought. His Honour was not required to comment in his decision about every single provision about which the NTEU, CPSU or UNSW called to their aid to bolster an argument for or against the better off overall test being met. What His Honour did say was adequate to indicate his reasoning process and how he came to be satisfied the test was met. Also, in this assessment, it should not be overlooked that His Honour sought and obtained a detailed comparison undertaken by the FWA agreement’s team. It was provided to the parties and His Honour informed them he would be taking it into account and gave them an opportunity to comment on it.

[49] The evidence before His Honour was substantial. The respective assessments made by the NTEU, CPSU and UNSW and the FWA agreement’s team were all considered by him. He was clearly aware of what were said to be the advantages and disadvantages and, in that context, the superior monetary entitlements were an unarguable advantage. No basis has been made out for us to undertake an assessment of the respective benefits and entitlements. No error has been identified in the way His Honour undertook that task. It is a discretionary exercise and one in which his discretion did not miscarry.

[50] The final ground of appeal concerns the undertakings which were given by the UNSW and accepted by the Vice President. Section 190 deals with undertakings that may be sought when a member of FWA has concerns an agreement does not meet the requirements of ss186 and 187. It reads as follows:

[51] His Honour sought and was given undertakings and about this consideration he said :

[52] The NTEU submits His Honour was in error in that he failed to seek its view about the undertaking that was given by the UNSW. It submits that the undertaking was inadequate.

[53] In considering this ground of appeal we have taken into account the fact His Honour specifically raised with the parties his concerns about the matters which were ultimately the subject of the undertaking annexed to his decision. The transcript on the last day of hearing in particular contains numerous references to the undertaking His Honour was considering should be given by the UNSW. He said that he was inclined to approve the Agreement but with an undertaking and he sought the views of the parties about that undertaking. 16 His Honour concluded the hearing by indicating that if anyone had any views on the undertaking he had proposed they were to inform his chambers by a particular deadline.

[54] Both the NTEU and the UNSW made further written submissions. In the NTEU submission reference was made to the undertaking His Honour had foreshadowed on the last hearing date. In relation to casuals it submitted that the three hour minimum engagement provision in the Awards should apply and the only exemptions should be the same as those in the Awards. In relation to the span of hours clause it indicated it would not accept the test His Honour had proposed as a safe guard for employees. In relation to the FWA agreement’s team document it indicated it had no specific comments and the two observations it did make were of little significance. It indicated that no undertaking should be accepted as it would substantially change the Agreement. The UNSW also lodged written submissions in which it addressed the undertaking His Honour had proposed. It confirmed that it was prepared to give that undertaking.

[55] It would appear that about one week after the above submissions were received an email was sent from His Honour’s chambers to the solicitor for the UNSW setting out the undertaking that the UNSW needed to sign. The email was not sent to the NTEU (nor it appears to the CPSU or AMWU but neither of those bargaining representatives support this ground of appeal).

[56] We note that the Awards contain numerous provisions allowing for minimum periods of engagement of employees. Several provisions allow for a period of less than 3 hours. They also allow for parties to agree to lesser periods. This is not a case where the Awards prescribe for all casual engagements to be for no less than 3 hours. The Agreement, when now read with the undertaking, also provides for a mix of minimum engagements in identified circumstances. The undertaking was what His Honour believed would be adequate for the concerns he had to be met. As for the undertaking in respect of the safeguard as to earnings it is difficult to understand how the NTEU could genuinely object to it. Nonetheless, what is clear is that His Honour was of the opinion that undertaking met his concerns.

[57] There can be no doubt the NTEU clearly had an opportunity to comment on the subject matter of the undertaking in the hearing before His Honour. It also subsequently made written submissions about it. However, in failing to bring the undertaking to the attention of the NTEU, in the terms in which it was ultimately sought and given, s.190(4) was not complied with. In reaching this view we read the requirement in s.190(4) about seeking the views of the bargaining representatives to be seeking the views about the undertaking referred to in s.190(3). We read this undertaking to be the written undertaking of the employer.

[58] Accepting that His Honour was in error in not strictly complying with ss190(3) and 190(4) there can be no doubt of two things; that it was highly unlikely the NTEU would ever fully accept the terms of any undertaking and His Honour would have made the decision to approve the Agreement. This error of itself, and in the context of our rulings on each of the other grounds, is not of such significance to persuade us to revisit the approval of the Agreement. It is not a ground that warrants the grant of permission to appeal.


[59] The grounds of the appeal do not raise matters of such importance that enliven any public interest considerations. We are not persuaded the grounds warrant the grant of permission to appeal on the basis that the decision is attended with sufficient doubt to warrant its reconsideration or a substantial injustice may result if permission to appeal is refused. The appeal is dismissed.



Ms C. Howell of counsel for the National Tertiary Education Union.

Mr S. Meehan of counsel with Mr J De Flamingh, solicitor, for the University of New South Wales.

Mr M. Perica for the CPSU, Community and Public Sector Union.

Mr D. Wedgwood for the Australian Higher Education Industrial Association.

Hearing details:

March 31;
April 1.

 1   [2010] FWAA 9588

 2   Ibid para 103 and s.201(2) Fair Work Act 2009

 3   Ibid para 14

 4   PN 37, PN109, PN115

 5   Section 186(2)(a)

 6   [2010]FWAFB 4602

 7   See cases referred to in Transport Workers’ Union of Australia and Air Express Pty Ltd PR959284 at paras 14-15

 8   Coulton v Holcombe (1986) 162 CLR 1, [1986] HCA 33; University of Wollongong v Metwally [No.2] (1985) 59 ALJR 481 at 483.

 9   PN1350

 10   Sections 194 and 195

 11   PN1857

 12   Section 193(6)

 13   AP830787

 14   AP830788

 15   Armacell Australia Pty Ltd [2010] FWAFB 9985 at para 41

 16   PN 2120 - 2130

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