1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Charles Darwin University
(AG2022/5025)
CHARLES DARWIN UNIVERSITY AND UNION ENTERPRISE
AGREEMENT 2022
Educational services
COMMISSIONER PLATT ADELAIDE, 6 APRIL 2023
Application for approval of the Charles Darwin University and Union Enterprise Agreement
2022
[1] An application has been made for approval of an enterprise agreement known as the
Charles Darwin University and Union Enterprise Agreement 2022 (the Agreement) pursuant
to s.185 of the Fair Work Act 2009 (the Act) by Charles Darwin University (the University or
the Applicant). The agreement is a single enterprise agreement.
[2] The matter was allocated to my Chambers on 16 December 2022.
[3] On 25 January 2023, I published a decision dismissing the application as a result of
concerns about ‘genuine agreement’. The Applicant appealed. On 24 March 2023, the Full
Bench heard the appeal and determined that Agreement had been genuinely agreed and
remitted the matter back to me to deal with the remaining issues [PR760612].
[4] I subsequently corresponded with the parties to seek clarification about the remaining
aspects of the Agreement and invited the Applicant to address these matters including through
the provision of an undertaking and the Unions to respond.
NES Issues
There is one NES issue that requires comment. Clause 68 of the Agreement (Abandonment)
appears to indicate that abandonment would apply retrospectively. This would be contrary to
the NES. The Agreement contains an effective NES Precedent provision at Clause at 3.8.
Accordingly, to the extent that Clause 68 is inconsistent with the NES, this provision will not
apply.
[2023] FWCA 1013
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr760612.pdf
[2023] FWCA 1013
2
Undertakings
[5] The Applicant has submitted an undertaking in the required form dated 29 March
2023. The undertaking deals with the following topics:
• Notwithstanding Clause 69.10 of the Agreement, the University undertakes to
provide any employee whose employment is terminated on the grounds of ill health
with six (6) months’ notice of termination of employment.
• Notwithstanding clause 10.5.2 of the Agreement, the University undertakes to
apply clause 12.2 of the Higher Education - General Staff - Award 2020 in respect
of minimum periods of engagement for casual professional employees.
• Notwithstanding Clause 22 – Over and Under Payments, the University will
comply with the requirements of the Fair Work Act 2009 in relation to deductions
from pay.
• A HE or VET Academic employee with less than one year’s service who is
terminated on the grounds of redundancy will receive four (4) weeks’ redundancy
pay.
• Notwithstanding Clause 40.6, Annual Leave will only be cancelled by agreement
with the Employee.
• The University undertakes that Apprentices and Trainees shall be employed in
accordance with the Trainee Rate of Pay at Clause 85 – Rates of Pay.
• The University undertakes that Territory FM Employees will be subject to the
ordinary span of hours provided for Professional Employees as detailed in
subclause 12.4.
[6] A copy of the undertaking has been provided to the bargaining representative(s) and I
have sought their views in accordance with s.190(4) of the Act.
[7] On 29 March 2023, I received detailed feedback from the NTEU (which was
supported by the CPSU). The parties agreed to my determining the matter on the papers.
[8] The Unions raised four concerns. The concern in respect of Undertaking 3 not
relating to the NES has been resolved. Their concerns in respect of notice of termination for
ill health appear to be resolved by Undertaking 1. Their concerns regarding the cancellation of
approved annual leave have been dealt with in Undertaking 4.
[9] The undertaking appears to meet the requirements of s.190(3) of the Act and I have
accepted it. As a result, the undertakings are taken to be a term of the Agreement.
[10] The National Tertiary Education Industry Union, the Community and Public Sector
Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
(AMWU) being bargaining representatives for the Agreement, have given notice under s.183
of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the
Act, I note that the Agreement covers these organisations.
[2023] FWCA 1013
3
Approval
[11] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as
are relevant to this application for approval have been met.
[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from
7 days after the date of approval of the Agreement. The nominal expiry date is 31 December
2024.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
AE519677 PR760918
OF THE FAIR WORK COMMISSION THE
https://www.fwc.gov.au/documents/agreements/approved/AE519677.pdf
