Enterprise bargaining in the education sector.

The background

Our client is an ASX listed global education provider that offers a range of educational services through its university partnerships, affiliations with major universities as well as its professional education, English language training and settlement services.

In around March 2012, our client entered into negotiations on behalf of one of its colleges, with the National Tertiary Education Union (NTEU) and employees for a replacement enterprise agreement to cover its academic and non-academic employees. Negotiations became protracted and extended for over 18 months, with the bargaining representatives meeting on no less than 17 occasions in 2013, and a further 7 occasions in 2014.

Despite the best efforts of the bargaining representatives, even after some 18 months the negotiations had not progressed and there was limited prospects of the parties reaching agreement on terms for a new Enterprise Agreement for the reasonably foreseeable future.

In addition, on 15 April 2014 the NTEU filed in the Fair Work Commission an Application for a Protected Action Ballot Order, which included forms of industrial action that would cause a significant impact on College operations including assessment of student results, class time tabling and student record keeping. Following an objection to the form of the protected action ballot, the ballot was ultimately approved and voted up by a majority of NTEU members. The NTEU also issued notices to take protected industrial action on College management and industrial action took place on at least four occasions.

The approach

FCB was engaged to provide strategic advice to the client to effectively bring the negotiations for a replacement enterprise agreement to an end and to assist the business to deliver a replacement enterprise agreement that resolved some of the inflexibilities associated with the incumbent enterprise agreement. FCB was also instructed to support the client to respond to and mitigate the impact of protected industrial action at the College, which protected industrial action (if taken) had the potential to significantly disrupt College operations.

FCB’s proactive and client-focussed approach and experience resulted in the initiation of a bargaining dispute process and negotiations for the replacement enterprise agreement being listed for a series of bargaining conferences in the Fair Work Commission. Ultimately, this led to the resolution of all bargaining claims against the NTEU and an in principal agreement on terms of the replacement enterprise agreement being reached in a short time-frame. FCB’s strategic advice also enabled the client to minimise the impact of the protected industrial action on College operations and also to manage the NTEU’s conduct in relation to the bargaining and protected industrial action, which included numerous right of entry breaches. FCB also provided support to the client in finalising the terms of the replacement enterprise agreement for compliance with approval requirements, the conduct of a vote on the replacement enterprise agreement and other preapproval requirements.

The outcome

As a result of FCB’s work with the client, a replacement enterprise agreement was approved by the Fair Work Commission in February 2015. FCB’s effective engagement with the client and College representatives and strategic advice allowed the client to expedite the bargaining process and also to effectively manage the impact of the protected industrial action on its employees, students and reputation.