ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission found appellant had employed 35 teachers on a fixed-term basis in contravention of clause 9.6 of the Monash College Proprietary College Ltd (Monash University Foundation Year Teaching Staff) Agreement 2012 (Agreement) – NTEIU v University of Melbourne followed – found that had the appellant not employed the teachers on fixed-term contracts they would have been employed on on-going contracts – found parties should consult to give effect to this determination – appellant sought to appeal the decision – submitted the Commission erred in finding the teachers were not permitted to be appointed on fixed-term contracts and erred in finding the college would have employed the teachers on an ongoing basis had fixed-term contracts not been available – submitted the determination was without precedent and beyond power and alternatively the discretion to make the order was miscarried – respondent submitted the Commission had not acted beyond power and the determination was the application of the agreement and standard dispute resolution process – parties only obligation was to consult to give effect to her determination – further submitted the Commission correctly assumed the College required the 35 teachers to perform work and would have employed them on ongoing contracts if fixed term contracts were not available – Full Bench granted permission to appeal – held appeal raises important questions concerning the interpretation of enterprise agreements in circumstances where the Commission’s discretion to alter existing employment contracts is an issue in the dispute – Commission’s approach to enterprise agreements in the public interest – Full Bench then considered the appeal – House v The King cited – held the weight of evidence from the appellant did not support the Commission’s contention that the appellant would have employed the 35 teachers on an on-going basis had fixed-term contracts not been available – error made in accordance with House v King – further held the determination at first instance retrospectively altered the contracts of the 35 teachers – NTEIU v University of Melbourne does not support the determination and there is no power in the FW Act or Agreement to have made it – held no jurisdiction to make initial determination which was another House v King error – Commission did not properly exercise the discretion vested in the Commission – appeal upheld – decision quashed. Appeal by Monash College P/L against decision of Bissett C of 6 June 2016 [[2016] FWC 3538] Re: Independent Education Union of Australia
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