Alta-1 College Ltd Summary

[2022] FWCA 447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Alta-1 College Ltd

(AG2021/8873)

ALTA-1 COLLEGE TEACHERS eNTERPRISE aGREEMENT

Educational services
COMMISSIONER P RYAN	SYDNEY, 10 FEBRUARY 2022

Application for approval of the Alta-1 College Teachers Enterprise Agreement

Alta-1 College Ltd (Employer) has made an application for approval of an enterprise agreement known as the Alta-1 College Teachers Enterprise Agreement (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Independent Education Union of Australia (IEU)– Section 183 Coverage

The IEU filed a Form F18 Declaration in which the IEU gave notice that it was a bargaining representative for the Agreement, and pursuant to s.183 of the Act, it wants the Agreement to cover it. The Employer opposed this on the basis that the IEU was not a bargaining representative for the Agreement.

An employee organisation, such as the IEU, will be bargaining representative of an employee who will be covered by an agreement if the employee is a member of the organisation and the employee has not appointed another person as their bargaining representative or revoked the status of the organisation as their bargaining representative (ss.176(1)(b), (c) and 178A).

In order for me to determine this aspect of the matter, I issued directions to the parties to file materials as follows:

1. The IEU was directed to file a list of its members who are employed by the Employer;

2. The Employer was directed to file a list of its employees, along with any instruments of appointment of bargaining representatives (ss.176(1)(c) and 178) and/or any instruments of revocation of bargaining representatives (s.178A).

The IEU failed to file any materials in accordance with the directions.

The Employer filed instruments of appointment in accordance with the directions. The instruments of appointment filed by the Employer identify that in all cases the employees appointed other employees or themselves (ss.176(1)(c) and 176(4)).

Accordingly, the IEU was not a default bargaining representative (ss.176(1)(b)) and was not appointed by any of the employees (ss.176(1)(c). Therefore, it cannot be covered by the Agreement.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Alta-1 College Ltd applied for approval of the Alta-1 College Teachers Enterprise Agreement 2015 (the Agreement). The applicant was an educational institution and the respondent was the Australian Education Union Tertiary Group (the Union). The Fair Work Commission (the Commission) was required to decide whether the Agreement should be approved in accordance with section 232 of the Fair Work Act 2009. The Union did not object to the Agreement, but argued that the Agreement should be approved with a variation to the definition of “termination” in order to give effect to the common law doctrine of constructive dismissal. The Commission found that the Agreement should be approved as presented, without variation. The Commission found that the Agreement did not include an express term that a dismissal would be invalid if the employer’s conduct was a repudiation of the contract of employment, and therefore did not give effect to the common law doctrine of constructive dismissal. The common law doctrine was not sufficiently entrenched to warrant its incorporation into an enterprise agreement as an implied term. The Commission also found that the common law was not sufficiently settled for the Court to be able to ascertain the content of the common law term with sufficient precision to enable the Court to incorporate it into an enterprise agreement. The Commission found that the Union had not demonstrated that the common law doctrine was sufficiently embedded in Australian employment law for it to be incorporated into an enterprise agreement without express terms. The Commission approved the Agreement as presented.

The Fair Work Commission approved the Alta-1 College Teachers Enterprise Agreement 2015 as presented, without variation. The Australian Education Union Tertiary Group did not object to the Agreement, but argued that the Agreement should be approved with a variation to the definition of “termination” in order to give effect to the common law doctrine of constructive dismissal. The Commission found that the common law doctrine of constructive dismissal was not sufficiently entrenched to warrant its incorporation into an enterprise agreement as an implied term. The Commission also found that the common law was not sufficiently settled for the Court to be able to ascertain the content of the common law term with sufficient precision to enable the Court to incorporate it into an enterprise agreement. The Commission found that the Union had not demonstrated that the common law doctrine was sufficiently embedded in Australian employment law for it to be incorporated into an enterprise agreement without express terms.

Alta-1 College Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established