Ballarat Christian College T/A Ballarat Christian College

[2024] FWCA 4159

[2024] FWCA 4159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ballarat Christian College T/A Ballarat Christian College

(AG2024/3772)

BALLARAT CHRISTIAN COLLEGE ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER ALLISON	MELBOURNE, 27 NOVEMBER 2024

Application for approval of the Ballarat Christian College Enterprise Agreement 2024

1. Ballarat Christian College (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Ballarat Christian College Enterprise Agreement 2024 (the Agreement).

1. The Independent Education Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Ballarat Christian College Enterprise Agreement 2022” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error. 

1. I note that Clause 48.6 may be inconsistent with the National Employment Standards as it may have the effect of permitting the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination), inconsistent with Chapter 2 Part 2.2 Div 2 of the Act. However, noting clause 6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. I note that the Agreement is silent on overtime and penalty rates applicable to general staff. I further note that the Educational Services (Schools) General Staff Award 2020 (the General Staff Award) is incorporated. Therefore, I am satisfied that the overtime provisions in the General Staff of the Award form a term of the Agreement.

1. Clause A1.2 of Schedule A of the Agreement provides for rates of pay for casual employees that are equal to the Award rates in the Educational Services (Teachers) Award 2020 (the Teachers Award). The Employer has provided a written undertaking that casual employees will be paid the Award rates of pay plus $1.00, to ensure that casual employees are better of overall under the Agreement. The undertakings are attached in Annexure A.

1. The rates of pay in the Agreement for Level 1 and Level 2 employees appear to fall below the rates in the Educational Services (Schools) General Staff Award 2020 (the General Staff Award). The Employer has provided written undertakings to resolve this issue. The undertakings are attached in Annexure B.

1. Clause 17 of the Agreement states that the Employer will either provide protective clothing or reimburse staff for cleaning costs. Clause 19.3(c) of the General Staff Award has the effect that, where an Employer requires an employee to wear a uniform or protective clothing, the Employer must cover the cost of both the protective clothing itself and the laundering of the clothing. Employees who fall below or marginally above the General Staff Award and who are required to purchase their own uniform may therefore not be better overall. The Employer has provided an undertaking that it will pay a laundry allowance consistent with clause 19.3(c)(i) of the Award. The undertakings are attached in Annexure A.

1. The Agreement at Clause 19 requires that employees who use their own vehicle in the performance of duties are paid the rate prescribed by the ATO, being $0.88 per km from 1 July 2024 for a car, whereas the Teachers Award (at clause 19.5(a)) and the General Staff Award (at clause 19.3(d)) both provide $0.99 per km for a car, and $0.33 per km for a motorcycle. The Employer has provided an undertaking that it will pay the vehicle allowances provided for in the Awards. The undertakings are attached in Annexure A.

1. The Employer has 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.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 December 2024. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

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Annexure A

Annexure B