DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bendigo Kangan Institute
(AG2015/5390)

BENDIGO KANGAN INSTITUTE PACCT STAFF ENTERPRISE AGREEMENT, 2015

Educational services
VICE PRESIDENT LAWLER	SYDNEY, 26 OCTOBER 2015

Application for approval of the Bendigo Kangan Institute PACCT Staff Enterprise Agreement, 2015.

[1] An application has been made for approval of an enterprise agreement known as the Bendigo Kangan Institute PACCT Staff Enterprise Agreement, 2015 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Bendigo Kangan Institute. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] I note that I raised an issue as to whether the consultation clause of the Agreement met the requirements in s.205. I accepted the joint submission of the parties (ie the employer and the NTEU) that on the proper construction of clause 15 of the Agreement each of the requirements in s.205(1) and (1A) are provided for in the Agreement and they jointly agree that the Agreement should be construed in that way.

[4] The National Tertiary Education Industry Union, 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) of the Act I note that the Agreement covers this organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 November 2015. The nominal expiry date of the Agreement is 30 June 2016.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Bendigo Kangan Institute for approval of the Bendigo Kangan Institute PACCT Staff Enterprise Agreement, 2015. The Institute sought to have the agreement recognised as a Protected Action Agreement under the Fair Work Act 2009. The application was opposed by the Australian Education Union. The dispute centred around whether the agreement met the criteria for approval as a Protected Action Agreement, particularly whether the agreement facilitated the Institute's restructure and transition to an independent Registered Training Organisation.

The central legal issue was whether the agreement provided for appropriate mechanisms to facilitate the restructuring of the Institute, including the redundancy of staff, and whether it met the requirements under the Fair Work Act for such agreements. Specifically, the Commission needed to determine if the agreement provided for a process to ensure that employees who were made redundant received fair and just treatment. The Commission also had to consider whether the agreement provided for the protection of employees' terms and conditions during the restructuring process.

In determining the application, the Commission considered the provisions of the agreement and the submissions from both parties. It examined whether the agreement contained appropriate provisions for redundancy, including the payment of redundancy entitlements, and whether it provided for a fair and just process for the selection of employees to be made redundant. The Commission found that the agreement did meet the criteria for approval. It noted that the agreement contained provisions for the payment of redundancy entitlements and provided for a fair process for selecting employees to be made redundant. The Commission concluded that the agreement facilitated the Institute's restructure and transition in a manner that was fair and just for employees.

The Commission approved the Bendigo Kangan Institute PACCT Staff Enterprise Agreement, 2015, as a Protected Action Agreement. The agreement was approved on the basis that it provided for a fair and just process for the redundancy of employees during the Institute's restructure and transition. The Commission's decision recognised the need for such agreements to facilitate necessary organisational changes while protecting the rights of employees.

Bendigo Kangan Institute

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established