Bendigo Kangan Institute T/A Bendigo Tafe, Kangan Institute, VETASSESS and eWorks

[2024] FWCA 2888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bendigo Kangan Institute T/A Bendigo Tafe, Kangan Institute, VETASSESS and eWorks

(AG2024/2525)

BENDIGO KANGAN INSTITUTE PACCT STAFF ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER YILMAZ	MELBOURNE, 6 AUGUST 2024

Application for approval of the Bendigo Kangan Institute PACCT Staff Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bendigo Kangan Institute PACCT Staff Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bendigo Kangan Institute T/A Bendigo Tafe, Kangan Institute, VETASSES and eWorks. The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clause 52 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.2 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.

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) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 13 August 2024. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bendigo Kangan Institute, trading as Bendigo TAFE, Kangan Institute, VETASSESS, and eWorks, applied to the Fair Work Commission for the approval of the Bendigo Kangan Institute PACCT Staff Enterprise Agreement 2023. The application was brought before the Fair Work Commission, which is tasked with overseeing and approving enterprise agreements in Australia. The application was opposed by the United Education Industrial Union (UEIU). The dispute centred on whether the proposed enterprise agreement complied with the statutory requirements and whether it was in the best interest of the employees.

The primary legal issues before the Commission were whether the proposed enterprise agreement met the statutory criteria for approval under the Fair Work Act 2009, and whether the agreement contained provisions that would unfairly disadvantage employees. The Commission examined the agreement's provisions on minimum rates of pay, shift penalties, penalty rates, and provisions for shift differentials. Additionally, the Commission considered the process by which the agreement was negotiated and whether the union had been adequately consulted.

After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the proposed enterprise agreement complied with the statutory requirements and was in the best interests of the employees. The Commission noted that the agreement provided for fair and reasonable terms and conditions of employment, and that it was negotiated in good faith. The Commission also found that the union had been adequately consulted during the negotiation process. Based on these findings, the Commission approved the Bendigo Kangan Institute PACCT Staff Enterprise Agreement 2023. The approval is subject to the agreement being registered with the Fair Work Commission within the specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established