DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Blackheath and Thornburgh College
(AG2018/2819)

BLACKHEATH & THORNBURGH COLLEGE ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER GREGORY	MELBOURNE, 15 NOVEMBER 2018

Application for approval of the Blackheath & Thornburgh College Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Blackheath & Thornburgh College Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Blackheath and Thornburgh College. The Agreement is a single enterprise agreement.

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

[3] The Australian Nursing and Midwifery Federation, the Independent Education Union of Australia and The Australian Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2018. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the respondent, Blackheath and Thornburgh College, applied for the approval of the Blackheath and Thornburgh College Enterprise Agreement 2018. The applicant, the Independent Education Union of Australia, opposed the application on the basis that the agreement contained provisions that were not consistent with the relevant federal award and that the agreement failed to provide for the rights of employees in accordance with the Fair Work Act 2009. The central issue before the Commission was whether the agreement could be approved despite the identified inconsistencies with the federal award and the Act. The Commission examined whether the agreement provided for the rights of employees and whether the provisions in question were justifiable under the relevant provisions of the Act.

The Commission found that the agreement contained provisions that were inconsistent with the federal award, including provisions relating to penalty rates and shift loadings. However, the Commission also found that the inconsistencies were not significant enough to warrant refusal of approval. The Commission further found that the agreement provided for the rights of employees in accordance with the Act. The Commission considered that the provisions in question were justifiable under section 235 of the Act, which allows for the making of agreements that provide for terms and conditions that are not consistent with an award if the agreement is in the public interest and if the agreement is necessary to achieve a better outcome for employees. The Commission concluded that the agreement provided for a better outcome for employees and was in the public interest.

The Commission approved the agreement, subject to minor modifications to address the identified inconsistencies with the federal award. The Commission ordered that the agreement be registered and that it would have effect from the date of registration. The Commission further ordered that the modifications to the agreement be made within 30 days of the date of registration.

Blackheath and Thornburgh College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established