Caloundra Christian College Limited T/A Caloundra Christian College

[2022] FWCA 377

[2022] FWCA 377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Caloundra Christian College Limited T/A Caloundra Christian College
(AG2021/9180)

CALOUNDRA CHRISTIAN COLLEGE ENTERPRISE AGREEMENT 2022 (ACN 105 326 814)

Educational services
DEPUTY PRESIDENT ASBURY	BRISBANE, 7 FEBRUARY 2022

Application for approval of the Caloundra Christian College Enterprise Agreement 2022 (ACN 105 326 814)

[1] Caloundra Christian College Limited T/A Caloundra Christian College (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Caloundra Christian College Enterprise Agreement 2022 (ACN 105 326 814) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2]  I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 5.5.2 – Spousal leave;

•  Clause 5.6.2 – Public Holidays; and

•  Clause 5.7 – Leave Without Pay.

[3] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[4] A copy of this Undertaking is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertaking is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertaking. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[6] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] 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 them. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 14 February 2022. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE514861  PR738128>

Annexure A