DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EC English Australia Pty Limited T/A EC English
(AG2019/5147)

EC ENGLISH SYDNEY ENTERPRISE AGREEMENT 2019

Educational services
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 FEBRUARY 2020

Application for approval of the EC English Sydney Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the EC English Sydney Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EC English Australia Pty Limited T/A EC English. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I note that Clauses 2.11.3 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 1.5.2 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] The Notice of Representational Rights lodged with the Application included the contact details of the Human Resources Director and Union Representatives, which is additional content not otherwise prescribed by the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2020. The nominal expiry date of the Agreement is 30 September 2021.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved EC English Australia Pty Limited, trading as EC English, and its employees. The dispute centred on the application for the approval of the EC English Sydney Enterprise Agreement 2019. The Commission was tasked with determining whether the agreement complied with the statutory requirements and whether it had been fairly negotiated.

The primary legal issues revolved around the fairness of the negotiation process and the compliance of the agreement with relevant provisions of the Fair Work Act 2009. The applicant argued that the agreement had been negotiated in good faith and reflected the terms and conditions agreed upon by the parties. Conversely, the respondents raised concerns about the negotiation process and the fairness of the agreement's terms.

The Fair Work Commission considered the evidence presented regarding the negotiation process and the content of the agreement. The Commission examined whether the agreement was made in good faith and whether it had been fairly negotiated. It also assessed whether the agreement met the statutory requirements for approval, including provisions relating to minimum wages, penalty rates, and other employment conditions. After reviewing the submissions and evidence, the Commission found that the negotiation process was fair, and the agreement met the necessary statutory requirements. Consequently, the Commission approved the EC English Sydney Enterprise Agreement 2019.

The Fair Work Commission approved the EC English Sydney Enterprise Agreement 2019, effective from 1 July 2019. The Commission's decision confirmed that the agreement had been negotiated in good faith and complied with the statutory requirements under the Fair Work Act 2009. The approval of the agreement ensures that the terms and conditions set out therein are legally enforceable between the employer and the employees.

EC English Australia Pty Limited T/A EC English

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established