Holmesglen Institute Summary

[2022] FWCA 1661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holmesglen Institute

(AG2022/1367)

Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 19 MAY 2022

Application for approval of the Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021

An application has been made for approval of an enterprise agreement known as the Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

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

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The National Tertiary Education Industry Union, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 26 May 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application for approval of the Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021 was before the Fair Work Commission. The Holmesglen Institute sought approval for the agreement, which was intended to regulate the employment terms and conditions of its PACCT staff. The Australian Education Union, acting on behalf of the employees, contested the application, arguing that certain provisions of the proposed agreement did not meet the requirements for lawful and appropriate content as stipulated under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the provisions of the Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021 were consistent with the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement contained any terms that were unlawful or otherwise inappropriate. This included assessing whether the proposed terms and conditions were procedurally fair and met the standards of good faith bargaining. The Commission also examined whether the agreement provided for appropriate mechanisms for dispute resolution and whether the agreement was in line with broader public policy objectives.

The Fair Work Commission, after thorough consideration of the arguments presented by both parties, determined that the Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021 was consistent with the requirements of the Fair Work Act 2009. The Commission found that the agreement did not contain any unlawful or inappropriate terms. It also found that the agreement provided for fair and effective mechanisms for dispute resolution and adhered to the principles of good faith bargaining. The Commission was satisfied that the proposed agreement met the necessary standards for approval and did not contravene any public policy objectives. Consequently, the Commission approved the agreement.

The final orders of the Fair Work Commission included the approval of the Holmesglen Institute Enterprise Agreement (PACCT Staff) 2021, effective from the date specified in the agreement. The Commission's decision was based on its determination that the agreement was procedurally fair, contained no unlawful terms, and was in line with the broader public policy objectives of the Fair Work Act 2009. The approval of the agreement allows Holmesglen Institute and its PACCT staff to operate under the terms and conditions set out in the agreement, subject to any subsequent variations or amendments that may be approved by the Commission.

Holmesglen Institute

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established