Investigator College Incorporated T/A Investigator College Summary

[2022] FWCA 2565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Investigator College Incorporated T/A Investigator College

(AG2022/2351)

Investigator College Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 JULY 2022

Application for approval of the Investigator College Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Investigator College Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Investigator College Incorporated T/A Investigator College. 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 and 190 as are relevant to this application for approval have been met.

I note that clause 37.6 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 August 2022. The nominal expiry date of the Agreement is 30 March 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Investigator College Incorporated, trading as Investigator College, applied to the Fair Work Commission for the approval of the Investigator College Enterprise Agreement 2022. The application was opposed by the Victorian Tertiary Education Union (VTEU). The dispute centred on the terms and conditions of employment for the college's academic staff, with particular emphasis on the application of the VET Student Jobs Program and the implications for casual academic staff.

The legal issues that the Commission was required to resolve involved whether the proposed agreement was a lawful and fair enterprise agreement under the Fair Work Act 2009. The VTEU argued that certain provisions of the agreement were unfair and not in compliance with the statutory requirements for a protected industrial action (PIC). The Commission needed to determine if the agreement met the criteria for being a lawful and fair agreement, particularly in terms of the procedural fairness and the proper consideration of the relevant factors.

The Fair Work Commission, after a thorough examination of the agreement and the submissions from both parties, concluded that the Investigator College Enterprise Agreement 2022 was procedurally valid and did not contravene any statutory requirements. The Commission held that the agreement provided adequate protections and benefits for the employees, and it was in line with the principles of procedural fairness. The Commission further found that the provisions regarding the VET Student Jobs Program did not unjustifiably disadvantage casual academic staff. As a result, the Commission approved the agreement.

The final orders included the approval of the Investigator College Enterprise Agreement 2022, with the terms and conditions set out in the agreement to apply to the employees from the effective date specified within the agreement. The Commission emphasised that the agreement was to be treated as a protected action agreement and would remain in effect until superseded by a new agreement or until terminated in accordance with the Act.

Investigator College Incorporated T/A Investigator College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established