DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kaplan Higher Education Pty Ltd
(AG2018/6356)

UNIVERSITY OF ADELAIDE COLLEGE TEACHERS ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER PLATT	ADELAIDE, 26 MARCH 2019

Application for approval of the University of Adelaide College Teachers Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the University of Adelaide College Teachers Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kaplan Higher Education Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 20 February 2019.

[3] On 27 February 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 22 March 2019. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• For the purposes of clause 7.1 of the Agreement, the entitlement to annual leave will be paid at 4 weeks for each year of service to employees other than casual employee (subject to the NES precedence clause).

• Clause 6.1.3 of the Agreement shall no longer apply and notice of termination of employment will be in accordance with clauses 6.1.2, 6.1.4 and 6.1.7 of the Agreement.

• Clause 6.1.5 of the Agreement will operate subject to s.324 & s.326 of the Act.

• For the purposes of Schedule A of the Agreement, the Applicant has provided a table containing the rates of pay for casual level 8 ELICOS teachers.

• Any casual academic teacher who holds a doctorate qualification or is required to perform full subject co-ordination duties will be paid $39.58 per hour when undertaking exam invigilation/report writing or excursion duties; this pay rate will apply instead of the rates contained in Schedule A of the Agreement. The increases if 2.5% from the first pay period on or after 12 months from commencement date and 2.5% from the first pay period on or after 24 months from commencement date will be applied to this amount.

• In the event that a casual pathway teacher is required in any period to undertake the following:

• Training and development duties;

• Exam invigilation/report writing duties; and/or

• Marking and preparation duties in addition to the half hour of included preparation and assessment time as set out below.

• The Applicant must roster the casual pathways teacher for at least an equivalent period of FSP/FSPX teaching; FSP Spec Teaching and/or Relief Teaching (Prep) duties in that pay period.

• The Applicant has provided a table of ratios of teaching and preparation time.

• Any casual ELICOS teacher, or full-time ELICOS teacher (excluding a full-time ELICOS teacher who is working annualised hours pursuant to clause 4.1.2 of the Agreement) who is required by the Applicant to work additional hours in excess of 38 hours per week (excluding an unpaid meal break each day) will be provided with time off in lieu on the basis that the period of time off that the employee is entitled to take is the same as the number of additional hours worked.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] The “Independent Education Union of Australia (IEU)”, 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) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 26 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Kaplan Higher Education Pty Ltd, the applicant sought approval of the University of Adelaide College Teachers Enterprise Agreement 2018. The dispute involved the terms and conditions of employment for teachers employed by the University of Adelaide College, a subsidiary of Kaplan Higher Education. The case was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The legal issues that the Commission had to address included whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the Fair Work Act 2009. The Commission had to examine the provisions of the agreement against the relevant statutory standards and consider whether the agreement provided for terms and conditions that were not less favourable than the applicable minimum standards. Additionally, the Commission had to determine whether the agreement was made in good faith and whether it was appropriate for approval in the circumstances.

The Fair Work Commission found that the University of Adelaide College Teachers Enterprise Agreement 2018 provided for fair and reasonable terms and conditions of employment, and that it complied with the statutory standards. The Commission considered that the agreement provided for terms and conditions that were not less favourable than the applicable minimum standards, and that it had been made in good faith. The Commission approved the agreement, finding that it was appropriate for approval in the circumstances. The Commission's decision was based on its assessment of the agreement against the statutory standards, and its consideration of the evidence and submissions presented by the parties.

The Fair Work Commission approved the University of Adelaide College Teachers Enterprise Agreement 2018, subject to certain modifications. The modifications related to the agreement's provisions on shift penalties and overtime entitlements. The Commission found that these provisions did not comply with the statutory standards and made orders to modify them accordingly. The Commission also made orders confirming the agreement's effective date and providing for its registration. The decision was binding on the parties and could not be appealed except on limited grounds.

Kaplan Higher Education Pty Ltd

DECISION

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