Maclean High School Parents And Citizens Association T/A Maclean High School Parents And Citizens Association

[2022] FWCA 415

[2022] FWCA 415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Maclean High School Parents And Citizens Association T/A Maclean High School Parents And Citizens Association
(AG2021/9277)

MACLEAN HIGH SCHOOL PARENTS AND CITIZENS ASSOCIATION ENTERPRISE AGREEMENT

Educational services
COMMISSIONER HUNT	BRISBANE, 9 FEBRUARY 2022

Application for approval of the Maclean High School Parents and Citizens Association Enterprise Agreement

[1] The Maclean High School Parents And Citizens Association T/A Maclean High School Parents And Citizens Association (the Employer) has applied for approval of an enterprise agreement known as the Maclean High School Parents and Citizens Association Enterprise Agreement (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] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] The Commission also raised concerns with the Employer regarding irregularities with the form of the Notice of Employee Representational Rights (NERR) to employees, in that it was not prepared in accordance with r.2.05 of the Fair Work Regulations 2009.

[5] Section 174(1A) of the Act provides, in respect of the NERR provided to employees, that:

“(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.”

[6] I expressed the following concerns to the Employer:

“NERR: NERR on employer letterhead and states ‘((prepared by Hickson’s Lawyers))’ instead of the Agreement name. NERR coverage specifies employees covered by the Fast Food Award only. The NERR coverage appears narrower than Agreement coverage.

Further, it is noted that Hickson’s Lawyers appear to have assisted employers with numerous similar applications. The Commissioner seeks an explanation as to why this application has reference to Hickson’s, together with letterhead obscuring some of the text.”

[7] The Employer has provided the following response:

“The employer in context

The Applicant (employer) is a not for profit organisation, managed entirely by a voluntary committee of parents many of whom have limited experience and training in running businesses or managing staff.

The Applicant currently only runs a canteen shop and there is no intention to run a uniform shop.

They have a very small number of employees at all times (currently 2 employees working in the Canteen).

The Applicant prepared and issued the NERR to commence the process.

P&C letterhead

Regarding the Letterhead used in the NERR, the Applicant did not understand the importance of keeping the NERR as it is. It was a matter of ignorance and inadvertence on their part.

Failure to specify the enterprise agreement name

They replaced the name of the enterprise agreement with a reference to Hicksons preparing it out of ignorance.  However, they provided a copy of the Enterprise Agreement (with its full name) when they gave the NERR on 29 October 2021.

Failure to refer to the General Retail Industry Award

There is no prejudice that the NERR did not reference the retail award as there is no uniform shop and therefore, there are no employees working in uniform shop and, given the undertakings in this agreement,  no intention by the employer to employ staff in such a facility.

We request you to exercise your discretion under section 188(2) of the Fair Work Act 2009.”

[8] Pursuant to s.188(2) of the Act, the Commission may still be satisfied that the Agreement would have been genuinely agreed to within the meaning of s.188(1), but for minor procedural or technical errors made in relation to the requirements of s.173 and s.174, if the Commission is satisfied that “the employees covered by the agreement were not likely to have been disadvantaged by the errors”. Therefore, a procedural error made in relation to the requirement in s.174(1A) can be ameliorated by a finding that employees were not likely to have been disadvantaged by the error.

[9] I have had regard to the response provided by the Employer. I am satisfied that employees covered by the Agreement were not likely to have been disadvantaged by the error. I am satisfied that it is appropriate to exercise the discretion in s.188(2) of the Act to find that the Agreement was genuinely agreed to by the employees covered by the Agreement.

[10] I have taken into consideration the material filed in the Commission. 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.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 February 2022. The nominal expiry date of the Agreement is 9 February 2026.

COMMISSIONER

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ANNEXURE A