McYess & Pinnacle College T/A Pinnacle College

[2021] FWCA 53

[2021] FWCA 53

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McYess & Pinnacle College T/A Pinnacle College
(AG2020/3798)

PINNACLE COLLEGE ENTERPRISE AGREEMENT 2020

Educational services
COMMISSIONER PLATT	ADELAIDE, 6 JANUARY 2021

Application for approval of the Pinnacle College Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Pinnacle College Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by McYess & Pinnacle College T/A Pinnacle College (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 January 2021.

[3] The Applicant submitted an undertaking at the time of lodgement. The undertaking states that despite clause 24.1(c)(ii), the grounds for summary dismissal will be limited to the definition of serious misconduct as set out in Regulation 1.07 of the Fair Work Regulations 2009. The Independent Education Union of Australia supported the undertaking.

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

[5] In addition, subclause 32.1(b) and clause 9.6 appear to be inconsistent with the National Employment Standards (NES), however are remedied by clause 8.2 (a NES precedence clause). In particular, the requirement in clause 32.1 for an employee to take annual leave during non-term weeks and in the case of an employee whose employment with the School is continuing into the next School pay year, in the four week period immediately prior to the date teachers are required to commence the new school year, may be inconsistent with s.88 of the Act which states that paid annual leave may be taken for a period agreed between an employee and employer and that the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave. Clause 9.6 appears to exclude causal employees from family violence leave whereas the Act does not contain such an exclusion.

[6] 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) of the Act I note that the Agreement covers this organisation.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 October 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE510036  PR726007>