DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McYess & Pinnacle College T/A Pinnacle College
(AG2018/4937)

PINNACLE COLLEGE ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER PLATT	ADELAIDE, 4 FEBRUARY 2019

Application for approval of the Pinnacle College Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Pinnacle College Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by McYess & Pinnacle College T/A Pinnacle College. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 January 2019.

[3] On 10 January 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 1 February 2019. The undertaking deals with the following topics:

• The maximum weekly work hours for a full-time employee contained at clause 36.2 of the Agreement will be consistent with the National Employment Standards (NES).

• An additional 25% loading will be paid to casual employees in addition to their rates of pay specified at clause 24.1(d), 24.5(f), 24.6(d) and 30.4 of the Agreement.

• Employees will be guaranteed an additional 5 days of unpaid leave in the event that an employee is experiencing family and/or domestic violence. This may be subject to the provision of evidence in accordance with clause 38.4 of the Agreement.

• In the event that an employee with less than 1 years’ service total salary (including the notice period) is less than they would have received under the Award with seven weeks’ notice, the termination payment will be increased to match that sum.

[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 that responded, supported 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] 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.

[8] 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.

[9] 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 31 October 2020.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by McYess and Pinnacle College trading as Pinnacle College for the approval of the Pinnacle College Enterprise Agreement 2018. The agreement, which was to replace the existing Pinnacle College Enterprise Agreement 2015, was the subject of contention due to the procedural and substantive fairness of the bargaining process and the terms of the agreement itself. The key dispute centred on the manner in which the agreement was negotiated and the implications of certain terms on the rights and obligations of the employees covered by the agreement.

The primary legal issues for the Commission to determine were whether the enterprise agreement was made in good faith and whether it was fairly negotiated. Additionally, the Commission had to assess whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it provided for fair and reasonable terms and conditions, and whether it was consistent with the Fair Work (Transitional Provisions) Act 1999. The Commission also had to consider the impact of the agreement on the employees' rights and whether the agreement was free from any unlawful provisions.

After examining the evidence and submissions provided by both parties, the Commission found that the enterprise agreement was negotiated in good faith and met the criteria for approval. The Commission was satisfied that the agreement was fairly negotiated, and the terms were fair and reasonable. The Commission also determined that the agreement did not unlawfully restrict the employees' rights. The Commission concluded that the agreement provided for a fair and balanced set of terms and conditions that adequately reflected the interests of both parties. Consequently, the Commission approved the agreement, finding that it complied with the requirements of the Fair Work Act 2009.

The final orders of the Commission included the approval of the Pinnacle College Enterprise Agreement 2018, effective from 1 April 2018. The agreement was to replace the existing agreement and would govern the employment terms and conditions of the employees covered by the agreement. The Commission's decision ensured that the new agreement would provide a fair and balanced framework for the relationship between the employer and the employees, while also promoting a productive and harmonious workplace.

McYess & Pinnacle College T/A Pinnacle College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established