Peregian Beach Community College Ltd T/A Peregian Beach College

[2023] FWCA 361

[2023] FWCA 361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Peregian Beach Community College Ltd T/A Peregian Beach College

(AG2023/3)

PEREGIAN BEACH COLLEGE ENTERPRISE AGREEMENT 2022

Educational services
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 6 FEBRUARY 2023

Application for approval of the Peregian Beach College Enterprise Agreement 2022

1. Peregian Beach Community College Ltd has applied for approval of an enterprise agreement known as the Peregian Beach College Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

1. The agreement title in the Notice of Employee Representational Rights (NERR) given to employees is slightly different to the title in clause 1.1 of the Agreement. Further, the NERR was not distributed to employees within 14 days after the notification time as required by s.173(3) of the Act due to the impact of COVID-19 on the operations of the College. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical and procedural errors regarding the content and distribution of the NERR, and that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

1. 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.

1. 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.

1. 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 5.7.1(b) – Domestic Violence Leave;

·   Clause 6.1.2 – Public Holidays;

·   Clause 6.11.4 – Community Service Leave; and

·   Clause 7.10.3 – Annual Leave Loading.

However, noting clause 1.8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2023. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A