Perth College Inc T/A Perth College Anglican School For Girls
[2024] FWCA 2346
•26 JUNE 2024
| [2024] FWCA 2346 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Perth College Inc T/A Perth College Anglican School For Girls
(AG2024/2095)
PERTH COLLEGE TEACHERS ENTERPRISE BARGAINING AGREEMENT 2024 - 2025
| Educational services | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 26 JUNE 2024 |
Application for approval of the Perth College Teachers Enterprise Bargaining Agreement 2024 - 2025
Perth College Inc T/A Perth College Anglican School For Girls (the Applicant) has made an application for the approval of an enterprise agreement known as the Perth College Teachers Enterprise Bargaining Agreement 2024 - 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 20 October 2022.[1]
Issues arose regarding the notice of employee representational rights (NERR) that was provided to the Commission. It was not in the prescribed form and the title of the enterprise agreement in the NERR did match that in the Agreement. The Applicant explained that it had inadvertently sent through the incorrect NERR as part of its application, noting that when the NERR was issued to employees on 20 October 2022, the Principal of the Respondent initially had sent an old version of the NERR, but within the same hour of sending it, subsequently sent out a second email with the NERR as an attachment - in accordance with the requirements of the Act. That second NERR was provided to the Commission. According to the Applicant, the title of the Agreement in the NERR (Perth College Teachers Enterprise Bargaining Agreement 2020 - 2022) was correct at the time of commencement of negotiations in October 2022, but given the time taken for the negotiations, it was agreed as part of those negotiations that the Agreement title would better reflect the dates of 2024-2025. To the extent that these issues with the NERR constituted non-compliance with a procedural requirement as contemplated by s 188(2)(a) of the Act (as it was prior to 6 June 2023), I am satisfied that such non-compliance was a minor procedural error in light of that which has been observed. The relevant employees were unlikely to have been disadvantaged by the error, and I do not consider it to be an error that stands in the way of the approval of the Agreement.
The Applicant 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.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
The Independent Education Union of Australia (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 26 June 2024 and, in accordance with s 54, will operate from 3 July 2024. The nominal expiry date of the Agreement is 31 December 2025.
DEPUTY PRESIDENT
Annexure A
[1] Form F17A – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time before 6 June 2023, question 18.
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