Presbyterian Ladies' College

[2025] FWCA 1797

[2025] FWCA 1797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Presbyterian Ladies' College

(AG2025/1205)

PRESBYTERIAN LADIES' COLLEGE TEACHERS' AGREEMENT 2025 - 2027

Educational services
COMMISSIONER LIM	PERTH, 30 MAY 2025

Application for approval of the Presbyterian Ladies' College Teachers' Agreement 2025 - 2027.

1. Presbyterian Ladies' College (the Applicant) has made an application for the approval of an enterprise agreement known as the Presbyterian Ladies' College Teachers' Agreement 2025 - 2027 (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.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. The title of the Agreement on the Notice of Employee Representational Rights (the NERR) is “Presbyterian Ladies' College Teachers' Agreement” whilst the Agreement title in clause 1 is “Presbyterian Ladies' College Teachers' Agreement 2025 - 2027”. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

1. The Independent Education Union of Australia (the IEU) filed a Form F18 on 30 April 2025 declaring that it did not support approval of the Agreement and that it was of the view the Agreement did not pass the Better Off Overall Test (the BOOT).

1. I conducted a case management conference on 9 May 2025 with the parties. Following the case management conference, the IEU withdrew several of its objections.

2. The Applicant has since 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ 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.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

(a)Clause 22.2 provides ‘if a teacher is required to attend work on a public holiday, PLC may substitute a public holiday or part holiday for another day or part day to be taken during term weeks in a school year’. It is not clear if this substitution is between the employer and an individual employee as required by s 115(3) of the Act, or if it is between the majority of employees required to work on the public holiday.

(b)Clause 32.7 provides compassionate leave where a member of an employee’s immediate family or household has sustained a life-threatening illness, injury or dies; however, it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s 104(1)(b) and (c) of the Act.

(c)Clause 38.1.5 provides ‘the period of notice provided will not apply in the case of dismissal for conduct that justifies instant dismissal such as neglect of duty or misconduct, or to casual employees’. This appears to be inconsistent with s 123 of the Act which provides the division does not apply to serious misconduct rather than mere ‘misconduct’.

(d)Clause 37.2.2 provides ‘if an employee fails to give the appropriate notice, PLC may withhold from monies due to the employee an amount equal to the ordinary rate of pay for the period of notice not provided’. The deduction of monies from NES entitlements, and the restriction of NES entitlements, is prohibited.

1. However, I am satisfied that under clause 5.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES, and also note the undertakings proffered by the Applicant which also address these potential concerns.

1. The Agreement does not contain a delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2), the workplace delegates’ rights term in Clause 28A of the Educational Services (Teachers) Award 2020 is taken to be a term of the Agreement.

1. The 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 30 May 2025 and, in accordance with s 54, will operate from 6 June 2025. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

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Annexure A