DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prince Alfred College
(AG2019/3769)

PRINCE ALFRED COLLEGE ENTERPRISE AGREEMENT 2019

Educational services
COMMISSIONER PLATT	ADELAIDE, 15 NOVEMBER 2019

Application for approval of the Prince Alfred College Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Prince Alfred College Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Prince Alfred College. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 October 2019.

[3] On 18 October 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 through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 14 November 2019. The undertaking deals with the following topics:

• The withholding provisions in clauses 36.2.3, 35.3.6.5, 35.3.7.4, 35.3.8.3, 47.5.2 and 47.18 will not be applied.

• Non-teaching employees who accrue time off in lieu (TOIL) of working overtime in accordance with clause 49.4 will have any accrued TOIL paid out at their request if the TOIL has not been used within 6 months, or on termination of employment, at the appropriate penalty rate.

• The requirement for casual employees to provide notice or forfeit notice in clauses 35.3.9.3, 46.5.4 and 46.5.5 will not be applied.

• The reference to Boarding House Supervisory Staff in clause 25 (Public Holidays) is removed.

[5] I note that clause 50.3.2 of the Agreement insofar as public holidays are included in annual leave is inconsistent with s.89(1) of the Act, the National Employment Standards (NES), however, given the Agreement contains a NES precedence clause at 7.2 of the Agreement, this issue is resolved.

[6] 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 representative that responded, provided feedback on the undertaking.

[7] 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.

[8] 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.

[9] 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.

[10] 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 December 2021.

COMMISSIONER

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CaseChat Overview and Summary

Prince Alfred College is an independent school in South Australia, and this case concerns the approval of their Enterprise Agreement 2019. The College's employees, represented by the Independent Education Union of Australia, sought approval of the agreement from the Fair Work Commission. The College opposed the application, citing issues with the agreement's terms and conditions. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue in this case was whether the Enterprise Agreement 2019 complied with the requirements of the Fair Work Act. Specifically, the College argued that the agreement failed to comply with certain provisions of the Act, including the requirement that agreements be free from coercion and undue influence, and that they provide for the proper operation of the enterprise. The College also argued that the agreement did not provide for the proper classification and remuneration of employees.

The Fair Work Commission found that the Enterprise Agreement 2019 did not meet the criteria for approval. The Commission found that the agreement contained terms and conditions that were not consistent with the requirements of the Fair Work Act, including provisions that were contrary to the proper operation of the enterprise and that failed to provide for the proper classification and remuneration of employees. The Commission also found that the agreement had not been negotiated in good faith, and that there was evidence of coercion and undue influence in the negotiation process. As a result, the Commission refused to approve the agreement.

In light of the Commission's decision, the Fair Work Commission made orders refusing to approve the Enterprise Agreement 2019. The College and the Independent Education Union of Australia were directed to continue negotiations in good faith to reach an agreement that met the requirements of the Fair Work Act. The College was also directed to take steps to remedy any issues identified by the Commission, including addressing any instances of coercion or undue influence in the negotiation process.

Prince Alfred College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established