Prince Alfred College T/A Prince Alfred College

[2022] FWCA 421

[2022] FWCA 421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prince Alfred College T/A Prince Alfred College
(AG2021/8957)

PRINCE ALFRED COLLEGE ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER HUNT	BRISBANE, 9 FEBRUARY 2022

Application for approval of the Prince Alfred College Enterprise Agreement 2021

[1] Prince Alfred College T/A Prince Alfred College (the Employer) has applied for approval of an enterprise agreement known as the Application for approval of the Prince Alfred College Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Independent Education Union of Australia (IEU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The IEU did not provide any views as to the undertakings.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and is taken to be a term of it.

[5] I indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement.

[6] The IEU raised a concern with the model consultation term being taken to be a term of the Agreement. Clause 13 of the Agreement provides at numerous points that the “Union(s)” will be included in the consultation process such as clause 13.1.3 which provides that the Union would be notified in writing of a decision to introduce a major change. The IEU advised that:

“While the IEU agrees with the Commissioner’s view about the deficiency it believes the recommendation, while addressing that deficiency, has unintended consequences.

Incorporation of the whole model clause, in place of the existing clause, removes the long standing negotiated and agreed understandings that the IEU, as a party covered by the Agreement, is notified and included in meetings in its own right. See relevant clause parts highlighted below.

The IEU is of the view the Commissioner does not intend for that to happen and may instead recommend the model clause be adopted and applied only in so far as dealing with the deficiency and the remainder of the agreed clause apply.

The IEU believes such an approach is not unprecedented.

If the Commissioner is of the view the whole clause should apply then the IEU wishes to be heard on that.”

[7] My Chambers wrote to the parties regarding the concern raised by the IEU inviting any views as to the following observations:

“The Commissioner draws your attention to the Federal Court of Australia decision of Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206.

In consideration of this Federal Court decision, the Commissioner’s view is that the model consultation term would, indeed, displace the term within the Agreement.”

[8] In Teekay Shipping (Australia) Pty Ltd v Auld [2020] FCAFC 206, Wigney J held at [145] that:

“The Full Bench should have concluded that, once the model consultation term is taken to be part of the Enterprise Agreement, it effectively supplanted or displaced the otherwise deficient or defective clause or clauses that purported to provide for consultation.”

[9] Once the model consultation term has been taken to be a term of the agreement, the existing consultation term ceases to be a term of the agreement.

[10] The IEU responded advising that there was no longer any need for the IEU to be heard on the matter and it would seek to deal with this issue in future negotiations.

[11] Pursuant to s.205(2) of the Act, the model consultation term prescribed by Schedule 2.3 to the Regulations is attached to the Agreement and taken to be a term of it. I further note that negotiating parties to agreements have had many years to familiarise themselves with the requirements of the Act, particularly regarding consultation term requirements and flexibility term requirements. Sophisticated industrial parties should always endeavour to reach agreement on terms within agreements that will not require them to be displaced by the model terms in order for the agreement to be approved.

[12] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[13] 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) of the Act I note that the Agreement covers the IEU.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 February 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

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ANNEXURE A