SCOTS PGC College T/A SCOTS PGC College Summary

[2022] FWCA 4460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SCOTS PGC College T/A SCOTS PGC College

(AG2022/4973)

SCOTS PGC College Enterprise Agreement 2023

Educational services
COMMISSIONER LEE	MELBOURNE, 16 DECEMBER 2022

Application for approval of the SCOTS PGC College Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the SCOTS PGC College Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SCOTS PGC College T/A SCOTS PGC College. The Agreement is a single enterprise agreement.

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.

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 Independent Education Union of Australia (IEUA) and the Queensland Nurses and Midwives’ Union (QNMU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

Clause 4.10.5 - Redundancy

However, noting the clause 1.11 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 December 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission concerned the approval of the SCOTS PGC College Enterprise Agreement 2023. The applicant, SCOTS PGC College, sought approval for the agreement, which was to cover its employees. The dispute involved the terms and conditions of employment set forth in the agreement, including wages, hours of work, and other employment-related matters. The hearing took place before the Fair Work Commission, with the applicant represented by counsel and the respondent, the employees, also represented.

The legal issues before the court centred on whether the proposed agreement complied with the provisions of the Fair Work Act 2009. Specifically, the court needed to determine if the agreement met the "better off overall test" (BOOT), which requires that the terms of the agreement be at least as favourable to the employees as the applicable awards or other relevant agreements. Additionally, the court needed to consider whether the agreement contained provisions that were contrary to the public interest, such as provisions that undermined the protection of employees' rights.

In delivering its decision, the Fair Work Commission found that the proposed agreement did indeed meet the better off overall test. The court noted that the agreement provided for fair wages and conditions that were at least as good as, and in some cases better than, the applicable awards. The court also found that the agreement did not contain any provisions that were contrary to the public interest. Consequently, the Fair Work Commission approved the SCOTS PGC College Enterprise Agreement 2023, deeming it to be compliant with the Fair Work Act 2009. The decision was made in the interest of promoting fair and harmonious industrial relations between the applicant and its employees.

SCOTS PGC College T/A SCOTS PGC College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established