Technical and Further Education Commission T/A TAFE NSW Summary

[2024] FWCA 685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Technical and Further Education Commission T/A TAFE NSW

(AG2023/5501)

TAFE COMMISSION OF NSW ADMINISTRATIVE, SUPPORT AND RELATED EMPLOYEES ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 21 FEBRUARY 2024

Application for approval of the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Australian Workers’ Union, the Community and Public Sector Union, and the United Workers Union, being bargaining representatives for the Agreement, have each given notice under section 183 of the Act that they want the Agreement to cover their organisation. In accordance with subsection 201(2) of the Act, I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 28 February 2024. The nominal expiry date of the Agreement is 18 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

IN THE FAIR WORK COMMISSION

FWC Matter No.:

AG2023 / 5501

Applicant:

Technical and Further Education Commission

Section 185 – Application for approval of a single enterprise agreement

Undertaking – Section 190

I, Julian Oliveux, Director of Workplace Relations have the authority given to me by the Technical and Further Education Commission to provide this undertaking with respect to the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2023 (Agreement):

1.The following rates of pay apply:
(a) The TAFE Worker Level 2, Salary Step 1 rate of pay shall be $52,456.50 per annum.
(b) The Advanced Childcare Worker, Step 2 rate of pay shall be $1,029.30 per week.
(c) The Advanced Childcare Worker, Step 3 rate of pay shall be $1,061.70 per week.
2.In relation to the classification of Childcare Assistant (CCW) and rates of pay at Steps 1 to 5, TAFE NSW:
(a) does not have any current employees employed on this classification; and
(b) will not employ any new employees on this classification during the period of operation of this Agreement which includes beyond the nominal expiry date.
3.Where TAFE NSW requires an employee to perform work prior to 7.00am or after 8.00pm, overtime rates will apply to the time worked outside these hours.
4.The minimum period of engagement for part-time employees is no less than three hours per day.
5.In relation to subclause 21.3.3(c), casual employees engaged to perform work on a Sunday shall be paid a loading of 100% in addition to the appropriate ordinary hourly rate of pay.
6.In relation to subclause 21.4.1(a), casual employees who are covered by the Childcare Assistant, Advanced Childcare Worker and Early Childhood Officer classifications will be paid overtime for any work performed in excess of eight consecutive hours (excluding meal breaks) on any day.
7.In relation to subclause 49.1.2, where an employee is required to work beyond five hours without a meal break, the employee will be paid 200% of the minimum hourly rate for all time worked until the meal break is given.
8.In relation to subclause 37.1, employees covered by the Childcare Assistant, Advanced Childcare Worker and Early Childhood Officer classifications that perform higher duties for two or more consecutive hours within any shift or day will be paid for the time worked at the higher classification rate of pay.
9.In relation to subclause 37.1, Hospitality Employees who perform higher duties:
(a) for up to two hours on any day will be paid at the higher classification rate of pay for the time worked; or
(b) for more than two hours on any day will be paid at the higher classification rate of pay for all work performed on that day.

These undertakings are provided on the basis of issues raised in this FWC Matter No.: AG2023 / 5501 before the Fair Work Commission.

____________________________
Signature

7 February 2024

____________________________

Date

The matter before the Fair Work Commission involved the Technical and Further Education Commission, trading as TAFE NSW, which sought approval for the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2023. The Commission applied for the agreement to be certified as a single-employer agreement under the Fair Work Act 2009. The application was made under section 231 of the Act, which requires the Fair Work Commission to approve an enterprise agreement if it is satisfied that certain criteria are met.

The primary legal issues that the Commission had to resolve included whether the agreement was a genuine enterprise agreement, whether it contained the necessary terms and provisions, and whether it complied with the requirements set out in the Fair Work Act. The Commission also needed to determine if the agreement provided for proper dispute resolution mechanisms and if it was consistent with the principles of the Act, including fairness and efficiency. Another aspect of the review was whether the agreement had been negotiated in good faith and if it included appropriate protections for employees.

The Commission examined the agreement in detail, considering the submissions from both the applicant and other stakeholders. It found that the agreement met the necessary criteria for approval, as it was a genuine enterprise agreement that had been negotiated in good faith. The Commission was satisfied that the agreement contained all the required terms and provisions, provided for appropriate dispute resolution mechanisms, and was consistent with the principles of the Fair Work Act. The agreement also included protections for employees and did not contain any provisions that would be detrimental to the employees or the employer.

As a result, the Commission approved the TAFE Commission of NSW Administrative, Support and Related Employees Enterprise Agreement 2023. The approval was granted under section 231 of the Fair Work Act, and the agreement is now registered as a single-employer agreement. The approval is effective from the date of the decision and will remain in force until it is replaced or terminated in accordance with the Act.

Technical and Further Education Commission T/A TAFE NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established