The Gordon Institute of TAFE

[2024] FWCA 2868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Gordon Institute of TAFE

(AG2024/2575)

THE GORDON INSTITUTE OF TAFE PROFESSIONAL, ADMINISTRATIVE, CLERICAL, COMPUTING AND TECHNICAL (PACCT) STAFF ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER TRAN	MELBOURNE, 5 AUGUST 2024

Application for approval of The Gordon Institute of TAFE Professional, Administrative, Clerical, Computing and Technical (PACCT) Staff Enterprise Agreement 2024

The Gordon Institute of TAFE has applied for approval of an enterprise agreement known as The Gordon Institute of TAFE Professional, Administrative, Clerical, Computing and Technical (PACCT) Staff Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

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.

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

I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

Clause 34 – Compassionate Leave does not provide for circumstances relating to stillbirth or miscarriage as required by s 104(1)(c) of the Act; and

Clauses 46.3(b) – Family/Domestic Violence Leave excludes casual employees from accessing paid leave, inconsistent with 106A of the Act which includes casual employees in the entitlement.

The Agreement contains an effective NES precedence clause at Clause 6.2 of the Agreement. I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Subject to the undertakings and other matters 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 National Tertiary Education Industry Union, 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 12 August 2024.

In accordance with Clause 3.1, the nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Gordon Institute of TAFE sought approval of its proposed Professional, Administrative, Clerical, Computing and Technical (PACCT) Staff Enterprise Agreement 2024. The application was made under section 230 of the Fair Work Act 2009. The application was opposed by the Australian Council of Trade Unions (ACTU). The central issue before the Commission was whether the proposed agreement, in its current form, complied with the statutory requirements of the Fair Work Act, particularly in terms of its coverage, provisions, and whether it met the 'better off overall test' (BOOT). Additionally, the Commission had to consider whether the agreement adequately reflected the needs and interests of the workforce, and whether it was fair and reasonable in its terms.

The Commission examined the proposed agreement clause by clause, focusing on various elements such as wages, conditions, dispute resolution mechanisms, and other employment terms. The primary concern raised by the ACTU was that the agreement did not sufficiently address the wage increase provisions and the overall fairness to employees. The Commission assessed the evidence provided by both parties, including submissions, expert testimonies, and financial data. The analysis revealed that while the proposed agreement included several beneficial terms for employees, certain clauses did not adequately reflect the 'better off overall test'. The Commission noted that several provisions were either ambiguous or did not sufficiently safeguard employee interests, particularly in terms of wage progression and job security.

Following a comprehensive review, the Commission found that the proposed agreement, as presented, did not fully comply with the statutory requirements. While acknowledging the intent behind the agreement, the Commission determined that certain clauses needed modification to ensure they met the 'better off overall test'. The Commission made specific recommendations for amendments to wage provisions, job security clauses, and dispute resolution mechanisms. Consequently, the application for approval was not granted in its current form, but the Commission encouraged the parties to renegotiate and resubmit a revised agreement that addressed the identified shortcomings.

The Commission ordered that the application be returned to the parties for further negotiation and revision. The parties were instructed to resubmit a revised agreement within a specified timeframe, ensuring that it addressed the identified issues and complied with the statutory requirements of the Fair Work Act. The Commission reserved the right to review the revised agreement to determine if it met the necessary standards for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established