Y-Care (South East Queensland) Inc. T/A YMCA Vocational School

[2021] FWCA 6708

[2021] FWCA 6708

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Y-Care (South East Queensland) Inc. T/A YMCA Vocational School
(AG2021/7622)

YMCA VOCATIONAL SCHOOLS QUEENSLAND ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT ASBURY	BRISBANE, 9 DECEMBER 2021

Application for approval of the YMCA Vocational Schools Queensland Enterprise Agreement 2021

[1] Y-Care (South East Queensland) Inc. T/A YMCA Vocational School (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the YMCA Vocational Schools Queensland 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] During the access period, and prior to the vote on the Agreement commencing, errors were identified in the Agreement by employees. In summary these errors are the omission of a wage table for School Administrator Roles in Annexure E, what were said to be “inversed” banding descriptions for classifications for Wellbeing Group programs, and omitted qualification requirements for certain classifications for Wellbeing Staff Members in Annexure D.

[3] The employer sent correspondence to all employees and draft undertakings it would seek from the Commission in relation to these errors during the access period. As a result, the employees were not given access to the written text of the agreement and any other incorporated material for the duration of the access period.

[4] Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that these errors are minor procedural or technical errors and that pursuant to s. 188(2)(a) of the Act I can be satisfied that the Agreement would have been genuinely agreed but for those minor errors. In this regard, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the errors and that correction of the errors benefits employees. I am also satisfied that the errors and the necessary steps that would be taken to rectify them were pointed out to all employees in the access period in response to questions that some employees had raised about the terms of the Agreement.

[5] A majority of employees approved the Agreement. The Independent Education Union of Australia, a bargaining representative of employees, also supports the approval of the Agreement. Accordingly, there is no basis for finding that the errors had any bearing on the outcome of the ballot to approve the Agreement.

[6] While I am satisfied these errors are minor procedural or technical errors for the purposes of s.188(2) of the Act), I do not consider such errors can be rectified by the provision of an undertaking. An application was made pursuant to s.217 of the Act, seeking a variation to remove an ambiguity or uncertainty in the Agreement, by inserting the omitted wage table for School Administrators, amending the descriptions for classifications for Wellbeing Group programs and amending qualifications for specific classifications for Wellbeing Staff members.

[7] The application under s. 217 of the Act was not opposed by the bargaining representatives for the Agreement including the Independent Education Union of Australia. A hearing was also conducted on 8 December 2021 to deal with the variation sought in relation to the descriptions for classifications for Wellbeing Group programs after it was identified that the variation sought appeared to involve a variation to the rates of pay for Wellbeing Program Group Facilitators. At the hearing, the Applicant clarified that the variation was also sought to correct the pay rates in the Agreement for Wellbeing Program Groups Facilitators which were incorrect due to an error in the calculation.

[8] A Decision 1 and Order2 is issued simultaneously with this Decision, varying the Agreement from the date it is approved to correct the ambiguity or uncertainty resulting from the errors.

[9] Undertakings were provided by the Employer in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as 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.

[10] The views of each person or organisation the 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. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[11] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 3.10.2 – Overpayments at date of termination;

•  Clause 5.1.1 – Continuous service;

•  Clause 5.7.4 – Taking paid personal/carers leave;

•  Clause 5.18.1 – Public holidays;

•  Clause 5.18.3 – Substitution of public holidays.

[12] I note clause 1.5 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[13] Clause 1.2 of the Agreement states the Agreement shall operate on and from the date specified by the Fair Work Commission. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[14] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 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), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[15] The Independent Education Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[16] The Agreement is approved in accordance with s.54 of the Act and will operate from 16 December 2021. The nominal expiry date of the Agreement is 16 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   [2021] FWCA 6711.

 2   PR735842.