| FWCA 8049|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Avondale College Pty Ltd T/A Avondale College of Higher Education
AVONDALE COLLEGE ENTERPRISE AGREEMENT 2019
DEPUTY PRESIDENT BULL
SYDNEY, 27 NOVEMBER 2019
Application for approval of the Avondale College Enterprise Agreement 2019.
 An application (Form F16) has been filed by Avondale College Pty Ltd T/A Avondale College of Higher Education (the employer), for the approval of an enterprise agreement known as the Avondale College Enterprise Agreement 2019 (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 as per s.172(2) of the Act.
 Following various concerns being raised with the employer, the employer submitted that the relevant modern award against which the Agreement should be considered for the purposes of the Better Off Overall Test (BOOT) is the Educational Services (Post-Secondary Education) Award 2010 (the Award) rather than the Higher Education Industry (General Staff Award 2010. In support of this submission, the employer referred to the Award’s coverage and submitted that the employer is not of university status, 1 it provides VET teaching and qualifications,2 and it provides foundation studies programs in preparation for other higher education qualifications recognised within the Australian Qualifications Framework.3 The employer also submitted that it has previously used the Award for two other enterprise agreements which were approved by the Commission.
 I am satisfied that the Educational Services (Post-Secondary Education) Award 2010 is the relevant modern award for the purposes of the BOOT.
 The Commission raised with the employer that the explanatory material lodged with the application does not include any comparison of the spread of hours under clause 40 – Ordinary Hours of Work of the Agreement against the relevant Award provisions. The employer provided a comparison of the spread of hours and submitted as follows:
• Avondale has removed Saturday from the ordinary span of hours for all staff with the exception of Food Services, providing a better-than-Award span of hours.
• Staff are not expected to work the entire span listed. The clause simply makes provision that regular working hours may fall within the listed hours in accordance with any specific needs / requirements which may arise from time to time.
• The hours of certain departments vary in recognition that on occasions there may be a need for those departments to provide services/support in accordance with the natural requirements of the role (e.g. setting up for a conference being run over the weekend, providing audio visual assistance for the students’ evening programs).
 The Commission raised with the employer that the application also does not include any comparison of casual rates against the relevant Award provisions. The employer provided a casual rates comparison and an undertaking regarding rates of pay for casual academic work.
 The Commission raised with the employer that it appeared several rates of pay for casual academics would appear to be equal to or below Award rates for the work performed, including for lecturing, tutorials and marking. The employer was requested to advise the Commission how casual employees meet the BOOT.
 The employer provided an undertaking that casual academic staff would be paid an additional 4%.
 The employer also provided undertakings regarding the incorporation of a casual conversion clause into the Agreement, wages rates for adult apprentices and trainees, and minimum amounts payable to supported wage employees.
 The Commission sought the views of the employee bargaining representatives for the Agreement regarding the undertakings provided by the employer in accordance with s.190(4) of the Act. The employer’s application identified 13 employee bargaining representatives, each of whom were copied into correspondence from the Commission.
 The bargaining representatives in response raised concerns with the application, some of which were not relevant for the purposes of determining the application before the Commission for approval of the Agreement. One of the bargaining representatives submitted that the areas listed under Laboratory Supervision Category 1 in the Casual Rates Comparison provided by the employer, being Chemistry, Physics, Biology, Microbiology, Physical Education, Sculpture, Ceramics, and Food Preparation, needed to be modified to also include Textiles Technology and Industrial Technology.
 The employer provided an amended undertaking (the Undertakings) addressing the above concerns raised by the bargaining representative and incorporating the undertakings previously provided.
 A copy of the Undertakings is attached at the end of the Agreement. I am satisfied pursuant to s.190(3) of the Act 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.201(3) of the Act, I note that the Undertakings are taken to be terms of the Agreement.
 Subject to the Undertakings and the considerations 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 is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 4 years from the date of approval of the Agreement.
Printed by authority of the Commonwealth Government Printer
1 Educational Services (Post-Secondary Education) Award 2010 at 4.3(g).
2 Ibid at 4.3(a).
3 Ibid at 4.3(h).