The Roman Catholic Trust Corporation for the Diocese of Rockhampton [2024] FWCA 3705 (25 October 2024)

Last Updated: 25 October 2024

[2024] FWCA 3705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement
The Roman Catholic Trust Corporation for the Diocese of Rockhampton

(AG2024/3670)

DIOCESE OF ROCKHAMPTON CATHOLIC EDUCATION PRINCIPALS’ AGREEMENT 2024 -2028

Educational services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 25 OCTOBER 2024

Application for approval of the Diocese of Rockhampton Catholic Education Principals’ Agreement 2024 -2028

Introduction

[1] The Roman Catholic Trust Corporation for the Diocese of Rockhampton (the Employer) has made an application for approval of an enterprise agreement known as the Diocese of Rockhampton Catholic Education Principals’ Agreement 2024 -2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

[2] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 4 March 2024 and the Agreement was made on 10 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

[3] The version of the NERR that was provided to employees on 4 March 2024 was erroneous in that it was the pre-reform version of the NERR. The Employer provided submissions that this matter constituted a minor technical error.

[4] I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5)(a) of the Act, and that in circumstances where the provision of the incorrect version of NERR was not likely to have disadvantaged employees, I disregard the error as a minor technical or procedural error for the purposes of s.188(5)(a) of the Act.

National Employment Standards (NES) Precedence Term

[5] Clause 2.2.1 provides that either party will give 3 months’ notice of the termination of employment. However, this period of notice will not apply to any Principal dismissed for gross misconduct. It is unclear and not otherwise defined what is meant by ‘gross misconduct’. Accordingly, this clause may be inconsistent with s.123 of the Act and 1.07 of the Fair Work Regulations.

[6] Clause 2.2.2 provides that, in lieu of the notice period, salary equivalent to the notice not given may be paid or withheld from salary due to the Principal. Clause 5.9.2 also provides that where an employee fails to give the minimum prescribed notice of resignation, the employer shall have the right to withhold monies due to the Principal up to a maximum amount equal to the ordinary time rate for the period of notice not given, provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

[7] To the extent that these clauses may be inconsistent with the NES. I note that in accordance with the NES precedence term in Clause 1.7 of the Agreement, they will be read and interpreted in conjunction with the NES.

Section 186, 187 and 188

[8] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

[9] The Independent Education Union (IEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

[10] In accordance with s.201(2), I note that the Agreement covers the IEU.

Approval

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2024. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

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[1] [2019] FWCFB 318.

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