A S S G School Incorporated T/A All Souls St Gabriels

[2021] FWCA 406

[2021] FWCA 406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

A S S G School Incorporated T/A All Souls St Gabriels
(AG2020/3734)

ALL SOULS ST GABRIELS SCHOOL ENTERPRISE AGREEMENT 2019

Educational services
COMMISSIONER HUNT	BRISBANE, 28 JANUARY 2021

Application for approval of the All Souls St Gabriels School Enterprise Agreement 2019.

[1] A S S G School Incorporated T/A All Souls St Gabriels (the Employer) has applied for approval of an enterprise agreement known as the All Souls St Gabriels School 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.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the three employee bargaining representatives, together with the Independent Education Union of Australia (the IEU) and Queensland Nurses and Midwifery Union (the QNMU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The IEU wrote to my chambers advising that is concurs with the undertakings. The QNMU raised certain concerns regarding the undertakings, which I have considered and addressed in correspondence with the parties.

[3] In particular, relevant to nurses employed by the Employer, I have had regard to an over award payment of approximately $40,000 per annum, and the additional hours in excess of 38 hours per week a nurse may perform during school term or be required to be on-call. Having regard to terms within the Educational Services (Schools) General Staff Award 2020 (the Award) being applied to nurses given the Agreement provides for rates that are paid far in excess of the Award, I am satisfied that an annual reconciliation or comparison against the Award is suitable as there is practically no likelihood of a nurse failing to be better off overall. I have had particular regard to the following clauses within the Award and the anticipated on-call requirement and overtime hours per fortnight in coming to this conclusion:

•  on-call allowance (clause 3.1)

•  recall (clause 3.2)

•  meal breaks - extra payment for working during meal break (clause 4.2.2)

•  weekend work - extra payment (clause 4.5)

•  afternoon and night duty - extra payment (clause 4.6)

•  overtime (clause 4.7)

[4] Relevant to the undertakings provided, 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[5] I have taken into consideration the material filed in the Commission. Subject to the undertakings 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 does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The IEU and QNMU being bargaining representatives for the Agreement have 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 the IEU and the QNMU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2021. The nominal expiry date of the Agreement is 31 January 2022.

COMMISSIONER

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Annexure A: