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:

The matter before the Fair Work Commission involved an application by All Souls St Gabriels School Incorporated to approve the All Souls St Gabriels School Enterprise Agreement 2019. The school sought approval for the agreement, which was a proposed collective agreement intended to govern the employment terms of certain staff members. The application was brought in accordance with the Fair Work Act 2009, and the Commission's role was to assess whether the agreement met the legal requirements for approval under the legislation.

The primary legal issues the Commission had to decide were whether the agreement contained the necessary fair work provisions, and whether the agreement had been made in accordance with the procedural requirements of the Fair Work Act. Specifically, the Commission had to consider whether the agreement included all the mandated minimum entitlements and conditions, and whether it had been fairly negotiated and properly certified. Additionally, the Commission examined whether the agreement had been appropriately brought to the attention of the bargaining representatives and whether the requisite process for its approval had been followed.

The Commission determined that the proposed agreement did indeed contain all the necessary fair work provisions, as required by the Fair Work Act. The agreement covered various employment terms and conditions, including pay rates, leave entitlements, and dispute resolution mechanisms, among other things. Furthermore, the Commission was satisfied that the agreement had been fairly negotiated and properly certified, in accordance with the Act. The school had provided evidence that the agreement had been brought to the attention of the bargaining representatives and that the requisite process for its approval had been followed. The Commission concluded that the agreement was compliant with the statutory requirements and approved the All Souls St Gabriels School Enterprise Agreement 2019.

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

DECISION

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