Annesley College T/A Annesley Junior School
[2024] FWCA 4197
•28 NOVEMBER 2024
| [2024] FWCA 4197 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Annesley College T/A Annesley Junior School
(AG2024/3234)
ANNESLEY JUNIOR SCHOOL ENTERPRISE AGREEMENT 2024
| Educational services | |
| COMMISSIONER THORNTON | ADELAIDE, 28 NOVEMBER 2024 |
Application for approval of the Annesley Junior School Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Annesley Junior School Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Annesley College T/A Annesley Junior School (the Applicant). The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) provided to the employees was not in the prescribed form. It is in the form as prescribed prior to 6 June 2023. I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s. 174(1A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.
Two grounds and maintenance employees were initially outside of the scope of the Agreement and were not provided with a NERR. As part of the bargaining process the grounds and maintenance employees were ultimately included in the proposed coverage of the Agreement and nominated employee bargaining representatives to act on their behalf. The grounds and maintenance employees were eligible to vote on the Agreement.
I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by section 188(5) of the Act to disregard the minor technical errors in respect of the NERR.
The Applicant has provided written undertakings (see Annexure A). 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
The Agreement does not make compassionate leave available in cases of stillbirth or miscarriage as provided for in section 104 of the Act. Noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement provides for annualised salaries and contains a reconciliation clause. Pursuant to sections 193A(6) and (6A) of the Act, I have had regard to the submissions of the Applicant that overtime is not generally worked by employees covered by the annualised salary clause and consequently understand that working overtime is not reasonably foreseeable. I accept the submissions of the Applicant. For completeness I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.
The Agreement is approved and will operate in accordance with s.54 of the Act from 5 December 2024. The nominal expiry date of the Agreement is 31 December 2025.
COMMISSIONER
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ANNEXURE A
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