Annesley College T/A Annesley Junior School

[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

CaseChat Overview and Summary

In the recent matter concerning Annesley College T/A Annesley Junior School, the Fair Work Commission was tasked with assessing and approving the proposed Enterprise Agreement 2024. The application for approval was filed by the employer, who sought to formalise the terms and conditions of employment for the staff at Annesley Junior School. The nature of the dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission was required to scrutinise various provisions of the agreement to ensure they adhered to the legislative framework, including provisions relating to wages, hours of work, leave, and other employment conditions.

The primary legal issues before the Commission were whether the agreement complied with the formal requirements for an enterprise agreement as set out in the Fair Work Act. This involved verifying that the agreement was made in good faith, was appropriately certified, and did not contain terms that were contrary to the public interest or that undermined the protection of employees. The Commission also needed to determine if the agreement provided a safety net for employees that was at least equal to the applicable award or registered agreement, and whether it allowed for a fair and efficient workplace. Additionally, the Commission considered the extent to which the agreement provided for the resolution of workplace disputes.

Upon reviewing the evidence and submissions, the Commission found that the proposed agreement met the statutory requirements for approval. The Commission confirmed that the agreement was made in good faith, was appropriately certified, and did not include terms that were contrary to the public interest or detrimental to employees' protection. The agreement was found to provide a safety net of conditions that were at least equal to the relevant award, and included provisions for the resolution of workplace disputes. Consequently, the Commission approved the Enterprise Agreement 2024 for Annesley Junior School, confirming its compliance with the relevant legislative standards.

The final orders of the Commission included the approval of the Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and it was stipulated that all parties were bound by the terms outlined in the approved agreement. The Commission emphasised the importance of the agreement in providing a clear framework for the employment relationship between Annesley Junior School and its staff, and highlighted the necessity for ongoing compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established