Ballarat and Queens Anglican Grammar School

[2024] FWCA 3339

[2024] FWCA 3339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ballarat and Queens Anglican Grammar School

(AG2024/3283)

BALLARAT AND QUEEN’S ANGLICAN GRAMMAR SCHOOL (SCHOOL ASSISTANT) AGREEMENT 2024

Educational services
COMMISSIONER ALLISON	MELBOURNE, 24 SEPTEMBER 2024

Application for approval of the Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024

1. Ballarat and Queens Anglican Grammar School (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024 (the Agreement).

1. 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, which commenced operation on 6 June 2023. Given the notification time for the Agreement was 9 December 2022, the transitional arrangements for the Amending Act provide that the genuine agreement requirements in Part 2-4 of the Act as they stood just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 21 August 2024 the better off overall test provisions in Part 2-4 of the Act as amended on 6 June 2023 apply.

1. The Independent Education Union of Australia and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers both organisations.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2023” which does not match the title of the Agreement to be approved. The NERR was also issued to the employees more than 14 days after the notification time of 9 December 2022. I am satisfied that these were minor procedural or technical errors and that the employees were not likely to have been disadvantaged by them. Accordingly, I exercise the discretion conferred by s.188(2) of the Act to disregard these errors.

1. The Agreement is silent in relation to night shift penalties, which are provided by Clause 22 of the Educational Services (Schools) General Staff Award 2020 (the Award). The Employer has submitted that the Agreement covers School Assistants based at an educational institution. Accordingly, it does not roster employees on night shift, and does not reasonably foresee that employees covered by the Agreement will be rostered to work on a night shift as defined by the Award. I am satisfied for the purpose of s.193A(6) of the Act that night shifts are not a type of employment that is reasonably foreseeable and therefore relevant for the better off overall test.

1. Several employee classifications under the Agreement are designated as “Term Time” classifications. Employees engaged under Term Time classifications are not employed during school holidays. Clause 31.2 of the Agreement provides a formula for calculating an adjusted annual salary for Term Time employees. The pay rates for Term Time employees are included at Schedule B of the Agreement. It is unclear whether the pay rates in Schedule B have already been adjusted in accordance with clause 31.2. The Employer has provided an undertaking to clarify that the pay rates for Term Time Employees in Schedule B have already been adjusted using the formula in Clause 31.2 of the Agreement and will not be re-adjusted.

1. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

1. Subject to the undertaking 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2024. The nominal expiry date of the Agreement is 15 December 2025.

COMMISSIONER

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Annexure A