Ballarat and Queens Anglican Grammar School Summary

[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

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).

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.

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.

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.

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.

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.

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.

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.

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

The matter before the court involved an application for the approval of the Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024. The application was brought forward by the school, seeking formal recognition of the agreement, which governs the employment terms and conditions of school assistants. The court's role was to ensure the agreement was compliant with the relevant industrial instruments and legislation, specifically the Fair Work Act 2009.

The primary legal issue revolved around whether the proposed agreement met the requirements of the Fair Work Act. This included an assessment of whether the agreement complied with the provisions for bargaining, the content of the agreement, and its implications for the employees involved. The court also had to consider if the agreement fairly reflected the interests of both the school and its employees, ensuring there was no undue influence or coercion in its formation.

The court examined the application and found that the agreement was properly negotiated and reflected the terms agreed upon by the parties. It was determined that the agreement was fair and balanced, taking into account the needs of both the school and its employees. The court also found that the agreement complied with the necessary legal standards and did not contravene any provisions of the Fair Work Act. Consequently, the court approved the agreement, allowing it to be formally adopted by the school.

The final orders of the court were to approve the Ballarat and Queen's Anglican Grammar School (School Assistant) Agreement 2024, permitting the school to implement the terms of the agreement as negotiated between the parties. The approval was granted on the condition that the agreement was applied fairly and in accordance with the terms specified.

Ballarat and Queens Anglican Grammar School

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established