Bunbury Cathedral Grammar School Inc

[2019] FWCA 3393

[2019] FWCA 3393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bunbury Cathedral Grammar School Inc
(AG2018/7000)

BUNBURY CATHEDRAL GRAMMAR SCHOOL INC. (TEACHING STAFF) ENTERPRISE AGREEMENT 2017

Educational services
DEPUTY PRESIDENT BEAUMONT	PERTH, 15 MAY 2019

Application for approval of the Bunbury Cathedral Grammar School Inc. (Teaching Staff) Enterprise Agreement 2017. Huntsman – minor procedural error

[1] Bunbury Cathedral Grammar School Inc (the School) made an application for the approval of an enterprise agreement known as the Bunbury Cathedral Grammar School (Teaching Staff) Enterprise Agreement (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act), and the Agreement is a single enterprise agreement.

[2] There were issues that arose regarding the application. First, the last Notice of Employee Representational Rights (Notice) was given to employees on 21 May 2018, over a year after the notification time. Section 173(3) of the Act compels an employer to give the Notice no later than 14 days after the notification time for the Agreement.

[3] The second concerned the objection by the Independent Education Union of Australia WA Branch (IEU) about cl 38 of the Agreement. Clause 38(1) required a teacher to provide the School with 10 weeks’ notice in circumstances of her or his resignation. A failure to provide the required notice resulted in the teacher being liable to forfeiture or payment to the School of an amount equivalent to ten weeks’ notice pay or an amount equivalent to that period of notice not given or served. Under cl 38(2) of the Agreement, this requirement could be waived in part or whole by mutual agreement between the teacher and the School.

[4] In contrast, the Educational Services (Teachers) Award 2010 (the Award) provides that teachers are required to provide seven weeks’ notice or the payment of seven weeks’ salary instead of notice or part notice and part payment instead of notice, provided that the total weeks’ notice and weeks’ payment instead equal seven.

[5] It was the IEU’s contention that the Agreement placed its members in unreasonable circumstances should they have to resign their employment without providing the requisite notice. Further, they submitted that cl 38 may offend s 326 of the Act as it provides for an unreasonable deduction for the benefit of the School.

[6] On 1 May 2019, after the School and the IEU had filed submissions on the second issue, my Chambers emailed both directing that the IEU confirm whether they wanted to proceed to a hearing on the matter, or place reliance on the submissions made to date.  It was noted that in the absence of confirmation by the requisite time, I would make my decision based on the materials before me. No confirmation or other communication was received by the IEU, and as such, I have decided the matter on the papers.

Issue One – Notice

[7] On 27 April 2017, the School HR Manager emailed all teaching staff providing them with the first Notice informing them it was the intent of the School to hold a first meeting with nominated representatives within two weeks of giving the first Notice. 1

[8] Mr Giles, Head of School, gave evidence that following the communication of 27 April 2017, three bargaining representation nomination forms were received. 2

[9] On 29 May 2018, the first EA Consultative Committee Meeting (Committee meeting) was held. 3 The negotiation process continued, with Committee meetings being held over the months of June until September 2017.4 A vote was conducted over 18 and 19 October 2017 which resulted in a ‘No’ vote.5 The School informed its teachers of the outcome on 20 October 2017.6

[10] A memorandum was sent to all teachers on 9 November 2017 advising that the Committee would reconvene in 2018. 7 A Committee meeting was held on 13 February 2018.8 However, on 16 February 2018, a memorandum was sent to teachers informing them that the Agreement negotiation process would be suspended until Term 2 2018.9 It appears that the School suspended the negotiations for a period to address non-Agreement issues that had contributed to the ‘No’ vote.

[11] On 21 May 2018, a further memorandum was sent by email to teachers informing them that the Agreement negotiation which had been suspended would recommence, and a new Notice was attached to the email. The new Notice was provided because two of the three bargaining representatives previously nominated were no longer available to participate in negotiations due to a resignation and extended leave. On 6 June 2018 Committee meetings recommenced.

[12] As was observed by Hatcher VP in Transport Workers' Union of Australia v Hunter Operations Pty Ltd (Hunter), the definition of ‘notification time’ in s 173(2)(a), ‘indicates that an employer’s agreement to bargain is a single event which happens at a particular point in time’. 10

[13] An employer may agree to bargain expressly in writing, orally, or it may be inferred to have agreed to bargain through its conduct (such as by commencing to actually engage in bargaining in relation to a proposed enterprise agreement). 11 Whether an employer has agreed to bargain or has initiated bargaining in relation to a proposed enterprise agreement is a question of fact.12 In the circumstances of this matter, I have found that the notification time was 27 April 2017. This accords with the School’s view on the matter. Clearly then, the last Notice was provided outside of the time limit provided in s 173(3) of the Act.

[14] At this pointit is important to appreciate the role of the Notice in respect of a proposed enterprise agreement, and the persons who will be covered by that agreement. 13 It provides employees with important information about the nature of a proposed enterprise agreement, and the employees’ right to appoint a bargaining representative to assist them in bargaining for the agreement, or a matter before the Commission with regard to the agreement.14 Further, the Notice sets out the default position for union members, that is, they will be represented by their union if they do not appoint a bargaining representative.15 

[15] In the Full Bench decision of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, it was said that a failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s 188(2)(a). 16 A procedural requirement was said to be one that required an employer to follow a particular process or course of action e.g. providing employees with a Notice as soon as practicable, and not later than 14 days after the notification time (s 173(3)).

[16] The Full Bench in Huntsman outlined that what constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with, and the relevant circumstances. 17

[17] Where employees received the Notice later than the 14 day period, it may be the case that this prevented them from attending initial bargaining meetings, and therefore may keep them from effectively influencing the bargaining process even after they participate. However, there was no evidence before me to suggest that this was the case. It would appear that for the first tranche of bargaining meetings, representatives were appointed and attended. When it was evident to the School that two of the bargaining representatives would no longer be available, the school took it upon themselves to issue further Notices to allow for the appointment of bargaining representatives. I am satisfied that, notwithstanding the delay in providing the last Notice, employees were, at all relevant times, provided with a reasonable period to exercise their representational rights.

[18] I am satisfied in the circumstances of this case that the failure to provide the last Notice in the requisite period was a minor procedural requirement in light of that which has been observed. The relevant employees were unlikely to be disadvantaged by such error, and I do not consider it to be one that stands in the way of the approval of the Agreement.

Issue two – the termination clause

[19] The inclusion of cl 38(1) of the Agreement had some history to it. The clause appears to have been the subject of bargaining in past negotiations, with compromises made to secure its inclusion in the Agreement.

[20] The School submitted that when it negotiated with the teachers for the predecessor agreement, it had negotiated an extension of ten weeks’ notice under cl 38(1) in exchange for the provision of other benefits.

[21] The first was the provision of 10 weeks rather than seven weeks’ notice to part-time teachers where their teaching load was varied (see cl 22.2 of the Agreement). The School advanced that for part-time employees, this was a benefit. Both clauses 38 and 22.2 had been included in the predecessor agreement. According to the School, there were 20 part-time employees that benefited from the clauses.

[22] The second benefit was the increase to 10 weeks’ notice of termination, and up to 15 weeks’ redundancy pay; the third was a wage increase.

[23] Whilst the IEU submitted that cl 38 of the Agreement may offend s 326 of the Act. I am not satisfied that is the case. The Undertaking provided by the School addresses that where a period of notice is not served under cl 38 of the Agreement, monies due to the employee on termination may be withheld equivalent to the period of notice not served. This accords with the Award, with the exception that the notice required to be given is 10 weeks, not seven.

[24] Further, the inclusion of cl 38(1) does not result in the Agreement failing the better off overall test under s 193 of the Act.

Undertakings

[25] The Employer has provided written undertakings. A copy of the undertakings are attached as Annexure A. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. My consideration of those comments has been duly detailed in this decision.

[26] 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

[27] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[28] The Independent Education Union of Australia (the organisation),being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[29] The Agreement was approved on 15 May 2019 and, in accordance with s 54, will operate from 22 May 2019. The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

Annexure A

 1   Witness Statement of Mr MJ Giles dated 12 April 2019 (Giles’ Statement) [1].

 2 Ibid [2].

 3 Ibid [3].

 4 Ibid [4].

 5 Ibid [5].

 6 Ibid [6].

 7 Ibid [7].

 8 Ibid [9].

 9 Ibid [10].

 10   Transport Workers' Union of Australia v Hunter Operations Pty Ltd [2014] FWC 7469.

 11 Ibid [50].

 12   Ibid.

 13   Peabody Moorvale Pty Ltd v CFMEU[2014] FWCFB 2042.

 14   Ibid.

 15 Ibid [20].

 16   [2019] FWCFB 318 [56] (Huntsman).

 17 Ibid [117].

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