Caloundra City School Limited T/A Caloundra City Private School

[2021] FWCA 7279

[2021] FWCA 7279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Caloundra City School Limited T/A Caloundra City Private School
(AG2021/8706)

CALOUNDRA CITY PRIVATE SCHOOL ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER HUNT	BRISBANE, 23 DECEMBER 2021

Application for approval of the Caloundra City Private School Enterprise Agreement 2021

[1] Caloundra City School Limited T/A Caloundra City Private School (the Employer) has applied for approval of an enterprise agreement known as the Caloundra City Private School Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings and submissions. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Independent Education Union of Australia (IEU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The IEU did not provide any views.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] The notice of employee representational rights (NERR) included the Employer’s letterhead, and therefore, it was not in the prescribed form, as required by s.174 of the Act and rr.2.04 and 2.05 and Schedule 2.1 of the Fair Work Regulations 2009. I raised this issue with the Employer and invited the Employer to provide submissions as to whether the discretion in s.188(2) of the Act should be exercised to find that the Agreement would have been genuinely agreed to by the employees, notwithstanding minor procedural or technical errors made in relation to the requirements in s.174 of the Act. The Employer provided the following response:

“The Commissioner has identified that that the Notice of Employee Representational Rights (‘NERR’) issued to all employees covered by the Agreement on 19 October 2020 includes the letterhead of the Applicant.

The Applicant acknowledges that the NERR must contain only the content prescribed by the Fair Work Regulations 2009 (Cth) (‘Regulations’) and be in the form prescribed in Schedule 2.1 to the Regulations. The NERR issued to employees complies with these requirements in every respect except that it includes the letterhead of the Applicant. It is submitted that the inclusion of the Applicant’s letterhead on the NERR constitutes a minor technical error in accordance with section 188(2) of the Fair Work Act 2009 (Cth) (‘Act’).

Section 188(2) of the Act states as follows:

“(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

The Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 states as follows:

“47. Examples of minor procedural or technical errors could include (without limitation):

• …

• the inclusion of the employer’s company logo or letterhead on a Notice”

Therefore, in accordance with the Revised Explanatory Memorandum, the inclusion of a letterhead on a NERR is considered a minor procedural or technical error.

It is further noted, in accordance with Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318, the word ‘disadvantaged’ in section 188(2) of the Act “suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act”.

It is submitted that the employees covered by the Agreement suffered no disadvantage by receiving the NERR with the Applicant’s letterhead, and that the inclusion of the letterhead in no way deprived employees of acknowledging or exercising their rights outlined in the NERR.

The Applicant therefore requests, in accordance with section 188(2) of the Act, that the Commission exercise its discretion to overlook the minor technical error on the basis that employees covered by the Agreement have not been disadvantaged by the error.

The Applicant notes that the Commission has exercised their power in this regard in previous cases, such as Legeneering (Aust.) Pty Ltd [2021] FWCA 5369, Duratec Australia Pty Ltd T/A Duratec Australia [2019] FWCA 3039 and CWD Custom Windows Pty Ltd [2020] FWCA 486.”

[5] The NERR issued to employees contains the Employer’s letterhead including contact details. In the circumstances, I accept the Employer’s submissions and I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the inclusion of the Employer’s letterhead in the NERR and that the Agreement would have been genuinely agreed to within the meaning of s.188(1) but for this error.

[6] I have taken into consideration the material filed in the Commission. Subject to the undertakings 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 does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[7] The IEU 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) of the Act I note that the Agreement covers the IEU.

[8] The Agreement is approved. Clause 1.6 of the Agreement provides that the Agreement “shall commence operation from a date to be notified by FWC after its lodgement”. I advised the Employer that the Agreement would commence 7 days after the date of approval and that this would be noted in the decision to approve the Agreement. In accordance with s.54 of the Act, the Agreement will operate from 30 December 2021. The nominal expiry date of the Agreement is 30 December 2022.

COMMISSIONER

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ANNEXURE A