Catholic Church Endowment Society Inc

[2022] FWCA 3384

[2022] FWCA 3384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Catholic Church Endowment Society Inc

(AG2022/3684)

South Australian Catholic Schools Enterprise Agreement 2020

Educational services
COMMISSIONER PLATT	ADELAIDE, 4 OCTOBER 2022

Application for approval of the South Australian Catholic Schools Enterprise Agreement 2020

1. An application has been made for approval of an enterprise agreement known as the South Australian Catholic Schools Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Catholic Church Endowment Society Inc (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 September 2022.

1. On 14 September 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 30 September 2022. The undertaking deals with the following topics:

·   For teaching staff, for the purpose of the additional week of annual leave provided for in the NES, a shiftworker is an employee who is regularly rostered to commence at a time allocated as a ‘shift’ as defined in Schedule A.5 of the Educational Services (Teachers) Award 2020 (the Teachers Award).

·   For non-teaching staff (Educational Support Officers and Indigenous Education Officers), for the purpose of the additional week of annual leave provided for in the NES, a shiftworker is an employee who is regularly rostered to work ‘afternoon shift’ or ‘night shift’ as defined in Clause 22.1 of the Educational Services (Schools) General Staff Award 2020 (the Schools Award).

·   If any employer covered by the Agreement engages a trainee employee, if the relevant rate of pay under the Agreement is below the equivalent rate of pay in the Miscellaneous Award 2020 (the Miscellaneous Award) the employee will be paid at the higher award rate plus 2%.

·   The Individual Flexibility Agreement terms found in clause 13 of the Agreement are to be read in conjunction with the model flexibility term and, where there is any inconsistency between the Agreement and the model term, and the model term provides greater benefit for employees, the model term will apply to the extent of the inconsistency. The model flexibility term is attached to the Agreement.

·   Notwithstanding clause 102.2 of the Agreement, all time worked outside of or in excess of ordinary or rostered hours, by non-teaching staff classified as ‘Grade 1A’ under the Agreement, engaged on a permanent part-time basis, will be considered and paid as overtime, unless the employee’s ordinary or rostered hours are varied by agreement, in writing. Overtime worked in such circumstances will be paid at the rate applicable to that employee’s classification under the Schools Award, with the appropriate overtime rates of the Schools Award applied. Employees will not be entitled to receive the Additional Hours Loading for time worked as overtime. The other terms of Clause 102.2 will continue to apply as they appear.

·   Notwithstanding clause 95, employees classified as ‘Grade 1A’ under the Agreement will not be required to undertake duties higher than those appropriate to the ‘Grade 2’ classification under the relevant Award or, alternatively, if they are assigned to duties of a ‘Grade 3’ classification or higher, such duties will be assigned for a period of either no more than 1 full working day, or otherwise paid for a minimum engagement of 7 full working days.

·   Notwithstanding clause 104.1 of the Agreement, non-teaching staff classified as ‘Grade 1’ or lower in the Curriculum Stream or Services Stream of the Agreement, who are rostered to work ordinary hours on a Saturday, will be, for those ordinary hours on a Saturday, paid the ordinary time rate of pay plus a penalty of an additional 50% of the ordinary time rate.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not object to the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Independent Education Union of Australia (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 this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 31 July 2024.

COMMISSIONER

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