Catholic Education Western Australia Limited
[2024] FWCA 622
•16 FEBRUARY 2024
| [2024] FWCA 622 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Catholic Education Western Australia Limited
(AG2023/4400)
WA CATHOLIC SCHOOL TEACHERS ENTERPRISE AGREEMENT 2023
| Educational services | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 16 FEBRUARY 2024 |
Application for approval of the WA Catholic School Teachers Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the WA Catholic School Teachers Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Catholic Education Western Australia Limited (the Applicant). The Agreement is a multi-enterprise agreement.
The notification time for the Agreement under s.173(2) was 26 July 2021 and the Agreement was made on 3 November 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].
The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Independent Education Union of Australia (the IEUA), who were a bargaining agent, expressed the view that the Agreement does not pass the BOOT.
The IEUA were invited to make further submissions on why the Agreement does not pass the BOOT. In those submissions, the IEUA argued as follows:
“Firstly, the proposed agreement does not replicate the provisions of cl. 11 of the Award, which provide that a part time teacher is one who works not more than 90% of a full-time teacher’s hours. The effect of this is to deny the emoluments of full- time employment to part time workers who work between 90% and 100% of full-time work.
Secondly, the proposed agreement at cl. 12.2 and 12.10 expressly excludes the development and implementation of staff calendars and yearly timetables as a change requiring consultation. This is despite such a change almost (sic) requiring consultation under the terms of the Award.
Thirdly, cl. 13 of the proposed agreement does not provide for any entitlement to redundancy in circumstances where their hours are non-consensually reduced by 25% or more. This stands in contrast to cl. 33.5 of the Award. To the extent that the undertaking cures this deficiency, this point is not pressed by the Applicant.”
Dealing first with the third concern, the Applicant offered in response to this concern from the IEUA an undertaking to essentially replicate the provisions of cl. 33.5 of the Award and I have accepted this undertaking. With respect to the second concern, I take the IEUA’s issue to be that under the Award, changes to timetables and staff calendars would require consultation. The relevant portions of the relevant Award clause dealing with consultation about major change are as follows:
“29. Consultation about major workplace change
29.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees…
29.5 In clause 29 significant effects, on employees, includes any of the following:
termination of employment; or
major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
loss of, or reduction in, job or promotion opportunities; or
loss of, or reduction in, job tenure; or
alteration of hours of work; or
the need for employees to be retrained or transferred to other work or locations; or
job restructuring.
Where this award makes provision for alteration of any of the matters defined at clause 29.5, such alteration is taken not to have significant effect.”
I note that while the issue of yearly timetables is not specifically raised in the above list, the list itself is not exhaustive. However, in any case, it is clear to me that if the effect of a new yearly timetable were to lead to any of the effects listed above, then the clause would be enlivened, subject to the caveat set out in subclause 29.5. For example, if a yearly timetable were introduced which extended the operating hours of the school, then this would be appear to be at least initially captured by virtue of there being a change to the hours of work. The question would then be, as per subclause 29.5, whether this change fell within the ambit of subclause 15.4, which provides, in part, as follows:
“The ordinary hours of work for an employee during term weeks are variable. In return, an employee is not generally required to attend for periods of time when the students are not present…”
If I then turn to the change to rosters or hours of work clause in the Award, the relevant portions of that clause are as follows:
“30. Consultation about changes to rosters or hours of work
30.1 Clause 30 applies if an employer proposes to change the regular roster or ordinary hours of work of an employee, other than an employee whose working hours are irregular, sporadic or unpredictable.”
While there is no reference to yearly timetables or staff calendars, it is clear to me that a change in either of those documents which resulted in a change to an employee’s roster or ordinary hours of work would invoke the provisions of this clause. However, clause 30 also has a caveat contained within subclause 30.5, which provides as follows:
“Clause 30 is to be read in conjunction with any other provisions of this award concerning the scheduling of work or the giving of notice.”
The wording of this caveat is very different to that at subclause 29.5 and it may therefore suggest that it should operate differently. However, the precise intent may be subject to some speculation. If it were to be the case that it was taken to operate by saying that an employer must consult on any changes to rosters but those roster changes must in any case be within the scope of roster changes allowed in the Award that would seem to support the IEUA’s contention. If, on the other hand, the clause were to be taken to be analogous to 29.5, then it would appear to call into question whether, once more looking at subclause 15.4, the IEUA’s contention is correct. As such, it appears that there is some question as to whether this can indeed be said to be a BOOT issue.
However, section 205(1)(a)(ii) of the Act requires an agreement to contain a clause that requires the employer to consult about major workplace change or a change to regular rosters or ordinary hours of work. The Commission must be satisfied that the Agreement contains such a clause. The clause in the Agreement dealing with consultation provides as follows, with my emphasis:
12. Consultation Regarding Workplace Change
12.1 The following provisions will apply where the Employer:
(a) has made a definite decision to introduce a major change to production, program, organisation, structure, or technology to its enterprise that is likely to have a significant effect on Teachers; or
(b) proposes to introduce a change to the regular roster or ordinary hours of work of the Teacher.
12.2 For clarity, the development and introduction of the Employer’s yearly timetable is not a major change or a change to the hours of work that would invoke the requirements of this clause…
12.9 For a change referred to in clause 12.1(b):
(a) the Employer must notify the relevant Teachers of the proposed change; and
(b) clauses 12.10 to 12.12 apply.12.10 For the avoidance of doubt, the Employer’s reasonable development of staff calendars and timetables, shall not constitute a change referred to in clause 12.1(b).
It seems clear that the intention of the Applicant is that it not be required to consult over the development of timetables or staff calendars. However, I need to be satisfied that the provisions at 12.2 and 12.10 as set out above do not have the effect of exempting the Applicant from consulting in situations where the new timetable or staff calendar creates a change to regular rosters or ordinary hours of work. Regrettably, I find that the wording, particularly of clause 12.2 is capable of being read in such a way to have this effect. Specifically, it could be read, with my interpretation emphasized, as follows:
“…the development and introduction of the Employer’s yearly timetable is not a major change or a change to hours of work that would invoke the requirements of this clause even if it involves an actual change to hours of work.”
Given my concern, I have resolved to make it clear that in making my decision to approve the Agreement, I do so on the basis that where the Applicant develops a new staff calendar and/or yearly timetable, and the effect of implementing that new calendar or timetable is a change to an employee’s regular roster or ordinary hours of work, then the consultation provisions in clause 12.9(a), 12.11 and 12.12 must be followed.
The final of the IEUA’s BOOT concerns was the provision regarding maximum hours for part time employees. Under clause 11.2 of the Award, where a part time employee’s hours:
rise above 90% of the hours of a full-time employee, the employee will be considered full-time.
Under the provisions of the Award, a full time employee works an average of 38 hours per week. As such, once a part time employee’s hours rise above 34.2 hour per week, the part time employee is effectively converted to full time employment and thus guaranteed an average of 38 hours per week.
Under the provisions of the Agreement, a part time employee is one who normally works less than an average of 38 hours per week. In essence, the argument for the IEUA is that a part time employee can be engaged for, say 34.5 hours per week under the Agreement with no automatic conversion to full time employment. I do not accept that this issue is sufficient, when considering the Agreement globally, to prevent the Agreement from passing the BOOT. In the first instance, if the Agreement is approved, then at the point where employees transfer from the Award, any part time employee working more than 34.2 hours per week – other than by choice pursuant to clause 11.3 of the Award – will have been converted to full time employment. The issue thus arises only with future employees. I have performed some modelling and have found that, other than at the first two grades, an employee working 34.2 hours per week under the Agreement is paid more than an employee working 38 hours under the Award. In the case of the first two grades, once such an employee works 34.5 hours per week under the Agreement they are paid more than an employee working 38 hours under the Award. Therefore any such concerns as may arise only arise in circumstances where a new employee is engaged to work between 34.2 and 34.4 hours per week and then only in the first two grades. Further, given that the test is global, there are numerous other benefits in the Agreement that are available to offset any shortfall, which would in any case be a very minimal amount.
The Applicant has provided written undertakings. 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.
The Agreement is a multi-enterprise agreement and thus subject to s. 186(2)(b) of the Act. Given the material submitted, I am satisfied that the Agreement has been genuinely agreed to by each employer covered by the Agreement and that no person coerced, or threatened to coerce, any of the employer to make the Agreement.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
The Independent Education Union of Australia (the IEUA) lodged a Form F18 statutory declaration giving 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 the Agreement covers the IEUA.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 2024. The nominal expiry date of the Agreement is 16 February 2027.
DEPUTY PRESIDENT
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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