Governors of Hale School T/A Hale School

[2025] FWCA 178

[2025] FWCA 178 

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Governors of Hale School T/A Hale School

(AG2024/4987)

HALE SCHOOL (ENTERPRISE BARGAINING AGREEMENT) 2024

Educational services
COMMISSIONER LIM	PERTH, 5 FEBRUARY 2025

Application for approval of the Hale School (Enterprise Bargaining Agreement) 2024.

1. Governors of Hale School trading as Hale School (the Applicant) has made an application for the approval of an enterprise agreement known as the Hale School (Enterprise Bargaining Agreement) 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. I note that the Applicant did not serve a copy of the Form F17B on the Independent Education Union of Australia (IEU) as a bargaining representative in accordance with Rule 22 of the Fair Work Commission Rules 2024. However, as the IEU has had the opportunity to provide its views on the application prior to approval, I consider it appropriate in the circumstances to waive compliance with Rule 22 pursuant to Rule 7.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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. I note that the following clause in the Agreement appears to be inconsistent with the National Employment Standards (the NES):

(a)Clause 19.3 appears to be silent on entitlements for leave following the stillbirth of a child of the employee or a member of the employee’s immediate family or household, and following a miscarriage suffered by the employee, employee’s spouse or de facto partner, as required by s 105(1) of the Act.

1. However, I am satisfied that with the undertakings provided, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. 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), and based on the declaration provided by the organisation, I note that the IEU is covered by the Agreement.

1. The Agreement was approved on 5 February 2025 and, in accordance with s 54, will operate from 12 February 2025. The nominal expiry date of the Agreement is 12 February 2028.

COMMISSIONER

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ANNEXURE A