Governors of Hale School T/A Hale School
[2023] FWCA 1278
•25 MAY 2023
| [2023] FWCA 1278 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Governors of Hale School T/A Hale School
(AG2023/1126)
HALE SCHOOL (ENTERPRISE BARGAINING) AGREEMENT 2023
| Educational services | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 25 MAY 2023 |
Application for approval of the Hale School (Enterprise Bargaining) Agreement 2023
Governors of Hale School T/A Hale School (the Applicant) has made an application for the approval of an enterprise agreement known as the Hale School (Enterprise Bargaining) Agreement 2023 (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.
Several issues arose during the approval process of the Agreement. First, the Applicant’s compliance with s 180(2) of the Act. Second, whether the voting cohort were employed at ‘the time’ as that term is understood by reference to s 181(1) of the Act. Mr Richard Goater, Director of Staff Development and Human Resources for the Applicant, gave evidence to address the issues identified. Mr Goater was the Applicant’s representative involved in the negotiation of the Agreement and in organising the conduct of the vote for the approval of the Agreement.
Compliance with s 180(2) of the Act
Whilst the Independent Education Union of Australia (IEU) initially supported the approval of the Agreement, it subsequently raised the issue of whether the employees covered by the Agreement had genuinely agreed to the Agreement. The IEU contended that the Applicant had not complied with s 180(2) of the Act. In doing so, the IEU did not broach whether the purported non-compliance could be cured by the operation of s 188(2) of the Act.
The reason for the asserted lack of genuine agreement was that the Applicant had failed to give to the relevant employees a copy of the Educational Services (Teachers) Award 2020 (the Award).[1] The Award, by virtue of the operation of clause 7 of the Agreement, is incorporated into the Agreement.
Mr Goater gave evidence regarding the steps taken by the Applicant to provide the relevant employees with access to the incorporated Award. Mr Goater said that as part of the employment process new employees are instructed about the operation of the existing agreement and that the existing agreement is to be read in conjunction with the Award.[2]
Mr Goater further explained that:
(a) employees always have access to the Applicant’s internet service, including during the access period. This means the employees can log onto the system at any time through the Applicant’s home page at which time they can view the existing enterprise agreement and the Award;
(b) because of the introduction of new levels one to five in the classification structure in the Award, teaching staff had received a presentation outlining the Award and explaining the relationship between the new levels in the Award and the Steps classification structure in the existing enterprise agreement and the proposed Agreement; and
(c) the relationship between the Award and existing enterprise agreement and the Agreement had been reiterated on numerous occasions within the Applicant’s Common Room Liaison Committee meetings and through the bargaining process and by the Applicant’s Common Room Liaison Committee to employees especially in relation to terms and conditions such as domestic violence leave.[3]
In Construction, Forestry, Maritime, Mining and Energy Union v AKN Pty Ltd, the Full Bench addressed the appellant’s contention that the employer had not provided to employees modern awards that had been partially incorporated into the agreement in question.[4] The Full Bench stated that such ‘relevant materials are publicly available (on a range of websites)’, and that was sufficient for the material to be readily available to employees.[5]
The evidence points to the relevant employees being able to access the Award by virtue of the Applicant’s own intranet and that relevant employees had been made aware of the Award (and the existing agreement) on the commencement of employment, through a presentation regarding the introduction of new classification levels in the Award and during the bargaining process. I am therefore satisfied that the Applicant had taken all reasonable steps to ensure that the relevant employees had access, throughout the access period for the Agreement, to a copy of the Award.
Casual employees
The Form F17 indicated that within the cohort of employees who voted on the Agreement were employees who were employed on a casual basis. It was initially unclear whether the 60 casual employees who cast a vote were employed at ‘the time’.[6] It is accepted that an employer should only make a request under s 181(1) to employees who are employed ‘at the time’, as opposed to those who are not employed at ‘the time’ but who might otherwise be regarded as ‘usually employed.’[7]
In response to the issue raised, Mr Goater gave evidence that he had advised the external voting provider of the names and details of the employees eligible to vote at the time. Mr Goater said that at the relevant time, the Applicant made the request to a total of 183 eligible employees, comprising of two casual employees and 181 permanent employees.[8] Mr Goater said that having ascertained the employment status of all casuals at the relevant time, only two casuals were employed at the time the request was made for employees to approve the Agreement.[9] Mr Goater explained that the reference to the 60 casual employees in question 6 of the Form F17 was a reference to the number of casual employees the Applicant would engage in various roles during the school year, such as relief teachers to cover illness and camps.[10]
Having considered the evidence of Mr Goater and noting that there is no evidence to contradict his account, I have found that the relevant employees were employed at the time.
Conclusion
In respect of the remaining issue, the Applicant has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.
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.
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.
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.
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 IEU, I note that the IEU is covered by the Agreement.
The Agreement was approved on 25 May 2023 and, in accordance with s 54, will operate from 1 June 2023. The nominal expiry date of the Agreement is 31 December 2024.
DEPUTY PRESIDENT
Annexure A
[1] MA000077.
[2] Affidavit of Richard Goater, [5] (Goater Statement).
[3] Ibid [6]–[8].
[4] [2020] FWCFB 3438.
[5] Ibid [45].
[6] See Re Shop, Distributive and Allied Employees Association (2019) 291 IR 233.
[7] Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd[2018] FWCFB 7224, [19], citing National Tertiary Education Union v Swinburne University of Technology (2015) 232 FCR 246, 254 [24], [27] (Jessup J), 261 [38] (White J).
[8] Goater Statement (n 2) [11].
[9] Ibid [13].
[10] Ibid.
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