Governors of Hale School T/A Hale School

[2020] FWCA 3341

[2020] FWCA 3341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Governors of Hale School T/A Hale School
(AG2020/1514)

HALE SCHOOL (ENTERPRISE BARGAINING) AGREEMENT 2020

Educational services
COMMISSIONER WILLIAMS	PERTH, 29 JUNE 2020

Application for approval of the Hale School (Enterprise Bargaining) Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Hale School (Enterprise Bargaining) Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Governors of Hale School T/A Hale School (Hale School). The Agreement is a single enterprise agreement.

[2] The Independent Education Union of Australia (the IEU) has filed a Form F18 Declaration of employee organisation in relation to an application for approval of an enterprise agreement, advising the Commission that it does not support approval of the Agreement by the Commission.

[3] Hale School has provided a response to the IEU’s opposition.

[4] The grounds for the IEU opposing the Agreement are considered respectively below.

[5] The IEU submits that any teacher who teaches religious education is excluded from the coverage of the Agreement and so the group of employees to be covered by the Agreement has not been fairly chosen.

[6] Clause 3 Coverage of the Agreement specifies a number of types of employees who the Agreement does not cover including:

“(e) Employees who are engaged for the purpose of religious instruction or supervision of prayers or to undertake other religious duties of a non-teaching nature (unless also employed as a Teacher).”

[7] Self-evidently the Agreement does cover religious education teachers. The IEU’s opposition on this ground is baseless.

[8] The IEU object to wording in clause 10 Consultation regarding the school’s timetable. It is not apparent to the Commission however how this is a barrier to the Agreement being approved.

[9] The IEU also submits that there are clauses within the Agreement that refer to other clauses in error. It is not apparent that this is the case but even if it is, drafting errors in the Agreement are not a barrier to the Agreement being approved, nor does the Commission have general powers to redraft enterprise agreements to correct such errors.

[10] The IEU opposes the fact that clause 14 Redundancy refers to procedures, support, severance pay scales and frameworks for redundancy as being outlined in the school’s policy “Redundancy Conditions and Payments” without the school policy being an addendum to the Agreement. There is no requirement for a policy referenced in an enterprise agreement to be attached to that enterprise agreement. This is not a basis for the Commission to not approve the Agreement.

[11] Finally, the IEU submits that compassionate leave in clause 19 Leave is not able to be taken during a period of other leave, which it is submitted is inconsistent with the National Employment Standards (the NES). To the extent that this term of the Agreement may be inconsistent with the NES, such as section 89(2) of the Act, I am satisfied that clause 8 The National Employment Standards of the Agreement which states the NES contains the minimum entitlements of a teacher covered by this Agreement expressly reinforces that the NES entitlements prevail over the Agreement.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[13] 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) I note that the Agreement covers the organisation.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 July 2020. The nominal expiry date of the Agreement is 31 December 2021.

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