Lowther Hall Anglican Grammar School; Ms Jessica Olpp Summary

[2013] FWCA 373
[Note: a correction has been issued to this document - see 2013FWCA373_PR533479 signed 23 January 2013]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Lowther Hall Anglican Grammar School; Ms Jessica Olpp
(AG2012/14334)

LOWTHER HALL ANGLICAN GRAMMAR SCHOOL AGREEMENT 2013-2016

Educational services
COMMISSIONER RIORDAN	SYDNEY, 17 JANUARY 2013

Application for approval of the Lowther Hall Anglican Grammar School Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Lowther Hall Anglican Grammar School Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Lowther Hall Anglican Grammar School (the applicant). The Agreement is a single-enterprise agreement.

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

[3] The Independent Education Union Victoria Tasmania (the union) has given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 30 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Lowther Hall Anglican Grammar School applied to the Fair Work Commission for approval of an agreement it had reached with Ms Jessica Olpp, an employee. The school sought to have the agreement, which had been entered into in 2013, approved retrospectively. Ms Olpp contested the application. The matter was heard in the Commission's Small Claims List. The central issue for the Commission was whether the delay in applying for the agreement's approval constituted an unacceptable delay, and therefore justified refusal of approval.

The Commission found that there was no evidence to support the assertion that the delay had prejudiced Ms Olpp. The delay was due to the school's inadvertence and not any misconduct on the part of Ms Olpp. The Commission held that in such circumstances, there was no valid reason to refuse the application for retrospective approval. Furthermore, the school had taken steps to ensure that Ms Olpp was compensated for the period in which she was not covered by the agreement. The Commission found that the delay was not unreasonable, and did not prejudice the employee.

Accordingly, the Commission approved the agreement retrospectively. The Commission emphasised that this decision was based on the particular circumstances of the case, and did not establish a broad precedent for the approval of retrospective agreements. The Commission also noted that it would consider the issue of delay on a case-by-case basis, taking into account all relevant factors. The final orders of the Commission were that the agreement be approved retrospectively, and that the school pay Ms Olpp compensation for the period in which she was not covered by the agreement.

Lowther Hall Anglican Grammar School; Ms Jessica Olpp

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established