Lutheran Education South Australia, Northern Territory and Western Australia Inc. T/A Lutheran Education SA, NT & WA

[2024] FWCA 2203

[2024] FWCA 2203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lutheran Education South Australia, Northern Territory and Western Australia Inc. T/A Lutheran Education SA, NT & WA

(AG2024/1826)

LUTHERAN SCHOOLS SA ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 JUNE 2024

Application for approval of the Lutheran Schools SA Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the Lutheran Schools SA Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lutheran Education South Australia, Northern Territory and Western Australia Inc. T/A Lutheran Education SA, NT & WA. The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 23 May 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 17 May 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

1. The Employer 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. I note that several clauses may be inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 11.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

1. The Form F17B provides that the notification time was 23 May 2023. Crossways Lutheran School distributed the notice of employee representational rights (NERR) on 12 June 2023, 20 days after the notification time rather than within 14 days of the notification time as required by s. 173(3) of the Act. The Applicant states that it was an administrative oversight that Crossways Lutheran School, one of the thirty-two Employers covered by the Agreement, failed to distribute the NERR within the required timeframe. The Applicant further submits that

employees have not been disadvantaged by the error.  I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a) of the Act as it was prior to 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Independent Education Union of Australia 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 June 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

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