Penleigh and Essendon Grammar School - [2013] FWCA 2989

[2013] FWCA 2989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Penleigh and Essendon Grammar School
(AG2013/5915)

PENLEIGH AND ESSENDON GRAMMAR SCHOOL (TEACHER, KINDERGARTEN TEACHER, KINDERGARTEN ASSISTANT AND SCHOOL ASSISTANT STAFF) AGREEMENT 2012

Educational services
COMMISSIONER BISSETT	MELBOURNE, 17 MAY 2013

Application for approval of the Penleigh and Essendon Grammar School (Teacher, Kindergarten Teacher, Kindergarten Assistant and School Assistant Staff) Agreement 2012 .

[1] Penleigh and Essendon Grammar School (the Applicant) has made an application for the approval of the Penleigh and Essendon Grammar School (Teacher, Kindergarten Teacher, Kindergarten Assistant and School Assistant Staff) Agreement 2012 (the Agreement). The Agreement was made on 26 March 2013 and lodged with the Fair Work Commission (the Commission) in accordance with s.185 of the Fair Work Act 2009 (the Act) on 8 April 2013.

[2] The application for approval was accompanied by an employer statutory declaration (Form F17).

[3] The Independent Education Union of Australia (IEU) completed and lodged a ‘Declaration of employee organisation to an application for approval of enterprise Agreement’ (Form F18) in which it indicated that it supported the approval of the Agreement subject to it passing the better off overall test and that, should the Agreement be approved, it wished to covered by the Agreement pursuant to s.183 of the Act.

[4] On response to the question as to whether the IEU agreed or otherwise with the Employer’s statutory declaration, the IEU indicated that it disagreed with the employer’s response that the Agreement did not contain any terms of employment that are less beneficial than the NES.

[5] In particular the IEU takes issue with clause 30 of the Agreement. Clause 30 provides for the payment of annual leave loading. Clause 30 states:

30.1 An Employee who has given service for which salary has been received throughout the School Year is entitled to a leave loading of 17.5% on a maximum of four weeks’ annual leave.

30.2 An Employee who is employed for part only of a School Year is entitled to be paid leave loading as follows:

30.3 An Employee who ceases employment with the Employer prior to the commencement of third term in (sic) not entitled to leave loading from the Employer.

30.4 An Employer may pay leave loading to the Employee with the first salary payment in December of that year at the rate of pay applicable on 1 December or to the Employee with each salary payment throughout the School Year by increasing the annual rate of pay as at 1 February of that year, or as subsequently varied, by 1.346 per cent.

[6] The IEU say that clause 30.3 is contrary to s.90(2) of the NES. It submits that the formula at clause 30.2 of the Agreement makes it clear that the calculation of annual leave loading occurs on a progressive basis based on the number of weeks worked. Further it submits that s.90(2) of the Act provides that when the employment ends the employer is required to pay to the employee…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWCA 2989
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

The matter of Penleigh and Essendon Grammar School involved an application for the approval of the Penleigh and Essendon Grammar School (Teacher, Kindergarten Teacher, Kindergarten Assistant and School Assistant Staff) Agreement 2012. The application was brought before the Fair Work Commission, the primary body in Australia responsible for the resolution of workplace disputes. The school, acting as the employer, sought approval for the agreement which detailed the terms and conditions of employment for various staff members.

The legal issues before the Commission centred on whether the agreement met the requirements set out in the Fair Work Act 2009, specifically whether it provided for the fair and reasonable terms and conditions of employment for the specified staff members. This involved assessing whether the agreement complied with the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transitional Provisions) Act 2009, and if it met the criteria for a "single interest employer agreement". Additionally, the Commission needed to determine whether the agreement was "better off overall" for the employees and whether it adhered to the provisions of the Fair Work Act regarding the registration of the agreement.

The Commission found that the agreement did indeed meet the statutory requirements for approval. It was deemed to be a "single interest employer agreement" as it was made by a single employer and covered employees in various roles within the school. The agreement was found to be fair and reasonable, providing for terms and conditions that were not less favourable than the applicable award or safety net award. Furthermore, it was determined that the agreement was better off overall for the employees, as it included provisions that improved upon the existing terms and conditions. As a result, the Commission approved the agreement, noting that it was appropriately registered and complied with all relevant legislative requirements. The Commission issued its approval, marking the agreement as compliant with the Fair Work Act.

Orders