DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Scotch College Adelaide Incorporated T/A Scotch College Adelaide
(AG2019/3612)

SCOTCH COLLEGE ADELAIDE ENTERPRISE AGREEMENT 2019

Educational services
COMMISSIONER PLATT	ADELAIDE, 12 NOVEMBER 2019

Application for approval of the Scotch College Adelaide Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Scotch College Adelaide Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Scotch College Adelaide Incorporated T/A Scotch College Adelaide. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 October 2019.

[3] On 16 October 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] A hearing was conducted on 24 October 2019 and the Applicant subsequently submitted a revised undertaking in the required form dated 8 November 2019. The undertaking deals with the following topics:

• Clauses 25.2(b), 24.4(d)(5), 24.4(e)(4), 24.4(f)(4), 43.5(b) and 71.2(b) of the Agreement which pertain to the withholding of salary and allowances, will not be applied if an employee does not provide notice of termination as specified in the applicable notice of termination clause.

• In respect of causal employees, the requirement to provide notice or forfeit notice in clauses 24.4(g)(3) and 42.6(e) of the Agreement will not apply.

• Wages will not be withheld under clause 44.9 of the Agreement should an employee not provide one weeks’ notice of termination during a notice period for redundancy.

• No payments will be withheld from or forfeited by an employee under 18 years of age unless it is agreed in writing by a parent or guardian.

• Boarding Supervision employees will not be rostered in a manner that requires them to work on Sundays or Public Holidays in isolation.

• If Teaching employees working in early childhood services are required to attend for 48 weeks of the year, they will be entitled to overtime and shift penalties provided by B.4.1 and B.5.1 of Schedule B of the Educational Services (Teachers) Award 2010.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Scotch College Adelaide Incorporated T/A Scotch College Adelaide (referred to as the "Applicant") sought approval for the Scotch College Adelaide Enterprise Agreement 2019 ("the Agreement") from the Fair Work Commission ("the Commission"). The Agreement was intended to govern the employment conditions of various employees of the Applicant, and the dispute centred on whether the Agreement complied with the relevant legislative provisions under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the Agreement contained all the mandated terms and conditions, whether it was free from prohibited content, and whether the agreement had been made in good faith and not under duress. The Applicant argued that the Agreement was comprehensive, free from prohibited content, and had been negotiated in good faith. The Commission had to determine if these assertions were supported by the evidence and if the Agreement met the statutory requirements for approval.

In its decision, the Commission examined the content of the Agreement and the process by which it was negotiated. It considered submissions from both the Applicant and other interested parties. The Commission found that the Agreement contained all the required terms and conditions and was free from prohibited content. It also concluded that the Agreement was made in good faith and not under duress. Therefore, the Commission approved the Agreement as compliant with the legislative requirements.

The Commission issued its decision approving the Agreement, which is now a binding enterprise agreement under the Fair Work Act. This approval ensures that the Agreement will govern the employment conditions of the affected employees, subject to the terms and conditions set out within it.

Scotch College Adelaide Incorporated T/A Scotch College Adelaide

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established