Seventh Day Adventist Schools (North NSW) Ltd

[2018] FWCA 4729

[2018] FWCA 4729

FAIR WORK COMMISSION

DECISION

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

Seventh Day Adventist Schools (North NSW) Ltd
(AG2017/6490)

SEVENTH-DAY ADVENTIST SCHOOLS (NORTH NEW SOUTH WALES) LTD TEACHERS ENTERPRISE AGREEMENT 2018-2021

Educational services
DEPUTY PRESIDENT SAMS	SYDNEY, 10 AUGUST 2018

Application for approval of the Seventh Day Adventist Schools (North New South Wales) Ltd Teachers Enterprise Agreement 2018-2021.

[1] This ex tempore decision will give effect to my decision in respect to this application made in a proceeding before the Fair Work Commission (the ‘Commission’) on 3 August 2018.

[2] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Seventh Day Adventist Schools (North NSW) Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Seventh Day Adventist Schools (North New South Wales) Ltd Teachers Enterprise Agreement 2018-2021 (the ‘Agreement’). The Agreement was negotiated with the NSW Independent Education Union and the Independent Education Union of Australia and is to cover 496 employees who are Teachers (including Principals, Deputy Principals, Assistant Principals and Directors of Early Learning Centres). For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[3] The employees were last notified of their representational rights on 2 November 2017, and voting for the Agreement’s approval took place on 6 and 7 December 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 123 of the 156 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 20 December 2017, thereby satisfying s 185(3) of the Act.

[1] In the Employer’s Declaration in support of the application (Form F17) Mr Jamie Roan, Human Resources Manager identified the Educational Services (Schools) General Staff Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Roansaid the Agreement provides for a number of more beneficial terms and conditions including more beneficial personal leave, long service leave, parental leave and enhanced redundancy pay. He said the Agreement contains no terms which are less beneficial. However, this is not strictly correct. The Commission’s Agreement Triage Team raised a number of potential issues in respect to the Agreement, including the equivalent classification for Level 5 under the reference instrument, deemed full-full time employees (a term which appears in the reference instrument but not in the Agreement) and time off in lieu for Early Childhood Employees. In response, the applicant proffered a number of undertakings to address the Commission’s concerns in respect the BOOT. On balance, when the terms of the Agreement are taken together with the undertakings, I am satisfied the Agreement meets the BOOT. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings are attached to the Agreement and marked as ‘Annexure A’. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8 and 28 respectively, and a disputes resolution procedure at clause 29 provides for conciliation and arbitration by the Commission.

[2] At a hearing of the application on 3 August 2018,Ms C Bailey of the Association of Independent Schools of New South Wales appeared Mr J Roan for the applicant and Ms C Moore for the Union. Ms Bailey outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Although the Union had not filed a Declaration in relation to the application (Form 18), it nonetheless supported the approval of the Agreement and gave notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Ms Moore confirmed that the Union had no issue with the undertakings and supported the Agreement’s approval.

[3] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss180, 186, 187, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Support and Operational Staff Enterprise Agreement2018-2021, Seventh-day Adventist Schools (NNSW) Limited. Pursuant to s 54 of the Act, the Agreement shall operate from 10 August 2018 and have a nominal expiry date of 31 December 2021.

DEPUTY PRESIDENT

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