Seventh-day Adventist Schools (Tasmania) Limited

[2021] FWCA 1367

[2021] FWCA 1367

FAIR WORK COMMISSION

DECISION

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

Seventh-day Adventist Schools (Tasmania) Limited
(AG2020/4151)

TEACHERS SEVENTH-DAY ADVENTIST SCHOOLS (TASMANIA) LTD ENTERPRISE AGREEMENT 2021-2023

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 15 MARCH 2021

Application for approval of the Teachers Seventh-day Adventist Schools (Tasmania) Ltd Enterprise Agreement 2021-2023.

[1] An application has been made for approval of an enterprise agreement known as the Teachers Seventh-day Adventist Schools (Tasmania) Ltd Enterprise Agreement 2021-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Seventh-day Adventist Schools (Tasmania) Limited. The Agreement is a single enterprise agreement.

[2] 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.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[4] 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.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 1.3

•  Clause 24.1(xvi)

•  Clause 34.2(ii)

•  Clause 34.4

•  Clause 34.6

[6] However, noting the undertaking provided by the employer, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Applicant did not comply with section 180(2) of the Act. However, in the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 1 I am satisfied that:

(a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
(b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[8] The Agreement was approved on 15 March 2021 and, in accordance with s.54, will operate from 22 March 2021. The nominal expiry date of the Agreement is 15 March 2025.

COMMISSIONER

ANNEXURE A-

 1   [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE510738  PR727745>