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

CaseChat Overview and Summary

In the Fair Work Commission, the case of Seventh-day Adventist Schools (Tasmania) Limited involved an application for the approval of the Teachers Seventh-day Adventist Schools (Tasmania) Ltd Enterprise Agreement 2021-2023. The dispute centred around the terms and conditions of employment for teachers working in Seventh-day Adventist schools within Tasmania, and the adequacy of the proposed enterprise agreement in meeting the requirements of the Fair Work Act 2009.

The legal issues before the court included whether the proposed enterprise agreement met the procedural fairness requirements under the Fair Work Act, whether it complied with the substantive provisions of the Act, and if it adequately protected the rights and interests of the teachers. The Commission had to determine if the agreement was made in good faith and whether it provided for the appropriate minimum terms and conditions as mandated by the Act.

In delivering the decision, the Commission emphasised the importance of procedural fairness in the negotiation and drafting of the enterprise agreement. It noted that the agreement should reflect genuine bargaining between the parties and that the process must be transparent and free from any undue influence. The Commission found that the agreement was made in good faith and that it contained the appropriate minimum terms and conditions. The Commission also considered the substantive provisions of the agreement, including the provisions on pay, leave, and working conditions, and determined that these provisions were fair and reasonable.

Following the analysis, the Commission approved the Teachers Seventh-day Adventist Schools (Tasmania) Ltd Enterprise Agreement 2021-2023, finding that it met the necessary requirements under the Fair Work Act. The decision was made in the interest of ensuring fair and equitable terms and conditions for teachers within the Seventh-day Adventist schools in Tasmania.

Seventh-day Adventist Schools (Tasmania) Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established