St George College Inc

[2019] FWCA 3065

[2019] FWCA 3065

FAIR WORK COMMISSION

DECISION

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

St George College Inc
(AG2019/1057)

ST GEORGE COLLEGE ENTERPRISE AGREEMENT 2019

Educational services
COMMISSIONER HAMPTON	ADELAIDE, 8 MAY 2019

Application for approval of the St George College Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the St George College Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by St George College Inc. The Agreement is a single-enterprise agreement.

[2] By way of background, prior to making this application the Agreement was the subject of New Approaches proceedings 1 conducted by this arm of the Commission. The New Approaches matter was jointly entered into by the Independent Education Union (South Australia) Branch (IEU), St George College Inc and the Association of Independent Schools of South Australia (AISSA) to resolve a long-standing impasse in bargaining negotiations. The Commission, through facilitated discussions over some months, assisted the parties in progressing their bargaining and strengthening relationships to underpin those negotiations and the future conduct of their affairs. However, the Commission did not participate in the drafting of the Agreement as this was a matter solely for them, given the Commission’s ultimate role in enterprise agreement approval.

[3] On 30 April 2019, this application was assigned to the Commission as presently constituted to deal with the application. Upon consideration, I identified a small number of issues arising from the application. These primarily involved uncertainty regarding interaction between the Agreement and certain National Employment Standards (NES) entitlements, as well as drafting ambiguities potentially affecting application of the Better Off Overall Test in s.193 of the Act. These matters were advised to the parties in advance of a hearing to consider the approval application.

[4] In so doing, and having regard to the material provided to the Commission with the application, I was satisfied that all of the other statutory requirements for the making of the enterprise agreement had been met. Without further discussing all of those requirements in this decision, I found that the process leading to the endorsement of the Agreement by a valid majority of employees who voted was consistent with the requirements of the Act. This includes that the Notice of Employee Representational Rights was issued at the time that the employer initiated the bargaining; and that all relevant employees were given a genuine opportunity to vote on the Agreement having been provided with the requisite information, and advised of the required details. The Agreement was genuinely made.

[5] On 6 May 2019, I conducted a hearing of the parties to seek further clarification about certain provisions of the Agreement. During that hearing, the College and the other bargaining representatives who participated (the IEU and AISSA) confirmed, amongst other matters, that:

•  The Agreement does not cover or apply to cleaning employees or employees in the Services Stream and any references to these employees should be considered in that light;

•  OSHC staff are included within its scope and the provisions of the Agreement apply where relevant;

•  There are presently no Education Support Officers Levels 5 and 6 employed and none are contemplated; however, there is no intention that any such employees who might otherwise be covered by the Agreement would not be better off overall by its approval;

•  The Agreement recognises that the NES prevails where more beneficial and that Family and Domestic Violence Leave provisions of the NES, in addition to the paid discretionary special leave in clause 17, will apply; and

•  Some other drafting issues have been clarified.

[6] Where appropriate, these matters as they relate to ss.186 and 187 of the Act were reflected in formal undertakings provided to the Commission by the employer. The undertakings are appended to the Agreement. These undertakings are responsive to the concerns raised by the Commission and in particular, when considered in the context of the terms of the instrument itself, the undertakings confirm the intended operation of the Agreement. This has also led to my satisfaction that the Agreement also meets the Better Off Overall Test and that the instrument will operate in conformity with the National Employment Standards.

[7] Further, in relation to the undertakings provided, the views of the bargaining representatives were sought during the hearing of this matter and subsequently when provided formally on behalf of the College. 2 The undertakings do not result in substantial changes to the Agreement and no employee will be disadvantaged or suffer financial detriment. As a result, I have accepted the undertakings pursuant to s.190 of the Act, and with the approval of the instrument, the undertakings are taken to be a term of the Agreement.

[8] I note also that to the extent that the notice of termination provisions may not align with the relevant requirements of the NES given some potential scenarios, clause 12.1 of the Agreement expressly provides that the NES will take precedence to the extent of any inferiority.

[9] The Agreement contains the relevant mandatory content, meets the form requirements of the Act; and I am satisfied that it does not contain unlawful, discriminatory or objectionable terms.

[10] Having regard to the terms of the Agreement, the additional information now provided to the Commission, and in light of the undertakings provided, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days from this approval decision. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

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 1   NA2018/13.

 2   The bargaining representatives supported the undertakings.