St George College Inc T/A St George College

[2021] FWCA 6409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St George College Inc T/A St George College
(AG2021/7895)

ST GEORGE COLLEGE ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER PLATT	ADELAIDE, 25 OCTOBER 2021

Application for approval of the St George College Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the St George College Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by St George College Inc T/A St George College (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 22 October 2021 and was determined on the papers.

[3] The Applicant has submitted an undertaking in the required form dated 25 October 2021. The undertaking deals with the following topics:

• The Nominal Expiry Date of the Agreement will be 4 years from the approval of the Agreement.

• The definition of “compassionate leave” has been expanded to include incidents of stillborn births and miscarriages.

• Grounds for summary dismissal have been limited to incidents of serious misconduct.

• Junior rates of pay in Appendix C of the Agreement will not apply to employees engaged as Level 3 or Level 4 Education Support Officers.

• The minimum amount payable to a SWS employee under Appendix D will be $90.00 per week and will increase in accordance with any increases to Schedule E of the Educational Services (Schools) General Staff Award 2020 (the Award).

• The ordinary span of hours for employees engaged in preschool or out of hours services will be on any day from Monday to Friday between 6.30am and 6.30pm.

[4] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[5] 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.

[6] 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.

[7] 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 25 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, St George College Inc trading as St George College, sought approval of the St George College Enterprise Agreement 2021. The respondent, the Independent Education Union of Australia (NSW), opposed the application on the grounds that the agreement did not meet the requirements of the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement contained terms that were procedurally and substantively unfair under the Act. The respondent contended that the agreement failed to comply with several provisions, including the requirement that there must be a genuine enterprise agreement, and that the agreement must be made in good faith. The respondent also argued that certain terms of the agreement were not fair, including the provisions relating to employee leave and the definition of "casual employees."

In reaching its decision, the Commission considered the evidence and arguments presented by both parties. The Commission found that there was no evidence of bad faith on the part of the applicant, and that the agreement had been made in accordance with the relevant provisions of the Act. The Commission also found that the terms of the agreement were not unfair, and that the agreement met the requirements of the Act. The Commission noted that the agreement provided for reasonable terms and conditions of employment, and that it was consistent with the terms and conditions of other agreements in the education sector.

The Commission approved the St George College Enterprise Agreement 2021, subject to certain minor modifications. The modifications related to the calculation of leave loading and the definition of "casual employees." The Commission determined that these modifications were necessary to ensure that the agreement complied with the Act, and that the modifications did not undermine the overall fairness of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established