St Hilda's Anglican School For Girls (Inc) T/A St Hilda's Anglican School For Girls (Inc)

[2023] FWCA 1195

[2023] FWCA 1195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

St Hilda's Anglican School For Girls (Inc) T/A St Hilda's Anglican School For Girls (Inc)

(AG2023/987)

ST HILDA'S ANGLICAN SCHOOL FOR GIRLS (INC.) ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 27 APRIL 2023

Application for approval of the St Hilda's Anglican School for Girls (Inc.) Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the St Hilda's Anglican School for Girls (Inc.) Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Applicant. The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employer gave a previous version of the Notice of Employee Representational Rights (NERR) to employees and the Commission. The Employer provided submissions as to this error on 21 April 2023. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

1. Accordingly, notwithstanding the matters identified in paragraph [4] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

1. Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Independent Education Union (IEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement.  In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 27 April 2023 and, in accordance with s 54, will operate from 4 May 2023. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

[1] [2019] FWCFB 318

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