St Mary's Anglican Girls' School Incorporated T/A St Mary's Anglican Girls' School

[2024] FWCA 3212

[2024] FWCA 3212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St Mary’s Anglican Girls’ School Incorporated T/A St Mary’s Anglican Girls’ School

(AG2024/2988)

ST MARY’S ANGLICAN GIRLS’S SCHOOL (INC) ENTERPRISE AGREEMENT 2025

Educational services
DEPUTY PRESIDENT BEAUMONT	PERTH, 9 SEPTEMBER 2024

Application for approval of the St Mary’s Anglican Girls’ School (Inc) Enterprise Agreement 2025

1. St Mary’s Anglican Girls’ School Incorporated T/A St Mary’s Anglican Girls’ School (the Applicant) has made an application for the approval of an enterprise agreement known as the St Mary’s Anglican Girl’s School (INC) Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement under s 173(2) was 2 May 2024 and the Agreement was made on 25 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Independent Education Union of Australia (the organisation), being a bargaining representative for the Agreement, filed a Form F18[1] and identified that whilst it provided notice pursuant to s 183 that it wished to be covered by the Agreement, it did not support the approval of the Agreement on two grounds. The first, the text of the Agreement referred to the organisation as the Independent Education Union of Australia WA Branch’. The organisation submitted that this issue could be addressed by the Commission noting that the Agreement covers the Independent Education Union of Australia in accordance with s 201(2) of the Act. Second, the Agreement was absent a delegates’ rights term as required by s 205A of the Act.

1. On 23 August 2024, parties were informed by the Commission that any approval decision would correctly name the organisation and specify its coverage. Further, the absence of a delegates’ rights term would be addressed.

1. As the Agreement does not include a comprehensive delegates’ rights term, as required by s 205A(1) of the Act, the delegates’ rights term in the Educational Services (Teachers) Award 2020[2] is taken to be a term of the Agreement.

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and is also taken to be a term of it.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, each bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. The organisation, that is the Independent Education Union of Australia, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 7 September 2024 and, in accordance with s 54, will operate from 16 September 2024. The nominal expiry date of the Agreement is 31 December 2028.

DEPUTY PRESIDENT

ANNEXURE A - UNDERTAKING

[1] Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement)

[2] MA000077.

Printed by authority of the Commonwealth Government Printer

<AE526021  PR779080>