State Of Victoria (Department Of Education And Training) T/A Department Of Education And Training
[2022] FWCA 2387
•18 JULY 2022
| [2022] FWCA 2387 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
State Of Victoria (Department Of Education And Training) T/A Department Of Education And Training
(AG2022/1715)
Victorian Government Schools Agreement 2022
| Educational services | |
| COMMISSIONER MATHESON | SYDNEY, 18 JULY 2022 |
Application for approval of the Victorian Government Schools Agreement 2022.
An application has been made for approval of an enterprise agreement known as the Victorian Government Schools Agreement 2022 (Agreement). The application was made by State Of Victoria (Department Of Education And Training) T/A Department Of Education And Training (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.
There are four union bargaining representatives for the Agreement being the:
· Australian Education Union;
· Australian Nursing and Midwifery Federation;
· Australian Principals Federation; and
· Community and Public Sector Union,
all of which have filed a Form F18 declaration indicating they support approval of the Agreement and do not want to advise the Fair Work Commission (Commission) that they disagree with one or more statements in the Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement (Form F17) filed by the Applicant in relation to the Agreement.
There are also two employee bargaining representatives for the Agreement.
A Form F18A declaration was filed by one of the employee bargaining representatives for the Agreement, Mr Spicer, initial C, who also requested to be heard in relation to this application. Mr Spicer is the bargaining representative for a group of five principals. The response to question 4 of the Form F18A indicates that Mr Spicer and the employees he represents do not support approval of the Agreement and raises a number of concerns.
Additionally, three employees covered by the Agreement sought to be heard in relation to the application and were provided with the opportunity to appear at a hearing on 5 July 2022. Of those three employees, only Ms Usher, initial C, attended the hearing.
The hearing
At the hearing on 5 July 2022, the Applicant and employer covered by the Agreement sought to be represented by a lawyer. The Applicant submitted that the matter is invested with some complexity, that 39,048 people voted in favour of approving the Agreement and it is of importance. The Applicant submitted that, in that context, the proper conduct of the hearing and the discharge of the Commission’s task needs to proceed with care and issues of procedural fairness arise as do particular issues relevant to the tests to apply. The Applicant submitted that the Commission would be assisted in permitting it to be represented by a lawyer as the lawyer will be able to provide the Commission with those principles of procedure and fairness and, being furnished with those principles, the Commission would able to conduct the hearing more efficiently. No objections were raised in relation to the application for representation.
Having considered the submissions and read the materials filed, I granted permission for the Applicant to be represented by a lawyer pursuant to s.596(2)(a) of the Act on the basis that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. Accordingly, at the hearing, the Applicant was represented by Mr Howard, initial L, with Ms Connor, initial L, instructing.
Representatives for the Australian Education Union, Australian Nursing and Midwifery Federation, Australian Principals Federation and Community and Public Sector Union appeared at the hearing.
Mr Spicer, initial C, and Ms Usher, initial C, also appeared at the hearing.
Legislative framework
Section 186 of the Act sets out when the Commission must approve an agreement. In particular, s.186 provides that, if an application for the approval of an enterprise agreement is made under s.185 of the Act, the Commission must approve the agreement if the requirements in ss.186 and 187 of the Act are met. I consider these provisions below.
Genuine agreement – ss.186(2)(a) and 188(1)
The Agreement is not a greenfields agreement. In these circumstances s.186(2)(a) of the Act requires that the Commission be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement.
Section 188(1) of the Act provides that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the Commission is satisfied that:
(a)the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i)ss.180(2), (3) and (5) (which deal with pre-approval steps);
(ii)s.181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b)the agreement was made in accordance with whichever of ss.182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c)there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
Section 188(2) of the Act provides that an enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the Commission is satisfied that:
(a)the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of ss.173 and 174 relating to a notice of employee representational rights; and
(b)the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of ss.173 and 174.
Pre-approval steps – materials during the access period – s.180(2)
Section 180 of the Act provides that, before an employer requests under s.181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in s.180 of the Act.
Section 180(2) of the Act provides that the employer must take all reasonable steps to ensure that:
(a)during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i)the written text of the agreement;
(ii)any other material incorporated by reference in the agreement; or
(b)the relevant employees have access, throughout the access period for the agreement to a copy of those materials.
Section 180(4) of the Act provides that the access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in s.181(1) of the Act.
It is declared in the Form F17 that, on 5 May 2022, the Applicant sent an email to all employees proposed to be covered by the Agreement providing links to a number of documents in relation to the Agreement. A copy of this email and the documents were provided to the Commission. The email included access to links where employees could access:
· the Agreement;
· a document explaining the Agreement;
· a draft deed of agreement in relation to maximum face-to-face teaching requirements (Deed); and
· the Applicant’s policies and procedures, including those mentioned in the above documents.
It is declared in the Form F17 that 16 May 2022 is the date that voting for the Agreement commenced and I am satisfied that the relevant employees had access, throughout the access period for the Agreement, to a copy of those materials.
I am satisfied that the requirements in s.180(2) of the Act have been met.
Pre-approval steps – notification of vote – s.180(3)
Section 180(3) of the Act provides that the employer must take all reasonable steps to notify the relevant employees by the start of the access period for the agreement:
(a)the time and place at which the vote will occur;
(b)the voting method that will be used.
Section 180(4) of the Act provides that the access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in s.181(1) of the Act.
It is declared in the Form F17 that, on 5 May 2022, the Applicant sent an email to all employees proposed to be covered by the Agreement advising them that they would be given the opportunity to vote to approve or not approve the Agreement and providing links to a number of documents in relation to the Agreement and employee ballot. A copy of the email was provided to the Commission. The email explains that:
· principals have been asked to schedule a staff meeting in the period of 16 May 2022 to 20 May 2022 for school-based employees, and Regional Directors have provided designated voting places and times for employees in non-school locations, for the purpose of conducting the employee ballot in relation to the proposed Agreement; and
· further information about the employee ballot for employees in both school and non-school locations can be found in the ‘Approval process and frequently asked questions’ document. A link to access this document was provided in the email.
A document entitled ‘Approval process and frequently asked questions’ was filed with the Commission. In relation to non-school locations, the document explains that:
· a ballot box for each non-school location will be available at the designated place and time to give employees who are proposed to be covered by the proposed Agreement the opportunity to vote to approve or not approve the proposed Agreement;
· employees in attendance at the designated place and time for their non-school location would be provided with a ballot paper and invited to cast their vote for the proposed Agreement by completing the ballot paper and placing it in the ballot box provided;
· an employee is required to vote in person (with some exceptions);
· an employee who is unable to attend the designated place and time for their non-school location and who wishes to vote may arrange to cast their vote at a school which is convenient for them and that they must contact the principal of that school as early as possible to be advised of the meeting details for the vote at that school; and
· employees who are on leave or otherwise absent from work at the designated ballot box time frame for their non-school location, and who cannot make alternative arrangements to cast their vote in person, can request to vote via email.
It is declared in the Form F17 that employees were advised, via email, of the designated voting places and times for employees in non-school locations where they could vote by placing a ballot paper in a ballot box. A document referring to a ‘Ballot for employees in non-school locations’ was provided to the Commission and sets out the various times and places at which employees could vote at non-school locations.
In relation to school locations, the document entitled ‘Approval process and frequently asked questions’ explains that:
· between 16 May 2022 and 20 May 2022, a meeting will be held at each school to give employees the opportunity to vote to approve or not approve the proposed Agreement;
· employees will receive separate communication from their principal advising them of the date, time and place of the meeting at least seven days before it is to occur and the meeting will be co-convened by the principal and a union representative;
· during the meeting, employees will be provided with a ballot paper and invited to cast their vote for the proposed Agreement by completing the ballot paper and placing it in the ballot box provided;
· an employee is required to vote in person (with some exceptions); and
· employees who are on leave or otherwise absent from work at the scheduled time for the meeting and who cannot make alternative arrangements to cast their vote in person can request to vote via email.
The Commission sought further information regarding how school-based employees were notified of the time and place at which the vote would occur. The Applicant provided a response to that request explaining that, on 5 May 2022, the Applicant provided instructions to the principals of 1,542 schools in relation to how the time and place of the ballot meeting to occur between 16 May 2022 and 20 May 2022 was to be communicated to employees at those schools. A document entitled ‘Proposed Victorian Government Schools Agreement 2022 Approval Process – Principal Guidelines’ was provided to the Commission. That document:
· explains the requirements in the Act in relating to voting and approval and that the assistance of principals is required to make sure the Applicant satisfies these requirements;
· requires principals to schedule an all staff meeting to occur at their school no earlier than 16 May 2022 and no later than 20 May 2022 for the purpose of conducting the ballot and to advise employees of the date, time and place of that meeting at least seven days before it is to occur;
· requires principals to take all reasonable steps to make the relevant information accessible to employees with disabilities or language difficulties that may make it difficult for them to have access to or understand the information provided regarding the proposed Agreement and approval process;
· requires principals to contact employees who will be on leave during the access period and inform them that the relevant information is available, how it may be accessed, the date, time and place of the meeting to conduct the vote and the possibility for the employee to arrange either an alternative time to cast their vote or submit a vote by email; and
· sets out the steps principals need to take in meeting these requirements.
The Applicant submitted that the instructions to principals regarding the scheduling of the vote, and communications to employees in relation to the employee ballot at school locations are familiar to both principals and union bargaining representatives, having been applied in all previous approval processes in relation to predecessor agreements.
87,257 employees are covered by the Agreement and, of these, 63,194 cast a valid vote. During the hearing, the Applicant submitted that this represents about a 72 per cent participation rate, that there is a high participation rate by reason of conducting the vote in person and that it has therefore been the preferred method for the Applicant and bargaining representatives for a long time. The Applicant also submitted that there are 1,542 schools running to different schedules and timetables. The Applicant submitted that the question is what constitutes ‘all reasonable steps’ and, in that context, this is directing the principals to administer the vote and notify employees of the voting arrangements.
The Applicant referred to the matter of McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association[1] in which the Full Bench considered the following conclusion of the Commissioner at first instance:
“[56]In conclusion, on this topic, I am not requisitely satisfied as to if and when the employees may have been given access, for the purposes of s.180(3) of the Act, to voting information on Metime (with Poster #3 being the only document which might reasonably be considered to provide any relevant information that would satisfy statutory requirements, albeit it contains what might be viewed as internally-contradictory information). I have the evidentiary spectacle of statutory declarations from the same deponent providing different dates (either 3 December or 7 December 2009) as to when information posters were said to have been accessible on Metime; and also now have evidence that a fourth poster was accessible on 7 December 2009. I am not otherwise satisfied on the improbable, hearsay evidence that “all” employees would have been informed by local managers of this information within the time-frames specified in the Act, if at all. Further, in the statement I had otherwise already accepted Ms Allen’s evidence that some employees were not informed about the voting arrangements until meetings held as late as 14 December 2009. As such, I am not satisfied the applicant appropriately provided information to employees for the purposes of s.180(3) of the Act. I would dismiss the application for that reason alone.”
The appellants in McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association criticised the breaking down of separate communications to employees to identify perceived deficiencies and submitted that the approach did not consider the essential task under s.180(3) of the Act, being whether the employer took reasonable steps. The Full Bench found:
“[25] We are generally in agreement with the submissions of the appellants. It does not appear to us that the approach of the Commissioner is consistent with the requirement in s 188 to be satisfied that the employer took reasonable steps to ensure that certain information was provided to employees. The Commissioner has elevated the test to requiring the applicants to establish in a definitive way that all employees were in fact informed of the matters. Further, the Commissioner has apparently disregarded some evidence because of some confusion over the dates of communications where the differences were immaterial. She has further criticised some of the evidence as hearsay. In matters of this nature it is often unnecessary or impractical to lead better evidence. In our view the Commissioner’s approach was not consistent with the Act. In not applying the correct test the Commissioner erred.”
The Applicant referred to the matter of Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc,[2] in which the Full Bench said:
“[12] Before turning to consider whether the employers covered by the Agreement complied with the above mentioned pre-approval steps, we make the observation that neither of ss.180(2) and (3) of the Act require the employer to do, in absolute terms, the things set out in those subsections. That which is required by each subsection is for the employer to “take all reasonable steps” to do the things required. Thus it may be, in a particular case, that an employer has notified some or all of the employees of the date, place and method of voting after the start of the access period, but on the facts of the particular case, the Commission might nevertheless be satisfied that the employer took all reasonable steps to do so by the start of the access period.”
While finding that it could not be satisfied that reasonable steps were taken based on the material before it, specifically in relation to s.180(3) of the Act, the Full Bench found:
“As we have earlier indicated, s.180(3) of the Act does not require an employer, in absolute, to do that which is required by the subsection. Rather, that which is required is the employer to take all reasonable steps to give the relevant information to employees by the required time. Whether all reasonable steps were taken requires an objective assessment of the steps that were taken in the circumstances faced by the employer of the employees who are covered by the Agreement.”[3]
The Applicant also referred to the matter of Construction, Forestry, Mining and Energy Union v Australian Mining Supplies Co Pty Ltd,[4] in which the Full Bench said of the requirement in s.180(3) of the Act:
“[14] Section 180(3) requires that the employer take “all reasonable steps” to provide the required notification. The meaning usually assigned to that expression was discussed by the Full Bench in Maritime Union of Australia v Northern Stevedoring Services (albeit in the different context of the use of the expression in a provision of an enterprise agreement):
“[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales ([2004] NSWIRComm 222; 137 IR 176 at [67]-[71]). The following propositions may be derived from the Court’s analysis:
·reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;
·the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and
·a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).
[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd ([1995] TASSC 91; (1995) 5 TASR 121 at 133) the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:
‘In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavours in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.’”
The Applicant submitted that what emerges from these three authorities are the following propositions:
· the duty to take all reasonable steps does not extend to all possible steps and the Secretary of the Applicant is not required to establish in a definitive way that all employees were, in fact, informed. The obligations is to take “all reasonable steps”;
· whether “all reasonable steps” were taken is an objective assessment taking into account the circumstances faced by the employer;
· the steps are looked at from the perspective of what a reasonable person would regard as reasonable in the circumstances; and
· it is relevant to also consider the materiality, that is, if there is some failure to take a step, would that have materially affected the Agreement.
The Australian Principals Federation, as a bargaining representative for the Agreement that represents principals, further submitted that it was consulted about the voting process and the content of the materials that were to be disseminated to all employees and provided endorsement on both those matters.
Based on the evidence and materials before me in this matter, and taking into account the circumstances of the Applicant, I consider that the Applicant, as the employer covered by the Agreement, took all reasonable steps to notify employees of the relevant information in s.180(3) by the start of the access period. I am satisfied that the requirements of s.180(3) of the Act have been met by the Applicant.
Pre-approval steps – explanation of terms and effect – s.180(5)
Section 180(5) of the Act provides that the employer must take all reasonable steps to ensure that:
(a)the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b)the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
Section 180(6) of the Act provides that, without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a)employees from culturally and linguistically diverse backgrounds;
(b)young employees;
(c)employees who did not have a bargaining representative for the agreement.
It is declared in the Form F17 that, on 5 May 2022, the Applicant sent an email to all employees proposed to be covered by the Agreement including, among documents earlier referred to, a document explaining the terms of the Agreement. A copy of that document has been provided to the Commission, explains key features of the proposed Agreement and describes changes to the Agreement.
A further document entitled ‘Approval process and frequently asked questions’ includes frequently asked questions in relation to the proposed Agreement, including information in relation to salary increases, salary progression arrangements, classifications and career structures, changes to face-to-face teaching hours, consultation arrangements as well as staffing, attendance and leave arrangements.
Further, guidelines provided to principals explain the requirement that the Applicant take all reasonable steps to explain the terms of the proposed Agreement and the effect of those terms to employees who are covered by it and notes that the assistance of principals is required to make sure the Applicant satisfies this requirement. The document explains that if there are employees with disabilities or language difficulties that may make it difficult for them to have access to, or understand, the information provided regarding the proposed Agreement and approval process (Relevant Information), principals are required to take all reasonable steps to make the Relevant Information accessible to these employees. The document also requires principals to contact employees who will be on leave during the access period and inform them that the Relevant Information is available and how it may be accessed.
Based on the evidence and materials before me in this matter, and taking into account the circumstances of the Applicant, I am satisfied that the requirements of s.180(5) of the Act have been met by the Applicant.
Timing of vote – s.181(2)
Section 181(2) of the Act has the effect that an employer covered by a proposed agreement must not request the employees employed at the time who will be covered by the agreement approve the agreement by voting for it until at least 21 days after the day on which the last notice under s.173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
It is declared in the Form F17 that the notification time for the Agreement was 10 December 2021 and that the last date that a notice of employee representational rights (NERR) was given to an employee who will be covered by the Agreement and is employed at the notification time for the Agreement was also 10 December 2020. A copy of the email to employees attaching the NERR and the NERR itself was provided to the Commission. This is well before employees were required to approve the Agreement by voting on it and I am satisfied that the requirements of s.181(2) of the Act have been met.
Making the agreement – ss.188(1) and 182(1)
Section 188(1) of the Act requires the Commission to be satisfied that an agreement was made in accordance with whichever of ss.182(1) or (2) applies and that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
The Agreement is a single enterprise agreement so s.182(1) of the Act applies.
Section 182(1) of the Act provides that if the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under s.181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
It is declared in the Form F17 that, at the time of the vote, 87,257 employees were covered by the Agreement, 63,194 cast a valid vote and 39,048 voted to approve the Agreement.
I am satisfied that a majority of employees who cast a valid vote voted to approve the Agreement and that the Agreement was made in accordance with ss.188(2) and 182(1) of the Act.
Other reasonable grounds – s.188(1)(c)
As noted above, there are four union bargaining representatives for the Agreement who have filed Form F18 declarations indicating they support approval of the Agreement and do not want to advise the Commission that they disagree with one or more statements in the Form F17 filed by the Applicant employer in relation to the Agreement. The Form F18A filed by Mr Spicer also indicates that he does not want to advise the Commission that he disagrees with one or more statements in the Form F17.
Ms Usher raised concerns that the provisions of the separate Deed accompanying the Agreement are complex to unpack, due to the need to cross reference it to the Agreement to understand it, and submits that the individual consent of employees should be required to enter into the Deed and raises concerns about union involvement in the creation of the Deed. I have however considered the steps taken by the Applicant to explain the terms of the Agreement and its effects, including the supporting material provided to employees, and consider that it has taken all reasonable steps and, while I appreciate that the Deed provisions are complex, the bargaining representatives and other employees have not brought any submissions or evidence to suggest that this impacts genuine agreement and I do not consider that Ms Usher’s individual concerns, in themselves, impact genuine agreement.
I am satisfied that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.
National Employment Standards – s.186(2)(c)
Section 186(2)(c) of the Act requires the Commission to be satisfied that the terms of the Agreement do not contravene s.55 of the Act, which deals with the interaction between the National Employment Standards (NES) and enterprise agreements.
I observe that certain provisions of the Agreement may be inconsistent with the NES.
In particular, clause 26(15) of the Agreement provides that an employee is entitled to bereavement leave on the occasion of the death of a member of the employee’s immediate family or household whereas s.104 of the Act provides additional circumstances in which an employee is entitled to paid compassionate leave. Clause 26(25) of the Agreement provides an exhaustive list of public holidays that employees are entitled to, however does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory. This may be inconsistent with clause s.115(1)(b) of the Act.
However, clause 7(3) of the Agreement provides:
“This agreement is not intended to exclude any part of the National Employment Standards in so far as the Standards apply to employees, or to provide any entitlement which is detrimental to an employee's entitlement under the National Employment Standards. For the avoidance of doubt, the National Employment Standards (to the extent the Standards apply) prevail to the extent that any aspect of this agreement would otherwise be detrimental to an employee.”
Noting clause 7(3) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
Better off overall test – s.186(2)(d)
Section 186(2)(d) of the Act requires the Commission to be satisfied that the Agreement passes the better off overall test.
Section 193(1) of the Act provides that an enterprise agreement that is not a greenfields agreement passes the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
Ms Usher referred to provisions within The Victorian Secondary Teachers Association Agreement 1986 and raised concerns that the Agreement is regressive in comparison. Ms Usher addressed this concern at the hearing. Ms Usher also understood that the Educational Service Teachers Award 2020 was the relevant instrument for the purposes of the better off overall test assessment, however the Victorian Government Schools Award 2016 (MA000155) (Award) covers the employees covered by the Agreement and this is the instrument that I need to compare the Agreement to for the purposes of the better off overall test assessment. Ms Usher raised a concern that teachers are working an average of 52.8 hours per week with principals working 58.3 hours based on a report entitled “State of our school survey results” published by the Australian Education Union and submitted that teachers are working unpaid overtime. However, I have not been provided with probative evidence relevant to the assessment of the better off overall test that would lead me to a conclusion that the Agreement does not make employees better off than they would be under that Award.
There are a range of benefits in the Agreement that exceed those provided for in the Award such as higher minimum base rates of pay, salary loading allowance (clause 20(5)), leave purchase allowance (clause 20(9)), position allowance (clause 20(12)), special payment allowance (clauses 20(1)-(4)), remote allowance (clause 20(10)), special schools allowance (clause 20(8)), professional practice days (clause 22(12)), redeployment and redundancy support provisions (clause 21(2)-(3)), additional safeguards for part-time employees (clauses 24(10)-(12)), higher casual loading for casual education support class employees (clause 18(9)), additional paid annual leave (clauses 26(1)-(2)), additional carer’s leave where personal leave is exhausted (clauses 26(3)-(11)), additional infectious diseases leave (clause 26(14)), more beneficial spouse leave provisions (clause 26(22)), more beneficial parental leave provisions (clauses 26(17)-(20)), additional types of leave (clauses 26(16), (21), (24) and (26)-(29)), a re-establishment allowance (clause 27) and additional superannuation entitlements for employees absent while on parental leave as the primary caregiver (clause 26(17)(n)).
While there are differences between the Award and Agreement in some respects which in certain cases result in some reductions in benefits compared to the Award, I am satisfied that, when the terms of the Agreement as a whole are compared to the Award, the Agreement passes the better off overall test.
Fairly chosen – s.186(3)
Section 186(3) of the Act requires the Commission to be satisfied that the group of employees covered by the Agreement was fairly chosen.
It is declared in the Form F17 that the Agreement covers all employees who are employed in the Victorian Teaching Service pursuant to Part 2.4 of the Education and Training Reform Act 2006 (Vic) and that this is an operationally and organisationally distinct group of employees.
I am satisfied that the group of employees covered by the Agreement was fairly chosen.
Unlawful terms – s.186(4)
Section 186(4) of the Act requires the Commission to be satisfied that the Agreement does not include any unlawful terms.
I have considered the terms of the Agreement and am satisfied it does not include any unlawful terms.
Designated outworker terms – s.186(4A)
Section 186(4A) of the Act requires the Commission to be satisfied that the Agreement does not include any designated outworker terms.
I have considered the terms of the Agreement and am satisfied it does not include any designated outworker terms.
Nominal expiry date – s.186(5)
Section 186(5) of the Act requires the Commission to be satisfied that:
(a)the Agreement specifies a date as its nominal expiry date; and
(b)the date will not be more than 4 years after the day on which the Commission approves the Agreement.
Clause 5 of the Agreement specifies that the Agreement’s nominal expiry date will be 31 December 2025 and, as such, I am satisfied that the requirements of s.186(5) of the Act have been met.
Dispute settlement term – s.186(6)
Section 186(6) of the Act requires the Commission to be satisfied that the Agreement includes a term:
(a)that provides a procedure that requires or allows the Commission, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i)about any matters arising under the agreement; and
(ii)in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
The Agreement includes a term at clause 28 of the Agreement dealing with dispute resolution and I am satisfied that it meets the requirements in s.186(6) of the Act.
Additional requirements – s.187
Section 187 of the Act sets out additional requirements that must be met before the Commission approves an enterprise agreement under section 186. I am satisfied that the requirements in s.187 as are relevant to the Agreement have been met.
Errors in the Agreement
The Applicant has identified that there are cross-referencing errors in the Agreement and seeks for the Commission to exercise its discretion under s.586(2) of the Act to make corrections to the Agreement. A description of the errors is provided below.
| Agreement clause | Agreement page | Description of typographical error |
| 24(5)(a)(vi) | 36 | The reference to ‘clause 20(8)’ should be ‘clause 20(9)’. |
| 24(5)(a)(vii) | 36 | The reference to ‘clause 20(8)’ should be ‘clause 20(9)’. |
| 26(1)(b) | 41 | The reference to ‘subclause 20(8)’ should be ‘subclause 20(9)’. |
| 26(18)(d)(ii) | 48 | The reference to ‘subclause 17(c)’ should be ‘subclause (17)(c)’. |
| Schedule 4 (Education support class Level 1 Range 2) | 75 (text line 5) | The reference to ‘clause 2.6.1’ should be ‘section 2.4.1’. |
| Schedule 4, Education support class Level 1 Range 3 | 79 (text line 6) | The reference to ‘clause 2.6.1’ should be ‘section 2.4.1’. |
It is apparent to me that the errors identified by the Applicant are typographical cross-referencing errors and no party raised a different view during the hearing or raised a concern with the Applicant’s proposal that I make the amendments.
However, in Advantaged Care Pty Ltd v Health Services Union,[5] a Full Bench of the Commission considered the power in s.602 of the Act for the Commission to correct an error in relation to its decisions, finding it could not be exercised to correct an error in an enterprise agreement. While the decision dealt with s.602 of the Act and not s.586, having considered the principles in the Full Bench decision, I have decided not to correct the errors in the Agreement pursuant to s.586 of the Act in the manner sought by the Applicant. The Full Bench in Advantaged Care Pty Ltd v Health Services Union did however state:
“[47] Further, as the Deputy President observes, in circumstances of obvious error, defect or irregularity, the FW Act provides other means for rectification. Any ‘obvious error, defect or irregularity’ may be addressed by a variation of the agreement approved by a majority of the affected employees, in accordance with s.210 or by the Commission varying the agreement to remove an ambiguity or uncertainty, pursuant to s.217.”
A party is at liberty to apply for a variation pursuant to ss.210 or 217 of the Act, however I note that, for the purposes of this application, I am able to discern the intention of the clauses and the errors do not impact my assessment of the Agreement.
Employee bargaining representative concerns
A Form F18A declaration was filed by Mr Spicer, a bargaining representative for a group of five principals. The Form F18A declaration indicates that Mr Spicer does not wish to advise the Commission that the employees he represents disagree with one or more statements in the Form F17. The response to question 4 of the Form F18A does however indicate that Mr Spicer and the employees he represents do not support approval of the Agreement and raises a number of concerns.
By way of summary, these concerns relate to Agreement content, suggest some changes to the Agreement and express the concern that the increases in the Agreement undervalue the work of teachers and that a higher increase is needed considering rises in the cost of living. Mr Spicer addressed each of the concerns raised at the hearing. I have considered each of these concerns and do not consider that they raise matters that would impact my assessment of the better off overall test or the balance of considerations that I am required to have regard to under the Act in deciding whether or not to approve the Agreement.
Other employee concerns
Ms Usher raised other concerns in her written submissions during the hearing. Among these were concerns about the impacts of COVID-19, staff shortages in the industry impacting workloads, levels of supervision, a need to take on extra work in addition to additional responsibilities, staff turnover due to challenges faced and alleged underpayment. While I am sympathetic to the challenges that may be facing the sector, these concerns are not relevant to the specific considerations that I need to take into account under the Act.
Ms Usher also makes a number of recommendations including suggested amendments to the Agreement. Ms Usher proposes that a consultative teacher and principal committee comprised of union and non-union members be convened to propose amendments and adjustments to the Agreement. As noted above, Mr Spicer also made comments about the Agreement content and suggestions about how it could be changed. However, I note that, as the Agreement has been made and agreed by a majority of employees who cast an eligible vote, I am unable to amend it and, if the requirements of the Act are met in relation to its approval, I must approve the Agreement.
The Commission did receive a small number of further emails in relation to the application raising various concerns, which is unsurprising given the number of people covered by the Agreement and that among those employees are those who do not support the Agreement. Employees who raised these concerns prior to hearing were provided with the opportunity to be heard in relation to this matter however, as I have noted, only Ms Usher appeared at the hearing.
By way of summary, among the emails received by the Commission, concerns of the following nature were raised:
· concerns that the Agreement was negotiated before rates of inflation became higher and before the Commission’s annual minimum wage review;
· concerns that the process of voting was flawed, however there is no supporting evidence accompanying these concerns;
· concerns about the conduct of the union that the Agreement was not explained or understood; and
· a general belief that the Agreement is not fair.
I have considered these emails however there is no supporting evidence before the Commission accompanying the general description of the concerns or information that would lead me to a different conclusion in relation to the considerations I am required to have regard to under the Act. Further, many of these concerns do not relate to the specific considerations that I am required to take into account under the Act.
Conclusion
On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.
The Australian Education Union, the Australian Principals Federation, the CPSU, Community and Public Sector Union and the Australian Nursing and Midwifery Federation, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 July 2022. The nominal expiry date of the Agreement is 31 December 2025.
COMMISSIONER
Appearances:
Mr H Howard of Counsel for the Applicant, instructed by Ms L Connor of MinterEllison.
Mr M McIver and Mr J Mullaly for the Australian Education Union.
Ms M Baldini and Ms N Brown for the Australian Nursing and Midwifery Federation.
Ms T King for the Australian Principals Federation.
Mr D Anthony for the CPSU, the Community and Public Sector Union.
Mr C Spicer on his own behalf.
Ms C Usher on her own behalf.
Hearing details:
2022.
Sydney (by Video using Microsoft Teams).
July 5.
[1] [2010] FWAFB 4602.
[2] [2015] FWCFB 3545.
[3] Ibid, [29].
[4] [2017] FWCFB 2236.
[5] [2021] FWCFB 453.
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