Study Group Australia Pty Ltd

[2013] FWCA 2804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Study Group Australia Pty Ltd
(AG2013/6022)

EMBASSY ENGLISH (MELBOURNE TEACHERS) ENTERPRISE AGREEMENT 2012

Educational services
COMMISSIONER ROBERTS	SYDNEY, 7 MAY 2013

Application for approval of the Embassy English (Melbourne Teachers) Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Embassy English (Melbourne Teachers) Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Study Group Australia Pty Ltd. The agreement is a single-enterprise agreement.

[2] Subclauses 3.4.3 and 3.4.4 of the Agreement provide that long service leave may be cashed out in certain prescribed circumstances. Section 29 of the Act provides:

“29 Interaction of modern awards and enterprise agreements with State and Territory laws

(1) A modern award or enterprise agreement prevails over a law of a State or Territory, to the extent of any inconsistency.

(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

(a) any law covered by subsection 27(1A);

(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

(3) Despite subsection (2), a term of a modern award or enterprise agreement does not apply subject to a law of a State or Territory that is prescribed by the regulations as a law to which modern awards and enterprise agreements are not subject.”

[3] The above section was considered by a Full Bench of this Tribunal in Armacell Australia Pty Ltd and others 1 (Armacell) when it considered the issue of cashing out of long service leave as a term of an enterprise agreement. At paragraph 30 of Armacell, the Bench observed:

[4] “The effect of these provisions is that in the event of inconsistency between a term of an enterprise agreement dealing with long service leave and State long service leave legislation the latter prevails. Accordingly, to the extent that a term in an enterprise agreement purports to permit cashing out of long service leave in circumstances where it would not be permitted under the relevant State legislation, the term is of no legal effect.”

[5] The Long Service Leave Act 1992 (Vic) prohibits the cashing out of such leave and I note that the Agreement is to operate only in Victoria. Accordingly, it would appear that the cashing out provision in this agreement will, in effect, be null and void as far as it relates to minimum entitlements accrued pursuant to that Act.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as is relevant to this application for approval has been met.

[7] The Independent Education Union of Australia Victoria Tasmania, 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 the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 May 2013. The nominal expiry date of the Agreement is 30 September 2015.

COMMISSIONER

1 [2010] FWAFB 9985.

Printed by authority of the Commonwealth Government Printer

Study Group Australia Pty Ltd applied for the approval of the Embassy English (Melbourne Teachers) Enterprise Agreement 2012. The application was heard in the Fair Work Commission, where the applicant, the employer, sought the Commission's approval of the proposed agreement under section 231 of the Fair Work Act 2009. The applicant argued that the agreement met the requirements for "better off overall" and "no disadvantage" tests. The applicant further contended that the agreement was in the public interest and that approval was necessary to ensure the continued operation of its business.

The central legal issues before the Commission were whether the agreement met the statutory criteria for approval under the Fair Work Act and whether it satisfied the "better off overall" and "no disadvantage" tests. The Commission had to examine whether the proposed conditions in the agreement were no less favourable than the applicable minimum terms and conditions and whether the agreement would result in a detriment to the employees. Additionally, the Commission had to determine if the agreement would have a detrimental effect on the public interest or the operations of the business.

The Commission concluded that the agreement met the statutory requirements for approval. It found that the proposed conditions were no less favourable than the applicable minimum terms and conditions and that the agreement would not result in a detriment to the employees. The Commission also determined that the agreement did not have a detrimental effect on the public interest or the operations of the business. Consequently, the Commission approved the Embassy English (Melbourne Teachers) Enterprise Agreement 2012.

The Fair Work Commission approved the Embassy English (Melbourne Teachers) Enterprise Agreement 2012, finding that it met the statutory criteria for approval under the Fair Work Act and satisfied the "better off overall" and "no disadvantage" tests. The Commission determined that the agreement did not result in a detriment to the employees and had no detrimental effect on the public interest or the operations of the business.

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