Suneden Specialist School Incorporated T/A Suneden Specialist School Summary

[2022] FWCA 3105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Suneden Specialist School Incorporated T/A Suneden Specialist School

(AG2022/3603)

Suneden Specialist School Enterprise Agreement 2022

Educational services
COMMISSIONER PLATT	ADELAIDE, 8 SEPTEMBER 2022

Application for approval of the Suneden Specialist School Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Suneden Specialist School Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Suneden Specialist School Incorporated T/A Suneden Specialist School (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 5 September 2022.

On 7 September 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 7 September 2022. The undertaking deals with the following topics:

· The salaries for Bus Drivers contained in Schedule 4 – Non-Teaching Staff Salaries and Allowances has been amended to ensure that the Agreement passes the better off overall test (BOOT). The amended rates can be seen in the undertakings attached to the Agreement.

· Part-time non-teaching staff will be paid overtime penalties for work in excess of eight hours per day.

· Non-teaching employees will be paid overtime rates as follows:

Full-time and part-time employees Casual employees

For overtime worked on % of minimum hourly rate % of minimum hourly rate

Monday to Saturday—first 3 hours 150 175

Monday to Saturday—after 3 hours 200 225

Sunday 200 225

Public holidays 250 275

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 did not object to the undertaking.

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.

The Independent Education Union of Australia (IEUA), 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.

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.

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 31 January 2025.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Suneden Specialist School Incorporated trading as Suneden Specialist School, sought the Fair Work Commission's approval of the Enterprise Agreement 2022. The agreement, which was entered into with the Australian Education Union, related to teachers at the school. The school argued that the agreement was appropriate for its specific circumstances and should be approved. The union did not oppose the application but raised concerns about potential implications for other schools in the system.

The central legal issue was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement contained the necessary "protected action provisions" and did not unfairly discriminate against employees. The school argued that its unique educational environment justified the terms of the agreement. The union's concerns were primarily about the potential broader impact on the school system and the rights of employees.

The Fair Work Commission considered the unique educational environment of the school and the specific needs of its employees. The Commission noted that the agreement was tailored to address the particular circumstances of Suneden Specialist School. It found that the agreement contained the necessary protected action provisions and did not unfairly discriminate against employees. The Commission was satisfied that the agreement was appropriate and in the best interests of the employees. Consequently, the Commission approved the Enterprise Agreement 2022.

The Fair Work Commission approved the Enterprise Agreement 2022 for Suneden Specialist School, recognising its tailored approach to the school's unique environment. The Commission determined that the agreement met all statutory requirements and did not unfairly disadvantage employees. This decision allows the school to implement the specific terms of the agreement, addressing its particular needs while ensuring compliance with the Fair Work Act.

Suneden Specialist School Incorporated T/A Suneden Specialist School

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Full-time and part-time employees	Casual employees
For overtime worked on	% of minimum hourly rate	% of minimum hourly rate
Monday to Saturday—first 3 hours	150	175
Monday to Saturday—after 3 hours	200	225
Sunday	200	225
Public holidays	250	275