Sunrise Christian School Whyalla

[2019] FWCA 7423

[2019] FWCA 7423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sunrise Christian School Whyalla
(AG2019/3413)

SUNRISE CHRISTIAN SCHOOL WHYALLA ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER PLATT	ADELAIDE, 29 OCTOBER 2019

Application for approval of the Sunrise Christian School Whyalla Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Sunrise Christian School Whyalla Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sunrise Christian School Whyalla. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 25 September 2019.

[3] On 4 October 2019, 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.

[4] On 18 and 25 October 2019 hearings were conducted.

[5] The Independent Education union (IEU) contend that clause 8.3 of the Agreement is a discriminatory term within the meaning of s.195 of the Act and that as a result of s.194 of the Act the term is an unlawful term. Section 186(4) of the Act requires that the Commission be satisfied that the Agreement does not contain unlawful terms. In so far as an Agreement contains an unlawful term, s.253(2)(b) of the Act would render such term of no effect.

[6] The IEU contend that clause 8.3 is discriminatory under s.351 of the Act, as it treats males who take birth-related parental leave less favourably than women talking birth related parental leave.

[7] The IEU notes that s.7D of the Sex Discrimination Act 1984 (Cth) allows special measures intended to achieve equality between men and women, and that s.31 of that Act states that nothing in Division 1 or 2 renders it unlawful for a person to discriminate against a man on the grounds of his sex by reason only of the fact that the first mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.

[8] The IEU contend that the payment detailed in clause 8.3(a)(ii) of the Agreement does not arise as a result of pregnancy or breastfeeding and is not only in connection with childbirth. The IEU contend that the Agreement states that the measure is intended to recognise the impact of confinement on women’s careers and put the provision out of the coverage of s.31 of the Sex Discrimination Act 1984 (Cth).

[9] Section 351(1) of the Act relevantly provides that an employer must not take adverse action because of a person’s sex, family or carer’s responsibilities or pregnancy. However, s.351(1) of the Act does not apply to action that is not unlawful under any anti-discrimination law in force in the place where the action is taken - in this case, the State of South Australia. The relevant anti-discrimination laws in South Australia detailed in s.351(3) are the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 1984 (SA).

[10] Clause 8.3 of the Agreement provides as follows:

“8.3 Parental (maternity leave)

(a) The parental provisions of the NES are varied such that:

(i) For a female employee who is entitled to take, and does take, unpaid birth - related leave or adoption - related leave under section 70 of the Act, the first ten weeks of that leave will be paid parental (maternity) leave. Ten weeks paid leave is subject to the employee having at least one year's continuous service. An additional two weeks of paid leave for each additional year of completed service will be paid up to a maximum of 14 weeks as per the table below. This entitlement does not apply to casual employees.

Completed years of continuous service	Weeks of paid leave entitled to
12 months	10 weeks
2 years	12 weeks
3 years	14 weeks

(ii) Paid parental (maternity) leave is provided to support and assist women with the costs of confinement and recuperation associated with the birth of a child and to recognise the impact of the confinement on women's careers. For those adopting a child this leave provides support and assistance with the costs associated with adoption and recognizes the impact on the career of the parent.

(iii) The rate of payment for the first period of paid leave under this clause will be the Employee's fraction of time plus any regular allowances payable immediately before commencing the leave.

(iv) If an Employee receives a payment under this clause in respect of a period of parental (maternity) leave, and the Employee subsequently takes a further period of parental (maternity) leave in respect to the birth or placement of another child, the Employee will not be entitled to a further payment under this clause unless the Employee has returned to work at the School and accrued at least a further 12 months continuous service. This service can be at any FTE to qualify but the subsequent period of paid parental leave will be paid at the FTE worked in the 12 months immediately preceding the period of paid parental (maternity) leave. If these conditions are met, the Employee will be entitled to paid leave in accordance with clause 8.3 (a)(i).

(v) Employees taking paid parental (maternity) leave may request to be paid this leave at half their FTE for twice the duration. This request must be made in writing at least six weeks before the start of the leave.”

[11] Section 31 of the Sex Discrimination Act 1984 (Cth) provides as follows:

“Pregnancy, childbirth or breastfeeding

Nothing in Division 1 or 2 renders it unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first-mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.”

[12] It appears that clause 8.3(a)(i) provides for payment for the first 10 weeks of parental leave for women who are entitled to take birth-related or adoption leave under s.70 of the Act. Clause 8.3(a)(ii) advises that the paid leave is provided to support and assist women with the costs of confinement and recuperation associated with the birth of the child and to recognise the impact of the confinement on women’s careers, and in respect of adoption provides support and assistance with the costs associated with adoption and recognises the impact on the career of the parent.

[13] In my view, the provision of additional paid leave in relation to birth related leave, in the circumstances detailed in clause 8.3(a)(i), grants women a right or privilege associated with pregnancy, child birth as described in s.31 of the Sex Discrimination Act 1984 (Cth). In my view, the use of the term ‘by reason only’ in s.31 should not to be read so narrowly as to restrict the reasons to provide the right or privileges mentioned in s.31. In any event, it is a long bow to suggest that the impact on women’s careers does not arise from the pregnancy and/or child birth, and thus the matters detailed in clause 8.3 fall within the exception provided by s.31 of the Sex Discrimination Act 1984 (Cth).

[14] In my view, clause 8.3 of the Agreement is not a discriminatory term within the meaning of s.195 of the Act.

[15] The Applicant has submitted an undertaking in the required form dated 25 October 2019. The undertaking deals with the following topics:

•  Clauses 23.2(b), 22.5(e), 22.6(c) 38.5(b) and 39.9 of the Agreement will not be applied where they pertain to the withholding of salary and allowances when an employee fails to provide the notice of termination specified in clauses 23.2(a), 22.5(d), 22.6(b), 38.5(a) and 39.9.

•  Clauses 22.7(e) and 36.5(c) of the Agreement that relate to providing and forfeiting notice will not apply in respect of casual employees.

•  All part-time non-teaching employees will have their agreed working hours confirmed in writing specifying the number of hours worked each day, the days of the week the employee will work, the number of weeks of the school year the employee will work, and starting and finishing times each day.

•  Non-teaching employees who accrue time off in lieu (TOIL) of working overtime will have any accrued TOIL paid out upon their request at the appropriate penalty rate where the TOIL has not been used within 6 months, or upon notice of termination.

•  The ordinary hours of work for teaching employees will be consistent with clause 19 of the Educational Services (Teachers) General Staff Award 2010.

•  In clause 22.7(g) of the Agreement, concerning casual teaching employees working fewer than five consecutive school days, the rate for Band 1, Step 3 will be replaced by a Level 3 rate with a 25% casual loading.

•  The rates of pay set out in Schedule 6 of the Agreement will be entirely replaced by the rates set out in the following table:

[16] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[17] 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.

[18] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[19] The Independent Education Union of Australia, 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.

[20] 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.

[21] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 October 2021.

COMMISSIONER

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