Swan Christian Education Association Inc. T/A Swan Christian Education Association

[2024] FWCA 4350

[2024] FWCA 4350

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swan Christian Education Association Inc. T/A Swan Christian Education Association

(AG2024/4396)

SWAN CHRISTIAN EDUCATION ASSOCIATION INC. SUPPORT STAFF ENTERPRISE AGREEMENT 2025

Educational services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 9 DECEMBER 2024

Application for approval of the Swan Christian Education Association Inc. Support Staff Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Swan Christian Education Association Inc. Support Staff Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Swan Christian Education Association Inc. T/A Swan Christian Education Association (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 16 April 2024 and the Agreement was made on 4 November 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. Neither The Independent Education Union of Australia or any other bargaining agent expressed a view as to whether the Agreement passes the BOOT.

1. A small number of potential BOOT concerns were identified during the process of assessing the Agreement.  These involved broken shifts, roster alterations and breaks between periods of duty.  The Applicant has provided information regarding these issues and I am satisfied that it is not reasonably foreseeable that any of the circumstances which would trigger the relevant Award entitlement will occur during the life of the Agreement.  As such I am satisfied that these concerns are resolved.

1. The Applicant has provided written undertakings as provided for 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. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. I note that there was a minor technical error made with respect to the NERR but I am satisfied I can disregard this error in accordance with s.188(5) of the Act.

1. As the Agreement did not contain a compliant flexibility clause, the model flexibility clause is taken to be a term of the Agreement.

1. The Independent Education Union of Australia (the Union) lodged a Form F18 statutory declaration giving 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 the Agreement covers the Union.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2024. The nominal expiry date of the Agreement is 31 December 2027.

DEPUTY PRESIDENT

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Annexure A: