The Anglican Church of Australia Collegiate School of St Peter T/A St Peter's College

[2023] FWCA 778

[2023] FWCA 778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

The Anglican Church of Australia Collegiate School of St Peter T/A St Peter's College

(AG2023/466)

St Peter’s College Enterprise Agreement 2023 - 2026

Educational services
COMMISSIONER PLATT	ADELAIDE, 10 MARCH 2023

Application for approval of the St Peter’s College Enterprise Agreement 2023 – 2026

1. An application has been made for approval of an enterprise agreement known as the St Peter’s College Enterprise Agreement 2023 – 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Anglican Church of Australia Collegiate School of St Peter T/A St Peter's College (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 7 March 2023.

1. On 10 March 2023, 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.

Pre-Approval Matters

1. On 6 February 2023 the Applicant advised the employees to be bound by the Agreement that an electronic ballot would be conducted on 15/16 February 2023. Owing to concerns about the accuracy of the voter roll the ballot was deferred to 16/17 February 2023. Employees were advised of this change by email on the morning of 16 February 2023. In order to increase voter participation the cut off period of 10am on 17 February was extended to 5pm.  Employees were advised of the extension at 9.59am on 17 February 2023.  Ordinarily I would expect that changes in the ballot process would be communicated 7 days prior to the ballot.  However I note that this was an electronic ballot, that the participation rate was the same as the ballot conducted in the previous Agreement ballot, and that the IEU does not submit that any employee was disadvantaged. 

1. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

National Employment Standards

1. The following National Employment Standard (NES) issue requires comment:

· Clause 19 of the Agreement outlines the relevant personal/carer’s leave entitlements. However, the Agreement fails to provide 2 days of unpaid leave for each occasion in relation to carer’s leave as provided in section 102 of the Fair Work Act 2009 (Cth).

1. Clause 8.1 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clause will not apply to the extent that they are inconsistent with the NES.

Other matters

1. During the hearing, the IEU disputed the accuracy of the classification translation table contained in the Form F17. The IEU confirmed that this issue does not impact on the Agreement meeting the BOOT, and therefore is not an issue I need to determine.

1. The Applicant has submitted an undertaking in the required form dated 9 March 2023. The undertaking deals with the following topic:

·   Clause 32.(b) relating to the withholding of monies on termination of employment if an employee does not provide the required notice, will only apply to employees who are at least 18 years of age.

1. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) that responded, supported the undertaking.

1. 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.

1. 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.

Approval

1. 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.

1. 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 2026.

COMMISSIONER

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