The Hills Christian Community School Inc. T/A The Hills Christian Community School

[2021] FWCA 3229

[2021] FWCA 3229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Hills Christian Community School Inc. T/A The Hills Christian Community School
(AG2021/5300)

THE HILLS CHRISTIAN COMMUNITY SCHOOL ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER PLATT	ADELAIDE, 4 JUNE 2021

Application for approval of The Hills Christian Community School Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as The Hills Christian Community School Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Hills Christian Community School Inc. T/A The Hills Christian Community School (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 1 June 2021.

[3] On 3 June 2021, 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] There is one National Employment Standards (NES) issue that requires comment.

[5] Clause 8.1 of the Agreement concerns Parental Leave. Clause 8.1(a)(3) of the Agreement states that any paid leave taken in accordance with clause 8.1(a)(1) will not count as service for any purpose. This appears to be inconsistent with s.22 of the Act. Clause 7.2 of the Agreement is a NES Precedence clause, in that it states that if any provision of the Agreement could be interpreted as providing a less favourable outcome to an employee than the NES, the NES will prevail to the extent of the inconsistency. As a result of the NES Precedence clause, clause 8.1(a)(3) will not apply to the extent that it is inconsistent with the meaning of service contained in s.22 of the Act.

[6] The Applicant has submitted an undertaking in the required form dated 3 June 2021. The undertaking deals with the following topics:

•  Clauses 34.2 and 49.2 will not apply for the term of the Agreement.

•  The application of clause 47.9 of the Agreement will be limited to the withholding of monies up to the equivalent of up to one weeks’ salary which has been authorised by the employee and is reasonable in the circumstances.

•  The employer agrees that the consultation clause, being clause 12 of the Agreement, will be made compliant with s.205 of the Act, in that the employer agrees to consider any views given by the employees about the impact of a change to an employee’s regular roster or ordinary hours of work and consult with an employee and their representative, which may be the Union or another representative that the employee appoints.

•  The grounds for summary dismissal under clause 29.1(c) will be limited to serious misconduct as defined in the Fair Work Regulations 2009.

•  The employer will pay casual OHSC employees the overtime rates in the Educational Services (Schools) General Staff Award 2020 for time worked outside of the span of ordinary hours.

[7] 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 Independent Education Union of Australia (IEUA) requested a change of wording to the undertakings provided. The issues raised by the IEUA do not relate to any of the requirements of which I need to be satisfied to approve the decision. The Applicant did not consent to the change being made, and I do not have the power to amend the wording of the undertaking without the consent of the Applicant.

[8] 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.

[9] The 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.

[10] 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.

[11] 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 30 December 2023.

COMMISSIONER

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