The Trustee for Christ College Trust T/A St Michael's Collegiate School

[2024] FWCA 2761

[2024] FWCA 2761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for Christ College Trust T/A St Michael’s Collegiate School

(AG2024/2277)

ST MICHAEL’S COLLEGIATE SCHOOL (GENERAL STAFF AND EARLY CHILDHOOD EDUCATION AND CARE STAFF) ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER MIRABELLA	MELBOURNE, 30 JULY 2024

Application for approval of the St Michael’s Collegiate School (General Staff and Early Childhood Education and Care Staff) Enterprise Agreement 2024.

1. The Trustee for Christ College Trust T/A St Michael’s Collegiate School (the Employer) has made an application for approval of an enterprise agreement known as the St Michael’s Collegiate School (General Staff and Early Childhood Education and Care Staff) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). 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 FW Act that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 13 December 2022.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 7 June 2024.

1. The Employer has provided written undertakings. A copy of the undertakings is attached 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

1. I observe that clause 33.2 regarding public holidays is likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 6(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 30 July 2024 and, in accordance with s.54, will operate from 6 August 2024. The nominal expiry date of the Agreement is 28 February 2027.

Variation

1. On 28 June 2024, my chambers notified parties that the Agreement lodged appeared to contain a referencing error in that clause 27.4(a)(i) referenced ‘clause Error! Reference source not found’. On 2 July 2024, the Employer filed a revised copy of page 43 of the Agreement amending the error identified.

1. I am satisfied that this error is an obvious error, defect or irregularity and I will amend the Agreement to replace the words ‘Error! Reference source not found’ in clause 27.4(a)(i) with ‘24.3’ pursuant to s.218A of the FW Act.

1. The variation will operate from 30 July 2024.

COMMISSIONER

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Annexure A