Westminster School Inc. T/A Westminster School

[2024] FWCA 4164

[2024] FWCA 4164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Westminster School Inc. T/A Westminster School

(AG2024/3605)

WESTMINSTER SCHOOL TEACHING STAFF AND SCHOOL ASSISTANTS ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER ALLISON	MELBOURNE, 27 NOVEMBER 2024

Application for approval of the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2024

1. Westminster School Inc. has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2024 (the Agreement).
   
   

2. 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) I note that the Agreement covers the organisation.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Westminster School Inc. Enterprise Agreement 2023” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error. 

1. I note that Clause 4.3.1.1 may be inconsistent with the National Employment Standards as it provides for an ordinary maximum hours of 75 hours per fortnight which may allow the Employer to require an employee to work an unreasonable number of hours in excess of the 38 hours per week maximum provided for by section 62(2) of the Act. However, noting the paragraph at the head of Part 2 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 Agreement is silent in relation to Schedule A of the Educational Services (Teachers) Award 2020 (the Teachers Award), which provides for working conditions and entitlements for Teachers working in early childhood services operating for at least 48 weeks per year. The Employer has provided an undertaking that no teacher employed in the early learning centre operated by the Employer is required to work 48 weeks or more per year such that schedule A of the Teachers Award is not applicable.

1. Clause 10.3 of the Educational Services (Schools) General Staff Award 2020 (the General Staff Award) sets out that at the time of engagement, the employer and the part time employee will agree in writing on a regular pattern of work specifying working days and hours on commencement. The Agreement does not provide a similar entitlement. The Employer has provided a written undertaking to resolve this issue.
   
   

2. Clause 4.2.3 of the Agreement does not appear to specifically provide for overtime to be paid to part-time employees who work less than 75 hours per fortnight. Clause 10.5 of the General Staff Award provides that employees may be required to work reasonable additional hours in accordance with Clause 21.3 (overtime). The Employer has provided a written undertaking which gives effect to clause 21.3 of the General Staff Award.

1. The Agreement has a number of provisions relating to overtime which appear less beneficial than the provisions in the General Staff Award. To address this the Employer has provided the following undertakings:

• In addition to overtime provisions in 4.3.2 of the Agreement, overtime will also be paid for work outside an employee’s ordinary rostered hours.

• Clause 4.3.2.4 of the Agreement is varied such that where a School Assistant employee works more than three hours overtime between Monday to Saturday, the overtime rate after three hours will be 200%.

1. Clause 4.3.2.2 of the Agreement provides that employees engaged at Levels 6-7 are not eligible to receive overtime payments. Clause 4.3.2.3 of the Agreement provides that employees at level 5 who are paid an annualised salary for full time employment are not eligible to receive overtime payments, except by prior written mutual agreement between the employee and the Employer. Depending on the number of overtime hours worked, employees at this level may not be better off under the Agreement. To address this issue the Employer has provided a written undertaking committing to annual reconciliations to ensure employees engaged at Levels 5-7 are being paid more than they would be under the Award for ordinary hours and overtime.

1. 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, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 4 December 2024. The nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

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Annexure A