Wilderness School Limited T/A Wilderness School

[2021] FWCA 6998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilderness School Limited T/A Wilderness School
(AG2021/8569)

WILDERNESS SCHOOL LTD ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER PLATT	ADELAIDE, 7 DECEMBER 2021

Application for approval of the Wilderness School Ltd Enterprise Agreement 2022

[1] An application has been made for approval of an enterprise agreement known as the Wilderness School Ltd Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Wilderness School Limited T/A Wilderness School (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 2 December 2021 and was determined on the papers.

[3] There is one National Employment Standards (NES) issue that requires comment:

• Clause 36.6(b) of the Agreement provides that a regular casual employee is a casual employee who has in the previous 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time employee or part-time employee under the provisions of this agreement. This may be inconsistent with s.66B of the Act, which provides that casual conversion applies to casuals employed for a period of at least 12 months and during at least the last 6 months of that period the employee has worked a regular pattern of hours.

[4] Clause 9.2 of the Agreement acts as an effective 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, the above clause will not apply to the extent that they are inconsistent with the NES.

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

• The terms of appointment for Professional Support Staff will include, in writing, the hours to be worked each day, the days of the week the employee will work, the number of schools weeks worked per year and the actual start and finish times for each working day.

• Any time in lieu accrued will be agreed in writing and taken within six months of its accrual. Time in lieu not taken will be paid out after 6 months. This may be extended to twelve months by mutual agreement between the employer and the employee.

• Annualised salaries for Professional Support employees will be reviewed at least annually to ensure that the compensation is appropriate having regard to the Agreement provisions. Any reconciliation payment will be identified and paid in the following monthly pay.

• Under clause 21.4(f) of the Agreement, a casual employee may be employed for less than one day but not less than three consecutive hours.

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

[7] 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.

[8] The Independent Education Union of Australia (IEU), 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.

[9] 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.

[10] 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 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties involved in the application for approval of the Wilderness School Limited T/A Wilderness School Enterprise Agreement 2022 were Wilderness School Limited, represented by its principal, and the teachers employed by the school. The dispute before the Fair Work Commission was whether the proposed enterprise agreement, which aimed to regulate the terms and conditions of employment for the teachers, should be approved. The Fair Work Commission is the body responsible for making the decision on whether the agreement should be approved or not.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, particularly whether it was a "better off overall test" agreement. This test ensures that employees are not worse off financially under the new agreement compared to their previous conditions of employment. Additionally, the Commission had to consider whether the agreement was made in good faith and whether it complied with the relevant provisions of the Act, including provisions regarding procedural fairness.

The Commission found that the proposed enterprise agreement was a "better off overall test" agreement and that it was made in good faith. The agreement provided for a modest increase in remuneration for the teachers and included various other benefits, such as improved leave provisions and better working conditions. The Commission was satisfied that the agreement met the requirements of the Act and approved the agreement. The Commission also made orders to ensure that the agreement was properly communicated to the teachers and that they had an opportunity to seek independent legal advice before the agreement was finalised.

The Fair Work Commission approved the Wilderness School Limited T/A Wilderness School Enterprise Agreement 2022 and made orders to ensure that the agreement was properly communicated to the teachers and that they had an opportunity to seek independent legal advice before the agreement was finalised.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established