Unschooled: Catholic Employer Defeats Union Claim
9 July 2019
In a recent decision, the Federal Court handed down good news for employers, finding that organisations that run schools and other ventures are not required to apply school-based enterprise agreements to employees that do not work in schools.
As well as running Mater Dei School, Mater Dei also ran a Living Skills Program. The Program focused on developing independent living skills for children with disabilities at a residential location separate to the School, although students of the Mater Dei School were able to access the Program.
At the end of 2016, the Program ended and Ms Farrell, a Social Educator with the Program, was made redundant. The Independent Education Union (IEU), who represented Ms Farrell, subsequently claimed that Ms Farrell had been incorrectly paid under the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).
They instead asserted she should have been paid under Support Staff enterprise agreements which applied to employees working in Mater Dei School. The IEU argued that Ms Farrell either worked in the Mater Dei school or that the Living Skills Program was a school in its own right.
CCER reviewed the coverage provisions of the relevant instruments and agreed with Mater Dei that Ms Farrell did not work in a school and had been correctly covered by the SCHADS Award. The IEU refused to concede and commenced an underpayment claim on behalf of Ms Farrell in the Federal Court.
The Federal Court agreed with Mater Dei and CCER and determined that Ms Farrell was not covered by the enterprise agreements that applied to School Support Staff.
Justice Bromwich found that Ms Farrell did not work in the Mater Dei school (and that it was specifically the Mater Dei school that she would need to work at in order for the enterprise agreements to apply to her). Ms Farrell also did not meet the definition of “an employee” due to the nature of the work she performed (as the work performed was not covered in the classifications of the support staff agreements).
It was also noted that the list of occupations that were excluded from coverage in the support staff agreements was not exhaustive. Jobs that were not covered were listed by way of abundant caution.
Many of our members have multifaceted operations which include both schools and other ventures. This judgment confirms that the operation of enterprise agreements that cover schools is limited to those schools.
If you would like advice on the industrial instruments that apply to your organisation, contact us so we can give you peace of mind that you are applying the correct award or enterprise agreement. We can also assist should a dispute arise on any employment related matter and support you with responding to any claims made by employees or unions.
Please contact us on 9390 5255 or email us on email@example.com.
Further information on the case can be found here: Farrell v Mater Dei Limited  FCA 473