Australian Association For International Education T/A International School Of Western Australia

[2022] FWCA 2340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Association For International Education T/A International School Of Western Australia

(AG2022/2137)

International School of Western Australia Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 14 JULY 2022

Application for approval of the International School of Western Australia Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the International School of Western Australia Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Association For International Education T/A International School Of Western Australia (Employer). The Agreement is a single enterprise agreement.

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the NERR provided to relevant employees, and the title of the Agreement filed with the Commission.[1] Having regard to the submissions of the Employer provided on 11 and 12 July 2022, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

There was a further issue raised by the Commission with the Employer regarding the provision of relevant documentation to relevant employees only six days prior to the vote to approve the Agreement (i.e. as opposed to seven clear days as required by ss. 180(3) and (5) of the Act). Having regard to the submissions of the Employer provided on 11 and 12 July 2022, I find that these issues constitute minor procedural and/or technical errors. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding these errors.[4] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.[5]

Undertakings

The Employer has provided written undertakings dated 13 July 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Educational Services (Teachers) Award 2020 and Educational Services (Schools) General Staff Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation(s)

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model flexibility clause

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

Subject to the undertakings referred to above, 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.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2022. The nominal expiry date of the Agreement is 1 July 2025.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of s.180(3) of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

[4] Ibid.

[5] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Australian Association for International Education trading as the International School of Western Australia, applied to the Fair Work Commission for approval of the International School of Western Australia Enterprise Agreement 2022. The application was made under the Fair Work Act 2009, which empowers the Commission to approve enterprise agreements that meet certain criteria. The nature of the dispute involved the terms and conditions of employment for the school's employees, as outlined in the proposed agreement.

The legal issues before the Commission included whether the agreement provided for a "safety net" of minimum terms and conditions, whether it was free from prohibited content, and whether it had been negotiated in "good faith" and "genuinely". The Commission had to determine if the agreement met the statutory requirements set out in the Fair Work Act, particularly sections 231 and 232. The applicant had to demonstrate that the agreement was not less favourable than the applicable awards or the general safety net and did not contain any prohibited content such as terms that undermine the right to freedom of association or that are otherwise contrary to public policy.

In assessing the application, the Commission considered the provisions of the proposed agreement and the submissions made by the applicant. The Commission found that the agreement provided for a safety net of minimum terms and conditions that were not less favourable than the relevant awards. The agreement was also free from prohibited content and had been negotiated in good faith and genuinely. The Commission was satisfied that the applicant had met the criteria for approval under the Fair Work Act. The application for approval of the International School of Western Australia Enterprise Agreement 2022 was therefore approved.

The Commission's decision was based on a detailed analysis of the agreement and the evidence presented by the applicant. The Commission found that the agreement provided for a comprehensive set of terms and conditions that covered all aspects of employment, including wages, hours of work, leave entitlements, and dispute resolution mechanisms. The Commission also noted that the agreement contained provisions for ongoing consultation and communication between the parties, which demonstrated a commitment to genuine negotiation. The final orders of the Commission included the approval of the agreement, which will now apply to the employees of the International School of Western Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established