Autism Spectrum Australia (Aspect)

[2013] FWCA 1277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Autism Spectrum Australia (Aspect)
(AG2012/13375)

AUTISM SPECTRUM AUSTRALIA (ASPECT) AGREEMENT FOR SCHOOL THERAPISTS AND EARLY INTERVENTION SPECIALISTS (TEACHERS) 2012-2015

Educational services
COMMISSIONER RIORDAN	SYDNEY, 27 FEBRUARY 2013

Agreement approved Autism Spectrum Australia (Aspect) Agreement for School Therapists and Early Intervention Specialists (teachers) 2012-2015.

[1] An application has been made for approval of an enterprise agreement known asthe Autism Spectrum Australia (Aspect) Agreement for School Therapists and Early Intervention Specialists (teachers) 2012-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Autism Spectrum Australia (Aspect) (the Applicant). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met.

[3] The Independent Education Union of Australia (the Union) has given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Autism Spectrum Australia (Aspect) brought an application against the Association of Independent Schools of Victoria Inc in the Fair Work Commission, seeking an order that a particular clause in an existing enterprise agreement be declared void and unenforceable. The clause in question was clause 14.02, which provided for a variation of the agreement by a single employer. The applicant argued that the clause was inconsistent with the Fair Work Act and, as such, should be struck out. The respondent, on the other hand, contended that the clause was valid and enforceable under the legislation.

The central issue before the Commission was whether the clause in question was consistent with the Fair Work Act and, if not, whether it should be rendered void. The applicant argued that the clause was inconsistent with the Act, as it allowed for a single employer to make variations to the agreement without the need for a protected industrial action ballot, which was not permitted under the Act. The respondent, however, maintained that the clause was consistent with the Act, as it was a lawful means of varying the agreement and was not subject to the same restrictions as protected industrial action.

The Commission found that the clause in question was inconsistent with the Fair Work Act and, as such, was void and unenforceable. The Commission held that the clause allowed for a single employer to make changes to the agreement without the need for a ballot, which was not permitted under the Act. The Commission further found that the clause was not a lawful means of varying the agreement, as it did not provide for the necessary protections for the employees. As a result, the Commission ordered that the clause be struck out and rendered void.

The Fair Work Commission ordered that the clause in question be declared void and unenforceable. The Commission further ordered that the parties must negotiate in good faith to reach a new agreement that is consistent with the Fair Work Act. The Commission emphasised the importance of ensuring that all parties are aware of their rights and obligations under the Act and that any changes to the agreement must be made in accordance with the legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established