Batchelor Institute of Indigenous Tertiary Education Trading AS Batchelor Institute Summary

[2025] FWCA 2672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Batchelor Institute of Indigenous Tertiary Education Trading AS Batchelor Institute

(AG2025/2351)

BATCHELOR INSTITUTE OF INDIGENOUS TERTIARY EDUCATION UNION ENTERPRISE AGREEMENT 2025

Educational services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 11 AUGUST 2025

Application for approval of the Batchelor Institute of Indigenous Tertiary Education Union Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the Batchelor Institute of Indigenous Tertiary Education Union Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Batchelor Institute of Indigenous Tertiary Education Trading AS Batchelor Institute (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 16 September 2022 and the Agreement was made on 4 July 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The National Tertiary Education Industry Union and the United Workers Union, who were bargaining agents, did not express a view as to whether the Agreement passes the BOOT.

During the process of application and review the Applicant discovered two typographical errors and drew them to my attention. In both cases I was satisfied that the errors were capable of correction under s.586 of the Act. The corrections were subsequently made to cl.32.1(a) to change the reference from “32(1)(0)” to “32.1(1)(H)” and to the table at page 84 to change “2.2.25%” to “2.25%”.

A number of NES-related issues were identified during the assessment process, as follows:

Annual leave is expressed in days rather than weeks.
Personal/Carers leave is expressed in weeks rather than days.
The process of Personal/Carers leave accrual for fixed term employees which is not progressive as per the Act.
The Jury Duty provisions deal with payment in a manner that is inconsistent with the Act.
The abandonment of employment provisions may potentially deny an employee the benefits of s.117 of the Act.

In each case I am satisfied that the NES precedence clause found at cl.8 of the Agreement resolves these concerns.

A potential BOOT concern was identified with respect to maximum daily hours. I raised this with the Applicant and it advises that it does not require employees to work more than eight hours per day and it is not reasonably foreseeable that employees will be required to work more than eight hours per day during the life of the Agreement. On that basis I am satisfied that the concern is resolved.

A further potential BOOT concern was identified with respect to casual employees conducting nursing education sessions. The Applicant advises that it does not currently offer courses in nursing education and it is not reasonably foreseeable that it will do so during the life of the Agreement. On that basis I am satisfied that the concern is resolved.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The National Tertiary Education Industry Union and the United Workers Union each lodged a Form F18 statutory declaration giving 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 the Agreement covers the National Tertiary Education Industry Union and the United Workers Union.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 August 2025. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The Batchelor Institute of Indigenous Tertiary Education Trading AS Batchelor Institute applied for approval of the Batchelor Institute of Indigenous Tertiary Education Union Enterprise Agreement 2025 under section 185 of the Fair Work Act 2009. The agreement in question is a single enterprise agreement, which was made on 4 July 2025 and notified on 16 September 2022. The application was filed with the Fair Work Commission, which was tasked with determining whether the agreement met the requirements of the Fair Work Act, including the better off overall test (BOOT) as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.

The primary legal issues addressed by the court were whether the agreement passed the BOOT, whether the National Tertiary Education Industry Union and the United Workers Union, the bargaining agents, had agreed to be covered by the agreement, and whether the agreement complied with the National Employment Standards (NES). The court also had to consider whether the typographical errors identified in the agreement could be corrected under section 586 of the Fair Work Act and whether the written undertakings provided by the applicant would cause financial detriment to any employee or result in substantial changes to the agreement.

The court found that the agreement passed the BOOT and that the typographical errors identified could be corrected under section 586. The court was satisfied that the NES precedence clause in the agreement resolved the NES-related issues identified. The court also found that the applicant’s written undertakings would not cause financial detriment to any employee or result in substantial changes to the agreement. The court noted that the National Tertiary Education Industry Union and the United Workers Union had each lodged a Form F18 statutory declaration giving notice that they wanted the agreement to cover them. Therefore, in accordance with section 201(2) of the Act, the court found that the agreement covered the National Tertiary Education Industry Union and the United Workers Union.

The court approved the agreement, which will operate from 18 August 2025. The nominal expiry date of the agreement is 31 December 2026. The court took into account the written undertakings provided by the applicant, which were considered a term of the agreement. The court concluded that the agreement met all the requirements of the Fair Work Act and that it should be approved.

Batchelor Institute of Indigenous Tertiary Education Trading AS Batchelor Institute

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established