Bethany Christian School Inc. T/A Bethany Christian School

[2024] FWCA 1166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185 - Application for approval of a single-enterprise agreement

Bethany Christian School Inc. T/A Bethany Christian School

(AG2024/767)

BETHANY CHRISTIAN SCHOOL ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER TRAN	MELBOURNE, 2 APRIL 2024

Application for approval of the Bethany Christian School Enterprise Agreement 2024

Bethany Christian School Inc. T/A Bethany Christian School has applied for approval of an enterprise agreement known as the Bethany Christian School Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (the Act).

The Agreement is a single enterprise agreement.

It appears that the Employer issued an earlier version of the Notice and therefore did not comply with s 174(1A). Aside from use of the earlier version of the Notice, there were no substantive differences. I have previously detailed the differences between the pre-6 June 2023 and post-6 June 2023 Notice in Application by AJS Electrical Contracting Pty Ltd T/A AJS Electrical Contracting [2023] FWC 3343 at [34]. I consider the use of the earlier Notice is a minor technical error.

I am satisfied with the Employer’s and the Union’s responses to my concerns regarding the use of the earlier Notice and I disregard the error in accordance with s 188(5) of the Act as I am also satisfied that employees were not disadvantaged by the error.

I observe that the following clause is likely to be inconsistent with the National Employment Standards

· Clause 22.8.2(a) – Redundancy entitlements

As the Agreement contains a National Employment Standards precedence clause at clause 9 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 9 April 2024.

In accordance with clause 3 of the Agreement, the nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bethany Christian School Inc. sought approval of its 2024 Enterprise Agreement from the Fair Work Commission, which was opposed by the Australian Education Union (AEU). The school's primary argument was that the agreement was necessary to address the financial sustainability of the institution, particularly given the ongoing impact of the COVID-19 pandemic. The AEU contended that the agreement introduced terms that were less favourable to its members than those contained in the relevant award.

The central legal issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was in the public interest, if it was free from coercive conduct, and if it was made in good faith. Additionally, the Commission examined whether the agreement provided a safety net that was no less favourable than the applicable award.

In its decision, the Commission found that the agreement did meet the statutory requirements for approval. It determined that the agreement was in the public interest due to the financial pressures faced by the school, and that there was no evidence of coercive conduct during the bargaining process. The Commission also held that the agreement was made in good faith and provided a safety net that was no less favourable than the award, thereby satisfying the criteria for approval. Consequently, the application for the approval of the 2024 Enterprise Agreement was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established