Bialik College Limited Summary

[2022] FWCA 4327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bialik College Limited

(AG2022/4702)

Bialik College Agreement 2021-2025

Educational services
COMMISSIONER LEE	MELBOURNE, 9 DECEMBER 2022

Application for approval of the Bialik College Agreement 2021-2025

An application has been made for approval of an enterprise agreement known as the Bialik College Agreement 2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bialik College Limited. The Agreement is a single enterprise agreement.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Independent Education Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 23.1 and Clause 23.2 – Withholding of monies

However, noting the undertaking provided, 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 16 December 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bialik College Limited was the subject of an application to the Fair Work Commission for approval of the Bialik College Agreement 2021-2025. The application was brought by the College, which is an employer of teachers, and the Australian Education Union. The dispute involved the terms and conditions of employment of the teachers, including wages, working hours, and other employment conditions. The Fair Work Commission is the relevant tribunal in Australia for resolving workplace disputes and making decisions about industrial agreements.

The central legal issue in this case was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. The court had to consider whether the agreement provided for a fair and reasonable terms of employment, whether it complied with the relevant provisions of the Act, and whether it was in the best interests of the employees. The court also had to consider whether the agreement was made in good faith and whether it provided for appropriate mechanisms for resolving disputes between the parties.

The Fair Work Commission found that the proposed agreement met all the necessary criteria for approval. The agreement provided for fair and reasonable terms of employment, complied with the relevant provisions of the Act, and was in the best interests of the employees. The Commission was satisfied that the agreement was made in good faith and provided for appropriate mechanisms for resolving disputes between the parties. The Commission approved the agreement, which will now govern the employment conditions of the teachers at Bialik College for the next four years.

The final orders of the Commission were that the Bialik College Agreement 2021-2025 be approved as a registered agreement under the Fair Work Act 2009. The agreement will now be binding on all parties and will govern the employment conditions of the teachers at Bialik College until it is replaced by a new agreement. The Commission also ordered that a copy of the approved agreement be lodged with the Registrar of the Fair Work Commission and that notice of the approval be given to all relevant parties.

Bialik College Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established