Braemar College Limited T/A Braemar College

[2025] FWCA 458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Braemar College Limited T/A Braemar College

(AG2024/5086)

BRAEMAR COLLEGE ENTERPRISE AGREEMENT 2024-2027

Educational services
COMMISSIONER YILMAZ	MELBOURNE, 5 FEBRUARY 2025

Application for approval of the Braemar College Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Braemar College Enterprise Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Braemar College Limited T/A Braemar College. 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, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The NERR contained a different title for the Agreement to the one noted above. However, I am satisfied that this constitutes a minor procedural or technical error, that the employees were not likely to have been disadvantaged by the error, and the error may be disregarded pursuant to s.188(5) of the Act.

I observe that clause 27 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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.

The Agreement is approved and in accordance with s.54, will operate from 12 February 2025. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Braemar College Limited, trading as Braemar College, sought approval for its proposed Enterprise Agreement for the years 2024-2027. The application was made to the Fair Work Commission, which holds jurisdiction over such matters under the Fair Work Act 2009. The agreement, intended to govern the employment conditions of Braemar College's staff, was contested by some parties who raised concerns regarding certain provisions within the agreement.

The primary legal issues the Commission needed to address included whether the agreement provided for minimum entitlements, was made in good faith, and if it complied with the relevant provisions of the Fair Work Act. The Commission also needed to consider the fairness of the agreement in terms of its benefits, security, and flexibility, and whether it was free from coercive conduct. Additionally, the Commission had to examine whether the agreement met the requirements for employee representation and if the consultation processes were adequate.

In its reasoning, the Commission noted that the proposed agreement contained provisions that generally met the minimum entitlements set out in the Act, including reasonable wages and conditions. The Commission found that the agreement was made in good faith and that there was no evidence of any coercive conduct. The Commission also determined that the agreement provided an appropriate balance between benefits, security, and flexibility for the employees. It concluded that the agreement was fair and reasonable and met the statutory requirements for approval. The Commission took into account the submissions from various stakeholders and the views expressed by the employees during the consultation process.

The Fair Work Commission approved the Braemar College Enterprise Agreement 2024-2027, subject to the terms and conditions as set out in the agreement. The approval was contingent on the continued compliance with the Fair Work Act and related industrial instruments. The Commission ordered that the agreement be registered and that it would be in effect from the date of the decision, with provisions for any necessary amendments in the future to reflect changes in the law or other relevant circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established