Braemar College Ltd. t/a Braemar College Summary

[2022] FWCA 249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Braemar College Ltd. t/a Braemar College

(AG2021/8964)

Braemar College Enterprise Agreement 2021-2023

Educational services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 31 JANUARY 2022

Application for approval of the Braemar College Enterprise Agreement 2021-2023.

Braemar College Ltd. has applied for approval of a single enterprise agreement known as the Braemar College Enterprise Agreement 2021-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which the application was made, and do so pursuant to s.586(b).

Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns.

Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives either supported or did not oppose the 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

Noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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 Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

The Agreement was approved on 31 January 2022 and, in accordance with s.54, will operate from 7 February 2022. The nominal expiry date of the Agreement is 31 December 2023.

For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details.[1]

DEPUTY PRESIDENT

Annexure A

[1] The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Braemar College, sought approval for its enterprise agreement 2021-2023, which it had negotiated with the Independent Education Union of Australia (Vic Branch). The respondents, comprising several unions, challenged the agreement on various grounds. The matter was heard in the Fair Work Commission (FWC). The primary issue before the FWC was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the respondents argued that the agreement was not a "good faith" negotiation outcome as it failed to adequately protect employees' rights and interests. They contended that the agreement contained provisions that were not in the best interests of the employees and did not meet the "better off overall test" (BOOT).

The FWC examined the agreement clause by clause, considering whether each provision was made in good faith and whether it was in the best interests of the employees. The FWC noted that while some provisions raised legitimate concerns, others were reasonable and fair. The FWC found that the overall agreement, despite some shortcomings, was in the best interests of the employees and met the BOOT. The FWC emphasised that while the agreement was not perfect, it represented a fair compromise between the parties and was an outcome of genuine negotiations. The FWC also found that the agreement contained provisions that adequately protected the rights of employees, such as provisions relating to casual loadings, shift penalties, and leave entitlements.

The FWC approved the enterprise agreement with minor modifications to address specific concerns raised by the respondents. The modified agreement was deemed to meet the criteria for approval under the Fair Work Act. The FWC's decision was based on a careful consideration of the agreement's provisions and the evidence presented by both parties. The FWC concluded that the agreement, as modified, was a fair and reasonable outcome of the negotiations and was in the best interests of the employees. The FWC's final orders approved the Braemar College Enterprise Agreement 2021-2023, subject to the modifications made during the hearing.

Braemar College Ltd. t/a Braemar College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established