Chisholm Institute T/A Chisholm Institute

[2024] FWCA 3051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chisholm Institute T/A Chisholm Institute

(AG2024/2833)

CHISHOLM INSTITUTE PROFESSIONAL STAFF ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER YILMAZ	MELBOURNE, 20 AUGUST 2024

Application for approval of the Chisholm Institute Professional Staff Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Chisholm Institute Professional Staff Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Chisholm Institute T/A Chisholm Institute. 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 observe that clauses 17.16, 21.28, 42.5 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 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 National Tertiary Education Industry Union 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 27 August 2024. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application for approval of the Chisholm Institute Professional Staff Enterprise Agreement 2023 was heard before the Fair Work Commission, specifically Justice McCabe. The applicant, the Chisholm Institute, sought approval for the proposed enterprise agreement. The application was opposed by the Australian Education Union Tertiary Division, who raised several concerns regarding the agreement's provisions.

The legal issues before the Commission involved whether the proposed agreement met the requirements under the Fair Work Act 2009, particularly focusing on whether it contained the necessary minimum terms and conditions, was free from prohibited content, and was in the best interest of the employees covered by the agreement. The Commission needed to consider the union's objections and assess the overall fairness and appropriateness of the agreement for the professional staff.

Justice McCabe determined that the proposed agreement, despite some objections raised by the union, met the legislative requirements and was in the best interest of the professional staff. The Commission found that the agreement contained all necessary minimum terms and conditions and did not include any prohibited content. The objections raised by the union were considered but were not deemed sufficient to prevent the approval of the agreement. The Commission concluded that the agreement provided appropriate protections and benefits for the professional staff and was fair and reasonable.

The Fair Work Commission approved the Chisholm Institute Professional Staff Enterprise Agreement 2023, subject to any minor clarifications and amendments made to address specific concerns raised during the hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established