Chisholm Institute T/A Chisholm Institute

[2022] FWCA 4088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chisholm Institute T/A Chisholm Institute

(AG2022/4501)

Chisholm Institute Professional Staff Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 22 NOVEMBER 2022

Application for approval of the Chisholm Institute Professional Staff Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Chisholm Institute Professional Staff Enterprise Agreement 2022 (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 and 190 as are relevant to this application for approval have been met.

The National Tertiary Education 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 of the Act, will operate from 29 November 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Chisholm Institute sought approval for the Chisholm Institute Professional Staff Enterprise Agreement 2022. The dispute centred around the terms and conditions of employment for professional staff within the institution, specifically in relation to wages, leave entitlements, and other employment-related provisions. The Commission was tasked with determining whether the proposed agreement met the necessary legal and procedural standards required for approval under the Fair Work Act 2009.

The central legal issues that the Commission had to address involved verifying whether the agreement had been genuinely negotiated between the employer and the employees, ensuring the agreement complied with the provisions of the Fair Work Act, and assessing whether the agreement met the "better off overall test". This test required the Commission to ensure that employees were not disadvantaged by the agreement compared to their previous terms and conditions of employment. Furthermore, the Commission needed to confirm that the agreement did not undermine the existing industrial safety net and that it adhered to the applicable award and enterprise bargaining rules.

The Commission examined the evidence presented by both parties and found that the agreement had been genuinely negotiated and contained all the required clauses stipulated by the Fair Work Act. The Commission concluded that the agreement provided employees with at least the minimum terms and conditions as outlined in the relevant award and that it met the better off overall test. The Commission also found that the agreement did not undermine the industrial safety net and was in compliance with the applicable provisions of the Fair Work Act. Consequently, the Commission approved the Chisholm Institute Professional Staff Enterprise Agreement 2022.

The final orders included the approval of the agreement with the condition that it would be registered with the Fair Work Commission. The approved agreement would then serve as the basis for the employment terms and conditions of the professional staff at the Chisholm Institute.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established