Christ Church Grammar School Inc

[2025] FWCA 1803

[2025] FWCA 1803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Christ Church Grammar School Inc

(AG2025/1021)

CHRIST CHURCH GRAMMAR SCHOOL INC ENTERPRISE AGREEMENT 2025

Educational services
COMMISSIONER SCHNEIDER	PERTH, 28 MAY 2025

Application for approval of the Christ Church Grammar School Inc Enterprise Agreement 2025.

1. Christ Church Grammar School Inc has made an application for the approval of an enterprise agreement known as the Christ Church Grammar School Inc Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The “Independent Education Union of Australia” (the Union), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that they seek to be covered by the agreement.

Background

1. Shortly after the Application was lodged, the Union filed a F18[1] indicating that they oppose the approval of the Agreement and purported they would be in support of approval of the Agreement if undertakings were provided to rectify inconsistencies where the Agreement provided less than the Educational Services (Teachers) Award 2020[2] (the Award) or the National Employment Standards (the NES).

1. I conducted conferences on 28 April 2025 and 7 May 2025 to discuss the concerns raised by my Chambers and the Union.

1. The Applicant has provided written undertakings for the issues raised by my Chambers and 5 of the 6 issues raised by the Union in the F18. 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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant.

1. No objection was raised in relation to the undertakings provided by the Applicant. The objection raised by the Union was in relation to the individual flexibility arrangements (IFA) clause at clause 10(5)(a) of the Agreement. The Applicant did not provide an undertaking in relation to the IFA clause. In the Union’s outline of submissions, they pressed this objection.

Respondent’s Submissions

1. In their outline of submissions, the Union referenced the F18, where they submitted that “the Agreement allows either party to terminate the individual flexibility arrangement by giving no more than 28 days’ written notice to the other party, which is significantly less than the Award, which requires the employer to provide the employee with 13 weeks’ written notice to the employee.”

1. The Union submitted that while the Agreement as a whole provides a number of conditions that are above the Award, the IFA clause of the Agreement at clause 10(5)(a) gives rise to circumstances in which an employee or prospective may not be better off overall.

1. The Union contended that rather than creating a lack of operational certainty, the 13 weeks’ notice period provided by the Award allows for greater certainty for both parties choosing to enter an IFA.

Applicant’s Submissions

1. Christ Church Grammar School Inc. submitted that increasing the notice period for terminating IFAs would disadvantage employees by reducing flexibility to adapt to changing circumstances, with reference to the Modern Awards Review 2010 – Award Flexibility [2013] FWCFB 2170. They submitted that the school operates on a 10-week term and a 28-day notice period is more proportionate and suitable to the Applicant’s term-based structure.

1. The Applicant also noted other recently approved enterprise agreements for other schools, all of which contain 28 day written notice periods to terminate IFAs. [3]

1. The Applicant further noted that the IFA clause remains unchanged from the previously approved enterprise agreement, the Christ Church Grammar School Inc Enterprise Agreement 2022.[4]

Consideration

1. The Union and the Applicant noted that the IFA clause in the Agreement mimics the model flexibility term stipulated in Fair Work Regulations 2009 (Cth). The IFA provisions in the Award provide the employee with 13 weeks’ written notice whereas the NES provides for 28 days.

1. I am satisfied that the Agreement is better off overall for employees. The Agreement provides for rates of pay between 10.53% and 126% higher than the applicable Award, I have determined that this benefit outweighs any reduction in the notice period required to terminate an IFA from 13 weeks to 28 days.

1. I note that IFAs would not affect all employees, only those choosing to enter into an agreement with the Applicant. The IFA clause is compliant with the NES and there is no requirement for the notice period to terminate an IFA to be extended to meet the 13 weeks’ notice stipulated in the Award.   

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. Clause 6.3 of the Agreement provides that where there is any conflict with the National Employment Standards (NES) and the Agreement the NES will apply to the extent of the inconsistency.

1. The “Independent Education Union of Australia” (the 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), and based on the declaration provided by the Union, I note that the Union is covered by the Agreement.

1. The Agreement was approved on 28 May 2025 and, in accordance with s 54, will operate from 4 June 2025. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

[1] Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement).

[2] MA000077.

[3] St Mary’s Anglican Girls School (Inc) Enterprise Agreement 2025; St Hilda’s Anglican School For Girls (Inc.) Enterprise Agreement 2025; and St Stephen’s School Enterprise Agreement 2025.

[4] [2022] FWCA 1493.

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