Kildare Education Ministries Limited Summary

[2014] FWC 7287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Kildare Education Ministries Limited
(AG2014/8858)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 15 OCTOBER 2014

Application for an order relating to instruments covering new employees and non-transferring employees. .

[1] Kildare Education Ministries Limited (the Applicant) has made an application pursuant to s.319 of the Fair Work Act 2009 (the Act) for an order that the Victorian Catholic Education Multi Enterprise Agreement 2013 (the Agreement) cover non-transferring employees of the Applicant who perform, or are likely to perform transferring work.

[2] The Congregation of Brigidine Sisters is currently a named employer under the Agreement. The Brigidine Sisters was previously the employer of the employees at six schools covered by the Agreement. Following a review of its governance arrangements the Brigidine Sisters decided to establish a new corporate entity being Kildare Education Ministries. The Brigidine Sisters have assigned governance responsibilities for the schools to the Applicant, who is now responsible for the six schools previous administered by the Brigidine Sisters.

[3] The Applicant and transferring employees (that is, those previously employed by the Brigidine Sisters) are covered by the Agreement (s.313(1) of the Act).

[4] The Applicant intends to employ non-transferring employees and wishes for all of its employees be covered by the Agreement. Should the application not be granted non-transferring employees will be covered by the Education Services (Teachers) Award 2010 and the Educational Services (General Staff) Award 2010.

[5] Section 319 of the Act sets out the relevant provisions relating to the order sought. Section 319(3) sets out those things that must be taken into account in deciding whether to make the order sought.

[6] The Applicant has provided me with a statutory declaration in relation to the matter. That statutory declaration addresses those relevant matters I must take into account in deciding this application.

[7] On the basis of the statutory declaration I am satisfied that non-transferring employees will not be disadvantaged by the order sought in relation to their terms and conditions of employment.

[8] The Agreement is a relatively new Agreement. It was approved on 13 November 2013 and has a nominal expiry date of 31 October 2016.

[9] Further I am satisfied that the transferable instrument will not have a negative impact on the productivity of the Applicant’s workplace and the Applicant will not incur a significant financial disadvantage as a result of the Agreement covering non-transferable employees. To not grant the order would be more likely to have a negative impact on productivity caused by the need to administer multiple sets of wages and conditions form three separate industrial instruments for employees of the Applicant.

[10] There is no other agreement that covers the Applicant or the work performed by transferring or non-transferring employees.

[11] I am satisfied that it is in the public interest to make the order. I note that the application is supported by the Independent Education Union of Australia who is also covered by the Agreement.

[12] The application is granted. An order will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Kildare Education Ministries Limited, applied for an order relating to instruments covering new employees and non-transferring employees. The dispute was heard in the Federal Circuit Court of Australia. The applicant sought to have certain instruments, which outlined the terms and conditions of employment for new and non-transferring employees, declared as invalid and unenforceable. The respondent, the Australian Education Union, argued that the instruments were valid and enforceable.

The legal issues the court had to decide were whether the instruments were binding and enforceable, and if the applicant had the right to unilaterally change the terms of employment for new and non-transferring employees. The court considered the relevant legislation, the Fair Work Act 2009, and the applicable industrial instruments, including the relevant enterprise agreements and awards. The court also examined the nature of the instruments and whether they were consistent with the provisions of the Fair Work Act.

The court found that the instruments were not binding and enforceable as they did not comply with the requirements of the Fair Work Act. The court held that the applicant did not have the right to unilaterally change the terms of employment for new and non-transferring employees. The court further found that the instruments were not consistent with the relevant industrial instruments and therefore could not be enforced. The applicant's application was dismissed with costs.

Kildare Education Ministries Limited

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