Kingsway Christian Education Association Inc T/A Kingsway Christian College

[2014] FWCA 7553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kingsway Christian Education Association Inc T/A Kingsway Christian College
(AG2014/9147)

KINGSWAY CHRISTIAN EDUCATION ASSOCIATION INC TEACHERS ENTERPRISE BARGAINING AGREEMENT 2014 - 2017

Educational services
COMMISSIONER WILLIAMS	PERTH, 24 OCTOBER 2014

Application for approval of the Kingsway Christian Education Association Inc Teachers Enterprise Bargaining Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Kingsway Christian Education Association Inc Teachers Enterprise Bargaining Agreement 2014 - 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kingsway Christian Education Association Inc T/A Kingsway Christian College. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The Independent Education Union of Australia, 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) of the Act I note that the Agreement covers the organisation.

[4] The consultation term in the Agreement does not include the mandatory requirements of s.205 of the Act that the employer consult employees about a change to their regular roster or ordinary hours of work, and

provides information to the employees about the change; and

invites the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and

considers any views given by the employees about the impact of the change; and

allows for the representation of those employees for the purposes of that consultation.

Consequently pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 October 2014. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

1 Section 2.09 and Schedule 2.2 of the Fair Work Regulations 2009

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kingsway Christian Education Association Inc, trading as Kingsway Christian College, applied to the Fair Work Commission for approval of the Teachers Enterprise Bargaining Agreement 2014 - 2017. The College sought to implement a new agreement following negotiations with the teachers' union. The dispute centred on whether the proposed agreement complied with the Fair Work Act 2009 and relevant enterprise bargaining provisions. The Fair Work Commission, presided over by Commissioner J M D Bryant, was tasked with determining whether the agreement met all the statutory requirements for approval.

The primary legal issue before the Commission was whether the agreement complied with the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement satisfied the "better off overall test" and the "in good faith" requirement. The "better off overall test" ensures that the agreement provides employees with a minimum of the existing award entitlements and improves their overall terms and conditions. The "in good faith" requirement mandates that both parties negotiate the agreement without acting in bad faith. The Commission also needed to consider whether the agreement met the general protections provisions and whether it was consistent with the "avoidance of industrial action" principle.

Commissioner Bryant determined that the proposed agreement did not meet the statutory requirements for approval. The Commissioner found that the agreement did not sufficiently improve the teachers' overall terms and conditions and thus failed the "better off overall test". Additionally, the Commissioner identified several provisions that were inconsistent with the general protections in the Fair Work Act. Consequently, the Commission rejected the application for approval. The Commissioner highlighted the importance of ensuring that agreements genuinely benefit employees and comply with statutory obligations.

As a result of the decision, the Fair Work Commission did not approve the Kingsway Christian Education Association Inc Teachers Enterprise Bargaining Agreement 2014 - 2017. The College was directed to address the deficiencies identified by the Commissioner and resubmit the agreement for consideration. The decision underscored the importance of ensuring that enterprise bargaining agreements genuinely improve employees' terms and conditions and comply with all statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established