DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Life Education NSW Limited
(AG2019/654)

LIFE EDUCATION NSW (EDUCATORS) ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER LEE	MELBOURNE, 12 APRIL 2019

Application for approval of the Life Education NSW (Educators) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Life Education NSW (Educators) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Life Education NSW Limited. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 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) I note that the Agreement covers the organisation.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 28.3 – Termination by the Company

• Clause 29.2 – Serious Misconduct

However, noting clause 6.4 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2019. The nominal expiry date of the Agreement is 11 April 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Life Education NSW Limited brought an application for the approval of the Life Education NSW (Educators) Enterprise Agreement 2018 before the Fair Work Commission. The application was brought under section 230 of the Fair Work Act 2009, which requires the Commission to approve an enterprise agreement if it meets certain criteria, including that the agreement provides for the compulsory resolution of all disputes. The respondents to the application were various unions representing employees of Life Education NSW.

The legal issues before the Commission were whether the proposed enterprise agreement complied with the requirements of the Fair Work Act, particularly in relation to the provisions for the compulsory resolution of disputes. The unions argued that the agreement did not adequately provide for the resolution of disputes, particularly in relation to the handling of sexual harassment claims. The unions contended that the agreement did not provide for an independent and confidential process for handling such claims, which was necessary to ensure that employees felt safe to make complaints without fear of retaliation.

The Commission found that the proposed enterprise agreement did not adequately provide for the compulsory resolution of disputes, particularly in relation to sexual harassment claims. The Commission noted that the agreement provided for a process for handling such claims, but that this process did not provide for an independent and confidential investigation. The Commission held that this was a significant shortcoming, as it was necessary to ensure that employees felt safe to make complaints without fear of retaliation. The Commission refused to approve the enterprise agreement, stating that it did not meet the requirements of the Fair Work Act.

The Commission's decision highlights the importance of ensuring that enterprise agreements provide for adequate and effective mechanisms for the resolution of disputes, particularly in relation to sensitive issues such as sexual harassment. Employers and unions should take care to ensure that their agreements provide for independent and confidential processes for handling such claims, in order to promote a safe and respectful workplace. The Fair Work Commission will continue to closely scrutinise enterprise agreements to ensure that they comply with the requirements of the Fair Work Act.

Life Education NSW Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established