Living Waters Lutheran College Incorporated T/A Living Waters Lutheran College Inc

[2024] FWCA 3801

[2024] FWCA 3801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Living Waters Lutheran College Incorporated T/A Living Waters Lutheran College Inc

(AG2024/3528)

LIVING WATERS LUTHERAN COLLEGE ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 30 OCTOBER 2024

Application for approval of the Living Waters Lutheran College Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Living Waters Lutheran College Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Living Waters Lutheran College Incorporated T/A Living Waters Lutheran College Inc (the Applicant). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 27 June 2023 and the Agreement was made on 23 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Independent Education Union of Australia WA Branch (IEU WA), who were a bargaining agent, expressed a view that there were a number of terms in the Agreement which meant that it did not pass the BOOT. I allowed the IEU WA to make submissions on why those terms meant the Agreement did not pass BOOT and conducted a conference between the parties to discuss the IEU WA’s concerns. At the conclusion of that conference the IEU WA advised that it no longer pressed any of its BOOT-related concerns.

1. There were two small technical errors with respect to the NERR. I brought these to the attention of the Applicant and advised that I viewed them as minor technical errors and would disregard them pursuant to s.188(5) of the Act.

2. The Applicant has provided written undertakings. 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. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The IEU WA lodged a Form F18 statutory declaration giving 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 the Agreement covers the IEU WA.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 November 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

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