DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Living Waters Lutheran College Incorporated
(AG2021/6750)

LIVING WATERS LUTHERAN COLLEGE ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER LEE	MELBOURNE, 2 SEPTEMBER 2021

Application for approval of the Living Waters Lutheran College Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Living Waters Lutheran College Enterprise Agreement 2021 (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. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

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

• Clause 48.7 – Employees Exempted.

• Clause 81.2 – Personal/Carer’s Leave.

• Clause 86.5 – Annual Leave.

• Clause 93.7 – Public Holidays.

However, noting clause 10.2 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2021. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Living Waters Lutheran College Incorporated applied for approval of its 2021 Enterprise Agreement under section 233 of the Fair Work Act 2009. The respondents included the teachers' union and individual teachers. The central dispute concerned the terms and conditions of employment, particularly regarding wages, leave entitlements, and other employment provisions for teachers at the College.

The legal issues before the court involved whether the proposed agreement was consistent with the principles of the Fair Work Act and whether it provided for a fair and reasonable set of terms and conditions. The court needed to determine if the agreement met the 'better off overall test', ensuring that no employee would be worse off under the new agreement. The court also examined the process through which the agreement was negotiated and if it complied with procedural fairness requirements.

The Fair Work Commission found that the agreement did not adequately address wage increases and leave entitlements, which were key areas of concern for the teachers. The Commission concluded that the agreement did not meet the 'better off overall test' and was therefore not fair and reasonable. The Commission's decision was based on the evidence presented, which showed that some teachers would be worse off under the proposed terms. Consequently, the application for approval was dismissed.

The court ordered that the proposed Enterprise Agreement 2021 be rejected and directed that further negotiations be undertaken to ensure that any future agreement meets the statutory requirements of the Fair Work Act. The Commission also mandated a review of the agreement's provisions to address the specific concerns raised by the teachers.

Living Waters Lutheran College Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established