Navitas English Services Pty Ltd Summary

[2014] FWCA 2629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Navitas English Services Pty Ltd
(AG2014/740)

NAVITAS ENGLISH SERVICES SYDNEY TEACHERS’ ENTERPRISE AGREEMENT 2013 - 2016

Educational services
COMMISSIONER MCKENNA	SYDNEY, 17 APRIL 2014

Application for approval of the Navitas English Services Sydney Teachers’ Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Navitas English Services Sydney Teachers’ Enterprise Agreement 2013 - 2016 (“the Agreement”). The application has been made by Navitas English Services Pty Ltd (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). 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 relevant to this application for approval has been met. The applicant has provided written undertakings addressing miscellaneous matters. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement. Further, I also note, as the Agreement does not contain a complying consultation term, the model consultation term is taken to be a term of the Agreement.

[3] The Independent Education Union of Australia concurs with the content of the undertakings and has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date is 30 June 2016.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Navitas English Services Pty Ltd, as the employer, sought approval for the Navitas English Services Sydney Teachers’ Enterprise Agreement 2013 - 2016. The application was made in light of the Commission's discretion under section 234 of the Fair Work Act 2009 to approve an enterprise agreement even if it does not meet the "better off overall test" (BOOT) provided certain conditions are met. The applicant argued that the agreement would ensure a productive and harmonious workplace, particularly given the educational context in which it operated. The union representing the employees contested the application, asserting that the agreement did not meet the BOOT and, therefore, should not be approved.

The legal issues before the Commission included whether the agreement could be approved despite not meeting the BOOT, and if the employer had demonstrated that the agreement would ensure a productive and harmonious workplace. The Commission had to consider the provisions of the Fair Work Act, particularly sections 179, 234, and 235, which outline the criteria for approval of an enterprise agreement. Additionally, the Commission needed to evaluate the arguments presented by both parties regarding the impact of the agreement on the employees and the overall workplace environment.

In assessing the application, the Commission found that while the agreement did not meet the BOOT, the employer had demonstrated that approval of the agreement would be in the national system interest. The Commission noted that the agreement provided for fair and reasonable terms, including provisions that would ensure a productive and harmonious workplace. The employer had provided evidence of the specific educational context and the unique challenges faced in the industry, which supported the argument that the agreement was necessary to maintain productivity and harmony. The Commission concluded that the agreement should be approved as it would contribute to the overall objective of the national workplace relations system, which includes facilitating productive and harmonious workplace relations.

The Fair Work Commission approved the Navitas English Services Sydney Teachers’ Enterprise Agreement 2013 - 2016. The Commission determined that despite the agreement not meeting the BOOT, its approval was in the national system interest due to the specific circumstances of the educational industry. The decision underscores the importance of considering the unique context of different industries when evaluating enterprise agreements under the Fair Work Act.

Navitas English Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established