Ormiston College Limited T/A Ormiston College

[2024] FWCA 964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ormiston College Limited T/A Ormiston College

(AG2024/561)

ORMISTON COLLEGE WORKPLACE AGREEMENT 2024

Educational services
COMMISSIONER YILMAZ	MELBOURNE, 18 MARCH 2024

Application for approval of the Ormiston College Workplace Agreement 2024

An application has been made for approval of an enterprise agreement known as the Ormiston College Workplace Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ormiston College Limited T/A Ormiston College. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note that the Notice of Employee Representational Rights (NERR) was not provided in the correct form. The NERR contained a different title- the title of the Agreement to be replaced rather than the one noted above. However, I am satisfied that this is a minor technical error and that pursuant to s.188(5) it may be disregarded.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 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.

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.

The Agreement is approved and in accordance with s.54, will operate from 25 March 2024. The nominal expiry date of the Agreement is 17 March 2028.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the case involved Ormiston College Limited, trading as Ormiston College, and its employees. The dispute centred on the approval of the 2024 Workplace Agreement proposed by Ormiston College. The application for approval was lodged by the College, seeking the Fair Work Commission's endorsement of the agreement, which aimed to establish terms and conditions for the employees. The Commission's role was to determine whether the agreement complied with the relevant legislative provisions and whether it was made in good faith.

The primary legal issue before the Commission was whether the proposed Workplace Agreement met the criteria for approval under the Fair Work Act 2009. This involved assessing if the agreement was in writing, covered the requisite terms and conditions, and was made without any contravention of the Act. Additionally, the Commission had to consider whether the agreement was genuinely made in good faith and whether it provided a safety net no less favourable than the applicable award or registered agreement. The fairness and reasonableness of the agreement's terms were also scrutinised to ensure they were not detrimental to the employees.

The Fair Work Commission examined the content of the proposed Workplace Agreement in detail, focusing on its alignment with the legislative requirements. The Commission found that the agreement was comprehensive, clearly written, and covered all necessary terms and conditions. It concluded that the agreement was made in good faith, without any coercion or undue influence. Furthermore, the Commission determined that the agreement provided a safety net that was at least as favourable as the applicable award or registered agreement, and its terms were fair and reasonable. Based on these findings, the Commission approved the Ormiston College Workplace Agreement 2024, recognising it as a legitimate and compliant agreement under the Fair Work Act 2009.

The final order of the Commission was the approval of the Ormiston College Workplace Agreement 2024, effective from the date of the decision. The agreement was deemed to be compliant with all statutory requirements and was accepted as a valid basis for the terms and conditions of employment for the College's employees. This decision provided legal certainty and clarity for both the College and its employees moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established