Our Lady Of Sion College Ltd
[2024] FWCA 1690
•9 MAY 2024
| [2024] FWCA 1690 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.216CA - Application by an employer for approval of a variation of a cooperative workplace agreement to add employer and employees
Our Lady Of Sion College Ltd
(B2024/405)
CATHOLIC EDUCATION MULTI-ENTERPRISE AGREEMENT 2022: DIOCESE OF BALLARAT, DIOCESE OF SANDHURST, ARCHDIOCESE OF MELBOURNE AND LAVALLA CATHOLIC COLLEGE, TRARALGON
| Educational services | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 9 MAY 2024 |
Application for variation of the Catholic Education Multi-Enterprise Agreement 2022: Diocese of Ballarat, Diocese of Sandhurst, Archdiocese of Melbourne and Lavalla Catholic College, Traralgon.
On 3 April 2024, Our Lady of Sion College Ltd (the Applicant) made an application (Application) to the Commission for approval of a variation to the Catholic Education Multi-Enterprise Agreement 2022: Diocese of Ballarat, Diocese of Sandhurst, Archdiocese of Melbourne and Lavalla Catholic College, Traralgon (Agreement). The Agreement is a multi-enterprise agreement, and the application to vary is made under s 216CA of the Fair Work Act 2009 (Cth) (Act), by adding the Applicant and its relevant employees to the Agreement.
Section 216CA is located in Subdivision AC – Variation of cooperative workplace agreement to add employer and employees, which is in turn within Division 7 of Part 2-4 of the Act. Applications under s 216CA can only be made in respect of a cooperative workplace agreement.
Section 12 of the Act defines a cooperative workplace agreement as follows:
“cooperative workplace agreement: a multi-enterprise agreement is a cooperative workplace agreement if there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the agreement immediately before the agreement was made.”
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJPB Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, including by inserting those provisions described above. The changes concerning cooperative workplace agreements, contained in Part 23 of Schedule 1 of the SJBP Act commenced operation on 6 June 2023.
The Agreement was made on 22 June 2023 and was subsequently approved on 31 July 2023 by Commissioner Matheson (Approval Decision).[1] In the Approval Decision, the Commissioner recorded that the notification time for the Agreement was 17 June 2022, being approximately one year prior to the commencement of the new provisions in the Act dealing with cooperative workplace agreements.
Following correspondence with chambers, information supplied by the parties satisfies me that there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the Agreement immediately before the agreement was made on 22 June 2023 (or relevantly at all).
Accordingly, the Agreement is a cooperative workplace agreement for the purposes of s 216CA.
Section 216C of the Act permits a variation of a cooperative workplace agreement to be made that has the effect that an employer not covered by the agreement will be covered by it. Such a variation may be made jointly by the employer and the “affected employees”.
The term “affected employees” is defined in s 12 of the Act and has different meanings depending on the statutory provision in question. For a variation under Subdivision AC, an ‘affected employee’ means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the Commission.
The Application was supported by a Form F23IA ‘Employer’s Declaration’ and associated documentation, which I have had regard to when expressing my conclusions that follow.
I am satisfied for the purposes of s 216CAA that, prior to requesting the affected employees approve the proposed variation, the Applicant took all reasonable steps to ensure that the terms of the Agreement as proposed to be varied and their effect were explained to the affected employees. I am further satisfied that the explanation was provided in an appropriate manner for the purpose of s 216CAA(1)(b), having regard to the matters in s 216CAA(2).
Section 216CB(1)(a)-(d) sets out matters that, if I am satisfied are met, I must approve the Application. Sections 216CB(2)&(3) set out matters that qualify s 216CB(1) and, if either of those provisions are enlivened, the Application “must not” be approved.
Views of employers and employee representatives
Section 216CB(1)(a) requires satisfaction that the employers and any employee organisations covered by the Agreement before the variation was made have had an opportunity to express their views to the Commission, if any, about the variation. The employee representatives noted in the Approval Decision as being covered by the Agreement were the Independent Education Union and Australian Nursing and Midwifery Federation. I am satisfied that both employee organisations have had an opportunity to express any views about the variation. Prior to the variation being made, the Agreement covered 30 employer schools, as listed in Schedule 9 of the Agreement. Each were represented during bargaining for the Agreement by Catholic Education Commission of Victoria Ltd and, upon enquiries via chambers, I am satisfied each employer has been given an opportunity to express their views.
Valid vote of affected employees
I am satisfied that only employees who would be covered by the Agreement, if approved, were requested to vote to approve it and that a valid majority of those employees voted for it in accordance with s 216CB(1)(b).
Genuine agreement
Further to my conclusions in paragraph [11], I am also satisfied that the variation to the Agreement was genuinely agreed to by the affected employees in accordance with s 188 of the Act, as modified by ss 216CB(1)(c) and 216CC. For avoidance of doubt, while the genuine agreement requirements considered for approval of the Agreement itself were those in the Act as they applied prior to 6 June 2023, the genuine agreement provisions relevant to the variation are to those applying after 6 June 2023.
Public interest
For s 216CB(1)(d), there was no matter drawn to my attention to indicate it is not in the public interest for the Applicant and affected employees to be covered by the Agreement.
The variation does not apply in relation to general building and construction work, nor is the Applicant specified in a supported bargaining authorisation or a single interest employer authorisation: s 216CB(2)&(3). There was no matter drawn to my attention to refuse approval of the variation under s 216CD.
I record that the procedural requirements under s 216CA(2) – (4) were complied with, including the signing requirements under regulation 2.10D of the Fair Work Regulations 2009.
As I am satisfied that the requirements of s 216CA(1) are met and that there are no other statutory provisions enlivened that would require the Application to be refused, I approve the variation. The consolidated version of the Agreement, as varied, is attached to this decision.
Section 216CE provides that a variation operates from the day specified in the decision to approve the variation. I indicated to the parties that, unless I received submissions otherwise, I would specify that the variation operates on and from 7 days after the date the variation was approved. Having received no submission to indicate any different date, I specify for the purposes of s 216CE that the date specified for the variation to operate is on and from 16 May 2024.
DEPUTY PRESIDENT
[1] [2023] FWCA 2379
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