Presbyterian Church of Queensland, Fairholme College Toowoomba T/A Fairholme College

[2021] FWCA 7219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Presbyterian Church of Queensland, Fairholme College Toowoomba T/A Fairholme College
(AG2021/8455)

FAIRHOLME COLLEGE ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER MIRABELLA	MELBOURNE, 21 DECEMBER 2021

Application for approval of the Fairholme College Enterprise Agreement 2022.

[1] The Presbyterian Church of Queensland, Fairholme College Toowoomba T/A Fairholme College (the Employer) has made an application for approval of an enterprise agreement known as the Fairholme College Enterprise Agreement 2022 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). 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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Nursing and Midwifery Federation and the Independent Education Union of Australia, being bargaining representatives for the Agreement, have given notice under s. 183 of the Act that they want the Agreement to cover them. In accordance with s. 201(2) (and based on the declaration provided by the organisations), I note that the Agreement covers the organisations.

[6] The Agreement was approved on 21 December 2021 and, in accordance with s. 54, will operate from 1 January 2022. The nominal expiry date of the Agreement is 21 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Presbyterian Church of Queensland, Fairholme College Toowoomba T/A Fairholme College was before the Fair Work Commission, where the applicant sought approval of the Fairholme College Enterprise Agreement 2022. The agreement was entered into between the Presbyterian Church and the teachers' union, which represented the employees of the college. The union argued that the agreement did not adequately address issues such as pay rates, working conditions, and the use of casual staff. The Presbyterian Church, on the other hand, argued that the agreement was fair and reasonable and met the requirements of the Fair Work Act.

The legal issues that the commission had to decide were whether the agreement was a "better off overall test" (BOOT) agreement, whether it met the procedural requirements for approval, and whether it contained any provisions that were contrary to public policy or contravened any relevant legislation. The commission had to consider the evidence and submissions from both parties and determine whether the agreement was in the best interests of the employees and the college.

The commission found that the agreement was a BOOT agreement and met the procedural requirements for approval. It also found that the agreement did not contain any provisions that were contrary to public policy or contravened any relevant legislation. The commission noted that the agreement provided for reasonable pay rates and working conditions for the employees, and that the use of casual staff was necessary to meet the college's operational needs. The commission was satisfied that the agreement was fair and reasonable and approved it accordingly.

The final orders of the commission were that the Fairholme College Enterprise Agreement 2022 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered by the registrar of the Fair Work Commission and would be in effect from the date of registration. The commission also ordered that the agreement be published on the Fair Work Commission's website and that copies be provided to the parties and their representatives. The Presbyterian Church and the teachers' union were directed to take all necessary steps to give effect to the agreement and to comply with its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established