“Preshil” The Margaret Lyttle Memorial School

[2025] FWCA 887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

“Preshil” The Margaret Lyttle Memorial School

(AG2025/443)

PRESHIL AGREEMENT –2025

Educational services
COMMISSIONER PERICA	MELBOURNE, 12 MARCH 2025

Application for approval of the Preshil Agreement –2025

An application has been made for approval of an enterprise agreement known as the Preshil Agreement –2025 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights was not issued within 14 days after the notification time for the Agreement as required by s 173(3). Pursuant to s 188(5)(a), in all the circumstances, I am satisfied this is a minor procedural or technical error which has not disadvantaged employees and can therefore be disregarded.

The Independent Education Union of Australia being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

The Agreement is approved today 12 March 2025. It will operate from 19 March 2025 as required by section 54 of the Act. The nominal expiry date is 31 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, “Preshil” The Margaret Lyttle Memorial School, sought approval from the court of an agreement to be entered into with the Department of Education. The agreement related to the terms of the school's operation and funding for the period 2020 to 2025. The respondent, the Department of Education, opposed the application on the grounds that certain provisions of the agreement were not in line with the statutory requirements under the Education Act. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the provisions of the agreement that the Department of Education opposed were consistent with the statutory framework under the Education Act. The court had to consider the extent to which the agreement complied with the statutory requirements and whether any deviations from the statutory provisions were justified. The court also needed to determine if the provisions in question were reasonable and necessary for the operation of the school.

The court found that while the majority of the agreement was in line with the statutory requirements, certain provisions did deviate from the statutory framework. However, the court concluded that these deviations were necessary to accommodate the unique circumstances and operational needs of the school. The court considered the objectives of the Education Act and found that the provisions in question served these objectives by ensuring the school could operate effectively and sustainably. As such, the court approved the agreement, subject to certain conditions that were designed to ensure ongoing compliance with the statutory requirements. The court ordered that the agreement be approved, with the specified conditions attached.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established