DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sheldon College Limited T/A Sheldon College
(AG2018/6916)

SHELDON COLLEGE ACADEMIC STAFF EMPLOYEE ENTERPRISE AGREEMENT 2019-2022

Educational services
COMMISSIONER LEE	MELBOURNE, 8 FEBRUARY 2019

Application for approval of the Sheldon College Academic Staff Employee Enterprise Agreement 2019-2022.

[1] An application has been made for approval of an enterprise agreement known as the Sheldon College Academic Staff Employee Enterprise Agreement 2019-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sheldon College Limited T/A Sheldon College. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2019. The nominal expiry date of the Agreement is 7 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Sheldon College Limited trading as Sheldon College, applied to the Fair Work Commission for the approval of the Sheldon College Academic Staff Employee Enterprise Agreement 2019-2022. The respondent, the Independent Education Union of Australia, did not oppose the application but submitted that the agreement should not be approved as it contained a term which did not comply with the Fair Work Act 2009. The applicant argued that the term was necessary to ensure the academic staff worked within the scope of their roles and responsibilities. The legal issues before the Commission were whether the term in question was compliant with the Fair Work Act and, if not, whether the agreement could be approved in its absence.

The Commission found that the term in question was not compliant with the Fair Work Act, as it imposed a restriction on the employees' ability to engage in protected industrial action. However, the Commission also found that the term was not essential to the operation of the agreement and that the agreement could be approved if the term was removed. The Commission approved the agreement with the term removed, finding that it met the requirements of the Fair Work Act and provided for the fair and reasonable resolution of the employees' terms and conditions of employment.

The Fair Work Commission approved the Sheldon College Academic Staff Employee Enterprise Agreement 2019-2022, subject to the removal of the term which restricted the employees' ability to engage in protected industrial action. The Commission found that the agreement provided for the fair and reasonable resolution of the employees' terms and conditions of employment, and that the removal of the non-compliant term did not significantly impact the operation of the agreement. The Commission's decision provides guidance on the requirements for the approval of enterprise agreements and the need for compliance with the Fair Work Act.

Sheldon College Limited T/A Sheldon College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established