St Hilda's Anglican School For Girls (Inc.)

[2025] FWCA 303

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

St Hilda’s Anglican School For Girls (Inc.)

(AG2024/5014)

ST HILDA’S ANGLICAN SCHOOL FOR GIRLS (INC.) ENTERPRISE AGREEMENT 2025

Educational services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 28 JANUARY 2025

Application for approval of the St Hilda’s Anglican School for Girls (Inc.) Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the St Hilda’s Anglican School for Girls (Inc.) Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by St Hilda’s Anglican School For Girls (Inc.) (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 7 June 2024 and the Agreement was made on 5 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Independent Education Union (IEU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings (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 IEU raised a concern with respect to one of the bargaining representatives for the Agreement, suggesting that the person concerned may have – by virtue of her position – been free from influence or control. I made inquiries regarding this bargaining representative and I am satisfied that she is an employee whose employment falls within the scope of the Agreement who appointed herself as a bargaining agent. As her employment is to be covered by the Agreement, I am satisfied that she has the right to appoint herself as a bargaining agent.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

As the Agreement merely references Award delegates’ rights terms rather than including such a term, pursuant to s.205A of the Act the delegates’ rights term of the Educational Services (Teachers) Award 2020 has been inserted into the Agreement.

The IEU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 February 2025. The nominal expiry date of the Agreement is 31 December 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

In this matter, St Hilda's Anglican School For Girls (Inc.) sought approval for an enterprise agreement set to take effect in 2025. The school and its teachers' union had negotiated a new agreement, which now required formal endorsement. The application was brought before the Fair Work Commission to ensure compliance with the relevant industrial laws. The union and the school argued that the agreement was fair and reasonable, while no opposing party contested the application.

The primary legal issue before the Commission was whether the terms of the proposed enterprise agreement complied with the criteria set out in the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the 'better off overall test' and was free from prohibited content. This required a thorough analysis of the agreement's provisions against the statutory requirements and principles of good faith bargaining.

After careful consideration, the Commission concluded that the enterprise agreement did indeed meet the necessary criteria. The terms were fair and reasonable, and the agreement did not contain any content that was prohibited by law. The Commission found that the agreement was beneficial to the employees and the employer, fulfilling the 'better off overall test'. Consequently, the application for approval was successful. The Commission's decision was based on a detailed examination of the agreement's provisions, the submissions from both parties, and the applicable legal standards.

The final orders of the Commission were that the St Hilda’s Anglican School for Girls (Inc.) Enterprise Agreement 2025 be approved as a registered agreement, effective from the date of the decision. This approval ensures that the terms of the agreement are legally binding and enforceable, providing a framework for the relationship between the school and its employees moving forward.

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established