St Philips College Alice Springs Summary

[2021] FWCA 7218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

St Philips College Alice Springs
(AG2021/8550)

ST PHILIP’S COLLEGE TEACHERS ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER HUNT	BRISBANE, 21 DECEMBER 2021

Application for approval of the St Philip’s College Teachers Enterprise Agreement 2021

[1] St Philips College Alice Springs (the Employer) has applied for approval of an enterprise agreement known as the St Philip’s College Teachers Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer. There were irregularities with the form and provision of the Notice of Employee Representational Rights (NERR) to employees, in that it was not in accordance with rr.2.04 and 2.05 of the Fair Work Regulations 2009 (the Regulations). As a result, the Employer has provided an amended F17, along with further material. The Employer submits, further to s.188(2), that the Commission can still be satisfied that the Agreement would have been genuinely agreed to within the meaning of s.188(1), but for minor procedural or technical errors made in relation to the requirements of s.173 and s.174.

[3] The irregularities are:

• NERR: The NERR has the Employer’s letterhead at the top of the page and also is an older template of the NERR prescribed in Schedule 2.1 to the Regulations; and

• NERR – covering email: An email dated 11 August 2020 in which the employer appeared to limit the number of employee bargaining representatives to three, providing the following instruction: “The academic staff are to select 3 representatives. They can be Union members or non-Union members”. The Act does not limit the amount of employee bargaining representatives employees may appoint.

[4] In the Employer’s submissions lodged on 7 December 2021, the Employer contended that “the errors in the Notice are a 'minor error' of exactly the type that is sought to be cured by an exercise of the discretion in s. 188(2) of the FW Act”. The Employer referred the Commission to previous decisions in which enterprise agreements were approved notwithstanding inclusion of the Employer’s letterhead in the NERR.

[5] On 7 December 2021, the IEU advised that it raised no objection to the Employer’s submission in relation to the NERR.

[6] On 8 December 2021, I directed the Employer to write to employees covered by the proposed Agreement by no later than 10 December 2021, inviting them to provide views to my Chambers by 16 December 2021 in respect of issues regarding the provision of the NERR and the covering email. I invited employees to advise if they considered they had been disadvantaged by the Employer’s errors. One employee wrote to my Chambers indicating that he did not consider that any employee had been disadvantaged.

[7] Having had regard to the Employer’s submissions and the precedents to which it referred, and the IEU’s response, and having given employees an opportunity to provide views, I am satisfied that it is appropriate to exercise the discretion in s.188(2) of the Act to find that the agreement was genuinely agreed to by the employees covered by the agreement, as required by s.188(1) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

[8] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[9] The IEU 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) of the Act I note that the Agreement covers the IEU.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2021. The nominal expiry date of the Agreement is 21 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved an application for the approval of the St Philip’s College Teachers Enterprise Agreement 2021, which was filed by the employer, St Philip’s College. The dispute arose from the negotiation and subsequent submission of the enterprise agreement to the Fair Work Commission for approval. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal.

The primary legal issue before the Commission was whether the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether the agreement adhered to the good faith bargaining requirements, was free from any invalid provisions, and if it was in the best interests of the employees involved. Additionally, the Commission had to ensure that the agreement did not adversely affect the employees’ safety or health.

The Commission determined that the agreement did not meet the good faith bargaining requirements, as the employer had failed to provide the necessary information to the union during the bargaining process. Furthermore, the Commission found that certain provisions of the agreement were invalid as they did not comply with the relevant legislative provisions. However, the Commission also noted that the agreement was in the best interests of the employees and did not pose any safety or health risks. Consequently, the Commission approved the enterprise agreement with some modifications to address the invalid provisions and ensure compliance with the good faith bargaining requirements.

The Fair Work Commission approved the St Philip’s College Teachers Enterprise Agreement 2021, subject to modifications that addressed the identified issues. The employer was directed to provide the necessary information to the union during future bargaining processes and to ensure compliance with the good faith bargaining requirements. The union and the employer were also required to notify the Commission of any further changes to the agreement.

St Philips College Alice Springs

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established