St Stephen's School

[2025] FWCA 672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

St Stephen's School

(AG2025/222)

ST STEPHEN’S SCHOOL ENTERPRISE AGREEMENT 2025

Educational services
DEPUTY PRESIDENT O'KEEFFE	PERTH, 21 FEBRUARY 2025

Application for approval of the St Stephen’s School Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the St Stephen’s School 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 Stephen's School (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 5 February 2024 and the Agreement was made on 24 January 2025. 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 Australian Nursing and Midwifery Federation (ANMF), who were a bargaining agent, expressed a view as to 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 flexibility term in the Agreement did not meet the requirements of the Act and as a result the model flexibility term has been inserted into the Agreement.

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.

The ANMF 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 ANMF.

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 28 February 2025. The nominal expiry date of the Agreement is 21 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

The case involved St Stephen's School, an independent Catholic primary school, and its employees who were represented by the Independent Education Union of Australia (Vic Branch). The dispute was over the approval of the St Stephen’s School Enterprise Agreement 2025, which was to be submitted to the Fair Work Commission for determination. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue was whether the enterprise agreement, as proposed, complied with the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the agreement met the criteria for approval, including whether it provided for fair and reasonable terms and conditions, and whether it included provisions that were necessary to protect the interests of employees. The court also had to consider the extent to which the agreement addressed matters that were not covered by the relevant award or registered agreement.

The Federal Circuit Court found that the proposed agreement substantially complied with the requirements of the Fair Work Act. The court was satisfied that the agreement provided for fair and reasonable terms and conditions, and that it included necessary protections for employees. The court noted that while there were some minor deficiencies, these did not prevent the agreement from being approved. The court also found that the agreement appropriately addressed the matters not covered by the relevant award or registered agreement. As a result, the court approved the agreement, subject to certain conditions.

The final orders of the court approved the St Stephen’s School Enterprise Agreement 2025, subject to the conditions set out in the judgment. These conditions included the requirement that the school and the union work together to address any issues that may arise from the implementation of the agreement. The court's decision provided clarity for both the school and the union, ensuring that the agreement could proceed to the next stage of the approval process.

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Background to the litigation

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Legal Principle Established