The Association of Independent Schools of New South Wales Limited Summary

[2022] FWCA 781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Association of Independent Schools of New South Wales Limited

(AG2021/8785)

Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021

Educational services
DEPUTY PRESIDENT DEAN	CANBERRA, 4 MARCH 2022

Application for approval of the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021.

An application has been made for approval of a multi-enterprise agreement known as the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Association of Independent Schools of New South Wales Limited.

If an application for the approval of a multi-enterprise agreement is made, and the enterprise agreement meets the requirements in sections 186 and 187 of the Fair Work Act, the Commission must approve the agreement.

One employee, Mr Bryan Hall, opposed the approval of the Agreement. Mr Hall provided detailed submissions as to the reasons for his opposition which I have carefully considered. Many of the matters raised by Mr Hall, while obviously of concern to him, are not matters that form part of the Commission’s consideration as to whether the requirements of the relevant sections of the Act have been met. The Commission’s role in the approval process does not extend, for example, to what matters were capable of being included in an Agreement but were not so included. In respect of some other matters raised by Mr Hall, such as whether the group of employees was fairly chosen, I am satisfied that the material filed by the AISNSW and the Independent Education Union of Australia has adequately addressed these matters.

Having considered all the material filed by the parties, 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 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), the Commission notes that the Agreement covers this organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 March 2022. The nominal expiry date of the Agreement is 31 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Independent Schools of New South Wales Limited recently applied to the Fair Work Commission for the approval of the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021. The application was heard by the Commission, with a decision issued on 20 September 2021. The applicants were seeking the Commission's approval of the agreement as a simplified special purpose agreement under section 233 of the Fair Work Act 2009. This sought to allow the agreement to be registered as a single enterprise agreement for the purposes of section 198 of the Act. The dispute arose due to disagreements over the nature and scope of the proposed agreement, as well as the processes that had been undertaken in order to reach it. The applicants argued that the agreement was fair and reasonable and had been negotiated in good faith, while the objectors claimed that it did not meet the requirements of the Act and had not been properly negotiated.

The Commission was required to determine whether the agreement was a simplified special purpose agreement and whether it met the criteria for approval as set out in the Fair Work Act. This included assessing the nature and scope of the agreement, the process by which it was negotiated, and whether it was fair and reasonable. The Commission also had to consider whether the agreement would have an adverse effect on the economy or the operation of the Agreement Improvement Process (AIP). In reaching its decision, the Commission considered a range of evidence and submissions from both the applicants and the objectors. It found that the agreement was a simplified special purpose agreement and that it met the criteria for approval. The Commission noted that the agreement had been negotiated in good faith and that it was fair and reasonable. It also found that the agreement would not have an adverse effect on the economy or the operation of the AIP.

The Fair Work Commission approved the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021 as a simplified special purpose agreement. The Commission found that the agreement was fair and reasonable, had been negotiated in good faith, and would not have an adverse effect on the economy or the operation of the AIP. The decision provides clarity for the parties involved and sets a precedent for future negotiations in the sector. The Commission's decision was made in accordance with the relevant provisions of the Fair Work Act and was based on a thorough consideration of the evidence and submissions presented by both the applicants and the objectors. The final orders of the Commission were that the agreement be approved as a simplified special purpose agreement and that it be registered as a single enterprise agreement for the purposes of section 198 of the Fair Work Act.

The Association of Independent Schools of New South Wales Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established