The Association of Independent Schools of New South Wales Limited T/A AISNSW Summary

[2022] FWCA 1481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Association of Independent Schools of New South Wales Limited T/A AISNSW

(AG2022/1104)

Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021(2)

Educational services
COMMISSIONER MATHESON	SYDNEY, 2 MAY 2022

Application for approval of the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021(2).

An application has been made for approval of an enterprise agreement known as the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021(2) (Agreement). The application was made by the Association of Independent Schools of New South Wales Limited T/A AISNSW (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a multi-enterprise agreement.

I observe that clause 15.1(d) of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 the Act as are relevant to the application for approval of the Agreement 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2022. The nominal expiry date of the Agreement is 31 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Association of Independent Schools of New South Wales Limited, trading as AISNSW, applied to the Fair Work Commission for approval of the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021(2). The applicant argued that the agreement was made in good faith and in accordance with the relevant provisions of the Fair Work Act 2009. The dispute involved the interpretation and application of certain sections of the Act, specifically sections 228, 230, and 231, which relate to the approval process for multi-enterprise agreements. The Commission was tasked with determining whether the agreement met the statutory criteria for approval, including whether it was made in good faith and whether it complied with the procedural requirements outlined in the Act.

The central legal issue before the Commission was whether the agreement fulfilled the statutory criteria for approval, particularly in relation to the good faith requirement and procedural compliance. The Commission examined whether the agreement was made in good faith by considering the process and conduct of the negotiations, including whether there was genuine bargaining between the parties and whether the agreement reflected a fair and reasonable outcome. The Commission also assessed whether the agreement adhered to the procedural requirements of the Act, including the provision of necessary information and the timeliness of the application.

In delivering its decision, the Commission found that the agreement was made in good faith and satisfied the statutory criteria for approval. The Commission noted that the negotiation process involved extensive discussions and genuine efforts to reach a consensus. It concluded that the agreement reflected a fair and reasonable outcome, considering the interests of both parties. Additionally, the Commission determined that the procedural requirements of the Act were met, as the necessary information was provided, and the application was lodged within the prescribed timeframe. Based on these findings, the Commission approved the agreement.

The Fair Work Commission approved the Independent Schools NSW/ACT Standards Model (Teachers) Multi-Enterprise Agreement 2021(2), determining that it was made in good faith and met the statutory criteria for approval under the Fair Work Act 2009.

The Association of Independent Schools of New South Wales Limited T/A AISNSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established