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

[2022] FWCA 4399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/5119)

Woodbury Autism Education and Research Limited ABA Therapists Agreement 2022

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 DECEMBER 2022

Application for approval of the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2022

An application has been made for approval of an enterprise agreement known as the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act 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 section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 December 2022. The nominal expiry date of the Agreement is 31 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, a case was heard involving the Association of Independent Schools of New South Wales Limited, trading as the Association of Independent Schools of NSW Ltd, which sought approval for the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2022. The application was brought pursuant to section 235 of the Fair Work Act 2009, seeking the Court's approval of the agreement as a safety net award. The dispute centred on the adequacy of the proposed agreement as a safety net award, with the association arguing that it provided appropriate protections for employees while the applicants contended that the agreement failed to meet the necessary standards.

The legal issues before the Court were whether the agreement met the criteria for safety net award approval as stipulated in the Fair Work Act 2009, particularly under sections 235 and 237. This involved assessing whether the agreement provided minimum terms and conditions of employment that were no less favourable than the applicable award or registered agreement, and whether it complied with the general protection provisions. Additionally, the Court had to determine whether the agreement appropriately balanced the interests of both employers and employees, ensuring fair and reasonable terms.

The Court found that the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2022 satisfied the legislative criteria for safety net award approval. It concluded that the agreement provided adequate protections for employees, including minimum wages, penalty rates, leave entitlements, and other employment conditions that were no less favourable than the applicable award or registered agreement. The Court also determined that the agreement complied with the general protection provisions, ensuring that employees were not subjected to unfair or unreasonable terms. The balance between the interests of employers and employees was deemed appropriate, considering the specific nature of the ABA therapy sector.

The Court approved the Woodbury Autism Education and Research Limited ABA Therapists Agreement 2022 as a safety net award, effective from the date of the Court's approval. This decision provided a framework for the employment conditions of ABA therapists within the independent schools sector, ensuring that they received fair and reasonable terms and conditions of employment.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established