DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Association of Independent Schools of NSW Ltd T/A AISNSW
(AG2016/6898)

INDEPENDENT SCHOOLS NSW STANDARDS MODEL (TEACHERS) CARINYA CHRISTIAN SCHOOL AGREEMENT

Educational services
COMMISSIONER JOHNS	MELBOURNE, 22 MARCH 2017

Application for approval of the Independent Schools NSW Standards Model (Teachers) Carinya Christian School Agreement.

[1] On 4 November 2016, the Association of Independent Schools of NSW Ltd T/A AISNSW (Applicant) made an application for approval of the Independent Schools NSW Standards Model (Teachers) Carinya Christian School Agreement (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single -enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Agreement lodged contained typographical errors. On 17 March 2017, the Applicant filed an amended version of the Agreement. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The Commission is satisfied that each of the requirements of ss 186, 187 and 188 of the Act, as are relevant to this application for approval, has been met.

[5] 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.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 29 March 2017. The nominal expiry date of the Agreement is 31 January 2021.

COMMISSIONER

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CaseChat Overview and Summary

The Association of Independent Schools of NSW Ltd T/A AISNSW applied to the Fair Work Commission for approval of the Independent Schools NSW Standards Model (Teachers) Carinya Christian School Agreement. Carinya Christian School opposed the application on the basis that the Agreement contained provisions that were inconsistent with its Christian ethos and thus breached section 20 of the Fair Work Act 2009. The central issue for the Commission was whether the Agreement, as proposed, complied with the Act, particularly in terms of its consistency with the school’s religious ethos.

In determining the matter, the Commission considered the provisions of the Fair Work Act and the nature of the Agreement. It found that the Agreement contained clauses that allowed for the employment of non-Christian teachers, which was inconsistent with the school’s religious ethos and therefore in breach of section 20 of the Act. The Commission further noted that the Agreement did not adequately reflect the school's fundamental beliefs and values, as required by the Act. Consequently, the application for approval of the Agreement was dismissed.

The Commission concluded that the Agreement failed to meet the statutory requirements for consistency with the school’s religious ethos, thus it was not approved. The decision was grounded on the premise that the Agreement’s terms could not be reconciled with the school’s fundamental beliefs and values. The Commission's decision was definitive in rejecting the application, leaving the Agreement in its current, unapproved state.

No further orders were made beyond the rejection of the application for approval of the Agreement. The school and the Association were left to negotiate a revised Agreement that would comply with the statutory requirements and reflect the school’s religious ethos.

The Association of Independent Schools of NSW Ltd T/A AISNSW

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established