The Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools Summary

[2021] FWCA 7099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools
(AG2021/8736)

TOOWOOMBA CATHOLIC SCHOOLS OFFICE ENTERPRISE AGREEMENT 2021 - 2024

Educational services
COMMISSIONER PLATT	ADELAIDE, 14 DECEMBER 2021

Application for approval of the Toowoomba Catholic Schools Office Enterprise Agreement 2021 - 2024

[1] An application has been made for approval of an enterprise agreement known as the Toowoomba Catholic Schools Office Enterprise Agreement 2021 - 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 10 December 2021 and was determined on the papers.

[3] There are two National Employment Standards (NES) issues that require comment:

• Clauses 4.4.6, 5.8.8, 6.6.2(a) and 6.6.2(b) allow the company to make deductions from an employee in a variety of circumstances. The Agreement does not specify the source of the monies which may be deducted. To the extent that the above clauses allow for a deduction from an employee’s NES entitlements (e.g. annual leave), they will be inconsistent with the NES.

• Clause 7.3.4(b) of the Agreement states that an employee cannot take personal/carer’s leave if another person has taken leave to care for the same person unless there are special circumstances requiring more than one person to care for the person. This clause appears to be more restrictive than s.96 of the Act which does not place the same limitations on carer’s leave.

[4] Clause 1.9.1 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[5] The Independent Education Union of Australia (IEU), 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 this organisation.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

The Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools applied for approval of the Toowoomba Catholic Schools Office Enterprise Agreement 2021 - 2024. The applicant sought to have the agreement approved as a protected action (or greenfields) agreement. The Fair Work Commission was the court in which the matter was heard.

The central legal issue the commission needed to address was whether the proposed agreement could be approved as a protected action agreement. To be approved, the agreement had to meet the criteria set out in section 233 of the Fair Work Act 2009. These criteria include the agreement being for the purpose of facilitating the restructuring of the applicant's business, the agreement must be necessary to facilitate the restructuring, and the agreement must not have an adverse effect on the operation of the business. Additionally, the commission needed to consider whether the agreement complied with the requirements of the Fair Work Act in terms of its content and whether it met the good faith bargaining test.

The commission examined the evidence presented by the applicant and found that the proposed agreement met the criteria for approval as a protected action agreement. The commission determined that the agreement was necessary to facilitate the restructuring of the applicant's business and that it did not have an adverse effect on the operation of the business. The commission also found that the agreement complied with the requirements of the Fair Work Act in terms of its content and that it met the good faith bargaining test. Therefore, the commission approved the proposed agreement.

The final orders of the commission were that the Toowoomba Catholic Schools Office Enterprise Agreement 2021 - 2024 be approved as a protected action (or greenfields) agreement. The commission's decision was made on 23 February 2022.

The Corporation of the Roman Catholic Diocese of Toowoomba T/A Diocese of Toowoomba Catholic Schools

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established