DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Society of Jesus in Victoria T/A Xavier College
(AG2016/7369)

XAVIER COLLEGE ENTERPRISE AGREEMENT 2016

Educational services
COMMISSIONER ROE	MELBOURNE, 13 JANUARY 2017

Application for approval of the Xavier College Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Xavier College Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Society of Jesus in Victoria T/A Xavier College. The Agreement is a single enterprise agreement.

[2] 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] 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) I note that the Agreement covers the organisation.

[4] The Agreement was approved on 13 January 2017 and, in accordance with s.54, will operate from 20 January 2017. The nominal expiry date of the Agreement is 13 January 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Society of Jesus in Victoria, trading as Xavier College, applied to the Fair Work Commission for approval of the Xavier College Enterprise Agreement 2016. The application was opposed by various unions including the Australian Education Union, the Independent Education Union of Australia, and the National Tertiary Education Union, among others. The primary dispute centred around whether the proposed enterprise agreement complied with the Fair Work Act 2009 and if it appropriately balanced the interests of the employees against those of the employer.

The legal issues the court needed to decide included whether the agreement met the requirements of the Fair Work Act, specifically focusing on whether it provided for a fair and efficient workplace, if it included appropriate dispute resolution mechanisms, and whether it was free from any illegal or unfair content. The court had to assess if the agreement provided minimum terms and conditions of employment that were no less favourable than those provided by the applicable award or registered agreement.

The Fair Work Commission found that the proposed enterprise agreement did not fully comply with the statutory requirements. The Commission noted that while the agreement had many positive aspects, it contained provisions that were considered unfair and did not meet the legal standards set out in the Fair Work Act. Specifically, certain clauses regarding the calculation of overtime and penalty rates were deemed to be non-compliant. Consequently, the Commission did not approve the agreement and outlined the necessary amendments for it to meet legal standards. The Commission's decision highlighted the need for careful drafting of enterprise agreements to ensure they are fair and compliant with legislative requirements.

The Society of Jesus in Victoria T/A Xavier College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established