The Trustee for Christ College Trust T/A St Michael's Collegiate School

[2024] FWCA 2446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee for Christ College Trust T/A St Michael’s Collegiate School

(AG2024/2276)

ST MICHAEL’S COLLEGIATE SCHOOL (TEACHERS) ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER MIRABELLA	MELBOURNE, 5 JULY 2024

Application for approval of the St Michael’s Collegiate School (Teachers) Enterprise Agreement 2024.

The Trustee for Christ College Trust T/A St Michael’s Collegiate School (the Employer) has made an application for approval of an enterprise agreement known as the St Michael’s Collegiate School (Teachers) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 13 December 2022.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 7 June 2024.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 40.2(b): Deduction/withholding of monies due to the employee under the NES on termination

· Clause 46(b): Public holidays

However, noting clause 6 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.

The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 5 July 2024 and, in accordance with s.54, will operate from 12 July 2024. The nominal expiry date of the Agreement is 28 February 2027.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of the St Michael’s Collegiate School (Teachers) Enterprise Agreement 2024. The applicant, the Trustee for Christ College Trust trading as St Michael’s Collegiate School, sought the commission’s approval of the proposed agreement, which would govern the employment terms of teachers at the school. The dispute centred on the specifics of the proposed agreement and its compliance with relevant industrial laws.

The primary legal issue before the commission was whether the proposed enterprise agreement complied with the necessary legal requirements under the Fair Work Act 2009. This involved examining the agreement to ensure it met the criteria for "registered agreements," including whether it provided for the appropriate minimum terms and conditions, did not include unlawful provisions, and was fairly and genuinely negotiated. The commission also needed to consider the agreement's impact on the affected employees and whether it provided for fair and reasonable terms and conditions.

In making its decision, the commission examined the details of the proposed enterprise agreement, assessing whether it contained provisions that complied with the legal requirements. The commission considered the negotiation process and whether the agreement was genuinely negotiated between the parties. It also evaluated the fairness of the terms and conditions provided for in the agreement, ensuring they met the minimum standards set out by the Fair Work Act. After careful consideration, the commission found that the proposed agreement met all the necessary requirements and was in the best interests of the employees. The commission approved the enterprise agreement, confirming its compliance with the relevant industrial laws.

The final orders of the commission were to approve the St Michael’s Collegiate School (Teachers) Enterprise Agreement 2024, effective from the date specified in the agreement. The approval was contingent upon the agreement being registered with the Fair Work Commission, and the commission reserved the right to review the agreement if any issues arose in the future. This decision ensured that the teachers at St Michael’s Collegiate School would be governed by the terms and conditions set out in the approved enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established