DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tiwi Education Board Inc
(AG2021/6450)

TIWI COLLEGE COLLECTIVE ENTERPRISE AGREEMENT 2020-2023

Educational services
DEPUTY PRESIDENT EASTON	SYDNEY, 19 AUGUST 2021

Application for approval of the Tiwi College Collective Enterprise Agreement 2020-2023.

[1] Tiwi Education Board Inc (the Employer) has made an application for the approval of the Tiwi College Collective Enterprise Agreement 2020-2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made. The College has had three principals over the bargaining period. The current Acting Principal has been acting from March 2021 onwards and the Employer has had difficulty cultivating the materials that trace the bargaining process undertaken by the parties. To add further delay to the lodgement, the Employer’s representative from the Association of Independent Schools of the Northern Territory took ill over June and July 2021.

[5] I note that Clause 3.8.3 – Redundancy, Clause 4.4.3 – Casual Conversion and Clause 5.4.4(b) – Parental Leave potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Independent Education Union of Australia (IEUA) was a bargaining representative for the Agreement and 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 IEUA.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 August 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Tiwi Education Board Inc sought approval of the Tiwi College Collective Enterprise Agreement 2020-2023 from the Fair Work Commission. The dispute centred around the terms and conditions of employment for the staff at Tiwi College, including wages, working hours, and other employment-related matters. The application was heard by the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The legal issues before the Commission were whether the proposed agreement complied with the provisions of the Fair Work Act, and whether it was an appropriate agreement to be approved by the Commission. Specifically, the Commission needed to determine if the agreement met the requirements for a modern award, and if it provided for a fair and efficient workplace. The Commission also needed to consider whether the agreement contained any terms that were contrary to public policy or that were otherwise unenforceable.

After reviewing the proposed agreement and hearing submissions from both parties, the Commission found that the agreement complied with the relevant provisions of the Fair Work Act and was an appropriate agreement to be approved. The Commission noted that the agreement provided for a modern award, and contained terms that were fair and efficient for both the employer and employees. The Commission also found that the agreement did not contain any terms that were contrary to public policy or unenforceable. The Commission approved the agreement and made orders accordingly.

The Fair Work Commission approved the Tiwi College Collective Enterprise Agreement 2020-2023, and made orders to that effect. The agreement will now apply to the employees of Tiwi College, and will govern their terms and conditions of employment for the next three years. The approval of the agreement ensures that the employees of Tiwi College have a fair and efficient workplace, and that their employment-related matters are governed by a modern award.

Tiwi Education Board Inc

DECISION

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Background to the litigation

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Legal Principle Established