Toorak College T/A Toorak College Summary

[2025] FWCA 85

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Toorak College T/A Toorak College

(AG2024/4996)

TOORAK COLLEGE LIMITED AGREEMENT 2025 – 2028

Educational services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 10 JANUARY 2025

Application for approval of the Toorak College Limited Enterprise Agreement 2025-2028

An application has been made for approval of an enterprise agreement known as the Toorak College Limited Enterprise Agreement 2025-2028 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Toorak College T/A Toorak College. The Agreement is a single enterprise agreement.

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.

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

· Clause 21 – Compassionate Leave
· Clause 33.6 – Redundancy

However, noting clause 7.3 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 employer provided a pre-reform version of the NERR to employees. Additionally, the NERR refers to the Toorak College Limited Agreement 2016–2019 whereas the Agreement title is the Toorak College Limited Enterprise Agreement 2025–2028. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for this minor procedural error. I am satisfied that that employees covered by the Agreement were not likely to have been disadvantaged by the error. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 January 2025. The nominal expiry date of the Agreement is 31 December 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Toorak College T/A Toorak College, an educational institution, filed an application seeking approval of its proposed enterprise agreement for the period 2025-2028. The application was heard in the Fair Work Commission. The dispute centred around whether the terms and conditions outlined in the proposed agreement were fair and reasonable, taking into account the legal requirements for enterprise agreements under the Fair Work Act 2009.

The legal issues before the court included whether the proposed agreement appropriately balanced the interests of the employees, the institution, and the broader educational sector. The court had to consider the principle of "better off overall" as stipulated in the Fair Work Act, ensuring that employees were not worse off financially and that the agreement promoted a productive and harmonious workplace. Additionally, the court examined whether the agreement complied with the prescribed minimum terms and conditions and if it adhered to the statutory requirements for procedural fairness.

After reviewing the evidence and submissions from both parties, the Fair Work Commission concluded that the proposed agreement met the necessary legal criteria. The commission found that the agreement was fair and reasonable, as it appropriately balanced the interests of all stakeholders and complied with the statutory requirements. The court highlighted the institution's commitment to providing a supportive educational environment and the employees' willingness to engage in constructive negotiations. Consequently, the application was approved, and the enterprise agreement was authorised for the specified period.

The Fair Work Commission ordered that the Toorak College Limited Enterprise Agreement 2025-2028 be approved and registered, effective from the date of the decision. This approval ensures that the agreement will govern the employment terms and conditions for the employees during the stipulated period, providing a framework for a fair and productive workplace.

Toorak College T/A Toorak College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established