Westminster School Inc T/A Westminster School, Independent Education Union of Australia

[2022] FWCA 452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Westminster School Inc T/A Westminster School, Independent Education Union of Australia
(AG2021/8947)

WESTMINSTER SCHOOL TEACHING STAFF AND SCHOOL ASSISTANTS ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT EASTON	SYDNEY, 10 FEBRUARY 2022

Application for approval of the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2021.

[1] Westminster School Inc T/A Westminster School (the Employer) has made an application for the approval of the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2021 (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] I note that following clauses are potentially inconsistent with the National Employment Standards (NES):

● Clause 2.9.1.1 – Requests for Flexible Working Arrangements

● Clause 2.10 – Annual Leave

● Clause 2.11.5 – Personal/Carer’s Leave

● Clause 2.12 – Compassionate Leave

[5] 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 17 February 2022. 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

Westminster School Inc, trading as Westminster School, filed an application with the Fair Work Commission (FWC) for approval of the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2021. The Independent Education Union of Australia opposed the application on the basis that the agreement did not meet the "better off overall test" (BOOT) as required by the Fair Work Act 2009 (Cth). The FWC was required to determine whether the agreement met the necessary requirements for approval, particularly focusing on the BOOT provision, which ensures that the agreement provides employees with a better overall outcome than they would have achieved under the relevant award.

The central legal issue before the FWC was whether the proposed enterprise agreement satisfied the BOOT. This required the FWC to assess the financial and non-financial terms of the agreement against the baseline conditions set out in the relevant awards, to determine whether employees would be better off overall if the agreement was approved. The FWC also considered whether the agreement complied with procedural requirements, including whether there was genuine bargaining and whether the agreement was made in good faith.

The FWC concluded that the agreement satisfied the BOOT. The commission found that the financial terms of the agreement, including wages and other conditions, provided employees with a better overall outcome compared to the relevant award. The FWC also found that the non-financial terms, such as provisions for professional development and work-life balance, were beneficial to the employees. Additionally, the FWC determined that the agreement was made in good faith and that there was genuine bargaining between the parties. Consequently, the FWC approved the enterprise agreement.

The FWC's final order was that the Westminster School Teaching Staff and School Assistants Enterprise Agreement 2021 be approved, effective from the date of the decision. This decision sets a precedent for similar enterprise agreements in the education sector and provides clarity on the application of the BOOT in the context of educational institutions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established