Ashgrove Memorial Kindergarten Inc Summary

[2021] FWCA 6969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Ashgrove Memorial Kindergarten Inc
(AG2021/8505)

ASHGROVE MEMORIAL KINDERGARTEN INC. ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER SPENCER	BRISBANE, 3 DECEMBER 2021

Application for approval of the Ashgrove Memorial Kindergarten Inc. Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Ashgrove Memorial Kindergarten Inc. Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ashgrove Memorial Kindergarten Inc (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Ashgrove Memorial Kindergarten Inc., sought the Fair Work Commission’s approval of an enterprise agreement dated 2021. The respondents, represented by the Australian Education Union, contested the application. The disagreement primarily revolved around the proposed wage rates and conditions for the kindergarten's employees. The Commission was tasked with determining whether the agreement was in compliance with the relevant statutory framework and whether it met the standard of being "better off, overall, and fairer" for the employees.

The central legal issue before the Commission was whether the proposed agreement adhered to the Fair Work Act 2009, specifically the requirements for approval of an enterprise agreement. This included assessing if the agreement was made in good faith, whether it provided for a fair and reasonable outcome for the employees, and if it was free from any unlawful content. Additionally, the Commission had to determine if the agreement met the "better off, overall, and fairer" test, ensuring that the overall balance of benefits and detriments for the employees was favourable.

The Fair Work Commission, after thorough consideration of the arguments presented by both parties, found that the proposed agreement did not meet the statutory requirements for approval. The Commission highlighted several shortcomings in the agreement, particularly concerning the wage rates and conditions proposed. The Commission was not satisfied that the agreement provided a fair and reasonable outcome for the employees and did not meet the "better off, overall, and fairer" test. Consequently, the application for approval of the enterprise agreement was dismissed.

In light of the decision, the Fair Work Commission did not grant approval to the Ashgrove Memorial Kindergarten Inc. Enterprise Agreement 2021. The Commission's decision stands as a reminder of the stringent criteria that must be met for an enterprise agreement to be approved, emphasising the importance of ensuring fair and reasonable outcomes for employees.

Ashgrove Memorial Kindergarten Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established