Banyo Kindergarten Association Inc T/A Banyo Kindergarten

[2022] FWCA 1267

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Banyo Kindergarten Association Inc T/A Banyo Kindergarten

(AG2022/946)

C & K Banyo Kindergarten Early Childhood Education Collective Enterprise Agreement 2021

Educational services
DEPUTY PRESIDENT MOLTONI	BRISBANE, 11 APRIL 2022

Application for the approval of the C & K Banyo Kindergarten Early Childhood Education Collective Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the C & K Banyo Kindergarten Early Childhood Education Collective 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 Banyo Kindergarten Association Inc T/A Banyo Kindergarten (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 1.2.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Independent Education Union – Queensland and Northern Territory Branch (IEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Banyo Kindergarten Association Inc trading as Banyo Kindergarten, which sought approval for a collective enterprise agreement. This agreement, the C & K Banyo Kindergarten Early Childhood Education Collective Enterprise Agreement 2021, was presented for consideration under the Fair Work Act 2009. The application was brought before the Fair Work Commission, specifically the delegate of the President, Dr David Madden. The nature of the dispute was primarily procedural, focusing on whether the association had correctly followed the necessary steps and complied with legislative requirements in the creation and submission of the agreement.

The key legal issues the court needed to address were whether the association had appropriately notified all relevant parties and whether the agreement contained all the necessary components as stipulated by the Fair Work Act. Additionally, the court had to determine if there had been adequate consultation with the employees and if the process for the agreement's approval was fair and just. The association argued that all procedural requirements were met, while no objections were raised by the employees. The court had to weigh these arguments against the statutory obligations and precedents set by previous cases.

The court found that the Banyo Kindergarten Association Inc had fulfilled its obligations under the Fair Work Act. The association had provided adequate notification to all relevant parties and ensured that the agreement contained all necessary elements. Furthermore, the court noted that there had been no objections from the employees and that the process had been conducted fairly and justly. The association's adherence to the statutory requirements and the absence of any procedural flaws led the court to approve the agreement. Consequently, the court issued an order approving the C & K Banyo Kindergarten Early Childhood Education Collective Enterprise Agreement 2021.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established