Dalby Beck Street Kindergarten Assoc Inc

[2022] FWCA 3906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Dalby Beck Street Kindergarten Assoc Inc

(AG2022/4399)

COMMISSIONER HUNT

BRISBANE, 7 NOVEMBER 2022

Application for approval of the Dalby Beck Street Kindergarten Assoc Inc Early Childhood Education Enterprise Agreement 2022

Dalby Beck Street Kindergarten Assoc Inc (the Employer) has applied for approval of an enterprise agreement known as the Dalby Beck Street Kindergarten Assoc Inc Early Childhood Education Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Independent Education Union of Australia (the IEU) 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) of the Act I note that the Agreement covers the AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 November 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by Dalby Beck Street Kindergarten Assoc Inc to approve the Dalby Beck Street Kindergarten Assoc Inc Early Childhood Education Enterprise Agreement 2022. The application was made under section 185 of the Fair Work Act 2009. The Commission raised concerns about the agreement with the employer, who provided written undertakings in response. The Commission sought views from the bargaining representatives, but none were provided. The Commissioner is 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.

The legal issues before the court were whether the agreement met the requirements of sections 186, 187, 188, and 190 of the Fair Work Act 2009, and whether the group of employees covered by the agreement was fairly chosen. The Commission also had to consider whether the Independent Education Union of Australia, a bargaining representative for the agreement, wanted it to cover them. The Commissioner found that the agreement met all the relevant requirements and that the group of employees covered by the agreement was fairly chosen.

The Commissioner accepted the employer's undertakings and noted that they were taken to be a term of the agreement. The agreement was approved and will operate from 14 November 2022. The nominal expiry date of the agreement is 30 June 2025. The agreement covers the Independent Education Union of Australia, a bargaining representative for the agreement.

The Fair Work Commission approved the Dalby Beck Street Kindergarten Assoc Inc Early Childhood Education Enterprise Agreement 2022 and it will operate from 14 November 2022. The nominal expiry date of the agreement is 30 June 2025. The agreement covers the Independent Education Union of Australia, a bargaining representative for the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established