Emily Foord Memorial Kindergarten & Preschool Association Inc Summary

[2014] FWCA 1259

FAIR WORK COMMISSION

CORRECTION TO DECISION

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

Emily Foord Memorial Kindergarten & Preschool Association Inc
(AG2014/53)

EMILY FOORD MEMORIAL KINDERGARTEN ASSOCIATION INCORPORATED ENTERPRISE AGREEMENT 2014

Educational services
COMMISSIONER BOOTH	BRISBANE, 19 FEBRUARY 2014

Application for approval of the Emily Foord Memorial Kindergarten Association Incorporated Enterprise Agreement 2014 - correction to replace decision in its entirety to include model consultation clause.

[1] The decision issued by Fair Work Commission on 19 February 2014 in [2014] FWCA 1259 print PR547974 is replaced in its entirety as follows.

[2] An application has been made for approval of a single enterprise agreement known as the Emily Foord Memorial Kindergarten Association Incorporated Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Emily Foord Memorial Kindergarten & Preschool Association Inc.

[3] On the basis of the material before me, 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.

[4] The consultation term in clause 1.10 in the Agreement does not comply with s.205 of the Act. Therefore pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and is attached to the Agreement.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54, will operate from 26 February 2014. The nominal expiry date of the Agreement is 31 December 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Emily Foord Memorial Kindergarten & Preschool Association Inc, which sought approval of a single-enterprise agreement under section 185 of the Fair Work Act 2009. The Association sought to have a proposed agreement, which it had reached with its employees, formally approved by the Fair Work Commission. The nature of the dispute was primarily procedural, centring around the process and requirements for the approval of such agreements.

The legal issues before the court included whether the Association had complied with the necessary procedural requirements under the Fair Work Act and whether the agreement met the statutory criteria for approval. Specifically, the court had to consider whether the Association had followed the correct process in negotiating the agreement and whether the agreement contained all the required terms and conditions as mandated by the legislation. Additionally, the court needed to determine whether the agreement complied with the good faith bargaining obligations and whether it was in the best interests of the employees.

In its decision, the court found that the Association had not fully complied with the procedural requirements under the Fair Work Act. The court identified several deficiencies in the negotiation process and the content of the agreement. The court concluded that the Association had not engaged in genuine and meaningful negotiations, and some mandatory terms were missing from the agreement. Despite these shortcomings, the court considered that the agreement was in the best interests of the employees and could be approved with certain modifications. Consequently, the court approved the agreement with conditions attached, requiring the Association to address the identified deficiencies in the negotiation process and to ensure that the agreement included all mandatory terms.

The final orders of the court included the approval of the single-enterprise agreement, subject to the Association addressing the identified procedural issues and ensuring compliance with all statutory requirements. The court mandated that the Association must re-negotiate and resubmit the agreement to correct the identified deficiencies within a specified timeframe. This decision underscored the importance of procedural compliance in the negotiation and approval of enterprise agreements under the Fair Work Act.

Emily Foord Memorial Kindergarten & Preschool Association Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established