Independent Education Union of Australia

[2022] FWCA 4383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/5000)

Tower Pre School Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT DEAN	CANBERRA, 13 DECEMBER 2022

Application for approval of the Tower Pre School Enterprise Agreement 2022.

An application has been made for approval of a multi-enterprise agreement known as the Tower Pre School Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Independent Education Union of Australia.

The Tower Pre School Inc Building Fund T/A Tower Pre School has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking 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 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), the Commission notes that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 December 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Independent Education Union of Australia and Tower Pre School, where the union sought approval of a proposed enterprise agreement for the 2022 period. The Commission was tasked with determining whether the agreement met the necessary standards under the Fair Work Act 2009. The union argued that the proposed agreement was fair and reasonable, while Tower Pre School raised concerns about specific provisions and the overall fairness of the agreement.

The legal issues before the Commission centred on whether the proposed agreement complied with the "better off overall test" as stipulated in the Fair Work Act. This test requires that employees under the agreement must be at least as well off financially and in terms of conditions as they would be under the applicable award or registered agreement. The Commission also had to assess whether the agreement contained mandatory terms that met the criteria set out in the Act, including procedural fairness and the avoidance of unnecessary complexity. Additionally, the Commission considered whether the agreement adhered to the good faith bargaining principles, ensuring that it was reached through genuine negotiation between the parties.

In its decision, the Fair Work Commission carefully reviewed the proposed agreement, focusing on the financial and condition provisions, as well as the mandatory terms. The Commission determined that the agreement did meet the better off overall test, as it provided employees with benefits that exceeded those under the applicable award. The Commission also found that the mandatory terms were reasonable and complied with the Act. The Commission concluded that the agreement was the product of genuine negotiation and thus met the good faith bargaining requirements. Therefore, the Commission approved the proposed enterprise agreement, finding it to be fair and reasonable.

As a result of the Commission's decision, the Tower Pre School Enterprise Agreement 2022 was approved and registered, effective from the date of the decision. This agreement will govern the employment conditions of the relevant employees for the specified period, subject to any further orders or appeals. The approval of the agreement ensures that the terms and conditions set out therein will be enforceable, providing a clear framework for the relationship between the Independent Education Union of Australia and Tower Pre School.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established