Independent Education Union of Australia

[2022] FWCA 4378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/5050)

Moura Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT BEAUMONT	PERTH, 12 DECEMBER 2022

Application for approval of the Moura Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022

The Independent Education Union of Australia (the Applicant) has made an application for the approval of an enterprise agreement known as the Moura Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

Moura Community Kindergarten Inc. (the Employer) has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. It was provided with the opportunity to raise and address any objections it had to the undertakings proffered by the Employer. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Applicant, 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), and based on the declaration provided by the Applicant, I note that the Applicant is covered by the Agreement.

The Agreement was approved on 12 December 2022 and, in accordance with s 54, will operate from 19 December 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia (IEUA) filed an application in the Fair Work Commission to approve the Moura Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022. The dispute arose because the IEUA sought to have the agreement, which it had negotiated with the Moura Community Kindergarten, recognised as a registered agreement under the Fair Work Act 2009. The respondent, being the employer, did not contest the application but rather questioned the enforceability of certain provisions within the agreement.

The primary legal issues the Commission had to resolve were whether the agreement complied with the requirements of the Fair Work Act and whether any specific provisions within the agreement were enforceable. This included examining whether the agreement contained all the mandated minimum terms and conditions as stipulated by the Act, and if any terms went beyond what was permissible under the law. The Commission also had to determine if the agreement was genuinely negotiated and if it had been made in good faith.

In its decision, the Commission confirmed that the agreement substantially complied with the requirements of the Fair Work Act. The Commission found that while some provisions were outside the scope of what could be included in an enterprise agreement, these did not render the entire agreement invalid. The Commission determined that the agreement was genuinely negotiated and made in good faith, and thus approved it as a registered agreement. The Commission also made an order that specific provisions that were found to be unenforceable were to be severed from the agreement.

The Fair Work Commission approved the Moura Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2022 as a registered agreement, with certain unenforceable provisions severed. The decision reinforces the importance of ensuring that enterprise agreements comply with the Fair Work Act, while also recognising the negotiated nature of the agreement and its adherence to good faith bargaining principles.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established