Independent Education Union of Australia

[2022] FWCA 3968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/4401)

HOWLONG PRESCHOOL ASSOCIATION STANDARDS BASED ENTERPRISE AGREEMENT 2022

Educational services
COMMISSIONER P RYAN	SYDNEY, 11 NOVEMBER 2022

Application for approval of the Howlong Preschool Association Standards Based Enterprise Agreement 2022

The Independent Education Union of Australia (IEU) has made an application for approval of an enterprise agreement known as the Howlong Preschool Association Standards Based Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The employer, Howlong Preschool Association Inc., 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Section 183 Bargaining representative

The IEU being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the IEU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 18 November 2022. The nominal expiry date of the Agreement is 25 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia sought approval of the Howlong Preschool Association Standards Based Enterprise Agreement 2022. The union argued that the agreement, which was intended to cover the preschool's employees, complied with all relevant legal requirements. The association, on the other hand, raised several objections, primarily concerning the agreement's fairness and compliance with the Fair Work Act.

The legal issues before the Commission included whether the agreement met the criteria for approval under the Fair Work Act, particularly whether it was a "better off overall test" agreement, and if it provided for appropriate minimum rates of pay, conditions, and entitlements for the employees. Additionally, the Commission had to consider whether the agreement complied with relevant Australian National Occupational Standards and whether it adhered to the principles of procedural fairness.

The Commission found that the agreement satisfied the statutory requirements for approval. It met the "better off overall test" and provided for appropriate minimum rates of pay, conditions, and entitlements. The agreement also adhered to the relevant Australian National Occupational Standards. The Commission further determined that the agreement was fair and reasonable, and did not contravene any other relevant provisions of the Fair Work Act. Consequently, the Commission approved the agreement.

The final order was that the Howlong Preschool Association Standards Based Enterprise Agreement 2022 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered by the Commission and would come into effect from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established