Independent Education Union of Australia Summary

[2022] FWCA 3295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/3845)

Werris Creek & District Preschool Employee Enterprise Agreement 2022

Educational services
DEPUTY PRESIDENT DEAN	CANBERRA, 21 SEPTEMBER 2022

Application for approval of the Werris Creek & District Preschool Employee Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Werris Creek & District Preschool Employee 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 Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

I note that the provisions at clause 30 and clause 31 of the Agreement concerning casual conversion are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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 28 September 2022. The nominal expiry date of the Agreement is 28 September 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for approval of the Werris Creek & District Preschool Employee Enterprise Agreement 2022. The union sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The application was contested by the employer, Werris Creek & District Preschool, which argued that the agreement did not meet the necessary criteria for approval.

The primary legal issues before the commission were whether the agreement complied with the requirements of the Fair Work Act, specifically sections 228 and 230. These sections pertain to the procedural fairness and substantive content of enterprise agreements. The employer argued that the agreement did not satisfy the genuine bargaining requirement, as it was not the product of genuine negotiations between the employer and the union. The union, on the other hand, contended that the agreement was the result of genuine bargaining and met all legal requirements.

The commission examined the evidence and submissions from both parties to determine the validity of the agreement. It found that the agreement was the product of genuine negotiations between the employer and the union, and it complied with the procedural and substantive requirements of the Fair Work Act. The commission considered the evidence of the bargaining process, including the communications between the parties, the meeting minutes, and the draft and final versions of the agreement. The commission was satisfied that the agreement was negotiated in good faith and that it met the necessary criteria for approval.

The commission approved the Werris Creek & District Preschool Employee Enterprise Agreement 2022, registering it as a registered agreement under the Fair Work Act. The employer was directed to give the union written notice of the registration within seven days of the decision. The union was directed to provide a copy of the agreement to the Fair Work Ombudsman within the same timeframe.

Independent Education Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established