Independent Education Union of Australia

[2022] FWCA 1461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/1171)

Staverton Kindergarten Early Childhood Enterprise Agreement 2021

Educational services
DEPUTY PRESIDENT EASTON	SYDNEY, 29 APRIL 2022

Application for approval of the Staverton Kindergarten Early Childhood Enterprise Agreement 2021.

Independent Education Union of Australia (130N) (IEUA/the Applicant) has made an application for the approval of the Staverton Kindergarten Early Childhood Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Staverton Kindergarten Association Incorporated (the Employer) has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 5.4 – Compassionate Leave and Clause 5.8.1 – Public Holidays are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The IEUA was a bargaining representative for the Agreement and 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 IEUA.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, the Independent Education Union of Australia, applied for the approval of the Staverton Kindergarten Early Childhood Enterprise Agreement 2021. The application was heard in the Fair Work Commission. The union argued that the agreement provided for the appropriate terms and conditions of employment for the employees of the kindergarten, and that it complied with the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement was genuinely a product of bargaining between the parties, whether it complied with the minimum standards set out in the National Employment Standards, and whether it contained appropriate dispute resolution provisions. The Commission found that the agreement was genuinely the product of bargaining between the parties, and that it complied with the minimum standards set out in the NES. The Commission also found that the dispute resolution provisions were appropriate, and that the agreement was in the best interests of the employees.

The Commission approved the agreement, subject to certain modifications to ensure compliance with the NES. The modifications included changes to the provisions relating to leave entitlements and the classification of certain employees. The Commission noted that the union had agreed to the modifications, and that they were necessary to ensure compliance with the Act. The union did not appeal the decision, and the agreement was approved as modified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established