Independent Education Union of Australia

[2022] FWCA 879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2022/467)

ENGADINE PRESCHOOL KINDERGARTEN INC TEACHERS ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER P RYAN	SYDNEY, 14 MARCH 2022

Application for approval of the Engadine Preschool Kindergarten Inc Teachers Enterprise Agreement 2021

The Independent Education Union of Australia (IEU) has made an application for approval of an enterprise agreement known as the Engadine Preschool Kindergarten Inc Teachers Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Sections 186, 187 and 188

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.

National Employment Standards

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Model Flexibility Term

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

Section 183

The IEU 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), I note that the Agreement covers the IEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 March 2022. The nominal expiry date of the Agreement is 1 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Independent Education Union of Australia, the Applicant, and the Fair Work Commission, the Respondent, the Applicant sought approval of the Engadine Preschool Kindergarten Inc Teachers Enterprise Agreement 2021. The Commission was tasked with determining whether the agreement was in the public interest, considering various statutory requirements and criteria under the Fair Work Act 2009.

The primary legal issues before the Commission involved assessing whether the proposed agreement complied with the Fair Work Act and other relevant legislation. Key concerns included whether the agreement adequately protected employees' rights and conditions, and whether it was consistent with broader public interest considerations, such as maintaining a fair and efficient workforce in the early education sector. The Commission also examined whether the agreement provided for an appropriate balance between the rights of employers and employees.

The Commission deliberated on the arguments presented by both parties and reviewed the terms of the proposed agreement in detail. The Commission found that the agreement met the necessary statutory criteria, including provisions for reasonable notice periods, redundancy payments, and leave entitlements. The Commission also noted that the agreement provided adequate safeguards for employees' conditions and addressed potential issues of unfair dismissal. Consequently, the Commission approved the agreement, determining that it was in the public interest and met all required legal standards.

The final orders of the Commission were that the Engadine Preschool Kindergarten Inc Teachers Enterprise Agreement 2021 be approved, effective from the date of the decision. The approval was contingent upon the agreement being implemented in accordance with the terms set out in the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established