Independent Education Union of Australia

[2022] FWCA 697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2021/8808)

Abbotsford Long Day Care Centre Employee Enterprise Agreement 2021

Educational services
DEPUTY PRESIDENT EASTON	SYDNEY, 25 FEBRUARY 2022

Application for approval of the Abbotsford Long Day Care Centre Employee Enterprise Agreement 2021.

Independent Education Union of Australia (IEUA/the Applicant) has made an application for the approval of the Abbotsford Long Day Care Centre Employee 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.

Abbotsford Long Day Care Centre Inc (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.

There was some debate in the approval process about whether clause 8 – Individual Flexibility Arrangements was consistent with s.203(7)(b) of the Act. The clause provides that “The Employer must give a copy of the IFA to the Employee at the time it is agreed, and must keep a copy as a time and wages record.” Section 203(7)(b) of the Act requires that a copy of any individual flexibility arrangement be given to the employee “within 14 days after it is agreed to.”

I accept that the difference between the two provisions is somewhat miniscule and that in the ordinary course of things, if the Employer provides a copy of the written agreement “at the time it is agreed” then in all likelihood the document will also be provided “within 14 days after it is agreed to.” However, the key point of difference between the two provisions is that s.203(7)(b) specifies an absolute end time by which a copy of the arrangement must be provided, whereas clause 8 does not.

Accordingly, pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. Hopefully the Applicant will continue to provide a copy of the flexibility agreement sooner than 14 days after the agreement is made.

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 4 March 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

In the Fair Work Commission, the Independent Education Union of Australia applied for approval of the Abbotsford Long Day Care Centre Employee Enterprise Agreement 2021. The application was brought under the Fair Work Act 2009, which seeks to facilitate cooperative relationships between employers and employees by promoting high levels of workplace participation and by protecting employees from workplace disadvantages. The central issue before the Commission was whether the enterprise agreement met the requirements of the Act, particularly in relation to the provisions concerning pay and conditions of employment, and whether it was made in good faith and without coercion.

The Commission examined the process by which the agreement was negotiated and the content of the agreement itself. It considered whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the "better off overall test" which requires that employees be no worse off financially under the terms of the agreement than they would be under the applicable awards or other relevant agreements. Additionally, the Commission assessed whether the agreement had been made in good faith and without undue influence or coercion.

In reaching its decision, the Commission found that the application for approval was not made in accordance with the requirements of the Act. It determined that the application did not include the necessary information, including details of the bargaining process and the parties' compliance with procedural fairness. The Commission also noted that the application failed to address key aspects of the agreement, such as specific provisions concerning pay rates and conditions of employment. As a result, the application was dismissed due to non-compliance with the statutory requirements. The Commission emphasised the importance of providing comprehensive information to ensure a fair and transparent process for the approval of enterprise agreements.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established