Independent Education Union of Australia

[2022] FWCA 697

[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.

1. 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.

1. 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.

1. 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.

1. 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.”

1. 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.

1. 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.

1. 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.

1. 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

<AE515148 PR738759>

Annexure A