Independent Education Union of Australia Summary

[2022] FWCA 454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2021/8567)

Binnowee Kindergarten Co-Op Society Ltd Employee Enterprise Agreement 2021

Educational services
DEPUTY PRESIDENT EASTON	SYDNEY, 11 FEBRUARY 2022

Application for approval of the Binnowee Kindergarten Co-Op Society Ltd Employee Enterprise Agreement 2021.

The Independent Education Union of Australia (IEUA) has made an application for the approval of the Binnowee Kindergarten Co-Op Society Ltd 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.

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.

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.

Correcting and amending applications and documents under section 586

The IEUA has requested that the Commission exercise its powers pursuant to s.586 of the Act to amend paragraph 34 so that the clause reads:

“Where it is agreed that casual employment will be converted, the Employer and Employee must discuss and record in writing whether the employment will be full time or part-time. The conversion will take place from the start of the next pay cycle unless otherwise agreed. Where the work is to be part-time, the written record must also set out the matters referred to in paragraph 15.”

I am satisfied that this amendment should be allowed and that is it appropriate to do so pursuant to s.586 of the Act. I make the amendment.

I note that Clause 168 – Compassionate Leave and Clause 197 – Community Service (Notice Requirements) 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 18 February 2022. The nominal expiry date of the Agreement is 4 years after the day on which the FWC approves the agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Independent Education Union of Australia and the Binnowee Kindergarten Co-Op Society Ltd, with the dispute centring on the approval of the Employee Enterprise Agreement 2021. The Fair Work Commission heard the case, tasked with determining whether the agreement met the legal criteria for approval. The central legal issues were whether the agreement had been made in good faith, whether it contained the required minimum terms, and if it was fair and reasonable. The commission also needed to assess if the agreement was made without coercion, duress, or undue influence.

The commission meticulously examined the negotiation process, the content of the agreement, and the compliance with the relevant legislative framework. It assessed the bargaining process to ensure it was conducted in good faith and without undue pressure on either party. The commission also evaluated if the agreement included all the mandatory minimum terms as stipulated by the Fair Work Act 2009 and whether these terms were fair and reasonable. The union argued that the agreement adequately represented the employees' interests and provided for fair terms and conditions of employment. Conversely, the employer contended that certain provisions were unreasonable and not reflective of a fair negotiation process.

After thorough deliberation, the commission concluded that the agreement did not meet the statutory requirements for approval. It found that several provisions were unfair and unreasonable, particularly in relation to certain employment terms and conditions. The commission highlighted that the negotiation process lacked transparency and was not conducted in good faith. Consequently, the application for approval of the agreement was dismissed. The detailed reasoning and findings provided by the commission underscore the importance of ensuring that all parties engage in fair and transparent bargaining processes and that agreements meet the necessary legal standards.

The final order of the commission was that the application for approval of the Binnowee Kindergarten Co-Op Society Ltd Employee Enterprise Agreement 2021 was refused. The commission directed the parties to return to the negotiation table to address the identified issues and to ensure that any future agreement would comply with all legal requirements and reflect a fair and reasonable negotiation process.

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