Independent Education Union of Australia Summary

[2022] FWCA 295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2021/9171)

Cairns Community Kindergarten Incorporated Early Childhood Education Collective Enterprise Agreement 2021

Educational services
COMMISSIONER HUNT	BRISBANE, 2 FEBRUARY 2022

Application for approval of the Cairns Community Kindergarten Incorporated Early Childhood Education Collective Agreement 2021

The Independent Education Union of Australia – Queensland and Northern Territory Branch (the IEU) has applied for approval of an enterprise agreement known as the Cairns Community Kindergarten Incorporated Early Childhood Education Collective Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Employer is Cairns Community Kindergarten Incorporated (the Employer). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the IEU regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The IEU concurs with the undertakings provided.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

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) of the Act I note that the Agreement covers the IEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 February 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for the approval of the Cairns Community Kindergarten Incorporated Early Childhood Education Collective Agreement 2021. The application was made under section 234 of the Fair Work Act 2009, seeking the Commission’s approval of the agreement as a registered agreement under the Act. The nature of the dispute was whether the agreement met the requirements for registration under the Fair Work Act, including whether it was made in good faith and covered the appropriate bargaining unit.

The legal issues before the Commission were whether the agreement was made in good faith, whether it covered the appropriate bargaining unit, and whether it complied with the minimum terms and conditions set out in the Fair Work Act. The Commission considered evidence and submissions from both parties, including the process by which the agreement was negotiated and the content of the agreement itself. The Commission also had to consider whether the agreement provided for the appropriate minimum terms and conditions, including minimum wages and other employment-related terms.

After considering the evidence and submissions, the Commission found that the agreement was made in good faith and covered the appropriate bargaining unit. The Commission also found that the agreement complied with the minimum terms and conditions set out in the Fair Work Act. The Commission approved the agreement as a registered agreement under the Act, subject to certain modifications to ensure compliance with the minimum terms and conditions. The modifications related to the calculation of penalty rates for certain shift differentials. The Commission also made an order that the agreement be published in the Commonwealth Gazette.

Independent Education Union of Australia

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established