Independent Education Union of Australia

[2021] FWCA 7290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2021/8794)

HOLLAND PARK KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2021

Educational services
COMMISSIONER HUNT	BRISBANE, 24 DECEMBER 2021

Application for approval of the Holland Park Kindergarten Early Childhood Education Collective Enterprise Agreement 2021

[1] The Independent Education Union of Australia (IEU) has applied for approval of an enterprise agreement known as the Holland Park Kindergarten Early Childhood Education Collective Enterprise Agreement 2021 (the Agreement). The Agreement covers some employees employed by Holland Park Kindergarten Association Inc (the Employer). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] 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 advised that it concurred with the undertaking provided by the Employer

[3] 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.

[4] 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia applied for the approval of the Holland Park Kindergarten Early Childhood Education Collective Enterprise Agreement 2021. The application was made in response to a request by the Holland Park Kindergarten for an enterprise agreement. The union argued that the proposed agreement was fair and reasonable, while the kindergarten contended that certain provisions were unfair and should be rejected. The central issues before the commission were whether the proposed agreement was consistent with the principles of enterprise bargaining and whether it contained any unfair provisions.

The commission first examined whether the proposed agreement was genuinely an enterprise agreement within the meaning of the Fair Work Act. It found that the agreement was made between the union and the kindergarten and covered the employees of the kindergarten. The commission then assessed whether the agreement was procedurally fair, considering whether the union had provided adequate notice to the employees, whether the employees had an opportunity to be represented, and whether the agreement had been negotiated in good faith. The commission concluded that the agreement was procedurally fair.

The commission also considered whether the agreement contained any unfair provisions. It noted that the agreement included provisions on minimum rates of pay, leave entitlements, and dispute resolution mechanisms. The commission found that the proposed agreement was fair and reasonable overall, despite some minor concerns about certain provisions. The commission approved the agreement subject to minor amendments to address the identified issues.

The final orders of the commission were that the Holland Park Kindergarten Early Childhood Education Collective Enterprise Agreement 2021 be approved with the specified amendments. The union and the kindergarten were directed to take all necessary steps to give effect to the approved agreement. The commission's decision provides clarity on the approval process for enterprise agreements and sets out the criteria for assessing their fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established