Independent Education Union of Australia

[2021] FWCA 6518

[2021] FWCA 6518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2021/7717)

ESK AND DISTRICT KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 NOVEMBER 2021

Application for approval of the Esk and District Kindergarten Early Childhood Education Collective Enterprise Agreement 2021

[1] The Independent Education Union of Australia (the Applicant/the IEU) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Esk and District Kindergarten Early Childhood Education Collective Enterprise Agreement 2021 (the Agreement). The IEU is a bargaining representative for the Agreement and makes the application for approval in that capacity. The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Agreement is made between Esk and District Kindergarten Assn Inc (the Employer) and its employees, as described in the Agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the Better Off Overall Test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 3.3.1(e) – Termination by Employer;

•  Clause 3.3.2(a) – Resignation by Employee; and

•  Clause 3.3.2(b) – Resignation by Employee.

[4] I note clause 1.2.2 of the Agreement provides that where any provision of the NES is inconsistent with the Agreement, and the NES is more beneficial to the employee, the NES will prevail. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[5] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement and the Form F17 Employer’s declaration in support of an application for approval of the Agreement that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met.

[6] The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by IEU, I note that the Agreement covers this organisation.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 10 November 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A