Independent Education Union of Australia

[2021] FWCA 6462

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2021/7979)

CALOUNDRA COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT BOYCE	SYDNEY, 28 OCTOBER 2021

Application for approval of the Caloundra Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2021

[1] An application has been made or approval of an enterprise agreement to be known as the Caloundra Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Caloundra Community Kindergarten Association Inc (Employer). The Agreement is a single enterprise agreement.

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

[3] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved the Independent Education Union of Australia and was heard in the Fair Work Commission. The union sought approval of the Caloundra Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2021, which had been negotiated with the employer. The union argued that the agreement was fair and reasonable, while the employer contested certain provisions, including those related to pay rates and conditions.

The Commission was required to determine whether the agreement was fair and reasonable in terms of the criteria set out in the Fair Work Act 2009. This involved assessing whether the agreement met the requirements for procedural fairness, including whether the agreement was genuinely negotiated, and whether it met the substantive fairness test, which required the agreement to be free from coercion, undue influence, and to provide for terms and conditions that were fair and reasonable. The Commission also had to consider whether the agreement provided for terms and conditions that were no worse off than the relevant award or safety net award.

The Commission found that the agreement was procedurally fair, having been genuinely negotiated between the parties. The substantive fairness test was also met, with the Commission determining that the agreement did not contain any terms that were coercive or influenced unduly. The Commission further found that the agreement provided for terms and conditions that were no worse off than the relevant award or safety net award, and that the agreement was fair and reasonable. The Commission approved the agreement, finding that it met all the relevant criteria. The employer was ordered to implement the agreement from the date of the decision.

CaseChat Overview and Summary

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Legal Principle Established