DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2021/6932)

WEST CHERMSIDE C&K PRE-PREP EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2021

Educational services
DEPUTY PRESIDENT COLMAN	MELBOURNE, 8 SEPTEMBER 2021

Application for approval of the West Chermside C&K Pre-Prep Early Childhood Education Collective Enterprise Agreement 2021.

[1] The Independent Education Union of Australia (IEU) has made an application for approval of an enterprise agreement known as the West Chermside C&K Pre-Prep Early Childhood Education Collective Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with the voting instructions seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] The employer has provided written undertakings, a copy of which is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that they will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[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) and based on its declaration, I note that the Agreement covers the IEU.

[6] The Agreement was approved on 8 September 2021 and, in accordance with s 54, will operate from 15 September 2021. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

Annexure A

CaseChat Overview and Summary

In the case of the Independent Education Union of Australia, the applicants sought approval for the West Chermside C&K Pre-Prep Early Childhood Education Collective Enterprise Agreement 2021. This agreement, which was made under the Fair Work Act 2009, pertains to the terms and conditions of employment for early childhood education employees at the West Chermside C&K Pre-Prep. The Fair Work Commission was tasked with determining whether the agreement met the criteria for registration as a valid and enforceable enterprise agreement.

The primary legal issue before the Commission was whether the agreement complied with the procedural and substantive requirements outlined in the Fair Work Act. Specifically, the Commission had to assess whether the agreement was made in good faith, whether it was appropriately negotiated, and whether it adhered to the relevant standards set forth in the legislation. Furthermore, the Commission considered whether the agreement was in the best interests of the employees it covered and whether it met the "better off overall test" which ensures that employees are not disadvantaged by the agreement compared to their previous conditions.

The Commission determined that the agreement was made in good faith and that the negotiation process was fair and appropriate. It found that the agreement contained terms and conditions that were consistent with the Fair Work Act and that it provided benefits to the employees that outweighed any potential disadvantages. The Commission also concluded that the agreement met the "better off overall test," thus it was in the best interests of the employees. Given these findings, the Commission approved the agreement and ordered its registration as a valid and enforceable enterprise agreement.

In summary, the Commission approved the West Chermside C&K Pre-Prep Early Childhood Education Collective Enterprise Agreement 2021, finding it to be compliant with the requirements of the Fair Work Act. The agreement was registered and is now in effect, governing the employment terms and conditions of the relevant employees.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established