Independent Education Union of Australia

[2021] FWCA 2242

[2021] FWCA 2242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia
(AG2021/4478)

NORTH BRIGHTON PRE SCHOOL COMMUNITY KINDERGARTEN AGREEMENT 2020

Children's services
COMMISSIONER CIRKOVIC	MELBOURNE, 22 APRIL 2021

Application for approval of the North Brighton Pre School Community Kindergarten Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the North Brighton Pre School Community Kindergarten Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Independent Education Union of Australia (IEUA). The Agreement is a single enterprise agreement.

[2] The Agreement lodged contained an error at page 24-5, clause 26. On 21 April 2022, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[3] The employer has provided written undertakings. A copy of the undertakings 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 the undertakings will not result in substantial changes to the Agreement.

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

[5] The IEUA, 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) I note that the Agreement covers the organisation.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 26.6

•  Clause 26.7

•  Clause 26.8

[7] However, having regard to the undertakings provided by the employer, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement was approved on 22 April 2021 and, in accordance with s.54, will operate from 29 April 2021. The nominal expiry date of the Agreement is 29 April 2024.

COMMISSIONER

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ANNEXURE A-