DECISION

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

Independent Education Union of Australia
(AG2021/4264)

KOOKABURRA CREEK KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2020

Educational services
COMMISSIONER SPENCER	BRISBANE, 1 APRIL 2021

Application for approval of the Kookaburra Creek Kindergarten Early Childhood Education Collective Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Kookaburra Creek Kindergarten Early Childhood Education Collective Enterprise 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 (the Applicant). The Agreement is a single enterprise agreement.

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

[3] 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 it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 April 2021. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, the Independent Education Union of Australia, sought approval of the Kookaburra Creek Kindergarten Early Childhood Education Collective Enterprise Agreement 2020. The respondent, Kookaburra Creek Kindergarten, opposed the application, arguing that certain provisions of the agreement were inconsistent with applicable laws and regulations. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether the contested provisions of the agreement complied with the Fair Work Act 2009 and relevant regulations. The Commission had to assess whether these provisions aligned with the requirements set forth by the Act and whether they unfairly disadvantaged any party. Additionally, the Commission examined whether the agreement contained mandatory terms as defined by the Act.

The Commission found that certain provisions of the agreement were inconsistent with the Fair Work Act and regulations, specifically in relation to the minimum hourly rates of pay and the definition of overtime. The Commission concluded that these provisions unfairly disadvantaged the respondents by imposing additional costs and obligations that were not justified. However, the Commission also found that other provisions of the agreement were consistent with the Act and did not unfairly disadvantage any party. Consequently, the Commission approved the agreement with modifications to the contested provisions, ensuring compliance with the Act and regulations.

The Commission ordered that the Kookaburra Creek Kindergarten Early Childhood Education Collective Enterprise Agreement 2020 be approved with the modifications to the contested provisions, as set out in the decision. The modifications included adjusting the minimum hourly rates of pay and the definition of overtime to align with the Fair Work Act and regulations. The agreement was to be deemed approved as modified from 1 July 2020.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established