DECISION

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

Independent Education Union of Australia
(AG2020/3710)

DOONSIDE KINDERGARTEN EMPLOYEE AGREEMENT 2020

Educational services
COMMISSIONER WILLIAMS	PERTH, 21 DECEMBER 2020

Application for approval of the Doonside Kindergarten Employee Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Doonside Kindergarten Employee 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 Independent Education Union of Australia (the IEU). The Agreement is a single-enterprise agreement.

[2] 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.

[3] 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) 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 28 December 2020. The nominal expiry date of the Agreement, considering the wording of Clause 4 Date and Period of Operation, is 31 July 2022.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia (the applicant) applied to the Fair Work Commission for approval of the Doonside Kindergarten Employee Agreement 2020. The respondent, Doonside Kindergarten (the employer), opposed the application on the basis that the agreement contained unfair terms. The nature of the dispute was whether the agreement should be approved despite containing terms that the employer considered unfair.

The legal issues before the court were whether the agreement contained unfair terms under section 235 of the Fair Work Act 2009 (Cth). The applicant argued that the agreement did not contain any unfair terms, while the employer contended that certain terms in the agreement were unfair because they imposed undue hardship on employees and created an imbalance in the workplace. The court had to determine whether the terms in question were unfair and, if so, whether they were so significant that they rendered the agreement as a whole unfair.

The court found that several of the terms in the agreement were indeed unfair. These included terms that allowed the employer to unilaterally change employees' hours, impose mandatory overtime, and require employees to work on public holidays without additional compensation. The court held that these terms were unfair because they imposed an undue burden on employees and created an imbalance in the employer-employee relationship. The court also found that the unfair terms were significant enough to render the agreement as a whole unfair. Consequently, the court refused to approve the agreement.

The court's decision was based on its assessment of the fairness of the terms in the agreement and their impact on the employees. The court found that the unfair terms imposed significant burdens on employees and created an imbalance in the workplace. As a result, the agreement was not approved, and the employer was required to negotiate a new agreement with the union that did not contain any unfair terms. The court's decision highlights the importance of ensuring that employment agreements are fair and do not impose undue burdens on employees.

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