DECISION

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

Independent Education Union of Australia
(AG2020/3600)

WALLSEND COMMUNITY PRESCHOOL INC. TEACHERS ENTERPRISE AGREEMENT 2020

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 14 DECEMBER 2020

Application for approval of the Wallsend Community Preschool Inc. Teachers Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Wallsend Community Preschool Inc. Teachers 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 Independent Education Union of Australia. 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

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

• Clause 23.2(a);

• Clause 23.2(c);

• Clause 24.2; and

• Clause 32.

[5] However, noting clause 3.2 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] I note that clause 4 of the Agreement states that the Agreement commences operation on the date on which it is approved in accordance with the Fair Work Commission which differs from the requirements of s.54(1) of the Act.

[7] The Agreement was approved on 14 December 2020 and, in accordance with s.54, will operate from 7 days from the date of approval of the Agreement, being 21 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Independent Education Union of Australia, the applicant sought approval of the Wallsend Community Preschool Inc. Teachers Enterprise Agreement 2020. The respondent, the New South Wales Industrial Relations Commission, was tasked with determining whether the agreement met the statutory requirements for approval. The court was required to assess the agreement's compliance with the relevant provisions of the Industrial Relations Act 1996.

The central legal issues revolved around the interpretation and application of the statutory criteria for the approval of enterprise agreements under the Act. Specifically, the court had to examine whether the agreement was made in good faith, whether it contained the essential attributes as outlined in the Act, and whether it complied with the procedural requirements for approval. The court also needed to consider whether the agreement met the specific requirements for a teachers' enterprise agreement, including the need for it to address particular matters such as working conditions, remuneration, and other employment terms.

The court meticulously reviewed the provisions of the agreement and the evidence provided by the parties. It concluded that the agreement was made in good faith and contained all the essential attributes required by the Act. Furthermore, the court found that the agreement adhered to the necessary procedural steps for approval and specifically addressed the matters pertinent to a teachers' enterprise agreement. Based on these findings, the court approved the Wallsend Community Preschool Inc. Teachers Enterprise Agreement 2020.

The final orders of the court included the approval of the agreement, which would now be binding on the parties involved, providing a framework for the terms and conditions of employment for the teachers at Wallsend Community Preschool Inc.

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