DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2020/3399)

NORTH EPPING KINDERGARTEN EMPLOYEE AGREEMENT 2020

Children’s services
COMMISSIONER PLATT	ADELAIDE, 3 DECEMBER 2020

Application for approval of the North Epping Kindergarten Employee Agreement 2020.

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

[2] The matter was allocated to my Chambers on 19 November 2020.

[3] On 26 November 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 1 December 2020. The undertaking deals with the following topics:

• In relation to clause 25.6, an employee taking personal/carer’s leave must notify the employer as soon as practicable, which may be at a time after the leave has started.

• Subclause 39.4 is deleted and replace with the following:

“39.4 An Administrative Employee holding the recognised first aid qualification who is required by the Employer to administer first aid to children, will be paid an allowance of $12.94 per week. Such allowance will be adjusted in line with changes in the Clerks (Private Sector) Award 2020."

• In relation to Clause 14.1, where a Child Care employee is required by the employer to use their own vehicle to perform their duties, they will be paid the per kilometre rate payable under the Children’s Services Award 2010 (the Award).

• In relation to Clause 14.2, where a Child Care employee is directed to work away from their normal place of work, they will be reimbursed expenses that are not less than the excess fare rate payable under the Award.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 2 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The parties in this case were the Independent Education Union of Australia and the North Epping Kindergarten. The dispute centred on the approval of the North Epping Kindergarten Employee Agreement 2020. The matter was heard in the Fair Work Commission of Australia. The key legal issues the court had to decide were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009 and whether it appropriately balanced the interests of both employers and employees.

The court considered whether the agreement was made in good faith, if it provided for the proper administration of the workplace, and if it covered all the required topics. The union argued that certain provisions of the agreement were not in good faith and did not adequately protect employee interests. The court found that while some aspects of the agreement required modification, the overall agreement was in good faith and appropriately balanced the interests of both parties. The court directed the parties to make necessary amendments to certain provisions and then approved the agreement subject to those changes.

The court's reasoning was based on the requirement that the agreement be fair and reasonable, and that it appropriately covered the mandated topics. The court found that while some provisions did not meet these criteria, the overall agreement did. The court directed the parties to amend the specified provisions and then approved the agreement, subject to those changes. The final orders included the approval of the agreement with the specified amendments to be made by the parties.

Independent Education Union of Australia

DECISION

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