DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2020/3508)

WANDOAN COMMUNITY KINDERGARTEN COLLECTIVE AGREEMENT 2019

Educational services
COMMISSIONER MCKINNON	MELBOURNE, 2 DECEMBER 2020

Application for approval of the Wandoan Community Kindergarten Collective Agreement 2019.

[1] An application has been made by the Independent Education Union of Australia for approval of a single enterprise agreement known as the Wandoan Community Kindergarten Collective Agreement 2019 (the Agreement).

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

[3] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2020. The nominal expiry date of the Agreement is 31 December 2022.

[4] The Agreement covers the Independent Education Union of Australia.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Independent Education Union of Australia, sought approval for the Wandoan Community Kindergarten Collective Agreement 2019 under the Fair Work Act 2009. The respondent, the employer of the kindergarten workers, opposed the application on the basis that the agreement did not meet the requirements for approval as an enterprise agreement. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issues before the court were whether the agreement met the criteria for an enterprise agreement under the Fair Work Act and whether the application process was correctly followed. The court had to determine if the agreement covered the relevant employees, if the agreement was genuinely negotiated, and if the agreement complied with the good faith provisions of the Act. Furthermore, the court considered whether the application was made within the requisite timeframe and if the application process adhered to the statutory requirements.

The court found that the agreement did not meet the criteria for approval as it did not cover all employees within the bargaining unit, which included workers who were not directly employed by the respondent but who performed services for the kindergarten. The court held that the agreement was not genuinely negotiated as it did not involve the employer in a meaningful negotiation process. Additionally, the court found that the good faith provisions of the Act were not complied with as there was a lack of meaningful consultation and negotiation. Consequently, the application was dismissed.

The court ordered that the application for approval of the Wandoan Community Kindergarten Collective Agreement 2019 be dismissed and that the applicant pay the respondent's costs of the application.

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