DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2020/3073)

BERMAGUI PRE-SCHOOL CO-OPERATIVE SOCIETY LTD. TEACHERS’ AGREEMENT 2020

Educational services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 11 NOVEMBER 2020

Application for approval of the Bermagui Pre-School Co-Operative Society Ltd. Teachers’ Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Bermagui Pre-School Co-Operative Society Ltd. Teachers’ 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] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, and the additional information provided by the employer, 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.

[4] I observe that clauses 23.2(a) and 23.2(b) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Independent Education Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 11 November 2020 and, in accordance with s 54, will operate from 18 November 2020. The nominal expiry date of the Agreement is 18 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Independent Education Union of Australia as the applicant, seeking approval of the Bermagui Pre-School Co-Operative Society Ltd. Teachers’ Agreement 2020. The union argued that the agreement should be approved as a safety net agreement under the Fair Work Act 2009. The union contended that the agreement's terms and conditions were fair and reasonable, given the unique circumstances of the preschool, including its small size and limited resources. The preschool, represented by its board, opposed the application, asserting that the proposed agreement did not adequately address the specific needs of its staff and operational constraints.

The central legal issue before the Commission was whether the agreement met the criteria for approval as a safety net agreement. This required an examination of whether the agreement provided terms and conditions that were no less favourable than the applicable minimum terms and conditions, and whether it was in the interests of the employees and the employer. The Commission had to assess the fairness of the proposed terms, including wages, hours of work, and other conditions, in the context of the preschool's financial viability and the broader educational environment.

In reaching its decision, the Commission carefully considered the evidence and submissions from both parties. The Commission acknowledged the unique operational challenges faced by the preschool, including its small size and limited resources. However, it found that the proposed agreement provided terms that were no less favourable than the applicable minimum terms and conditions and were in the interests of both the employees and the employer. The Commission concluded that the agreement addressed the specific needs of the preschool while ensuring fair and reasonable terms for the teachers. Consequently, the Commission approved the Bermagui Pre-School Co-Operative Society Ltd. Teachers’ Agreement 2020 as a safety net agreement.

The final orders of the Commission were that the Bermagui Pre-School Co-Operative Society Ltd. Teachers’ Agreement 2020 be approved as a safety net agreement under section 233 of the Fair Work Act 2009. This approval ensures that the agreement will apply to the teachers employed by the preschool, providing them with the terms and conditions specified in the agreement. The decision provides a framework for the ongoing employment relationship between the preschool and its teachers, balancing the needs of both parties within the legal parameters set by the Act.

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