DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2020/3113)

C & K FORESTVIEW COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2020

Educational services
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 NOVEMBER 2020

Application for approval of the C & K Forestview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the C & K Forestview Community Kindergarten Early Childhood Education Collective 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] 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, 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 note that Clause 5.4.1(a) is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 1.2.2 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[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 wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 November 2020. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia sought approval of the C & K Forestview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2020 in the Fair Work Commission. The applicant union sought to have the agreement approved, which aimed to regulate the employment terms and conditions for early childhood educators working at the Forestview Community Kindergarten. The dispute involved the interpretation and application of the Fair Work Act 2009, specifically regarding the approval process for enterprise agreements and whether the agreement met the criteria for being "fair and reasonable."

The central legal issues were whether the agreement was genuinely a product of bargaining and whether it met the "better off overall test" as required by the Fair Work Act. The union argued that the agreement was a genuine result of negotiations and provided a fair and reasonable outcome for the employees. The Commission had to examine the process by which the agreement was negotiated and whether it complied with the legislative requirements for approval. Additionally, the Commission considered whether the agreement provided benefits to the employees that outweighed any detriments, thus satisfying the "better off overall test."

The Fair Work Commission found that the agreement was genuinely negotiated and met the legislative criteria for approval. The Commission noted that the agreement was the result of a genuine bargaining process between the union and the employer. It further found that the agreement provided overall benefits to the employees, satisfying the "better off overall test." The Commission concluded that the agreement was fair and reasonable and approved it under the Fair Work Act. The decision emphasised the importance of genuine bargaining and the need for agreements to provide a fair outcome for employees.

The Fair Work Commission approved the C & K Forestview Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2020. The approval was subject to the agreement being registered with the Registrar of the Fair Work Commission. The Commission also noted that any disputes arising under the agreement would be governed by the Fair Work Act and the relevant provisions of the agreement. This decision provides clarity on the approval process for enterprise agreements and reinforces the importance of genuine bargaining and fair outcomes for 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