Independent Education Union of Australia

[2019] FWCA 7101

[2019] FWCA 7101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2019/3455)

TARUMBAL KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2019

Educational services
DEPUTY PRESIDENT YOUNG	MELBOURNE, 14 OCTOBER 2019

Application for approval of the Tarumbal Kindergarten Early Childhood Education Collective Enterprise Agreement 2019.

[1] The Independent Education Union of Australia has made an application for approval of an enterprise agreement known as the Tarumbal Kindergarten Early Childhood Education Collective Enterprise Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and the undertaking will not result in substantial changes to the Agreement. The undertaking is 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 the accompanying statutory declaration, 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] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The application was not lodged within 14 days after the Agreement was made. The Employer provided submissions with the application as to the explanation for the late lodgment. On the basis of those submissions, pursuant to s 185(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[6] I observe that clause 5.9.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.2.2 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.

[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 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.

[8] The Agreement was approved on 14 October 2019 and, in accordance with s 54, will operate from 21 October 2019. The nominal expiry date of the Agreement is 31 December 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE505714  PR713327>

Annexure A