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

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia brought an application before the Fair Work Commission, seeking approval of the Tarumbal Kindergarten Early Childhood Education Collective Enterprise Agreement 2019. The application was made under section 233 of the Fair Work Act 2009. The primary issue before the Commission was whether the agreement met the requirements of the Act, specifically whether it provided for the fair and equitable treatment of employees and whether it complied with the good faith bargaining provisions. Additionally, the Commission had to consider whether the agreement was in the best interests of the employees it covered.

The Commission examined the terms and conditions of the agreement, including provisions related to pay rates, hours of work, and leave entitlements. The Commission also considered the process by which the agreement was negotiated and whether it was done in good faith. In reaching its decision, the Commission gave weight to the evidence provided by both parties, including submissions and witness testimonies. After careful consideration, the Commission found that the agreement was fair and equitable and that it had been negotiated in good faith. The Commission was satisfied that the agreement was in the best interests of the employees it covered and approved it under section 234 of the Fair Work Act 2009.

The Commission made an order approving the Tarumbal Kindergarten Early Childhood Education Collective Enterprise Agreement 2019. The order was made under section 234(1) of the Fair Work Act 2009. The agreement was approved as a registered agreement and will have effect from 1 July 2019. The Commission also made an order under section 235(2) of the Act that the agreement be published on the Fair Work Commission's website. The decision of the Commission is final and binding on all parties covered by the agreement.

Independent Education Union of Australia

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established