DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2019/2173)

GAYTHORNE COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2018

Children's services
COMMISSIONER JOHNS	SYDNEY, 22 JULY 2019

Application for approval of the Gaythorne Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Gaythorne Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2018 (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] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 July 2019. The nominal expiry date of the Agreement is 31 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia lodged an application before the Fair Work Commission for approval of the Gaythorne Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2018. The agreement in question was reached between the union and the employer, Gaythorne Community Kindergarten, for the purpose of regulating employment terms and conditions for employees. The primary concern of the application was whether the agreement met the necessary criteria under the Fair Work Act 2009.

The Fair Work Commission was required to determine if the agreement complied with the requirements set forth in the Fair Work Act. Specifically, the Commission needed to assess whether the agreement had been negotiated in good faith, if it contained the essential safety net terms, and if it was free from any prohibited content. The union argued that the agreement was fairly negotiated and contained all necessary terms, while the employer raised concerns about the inclusion of certain provisions.

In its decision, the Fair Work Commission found that the agreement had indeed been negotiated in good faith and contained all the essential safety net terms. However, the Commission identified certain provisions that were inconsistent with the Fair Work Act, including clauses that imposed certain conditions on the employees' ability to seek legal advice and to take certain industrial action. The Commission determined that these clauses were prohibited content under the Act and therefore invalid. Despite these findings, the Commission approved the agreement, with the invalid clauses removed.

The Fair Work Commission approved the Gaythorne Community Kindergarten Early Childhood Education Collective Enterprise Agreement 2018, with the invalid clauses removed. The Commission ordered that the agreement be registered with the Registrar of the Fair Work Commission, and that it would come into effect on the date of registration.

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