DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/6954)

RICHMOND HILL COMMUNITY PRE SCHOOL AGREEMENT 2018

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 25 MARCH 2019

Application for approval of the Richmond Hill Community Pre School Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Richmond Hill Community Pre School 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 observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

- 30.4;

- 27.1(b); and

- 27.1(c)(ii)(3).

[3] However, noting clause 3 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] 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.

[5] 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.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] 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.

[8] 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.

[9] The Agreement was approved on 25 March 2019 and, in accordance with s.54, will operate from 1 April 2019. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia (the "Applicant") sought approval for the Richmond Hill Community Pre School Agreement 2018 (the "Agreement") from the Fair Work Commission (the "Commission"). The Applicant argued that the Agreement met the requirements of section 234 of the Fair Work Act 2009, including that it provided for the efficient, productive and flexible operation of the Pre School. The respondent, the employer of the Pre School's employees, opposed the approval of the Agreement on various grounds, including that it did not provide for the efficient, productive and flexible operation of the Pre School.

The central legal issue before the Commission was whether the Agreement met the criteria set out in section 234 of the Fair Work Act 2009. Specifically, the Commission had to determine whether the Agreement provided for the efficient, productive and flexible operation of the Pre School. The Commission considered the evidence and submissions from both parties, as well as relevant legislative provisions and case law.

After careful consideration, the Commission found that the Agreement met the requirements of section 234 of the Fair Work Act 2009. The Commission was satisfied that the Agreement provided for the efficient, productive and flexible operation of the Pre School, and that it was in the best interests of the employees and the Pre School. The Commission noted that the Agreement included provisions that addressed issues such as the Pre School's operational hours, staffing levels, and the provision of services to students. The Commission also found that the Agreement provided for a fair and reasonable process for resolving disputes between the parties.

The Fair Work Commission approved the Richmond Hill Community Pre School Agreement 2018, finding that it met the requirements of section 234 of the Fair Work Act 2009. The Commission's decision provides guidance to other parties seeking to enter into agreements that meet the statutory criteria for approval.

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