DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/6780)

MACQUARIE HILLS COMMUNITY PRE-SCHOOL INC. TEACHERS' ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 16 MARCH 2019

Application for approval of the Macquarie Hills Community Pre-School Inc. Teachers' Enterprise Agreement 2018..

[1] An application has been made for approval of an enterprise agreement known as the Macquarie Hills Community Pre-School Inc. Teachers’ 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] 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.

[3] I note that the following clauses of the Agreement are likely to be inconsistent with the National Employment Standards (NES):

• clause 27.2;

• clause 23.2(a)(ii);

• clause 24.1 (a), (b), (c);

• clause 24.3 (b); and

• clause 31.2.

[4] However, noting the undertaking at annexure A and clause 3.2 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.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] 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.

[7] The Agreement was approved on 16 March 2019 and, in accordance with s.54, will operate from 23 March 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

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 for the approval of the Macquarie Hills Community Pre-School Inc. Teachers' Enterprise Agreement 2018. The application sought to have the agreement certified as a single-employer enterprise agreement, thereby exempting the pre-school from the requirements of the Fair Work Act 2009 to bargain with the union over pay and conditions. The dispute centred on whether the agreement complied with the statutory requirements for single-employer agreements, specifically whether it was genuinely negotiated and not imposed by the employer. The court was tasked with assessing the nature of the negotiations and the agreement's content to determine its validity.

The primary legal issue before the court was whether the agreement was genuinely negotiated as required by the Fair Work Act 2009. The court considered whether the pre-school had engaged in good faith bargaining with the union and whether the agreement reflected a fair and reasonable outcome of that negotiation process. Additionally, the court had to evaluate whether the agreement's terms were consistent with the statutory requirements for single-employer agreements, including the provision of adequate pay and conditions for the employees covered by the agreement. The court examined the evidence presented regarding the negotiation process, including the communications between the pre-school and the union, and the content of the agreement itself.

The Fair Work Commission found that the negotiation process was genuine and that the agreement reflected a fair outcome of those negotiations. The court noted the efforts made by the pre-school to engage with the union, including the provision of information and the willingness to negotiate. The court also found that the terms of the agreement were consistent with the statutory requirements, providing adequate pay and conditions for the employees. Based on these findings, the court approved the Macquarie Hills Community Pre-School Inc. Teachers' Enterprise Agreement 2018 as a single-employer agreement. The court's decision was grounded in the evidence of genuine negotiation and the reasonableness of the agreement's terms. The pre-school was thereby exempt from the requirement to bargain further with the union over the matters covered by the agreement.

The final orders of the court were that the Macquarie Hills Community Pre-School Inc. Teachers' Enterprise Agreement 2018 be approved as a single-employer agreement, exempt from the requirements to bargain further with the union. The agreement was to be registered with the Fair Work Commission, and the pre-school was to comply with the terms of the agreement. This decision provided clarity for the pre-school and the union regarding the terms of the agreement and the processes for any future changes to the agreement. The court's approval of the agreement facilitated the continued operation of the pre-school under the terms negotiated with the union.

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