Independent Education Union of Australia

[2019] FWCA 1725

[2019] FWCA 1725

FAIR WORK COMMISSION

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

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Annexure A