DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/6771)

ENGADINE PRE-SCHOOL KINDERGARTEN INC. TEACHERS COLLECTIVE AGREEMENT 2018

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 16 MARCH 2019

Application for approval of the Engadine Pre-School Kindergarten Inc Teachers Collective Agreement 2018.

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

• 23(a)(ii);

• 24.1(a), (b), (c;

• 24.3(b);

• 24.5; and

• 31.2.

[4] However, noting 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 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for the approval of the Engadine Pre-School Kindergarten Inc Teachers Collective Agreement 2018. The respondents to the application were Engadine Pre-School Kindergarten Inc, which operates a kindergarten in Sydney, and its teachers, who are members of the union. The nature of the dispute was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. The application was heard by the Commission sitting in its single member capacity, with Deputy President K F Wilson presiding.

The legal issues before the court were whether the proposed agreement provided for the proper administration of the workplace and whether it contained the necessary minimum terms and conditions. In considering these issues, the court had to examine the content of the agreement and its compatibility with the legislative framework. Specifically, the court needed to determine if the agreement provided for a fair and efficient process for resolving disputes, and if it contained provisions that were consistent with the broader principles of the Fair Work Act.

The court found that the proposed agreement was in substantial compliance with the legislative requirements. It contained provisions for the resolution of disputes through a conciliation and arbitration process, which the court considered to be adequate. Furthermore, the agreement included minimum terms and conditions that were consistent with the provisions of the Fair Work Act. The court also noted that the agreement had been negotiated in good faith and reflected the interests of both parties. As a result, the court approved the agreement, finding that it met the necessary criteria for approval.

In light of the approval, the court made an order that the Engadine Pre-School Kindergarten Inc Teachers Collective Agreement 2018 be approved as a registered agreement under section 175 of the Fair Work Act 2009. The agreement was to be registered by the Fair Work Commission and would have effect from the date of the order. The court also made orders for the publication of the approved agreement and for the giving of notice to the parties and other relevant persons.

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