DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/7141)

WOMBATS PLAYSCHOOL INC EMPLOYEE COLLECTIVE AGREEMENT 2018

Educational services
COMMISSIONER CIRKOVIC	MELBOURNE, 16 MARCH 2019

Application for approval of the Wombats Playschool Inc Employee Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Wombats Playschool Inc Employee 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 the 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):

• 25.1(c)(ii)(3);

• 25.1(d);

• 32;

• 33.4; and

• 38.1(a)

[3] However, noting clause 7.2 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.

[4] 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. 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.

[5] 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.

[6] 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 September 2021.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Employee Collective Agreement 2018, entered into between the Independent Education Union of Australia and the employer, Wombats Playschool Inc. The union sought to have the agreement recognised as a certified agreement under the Fair Work Act 2009, which would provide it with certain protections and benefits for its members. The employer, Wombats Playschool Inc, did not oppose the application but expressed concerns about specific provisions in the agreement.

The primary legal issue before the Commission was whether the collective agreement complied with the requirements of the Fair Work Act. This involved assessing whether the agreement contained the necessary provisions for minimum terms and conditions of employment and whether it was consistent with the principles of the Fair Work Act, including the protection of vulnerable workers and compliance with the National Employment Standards. The Commission also had to consider whether any provisions in the agreement were inconsistent with the Act or contrary to the public interest.

The Fair Work Commission determined that the collective agreement substantially complied with the requirements of the Fair Work Act. The Commission noted that while there were some minor technical issues with certain provisions, these did not detract from the overall compliance of the agreement. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, and that it did not contain any provisions that were inconsistent with the Act or contrary to the public interest. As a result, the Commission approved the agreement as a certified agreement, effective from the date of the decision.

The Fair Work Commission approved the Employee Collective Agreement 2018 as a certified agreement, effective from the date of the decision. This decision provides the Independent Education Union of Australia with the protections and benefits afforded by the Fair Work Act, including the ability to represent its members in matters relating to the agreement. The decision also ensures that the employees of Wombats Playschool Inc are provided with fair and reasonable terms and conditions of employment, consistent with the principles of the Fair Work Act.

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