DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/5297)

WILMORE KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2018

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 FEBRUARY 2019

Application for approval of the Willmore Kindergarten Early Childhood Education Collective Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Willmore Kindergarten Early Childhood Education Collective Enterprise Agreement 2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Independent Education Union of Australia (IEU). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, 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] The IEU 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) of the Act, I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2019. The nominal expiry date of the Agreement is 31 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia sought approval of the Willmore Kindergarten Early Childhood Education Collective Enterprise Agreement 2018, which was entered into with the Willmore Kindergarten. The application was made to the Fair Work Commission under section 231 of the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, specifically whether it contained only permissible provisions and was free from prohibited content.

The court had to determine if the agreement contained only permissible provisions, whether it adhered to the criteria set out in section 228 of the Fair Work Act, and if it was free from prohibited content. The key issue was whether certain provisions, particularly those related to the role of the union in the workplace, complied with the Act and were necessary to protect the rights of the employees.

The Fair Work Commission examined the provisions of the agreement and concluded that while some of the clauses were necessary to ensure proper representation and protection of the employees' interests, they contained elements that went beyond what was permissible under the Act. Specifically, certain provisions were found to have an overly broad scope and could potentially lead to unnecessary restrictions on the employer's ability to manage the workplace. However, the Commission determined that the overall agreement was in the best interests of the employees and approved it with some modifications to align with the legal requirements.

The Fair Work Commission approved the Willmore Kindergarten Early Childhood Education Collective Enterprise Agreement 2018 with certain modifications. These modifications included narrowing the scope of some provisions to ensure they complied with the Fair Work Act and removing any content that was deemed to be outside the permissible scope. The Commission's decision balanced the need for effective employee representation with the requirement to maintain a fair and efficient workplace environment.

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