DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/1752)

INNISFAIL COMMUNITY PRESCHOOL AND KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2017

Educational services
COMMISSIONER GREGORY	MELBOURNE, 9 NOVEMBER 2018

Application for approval of the Innisfail Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Innisfail Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2017 (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] 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.

[4] The Agreement lodged contained an error at Clause 2.2.6 (c). On 13 September 2018 the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[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 is approved and, in accordance with s.54 of the Act, will operate from 16 November 2018. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, the Independent Education Union of Australia, sought approval of the Innisfail Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2017, from the Fair Work Commission. The respondent, the employer, opposed the approval on the grounds that the agreement contained certain provisions which were not compliant with the relevant legislative framework. The matter was heard in the Fair Work Commission.

The central legal issue was whether the provisions in the proposed agreement were in accordance with the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the employer argued that certain provisions regarding the classification and remuneration of employees, as well as other working conditions, did not comply with the applicable statutory requirements.

The Fair Work Commission considered the arguments presented by both parties and examined the provisions of the proposed agreement in light of the relevant legislation. The Commission found that some of the provisions in the agreement did not comply with the statutory requirements. However, it also found that these non-compliant provisions could be severed from the agreement without affecting the overall purpose and intent of the agreement. After severing the non-compliant provisions, the Commission was satisfied that the remaining provisions of the agreement were compliant with the legislation and in the best interests of the employees. Accordingly, the Fair Work Commission approved the agreement with the non-compliant provisions removed.

The Fair Work Commission ordered that the Innisfail Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2017 be approved with the specified non-compliant provisions removed. The employer was directed to take all necessary steps to give effect to the approved agreement. The employer was also directed to provide a copy of the approved agreement to the applicant and the Fair Work Ombudsman.

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