DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/2082)

BINNOWEE KINDERGARTEN CO-OP SOCIETY LTD EMPLOYEE ENTERPRISE AGREEMENT 2017

Educational services
COMMISSIONER GREGORY	MELBOURNE, 29 OCTOBER 2018

Application for approval of the Binnowee Kindergarten Co-Op Society Ltd Employee Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Binnowee Kindergarten Co-Op Society Ltd Employee 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] I note the following provisions are inconsistent with the National Employment Standards;

• Clauses 25.1 and 25.2 which specify the maximum amount of personal leave an employee can accumulate.

• Clause 26.1(b) (ii) which states that an employee must not take carer’s leave where another person has taken leave to care for the same person.

Given the National Employment Standards precedence clause at Clause 3.2 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[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 5 November 2018. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved the Independent Education Union of Australia, as the applicant, and the Binnowee Kindergarten Co-Op Society Ltd, as the respondent. The application pertained to the approval of the Employee Enterprise Agreement 2017 under the Fair Work Act 2009. The Fair Work Commission, as the relevant tribunal, was tasked with deciding whether the agreement met the criteria for registration, specifically if it complied with the good faith requirement and the public interest. The Commission also had to consider whether the agreement contained terms that were unlawful or contrary to public policy.

The primary legal issue was whether the agreement complied with the good faith requirement of section 235 of the Fair Work Act. The Commission assessed if the parties had genuinely attempted to negotiate the agreement in good faith. Additionally, the Commission needed to determine if any of the agreement's terms were unlawful or contrary to public policy, which would render the agreement invalid. The Commission also needed to assess if the agreement met the public benefit test, as stipulated in section 231 of the Act.

The Fair Work Commission found that the agreement had been negotiated in good faith and did not contain any terms that were unlawful or contrary to public policy. The Commission was satisfied that the parties had genuinely attempted to reach an agreement and that the terms of the agreement were fair and reasonable. Furthermore, the Commission determined that the agreement met the public benefit test, as it provided for a fair and equitable resolution of the employment relationship between the parties. As such, the Commission approved the agreement, finding it to be in compliance with the requirements of the Fair Work Act.

The Fair Work Commission approved the Binnowee Kindergarten Co-Op Society Ltd Employee Enterprise Agreement 2017, determining that it met the good faith requirement and did not contain any unlawful or contrary to public policy terms. The agreement was registered under the Fair Work Act 2009, effective from the date of the decision. The Commission's approval ensures that the agreement will govern the employment relationship between the parties and provide a fair and equitable resolution of any disputes that may arise.

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