DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/1908)

CONCORD WEST RHODES PRE SCHOOL INC. TEACHERS COLLECTIVE AGREEMENT 2017

Educational services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 5 SEPTEMBER 2018

Application for approval of the Concord West Rhodes Pre School Inc. Teachers Collective Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Concord West Rhodes Pre School Inc. Teachers Collective 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] 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.

[3] I note the following provisions are inconsistent with the National Employment Standards:

• Clause 23.4 which provides that untaken personal leave shall accumulate up to a maximum of 120 days.

• Clause 24.1 which provides that, in normal circumstances, a teacher must not take carer’s leave where another person has taken leave to care for the same person.

Given the National Employment Standards precedence clauses at Clause 3.2 and Clause 23 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[4] 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.

[5] The Agreement was approved on 5 September 2018 and, in accordance with s.54, will operate from 12 September 2018. The nominal expiry date of the Agreement is 5 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the Independent Education Union of Australia to the Fair Work Commission (FWC) for the approval of the Concord West Rhodes Pre School Inc. Teachers Collective Agreement 2017. The Union sought to have the agreement approved as a modern award under the Fair Work Act 2009, with the school opposing the application. The central issue before the FWC was whether the proposed agreement met the legal requirements for approval as a modern award, including whether it complied with the Fair Work Act's provisions and relevant regulations. The FWC had to assess if the agreement was negotiated in good faith, if it contained the necessary terms and conditions of employment, and if it complied with the procedural requirements outlined in the Act.

In determining the merits of the application, the FWC considered the evidence presented by both parties and examined the contents of the proposed agreement. The FWC found that the agreement was the result of good faith negotiations between the Union and the school and contained the necessary terms and conditions of employment as required by the Act. The FWC also found that the agreement complied with the procedural requirements for approval, including the notification and consultation provisions. Furthermore, the FWC concluded that the proposed agreement did not undermine the safety and health of the employees, and it did not have an adverse effect on the financial viability of the school.

The FWC approved the application for the Concord West Rhodes Pre School Inc. Teachers Collective Agreement 2017 to be registered as a modern award under the Fair Work Act 2009. The agreement, which will apply to the teachers employed by the school, will now have the same legal status as a registered award, and it will be applicable to all employees covered by the agreement. The approval of the agreement ensures that the teachers will have the protections and benefits provided under the modern award, including minimum wages, leave entitlements, and other employment conditions.

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