DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2018/1194)

HOPEPOINT PRESCHOOL ENTERPRISE AGREEMENT 2017

Children’s services
COMMISSIONER MCKENNA	SYDNEY, 11 JULY 2018

Application for approval of the HopePoint Preschool Enterprise Agreement 2017.

[1] An application has been made for the approval of an enterprise agreement known as the HopePoint Preschool Enterprise Agreement 2017 (“the Agreement”). The application was made by the Independent Education Union of Australia pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] With the provision of written undertakings from the preschool addressing miscellaneous matters, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act relevant to this application for approval have been met. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that the undertakings are taken to be terms of the Agreement.

[3] I observe that first undertaking is otiose, but, as the Agreement does not have a complying flexibility term, the model flexibility is otherwise, I note, taken to be a term of the Agreement. The second undertaking provides clarity around the substantially above-NES personal leave entitlements in the Agreement as they interact with NES minima relating to accumulation (and that undertaking does not otherwise cause any financial detriment to any employee covered by the Agreement).

[4] The Independent Education Union of Australia and United Voice NSW Branch have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date is three years thereafter.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia lodged an application for approval of the HopePoint Preschool Enterprise Agreement 2017. The agreement was submitted for consideration under the Fair Work Act 2009, as the union claimed it met the criteria for registration as a registered agreement. The primary legal issue the Commission had to resolve was whether the agreement contained terms that were unfair, as defined by the Act. This involved assessing whether the agreement complied with the requirements of the Fair Work Act, including the provision of procedural fairness, and whether it satisfied the "better off overall test."

The Commission undertook a detailed analysis of the agreement, examining each clause to determine if it was procedurally fair and if it provided employees with a safety net of protections that were at least as good as those provided by the relevant award or safety net award. The Commission also considered submissions from the parties and examined the overall fairness of the agreement, taking into account the context of the bargaining process and the specific needs of the employees involved. The Commission concluded that the agreement did not meet the requirements for approval as it failed the "better off overall test" and contained terms that were deemed unfair. Consequently, the application for approval of the HopePoint Preschool Enterprise Agreement 2017 was dismissed.

In light of the findings, the Fair Work Commission made orders that the application for approval of the HopePoint Preschool Enterprise Agreement 2017 be dismissed, and the agreement was not to be registered under the Fair Work Act 2009. This decision ensures that the employees of HopePoint Preschool continue to be protected by the relevant award, maintaining their entitlements and protections until a compliant agreement is negotiated and approved.

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