Independent Education Union of Australia

[2018] FWCA 1464

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2017/5300)

Berkeley Vale Pre-School Kindergarten Employee Collective Agreement 2017

Children’s services
Commissioner Johns	SYDNEY, 13 MARCH 2018

Application for approval of the Berkeley Vale Pre-School Kindergarten Employee Collective Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Berkeley Vale Pre-School Kindergarten Employee 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.

The Applicant 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.

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.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 March 2018. The nominal expiry date of the Agreement is 31 July 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia filed an application for the approval of the Berkeley Vale Pre-School Kindergarten Employee Collective Agreement 2017 before the Fair Work Commission. The respondent, Berkeley Vale Pre-School Kindergarten, objected to the approval of certain provisions of the agreement. The dispute primarily centred around the union's request for the approval of provisions relating to allowances and specific employee entitlements as outlined in the agreement. The legal issues before the commission were whether the provisions in question complied with the requirements of the Fair Work Act 2009, and whether they were fair and reasonable in the circumstances.

The commission examined the provisions of the agreement that were in contention, assessing whether they complied with the legislative framework and whether they were fair and reasonable. In its decision, the commission found that certain provisions did not comply with the Fair Work Act as they did not provide adequate protection for employees or were not in line with relevant awards or enterprise agreements. However, it also found that other provisions were fair and reasonable and did not contravene the act. The commission approved the agreement with modifications to the contentious provisions, ensuring they aligned with the act and provided fair and reasonable protections for employees.

In summary, the commission approved the Berkeley Vale Pre-School Kindergarten Employee Collective Agreement 2017 with modifications to certain provisions to ensure compliance with the Fair Work Act and to provide fair and reasonable protections for employees. The final orders included the approval of the agreement with the specified modifications and the rejection of the provisions that did not meet the legislative requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established