Independent Education Union of Australia

[2018] FWCA 1348

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2017/5011)

North Epping Kindergarten Employee Agreement 2017

Children’s services
Commissioner Johns	SYDNEY, 6 MARCH 2018

Application for approval of the North Epping Kindergarten Employee Agreement 2017.

On 24 October 2017 Independent Education Union of Australia (Applicant) made an application for approval of the North Epping Kindergarten Employee Agreement 2017 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

The Agreement was lodged within 14 days after it was made.

The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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, the Commission is 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), the Commission notes that the Agreement covers this organisation.

The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 13 March 2018. The nominal expiry date of the Agreement is 1 June 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by the Independent Education Union of Australia for the approval of the North Epping Kindergarten Employee Agreement 2017. The application was made under the Fair Work Act 2009 and related to the approval of an agreement between the employer and employees that would cover terms and conditions of employment. The union sought to have the agreement approved as a modern award by the Fair Work Commission.

The legal issues before the court centred on whether the agreement met the statutory requirements for approval as a modern award. This involved examining whether the agreement contained all the mandated terms and conditions, and whether it provided at least the minimum entitlements set out in the National Employment Standards. The court also had to consider whether the agreement was the product of genuine bargaining between the parties, and whether it was fair and reasonable.

The court found that the agreement met the statutory requirements for approval. It contained all the mandated terms and conditions, and provided at least the minimum entitlements. The court was satisfied that the agreement was the product of genuine bargaining, and was fair and reasonable. The union had demonstrated that the agreement had been negotiated in good faith and was not the result of any improper conduct by the employer. The court approved the application and authorised the agreement as a modern award.

The court made an order approving the North Epping Kindergarten Employee Agreement 2017 as a modern award. The agreement will now apply to all employees of North Epping Kindergarten, and will provide the terms and conditions of their employment. The approval of the agreement is an important step in ensuring that employees in the independent education sector have access to fair and reasonable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established