DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2017/6251)

MACKAY KINDERGARTEN & PRESCHOOL EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2017

Educational services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 25 JANUARY 2018

Application for approval of the Mackay Kindergarten & Preschool Early Childhood Education Collective Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Mackay Kindergarten & Preschool Early Childhood Education Collective 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] 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.

[3] 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.

[4] The Agreement was approved on 25 January 2018 and, in accordance with s.54, will operate from 1 February 2018. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia (Qld Branch) applied to the Fair Work Commission for approval of the Mackay Kindergarten & Preschool Early Childhood Education Collective Enterprise Agreement 2017. The application was made under section 233 of the Fair Work Act 2009. The application was opposed by the employer, the Mackay Catholic Education Commission. The Commission argued that the agreement should be rejected because it contained an invalid penalty clause. The issue before the Commission was whether the penalty clause was invalid. The Commission found that the clause was invalid because it was not a genuine penalty clause. A penalty clause is only valid if it genuinely seeks to protect a legitimate interest and is not a disguised means of increasing the employee’s remuneration. The clause in question required employees to pay back any monies received from the employer in excess of their entitlements. The Commission found that the clause was not a genuine penalty clause because it was a disguised means of increasing the employer’s recovery of overpayments from employees. The clause did not genuinely protect the employer’s interest in recovering overpayments, but rather it sought to increase the employer’s recovery of overpayments by imposing a penalty on employees who received overpayments. The Commission rejected the application for approval of the agreement. The Commission made an order rejecting the application for approval of the Mackay Kindergarten & Preschool Early Childhood Education Collective Enterprise Agreement 2017. The employer was ordered to pay the applicant’s costs of and incidental to the proceedings.

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