DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2017/6250)

ROCKHAMPTON SOUTH KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2017

Educational services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 25 JANUARY 2018

Application for approval of the Rockhampton South Kindergarten Early Childhood Education Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Rockhampton South Kindergarten Early Childhood Education 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. 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] 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 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case were the Independent Education Union of Australia, as the representative for the employees, and the employer, who operated a kindergarten in Rockhampton. The matter before the Fair Work Commission was an application for the approval of the Rockhampton South Kindergarten Early Childhood Education Enterprise Agreement 2017. The legal issues before the Commission were whether the agreement complied with the statutory requirements of the Fair Work Act 2009, and whether it was appropriately made.

The Commission found that the agreement was not appropriately made, as it had not been formally adopted by the union in accordance with its own rules. The union had purported to adopt the agreement via a circular to its members, rather than a formal vote. This did not meet the requirements of the union’s own rules, which required a majority vote at a meeting of the union’s members. The Commission also found that the agreement did not meet the statutory requirements, as it did not include certain mandatory terms that are required by the Fair Work Act.

The Commission refused to approve the agreement. The union appealed to the Federal Circuit Court, which found in favour of the Commission. The union appealed again to the Full Bench of the Federal Circuit Court, which upheld the decision of the Commission. The union then appealed to the High Court, which found in favour of the Commission. The High Court held that the agreement was not appropriately made, as it had not been formally adopted by the union in accordance with its own rules. The Court also held that the agreement did not meet the statutory requirements of the Fair Work Act. The Court dismissed the appeal, and the decision of the Commission stood.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established