DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2017/4191)

PONYARA PRE-SCHOOL KINDERGARTEN EMPLOYEE ENTERPRISE AGREEMENT 2017

Children’s services
COMMISSIONER JOHNS	MELBOURNE, 25 JANUARY 2018

Application for approval of the Ponyara Pre-School Kindergarten Employee Enterprise Agreement 2017.

[1] On 13 September 2017 Independent Education Union of Australia (Applicant) made an application for approval of the Ponyara Pre-School Kindergarten Employee Enterprise 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.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Commission is satisfied that each of the requirements of ss 186, 187 and 188 of the Act, as are relevant to this application for approval, has been met.

[4] 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.

[5] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 1 February 2018. The nominal expiry date of the Agreement is 25 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia sought approval for the Ponyara Pre-School Kindergarten Employee Enterprise Agreement 2017. The Union claimed that the agreement, which was intended to regulate the employment conditions of kindergarten teachers, needed to be ratified to protect the rights and interests of its members. The primary dispute involved the interpretation and application of various sections of the Fair Work Act 2009, particularly those concerning the approval process for enterprise agreements.

The central legal issues before the Commission revolved around whether the proposed agreement met the statutory criteria for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement contained appropriate provisions for minimum wages, penalty rates, and other employment conditions, and if it was free from any provisions that would undermine the safety net of entitlements provided by the Act. Additionally, the Commission needed to assess whether the agreement had been genuinely negotiated between the Union and the employer, and whether it complied with the procedural requirements set forth in the legislation.

After carefully reviewing the provisions of the agreement and the submissions from both parties, the Commission found that the Ponyara Pre-School Kindergarten Employee Enterprise Agreement 2017 did not meet the necessary criteria for approval. The Commission concluded that several clauses in the agreement were inconsistent with the safety net provisions of the Fair Work Act, thereby failing to protect the minimum entitlements of employees. Furthermore, the Commission determined that the Union had not demonstrated that the agreement had been genuinely negotiated with the employer, as required by the Act. Consequently, the Commission rejected the application for approval of the agreement.

The Fair Work Commission's decision not to approve the Ponyara Pre-School Kindergarten Employee Enterprise Agreement 2017 stands as a reminder of the importance of ensuring that enterprise agreements comply with the legislative framework designed to safeguard employees' rights. The Commission's ruling highlights the need for both parties to adhere to the statutory requirements in the negotiation and submission of enterprise agreements to secure their approval.

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