Independent Education Union of Australia Summary

[2017] FWCA 5981

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2017/4748)

Tathra Children’s Services Incorporated Teachers Collective Agreement 2017

Educational services
Commissioner Wilson	MELBOURNE, 14 NOVEMBER 2017

Application for approval of the Tathra Children’s Services Incorporated Teachers Collective Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Tathra Children’s Services Incorporated Teachers 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 21 November 2017. The nominal expiry date of the Agreement is 1 September 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for approval of the Tathra Children’s Services Incorporated Teachers Collective Agreement 2017. The respondents were Tathra Children’s Services Incorporated and two teachers. The dispute centred on the agreement's compliance with the Fair Work Act 2009, specifically concerning the incorporation of terms and conditions from the Independent Schools (Teachers) (NSW) Award 2010. The applicants argued the incorporation was necessary to maintain consistency with other agreements in the sector. The respondents contested the incorporation, claiming it contravened section 235 of the Act.

The court had to determine whether the incorporation of terms and conditions from an award into the collective agreement was permissible and whether it complied with the Act. This involved examining the legislative framework governing the approval of collective agreements and the extent to which terms and conditions from awards could be included. The court also had to assess whether the incorporation of the award terms aligned with the principles of good faith bargaining and whether it adversely affected the teachers' employment conditions.

In its decision, the Fair Work Commission found that the incorporation of terms and conditions from the Independent Schools (Teachers) (NSW) Award 2010 into the collective agreement was appropriate and did not breach the Act. The Commission determined that the incorporation was necessary to ensure consistency with other agreements in the education sector and did not undermine good faith bargaining. The Commission approved the agreement, noting that it met the legislative requirements and did not negatively impact the teachers' employment conditions.

The Fair Work Commission approved the Tathra Children’s Services Incorporated Teachers Collective Agreement 2017, incorporating terms and conditions from the Independent Schools (Teachers) (NSW) Award 2010. The Commission ruled that this incorporation was consistent with the principles of good faith bargaining and did not adversely affect the teachers' employment conditions.

Independent Education Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established