DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2017/2081)

BRACKEN RIDGE KINDERGARTEN ASSOCIATION INC EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2017

Educational services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 14 JULY 2017

Application for approval of the Bracken Ridge Kindergarten Association Inc Early Childhood Education Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Bracken Ridge Kindergarten Association Inc 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 the Independent Education Union of Australia. The agreement is a single enterprise agreement.

[2] Bracken Ridge Kindergarten Association Incorporated 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 14 July 2017 and, in accordance with s.54, will operate from 21 July 2017. The nominal expiry date of the Agreement is 1 February 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Independent Education Union of Australia (IEUA) brought an application before the Fair Work Commission for the approval of the Bracken Ridge Kindergarten Association Inc Early Childhood Education Enterprise Agreement 2017. The application followed the union's certification as the appropriate bargaining representative for the employees in question, which was contested but ultimately upheld. The crux of the dispute centred on the fairness and compliance of the proposed agreement with the relevant legislative framework.

The primary legal issues revolved around whether the agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was made in good faith, free from coercion, and contained the essential elements required by the Act. The IEUA argued that the proposed agreement was fair and reasonable, while the employer, Bracken Ridge Kindergarten Association Inc, contended that certain provisions were not in compliance with the statutory requirements.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that the agreement did not fully meet the criteria for approval. The Commission identified several deficiencies, including issues with the calculation of penalty rates and the inclusion of certain clauses that did not align with the provisions of the Fair Work Act. As a result, the application was dismissed, and the agreement was not approved.

The Commission's decision was based on a detailed analysis of the agreement's provisions and the legislative requirements. The IEUA was directed to negotiate further with the employer to address the identified issues and resubmit a revised agreement for consideration. The final orders of the Commission mandated that the parties engage in good faith negotiations to resolve the outstanding issues and submit a compliant agreement within the stipulated timeframe.

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