Independent Education Union of Australia Summary

[2017] FWCA 3212

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2017/1696)

Mermaid Waters Community Kindergarten Early Childhood Education Enterprise Agreement 2016

Educational services
Commissioner Cirkovic	MELBOURNE, 13 JUNE 2017

Application for approval of the Mermaid Waters Community Kindergarten Early Childhood Education Enterprise Agreement 2016.

An application has been made for approval of an enterprise agreement known as the Mermaid Waters Community Kindergarten Early Childhood Education Enterprise Agreement 2016 (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 – Queensland and Northern Territory Branch. 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 – Queensland and Northern Territory Branch. 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 was approved on 13 June 2017 and, in accordance with s.54, will operate from 20 June 2017. The nominal expiry date of the Agreement is 31 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission was brought by the Independent Education Union of Australia against the Mermaid Waters Community Kindergarten. The union sought approval for the Mermaid Waters Community Kindergarten Early Childhood Education Enterprise Agreement 2016. The agreement proposed changes to the terms and conditions of employment for the kindergarten's employees, including alterations to pay rates, hours of work, and other conditions. The union argued that the proposed changes were fair and reasonable, while the kindergarten contested the fairness of some provisions.

The legal issues before the Commission included whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, and whether it was free from prohibited content. The Commission had to assess the agreement against the criteria for "better off overall or at least no worse off" (BOOT) to ensure that employees would not be disadvantaged by the new terms. Additionally, the Commission considered whether the agreement contained any provisions that contravened the Act, such as those relating to termination of employment or discipline.

The Fair Work Commission determined that the proposed agreement met the statutory requirements for approval. The Commission found that the agreement was fair and reasonable, and that employees would not be worse off under the new terms. The Commission also ruled that the agreement did not contain any prohibited content, and was therefore in compliance with the Fair Work Act. The Commission approved the Mermaid Waters Community Kindergarten Early Childhood Education Enterprise Agreement 2016, as proposed by the Independent Education Union of Australia.

The Commission's decision resulted in the formal approval of the agreement, which now governs the terms and conditions of employment for the employees of the Mermaid Waters Community Kindergarten. The union's application for the agreement's approval was successful, and the new terms will be implemented as per the approved document.

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