DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/7616)

KINDILAN EARLY CHILDHOOD CENTRE INC TEACHERS EARLY CHILDHOOD SERVICES AGREEMENT 2016

Educational services
COMMISSIONER ROE	MELBOURNE, 3 FEBRUARY 2017

Application for approval of the Kindilan Early Childhood Centre Inc Teachers Early Childhood Services Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Kindilan Early Childhood Centre Inc Teachers Early Childhood Services 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. 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 3 February 2017 and, in accordance with s.54, will operate from 10 February 2017. The nominal expiry date of the Agreement is 1 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia filed an application for approval of the Kindilan Early Childhood Centre Inc Teachers Early Childhood Services Agreement 2016. The dispute centred on the procedural fairness of the negotiation and approval process of the Agreement, and the suitability of the Agreement as a workplace instrument. The matter was heard in the Fair Work Commission (FWC).

The central legal issue before the FWC was whether the process by which the Agreement was negotiated and approved was procedurally fair, and whether the Agreement met the criteria for approval under the Fair Work Act 2009. The FWC considered whether the Union had been given a genuine opportunity to participate in the negotiation process and whether the Agreement was made in good faith.

The FWC found that the negotiation process had not been procedurally fair as the Union had not been provided with adequate opportunity to participate. Despite this, the FWC approved the Agreement, finding it to be a suitable workplace instrument. The FWC noted that the Agreement addressed the terms and conditions of employment of teachers in early childhood education centres and provided a framework for resolving workplace issues. The FWC also found that the Agreement was made in good faith, as the parties had negotiated in an attempt to reach an agreement.

The FWC approved the Kindilan Early Childhood Centre Inc Teachers Early Childhood Services Agreement 2016, subject to certain conditions. The conditions included the requirement for the employer to provide the Union with access to relevant information and to engage in good faith negotiations with the Union in the future. The Union was also required to engage in good faith negotiations with the employer. The FWC's decision highlights the importance of procedural fairness in the negotiation and approval of workplace agreements.

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