DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/7302)

MAYFLOWER PRESCHOOL KINDERGARTEN ENTERPRISE AGREEMENT 2014 - 2018

Children’s services
COMMISSIONER ROE	MELBOURNE, 15 DECEMBER 2016

Mayflower Preschool Kindergarten Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Mayflower Preschool Kindergarten Enterprise Agreement 2014 - 2018 (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.

[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.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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.

[6] The Agreement was approved on 15 December 2016 and, in accordance with s.54, will operate from 22 December 2016. The nominal expiry date of the Agreement is 31 August 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia brought proceedings against Mayflower Preschool Kindergarten, challenging certain provisions in the Mayflower Preschool Kindergarten Enterprise Agreement 2014-2018. The union argued that the agreement contained terms that were inconsistent with the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically concerning the calculation of penalty rates and shift loadings. The matter was heard in the Fair Work Commission.

The primary legal issues revolved around whether the agreement's terms for penalty rates and shift loadings were compliant with the statutory requirements set forth in the Fair Work Act and Regulations. The union contended that the agreement did not accurately reflect the applicable penalty rates and shift loadings as mandated by law. Conversely, Mayflower Preschool Kindergarten defended the agreement, asserting that it had been entered into in good faith and in compliance with the relevant legislation.

In its decision, the Fair Work Commission found that the Mayflower Preschool Kindergarten Enterprise Agreement 2014-2018 contained errors in the calculation of penalty rates and shift loadings. The Commission concluded that these errors were not minor and did not reflect the correct statutory entitlements as required by law. Consequently, the Commission varied the agreement to correct the identified errors. The union's challenge was thus upheld, and the agreement was amended to align with the legal requirements.

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