[2016] FWCA 4544

The attached document replaces the document previously issued with the above code on 7 July 2016.

This is to correct an error in the name of the Agreement in the preamble of the Decision.

Member Assist

Dated 7 July 2016

[2016] FWCA 4544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/3367)

KIAMA PRE-SCHOOL AND JAMBEROO COMMUNITY PRESCHOOL TEACHERS’ COLLECTIVE AGREEMENT 2016

Educational services
DEPUTY PRESIDENT DEAN	SYDNEY, 7 JULY 2016

Application for approval of the Kiama Pre-school and Jamberoo Community Preschool Teachers’ Collective Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Kiama Pre-school and Jamberoo Community Preschool Teachers’ Collective 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] 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.

[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 is approved and, in accordance with s.54, will operate from 14 July 2016. The nominal expiry date of the Agreement is 30 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia sought approval of the Kiama Pre-school and Jamberoo Community Preschool Teachers’ Collective Agreement 2016 from the Fair Work Commission. The application was contested by the employers, who argued that the agreement contravened section 235 of the Fair Work Act 2009 as it included provisions that were not directly related to the employees' terms and conditions of employment. The court was required to determine whether the contested provisions were extraneous to the agreement and, if so, whether they could be severed from the rest of the agreement.

The court held that the contested provisions were not extraneous to the agreement as they were directly related to the employees' terms and conditions of employment. The court found that the agreement was intended to provide for the professional development of the employees, which was a term and condition of their employment. The court further held that the contested provisions could not be severed from the rest of the agreement as they were inextricably linked to the rest of the agreement. The court concluded that the agreement was valid and approved it.

The Fair Work Commission approved the Kiama Pre-school and Jamberoo Community Preschool Teachers’ Collective Agreement 2016. The court held that the contested provisions were not extraneous to the agreement and could not be severed from the rest of the agreement. The agreement was therefore valid and was approved by the Commission.

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