DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/1003)

WARWICK COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER GREGORY	SYDNEY, 18 MAY 2016

Application for approval of the Warwick Community Kindergarten Early Childhood Education Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Warwick Community Kindergarten Early Childhood Education Enterprise Agreement 2015 (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, 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 application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[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 is approved and, in accordance with s.54 of the Act, will operate from 25 May 2016. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for approval of the Warwick Community Kindergarten Early Childhood Education Enterprise Agreement 2015. The Warwick Community Kindergarten opposed the application on the basis that the agreement did not meet the requirements of section 233 of the Fair Work Act 2009 as it did not provide for the classification and rates of pay for employees, and therefore could not be approved as a safety net agreement. The dispute was heard by the Commission, with the central issue being whether the agreement could be approved as a safety net agreement in the absence of provisions for classification and rates of pay.

The Commission found that the absence of classification and rates of pay provisions did not necessarily preclude the agreement from being approved as a safety net agreement. The Commission considered the overall provisions of the agreement, including its coverage of employees, the bargaining process, and the provisions for dispute resolution. The Commission noted that the agreement provided for a minimum rate of pay, albeit not based on classification, and that the employees were covered by a modern award. The Commission concluded that the agreement provided adequate protections for employees, and was therefore consistent with the purposes of the Fair Work Act. The application was approved, and the Warwick Community Kindergarten Early Childhood Education Enterprise Agreement 2015 was registered.

The Commission emphasised the importance of the bargaining process and the need for agreements to provide adequate protections for employees. However, the Commission also recognised that not all agreements will have classification and rates of pay provisions, and that the absence of such provisions does not necessarily mean that an agreement cannot be approved as a safety net agreement. The Commission found that the agreement in this case provided adequate protections for employees, and was therefore consistent with the purposes of the Fair Work Act. The Warwick Community Kindergarten's application for approval of the agreement was dismissed.

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