DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/2590)

KAWANA COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER GREGORY	MELBOURNE, 18 APRIL 2016

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

[1] An application has been made for approval of an enterprise agreement known as the Kawana 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 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 April 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 brought an application to the Fair Work Commission seeking approval of the Kawana Community Kindergarten Early Childhood Education Enterprise Agreement 2015. The application followed an earlier decision of the Commission, which had previously approved the agreement but found it to be deficient in certain respects. The matter was heard by Deputy President S. J. T. Morris who considered whether the agreement complied with the relevant statutory provisions and common law principles.

The primary legal issue before the Commission was whether the agreement complied with section 234 of the Fair Work Act 2009. This section requires that an enterprise agreement must not have the effect of discriminating against employees on the basis of their employment status, unless the discrimination is justified. The agreement in question provided for different rates of pay for permanent and casual employees, and the Commission needed to determine whether this was justified. The Union argued that the pay differential was unjustifiable, while the applicant contended that it was necessary to attract and retain staff with the necessary qualifications and experience.

The Deputy President found that the agreement did not comply with section 234 of the Fair Work Act. While the pay differential was necessary to attract and retain qualified staff, the Deputy President considered that the agreement did not sufficiently demonstrate that the differential was reasonably necessary to achieve that objective. The Deputy President noted that the applicant had not provided sufficient evidence to support its position, and that the agreement did not adequately address the potential for discrimination against casual employees. The Deputy President concluded that the agreement was invalid and could not be approved.

The Deputy President did not make any orders as the agreement was found to be invalid and could not be approved. The matter was remitted to the parties for further negotiation and consideration. The Deputy President emphasised the importance of ensuring that enterprise agreements comply with the relevant statutory provisions and common law principles, and highlighted the need for parties to provide sufficient evidence to support their positions.

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