DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/169)

BUNDARA KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2016

Educational services
COMMISSIONER ROE	MELBOURNE, 1 MARCH 2016

Application for approval of the Bundara Kindergarten Early Childhood Education Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Bundara Kindergarten Early Childhood Education Enterprise 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 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 1 March 2016 and, in accordance with s.54, will operate from 8 March 2016. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia (IEU) applied for the approval of the Bundara Kindergarten Early Childhood Education Enterprise Agreement 2016 by the Fair Work Commission (FWC). The application was contested by Bundara Kindergarten, which argued that certain provisions of the agreement were not in accordance with the law and should not be approved. The FWC was tasked with determining whether the provisions of the agreement complied with the relevant legislative requirements and if they were fair and reasonable.

The central legal issue before the FWC was whether specific provisions of the Bundara Kindergarten agreement were consistent with the applicable laws and regulations. The FWC had to consider whether the terms of the agreement were consistent with the National Employment Standards, whether the agreement complied with the Fair Work Act 2009, and whether the provisions were fair and reasonable in the context of the enterprise. Additionally, the FWC had to assess whether the agreement contained any clauses that were inconsistent with the public policy or contrary to the spirit of the award.

The FWC found that most of the provisions of the Bundara Kindergarten agreement were consistent with the applicable laws and regulations. The FWC noted that the agreement provided for terms and conditions of employment that were fair and reasonable, and that the provisions were not inconsistent with the public policy or contrary to the spirit of the award. However, the FWC identified a few provisions that were not in accordance with the law, including certain clauses that were inconsistent with the National Employment Standards. The FWC ultimately decided to approve the agreement with some modifications to these provisions, finding that the overall agreement was fair and reasonable.

The FWC approved the Bundara Kindergarten Early Childhood Education Enterprise Agreement 2016, with certain modifications to address the non-compliant provisions. The modifications included adjustments to the clauses regarding the National Employment Standards to ensure compliance with the law. The FWC determined that the agreement, as modified, was fair and reasonable and in accordance with the relevant legislative 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