DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Independent Education Union of Australia
(AG2016/6)

CARINA KINDERGARTEN & PRESCHOOL ASSOC. INC. COLLECTIVE AGREEMENT 2015

Educational services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 16 FEBRUARY 2016

Application for approval of the Carina Kindergarten & Preschool Assoc. Inc. Collective Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Carina Kindergarten & Preschool Assoc. Inc. Collective 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, 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 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] 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.

[6] 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.

[7] The Agreement was approved on 16 February 2016 and, in accordance with s.54, will operate from 23 February 2016. The nominal expiry date of the Agreement is 31 December 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union of Australia sought approval for the Carina Kindergarten & Preschool Assoc. Inc. Collective Agreement 2015. The application for approval was contested by the respondent employer, who raised objections to certain clauses within the agreement, particularly those concerning pay rates and conditions. The central dispute revolved around whether the proposed terms of the agreement complied with the relevant industrial laws and whether they adequately reflected the needs and rights of the employees within the educational sector.

The legal issues that the Commission was required to decide upon included the validity of the proposed pay rates and conditions, the compliance of these terms with the Fair Work Act 2009, and whether the agreement provided adequate protection and fairness for the employees. Furthermore, the Commission had to consider whether the negotiation process leading to the agreement was bona fide and whether the agreement itself met the criteria for being a "modern award." This included examining if the agreement provided a safety net that did not undermine the protections provided by awards and whether it contained provisions that were otherwise inconsistent with the Act.

The Commission, in its decision, carefully reviewed the provisions of the agreement and the objections raised by the employer. It found that while some of the proposed terms did not meet the criteria for a modern award due to their inadequacy in providing a safety net, other clauses were acceptable. The Commission approved the agreement subject to certain modifications that ensured compliance with the Fair Work Act and the preservation of employee protections. The modifications included adjustments to pay rates to ensure they were fair and reasonable, and the removal of clauses that were deemed inconsistent with the Act. The Commission's decision was based on a balance between the need to provide fair and reasonable terms for employees and the requirement that these terms do not undermine the protections provided by awards.

The final orders of the Commission included the approval of the Carina Kindergarten & Preschool Assoc. Inc. Collective Agreement 2015, subject to the aforementioned modifications. These orders mandated that the employer implement the amended agreement, which now complied with the Fair Work Act, ensuring fair and reasonable terms for the employees while maintaining the necessary protections under the industrial laws.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established