Independent Education Union of Australia

[2016] FWCA 458

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2015/7048)

NARNIA KINDERGARTEN EARLY CHILDHOOD EDUCATION

ENTERPRISE AGREEMENT 2015

Educational services

COMMISSIONER ROE

MELBOURNE, 22 JANUARY 2016

Application for approval of the Narnia Kindergarten Early Childhood Education Enterprise

Agreement 2015.

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

Narnia 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 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.
[2016] FWCA 458

[4] The Agreement was approved on 22 January 2016 and, in accordance with s.54, will

operate from 29 January 2016. The nominal expiry date of the Agreement is 31 December

2017.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Independent Education Union of Australia, the Independent Education Union of Australia applied for approval of the Narnia Kindergarten Early Childhood Education Enterprise Agreement 2015 under section 185 of the Fair Work Act 2009. The agreement was intended to cover employees of Narnia Kindergarten Early Childhood Education. The application was heard by Commissioner Roe in Melbourne on January 22, 2016. The primary legal issue before the court was whether the application met the requirements of sections 186, 187, and 188 of the Act and whether the group of employees was fairly chosen. The court found that the requirements were met and that the group of employees was fairly chosen.

The court examined the factors outlined in section 186(3) and (3A) of the Act to determine if the group of employees was fairly chosen. Section 186(3) of the Act states that the group of employees must be fairly chosen in relation to the kind of work done by employees in the bargaining unit. Section 186(3A) provides that in determining whether the group of employees was fairly chosen, the court must have regard to a number of factors, including the nature of the work, the size and structure of the employer’s enterprise, and any other matters that the court considers relevant. The court found that the group of employees was fairly chosen based on these factors.

The court also considered whether the Independent Education Union of Australia, as a bargaining representative for the agreement, had given notice under section 183 of the Act that it wanted the agreement to cover it. The court found that the union had given such notice and that the agreement covered the organisation. The agreement was approved on January 22, 2016, and will operate from January 29, 2016. The nominal expiry date of the agreement is December 31, 2017.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established