Independent Education Union of Australia

[2016] FWCA 450

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2015/7096)

COOKTOWN KINDERGARTEN ASSOCIATION INC EARLY

CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services

COMMISSIONER ROE

MELBOURNE, 22 JANUARY 2016

Application for approval of the Cooktown Kindergarten Association Inc Early Childhood

Education Enterprise Agreement 2015.

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

Cooktown Kindergarten Association Inc 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 450

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of the Cooktown Kindergarten Association Inc Early Childhood Education Enterprise Agreement 2015, submitted by the Independent Education Union of Australia under Section 185 of the Fair Work Act 2009. The agreement, referred to as the Agreement, is a single enterprise agreement intended to cover employees within the educational services sector. The Union, acting as a bargaining representative, seeks approval for the Agreement to cover its members, in line with Section 183 of the Act. The Fair Work Commission, represented by Commissioner Roe, is tasked with determining whether the application meets the requirements for approval as stipulated in Sections 186, 187, and 188 of the Act.

The primary legal issue before the court was whether the Agreement satisfied the criteria set out in Sections 186, 187, and 188 of the Fair Work Act 2009, which pertain to the approval of enterprise agreements. Specifically, the court needed to assess whether the Agreement was fairly chosen, in accordance with Section 186, and whether the Union's notice under Section 183 was valid, ensuring the Agreement covers the Union's members as per Section 201(2) of the Act. Additionally, the court had to consider whether the Agreement, though not covering all employees, met the criteria of Section 186(3) and (3A) for a fair selection of employees.

The court found that the application met all the necessary requirements for approval of the Agreement. It was satisfied that the Agreement was fairly chosen and that the Union's notice was valid, ensuring the Agreement covers its members. Despite the Agreement not covering all employees, the court considered the factors outlined in Section 186(3) and (3A) and concluded that the group of employees involved was fairly chosen. Consequently, the Agreement was approved and will operate from 29 January 2016, with a nominal expiry date of 31 December 2017.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established