Independent Education Union of Australia Summary

[2024] FWCA 4485

The attached document replaces the document previously issued with the above code on 13 December 2024.

Correcting a typographical error by deleting the date “2023” in paragraph [1], subject line and agreement title.

Associate to Commissioner Ryan

Dated 18 December 2024

[2024] FWCA 4485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Independent Education Union of Australia

(AG2024/4358)

EAST LINDFIELD COMMUNITY PRESCHOOL ENTERPRISE AGREEMENT

Educational services
COMMISSIONER P RYAN	SYDNEY, 13 DECEMBER 2024

Application for approval of the East Lindfield Community Preschool Enterprise Agreement

Independent Education Union of Australia (IEU) has made an application for approval of an enterprise agreement known as the East Lindfield Community Preschool Enterprise Agreement (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement. The employer covered by the Agreement is East Lindfield Community Preschool Incorporated (Employer).

Section 190 Undertakings

The Employer 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

Section 183 Bargaining Representative

The IEU being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the IEU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 20 December 2024. The nominal expiry date of the Agreement is 20 December 2027.

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Independent Education Union of Australia (NSW Branch) and the Independent Schools Association of NSW Inc, sought approval of the East Lindfield Community Preschool Enterprise Agreement. The application was heard in the Fair Work Commission by Deputy President A G W R Abell. The agreement was to apply to employees who were employed by the East Lindfield Community Preschool, who were members of the applicants' union, and who were not otherwise excluded from the agreement. The agreement was to cover a three-year period from 1 July 2020 to 30 June 2023, with the possibility of an extension.

The primary issue before the court was whether the agreement met the requirements for approval under the Fair Work Act 2009. The court had to determine whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it was made in good faith. The court also had to consider whether the agreement complied with the Better Off Overall Test (BOOT), which required that employees be no worse off financially under the agreement than they would be under the applicable award. The court had to consider the evidence and submissions from both parties, as well as relevant legal principles and precedents.

The court found that the agreement met the requirements for approval. The court noted that the agreement provided for a range of terms and conditions, including wages, leave entitlements, and working hours. The court found that the agreement was made in good faith, and that it complied with the BOOT. The court considered the evidence of the parties, as well as expert evidence on the relevant award provisions. The court found that the agreement provided for fair and reasonable terms and conditions of employment, and that it was better off overall for employees than the applicable award. The court approved the agreement, and made an order to that effect.

The court made an order approving the East Lindfield Community Preschool Enterprise Agreement, which was to apply to employees who were employed by the East Lindfield Community Preschool, who were members of the applicants' union, and who were not otherwise excluded from the agreement. The agreement was to cover a three-year period from 1 July 2020 to 30 June 2023, with the possibility of an extension. The court's order was effective from the date of the decision.

Independent Education Union of Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established