Independent Education Union of Australia
[2024] FWCA 4313
•4 DECEMBER 2024
| [2024] FWCA 4313 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Independent Education Union of Australia
(AG2024/4300)
TINGALPA & DISTRICT KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024
| Educational services | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 4 DECEMBER 2024 |
Application for approval of the Tingalpa & District Kindergarten Early Childhood Education Collective Enterprise Agreement 2024
This decision deals with an application made for approval of an enterprise agreement known as the Tingalpa & District Kindergarten Early Childhood Education Collective Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Independent Education Union of Australia – Queensland and Northern Territory Branch (the Applicant/IEU-QNT). The Agreement is a single enterprise agreement.
The Notice of Employee Representational Rights (NERR) distributed to employees appears to have been the older version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]
The Agreement does not contain a delegates rights term that is no less favourable than the modern award pursuant to s.205A, and on that basis the term in the relevant modern award will apply.
The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.
Pursuant to s.190(3) of the Act, I accept the undertakings.
Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 3.4.2 – Deduction/Withholding of monies due to the employee under the NES on Termination.
However, noting clause 1.2.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The IEU-QNT lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEU-QNT.
The Agreement is approved and will operate from 11 December 2024. The nominal expiry date of the Agreement is 31 December 2027.
DEPUTY PRESIDENT
[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].
[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
Printed by authority of the Commonwealth Government Printer
<AE527077 PR782065>
0
0
0