Independent Education Union of Australia

[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

In the Fair Work Commission, Independent Education Union of Australia filed an application for the approval of the Tingalpa & District Kindergarten Early Childhood Education Collective Enterprise Agreement 2024. The application sought the agreement's endorsement, which outlines terms and conditions for employees in the early childhood education sector within the Tingalpa & District region. The legal issues that arose in the case primarily focused on whether the agreement met the necessary requirements under the Fair Work Act 2009, particularly concerning procedural fairness, coverage, and compliance with minimum standards of employment.

The court examined the procedural fairness of the bargaining process to ensure that the agreement was reached through genuine negotiations between the parties. It assessed whether the union adequately represented the employees and if the employers were genuinely involved in the bargaining process. Additionally, the court scrutinized the coverage of the agreement to confirm that it accurately reflected the bargaining unit's composition. The court also verified that the agreement adhered to minimum standards, including provisions on minimum wages, maximum hours of work, and other essential employment conditions.

Upon review, the court found that the agreement had been reached through genuine negotiations, and the union had adequately represented the employees. The coverage of the agreement was deemed accurate, and the agreement was in compliance with the minimum standards outlined in the Fair Work Act 2009. Consequently, the court approved the Tingalpa & District Kindergarten Early Childhood Education Collective Enterprise Agreement 2024. The decision was made in light of the comprehensive compliance of the agreement with all statutory requirements and the fair representation of the involved parties.

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