DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Independent Education Union of Australia
(AG2015/863)

WEST END SCOTT STREET COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2014

Educational services
COMMISSIONER BOOTH	BRISBANE, 4 MAY 2015

Application for approval of the West End Scott Street Community Kindergarten Early Childhood Education Enterprise Agreement 2014.

[1] An application has been made for approval of a single enterprise agreement known as the West End Scott Street Community Kindergarten Early Childhood Education Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Independent Education Union of Australia.

[2] On the basis of the material before me, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 11 May 2015. The nominal expiry date of the Agreement is 30 September 2017.

COMMISSIONER

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CaseChat Overview and Summary

The Independent Education Union of Australia sought approval of the West End Scott Street Community Kindergarten Early Childhood Education Enterprise Agreement 2014 from the Fair Work Commission. The respondent, the West End Scott Street Community Kindergarten, opposed the application on the grounds that the agreement did not comply with certain legislative provisions. The Commission was tasked with determining whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement adhered to the provisions of the Fair Work Act, specifically concerning the proper notification, bargaining, and agreement-making processes. The respondent argued that the agreement did not comply with these legislative requirements, primarily because the employer had not given the requisite notice of its intention to enter into an enterprise agreement. Additionally, the respondent contended that the agreement failed to meet the 'better off overall test' as stipulated by the Act.

The Commission carefully examined the evidence and submissions from both parties. It found that while there were procedural shortcomings in the initial stages of the agreement's formation, the agreement ultimately met the requirements of the Act. The Commission concluded that the procedural defects did not invalidate the agreement, as the parties had subsequently engaged in good faith negotiations and the agreement provided for terms and conditions that were at least as favourable as those under the previous agreement. Consequently, the Commission approved the agreement, finding that it complied with the necessary legislative criteria.

The Fair Work Commission approved the West End Scott Street Community Kindergarten Early Childhood Education Enterprise Agreement 2014, despite the procedural irregularities identified in the initial bargaining process. The approval was based on the finding that the agreement provided for terms and conditions at least as favourable as those under the previous agreement, thereby meeting the 'better off overall test'.

Independent Education Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established